John Pacuraru and Secretary, Department of Social Services
[2013] AATA 870
[2013] AATA 870
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/3398
Re
John Pacuraru
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Mr R G Kenny, Senior Member
Date 6 December 2013 Place Brisbane The Tribunal affirms the decision under review.
........................................................................
Mr R G Kenny, Senior Member
CATCHWORDS
SOCIAL SECURITY – Benefits and entitlements – Disability support pension – Applicant legally married – At the relevant time, applicant and wife not living separately and apart on a permanent or indefinite basis – Overpayment of disability support pension – Debt due to the Commonwealth – No basis for writing off or waiving debt – Decision affirmed
LEGISLATION
Social Security Act 1991 (Cth) ss 4, 1064, 1223, 1236, 1237A, 1237AAD
REASONS FOR DECISION
Mr R G Kenny, Senior Member
6 December 2013
BACKGROUND
From 1991, John Pacuraru was in receipt of disability support pension (“DSP”), a form of income support which is payable under the Social Security Act 1991 (Cth) (“the Act”). He married Gabriela in 1997 and, subsequently, advised Centrelink that, on 22 October 2003, he and his wife had separated. On 29 October 2007, Centrelink determined that Mr Pacuraru had been overpaid his DSP by $26,757.70 in the period from 30 June 2004 until 16 October 2007 (“the relevant period”); that the overpayment amount was a debt due to the Commonwealth; and that there was no basis for the debt to be written off or waived. The decision was affirmed by an authorised review officer on 31 January 2008 and, in turn, by the Social Security Appeals Tribunal (“the SSAT”) on 14 June 2013.
ISSUES AND LEGISLATION
Payability of DSP is worked out by using the pension rate calculator at the end of s 1064 of the Act and this requires that regard be had to the person’s income and assets. Where a person is living as a member of a couple, the income and assets of the partner are also taken into account. At issue in this matter is whether or not Mr Pacuraru and his wife have been properly assessed as not living separately and apart on a permanent or indefinite basis during the relevant period. The following provisions of the Act must be considered:
4(1) member of a couple has the meaning given by subsections (2), (3)…
Member of a couple—general
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; …
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) …, 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...
EVIDENCE
Nature of the household
In 2000, Mr Pacuraru and his wife purchased a house, as joint tenants, at 42 Queens Road. They continue to live at that address and remain married. Mr Pacuraru claimed that he separated from his wife in 2003 and, for two to three years, lived in a rented room in a house at 23 Maple Street. During that time, he was unemployed but travelled daily to
42 Queens Road where he completed the building of a self-contained flat under the premises. He then moved from Maple Street into the flat where he lived independently of his wife until 2007 at which time she became ill and he returned to live upstairs where he cared for her. They became reconciled, Mrs Pacuraru regained her health and they have lived together since then.
Mr Pacuraru advised Centrelink of his changes of address at the times they occurred.
He was shown a Centrelink record of his address history and agreed that the dates given were the same as the dates of his changes of address. The record is that he moved to Maple Street on 22 October 2003 and returned to 42 Queens Road on 30 June 2004.
He agreed that this reflected a period of eight months and could not explain why he had thought it was two to three years. Mr Pacuraru was reminded of his evidence before the SSAT about living for a period in a van. He said that he did this for a short period before he moved back to 42 Queens Road and could not explain the reason for this.
In 2005, Mrs Pacuraru purchased, as an investment, a nearby house at 45 Queens Road. This house was tenanted until it was sold in 2007. Mr Pacuraru said that he lived for a period in one of the rooms at 45 Queens Road. Mr Pacuraru’s evidence was that he carried out some renovations to the property. He gave varying accounts of how often he stayed there and of the duration of those stays. He also said that, in 2006, he advised Centrelink that 45 Queens Road was his postal address and that he did this because he was concerned that his wife may have been receiving and reading his mail. He agreed that Centrelink was the only entity contacted about the changes of address to Maple Street and to 45 Queens Road. Other mail, such as that from Queensland Transport regarding vehicle registration, continued at all times to be delivered to 42 Queens Road. A statement, dated 16 May 2007, from the Queensland Department of Transport confirmed the only address on its records was 42 Queens Road.[1]
[1] Exhibit 1, p. 120.
As part of its investigations into Mr Pacuraru’s living arrangements, tenants at 45 Queens Road were interviewed. The tenant for the period from 15 August 2006 stated that
Mr Pacuraru did not live there, that he lived at 42 Queens Road with his wife and that he was responsible for collecting the rent payments.[2] A Rent certificate, dated 19 December 2006, was signed by Mr Pacuraru as the landlord of 45 Queens’s Road and, therein, his address is given as 42 Queens’s Road.[3] Also, Baycorp Advantage Business Information Services Ltd (“Baycorp”) provided copies of the records of consumer credit applications made by Mr and Mrs Pacuraru. In his applications on 25 August 2004 and 2 December 2005 and her applications on 2 March 2004, 2 November 2005, 4 November 2005 and 2 December 2005, their respective addresses are listed as 42 Queens Road.[4]
[2] Exhibit 1, pp. 86-87.
[3] Ibid.
[4] Exhibit 1, pp. 100-103.
While, on Mr Pacuraru’s evidence, they were still separated, Mr and Mrs Pacuraru each completed a Centrelink form entitled Assessment of Living Arrangements (“ALA”), on 18 June 2007 and 16 June 2007, respectively.[5] They are almost identical and Mr Pacuraru said that they completed them together. Therein, they declared that Mrs Pacuraru occupies the top of the house and Mr Pacuraru occupies the bottom of it; that they are responsible for cleaning their own living areas; that they do not exclusively occupy any area of the house; that they do not share the use of household goods and furniture.
[5] Exhibit 1, pp. 143-150, 160-167.
Mr and Mrs Pacuraru have no children though Mr Pacuraru has children from a previous relationship. Mr Pacuraru’s evidence was that, while living at Maple Street and in the flat at 42 Queens Road, he and Mrs Pacuraru each assumed sole responsibility for their own housework. Mr Pacuraru was responsible for the yard and garden maintenance.
Financial aspects of the relationship
Though he was, on Mr Pacuraru’s evidence, separated from his wife during 2005,
he supported her in the purchase of the house at 45 Queens Road. Their house at 42 Queens Road was used as security for the loan from Westpac Banking Corporation and, on the loan application form, he is nominated as the person to receive notices from the bank.[6]
[6] Exhibit 1, p. 358.
Mr and Mrs Pacuraru each had a separate bank account with St George Bank Limited. Mr Pacuraru said that he was able to access his wife’s account but only with her consent and in her presence. However, a statement, dated 10 October 2007, from St George advised that Mr Pacuraru was a signatory to his wife’s account.[7] Further, the statements for both Mr and Mrs Pacuraru’s accounts were in evidence. Mr Pacuraru’s account statements from August 2003 until June 2007 show his address as 42 Queens Road. Mrs Pacuraru’s account statements from September 2003 until October 2007 show more than 80 cash withdrawals from ATMs at gaming venues at Logan City Recreation and Sport Club, Logan City Bowls Club, Logan Diggers Club and Jupiter’s Casino. Mr Pacuraru that he went to gaming venues on his own to “play the pokies”, particularly Jupiters Casino. He would take his wife’s account access card to use in the ATMs, having told her that he needed the card to pay bills relating to their joint expenses. More than 30 of the ATM withdrawals occurred during the period when Mr Pacuraru claimed to be living at Maple Street. He said that, in that period, he would go to 42 Queens Road and request the card from his wife before travelling to a gaming venue.
[7] Exhibit 1, p. 375.
Mr and Mrs Pacuraru shared equally the costs of utilities at 42 Queens Road while
Mr Pacuraru was living there. He said that, while he was living at Maple Street, he only paid his own expenses.
In the ALA forms, Mrs Pacuraru stated that she makes mortgage payments to Westpac of $1,300 per month and Mr Pacuraru stated that he makes no such payments. In his evidence, he said that he paid half of the mortgage costs. They stated that they share the payment of council rates, electricity, gas and telephone costs; that each of them has their own car but that Mrs Pacuraru shares the use of her car for shopping; that they have separate accounts but do not have access to the other’s account; that they each have no will or life insurance but Mr Pacuraru declared that each is nominated as a beneficiary under the other’s superannuation policy.
A declaration, dated 18 May 2007, by Mrs Pacuraru’s employer stated that she commenced work on 14 August 2003.[8] Between 29 August 2003 and 13 October 2003, Mr Pacuraru contacted Centrelink and expressed concern that his DSP had been reduced because it was being assessed on the basis of the combined income of himself and his wife. He wanted it to be restored to the single rate. He was advised that this would require proof that he and his wife had separated. Details of how that might be done were communicated to him. On 22 October 2003, Mr Pacuraru advised Centrelink that he was separated from his wife and was living in a unit. This was at Maple Street. Mr Bishop put to Mr Pacuraru that the reason for advising Centrelink of the separation was entirely related to his social security benefit. He agreed that the separation was related to money matters.
[8] Exhibit 1, p. 127.
Social aspects of the relationship
In the ALA forms, Mr and Mrs Pacuraru stated that they share social and leisure activities on occasions for family reasons and that they have not advised friends or relatives of their separation. He said that they may have gone to a club on a monthly basis. Mr Pacuraru’s son and his six children visit the 42 Queens Road address from time to time. When he did so during the separation, Mr Pacuraru would take his son upstairs into Mrs Pacuraru part of the house and they would conduct themselves under the pretence that he and Mrs Pacuraru were still together. Mr Pacuraru said that he had not advised neighbours of the separation. The tenant at 45 Queens Road was under the impression that he was married.
Sexual relationship
In their respective ALAs and Mr Pacuraru in his evidence stated that he and
Mrs Pacuraru did not have a sexual relationship during the period of separation. Rather, Mr Pacuraru stated that, while living at Maple Street, he had a sexual relationship with the woman who owned the house in which he rented a room. In his evidence to the SSAT, Mr Pacuraru said that he had a partner when at Maple Street but that he did not allow his new partner to visit 42 Queens Road out of respect for Mrs Pacuraru. In giving evidence, he could not recall the name of the woman from Maple Street. Mr Bishop referred to a council search that had revealed the owner of the Maple Street house was Pauline Howard. Mr Pacuraru then recalled that her name was Pauline. Mr Bishop also advised that the search revealed that the owner did not live in Australia. Mr Pacuraru then recalled that he did not have a relationship with the owner of the house but would, from time to time, engage the services of prostitutes with liaisons occurring, not in the house, but in his car.
Nature of commitment
In the ALAs, Mr and Mrs Pacuraru stated that they would provide care and support for the other in relation to money matters and family disputes. Indeed, on Mr Pacuraru’s evidence, his sense of commitment went further than that as demonstrated when his wife became ill in 2007. This marked the end of their separation because he moved upstairs to look after her. He assumed responsibility for household chores such as preparing meals and cleaning, and he transported her to medical appointments. Mr Pacuraru said that she has recovered from her illness and returned to her previous place of employment. Mr and Mrs Pacuraru have been dealt with by Centrelink since 2007 as living together as members of a couple. This has not been questioned by Mr Pacuraru.
SUBMISSIONS
Mr Bishop submitted that the evidence in this matter pointed towards Mr and
Mrs Pacuraru being married and continuing to live together before, during and after the relevant period. He submitted that this was the case in respect of each aspect of their relationship when considered under the criteria in s 4(3) of the Act. He submitted that
Mr Pacuraru was overpaid in the amount of $26,757.70 which was a debt owed by him to the Commonwealth, which should not be written off or waived under the provisions of the Act. Mr Pacuraru submitted that Centrelink had used false evidence in making its decision and that the process amounted to a personal vendetta against him.
CONSIDERATION
The overpayment
There are many inconsistencies in Mr Pacuraru’s evidence and between his versions of events and those from independent sources. These include the circumstances surrounding his period of residence at Maple Street and his relationship with the owner of those premises; the circumstances relating to his residence at 45 Queens Road and the use of that as a postal address for Centrelink matters only; his use of a van for accommodation; whether he was a signatory to his wife’s bank account; the ATM access to his wife’s bank account; the differing accounts given by Mr and Mrs Pacuraru about their respective superannuation beneficiaries; the use by Mr Pacuraru of his wife’s car for shopping; the continuation of some social occasions during separation; the failure to advise neighbours and relatives of the separation; the apparent ease with which
Mr Pacuraru transitioned back to the status of living with his wife as a couple after she became ill.
The nature and extent of those inconsistencies leave me satisfied that Mr Pacuraru’s evidence was unreliable and that he was not a witness of truth. I note that no witnesses were called by Mr Pacuraru to support the existence of a period of separation and, in particular, Mrs Pacuraru was not called to do so.
In determining whether or not Mr and Mrs Pacuraru have been living separately and apart, all of the circumstances of their relationship must be considered. These include the matters referred to in s 4(3) of the Act which is set out above.
As to the nature of the household, Mr Pacuraru maintained that he lived away from
42 Queens Road at times. In respect of Maple Street, no documentation, such as rent receipts, was provided in relation to his stay there which, initially, was declared to be for up to three years. His evidence at the hearing was that it was for about eight months only and he gave differing accounts of the associations he had with women there. While Centrelink has not included the Maple Street period in its overpayment calculations, I have referred to it because I find it difficult to accept that Mr Pacuraru ever lived anywhere but at 42 Queens Road. Based on the evidence of the tenant and his own vagueness about the frequency and duration of his stays there, I do not accept that he lived at any time at 45 Queens Road. Both at the SSAT and at the hearing he was vague about the use of his van for accommodation and I do not accept that he occupied the van for any time.
There was substantial merger of financial matters during the relevant period.
They continued to pay off their home loan and Mr Pacuraru was party to the process by which Mrs Pacuraru purchased the investment property at 45 Queens Road. Also, in his claimed period of separation, he carried out some work on the property owned by his wife. In respect of the cash withdrawals from Mrs Pacuraru’s bank account at gaming venues, it may be that Mrs Pacuraru was responsible for some of these. After all,
Mr Pacuraru admitted that they socialised, during the separation, about once each month by visiting such clubs. However, in relation to the withdrawals at Jupiter’s Casino, which numbered more than 30, Mr Pacuraru stated that he was there on his own with his wife’s card which he had obtained by falsely declaring that he was to use it to pay certain household bills. Clearly, he had access with Mrs Pacuraru’s consent to her account.
There was a continuing social dimension to Mr and Mrs Pacuraru’s relationship. As noted above, they went out together on a monthly basis. They also concealed the fact of separation from neighbours and relatives as highlighted by Mr Pacuraru’s evidence of the pretence he and his wife maintained during visits by his son and grandchildren. It would seem that it was only Centrelink which had been made aware of the separation.
Mr Pacuraru denied a sexual relationship with his wife in the relevant period. That may well have been the case but such an absence does not necessarily point to them living separately and apart. I do not accept his evidence about his sexual relationship with anyone else that he mentioned in his evidence. Mr and Mrs Pacuraru clearly have a strong commitment to each other. They each declared that in their ALAs in respect of money and family matters. When she fell ill, Mr Pacuraru cared for her by assuming the responsibilities of running the household. They are still living together and are treated as a couple by Centrelink for the purposes of calculating Mr Pacuraru’s social security payments. That has been the case since the initial decision was made by Centrelink more than six years ago.
The debt
I am satisfied that Mr and Mrs Pacuraru have been legally married to each other since 1997 and that they were not, in the relevant period, living separately and apart from one another on a permanent or indefinite basis. I am also satisfied that Mr Pacuraru was overpaid by an amount which is a debt due by him to the Commonwealth. Mr Pacuraru has not disputed the debt calculation and, on the basis of the Centrelink material before me, I am satisfied that the overpayment amount, which is a debt under s 1223 of the Act, is $26,757.70.
Writing off debt
A debt may be written off under s 1236 of the Act. This is where the debt is irrecoverable at law; the debtor has no capacity to repay the debt; the debtor's whereabouts are unknown after all reasonable efforts have been made to locate the debtor; or it is not cost effective for the Commonwealth to take action to recover the debt. Those factors are not met in this case. In particular, I am satisfied that Mr Pacuraru does have capacity to repay the debt on a continuing, albeit long term, basis. Indeed, he has been doing so and has reduced the debt to $11,434. In that situation, the debt should not be written off.
Waiver of debt
A debt to the Commonwealth may be waived under s 1237A of the Act because of sole Commonwealth error. Mr Pacuraru’s debt arose solely through his own misrepresentations about his living arrangements and can not be waived under this provision.
A debt to the Commonwealth may also be waived under s 1237AAD of the Act which reads:
1237AAD Waiver in special circumstances
The Secretary may waive the right to recover all or part of a debt if the Secretary is satisfied that:
(a) the debt did not result wholly or partly from the debtor or another person knowingly:
(i) making a false statement or a false representation; or
(ii) failing or omitting to comply with a provision of this Act, the Administration Act or the 1947 Act; and
(b) there are special circumstances (other than financial hardship alone) that make it desirable to waive; and
(c) it is more appropriate to waive than to write off the debt or part of the debt.
I am satisfied that Mr Pacuraru knowingly made false representations to Centrelink about his living arrangements and I am satisfied that the debt may not be waived under
s 1237AAD of the Act.DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 29 (twenty -nine) paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member ........................................................................
Associate
Dated 6 December 2013
Date of hearing 14 November 2013 Applicant In person Solicitor for the Respondent Mr Christopher Bishop, Departmental Advocate
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