HAYWARD and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2010] AATA 865

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 865

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/6080

GENERAL ADMINISTRATIVE DIVISION		)
Re		DARYL HAYWARD

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Dr P McDermott, RFD, Senior Member

Date4 November 2010

PlaceBrisbane

Decision I set aside the decision under review so that Mr Hayward be paid disability support pension at the partnered rate from 19 October 1994 rather than 4 April 1995.

................[Sgd]..............................

Senior Member

CATCHWORDS

SOCIAL SECURITY – Disability support pension – Should the applicant have received disability support pension at the partnered rate – Applicant determined to be the member of a couple – Date at which the applicant should be considered to be the member of a couple and therefore paid disability support pension at the partnered rate from set aside and substituted for an earlier date.

Marriage Act 1961 (Cth) s 23B

Social Security Act 1991 (Cth) ss 4, 1064

Swift v Roberts (1764) 3 Burr 1488, 97 ER 941

REASONS FOR DECISION

4 November 2010 Dr P McDermott, RFD, Senior Member  

INTRODUCTION

1.      In 1994 the applicant (Mr Daryl Hayward) was granted disability support pension at the single rate.  On 30 July 2009, Ms Olive Roe lodged a claim for a carer's payment; in that form she identified the applicant as her partner.  Centrelink decided that the applicant should not receive disability support pension at the single rate.  In determining this application, I have to decide whether the applicant and Ms Roe should be regarded as a couple.

PRIOR DECISIONS  

2.      On 3 August 2009, Centrelink made a decision that the applicant had been a member of a couple with Ms Roe since 31 December 1995.  On 11 August 2009, the applicant signed a request for a review of that decision; that request was not received by Centrelink until 7 September 2009.  On 21 September 2009, an Authorised Review Officer (“ARO”) affirmed the original decision of Centrelink.

3.      On 20 November 2009, the Social Security Appeals Tribunal (“SSAT”) varied the decision under review by deciding that since 4 April 1995 the applicant has been a member of a couple with Ms Roe.

4.      On 21 December 2009, the applicant made an application to this Tribunal to review the decision of the SSAT.

ISSUE FOR RESOLUTION

5.      I must decide whether the applicant has been living in a marriage like relationship with Ms Roe from 4 April 1995.

RELEVANT LEGISLATION

6. Under s 1064(4)(b) of the Social Security Act 1991 (Cth) (“the Act”) the rate of disability support pension depends on whether or not a person is a “member of a couple”.

7. The expression “member of a couple” is defined in s 4 of the Act, which relevantly provides that “member of a couple” has the meaning given to it by subsections (2), (3), (3A), (6) and (6A) (see s 4(1) of the Act).

8. Section 4(2)(b) of the Act provides that a person is a member of a couple for the purposes of that Act, if all of the following conditions are met:

(i)the person has a relationship with a person of the opposite sex (“the partner”);

(ii)the person is not legally married to the partner;

(iii)the relationship between the person and the partner is, in the opinion [of the relevant decision-maker], a marriage-like relationship;

(iv)both the person and the partner are over the age of consent applicable to the state … in which they live; and,

(v)the person and the partner are not within a prohibited relationship for the purposes of s 23B of the Marriage Act 1961 (Cth).

9. Section 4(3) of the Act provides that, in forming an opinion about the relationship between two people for the purposes of s 4(2)(b), the Secretary is to have regard to all of the circumstances of the relationship, including, in particular, the following matters:

(a)the financial aspects of the relationship;

(b)the nature of the household;

(c)the social aspects of the relationship, including:

(i)whether the people hold themselves out as married to each other;

(ii)the assessment of friends and regular associates of the people about the nature of their relationship; and,

(iii)the basis on which the people make plans for, or engage in, joint social activities;

(d)any sexual relationship between the people;

(e)the nature of the people’s commitment to each other, including:

(i)the length of the relationship;

(ii)the nature of any companionship and emotional support that the people provide to each other;

(iii)whether the people consider that the relationship is likely to continue indefinitely; and,

(iv)whether the people see their relationship as a marriage-like relationship.

CONSIDERATION

10.     At the hearing the applicant stated that he wished that I decide his application on the material before me.  He declined to give evidence in support of his application and did not call Ms Roe, who was with him as a support person, as a witness.  At the hearing, I ensured that the applicant understood that his failure to support his application with oral testimony would not assist his case.

11.     After reviewing the material before me, I have decided that the evidence supports the conclusion that the applicant and Ms Roe were members of a couple between 19 October 1994 and 3 August 2009.

12.     My conclusion is primarily based upon the fact that both the applicant and Ms Roe have held themselves out as being in a de facto relationship.  In the National Australia Bank (“NAB”) home loan application form they stated that they were in a de facto relationship.  Ms Roe, in her carer's claim form, repeatedly describes herself as being in a partnered or de facto relationship (see her answers at questions 35, 37, 44, 45 to 65 and 67).  As Ms Roe was not called as a witness, she could not be cross-examined on what are admissions against interest.

13.     I have also relied upon the financial relationship between the applicant and Ms Roe in coming to the conclusion that they are members of a couple.  In the next paragraphs of these reasons, I set out the facts that relate to that financial relationship.

14.     The applicant and Ms Roe have jointly acquired two properties.  Both Ms Roe and the applicant had informed the SSAT that the Burrum Heads property was acquired in 1995.  Ms Roe advised the Tribunal that the property was acquired “in early 1995”.  The applicant informed that Tribunal that the “land was acquired jointly on or about 4 April 1995”.  That is why the decision of that Tribunal refers to 4 April 1995.  However, it now appears that the applicant was then mistaken as to the actual date when that property was acquired.  The historical title search that was admitted into evidence, records that a transfer of the property in favour of both the applicant and Ms Roe as joint tenants was lodged on 19^th October 1994 (Exhibit 3).  I accept that the applicant was attempting to advise the SSAT of the actual date of acquisition of that property. 

15.     I regard the fact that in October 1994 Ms Roe and the applicant acquired a property as joint tenants to be a significant indicator of the parties’ involvement as a couple.  Where property is acquired by two persons upon a joint tenancy and one of the joint tenants passes away, the surviving joint tenant will acquire the property under the doctrine of survivorship: Swift v Roberts (1764) 3 Burr 1488, 97 ER 941. The fact that two persons acquire property under a joint tenancy indicates a degree of commitment between the joint tenants.

16.     In the circumstances, I have set aside the decision under review to reflect the actual date of the joint acquisition of that property which was later sold in 2002.       

17.      On 16 September 2003, the applicant and Ms Roe jointly purchased a property at Biggenden.  The parties are registered as joint tenants of that property.

18.     In or about April 2004, the applicant and Ms Roe entered into a joint home loan through the NAB.  The applicant had $6,000 of personal credit card debt consolidated into this loan.  The original documentation of the NAB identifies the applicant and Ms Roe as 'de factos'.  The statements for this account are issued to the applicant.  The mortgage payments are made via direct debit from an account belonging to Ms Roe.  I do not place any weight upon the fact that the NAB has now amended its records for this mortgage to show that the applicant and Ms Roe are not 'de factos'.    

19.     In forming my opinion I have also relied upon the long standing nature of the relationship between the parties.  They have a history of residing together for some sixteen years.  With the exception of a seven month period in 1999 when the applicant lived in Margate, the applicant and Ms Roe have been living together since 1995.  The parties have resided together at four different residences at: Deception Bay; Burrum Heads; Bracken Ridge; and, Biggenden. 

20.     In making my decision, I have taken account of the fact that Ms Roe in her will does not list the applicant as a beneficiary.  However, in my view, it is understandable if Ms Roe lists a child or her children from a previous relationship as a beneficiary or beneficiaries.  This, in my view, does not detract from my opinion that the applicant and Ms Roe are members of a couple.  What is more significant, in my view, is the fact that because their residence is held under a joint tenancy; a surviving joint tenant will acquire the whole of the property under the doctrine of survivorship and not under any will.

21.     I have taken account of the fact that the applicant and Ms Roe have provided care to each other in times of sickness.  The applicant cared for Ms Roe for about 8 years when she was receiving medical treatment.  Ms Roe now cares for Mr Hayward.  In 2009, she travelled to Brisbane with the applicant on 35 occasions whilst he was receiving medical treatment.

22.     I do not regard the fact that the applicant and Ms Roe provide care to each other of itself to be decisive in terms of whether they are members of a couple.  I have had regard to Part 2.2.5.10 of the Guide to Social Security Law which provides policy guidance which does not bind this Tribunal.  Paragraph 2.2.5.10 of the Guide contains the following exclusion:

Exclusion

The definition for member of a couple relationships excludes a person who provides personal care and support to another person for payment or reward, on behalf of another person or a government, charitable or similar organisation. It is Government policy to encourage people with a disability, or who are aged, to remain in their own home if support is available. Care relationships exist which involve people of all ages. In cases where a person is sharing with another person primarily for caring reasons and companionship and there is little evidence of other factors present (discussed below), the decision-maker should not form the opinion that a de facto relationship exists. 

23. This exclusion cannot, in my view, apply to the circumstances of this case where there are other factors which are indicative of a relationship which I am required to have regard to under s 4(3) of the Act. These factors are the financial relationship between the applicant and Ms Roe, the lengthy period of time that the parties have resided together as well as the fact that they have described themselves as being in a de facto relationship.

DECISION 

24.     I set aside the decision under review so that Mr Hayward be paid disability support pension at the partnered rate between 19 October 1994 (rather than 4 April 1995) until 3 August 2009. 

I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott, RFD, Senior Member

Signed: ........................[Sgd].....................................................
              Kate Slack, Research Associate

Date/s of Hearing  5 October 2010
Date of Decision  4 November 2010
Applicant was assisted by Ms Olive Roe
Solicitor for the Respondent     Jacqueline McGrath, Australian Government            Solicitor