Jones and Department of Family and Community Services

[2001] AATA 99

DECISION AND REASONS FOR DECISION [2001] AATA 99

ADMINISTRATIVE APPEALS TRIBUNAL          )

)          No  N2000/68  

GENERAL ADMINISTRATIVE  DIVISION           )                N2000/553         
           Re      ROBERT JONES     
  First Applicant
           And     CHRISTINE JONES 
  Second Applicant

AndSECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal        Dr J D Campbell, Member   

Date13 February 2001

PlaceSydney

Decision        The Tribunal affirms the decision under review.             

[Sgd] Dr J D Campbell
  Member 
CATCHWORDS
Social Security – Disability Support Pension – Members of a Couple – Marriage-like Relationship – Rate of Pay

Social Security Act 1991, sections 4(2),(3), 3(A) and 1064
Re Tang and Director-General of Social Services (1981) 3 ALN N83
Re Spencer and Secretary, Department of Social Security (1987) 13 ALD 497

REASONS FOR DECISION

Dr J D Campbell, Member          

1. Mr Robert Jones and Ms Christine Jones (the Applicants) in this matter seek a review of the decision of the Social Security Appeals Tribunal ("the SSAT") dated 11 November 1999 of the Centrelink delegate of the Secretary, Department of Family and Community Services ("the Respondent"), that the Applicants' rate of disability support pension ("DSP") should be paid at the partnered rate on the basis that they are living in a marriage-like relationship. This decision was reviewed and affirmed by the authorised review officer in a decision dated 31 March 1999.

2. A hearing was held before the Tribunal on 17 August 2000 at which both Applicants were self represented and presented oral evidence to the Tribunal in the absence of each other. The Respondent was represented by Ms Collis, an advocate from the Advocacy and Administrative Law Section of Centrelink.

3. The following material was placed into evidence before the Tribunal:
   Documents prepared pursuant to the Administrative Appeals Tribunal Act 1975 T1-T17, pp1-113
   State Valuation Officer letter, dated 23 February 2000     Exhibit A1      
   Respondent's statement of facts and contentions, dated 15 August 2000         Exhibit R1      
   Letter from Walker Conveyancing, dated 6 April 2000     Exhibit R2      

Issues

1. The relevant issues in this matter are whether the Applicants are members of a couple for the purposes of determining the correct rate of payment for their disability support pensions.
   Legislation

2. The relevant legislation is the Social Security Act 1991 ("the Act") and in particular ss4(2),(3), (3A) and 1064.
   Background

3. In 1968 the two Applicants commenced a relationship, and while they use the same name they have never been married.  Children were born to the couple in 1971 and 1974 and in 1984 Mr Jones commenced receiving a disability support pension (invalid pension) and Ms Jones a wife's pension.  In 1997 Ms Jones was granted disability support pension and on 18 February 1999 the Applicants each made a statement about their relationship (T5).  This resulted in the Respondent concluding that they were members of a couple as they were living in a marriage-like relationship and that their rate of disability support pension payment should be at the partnered rate (T10). This decision was viewed and affirmed by an authorised review officer on 31 March 1999 (T14) and by the SSAT on 11 November 1999.
   Evidence: Mr Jones

4. Mr Jones told the Tribunal that he was born on 26 July 1950, left school in second year at the age of 14 and worked on the railways for five to six years.  After various jobs as a storeman/packer and machinist he stopped work in 1984 and was granted an invalid pension for his chronic bronchial asthma/emphysema.

5. Mr Jones said he met Mrs Jones in 1968 and that they lived as a "de facto" couple in various addresses.  Mr Jones stated that the relationship was good for the years 1968-1978, with a child being born in each of the years 1971 and 1974. During this period they lived in rented accommodation in Parramatta, Wentworthville and Plumpton and throughout had separate bank accounts, prior to moving to housing commission accommodation with the children, this accommodation having been granted to Ms Jones.  In 1981 they moved to another housing commission premises.

6. Mr Jones described their relationship as a bit turbulent by the mid 1980s and with the children at school it seemed to deteriorate with Ms Jones doing her own thing.  He stated that Ms Jones had a mastectomy, was drinking heavily and formed a relationship with another man.  He further stated that he felt like a boarder and was himself drinking heavily, mostly at home.  He did obtain, but not complete, an application form for an individual not being a member of a couple and living under the one roof.

7. Mr Jones stated that the children came and went as they pleased by 1985 and that they were looked after by their parents as best they could.  Sexual relations between he and Ms Jones had ceased in the early eighties (around 1982-83), and they commenced sleeping in separate rooms a little before 1985.  There were no joint holidays and this state of affairs continued to the early nineties.

8. Mr Jones stated that he had a car accident in 1987 and was in Westmead hospital for two months.  With the compensation money he bought a unit at Mt Druitt for $42,000 in his own name, borrowing an amount of $9500.  The unit remained tenanted until he sold it in June 1999 for $90,000.

9. Mr Jones further stated that in October/November 1997 he moved out of the housing commission accommodation, leaving Ms Jones, her daughter and grand-daughter in residence, with he moving to live with his mother.

10. Mr Jones stated that he purchased a house for $114,000 in October/November 1998, arranging a loan in his own name, through a broker, with St George Bank for $120,000 with Ms Jones as the guarantor. The title to the property was registered in both names as joint tenants, which provided a saving on stamp duty. He stated that both he and Ms Jones pay $100 a fortnight each towards the repayment of the loan, and he also placed $60,000 from the sale of the unit towards the loan repayment.

11. Mr Jones stated that in January 1999 both he and Ms Jones moved to live in the house, and that Ms Jones continues to be itinerant in her habits, often requiring him to chase her up for her fortnightly contribution for the loan, as she was often at her mother's place.  Mr Jones stated that he has his own bedroom, which he cleans, does his own washing, shopping and cooking (including washing up) and that they share the housework.  He was of the opinion that if he was genuinely sick she would help and vice versa.  Further Mr Jones believes that one of the main reasons that Ms Jones moved into the home was to save on rent in the order of $100 per fortnight.

12. In relation to household expenses, Mr Jones stated that he and Ms Jones share the cost of rates, electricity, water rates, telephone and insurance. In the domestic situation Mr Jones stated that they hardly ever have meals together, have a television in separate rooms, and while the car is in his name, Ms Jones will pay for petrol when the car is used essentially for her purposes. Mr Jones stated that his daughter has a problem with drugs and his son is currently in prison.

13. In response to questions in cross examination, Mr Jones stated that Ms Jones has used the name Jones since 1968, and that the main cause of disharmony was when he found out about the other man, for up to that time the sexual relationship between he and Mrs Jones had been satisfactory, and thereafter it became limited.

14. Mr Jones stated that both he and Ms Jones moved to housing commission accommodation in about 1982 and stayed there until 1997, when he moved back to his mother's.  The consequence of this was that Ms Jones' rent dropped from $300 to $210 a fortnight. Mr Jones stated that he had been in the housing commission house when the other man was there and that he accepted the situation, as there was nothing he could do about it and he felt it necessary to try and keep the house together for the sake of the children.

15. Mr Jones admitted to always having some feelings towards Ms Jones, but it is no longer the same attachment, and it is more like a friendship, in which he would care for her if she were really ill.  Mr Jones said that they have a joint account with St George Bank for the purpose of the house and that he has a further Commonwealth Bank and Credit Union account.

16. Mr Jones stated that before 1987 he and Ms Jones would have social outings together at clubs and enjoy Christmas celebrations, but now apart from taking her shopping they do not share outings to meals, clubs or movies. Mr Jones said that neither he nor Mrs Jones has made a will.  Further he has no intention of changing living arrangements, but this could happen at any time, although he continues to consider that it is Ms Jones' home when she is there.
    Ms Jones

17. Ms Jones told the Tribunal that she was born on 18 October 1950, left school at 14 and stayed at home to help her mother.  Ms Jones said that she met Mr Jones in 1968 and formed a relationship, that they first lived at his mother's place and for a number of years they moved backwards and forwards between council accommodation.  During this time she had four children two of whom died.  Ms Jones indicated that she had had a son prior to meeting Mr Jones.

18. Ms Jones said that Mr Jones was an attentive partner, but in 1977 when Mr Jones was in prison and their daughter only three years old, she met a man. Ms Jones said that Mr Jones spent a lot of time in jail for driving charges. The longest single time being 18 months. Ms Jones said that Mr Jones was not there most of the time, that the children were growing up and that they did not seem to care about each other as much. Ms Jones said that she had a mastectomy and an accident in 1985 and that the house at that time seemed to her to be for her and her children.  Ms Jones notes that the sexual relationship between her and Mr Jones was normal up until 1982, but ceased around that time.  Ms Jones stated that it was ten years since they had been out together.

19. In response to questions in cross examination Ms Jones stated that she was generally known as Jones, that she always tended to do her own thing and that she would like to get a place of her own.
    File Evidence

20. The Tribunal also notes the following material:

    a)The reason for Mr Jones moving from the housing commission accommodation was some domestic turbulence with their daughter and that during an amnesty Mr Jones told the Department of Housing of his ownership of his unit at Mt Druitt and that he was unable to live in such accommodation. Mr Jones continued to telephone on a weekly basis and visit, once he had left the accommodation (T2, P10).

    b)     Relationships and activities were similar in the new house to what they had been when living in the housing commission accommodation. Ms Jones relationship with the other man ceased when he died in 1996 (T2, P11).

    c)     Ms Jones intends living indefinitely at the current house and that the current circumstances should continue.

Submissions: The Applicants

1. Both Applicants submitted that they are not members of a couple as they are were not living in a marriage-like relationship.  They submitted that they were friends who have entered into a financial arrangement whereby they are able to provide and own accommodation. In further contention they both indicate that they live independent lives, have no sexual relationship and do not socialise together.  They enjoy independent living facilities within a shared house and undertaking individual activities within the house as regards their own particular choices.
   Submissions: The Respondent

2. The Respondent contends that the Applicants are members of a couple and do live in a marriage style relationship as evidenced by the length of their relationship, their continuance of a relationship in a variety of housing abodes and their decision to embark on a joint venture to purchase the house in which they now reside and have no intention of leaving.  Further, it was contended that despite Ms Jones' open involvement with another man and Mr Jones not infrequent prison terms, the relationship has survived. Further the Respondent contends that each have stated that they would care for each other in times of sickness and that the purchase of their current home was a common purpose endeavour, in which it is clear that Mr Jones has provided the capital for the purchase, with Ms Jones gaining part ownership without the provision of capital.  In the Respondent's view this is evidence that their relationship is somewhat more than a friendship.  Further the Respondent contents that their position is supported by the Applicants entering into a long term financial arrangement and significant pooling of financial resources.
   Consideration and Findings

3. In preliminary comment the Tribunal observes that the basic factual matters are not in dispute between the parties, with any variation more related to inferences which may or may not be drawn.  The Tribunal is satisfied that the rendition of their particular circumstances by both Applicants presents the necessary factual situation upon which the Tribunal can come to a particular conclusion. In so doing the Tribunal notes the following statutory framework in which the Tribunal must focus its endeavours:

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

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

   (b) all of the following conditions are met:

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

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

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

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

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

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

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

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

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

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

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

   (b) the nature of the household, including:

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

   (ii) the living arrangements of the people; and

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

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

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

   (ii) the assessment of friends and regular associates of the people about the nature of their relationship; and

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

   (d) any sexual relationship between the people;
                   (e) the nature of the people's commitment to each other, including:

   (i) the length of the relationship; and

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

   (iii) whether the people consider that the relationship is likely to continue indefinitely; and

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

4. The Tribunal, in moving to an assessment of the circumstances in which the two Applicants reside and carry through the activities of daily living, comments that the relationship in question has been in existence for some thirty years and the relationship between the two has been moulded by the events that have occurred over the passage of time.  While the two Applicants have never been formally married, the relationship they formed in 1968 has survived the many incidents and traumas associated with such a long relationship.  Their relationship, however defined at this stage has been challenged by such events as multiple rental accommodation, births and deaths of children, the presence of another man, inability to work, car accidents and hospitalisation, prison terms and drinking by both Applicants to name but a few, and yet despite all their trials and tribulations and the personal idiosyncrasies of each Applicant, they continue to live in the same house under terms and conditions which are apparently satisfactory to them.  Further the Tribunal notes that both Applicants have clearly stated that it is their intent to remain in the current arrangement.

5. In further comment the Tribunal notes the extract from Re Spencer and Secretary, Department of Social Security (1987) 13 ALD 497, where Senior Member Hayes states at 500:

   "…

   The starting point, of course, under the statutory definition, is that the relationship must be heterosexual, and permanently under the one roof (although in rare cases it might be found that a de facto couple are in fact for the time being deliberately maintaining separate residences in order to create the appearance of separateness). Given two people of the opposite sex living together under the one roof, one must then ask the question why they have chosen to do this. People will, of course, have many mixed motives for pursuing a particular course of conduct, particularly in their relationships with others. The predominant motive of each party might, however, be to secure the emotional gratification to be derived from the incidence of an on-going personal relationship with the other; this might be sought on a permanent basis (at least, for the foreseeable future); and their presence under the one roof might be explicable predominantly by pursuit of the emotional gain from their relationship. If so, the relationship does have a special quality which would set it apart from relationships with others, and make it a de facto relationship within the statutory definition.
   …"

6. In assessing the relationship, the Tribunal notes that the Applicants describe it as a friend-like relationship, but in turn considers that the current relationship is the distillation of the many events that have effected them during their thirty odd year relationship.  The Tribunal notes that there has been no sexual relationship between the two Applicants for at least eighteen years, with evidence that the sexual relationship was declining even before the appearance of another man at the time Mr Jones was in prison.  In effect the Tribunal considers the relationship between the two Applicants to have been moulded and shaped by their very experiences and particular personal characteristics and the relationship, although well and truly tested, survives to the point in time at which the application was made.

7. The Tribunal in considering the nature of the relationship would make the following further observations on the factual material presented:

   (a) that the relationship has been longstanding; that for many years it has been devoid of a sexual relationship and this appears to have been accepted by both Applicants, with other arrangements being put into place by Ms Jones and accepted for better or worse by Mr Jones;
   (b) that the relationship has been subject to much turbulence as already detailed and that it would appear that actions have been taken by Mr Jones to provide a suitable residence in which both can reside for the foreseeable future;
   (c) that the actions taken by both Applicants to secure the purchase of the residence, which include joint tenancy, Mr Jones providing capital for the purchase of the house and furniture, joint ownership albeit different shares, a joint mortgage (in effect Ms Jones is guarantor), long term financial commitments associated with repayment entered into by both parties and sharing of costs for rates, water rates, insurance, gas, electricity and telephone would again indicate an action by both parties and in particular Mr Jones to provide appropriate accommodation for both partners  in both the short and long term.  Further it would seem to the Tribunal that the manner and form in which capital and ownership have been provided and distributed do indicate an intention by both parties to provide secure accommodation and create a particular legal relationship between them as regards to property – a relationship which in the Tribunal's view is somewhat more then a friendship relationship,  by virtue of Mr Jones particular capital input;
   (d) that the division of labour for household activities as described by the Applicants, and further the individual sleeping arrangements and facilities, including television, are separate, and the Tribunal concludes that while particular, they are not unique in people who have shared a relationship over 30 years, as is not the lack of a sexual relationship, nor the presence of sexual freedom as stated in Re Tang and Director-General of Social Services (1981) 3 ALN N83:

   "While…This type of sexual freedom would be inconsistent with "traditional" concepts of marriage…it would not be unreasonable in our view to say that it is not inconsistent with some modern forms of marriage"

(e) that the Applicants have not had social activities together for many years and that each is happy for the other to do their own thing; that Ms Jones often goes to visit her mother; that Mr Jones' mother and Ms Jones communicate by phone; that they continue to show concern for the difficulties their children are facing and that more importantly both Applicants indicated that they would care for each other if the need relating to sickness arises.

1. The Tribunal in assessing the various elements of the Applicants current relationship, which is indeed borne of a thirty year relationship, concludes that on the balance of probability the two Applicants are in a marriage-like relationship and are therefore members of a couple for the purposes of the Act. In arriving at such a finding the Tribunal has placed particular weight on the length, nature and continuance of a relationship which has weathered much turbulence and survived to the point where each Applicant has committed to a mutual purpose. They have purchased a home and committed mutually to financial and monetary arrangements for mortgage repayments and other necessary incidentals of property ownership, including the legal relationship that is very much a part of such activity. Further the Tribunal, while acknowledging the nature and detail of their interpersonal household and non-domestic relationship and the apparent absence of social endeavour together concludes that this, as well as the lack of a sexual relationship, may well be the result of their past experiences with each other and others. Nevertheless the Tribunal, while acknowledging that such circumstances are unusual, but not necessarily unique in marriage-like relationships, places more significance on their desire to care for each other in times of sickness, to care for each other in regard to the provision of a residence and the intention to undertake the current arrangements for the foreseeable future.

2. This for the nominated reasons stated that on overall assessment, the Tribunal finds that the couple are being in a marriage-like relationship and are therefore are members of a couple and accordingly should be paid the disability support pension at the partnered rate.
   determination

3. The Tribunal affirms the decision under review.

   I certify that the 33 preceding paragraphs are a true copy of the reasons for the decision herein of

   J D Campbell, Member

   Signed:         .....................................................................................
     Associate

   Date of Hearing  17 August 2000
   Date of Decision  13 February 2001
   Applicants  Self-represented
   Advocate for the Respondent  Ms C Collis