Howard and Department of Family and Community Services - [2001] AATA 251

DECISION AND REASONS FOR DECISION [2001] AATA 251

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V2000/1124

GENERAL ADMINISTRATIVE DIVISION )

Re JEANETTE ANN HOWARD
Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent

DECISION

Tribunal Adjunct Professor L. S. Rodopoulos, Member

Date28 March 2001
PlaceMelbourne

Decision The decision under review is affirmed.

……(Sgd) L. Rodopoulos…….
Member
CATCHWORDS
SOCIAL SECURITY - whether applicant is a member of a couple for purposes of payment of Disability Support Pension - whether special reason to treat applicant as if not a member of a couple
Social Security Act 1991 ss 4(2), 4(3), 24
Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164
Re Tang and Director-General of Social Services (1981) 3 ALN N83
Re Anderson and Secretary, Department of Social Security (1993) 31 ALD 155
Re Donald and Director-General of Social Security (1983) 5 ALN N185
Re Parkin and Secretary, Department of Social Security (AAT 10608, 18 December 1995)
Re Zaccardi and Secretary, Department of Social Security (1995) 40 ALD 760
Re Beadle and Director-General of Social Security (1984) 6 ALD 1
Re Hawkins and Secretary, Department of Social Security (1997) 44 ALD 651
Re Gilland Secretary, Department of Family and Community Services [1999] AATA 452

REASONS FOR DECISION

28 March 2001 Adjunct Professor L. S. Rodopoulos, Member

background to the application

This is an application for review of a decision of the Social Security Appeals Tribunal ("SSAT"), made on 3 August 2000, that, as Ms Howard is a member of a couple, she is not entitled to payment of the Disability Support Pension ("DSP") at the single rate. The original decision was made by Centrelink on 31 May 2000 and affirmed by an Authorised Review Officer ("ARO") on 20 June 2000.
At the hearing, the applicant represented herself. Ms Elizabeth King of the Centrelink Advocacy and Administrative Law Team represented the respondent. The Tribunal received into evidence the documents filed pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the T documents"), Nos. T1-T16. An additional bundle of documents marked as Exhibit R1 was also submitted. Exhibit R1 includes the complete letter from Rose Marsh, Housing Support Worker, Whittlesea Housing dated July 2000 (T15, page 47 of the T-docs refers); claim for Invalid Pension 1984 with accompanying medical reports; and a history of Ms Howard's relationship with Mr Holt 1984-1995 prepared by Ms Howard for the May Centrelink review 2000. In addition, Ms Marsh gave evidence to the Tribunal via conference telephone. Ms Howard's youngest child, three-year-old Dean, slept throughout the proceedings in a pusher.
The background facts to this application are that Ms Jeanette Howard and Mr John Holt have been in a relationship for around 22 years. Living arrangements, including accommodation, have varied over these years, as has their relationship. They have five children together. Their children are Stephen 20/12/78; Michael 21/7/86; Monique 10/8/88; Alison 28/9/90 and Dean 11/5/97. One child, Lee, was born on 5/10/81 to Ms Howard but not fathered by Mr Holt. Ms Howard is in receipt of DSP on the grounds of mental ill health including, according to Ms Howard, anorexia nervosa and high anxiety. A Medical Assessment report, dated 30 November 1984, lists three psychiatric hospital admissions, one in 1974 and two in 1983 with outpatient attendances in between these admissions. Her illness was described in 1984 by Dr J. Landsberger as "chronic & relapsing manic depressive illness which renders her unemployable" (Exhibit R1 7/12/84). She is not currently under psychiatric care and but Ms Howard takes prothiadin to sleep and for depression (T2, page 6).
Since 27 May 1999 until March 2000 Ms Howard was receiving DSP at the married rate and was requested to provide her partner's payslips. On 28 April 2000 Ms Howard contacted the Department to advise that her defacto was working but not financially supporting her. This was taken to be an application for review of the earlier decision of 19 May 1999 to treat her as a member of a couple.
the issues and legislation
The issue before this Tribunal is whether or not Ms Howard should be regarded as a member of a couple pursuant to the definition in section 4 of the Social Security Act 1991 ("the Act") which provides as follows:
"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 subsection (3) and (3A)), a marriage-like relationship;
(iv)…
…
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."

Evidence and findings

As the evidence was basically not in dispute it is dealt with under the relevant legislative provisions followed by the Tribunal's findings.
Pursuant to section 4(2)(b)(i) the Tribunal finds that Ms Howard has a relationship with Mr Holt who is a person of the opposite sex.
Pursuant to section 4(2)(b)(ii) the Tribunal finds that Ms Howard is not legally married to Mr Holt and has, over the years of their relationship, variously referred to him as her fiancé or defacto.
Section 4(3) of the Act provides that in forming an opinion about the relationship between two 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;"
The Tribunal finds that there is neither joint ownership of real estate nor other major assets nor any joint liabilities. Ms Howard and Mr Holt are joint lessees of their current accommodation which they share (Transcript, pages 4 & 5).

any significant pooling of financial resources especially in relation to major financial commitments; "

Ms Holt told the Tribunal that she shares the household/living expenses, including the rent, with Mr Holt, half-and-half, and Mr Holt contributes to Dean's expenses. On occasions she borrows money from Mr Holt which she repays. She claims that she does not know about his finances because it is "none of her business" (T2, page 4). They have two separate telephones and her costs relate to calls to Centrelink, Welfare Rights and the AAT. Mr Holt pays for Foxtel and his AGC Insurance and is now paying Child Support for Dean. They do not have a car. There is no dispute, and the Tribunal finds, that there is no significant pooling of major financial resources in that Ms Howard and Mr Holt contribute to domestic expenses but do not have any major joint financial commitments such as a house mortgage or a joint bank account (Transcript, pages 5-7).

any legal obligations owed by one person in respect of the other person;"

Ms Howard told the Tribunal that Mr Holt has a Will but she does not believe that she is a beneficiary. As far as she knows Mr Holt has made provisions for his children but he was under no obligation to her. She thought that Mr Holt:
"…did have something for his children, and he said it is in some sort of an account … He is actually putting money away. Whether that is to do with superannuation or not, I don't know, as far as I know." (Transcript, page 9)

Without documentary or oral evidence from Mr Holt the Tribunal is unable to make a finding regarding this aspect of their relationship.

the basis of any sharing of day-to-day household expenses;"

Ms Howard told the Tribunal that Mr Holt owns most of the furniture in the household. It was not jointly purchased. She purchases what she can for herself from the "Op shop" but Dean gets new clothes, which "he deserves". The extra money from her single rate DSP ensures that she can purchase items for Dean. She owns very little. She uses Mr Holt's old TV and purchased a second hand chair which she "loves" from an "Op shop" as she did a folding bed. She pointed out that both she and Mr Holt were being mature about their relationship and the sharing of household costs (Transcript, pages 9-10). On the basis of this evidence and that recorded under (ii) the Tribunal finds that there is some sharing of day-to-day household expenses.
"(b)(i) any joint responsibility for providing care or support of children;"
According to Ms Howard, she and Mr Holt share joint responsibility for providing care and support of their son Dean who is due for assessment for autism. Mr Holt is now paying Child Support for Dean. Ms Howard said that she does leave Dean in Mr Holt's care and he ably attends to his son's physical and social needs. Ms Howard expressed the hope that their "little girl", Monique, would soon come out of foster care and "maybe coming home" (Transcript, pages 10 & 16). From time to time another daughter Lee and her boyfriend live in the junk room, where Mr Holt stores photos and other items in cardboard boxes. When they do stay they pay board. Lee and her boyfriend use drugs and Ms Howard and Mr Holt endeavour to "teach them responsibilities" by asking for board (Transcript, page 27). A child born to Lee last year died.
Ms Howard claimed that whether or not they were living under the same roof "any decent father of course" would attend to the needs of a child in hospital. Mr Holt had attended to Dean when he was in hospital (Transcript, page 13). Ms Howard and Mr Holt maintain contact with their children who are in foster care and see them on their birthday's etc. They give them presents on these occasions. The Tribunal finds that Ms Howard and Mr Holt currently provide joint direct care and support for their younger child Dean and anticipate resuming direct care of Monique. From time to time they provide accommodation for Ms Howard's daughter Lee and jointly keep in contact with the children who are in foster care.

the living arrangements of the people;"

The "separate/together" living arrangements of Ms Howard and Mr Holt have changed over the 22 years or so of their relationship, as have their accommodation arrangements and addresses. However over the past four years they have lived together at the same address and moved to their current address in February 2000. The evidence is, and the Tribunal finds, that they share all areas of the house including the bedroom and the amenities in the household (Transcript, page 23).

the basis on which responsibility for housework is distributed; "

Ms Howard told the Tribunal that she cleans the dishes, benches and tables and does the vacuuming and dusting. She does not touch Mr Holt's entertainment equipment, his tapes etc., lest she "wreck the wires". She does the housework in exchange for cigarettes, which he purchases for her. Ms Howard expressed the household responsibilities as follows:
"No, I suppose – I don't know whether it is part of me that is soft or not, ma'am, but the fact is, as I said, he works pretty hard. I have got to be honest. I do the housework. As far as cooking his tea is concerned, I actually am now still cooking it pretty well every night, probably except for twice, only because, if I am cooking something for Dean and myself, it is nothing to put something extra in the frypan and the saucepan, because the stove looks like something from the Flintstones. As far as doing his washing is concerned, it is nothing to put a couple of work shirts, a couple of pairs of jocks, a couple of pairs of socks, in the washing machine, which also happens to be Mr Holt's.
Mr Holt can tell me to jump in the lake, not that he would, you are not using my washing machine, and he is well within his rights, he doesn't have to do that, but it is nothing. That is what I mean, ma'am, we are just being mature about things. You know, to have five children to somebody and to be acting like that would just be – well, I think one of us would have moved out long ago anyway. We are just being mature, and we seem to get on better, you know what I mean, because – probably because that tie has been broken in that area I think that is probably why.
PROF RODOPOULOS: What is the tie that has been broken?
MS HOWARD: Well, not the emotional tie, your Worship. As I said, five children to five different - five children to the one person, not five different. Yes, there has got to be – there will always be a bond. Whether we are under the same roof or not, there is always going to be that bond. But the tie of – when I finally broke and said look, enough is enough, I have stuck by you for so long. I even came back and gave it another try, …"

Relying on the evidence of Ms Howard, the Tribunal finds that there is minimal joint housework activity between her and Mr Holt and that she acts as "housewife" to Mr Holt.
"(c) the social aspects of the relationship, including:

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

Ms Howard told the Tribunal that she and Mr Holt socialised with Mr Holt's workmates who treat them "with the utmost respect". They do not ask questions and don't know their "full story". They have other friends who have family difficulties and they are there for them. Her sister and family socialize with them and they, according to Ms Howard, do not really care about the nature of their relationship as long as they were happy. According to Ms Howard she does not discuss the status of her relationship with people. On the basis of this evidence (refer to Transcript pages 41-44) the Tribunal finds that Ms Howard and Mr Holt hold themselves out as a member of a couple but not as being married to each other.

the assessment of friends and regular associates of the people about the nature of their relationship; "

On the basis of the evidence, referred to above, the Tribunal finds that friends and regular associates assume that Ms Howard and Mr Holt are a member of a couple.

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

On the evidence of social activities already cited the Tribunal finds that Ms Howard and Mr Holt do participate in joint social activities with friends and other family members.
"(d) any sexual relationship between the people;"
The Tribunal finds that Ms Howard and Mr Holt have had a long term, but interrupted sexual relationship, which has produced five children. Their youngest child is Dean who is three years old. Ms Howard suggested that this relationship could change in the future, as they were both free to pursue other sexual partners. Notwithstanding this suggestion the Tribunal finds that their current sexual relationship is exclusive (Transcript, pages 44 & 50).
"(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
…"
Ms Howard's evidence regarding the nature of commitment between herself and Mr Holt is somewhat contradictory as is the evidence regarding the future of their relationship. It suggests an underlying uncertainty and dependence of Ms Howard on Mr Holt. It also reveals a disturbing history of serious personal and interpersonal difficulties including allegations of child sexual abuse (Transcript pages 18-19) and child neglect made against them (Transcript pages 20, 21 & 22). It was not relevant to pursue these allegations in detail but the evidence available to the Tribunal is that their children were placed in foster care as a result of these allegations. Ms Howard told the Tribunal that she placed Michael into foster care because she "…knew within my own heart of hearts that I could not look after him properly" (Transcript, page 21). Against this background Ms Howard and Mr Holt have maintained a lengthy relationship indicative of a major commitment to each other.
However without hearing from Mr Holt, the Tribunal is unable to ascertain his attitudes and level of commitment and view as to the future of their relationship. Ms Howard's evidence reflects a very strong and permanent "…emotional bond which there always will be, but it was a different type of bond, and I found it very hard to actually let go, to be honest" (Transcript, page 3). Ms Howard endeavored to persuade the Tribunal that even though their emotional bond was strong, she had now reached a point whereby she could make the break from Mr Holt. For example, she said:
"I will always have feelings for Mr Holt, I will always love Mr Holt, but it is not the same as it was before because I have finally learned to let go, and that has been quite a few years, about seven years, and then – I take that back, actually. I actually gave it one more try, 12 months was enough. After that I thought, that is it, but circumstances have kind of – yes. And my health, my physical health and emotional health does not allow me to just walk out and get another place, because I have been forced – now, when I say that I have been forced, nothing to do with Centrelink, nothing to do with Centrelink. When I finally gave it a try and then I would find no more, even before that. I found it very hard to get a place where I was going to be happy, and I just don't believe I should have put myself through that again, or my son. I am just not in – I have got too much to deal with now. I have got a little girl who may be coming home." (Transcript, page 10)

She described Mr Holt's support as:

"…emotional support because what has happened, with what is happening, and the fact that I have only just started in the last say three months to really grieve for my late granddaughter, even though we didn't have her for very long, and also what is happening with Monique, who is our daughter. …
…
One thing I have learned, I would have to probably say yes, but I have also learned along the way that I can't depend on that for all the time. I have learned probably to be my own person more so, but yes, I do. And having Mr Holt there is probably more of the emotional support, even though he doesn't do hardly anything with Dean or whatever, I – just having him there is, you know, but sooner or later that is probably going to, you know, and I - - -…" (Transcript, page 46)

Ms Howard acknowledged that she was in a period of relative stability, health and accommodation-wise and that this was in part due to the emotional support she had from Mr Holt (Transcript, page 51). They shared a significant degree of companionship, centered on the needs of Dean and were hopeful of reuniting as a family with Monique who is in foster care.
On more than one occasion throughout the hearing Ms Howard commented that their relationship had survived separations and traumatic family events and that their relationship would be no different whether they lived together under the one roof, or apart. Accordingly, the Tribunal finds that Ms Howard and Mr Holt share a significant personal commitment to each other.
Ms Howard's evidence regarding her future plans is contradictory. On the one hand she told the Tribunal that she and Mr Holt were looking forward to Monique coming out of foster care live with them. On the other hand she told the Tribunal that she had discussed with Mr Holt the necessity of her "moving out" and making alternate accommodation arrangements if she did not continue to receive the single rate of payment of DSP (refer to Transcript, pages 16, 24-25 & 60). These statements reflect a history of such statements regarding her future intentions. In 1986 Ms Howard intimated her dissatisfaction with Mr Holt, who was financially supporting her, to a social worker indicating her intention to remove him from their accommodation at that time (Exhibit R1 - Welfare Report 6/3/86). There is other evidence of the alleged tenuous relationship with Mr Holt, who allegedly had a drinking problem. In statements from Ms Howard and reports made to field officers Mr Holt is variously described by Ms Howard as the fiancé or de facto husband. Some statements record her intentions to separate or throw Mr Holt out from their accommodation because of her concerns regarding the impact of the relationship on her DSP. At other times she claims reconciliation (refer to various Field Officer's noted and signed statement of Ms Howard in the mid-eighties Exhibit R1). She told this Tribunal that she did not anticipate that she would be with Mr Holt in the long term although in June 2000 she is recorded as having told the ARO that she was not happy that Mr Holt had never asked her to marry (T13, page 41).
On her own evidence Ms Howard is in a period of relative stability personally and accommodation-wise. She reiterated throughout the hearing that she and MrHolt had a mature attitude to their relationship and their responsibilities due to their need to care for their family. Ms Howard expressed faith "in the above" in assisting her to remain stable and for their family situation to improve. That she feels financially vulnerable was demonstrated at the close of the hearing where she expressed relief that her single payment "stay" of DSP would continue until the outcome of the AAT application. She indicated that if she were unsuccessful she would have to move out of her current address. She said:
"…right now my health is stable and I want to be able to keep it that way - - -
PROF RODOPOULOS:        Good; I am very pleased to hear that.
MS HOWARD:           - - - because I know that when the time is right it will happen. Now, I know – I will leave it - - -
PROF RODOPOULOS:        What will happen?
MS HOWARD:           - - - and I do leave it up to your discretion - - -
PROF RODOPOULOS:        What do you mean, what will happen?
MS HOWARD:          Well, as I stated, if I do – not be able to keep my pension, I am going to go and have to look for – I will have to look for another place. To even think about that at this particular point, I will be read – at the time I will know when I am ready to go out looking for another place. I will know – like, what is happening with Monique. I am going to be more – because we don't even know what is going to happen there with a meeting; we don't even know when the meeting is. So when other things start to come together, I am going to know when the time is right; I am going to feel it within myself. I am going to know. I know right now that I have to slow down; in a lot of areas, I have to slow down. I am on high blood pressure tablets – any wonder that I have got high blood pressure."
In looking at the documentary evidence it is clear that Ms Howard has a history of telling the former Department and now Centrelink of her intention to separate from Mr Holt whenever her single payment has been under threat. Most recently in July 2000, when she had contact with Ms Rose Marsh of Whittlesea Housing requesting housing assistance she stated that she was in a "desperate situation". Ms Rose gave evidence to the Tribunal which supported her assessment that:
"Ms Howard presents as a woman with multiple issues and disadvantages due to her son's intellectual disability and her own personal mental health issues. I believe that Ms Howard genuinely believes that she and Mr Holt are no longer in a relationship but that she is limited to where she can be accommodated due to her own health needs, lack of income and the special requirements of her son." (T15, page 47 and Transcript pages 37-40).

On the basis of this contradictory evidence and taking her past history into account the Tribunal finds, on the balance of probabilities, that Ms Howard and Mr Holt's relationship is likely to continue indefinitely.

whether the people see their relationship as a marriage-like relationship."

Given that no evidence was taken from Mr Holt, it is not possible to make a finding regarding how he views his relationship with Ms Howard. However, the evidence of Ms Howard clearly points to there being a marriage-like relationship between them.
Discussion
In forming an opinion as to whether Ms Howard should be considered as a member of a couple pursuant to section 4(2) of the Act, the Tribunal must look at the totality of the situation. This approach is reflected in the matters of Re Tang and Director-General of Social Services (1981) 3 ALN N83, where the Tribunal said that the decision required analysis of the full interpersonal relationship; Re Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164, where emphasis was placed on considering the totality of the relationship and in Re Anderson and Secretary, Department of Social Security (1993) 31 ALD 155, where the Tribunal gained a "total impression" of the weight of the evidence in assessing the nature of the relationship. In looking at the totality of the indicia pursuant to section 4(3) of the Act the decision-maker, in line with other decisions of this Tribunal is looking for the level of commitment of two persons to the other and whether the relationship is, as in Re Donald and Director-General of Social Security (1983) 5 ALN N185, "qualitatively different from, the commitment of either to anyone else.
The weight of the evidence in this application is indicative of a significant commitment or "special bond" (T5, page 17), as described by Ms Howard, of MsHoward and Mr Holt to each other and to their children. Notwithstanding serious family issues and difficulties over the years and changed living arrangements, their relationship is qualitatively different from the commitment of either to anyone else. In view of its findings, the Tribunal places little weight on contradictory comments made by Ms Howard to the SSAT that: "Although they lived in the same house it was not like being married. Mr Holt was letting her stay but there was no emotional involvement or ongoing sexual relationship." (T2, page 4). Accordingly, the Tribunal agrees with the submissions put by Ms King, on behalf of Centrelink, and finds that Ms Howard should be regarded as being member of a couple for the purposes of section 4(2) the Act.
The Tribunal now turns to the question as to whether the discretion provided under section 24, not to treat Ms Howard as a member of a couple, should be exercised. The Tribunal must consider whether Ms Howard's circumstances are "special". In Re Zaccardi and Secretary, Department of Social Security (1995) 40 ALD 760, Senior Member Dwyer undertook a review of the authorities in relation to "special circumstances" and identified that, in Re Beadle and Director-General of Social Security (1984) 6 ALD 1, the adjective "special" was defined as looking to circumstances that are "unusual, uncommon or exceptional" (see paragraph 10). Following Re Hawkins and Secretary, Department of Social Security (1997) 44 ALD 651 (page 651 refers). The question for the Tribunal is whether her situation is so "unusual, uncommon or exceptional" as to constitute it being a special circumstance "…which take this case out of the ordinary run of cases" in which the discretion should be exercised.
The Tribunal is of the view that Ms Howard is in a highly vulnerable socio-economic and psychological situation. When asked by the Tribunal:
"…what would put back your current situation, from your point of view, the relative stability that you have agreed you are in at the moment: What would worsen your situation?"

Ms Howard replied:

"I would have to say financially. I mean, to think that I could have to be living on 142 [dollars] including this little possum, and I try not to even go there, but I have to realistically, I don't even want to really thing about it because I would be back to getting food vouchers when I just feel so degraded, and to be able to have just that little bit of extra money so that I can take my son out. I do have to pay for his – because it adds up, believe me, not just from – - -
PROF RODOPOULOS: Yes, I do believe you.
MS HOWARD: And don't think I am ungrateful, but yes."

Without the continued commitment of Mr Holt to their relationship and without the payment of DSP at the single rate the Tribunal is satisfied that Ms Howard's' relative emotional, psychological and financial stability falters. The historical evidence (R1) reveals serious personal, family and social upheavals with children placed voluntarily and otherwise into foster care because of allegations of sexual abuse and neglect. In the mid-eighties Ms Howard was hospitalised and received psychiatric treatment. She now faces the challenges of caring for an intellectually disabled child.

Receipt of her income entitlement in her own right serves to, understandably, counterbalance her feelings of financial vulnerability and provides a degree of emotional stability as does her relationship with Mr Holt. On her evidence, Ms Howard has not received any significant psychiatric treatment now for some years. (Refer to Transcript, page 53, where for example she states: "…right now my health is stable and I want to be able to keep it that way…".) The Tribunal is of the opinion that when Ms Howard's single rate pension is under threat she seeks to establish her "separateness" from Mr Holt. The Tribunal understands her actions in light of her social, economic and psychological vulnerability. As this Tribunal indicated Re Gilland Secretary, Department of Family and Community Services [1999] AATA 452 the Act assumes a financial interdependence between persons considered to be " a member of a couple" which may not be indicative of the diverse nature of financial arrangements made in contemporary society between members of a couple-married or not.
From a social work perspective, like Ms Gill, Ms Howard is a socially disadvantaged woman at high risk psychologically. Considered in the context of a woman, who is financially independent or not dependent upon an income entitlement, Ms Howard is in a situation that, comparatively speaking, is "unusual, uncommon or exceptional." However considered in terms of other disadvantaged women relying on an income entitlement her circumstances are not "unusual, uncommon or exceptional". It is for this reason the Tribunal does not consider that Ms Howard is in an "unusual, uncommon or exceptional" situation such as to distinguish her from other financially disadvantaged women who are members of a couple and for this reason, the discretion is not exercised.
Accordingly, the decision under review will be affirmed.
I certify that the thirty-six (36) preceding paragraphs are a true copy of the reasons for the decision herein of
Adjunct Professor L. S. Rodopoulos, Member
Signed:         .....................................................................................
  Personal Assistant
Date/s of Hearing  5 March 2001
Date of Decision  28 March 2001
Solicitor for the Applicant         Self-represented
Solicitor for the Respondent    Ms E. King, Centrelink

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Howard and Department of Family and Community Services [2001] AATA 251

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