Hirst; Secretary, Department of Family and Community Services

[2005] AATA 621

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 621

ADMINISTRATIVE APPEALS TRIBUNAL       )          No N2005/522

GENERAL ADMINISTRATIVE DIVISION		)  )
Re		SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Applicant

And FREDERICK HIRST

Respondent

DECISION

Tribunal Miss N Isenberg, Member

Date29 June 2005

PlaceSydney

Decision The decision under review is set aside and the matter remitted to the Applicant for reconsideration with a direction that Mr Hirst was, at all relevant times, a member of a couple for the purposes of the Social Security Act 1991.

……………………………….
  

Miss N Isenberg
Member

  

CATCHWORDS

SOCIAL SECURITY – rate of age pension assessed as not a member of a couple – property owned as joint tenants – earlier advices to Centrelink of de facto relationship – holidays spent together – social lives not entirely separate - decision set aside.

Social Security Act 1991 – ss.4, 55, 1064, 1064-B1

Re SRWW and Secretary, Department of Family and Community Services [2001] AATA 495

Re Secretary, Department of Family and Community Services and WAP [2000] AATA 7

REASONS FOR DECISION

29 June 2005  Miss N Isenberg, Member 

1.      This is an application by the Secretary, Department of Family and Community Services (“Centrelink”) for review of a decision by the Social Security Appeals Tribunal (“SSAT”) made on 29 March 2005 affecting the rate of Mr Hirst’s age pension. The SSAT set aside the decision of the Authorised Review Officer (“ARO”) who decided that Mr Hirst should be assessed as a member of a couple in determining his rate of age pension. By a majority, the SSAT found that Mr Hirst was not a member of a couple from 26 July 2004. 

2. At the hearing, the Applicant was represented by Ms H Schuster from Centrelink and Mr Hirst appeared without representation. Mr Hirst gave evidence, as did Miss Williams and Ms Ogle of the Centrelink Australian Tax Office Liaison Team. I had before me the documents (T documents) lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 and the exhibits tendered during the hearing.

BACKGROUND

3.      After contacting Centrelink on 8 January 2003, Mr Hirst lodged a claim for age pension on 15 January 2003. 

4.      On the claim form he stated, in relation to his marital status, that he had been in a “de facto” relationship with Miss Margaret Williams since 25 April 1982 (T4/28-29). He indicated that he owned his home jointly with his “partner” (T4/37) and both he and Miss Williams signed the claim form (T4/42). Miss Williams, too, provided details on a separate form about her personal circumstances, including the fact that she was a “de facto” partner of Mr Hirst (T6).

5.      Miss Williams was working full time at the time of the claim while Mr Hirst ceased work on 31 March 2000 (T5/46).

6.      Age pension was granted to Mr Hirst on 17 January 2003 at the ‘married rate’ of $98.53 per fortnight commencing on 3 February 2003, the date Mr Hirst turned 65 years of age (T9/75). Mr Hirst’s payments were reduced due to income earned by his partner, Miss Williams.

7.      On 26 July 2004 Mr Hirst telephoned Centrelink to advise that he and Miss Williams had “not been a couple for approximately 20 years” and that he had been “bullied” into advising he was partnered with Miss Williams at the time of his age pension claim (T10/78). On 29 July 2004 he lodged a “Separation Details” form with Centrelink accompanied by a letter requesting arrears payment to the time of grant of age pension (T11/79-80).

8.      On 9 November 2004 Centrelink decided that its original decision that Mr Hirst was a member of a couple had been correct (T21/111). That decision was affirmed by an ARO on 10 January 2005 (T29).

9.      The SSAT decided on 29 March 2005 that the decision should be set aside (T2). Two of the three tribunal members decided that they could not determine whether Mr Hirst was a member of a couple in January 2003 when he had first claimed the age pension but found that he was not a member of a couple from 26 July 2004.  The presiding member dissented and found that Mr Hirst’s evidence was not wholly credible and that the majority of the tribunal had “glossed over the fact that this is a long standing relationship”.

10.     Centrelink’s application for review of the SSAT decision was lodged with this Tribunal on 26 April 2005.

LEGISLATION

11. Section 55 of the Social Security Act 1991 (“the Act”) relevantly provides that the rate of age pension is worked out in accordance with the rate calculator in s.1064 of the Act. According to the rate calculator at s.1064-B1, Mr Hirst’s maximum rate of age pension depends on his family situation, in particular whether he is partnered or ‘not a member of a couple’. Currently the maximum rate (including pharmaceutical allowance) for an age pensioner is $482.10 per fortnight if single but $400.60 if partnered.

12. Section 4(1) and 4(11) of the Act provide that someone is “partnered” if he or she is a “member of a couple”. The term “member of a couple” is further defined in subsection 4(2) of the Act as including someone who is in a “marriage like relationship” with a person of the opposite sex. In order to determine whether someone’s relationship is “marriage like” subsection 4(3) of the Act states that all of the circumstances of a relationship must be considered, including the following:

·financial aspects of the relationship

·nature of the household

·social aspects of the relationship

·any sexual relationship between the people

·nature of the people’s commitment to each other

ISSUE BEFORE THE TRIBUNAL

13. Whether Mr Hirst is a “member of a couple” as defined in section 4 of the Act for the purpose of calculating his entitlement to age pension.

CONSIDERATION OF THE EVIDENCE

14.     In coming to the correct and preferable decision, I took into account all of the evidence, submissions, case law and relevant legislation.

15. It is not in dispute that Mr Hirst has a relationship with Miss Williams, a person of the opposite sex; that they are not legally married to each other; that they are both over the age of consent; and neither is within a prohibited relationship for the purposes of section 23B of the Marriage Act1961. That is, apart from the question of whether a marriage-like relationship exists, the facts support all other relevant conditions set out in s.4(2)(b) of the Act.

16. The concept of a "marriage-like relationship" under the Act was discussed in ReSRWW and Secretary, Department of Family and Community Services [2001] AATA 495, where the Tribunal noted that each matter is to be considered on its merits and that the Tribunal should remain flexible in its approach.

17. Centrelink contended that at all relevant times Mr Hirst was Miss Williams’ de facto partner and therefore a member of a couple as defined in section 4 of the Act.

18.     Both Miss Williams and Mr Hirst, however, told me that they are no more than friends.  When shown his application for an age pension (T4/28) I asked Mr Hirst why he had selected “de facto”, as distinct from the other choices: single, married, widowed, divorced or separated, to describe his marital status.  He said that he understood “de facto” to mean ‘friends’.  In relation to question 16 in the same document requesting his “partner’s” full name he said that he also regarded “partner” to mean friend.  He said there is a big difference between being married and not married in his view, in that marriage required a commitment and to “honour and obey, in sickness and health”. In his view “de facto”, “friend”, and “partner” had no element of commitment. Miss Williams told me that she understood the term “de facto” to mean “friends sharing the same address”.

19.     In Re Secretary, Department of Family and Community Services and WAP [2000] AATA 7, the Tribunal said that the provisions of section 4(3) of the Act provide objective criteria for determining whether a person is a member of a couple. However, as there is no guidance as to how much weight is to be attributed to each criterion, it falls to the Tribunal to consider all of the circumstances of the relationship.

20.     How two cohabitating persons view their relationship, based on their mutual or individual perceptions of what constitutes a marriage-like relationship, is not determinative. The test is an objective one, having regard to the legislation and facts of the particular case. In this context the Tribunal said in Re WAP (at para 12):

"The Tribunal is sympathetic with WAP when she takes the view that one cannot be in a marriage-like relationship (and therefore not a member of a couple) unless the couple provide each other with emotional support and share everything including financial obligations. However, whilst that no doubt is an acceptable description of the phrase as it is commonly understood, although not exhaustive, it is not the relevant statutory test. Therefore, in getting to its decision the Tribunal finds it necessary to work through the statutory criteria in s4(3) of the Act and consider all the relevant circumstances of this case.”

21.     Those statutory criteria are considered below, having regard to the evidence before me.

Financial aspects of the relationship

22.     Mr Hirst retired in 2000 while Miss Williams was, until recently, in full-time employment at Chubb. 

23.     Mr Hirst told me that since ceasing work in 2000 he has lived off his superannuation policy with financial support from Miss Williams. There was no evidence of any debts owed by them. 

24.     Both Mr Hirst and Miss Williams said that she told him that she will no longer financially support him. Miss Williams said that when it was rumoured in June or July last year that she might lose her job, she decided she needed to cut her expenses and therefore decided that she could no longer support Mr Hirst. 

25.     Exhibit R1 was explained by Ms Ogle as the electronic versions of Mr Hirst’s and Miss Williams’ tax returns for the 2003/2004 financial year, wherein they described each other as ‘spouse’. They explained that they had done this as a means by which Miss Williams could claim Mr Hirst as a dependant and thereby recoup some of the money she had been outlaying to support him.

26.     They both have small share holdings in IAG, some of those shares being owned individually, while some of the shares are owned jointly (T5/47-49). Mr Hirst explained that when NRMA floated, their house insurance, which had been in both names, entitled them to shares, which, by necessity, were also recorded in joint names.  Other than the IAG share account they have separate bank accounts. 

27.     A superannuation statement from REST Superannuation shows Miss Williams as the beneficiary of Mr Hirst’s policy as at June 2001 (T5/54). 

28.     Miss Williams’ employer had been advised that Mr Hirst is her de facto partner (T30/142). She said she did that because she had no family in Sydney.

29.     Notwithstanding Mr Hirst’s position that he and Miss Williams have separate finances, he gave permission to Centrelink (T4/29) to tell Miss Williams about his Centrelink payments should she ask.  He also told me, however, that he did not consider Miss Williams to be a person ’that you want to disclose all your affairs to’.

30.     Although Mr Hirst’s Ford Falcon is registered solely in his name (T15/91), he told me that it was jointly owned, because he and Miss Williams had traded in their cars and bought that one together.  He said the RTA would not register it in 2 names.  Although both Mr Hirst and Miss Williams are named as regular drivers on the insurance documents (T15/92), both said that Miss Williams rarely drives the car. Mr Hirst said she had driven it twice or 3 times when he was drunk. Miss Williams said that she had only driven it when taking him to the hospital and home again.  She does not like driving in Sydney.

31.     Mr Hirst and Miss Williams’ most significant asset is their home at Enfield which they purchased together in the 1980’s (“the property”). The SSAT placed considerable emphasis on Mr Hirst’s repeated claims that he and Miss Williams owned the property as tenants-in-common (T2/10; T11/79, T24/116). However, a title search made on 25 May 2005 shows that Mr Hirst and Miss Williams are registered as joint tenants (exhibit R2). Mr Hirst said that at the time of purchase he had just been through a ”terrible divorce” and he told the solicitor that he did not want the same thing to happen again.  He said “once bitten, twice shy”, and in his experience, in divorces “the woman always gets 80%”.  He is now “very upset and cranky” to find out that the property is not in fact held as tenants in common.  He also said he did not know if there was any difference between joint tenancy and tenants in common.  Miss Williams said that the solicitor had suggested that the property be ”in both names” so it could not be sold unless the other party agreed.  She also said she did not understand what the expression ”joint tenant” means. 

32.     Mr Hirst told me that he and Miss Williams each got their own mortgage on the property, which he thought was for about $48,000 each. Miss Williams said there was no mortgage and a historical search at the NSW Department of Lands arranged by the Tribunal confirmed that no mortgage had been registered over the property.

33.     Mr Hirst told me that his son and grandson were the beneficiaries under his will. With the exception of his train set which he has set up in the garage, he appears to have few other assets.

34.     Household bills, such as water and rates are in both names, because the property is recorded in both names (T14/85-88).

35.     I consider that the evidence supports a finding that Mr Hirst and Miss Williams have intended to arrange their financial affairs separately. However, a major consideration is in relation to the home.  In my view, it is highly relevant in considering the nature of a relationship that the only real asset of either party is the property held as joint tenants. On Miss Williams’ evidence, however, her understanding of the arrangements tends to suggest a joint tenancy was intended.  Both purported to be ignorant of the principles of survivorship.  If there has been an error by the solicitor, then that matter may be pursued elsewhere, and the nature of the holding adjusted. 

36.     As it presently stands, however, the ownership of the property as joint tenants is a major factor in coming to my decision.

Nature of the household

37.     Mr Hirst and Miss Williams have lived together since about 1982, they having been friends for many years.  Shortly after Mr Hirst’s divorce Miss Williams came to Sydney from the country in search of work and they flatted together.  Since about 1987 they have resided together at their Enfield home. 

38.     Mr Hirst and Miss Williams gave evidence that Mr Hirst lives in the smaller upstairs part of the house exclusively while Miss Williams uses the larger area, downstairs.  Mr Hirst said that of the downstairs portion they share only the laundry and lounge room.  He said that if he has friends to visit he will ask to use the kitchen.  As to his cooking facilities upstairs, he said that he has a sink and bench top cover and a skillet.  Miss Williams said that she “presumes” he does his cooking in the bar area upstairs but she never goes up there.  In contrast to Mr Hirst’s evidence, she said he never uses her kitchen and has not done so in the 20 years they have lived there.

39.     He said he never uses the downstairs bathroom, preferring to go to be toilet in the garage if he happens to be downstairs, rather than go upstairs. 

40.     Miss Williams said that she does not know if her bedroom door is lockable, but is as unconcerned about that as she would be if it were her brother living there.

41.     Mr Hirst is the telephone subscriber. There is a handset upstairs and one in the lounge room, but Miss Williams never uses it.  Mr Hirst said he did not know if she used the phone but the bills did not appear to be untoward. She said her family and friends used to call her at work.  She no longer has a mobile phone. If she needs to use the telephone she will go to a public phone box. 

42.     Mr Hirst said that they do not shop together nor do household chores for each other (T18). He said he cannot afford to eat at home and will get “a $4 meal at the club”.  He collects his bread and milk at the service station. Miss Williams told me that she catches the bus to Burwood shops and brings her shopping home in a backpack.

Social aspects of the relationship

43.     Mr Hirst has stated that he and Miss Williams do not socialise together.   Miss Williams said that occasionally she may go with him and his friends, the Macleods, to the club.  She does not go to the club alone, preferring her own company. Mr Hirst’s and Miss Williams’ social lives are not, on the evidence, entirely separate.

44.     Mr Hirst confirmed that Miss Williams attends some family functions.  She had been at his son’s engagement and wedding.  She said she knew he had a grandson because he had shown her a photograph.  Mr Hirst had attended her father’s funeral.

45.     Although initially advising Centrelink that the couple never went on holidays together, subsequent enquiries with DIMIA show that they travelled together four times since 1997 (T27/128-129).  Most significantly, the couple’s last shared trip was for 6 weeks to England in September 2004, some time after Mr Hirst first claimed that he and Miss Williams were not in a relationship.  Furthermore, during that time neither one of them ever travelled outside Australia without the other, according to DIMIA records, although Mr Hirst said that he had.

46.     Mr Hirst said that he did not regard his overseas trips as ‘holidays’ because he regards them as ‘study trips’.  He said he would go to the travel agent and book a trip.  If Miss Williams wanted to go too, she would later go and book for the same trip.  He said they did not discuss trips in advance, because he did not want to be limited by where she wanted to go.

47.     In contrast, Miss Williams said that they discussed and planned their trips together.  They would book them together but would pay separately.  They shared a room, in twin beds, but always in their separate names.

48.     I also find it of significance in reaching my decision that Mr Hirst and Miss Williams holiday together. I do not accept Mr Hirst’s distinction between holidays and study trips, nor his account that his trips are planned independently of Miss Williams.

Sexual relationship between the people

49.     Mr Hirst said he and Miss Williams had a sexual relationship but claims this ceased at least 18 years ago (T17/100). He also told Centrelink that sexual relations ceased in the “past several years ... due to prostate condition”. (p.84, T13).

50.     Miss Williams told me that they had slept together ‘once or twice’ about 20 years ago.

51.     There was some inconsistency in the evidence as regards sexual relations, but there was no evidence that either presently had other sexual partners, nor had in the past 20 years either.

Nature of the people’s commitment to each other

52.     Mr Hirst had indicated that they might take care of each other in the case of illness (T17/100) but would not support each other in other circumstances. 

53.     Mr Hirst said he will go to the chemist for Miss Williams if she is sick. Miss Williams said if anything happened to Mr Hirst she would care for him.

54.     Miss Williams described Mr Hirst as ‘filling a void as a male companion’.

55.     Mr Hirst said that their friendship had become severely strained over money since Miss Williams said she is no longer prepared to support him.  He said he had tried to get Miss Williams’ (former) employer to split her income.  He said he had tried to garnishee her wages.

56.     Although relations are strained because of finances, neither gave any indication that the relationship may be terminated nor that the property would be sold so they could go their separate ways.

57.     As to the level of commitment to each other I observe that Miss Williams at least in part financially supported Mr Hirst between 2000 and 2003, when he lodged his pension claim and apparently continued to do so until the loss of her own job was imminent. That Mr Hirst attempted to access her wages by contacting her employer suggests to me that he regarded himself in a relationship such as to entitle him to gain access to her finances.

58.     I do not accept Mr Hirst’s understanding of the term ‘de facto’, as it is one used in common parlance. He did not select a more appropriate option when completing his Centrelink forms. Miss Williams’ explanation is, in my view, also naive and unrealistic.

59.     They have resided together for many years and have no plans to discontinue the relationship.

60. In summary, for the reasons given in respect of the relevant criteria, I find that the weight of evidence is that Mr Hirst and Miss Williams were, at all relevant times, members of a couple for the purposes of the Act.

DECISION

61. The decision of the Social Security Appeals Tribunal is set aside and the matter remitted to the Applicant for reconsideration with a direction that Mr Hirst was, at all relevant times, a member of a couple for the purposes of the Act.

I certify that the preceding 61 paragraphs are a true copy of the decision and reasons for decision of Miss N Isenberg, Member:

Signed:         A. Garcia
          ..................................................................................……………………………….

Associate

Date of Hearing  14 June 2005

Date of Decision  29 June 2005

Applicant’s Representative         Ms H Schuster

RespondentIn person