JOHN LOWRY and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
[2010] AATA 371
•18 May 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 371
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/5380
GENERAL ADMINISTRATIVE DIVISION ) Re JOHN LOWRY Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Ms L R Tovey, Member Date 18 May 2010
PlacePerth
Decision The Tribunal
(a) sets aside the decision of the Social Security Appeals Tribunal dated 17 October 2008 and the decisions of the Respondent's delegates dated 18 January 2008, 8 February 2008 and 15 May 2008; and
(b) substitutes a decision that the Applicant was entitled to be paid age pension at the single rate from 21 November 2002 to 15 January 2008.
..…….(sgd) Ms L R Tovey............
Member
CATCHWORDS
SOCIAL SECURITY – age pension – whether Applicant was living in a marriage-like relationship – decision set aside
Legislation
Social Security Act 1991 (Cth), s. 4(2), 4(3).
Cases
Jones v Dunkel (1959) 101 CLR 298
Pelka v Secretary, Department of Family and Community Services (2006) 151 FCR 546.
Pelkav Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2008) 102 ALD 22
Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164.
REASONS FOR DECISION
18 May 2010 Ms LR Tovey, Member BACKGROUND
1. This is an application for a review of a decision of the Social Security Appeals Tribunal ("SSAT") made on 17 October 2008. The SSAT affirmed the decision of the Respondent to cancel the Applicant's age pension and raise and recover an overpayment of $57,974.20 of age pension for the period 21 November 2002 to 15 January 2008.
2. The Applicant was paid the age pension at the single rate during the above period. On 18 January 2008 a delegate of the Respondent decided to cancel the Applicant's pension and raise and recover an overpayment if information showing the Applicant's eligibility for the age pension as a member of a couple was not provided. On 8 February 2008 a delegate of the Respondent raised and decided to recover an overpayment in the amount of $57,974.20. These decisions were taken on the basis that the Applicant was a member of a couple with a person to whom I shall refer to in these reasons as Mrs C.
3. The requested information as to Mrs C's assets and income was never provided to Centrelink. The material before me suggests that the combined value of the assets of the Applicant and Mrs C is such as to disentitle the Applicant to any age pension if they were members of a couple during the relevant period. As I have reached the conclusion below that they were not members of a couple in this period it is unnecessary to reach any final view about this matter. I shall determine the case on the assumption that the Applicant was not entitled to payment of age pension if he and Mrs C are regarded as members of a couple.
4. The Applicant requested a review of the decisions to cancel his age pension and raise a debt. On 15 May 2008 an Authorised Review Officer of the Respondent ("the ARO") affirmed those decisions.
5. The Applicant then requested a review of the ARO's decision by the SSAT. On 13 October 2008 the SSAT affirmed the decision of the ARO. On 10 November 2008 the Applicant sought a further review of the SSAT's decision by this Tribunal.
Issues and Legislation
6. The provisions of the Social Security Act 1991 ("the Act") provide for the rate of age pension payable to an eligible person to be calculated by reference to matters which include the person's income and assets: see s. 1064A1 of the Act. Section 1064A2 of the Act provides that where 2 people are members of a couple, they will be treated as pooling their resources (income and assets) and sharing them on a 50/50 basis. The result of this is that for the purposes of calculating the Applicant's entitlement to age pension it would be necessary, if he and Mrs C were a couple, to attribute half of their combined income and assets to the Applicant.
7. As I have noted, I can proceed on the basis that the Applicant would not have been entitled to payment of any age pension during the relevant period if he and Mrs C were a couple for the purposes of the Act.
8. Subsections 4(2) and 4(3) of the Act define when a person is a member of a couple in the following terms:
"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.
Member of a couple—criteria for forming opinion about relationship
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."
9. Section 4(11)(a) of the Act provides that a person is "partnered" for the purposes of the Act if the person is a member of a couple.
10. It is common ground between the parties that the Applicant and Mrs C had a relationship with each other during the relevant period, although the manner in which that relationship is to be characterised is in dispute. It is common ground that they were not legally married to each other. Both the Applicant and Mrs C were well over the relevant age of consent, and were not within a prohibited relationship for the purposes of s. 23B of the Marriage Act 1961. The requirements of s. 4(2)(b)(i), (ii), (iv) and (v) of the Act were satisfied. It was also clear from the evidence that the Applicant and Mrs C were not living separately or apart from each other on a permanent or indefinite basis at the relevant time, so the limitation provided for in s. 4(3A) of the Act does not arise. The Applicant and Mrs C will therefore have been members of a couple if during the relevant period, or part thereof, their relationship was, in my opinion, a "marriage-like relationship". In forming that opinion I am required to have regard to the matters specified in s. 4(3) of the Act.
11. The critical issue for my determination is therefore whether, in my opinion, (formed as mentioned in s. 4(3) and (3A) of the Act) the relationship between the Applicant and Mrs C was a marriage-like relationship between 21 November 2002 to 15 January 2008.
Applicable Principles
12. In Pelka v Secretary, Department of Family and Community Services (2006) 151 FCR 546 at 555-6, [46] French J, summarised the approach required of the Tribunal when considering whether two persons were in a marriage-like relationship in the following terms:
"Having regard to the current provisions of s 4(3) and the approaches discussed in the earlier authorities mentioned, a decision-maker concerned with whether an unmarried person is in a marriage-like relationship with another person of the opposite sex:
(1) Must have regard to their interpersonal relationship as a whole not limited by the factors listed in s 4(3).
(2) Must have regard to each of:
(a) the financial aspects of the relationship;
(b) the nature of the household;
(c) the social aspects of the relationship;
(d) any sexual relationship between the people; and
(e) the nature of the people’s commitment to each other.
(3) In having regard to the preceding five matters, must have regard to all factors relevant to each and, in particular, must have regard to the factors listed under each heading in s 4(3).
(4) Must specifically consider the total picture of the relationship created by all of these factors bearing in mind that consideration must be given to those which weigh against a marriage-like relationship and those which weigh in favour of it.
(5) Must undertake the preceding consideration bearing in mind that a marriage-like relationship is not disclosed solely by any one of the following matters:
(a) financial cooperation;
(b) cohabitation;
(c) a sexual relationship;
(d) cooperative household arrangements; or
(e) mutual commitment."
13. As French J also noted, the judgment to be made is difficult and, once out of the range of obvious cases falling within the core concept of “marriage-like”, will be attended by a degree of uncertainty. His Honour recognised that it may be that different decision-makers on the same facts could quite reasonably come up with different answers.
14. Also in Pelka, at 544, [39], French J endorsed the statement of O'Loughlin J in Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164 at 173 that:
"… it is not sufficient to merely note that a couple are sharing accommodation, nor is it sufficient to note that one is financially dependent on the other; it is necessary to delve deeper to find the reasons for those arrangements. Those reasons will be better indicators in determining the correct nature of their relationship."
15. In Pelka, at pages 556-7, [52], French J expressed the view that the reference to "pooling" in s. 4(3)(a)(iii) of the Act was to the putting of resources into a common stock or fund, sharing in common and combining for the common benefit. It involved something more than financial cooperation or separate contributions to different elements of household expense. In relation to cooperation, French J stated at 557, [53]:
"Cooperation is not identified as a specific factor in s 4(3) of the Act. That is not to say cooperative behaviour may not be taken into account for the matters listed in s 4(3) are not exhaustive. But cooperation of itself does not take a relationship very far down the path towards characterisation as 'marriage-like'. Cooperation is an indispensable feature of human society and of a multiplicity of different kinds of relationships within human society including the purely commercial. The same may be said of 'mutual benefit' which attaches to a large range of arrangements between people."
16.Later, French J stated at 559, [61]:
"A decision-maker in applying the matters set out in s 4(3) should acknowledge that they are non-exhaustive and at least indicate that consideration has been given to whether there might be any other factors relevant to the difficult judgment of whether a 'marriage-like' relationship exists. Each of the individual matters listed in s 4(3) is accompanied by a non-exhaustive list of factors. Again, the decision-maker in each case should consider whether there are any other factors relevant to the particular matter listed."
17. The decision in Pelka identifies the approach which I am bound to take in considering whether the Applicant and Mrs C were in a marriage-like relationship during the relevant periods.
18. In a subsequent appeal by Ms Pelka from the decision of the Tribunal on remittal, the Full Federal Court noted, in relation to s. 4(3) of the Act, that:
"The essential requirement of the provision, however, is that the decision maker must have regard to the nature of the commitment of two people to each other. It is clearly relevant to that matter to have regard to the fact that a commitment that each of those persons has to each other is different from the commitment that each person has to any other person."
(see Pelkav Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2008) 102 ALD 22 at [30]).
Agreed Facts
19. A number of facts asserted by the Respondent in his Statement of Facts and Contentions were accepted by the Applicant, although in a number of respects the Applicant offered an explanation for the facts which he accepted. I shall begin by noting the facts which are agreed, before turning to more contentions facts. I make the following findings of fact from the Respondent's Statement of Facts and Contentions, documents referred to in that Statement and the Applicant's acceptance of those facts in his Statement of Facts and Contentions.
20. The Applicant received age pension as a single person from 7 March 2001. Prior to that time he had been in receipt of disability support pension.
21. On 23 April 2002 Centrelink sent a notice to the Applicant at his address in Midland notifying him of his rate of pension and advising that he must notify Centrelink should a variety of things happen, two of which were:
"If you marry or start living with someone as if you are married;…
If you change your address…"
22. From 10 July 2002 statements for the Applicant's Commonwealth Bank Account were addressed to the Applicant at an address in Ardross, which was owned and lived in by Mrs C.
23. On 13 August 2002 the Applicant was sent another notice to his Midland address requiring him to notify Centrelink if the events noted at paragraph 21 above occurred.
24. On 10 and 24 September 2002 the Applicant advised Centrelink that he was unable to provide a rent certificate as his landlord was travelling around Australia in a caravan and was unable to be contacted.
25. On 15 October 2002 the Applicant changed his address, for vehicle licensing and registration purposes, to the Ardross address.
26. I note that the Applicant states that he believes that he did notify Centrelink of his change of address from Midland to Ardross in October 2002, but that this is disputed by the Respondent.
27. From 17 November 2003 to 1 December 2003 the Applicant and Mrs C travelled together to New Zealand and spent time with two of Mrs C's friends there. The Applicant did not advise Centrelink that he was travelling overseas.
28. Mrs C's home loan account was transferred to an address in Brentwood from 2 July 2004. The Applicant changed his address for the purposes of his Commonwealth Bank Account to the Brentwood address on 10 July 2004.
29. The Applicant advised Centrelink of his change of address to the Brentwood address on 11 August 2004. He also advised Centrelink that he was paying $100 a week rent. He didn't advise Centrelink that he was sharing accommodation or boarding with Mrs C.
30. On 17 August 2004 Centrelink mailed a rent certificate to the Applicant, which was not completed and returned to Centrelink.
31. Between 25 August 2004 and 3 September 2004 the Applicant and Mrs C holidayed in Hong Kong together.
32. On 29 September 2004 both the Applicant and Mrs C changed their addresses, for vehicle licensing and registration purposes, to the Brentwood address.
33. When the Applicant renewed his motor vehicle insurance policy on 20 July 2006, he included Mrs C as a driver covered by the policy.
34. Between 21 April 2007 and 8 May 2007 the Applicant accompanied Mrs C on a holiday to Singapore. When staying in their hotel they shared a room and when on a cruise they shared a twin cabin.
35. The Applicant and Mrs C do not own any joint assets or have any joint liabilities. Mrs C owned or partly owned the Ardross property and presently owns or partly owns the Brentwood property.
36. The bank accounts of the Applicant and Mrs C show that both had expenditure in Broome, Whyalla and Hong Kong. There were times when Mrs C has paid the Applicant's travel costs, although he states that he has always repaid her. Those bank accounts also indicate many restaurant visits. For the period 9 March 2005 to 3 May 2005 the Applicant's bank statements reveal 10 restaurant transactions while Mrs C's reveal none.
37. Mrs C pays the utility and telephone bills and pays for and does the majority of the household shopping.
38. Mrs C is not a beneficiary of the Applicant's will and, as far as he knows, he is not a beneficiary of Mrs C's will. They have separate private health cover.
39. There have been no children in the houses which in which the Applicant and Mrs C have both lived, aside from 2 days on which the Applicant's daughter and grandson stayed at the Brentwood residence.
Facts Not Agreed
40. I now turn to consider my findings in relation to facts which have not been agreed between the parties.
Circumstances in which the Applicant and Mrs C came to reside in the same house
41. The evidence before me did not descend into much detail as to the circumstances in which the Applicant came to live in the same house as Mrs C. However, an account of the Applicant's evidence to the SSAT described the circumstances in which the Applicant met Mrs C and came to live in her house. This account to the SSAT is referred to in paragraph 76 of the Respondent's Statement of Facts and Contentions, which the Applicant indicates that he accepts. The Applicant's oral evidence as to these circumstances is consistent with the account recorded by the SSAT. It reflects what the Applicant is noted as having told the ARO on 9 May 2008. A letter from Mrs C tendered at the hearing also describes those circumstances consistently with the account recorded as having been given by the Applicant to the SSAT. In those circumstances, I make the following findings of fact based on the SSAT's record of the account given by the Applicant to that Tribunal:
(a)The Applicant had been living in an investment property owned by his daughter and son-in-law in Midland, at a rent of $100 a week.
(b)He was living at the Midland address when he first met Mrs C at a singles club about 18 months before he commenced living in her home.
(c)The Applicant subsequently spoke to Mrs C about 6-7 times in a group environment and, sometime in 2002, mentioned to Mrs C that his daughter and son-in-law were selling their investment property and he would be moving house.
(d)Mrs C said that she was living alone and for certain health reasons and security would be happier if she had a man living in the house. Mrs C had told the Applicant that her house had two extra bedrooms if he was "stuck" for a place to live.
(e)The Applicant then moved into the Ardross address.
42. The precise date on which the Applicant moved into Mrs C's house in Ardross is not clear from the evidence before me. There is also a dispute between the Applicant and Respondent as to whether the Applicant notified Centrelink of his change of residence to the Ardross property.
43. The Section 37 Documents produced to me show that Centrelink had no record of receiving notification of the Applicant's change of address from the Midland property to the Ardross property.
44. On 11 October 2002 the Applicant applied for a credit card over the telephone. The electronic form was apparently completed by a bank officer, and gave the Ardross address with an indication that the Applicant had been living at that address for 4 years. The bank statements indicate that the Bank noted his address as changing to Ardross in July or August 2002. The Applicant changed his address with the traffic licensing authority on 15 October 2002.
45. Centrelink does have a record of the Applicant informing it of a change of address from the Midland property to his daughter's address in Glen Forrest, and indicating that he was no longer paying rent. That record shows telephone advice to that effect having been received on 11 October 2002. The record also shows that the Applicant called again on 18 October 2002 indicating that he had received a Centrelink letter forwarded from his old address. The Applicant is recorded as indicating that he wanted to ensure his new address had been "coded", and was told that his new address was "recoded" on 15 October 2002. The Applicant is noted as saying that the letter was dated 11 October 2002, so he understood that it had issued prior to the notification of his change of address.
46. The Applicant is recorded as having told the ARO that he could not recollect why he had not provided the Ardross address but had given his daughter's address. However, he is recorded as going on to say that he remembered having discussed rent assistance at the time and decided that he did not want to claim rent assistance as he was not familiar with the owner's financial arrangements and did not want them to be hit with a tax bill.
47. The Applicant is recorded as having told the SSAT a somewhat different story. He is recorded as having told that Tribunal that he was not sure at that time if the living arrangements with Mrs C would work and so he gave his daughter's address as a mailing address. He is recorded as having told the Tribunal that he anticipated that he would be moving again and so "didn't bother" notifying Centrelink of his address at Ardross. He told the SSAT that he didn’t think he had ever moved to the Glen Forrest address, and was happy to have his mail sent to the address of his daughter who he saw 2-3 times every week.
48. In his Statement of Facts and Contentions in this Tribunal the Applicant indicated that he believed that he did advise Centrelink of his change of address to the Ardross property on 11 October 2002.
49. In his oral evidence before me the Applicant indicated, during the course of cross-examination, that he had telephoned Centrelink on 25 September 2002 to advise them of his proposed change of address to the Glen Forrest property. At that time he had planned to move to his daughter's house, and was still living at the Midland address pending the settlement of the sale of the Midland property. Settlement was delayed and, in the meantime, Mrs C had indicated that the Applicant could board with her. The Applicant noted that there was an entry in Centrelink's records for 25 September 2002 showing new accommodation details but no new address. The Applicant said that he had again phoned Centrelink on 11 October 2002 and provided the Ardross address into which he then planned to move, and followed up with a call on 18 October 2002 to confirm that the change of address had been recorded.
50. Later in cross-examination the Applicant said that at about the time he moved to Ardross he told Centrelink that he wanted to cancel his rent assistance because he would be boarding but not paying rent. The Applicant then provided two mutually inconsistent answers as to why he had said he was not claiming rent assistance. The first was that he did not think he was entitled to it. The second was that he provided the information on 25 September 2002 when he thought he was moving to Glen Forest, where he would not be paying rent. I note that the Applicant's evidence was that he paid $100 rent to his daughter and son-in-law, and would pay $100 a week board to Mrs C.
51. I do not regard the Applicant's oral evidence before me to be reliable. There is a marked inconsistency in the accounts he has given at various stages, which is consistent with the Applicant attempting to infer events which he cannot in fact recall. I consider it likely that the recording on 25 September 2002 was of the new rent details for the Midland property, as on the previous day there had been a discussion about a late rent certificate for that property. I also consider it unlikely that the wrong address would have been confirmed on 18 October 2002. Further, the section 37 documents contain notices sent to the Applicant at the Glen Forest address into 2004. The Applicant should have been aware of these notices through his daughter, and a failure to take action to correct his address is inconsistent with the Applicant's evidence that he mistakenly thought that he had informed Centrelink that he had moved to the Ardross address. The Applicant did deny receipt of the notices, and referred to his daughter and son-in-law having lost a lot of mail. However, I find it difficult to accept that all of the notices would have been lost prior to collection, or that the Applicant's daughter would not have passed on any of the notices which she had received.
52. I also note that on 11 October 2002, in the application for a credit card noted above, the Applicant indicated that he had lived at the Ardross address for 4 years. The Applicant's evidence before me was that he had made a mistake, and must have been referring to the Midland property. Given that there is no suggestion that the Applicant had been living at the Ardross property since 1998, I am prepared to proceed on the basis that this was a mistake.
53. The Applicant produced a letter from a settlement agent which indicated that the sale of the Midland property settled on 17 October 2002. I find that this was the date on which that property was sold by the Applicant's daughter and son-in-law.
54. On the above material I am prepared to find that the Applicant was living with Mrs C at her house in Ardross by 18 October 2002. In light of the fact that the Applicant appears to have changed his address to the Ardross property with the Commonwealth Bank in July or August 2002, the Applicant may been living at the address as early as July of that year. The Applicant's response is, in effect, that he does not know why the Bank showed that address in July of 2002. I am not, however, able to identify with any confidence a particular date at which the Applicant moved into the Ardross address. I find that the Applicant moved to the Ardross address from the Midland address sometime in the period from July to October 2002.
55. I find that the Applicant did not advise Centrelink of this change in address, but on 11 October 2002 advised Centrelink that he was moving to the Glen Forest address. I find that the Applicant then received from his daughter at least some of the notices sent by Centrelink to the Glen Forest address until mid-2004.
56. I also find that the Applicant did not have his other mail directed to the Glen Forest address, and did notify his employer, the Department of Planning and Infrastructure and the Electoral Commission of the Ardross address. One inference open from the above facts is that the Applicant was attempting to hide his address from Centrelink. However, I am not prepared to draw that conclusion in the present case. There are a number of competing inferences open, including that the Applicant was content to receive mail through his daughter. I also note that the Applicant denies receiving Centrelink notices in 2002-2004, although for the reasons given above I find that denial difficult to accept. An adverse inference would be more likely if it were assumed that the Applicant and Mrs C were a couple, in which case the Applicant would have a motive for disguising the address. However, I do not draw that inference for the purposes of considering whether the Applicant and Mrs C were in fact a couple. At this point I do not consider the evidence enables me to make any finding as to the reasons why the Applicant did not notify Centrelink of his change in address to the Ardross property.
Move to the Brentwood Address
57. The Applicant accepted in his evidence before me, and I find, that in July 2004 Mrs C sold her Ardross property and purchased the Brentwood property into which both she and the Applicant moved.
Payment of Board
58. The Applicant gave evidence that he paid board of $100 per week cash to Mrs C during the whole of the period up to January 2008. He said that in January 2008, following the cancellation of his age pension and when he began work, he increased board payments to $300 per week. He said this increase was because, once he started working, he was unable to do the gardening and other household chores which was part of his undertaking when he moved in with Mrs C.
59. The SSAT had noted what it perceived to be an inconsistency in the Applicant's evidence to that Tribunal about his financial circumstances. It noted that the Applicant said that he did not claim rent assistance however on occasion he could not afford fuel. The Applicant said that he had sold a block of land in Bindoon and that had helped him manage without rent assistance. The Applicant referred to a Centrelink record that he had advised Centrelink on 29 June 2004 that he had sold a property and received approximately $74,000 after settlement on 22 June 2004.
60. However, the sale of this property in 2004 does not explain why the Applicant would have failed to claim rent assistance in October 2002, by which time he had moved to Mrs C's Ardross home. I have considered whether I should draw an inference that the Applicant was not paying board, but do not think it appropriate to do so as I do not consider that the material before me excludes the competing inference that the Applicant simply chose to cease claiming rent assistance.
Travel
61. As I have noted above, the Applicant and Mrs C travelled together to New Zealand in 2003, to Hong Kong in 2004 and to Singapore in 2007.
62. The Applicant told me, and I find, that this travel did in fact occur on the dates alleged. The Applicant said that in Hong Kong Mrs C and he shared a hotel room with separate beds but spent considerable time with their own friends.
63. The Applicant's evidence was that he and Mrs C were friends who travelled together on occasion, in part to avoid having to pay a single supplement. The Applicant said that he paid his share of some of his expenses to Mrs C in cash. This was to reimburse her for paying for some of his expenses on her credit card in order to obtain frequent flyer points.
64. The Applicant also accepted that he had travelled with Mrs C to Broome over Christmas 2002 to visit Mrs C's son, and they both later went to Melbourne to visit the Applicant's daughter.
65. On the above occasions the Applicant and Mrs C would share accommodation, but sleep in separate beds.
66. The report of a Centrelink officer who initially interviewed the Applicant described the manner in which the Applicant had been asked about travel with Mrs C at that interview on 9 August 2007 in the following manner. The account in the report is consistent with what purports to be a typed transcript of the interview prepared from notes which were subsequently destroyed.
67. The Applicant was firstly asked whether they had been overseas at all and replied "no". The Centrelink officer then asked "never", and the Applicant responded "yes" and said they had been on a Gemini Cruise Ship together. He said that they had stayed at a hotel in Singapore and shared the same room but had separate beds. They had shared a twin cabin on the ship.
68. The Applicant was then asked whether he and Mrs C had been anywhere else together. The Applicant said that he had invited Mrs C to come to Melbourne with him to see his daughter and they had stayed at a hotel together.
69. The Centrelink officer then asked the Applicant whether he had been anywhere else with Mrs C and the Applicant replied "no". The Centrelink officer then advised the Applicant that she had information from the Department of Immigration that they had travelled overseas on two occasions and gave the Applicant the dates. The Applicant said that he had forgotten that they had also travelled to New Zealand in November 2003. He said that they had travelled to Auckland and met up with Mrs C's friends. The Applicant said he could not remember the other overseas trip.
70. The explanation of the Applicant to the ARO, the SSAT and me for his failure to initially advise the Centrelink officers of the travel he had undertaken with Mrs C was that he was taken aback by the question and had not recalled the travel. I do not find the Applicant's explanation convincing. It is difficult to accept that the Applicant would have forgotten so much relatively recent travel. However, as the Applicant now admits the travel I can find that the travel occurred without resolving this question.
71. I also note that on 20 July 2007 Centrelink addressed questions to the travel agent which had arranged the Singapore travel, including a question asking them to "advise the relationship between these people, ie husband, partner etc". An unidentified person from the travel agent has noted "partner I think". That person was not called to give evidence before me. In the absence of anything to indicate how the author of this note came to think this, and as to whether it was a positive belief or merely supposition or assumption, I do not make any finding of fact as to what the travel agent was told by the Applicant and Mrs C as to the nature of their relationship.
Medical Records
72. The Respondent contends that the Applicant and Mrs C indicated to a number of medical officers that they were partners.
73. On 22 November 2007 a Centrelink officer wrote to a Dr Tim Jeffrey requesting certain information about Mrs C. This information was received by Centrelink on 22 November 2007. It indicated that Mrs C's last visit to Dr Jeffrey was on 22 November 2002. Dr Jeffrey provided a copy of Mrs C's patient information form, which was not signed or dated. That form indicated that the Applicant was Mrs C's husband/partner and that he was retired. There is nothing in the form answering particular questions posed by Centrelink which suggests that Dr Jeffrey had any recollection or other information beyond the patient details form. At the end of the questionnaire Dr Jeffrey noted that:
"As you can see there is very little information we can give you".
Dr Jeffrey was not called as a witness in the proceedings before me.
74. The Applicant made some suppositions as to why he might have been identified as Mrs C's husband/partner in this form. However, I took that to be in the nature of speculation, and do not give it any evidentiary value.
75. However, there is no material before me which shows who completed this patient information form, when or how it was completed or why the person who completed the form recorded the Applicant as Mrs C's husband or partner. I am not prepared to draw an inference about these matters in the absence of such material. While I find that the Applicant was recorded as Mrs C's husband/partner in this form, which was probably completed on or prior to 22 November 2002, I am not prepared to make any other finding of fact in relation to that document.
76. Also in the Section 37 Documents were two patient admission forms completed for the Applicant's admission into St John of God Hospital in Murdoch on 14 February 2005 and 5 May 2006. In the admission form for 14 February 2005 Mrs C is noted as the Applicant's next-of-kin, although the notation of the relationship between the two is indecipherable. In the admission form for 5 May 2006 Mrs C is again noted as next-of-kin, with the relationship being noted as "partner". In both forms the Applicant's marital status was noted as "divorced".
77. The Applicant's evidence was that when he was admitted on 14 February 2005 he did not complete the admission form. He understood that the form was completed by an admission clerk. The Applicant said that when he was admitted again on 5 May 2006 he did complete the patient admission form. When he came to the next-of-kin information he asked the admission clerk what he should write there. The Applicant said he was told that in February 2005 Mrs C was recorded as his next-of-kin, "and that if that was the person to contact then write that down" and "if I was not married partner would be okay". There is nothing to contradict that evidence.
78. On 7 April 2005 the Applicant completed and signed a registration form for Southcare physiotherapy clinic. He wrote Mrs C's Christian name against the entry for "next-of-kin". The Applicant's evidence before me was that "I was again told by the clerk that it did not matter as long as she had a contact name and phone number and the relationship did not matter".
79. As the Respondent's representative put to the Applicant in cross-examination, it was unusual to put his "landlady" as next-of-kin when he had children living in Perth. The Applicant was unable to give any convincing explanation as to why he did not put the name of his son who lived in South Perth or his daughter who lived in Glen Forest.
80. From the above materials I find that the Applicant gave the name of Mrs C as his next-of-kin on 7 April 2005 when he completed the registration form for the Southcare physiotherapy clinic and on 5 May 2006 when he was admitted to St John of God Hospital. On the second of those occasions the Applicant also identified Mrs C as his "partner". He did so notwithstanding that he had children living in Perth at the relevant time. I also find that Mrs C was recorded as the Applicant's next-of-kin when he was admitted into St John of God Hospital on 14 February 2005, although the circumstances in which this came to pass are not apparent on the materials before me.
81. Mrs C was also admitted to St John of God Hospital on two occasions, on 12 January 2005 and 18 October 2006. On the first occasion a patient admission form was completed by hand, which shows Mrs C's daughter as next-of-kin. Mrs C's marital status is described in that form as "divorced".
82. The response of the hospital to an inquiry by Centrelink indicated that on Mrs C's admission on 18 October 2006 no paper form was completed, so there was an electronic form only. The response to Centrelink indicates that on this occasion the Applicant was identified as her next-of-kin and partner. However, the attached electronic form again indicates that Mrs C's daughter was her next-of-kin. There was a nursing assessment/discharge planning form which notes the Applicant as next-of-kin and partner of Mrs C. However, it is not apparent from the material before me as to how this notation came to be made, or who made it. In those circumstances I am not prepared to make any finding as to what, if anything, was said by the Applicant or Mrs C to the author of that note.
83. The Applicant gave evidence, which I accept, that Mrs C has only one daughter who resides in Broome and visits her residence in Quinn's Rock infrequently.
Household Arrangements and Sharing of Expenses
84. The Applicant told me, and in the absence of any contradictory evidence I find, that he paid board of $100 per week during the period he received the age pension, paid for some of his own food items and toilet items and paid for internet costs as well as phone calls to his daughter in Melbourne.
85. The Applicant told me, and in the absence of any contradictory evidence I find, that when he began boarding at Mrs C's house she suggested that, as he was paying $100 a week board at the Midland property, it was acceptable to her for him to pay the same amount to her with the proviso that he also did the gardening and helped with household chores that she could no longer do. That evidence of the Applicant is also supported by a letter from Mrs C produced at the hearing.
86. In his evidence before me the Applicant accepted the accuracy of the account given by the SSAT at paragraph 53 of its decision as to the household arrangements at the Ardross and Brentwood properties. Those matters were not disputed by the Respondent, and I make findings of fact in the following terms from that evidence.
87. The Applicant and Mrs C had separate bedroom, bathroom and toilet areas, but shared the use of living areas and household goods and furniture. Mrs C did the household washing on Mondays and this included the Applicant's sheets and towels. The Applicant washed his own clothes, and mainly bought clothes that didn’t need ironing. The Applicant did the gardening and cleaned the pool. He cleaned his bedroom, bathroom and toilet. Mrs C is an excellent cook and loves cooking so she prepared the meals and the Applicant washed the dishes. Mrs C did the supermarket shopping but the Applicant sometimes bought items such as milk, bread and butter on his way home.
88. The Applicant described, in his evidence to me, some instances of domestic cooperation in terms which I accept. On occasion when the Applicant or Mrs C were washing clothes, they would include some of the washing of the other person, and Mrs C would sometimes offer to iron a few of the Applicant's clothes.
89. The Applicant's evidence to me was that he did not know anything of Mrs C's financial affairs until he obtained documents in Centrelink's possession through a Freedom of Information Act application.
90. The Applicant was cross-examined about a number of transactions shown on his bank statements. He did not recall what many were for, which in general was understandable from the amounts involved and the time which had passed since the expenses were incurred. I make the following findings from that evidence:
(a)The Applicant made a number of purchases at Bunnings, where he bought items for a range of uses, which included some gardening products which he used at the Ardross and Brentwood properties;
(b)On 13 November 2004 the Applicant purchased an outdoor setting which he placed at the Brentwood property;
(c)On 22 June 2004 the Applicant paid for a security door which was installed at the Brentwood property, for which he was reimbursed by Mrs C.
I did not find this aspect of the evidence to have any great significance for the issues I am asked to determine.
Socialising
91. The Applicant gave evidence that he and Mrs C would socialise with a group of other friends, and when in restaurants it was common for one of the group to pay the bill and the others to reimburse him or her. The Applicant also says he visits restaurants with other friends.
92. The Applicant told me that he and Mrs C play cards with a group of friends about once every six to eight weeks. The Applicant attends the movies with Mrs C and a group of friends about once a week, and they sometimes visit a restaurant afterwards. He also socialises with his own friends apart from Mrs C. In the absence of any contradictory evidence, I find these facts on the basis of the Applicant's evidence.
Motor Vehicle Insurance
93. A letter from SGIO produced to me indicates that Mrs C was noted as a driver on the Applicant's comprehensive motor vehicle insurance taken out with that company on 20 July 2006.
94. The Applicant's evidence was that he did this because the insurance company told him at the time of taking out the policy that "if you've got a preferred driver its much easier if you put them down". The Applicant told me that Mrs C had her own car and he had his own car. He said the only time that Mrs C drove his car was when hers was being serviced or repaired, which had occurred over a day to a few days at a time. There is nothing in the material before me to contradict that evidence, which I accept.
Sexual relations
95. There is no material suggesting the existence of any sexual relationship between the Applicant and Mrs C. I find that there was never any such relationship.
Photograph
96. The record of the discussion between the Applicant and Centrelink officers on 9 August 2007 indicates that the Applicant opened his wallet to retrieve two bank balances which he had obtained prior to the interview. As he did so one of the Centrelink officers saw a picture in the wallet. The officer asked the Applicant if the photo was of Mrs C. The Applicant answered that it was. The Applicant was asked why he would have a photo of the lady he boards with in his wallet. The Applicant responded by asking whether it was a crime to have a picture in your wallet.
97. When the Applicant telephoned a Centrelink Officer on 23 August 2007 he is recorded in a Centrelink file note as having been told that it was odd for him to have a picture of the landlady he was boarding with in his wallet. At this time the Applicant is recorded as having said that "it's probably been in there for 6 years, what's wrong with that".
98. In his evidence before me the Applicant said that the photograph was of his daughter. He said that one of the officers asked if that was a picture of Mrs C, and the Applicant says he answered in the affirmative because he was annoyed by the questioning.
99. The account given by the Applicant shows an unusual response to annoyance, and I also note that the Applicant did not take the opportunity to correct the impression which he had created when the issue was raised by a Centrelink officer on 23 August 2007. However, neither Centrelink officer has given evidence before me as to the age or other description of the person shown in the photograph. The issue was not raised by the Respondent in cross-examination of the Applicant. In those circumstances I am not prepared to make any finding as to the identity of the person whose photograph was seen by the Centrelink officers at the interview on 9 August 2007.
Parties' Characterisation of the Relationship
100. In his evidence before me the Applicant characterised his relationship with Mrs C as one of a boarder at her house and a relationship of good friends. I have already found the Applicant's evidence about a number of matters to be unreliable. The Applicant has described Mrs C as his partner on at least one occasion during the relevant period. However, the Applicant has consistently told the Centrelink officers, the ARO, SSAT and me that he regards his relationship with Mrs C as one of a boarder and friend only. The Applicant did appear to me to be genuine in expressing his subjective characterisation of the relationship. Notwithstanding my reservations about other aspects of the Applicant's evidence, I am prepared to accept the Applicant's evidence as reflecting his subjective view of the relationship.
101. Mrs C did not give evidence before me, but I was provided with a letter which was purportedly written by her. While that letter describes the Applicant as "someone who has boarded with me", she does not address her view of the relationship in any detail in that letter.
102. The Respondent asks that I draw an inference, from the Applicant's failure to call Mrs C, that her evidence would not have assisted the Applicant's case. That is the Respondent would have me apply the rule in Jones v Dunkel (1959) 101 CLR 298. For a number of reasons I am not prepared to do so in this case.
103. Firstly, in applying that rule, which was developed in courts of law in which the rules of evidence apply, it is necessary to take account of the fact that in this Tribunal the rules of evidence do not apply and facts may be established without calling persons to give oral evidence. That general approach in the Tribunal is reflected in the approach of the Respondent in this case. The Respondent seeks to establish a number of primary facts through the production of documents prepared by persons who were not called as witnesses. Some of those persons were Centrelink employees. That a party produces a document rather than calls a witness in tribunal proceedings will not always lead to an inference that they have failed to call a witness out of fear of what he or she might say. It may simply be that they plan to take advantage of their ability to attempt to establish facts without adducing oral evidence.
104. Secondly, on the hypothesis that Mrs C is only a friend and landlady of the Applicant, it is far from clear that she is a person who is available to one party rather than the other, or who might be regarded as in the camp of the one party so as to make it unrealistic for the other party to call her. There is no evidence that the Respondent attempted to obtain a statement from Mrs C and she declined to do so. Mrs C was not a recipient of Centrelink benefits who has anything financially to gain or lose from a finding as to the nature of her relationship with the Applicant.
105. Thirdly, the Tribunal does have a letter from Mrs C which describes the circumstances in which the Applicant came to live with her. The account given in that letter is consistent with the Applicant's account. The letter also denies certain financial links between the two, and indicates that Mrs C was not aware of the Applicant's receipt of age pension, or the proposal to cancel it, prior to being contacted in relation to a freedom of information application relating to her financial affairs. That letter described the Applicant as a boarder. This letter indicates that, at least in some respects, the evidence of Mrs C would have been helpful to the Applicant.
106. Fourthly, the Applicant was not represented at the hearing before me. He indicated, in effect, that he did not intend to call Mrs C or his other friends because he did not think this matter concerned them and he did not want to subject them to the process of giving evidence. He noted that Centrelink had not called its employees, and he did not think that he should have to prove his innocence in those circumstances. Regardless of the legal soundness of those reasons, it appears that the Applicant does have reasons for not calling Mrs C other than a fear of what she might say.
107. Fifthly, in an applicable case the rule permits an inference that a witnesses' evidence would not have been helped the party who fails to call her, may lead the Tribunal to be more ready to accept evidence on a matter about which the absent witness may have spoken and may assist the Tribunal to draw an inference fairly to be drawn from the other evidence. However, the rule cannot be used to fill gaps in the evidence, or to convert conjecture and suspicion into inference: see the discussion in JD Heydon Cross on Evidence (7th edition) at [1215] page 41.
108. In the circumstances I am not, in the absence of Mrs C being called as a witness, prepared to make any finding as to how she would characterise her relationship with the Applicant.
CONSIDERATION OF THE ISSUES
109. Against the background of the above findings of fact, I will firstly consider the particular matters identified in s. 4(3)(a)-(e) of the Act, before turning to consider the relationship between the Applicant and Mrs C more generally.
Financial Aspects of the Relationship
110. The Applicant and Mrs C did not jointly own any real estate or other assets. Nor did they have any joint liabilities. There was no pooling of financial resources, and the only evidence is that they were ignorant of each other's financial affairs. It appears from the above facts that the Applicant and Mrs C maintained separate finances.
111. That is not to say that there was never any financial cooperation. On the occasions noted above one party paid for expenses of the other, on the basis that they would later be reimbursed. Examples include Mrs C's payment of the Applicant's holiday expenses, and the Applicant's payment for a screen door. However, the material before me does not show these occasions to have been regular. There may also have been some purchases of minor household items for each other. However, there is no evidence of any joint property, including household items. The sharing of household expenses appears to have been very limited.
112. There were no formal legal obligations between the Applicant and Mrs C. The Applicant agreed to pay board to Mrs C, and undertake household tasks in return for board involving both meals and accommodation.
113. These financial aspects of the relationship seem to me to count strongly against the existence of a marriage-like relationship. I agree with the Respondent's observation that financial independence in a marriage is not unusual today. It may be that considerations such as those referred to by the Respondent – substantial separate incomes and dependent children – might lead a married couple to have separate bank accounts and maintain separate ownership of substantial assets. However, the degree of separation which is disclosed by the evidence here would be most unusual for a couple in a marriage-like relationship. One would, for example, expect that over a period of years living in the same house those living in a marriage-like relationship would have made joint purchases of a number of household items. Further, neither of the considerations referred to by the Respondent were present in this case.
Nature of the Household
114. As both the Applicant and Mrs C have only adult children who live independently, they do not share any joint responsibility for providing care to or support of children. However, given the age of the Applicant and Mrs C, that is not a factor which counts either towards or against the existence of a marriage-like relationship in the present case.
115. The fact that the Applicant and Mrs C have separate bedrooms and bathrooms, and that the Applicant has a primary and separate responsibility for purchasing items such as his clothing and toiletries, and washing his own clothes and bed/bathroom areas, is more consistent with a boarding arrangement than a marriage-like relationship. On the other hand, the fact that other living areas are shared is more consistent with a marriage-like relationship than a boarding arrangement.
116. I have described the basis on which responsibility for housework is distributed above. I have found this to be a neutral factor. While the arrangements might reflect those of a couple, they also fit within the boarding arrangements described by the Applicant's evidence and Mrs C's letter.
117. Overall, I regard the household arrangements to be consistent with the existence of both a marriage-like relationship and the boarding arrangement I have described. I agree with the conclusion of the SSAT that the nature of the household during the relevant period was not clearly indicative of either the existence or absence of a marriage-like relationship.
Social Aspects of the Relationship
118. A significant aspect of the social relationship between the Applicant and Mrs C is the amount of travel and socialising in which they engage with each other. The evidence discloses three overseas holidays, and two domestic trips where one of the Applicant or Mrs C accompanies the other to visit the other's child. There is no evidence of either the Applicant or Mrs C having taken any significant travel alone since the Applicant moved into Mrs C's residence. I can understand the desire of a person in the position of the Applicant or Mrs C, if single, wanting to have a companion on a trip so as to provide company and lessen the cost of travel. However, the Applicant and Mrs C chose the same companion for a series of trips over an extended period of time to the exclusion of others. That does suggest the existence of a marriage-like relationship.
119. The extent of socialising in Perth is consistent with that of a married couple, but also consistent with that which might occur with housemates who are good friends. I found this aspect of the social relationship to be neutral.
120. There is no evidence as to the manner in which the Applicant and Mrs C hold out their relationship to their family and friends, and others with whom they closely associate, other than the evidence of the Applicant. Given the unreliability of other aspects of the Applicant's evidence, I am not prepared to make a finding that accepts the Applicant's evidence without some corroboration of what he and Mrs C have told those people. In the circumstances I do not consider that the material before me allows me to safely make any finding as to how the Applicant and Mrs C hold out their relationship to their family and friends, and others with whom they closely associate.
121. There is no evidence as to the assessment of friends and regular associates of the Applicant and Mrs C about the nature of their relationship.
122. As I have noted above, the material adduced by the Respondent satisfies me that on one occasion, when admitted to hospital on 5 May 2006, the Applicant represented that Mrs C was his partner. He also represented that Mrs C was his next-of-kin when registering with Southcare physiotherapy clinic on 7 April 2005. Otherwise I have not been prepared to make findings as to the representations made by the Applicant or Mrs C on the other occasions on which documents produced by the Respondent identify them as each others' next-of-kin or partner.
123. There is also non-specific evidence of the Applicant and Mrs C visiting each other in hospital, although that would be expected of friends as well as members of a couple. There is no evidence of either the Applicant or Mrs C providing substantial care for the other during times of illness. Nor does the evidence establish the extent or length of the hospital visits.
124. Overall I find that the social aspects of the relationship which have been established by the material before me count in favour of characterising the relationship as marriage-like. The most significant factor in favour of that characterisation is the extent of joint travel undertaken between the two. Other aspects are largely inconclusive, in part through the lack of, or lack of reliability of, evidentiary material provided to the Tribunal.
Sexual Relationship
125. The lack of any sexual relationship between the Applicant and Mrs C at any time is a factor counting against the existence of a marriage-like relationship.
Nature of the Parties' Commitment to each other
126. The Applicant and Mrs C have been residing in the same house since at least October 2002, and were friends for some 18 months prior to that. There is evidence that the Applicant and Mrs C had provided each other with companionship throughout the time they had been living in the same house. The material before me does not demonstrate that the nature of that companionship has been more than friendship.
127. There is no material before me which shows the extent of emotional support which the Applicant and Mrs C have given to each other during this period. Nor is there any evidence as to whether the Applicant or Mrs C see the relationship as likely to continue indefinitely, although the Applicant did not give evidence that he saw the relationship as ending at any particular time in the future.
128. I have found that the Applicant subjectively sees his relationship with Mrs C as one of friendship and that of a boarder and landlord. I have not been prepared to make any finding as to how Mrs C sees her relationship with the Applicant.
129. The fact that the Applicant has lived in the same house as Mrs C from at least October 2002, and even at the date of the hearing had no plans to leave, is a factor counting in favour of regarding the relationship as marriage-like. That the Applicant did, on the two occasions noted under the previous heading, describe Mrs C as his partner or next-of-kin is also a factor counting in favour of regarding the relationship as marriage-like. The fact that the Applicant considers himself to be no more than a boarder and friend is a factor counting against that conclusion. The absence of evidence, or reliable evidence, as to the other aspects of the commitment of the Applicant and Mrs C to each other means that those matters must generally be neutral. However, the absence of evidence establishing a significant emotional commitment of those persons to each other, or any commitment by either party as to the permanence of the relationship, is an impediment to my being satisfied that the relationship is marriage-like. It has not been shown that the commitment which the Applicant and Mrs C have to each other is different from their commitment to any other person.
Overview of the Relationship
130. As I have noted, some of the factors which I have identified, and am required to consider, count in favour of the existence of a marriage-like relationship. Other considerations count against the existence of such a relationship, while some factors are neutral or at least do not count strongly one way or the other.
131. The Respondent emphasises the fact that the Applicant had lived with Mrs C for at least 5 years and three months at the date of cancellation, and in that period they holidayed together on at least 5 occasions sharing bedrooms. The Respondent also points to the fact that the Applicant and Mrs C spend a considerable amount of time socialising together. The Respondent contends that these factors tip the balance in favour of the Applicant being a member of a couple.
132. While I accept that those factors do tend to suggest that the Applicant and Mrs C were in a marriage-like relationship, there are countervailing factors which in combination lead me to a contrary view. For the above reasons I consider the financial aspects of the relationship to count against the existence of a marriage-like relationship. The fact that there has never been a sexual relationship between the Applicant and Mrs C is, while not conclusive, also a factor which counts substantially against the existence of a marriage-like relationship. The absence of any evidence of any significant emotional commitment of those persons to each other, or any commitment by either party as to the permanence of the relationship, also counts against the existence of a marriage-like relationship. In my view, these matters tip the balance against any finding that the relationship between the Applicant and Mrs C was marriage-like.
133. I have not found this to be an easy case to resolve. In part this is because there are factors counting both towards and against the existence of a marriage-like relationship. The absence of oral evidence from any person other than the Applicant, who I have found to be an unreliable witness in several significant respects, has made reaching conclusions about relevant facts more difficult. In the end, having taken all of the above matters into account, the material before me does not satisfy me that the Applicant's relationship with Mrs C is properly to be described as marriage-like.
134. In reaching this conclusion, I have considered the composite picture of the relationship between the Applicant and Mrs C at the relevant time. While I have had regard to the particular matters identified in s. 4(3) of the Act in the manner described above, I have recognised that those matters, and the list of factors relating to each matter, are non-exclusive. In respect of each of those matters and factors I have considered whether there are any other factors relevant to the judgment I am required to make and, where I have concluded that there are other factors, had regard to them in the manner described above.
135. For these reasons I am unable to form the opinion (formed as mentioned in s. 4(3) and (3A) of the Act) that the relationship between the Applicant and Mrs C was, during the relevant periods, a marriage-like relationship.
DECISION
136. For the above reasons, I would set aside the decision of the SSAT under review, and the decisions of the Respondent's delegates under review by the SSAT. This means that the decision to cancel the Applicant’s pension is set aside, as is the decision to raise and recover a debt. I would substitute a decision that the Applicant was entitled to be paid age pension at the single rate from 21 November 2002 to 15 January 2008. It will be for the Respondent to assess whether the Applicant continued to be entitled to pension after the cancellation date, having regard to his circumstances (including his income) after that time.
I certify that the 136 preceding paragraphs are a true copy of the reasons for the decision herein of Ms LR Tovey, Member
Signed: ………….....(sgd) Ms L Huynh.....................................
AssociateDates of Hearing: 8 October 2009 and 12 December 2009
Date of Decision 18 May 2010
Representatives for the Applicant Self Represented
Representatives for the Respondent Ms M Conlon
Solicitors for the Applicant Centrelink Legal Services
Key Legal Topics
Areas of Law
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Social Security Law
Legal Concepts
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Social Security Appeal
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Marital Status
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Decision Review
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