Hogan; Department of Family and Community Services

[2001] AATA 681

DECISION AND REASONS FOR DECISION [2001] AATA 681

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  V2000/1155

GENERAL ADMINISTRATIVE DIVISION          )          
           Re      SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES         
  Applicant
           And    MAXINE HOGAN    
  Respondent

DECISION

Tribunal       Miss E. A. Shanahan, Member     

Date30 July 2001

PlaceMelbourne

Decision      The Tribunal sets aside the decision under review.  The respondent was not qualified for the sole parent pension/parenting payment single and the amount owing to the Commonwealth is affirmed.   

.....(Sgd) Miss E. A. Shanahan......
  Member
CATCHWORDS
SOCIAL SECURITY – sole parent pension – parenting payment singe – whether member of a couple – whether not living separately and apart from the other person, father of only child – living separately permanently on an indefinite basis
Social Security Act 1991 ss. 4(2), 4(3), 4(3)(a), 4(5), 501, 1224(1), 1236(1), 1236(1A), 1237AAD
Staunton-Smith v Secretary, Department of Social Security 25 ALD 27
Re Peck and Secretary, Department of Social Security (AAT 8357, 2 November 1992)
Re Sturgess and Director-General of Social Security 5 ALN 9151
Re Ross and Secretary to the Department of Family and Community Services [2000] AATA 437

REASONS FOR DECISION

30 July 2001            Miss E. A. Shanahan, Member     

1. The applicant, the Secretary to the Department of Family and Community Services, seeks review of a decision of the Social Security Appeals Tribunal (the SSAT) dated 15 August 2000.  The SSAT set aside the decision of the primary decision-maker dated 11 May 2000 and affirmed by an Authorised Review Officer (ARO) on 19 May 2000.  The SSAT substituted their decision that the respondent was qualified for parenting payment in the period 8 April 1998 to 9 May 2000 and that it was payable to her at the single rate during that period.  As a consequence of this qualification, the debt owing to the Commonwealth in the sum of $12,965.63 was negated.

2. At the hearing before this Tribunal, the applicant was represented by Mr Terry Baker, an advocate with Centrelink and the respondent was self-represented. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T documents) and was provided with statements from Powercor Australia addressed to the respondent, Maxine Hogan, and a further statement addressed to Mr Gary J. Cotter of the same address (Exhibit A1).
   Background to the Application

3. The respondent had been in receipt of a sole parent pension (SPP) from 9 June 1994 until she requested cancellation of SPP on 19 September 1997.  This pension had been paid on the basis that the respondent was separated but living under the same roof as Mr Gary Cotter, the father of her child, Caine Cotter, born on 13 June 1985.  There is no evidence that Mr Cotter and Miss Hogan have ever married.  The respondent requested that the SPP be ceased some two months after the first of several so-called "dob-ins" from a member of the public asserting that the respondent was living in a de facto relationship with Mr Cotter and had been doing so for the previous 12 years. 

4. On 8 January 1998, the respondent submitted a new claim for SPP and advised that she had separated from Mr Cotter on 12 December 1997 and that Mr Cotter's whereabouts were unknown.  SPP was granted.  SPP was changed to parenting payment single (PPS) on 20 March 1998.  On 8 April 1998, the respondent advised Centrelink of a change of address indicating she now resided at H310 Preston Hill Road, Haddon with her friend Gary Cotter.  The application form lodged on 8 April 1998 declared that the respondent shared living areas with Mr Cotter, occupied separate sleeping areas and shared utilities.  She indicated she intended to share the accommodation indefinitely.  She denied paying rent but admitted to paying board and lodging of $60 per week which she paid to Mr Cotter.  She denied owning her own home, having any interest in a car, denied having a joint bank account, building society, credit union account or other investments, denied being authorised to use a credit card, or store credit card which operates on an account in the name of another, denied being a named beneficiary under a will, life insurance policy or superannuation policy, denied any outstanding debts, including those which might relate to a mortgage, denied sharing any household accounts in the form of electricity, gas or telephone bills and stated that all these accounts were paid by Gary Cotter and her share was included in the board and lodgings of $60 per week.  In this application the respondent stated she purchased her own food, cleaned her area of the house relating to her and son's usage, didn't share social and leisure activities with Mr Cotter, go on holidays with Mr Cotter, nor have relatives, friends or associates to visit.  The latter, she indicated, believe them to have separated.  The respondent indicated that since separation she had not claimed to be married or in a de facto relationship for any purpose.  She nominated the time of separation as late 1993.  On the basis of this application, the respondent was granted parenting payment single.

5. On 21 April 1998 and again on 15 May 1998, a tip-off from the public was received by the Department.  As the result of these denunciations, the Ballarat Mobile Review Team commenced a review of the respondent's circumstances and qualification for PPS.  The Ballarat Mobile Review Team made inquiries relating to the respondent's part-time employment, her immediate past landlord's place of residence and inquiries to telephone and power providers.  Inquiries were also directed to the respondent and Mr Cotter's bank, both the ANZ and the Bendigo Bank, Mr Cotter's superannuation fund and the previous occupier of the relocatable property at H310 Preston Hill Road, Haddon. 

6. As a result of these inquiries, a delegate of the Department decided, on 11 May 2000, to cancel the PPS.  At the request of the respondent, an ARO undertook reconsideration of the decision and on 19 May 2000, affirmed the decision to cancel PPS.  On 13 June 2000, the respondent lodged an appeal to the SSAT.  This appeal was lodged shortly after receipt of the information that the Department was raising a debt of $14,074.43.  The respondent advised on 29 June 2000 that she wished both the decision and the amount of the debt to be reviewed by the SSAT.  On 13 July 2000 the ARO reconsidered the amount of the debt and following this review, the debt owed was reduced to $12,965.63. 

7. The SSAT heard the appeal on 15 August 2000 and found that the respondent was qualified for PPS in the period 8 April 1998 to 9 May 2000 and that it was payable to her at the single rate during that period.  The Secretary, Department of Family and Community Services lodged an appeal to the Commonwealth Administrative Appeals Tribunal on 25 September 2000.  

8. The respondent, Maxine Hogan, gave evidence before the Tribunal.  She agreed that she and Mr Gary Cotter had shared a house in Yendon for many years and had lived there as a married couple.  In approximately 1994, they decided to separate but continued to live under the same roof.  At that time, the respondent applied for a SPP and this was granted.  At approximately the same time, Mr Cotter decided to buy a house and asked the respondent to "sign with the house" (Transcript page 7, line 8).  The respondent agreed to joint ownership purely as a means of ensuring that her son, Caine Cotter, would inherit the property should anything happen to his father. 

9. The respondent moved from Yendon to Mt Egerton in 1994 with her son and was staying with friends, Mr and Mrs Bower.  As a result of what the respondent termed harassment by Centrelink, she was asked by the Bowers to move out.  She informed Mr Cotter that they had been asked to move and he suggested that she could live in the spare room of the house he had purchased in Haddon.  As she was without accommodation, and also felt it would be beneficial for her son Caine to live with both the parents, she accepted the offer.  She did not believe there would be any problems regarding her SPP as she had been in receipt of SPP previously when living separated under the same roof with Mr Cotter.  She informed Centrelink of her new address and the arrangements for day to day living.  The property in Haddon had two houses on it, one of which was fixed and the other, a relocatable.  When the respondent first took up residence, she occupied the main house with Mr Cotter, as the relocatable was occupied by tenants of Mr Cotter.  When the tenants vacated the relocatable, the respondent and her son shifted into this property and lived there from October 1998 until it was sold in February 2000.  Following the sale of the relocatable house, she moved back into the main house.

10. The respondent was cross-examined by Mr Baker for the applicant.  His cross-examination related primarily to documentation contained within the T documents.  The respondent acknowledged that it was her signature on the Assessment of Living Arrangements – Separated Under One Roof (T9) and that it was completed to the best of her knowledge at that time (8 April 1998).  She claimed to be unaware as to when Mr Cotter had nominated her as the beneficiary of his superannuation.  She believed that nomination was in order to ensure that the superannuation would eventually go to his son Caine and could not be challenged by his daughters from a previous relationship.  When asked why she had filled in the Assessment of Living Arrangements – Separated Under One Roof, to the effect that she was not a beneficiary of a superannuation policy, she replied "I don't know".  She justified this response by saying that she did not consider herself in any way personally attached to Mr Cotter.  However, they had a joint interest in the welfare of their son.  It was for that reason that they attended parent/teacher interviews together. 

11. The respondent acknowledged her signature on the document T18 at page 47 of the T documents.  In this statement the respondent advised that she was shifting into the relocatable because of the stress she was having from Centrelink.  In this statement she acknowledged that her name was on the mortgage applied to the Haddon property.  Inclusion of her name was merely to ensure her son's inheritance.  Mr Cotter fully owned the home.  She stated she had made a declaration that she had no legal interest in the property and undertook to provide Centrelink with a copy of this document.  She had not contributed in any manner financially to the property.

12. The document referred to above is contained in the T documents, page 68 and states:

    "AGREEMENT RE: PURCHASE OF PROPERTY, PRESTON HILL ROAD HADDON BETWEEN GARY COTTER AND MAXINE HOGAN.
    The property will be in joint names with no monetary contributions re: deposit, mortgage payments or property upkeep applicable to Maxine Hogan, she will have no claim over the property whatsoever other than if Gary Cotter passes away before Caine Cotter turns twenty one in which case the property will transfer to her until Caine comes of age, thus ensuring the property is passed on to Caine Cotter.  This is to prevent any claim by Gary's children from a previous relationship."

The respondent agreed that she had typed the document and that she and Mr Cotter had signed it.  The document had been witnessed by a Mr McKenzie.  The document is undated.  It was received by Centrelink Ballarat on 29 April 1999.  The respondent was uncertain when it was signed.  Mr Baker suggested that Mr McKenzie was an alias of Mr Cotter's but the respondent denied this.  She believed Mr McKenzie was a friend of Mr Cotter's and that she had never met him before the day the document was signed or since. 

1. Mr Baker took the respondent to a statement made by Mrs Margaret Hanson.  Mrs Hanson and her husband had been the tenants in the relocatable prior to October 1998.  In her statement, Mrs Hanson stated that she and her husband were paying rent to Gary McKenzie.  The respondent denied all knowledge of Gary McKenzie except for the single meeting, had no knowledge as to whether or not Mr McKenzie had at any time owned the property and once more stated that she did not have anything to do with the property.  The Tribunal did point out to the respondent that she did have a legal interest in the property.

2. The respondent agreed that she had attended the Bendigo Bank with Mr Cotter when he applied for a loan and had passed herself off as Mrs Cotter at this interview.  When asked "So you are prepared to lie to the Bendigo Bank about your position?" she replied "Yes" (Transcript - page 13, line 13).

3. The respondent justified providing Centrelink with a contact phone number that was Mr Cotter's home phone number on the basis that her mobile telephone did not work in all areas in the Haddon district.

4. The respondent was cross-examined with regard to the living arrangements at the Haddon property.  The relocatable house into which she moved in October 1998 had three bedrooms, a wood stove for heating hot water, used bottled gas and had electricity only for lighting purposes.  The main house was also a three bedroom home with two bathrooms.  It also had a wood heater, gas cooking and an electric hot water service.  The gas supply was in the form of bottled gas.  Mr Cotter was frequently away from the house as he was an interstate and local transport driver.  When he was at home, he spent a lot of time with his son Caine.  When living in the same house as Mr Cotter, the respondent placed $50 a week on the table to cover her contribution to the electricity charges but she bought her own food.  She denied that she was working for most of this time for Darley Butchers.  She did, however, admit that she had worked for Michael Beaumont at Beaumont Discount Meats at Wendouree Village as a casual.  She thought she started working there in November 1998 and worked a couple of hours here and there as required.  She denied the existence of any loans or any other legal obligations owed by her or Mr Cotter to each other.  She stated she did not hold herself out to being part of a married couple with exception of the Bendigo Bank, that she and Mr Cotter had no common friends or associates, that they did not go out together socially and there was no sexual relationship at all.  When asked would she care for Mr Cotter if he was ill, she replied "No".  She would not expect Mr Cotter to look after her if she became ill. 

5. In response to questions by the Tribunal, the respondent stated that she put $50 down on the table each week as her contribution to household expenses but that she purchased food for herself and her son.  She had a separate cupboard in the kitchen of the house for her things only.  She agreed that her son Caine attends a private school and during the period under consideration she was paying all the school fees.  Mr Cotter now pays the school fees or is presumed to do so as Caine continues to attend the private school and the respondent is certainly not paying them.  The respondent is now working as a casual for Coles Supermarket.  She continues to see her son a couple of times a week.  She had moved from the Haddon house because she could not afford to continue to live there and was now residing at her Aunt Linda's.  She had asked Caine to accompany her to this address but he had refused and continues to live with his father.  During the preceding 12 months, Caine has been suspended from school on many occasions.  Her son now resents her for leaving the Haddon property. 

6. The T documents provide evidence that Mr Cotter paid the respondent $123 per week for the upkeep of his son Caine.  The Bendigo Bank of Ballarat confirmed the existence of a mortgage relating to the Haddon property which commenced on 12 October 1998 (T33, page 71) and the existence of a further loan, taken out on 6 October 1998 by Gary and Maxine Cotter (T35, page 74).  A joint account was held in the names of G. J. and M. Cotter with the same bank (T35, page 75-77). 
   Legislation

7. The relevant legislation provides as follows: 

   "500(1)     A person is qualified for parenting payment if:

   (a)…

   (b) …

   (c)…

   (d) at least one of the following conditions is satisfied:

   (i)the person is not a member of a couple and the person was not a lone parent at the start of the person's current period as an Australian resident (see subsections (2) and (3));

   (ii) …

   (iii) …"

   …

   4(2)     Subject to subsection (3), a person is a member of a couple for the purposes of this Act if:

   (a)the person is legally married to another person and is not, in the Secretary's opinion (formed as mentioned in subsection (3)), living separately and apart from the other person on a permanent or indefinite basis; or

   (b)all of the following conditions are met:

   (i)the person has a relationship with a person of the opposite sex (in this paragraph called the 'partner');

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

   (iii)the relationship between the person and the partner is, in the Secretary's opinion (formed as mentioned in subsections (3) and (3A)), a marriage-like relationship;

   (iv)both the person and the partner are over the age of consent applicable in the State or Territory in which they live;

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

   4(3)     In forming an opinion about the relationship between 2 people for the purposes of paragraph (2)(a) or subparagraph (2)(b)(iii), the Secretary is to have regard to all the circumstances of the relationship including, in particular, the following matters:

   (a)the financial aspects of the relationship, including:

   (i)any joint ownership of real estate or other major assets and any joint liabilities; and

   (ii)any significant pooling of financial resources especially in relation to major financial commitments; and

   (iii)any legal obligations owed by one person in respect of the other person; and

   (iv)the basis of any sharing of day-to-day household expenses;

   (b)the nature of the household, including:

   (i)any joint responsibility for providing care or support of children; and

   (ii)the living arrangements of the people; and

   (iii)the basis on which responsibility for housework is distributed;

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

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

   (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; and

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

   (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.

   …

   4(3A)   The Secretary must not form the opinion that the relationship between a person and his or her partner is a marriage-like relationship if the person is living separately and apart from the partner on a permanent or indefinite basis.

   …

   4(5)     If:

   (a)a person claims, or is receiving, sole parenting payment; and

   (b)a particular residence has been, for a period of at least 8 weeks, the principal home of both the claimant or recipient and a person of the opposite sex; and

   (c)the claimant or recipient and the other person are legally married to one another; and

   (d)the claimant or recipient and the other person:

   (i)are living separately and apart on a permanent or indefinite basis; or

   (ii)claim to be living separately and apart on a permanent or indefinite basis;

   the Secretary must not form the opinion that the claimant or recipient is living separately and apart from the other person on a permanent or indefinite basis unless, having regard to all of the matters referred to in subsection (3), the weight of evidence supports the formation of an opinion that the claimant or recipient is living separately and apart from the other person on a permanent or indefinite basis.
   …

   80(1)    If the Secretary is satisfied that a social security payment is being, or has been, paid to a person:

   (a)who is not, or was not, qualified for the payment; or

   (b)to whom the payment is not, or was not, payable;

   the Secretary is to determine that the payment is to be cancelled or suspended."

Debts Arising from Recipient's Contravention of Act

"1224(1)        If:

(a)an amount has been paid to a recipient by way of social security payment; and

(b) the amount was paid because the recipient or another person:

(i) made a false statement or a false representation; or

(ii) failed or omitted to comply with a provision of this Act or the 1947 Act;

the amount so paid is a debt due by the recipient to the Commonwealth.
Note: If the person does not pay the debt or enter into an agreement to pay the debt within a certain time, interest may become payable on the debt (see section 1229). If the person enters into an agreement to pay the debt and breaches the agreement, interest may become payable on the debt (see section 1229A)."

Secretary May Write Off Debt

"1236(1)         Subject to subsection (1A), the Secretary may, on behalf of the Commonwealth, decide to write off a debt, for a stated period or otherwise.
1236(1A) The Secretary may decide to write off a debt under subsection (1) if, and only if:

(a) the debt is irrecoverable at law; or

(b) the debtor has no capacity to repay the debt; or

(c) the debtor's whereabouts are unknown after all reasonable efforts have been made to locate the debtor; or

(d) the debtor is not receiving a social security payment under this Act and it is not cost effective for the Commonwealth to take action to recover the debt."

Waiver in Special Circumstances

"1237AAD      The Secretary may waive the right to recover all or part of a debt if the Secretary is satisfied that:

(a) the debt did not result wholly or partly from the debtor or another person knowingly:

(i) making a false statement or a false representation; or

(ii) failing or omitting to comply with a provision of this Act or the 1947 Act; and

(b) there are special circumstances (other than financial hardship alone) that make it desirable to waive; and

(c) it is more appropriate to waive than to write off the debt or part of the debt.

Note: Section 1236 allows the Secretary to write off a debt on behalf of the Commonwealth."

Application of the Legislation to the Evidence Before the Tribunal

1. The evidence indicates that the requirements of section 4(2)(b)(i), (ii), (iv) and (v) regarding the definition of the meaning of "member of a couple" for the purposes of the Act are met by the relationship between the respondent and Mr Cotter. The question regarding the relationship to be determined by this Tribunal is section 4(2)(b)(iii) as to whether or not a marriage-like relationship exists.

2. Section 4(3) requires the Secretary to have regard to all the circumstances of the relationship including various aspects. The wording of this section indicates that it is not necessarily inclusive or exhaustive.
   Section 4(3)(a) - The Financial Aspects of the Relationship

3. The respondent and Mr Cotter have joint ownership of the property at H310 Preston Hill Road, Haddon.  They hold a joint mortgage over the property and a separate loan in joint names from the Bendigo Bank.  (Section 4(3)(a)(i)).

4. The respondent and Mr Cotter have a joint banking account with the Bank of Bendigo.  There was no evidence of other pooling of financial resources.  (Section 4(3)(a)(ii)). 

5. Any legal obligations owed by one person in respect of the other are denied and no evidence has been advanced to support such a contention.  (Section 4(3)(a)(iii)).

6. The respondent gave evidence that she contributed $50 per week to the payment of household utilities.  Mr Cotter paid the respondent $123 per week in the form of child support.  (Section 4(3)(a)(iv)).
   The Nature of the Household

7. The respondent and Mr Cotter had joint responsibility for the care and support of their son, Caine Cotter.  (Section 4(3)(b)(i)).

8. The living arrangements of the people concerned are said to be quite separate, in that they have occupied separate houses on the property for some of the period under question and lived in the same house for a shorter part of the period under question.  The respondent's evidence is that the living arrangements were quite separate.  (Section 4(3)(b)(ii)).
   The Distribution of Housework

9. The respondent has given evidence that she is responsible for housework arising from her and her son's occupation of both properties in which she resided.  She does not perform any housework for Mr Cotter who tends for himself.  (Section 4(3)(b)(iii).
   The Social Aspects of the Relationship

10. The respondent and Mr Cotter have held themselves out as being married to each other in all their dealings with the Bendigo Bank.  There is no evidence that they have held themselves out as married to any other parties. 

11. Any assessment of the relationship by others is confined to the statement of Mr Robert Bower and Mrs Carol Bower (T12 and T13) both of whom state that they understood the respondent to be separated from Mr Cotter and that this separation took place in January of 1998.  They were advised of the separation by the respondent, they did not know where Mr Cotter was living at that time, or where Mr Cotter lived on 27 June 1998 and declared their relationship with the respondent to be that of a friend.  These statements do not carry much weight as they rely primarily on knowledge imparted by the respondent. 

12. The only joint activities admitted to by the respondent was the attendance at parent/teacher interviews.  She denied any joint social activities.
    Sexual Relationship Between the People Concerned

13. The respondent denied any sexual relationship later than 1994.  No information was available from Mr Cotter.
    The Nature of the People's Commitment to Each Other

14. Mr Cotter is the father of Ms Hogan's only child, Caine Cotter.  The respondent has known Mr Cotter for over 17 years.  Between 1985 and 1994 they lived together in a de facto relationship.  The respondent lived with a Daryl Jones from September until late December 1997.  She resumed living with Mr Cotter in the situation of separated under the same roof in April 1998. She has resided with her aunt from approximately May 2000. 

15. The respondent denies any companionship and emotional support provided by Mr Cotter now or at any other time. 

16. At the time of application for PPS on 22 April 1998, the respondent indicated that she intended to share accommodation with Mr Cotter indefinitely. 

17. The respondent did not see her relationship with Mr Cotter as a marriage-like relationship.
    Findings

18. This Tribunal did not find the respondent a reliable witness.  She admitted that she had lied to the Bendigo Bank regarding her legal relationship with Mr Cotter and had passed herself off as Mrs Cotter.  She stated she would have passed herself off as anybody "…as long as I would end up with it at the end of it all, if something happened to Gary, I would have passed myself off as anybody."  (Transcript, page 13, line 10-12).  The respondent was frequently evasive in answering questions.  The Tribunal also noted the similar fact evidence in the case of Re Ross and Secretary to the Department of Family and Community Services [2000] AATA 437. In that case the applicant, Karen Ross, lived in Bacchus Marsh in a separated under the same roof relationship with her husband, David Ross who was an interstate truck driver. Miss Ross and her husband have two children. Miss Ross claimed she was paying her estranged husband $120 per week in the form of rent which she placed on a kitchen table weekly. She also claimed to keep her food supplies and those of her children on a separate shelf in the kitchen. Miss Ross worked on Saturdays at a nearby Coles Supermarket. Her husband, Mr David Ross, being an interstate truck driver, was frequently absent from the house. Miss Ross had stated her reason for shifting into the house, owned by her husband, was financial convenience and, in addition, she felt that the children should have access to both parents in a family setting. The Tribunal also noticed the geographical proximity in the case of Karen Ross and the current respondent, Maxine Hogan. Karen Ross' PPS was ceased following a number of public denunciations leading to an investigation by Centrelink.

19. The SSAT, in its decision of 15 August 2000, also expressed concern regarding the reliability of evidence provided by the respondent.  The SSAT, however, found that they could not be satisfied that the social security payment was not payable on the evidence before it.

20. This Tribunal decides that the respondent, Maxine Hogan, was living in a marriage-like relationship with Mr Gary Cotter between 8 April 1998 and 9 May 2000.  The respondent was thus not entitled to PPS.  In addition, the respondent made false representation in her completion of the Assessment of Living Arrangements – Separated Under One Roof completed on 8 April 1998.  In that document she denied owning her own home despite her obvious legal interest in the property.  She denied having a joint bank account and denied that she was nominated as the beneficiary under Mr Cotter's superannuation policy.  Whilst not attracting a great deal of weight, there is some evidence to suggest that Mr Gary Cotter is also known as Gary McKenzie (see evidence of Ms Hanson, T19 page 51).  This would detract from the validity of the statement at T31, page 68, which the respondent admitted to having written and the contents of which indicate that the respondent would have no claim to ownership in part of the property in Haddon.  These amount to false representation under the Act.  A debt due by the respondent to the Commonwealth is therefore attracted on two grounds.  First, the Tribunal finds the respondent was living in a marriage-like relationship and, therefore, not qualified for PPS and secondly, she made a false representation in her application of 8 April 1998.
    Writing-off or Waiver of the Debt Owed to the Commonwealth in Special Circumstances

21. Section 1236(1A) enables the Secretary to write-off a debt under subsection (1) if certain criteria are met. None of these apply in the case of the respondent.

22. The Secretary may waive the right to recover all or part of the debt under certain circumstances.  Once more, the respondent does not comply with any of the requirements of this section of the Act.  No special circumstances have been advanced.
    Decision

23. The Tribunal determines that the respondent was living in a marriage-like relationship with Mr Gary Cotter in the period 8 April 1998 to 9 May 2000 and was not qualified for PPS.  In addition, the Tribunal finds that the respondent made false representations to Centrelink as the representative of the Department of Family and Community Services.  The respondent owes the Commonwealth the sum of $12,965.63 representing the overpayment of PPS.

    I certify that the forty-two (42) preceding paragraphs are a true copy of the reasons for the decision herein of 

    Miss E. A. Shanahan, Member

    Signed:         .....................................................................................
      Member Support Team

    Date/s of Hearing  31 May 2001
    Date of Decision  30 July 2001
    Solicitor for the Applicant         Mr T. Baker, advocate for Centrelink
    The Respondent  Self-represented