Jones and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2012] AATA 54

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2012] AATA 54

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2011/2983

GENERAL  ADMINISTRATIVE  DIVISION		)
Re		DAVID JONES

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Mr C. Ermert, Member

Date2 February 2012

PlaceMelbourne

Decision The Tribunal affirms the decision under review.

. . . . . . . . . .[sgd] . . . . . . . . . . . . . . . .     Member

AGE PENSION – whether member of a couple – whether illness separated couple - decision affirmed

Administrative Appeals Tribunal Act 1975 (Cth) s 37

Social Security Act 1991 (Cth) ss 4(2), 4(3), 4(7)

REASONS FOR DECISION

2 February 2012 Mr C. Ermert, Member       

INTRODUCTION

1.Mr David Jones, the applicant in this case, married Mrs Patricia Jones in 1999.  Mr and Mrs Jones jointly own property in Mornington and resided there together until Mr Jones was admitted to the Aged Care Mental Health Unit at Frankston Hospital on 11 March 2011 because he was suffering from Alzheimer’s Dementia.  On 30 March 2011 Mr Jones was permanently admitted to Craigcare Mornington, a nursing home and hostel. 

2.Mr Jones receives the age pension.  On 18 March 2011 an officer of Centrelink, the agency providing services for the respondent, made a decision to assess Mr Jones’ rate of age pension on the basis that he and Mrs Jones are an illness separated couple, effective from 11 March 2011.  An Authorised Review Officer (ARO) of Centrelink affirmed that decision on 13 May 2011.  On 17 June 2011 the Social Security Appeals Tribunal (SSAT) affirmed the decision of the ARO.  This case is an application for review of the SSAT decision.

THE HEARING

3.Mrs Jones represented Mr Jones at the hearing and gave evidence. Mr Tim de Uray, a Centrelink advocate, represented the respondent. I had before me the documents provided by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (the T-documents).  I also had before me a Statement of Facts and Contentions received from Mrs Jones on 13 October 2011 and the respondent’s Statement of Facts and Contentions dated 24 October 2011.

THE ISSUES

4.The issues to be determined are:

(a)whether Mr Jones is a member of a couple with Mrs Jones, and

(b)whether they are an illness separated couple as defined in the Social Security Act 1991 (the Act)

THE EVIDENCE

5.Mrs Jones relied on her Statement of Facts and Contentions and confirmed that its contents remained current and correct.  In her oral submission, Mrs Jones emphasised that she did not consider her relationship to Mr Jones a marriage any more.  She said that Mr Jones had suffered from depression for a long time.  She did not know about it at the time they married but once in that situation she just had to cope with it.  Mrs Jones said that there were a lot of things that she had no choice about.  She had to ask Mr Jones not to visit her at work.

6.Mrs Jones said that her husband was bad with money and so she had to manage his money for him.  She said her current situation was that she worked three days a week and had to look after herself, as well as pay the extra costs for Mr Jones’ accommodation and care.

7.Mrs Jones concluded by saying that Mr Jones was very fragile and she was very worried about him.

CONSIDERATION

8.There was no dispute over the facts of the case, as presented by Mrs Jones in her Statement of Facts and Contentions and  in evidence at the SSAT.  The key facts are:

(a)they married in 1999;

(b)they jointly own a property in Mornington and resided there together until Mr Jones’ admission to hospital and subsequently to Craigcare;

(c)for at least two years, Mrs Jones has taken care of their finances and paid all the bills;

(d)Mrs Jones has done all the cooking and housework;

(e)Mrs Jones pays for the shortfall between Mr Jones’ pension and his Craigcare accommodation costs;

(f)Mrs Jones visits Mr Jones in Craigcare;

(g)Mr and Mrs Jones hold mutual wills, leaving the estate to the other should one of them die; and

(h)Mr Jones is no longer competent to make informed decisions and Mrs Jones has been appointed as his administrator.

9.The relevant legislation is contained in the Social Security Act 1991.  Section 4(7) of the Act states:

Illness separated couple

(7)Where 2 people are members of a couple, they are members of an illness separated couple if:

(a)they are unable to live together in their home as a result of the illness or infirmity of either or both of them; and

(b)because of that inability to live together, their living expenses are, or are likely to be, greater than they would otherwise be; and

(c)that inability is likely to continue indefinitely.

10.I must first determine whether Mr Jones was a member of a couple until he was admitted to hospital on 11 March 2011.  The relevant legislation is contained in sections 4(2) and 4(3) of the Act, which state:

Member of a couple--general

(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

(3)In forming an opinion about the relationship between 2 people … 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, or in a de facto relationship with , 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 or a de facto relationship.

11.In determining whether Mr and Mrs Jones are a couple I consider the following issues to be relevant:

(a)Financial Aspects

(i)Although Mr and Mrs Jones have always had separate bank accounts, Mrs Jones has been taking care of all the finances, particularly over the past two years;

(ii)Although Mrs Jones is in the process of having the household bills transferred into her name, they have been and are currently in joint names;

(iii)Mr and Mrs Jones have mutual wills;

(iv)Mr and Mrs Jones jointly own their home in Mornington; and

(v)Mrs Jones continues to pay those costs of Mr Jones’ care accommodation which exceed his pension payments.

(b)Nature of Household

(i)Mr and Mrs Jones were living together  until Mr Jones was admitted to hospital;

(ii)Prior to Mr Jones’ hospitalisation, Mr and Mrs Jones shared a bedroom; and

(iii)Mrs Jones did all the cooking and housework.

(c)Social Aspects

(i)Mrs Jones continues to visit Mr Jones on a regular basis, even though she no longer feels comfortable taking him out;

(ii)Mrs Jones asked Mr Jones not to visit her at work; however

(iii)Mrs Jones has not told anyone of a separation.

(d)Nature of their Commitment

(i)Although Mrs Jones found Mr Jones difficult to live with and her marriage was not happy, she continues to continues to care for him.

(ii)Mrs Jones testified to the SSAT that even when things were bad she could not have left him because she felt that he would not manage on his own and she could not do that to him (T2, page 8).

(iii)Mrs Jones has successfully applied to be appointed as administrator for Mr Jones.

12.It is my opinion that Mrs Jones has shown a remarkable and very commendable commitment to the relationship over the last few years in circumstances which must have been increasingly difficult for her.  Nevertheless, viewing their relationship objectively and in totality, I am satisfied that Mr and Mrs Jones were a couple up to and including the time when Mr Jones was admitted to hospital. 

13.The next issue is whether Mr and Mrs Jones are a couple separated by illness.  In his oral submissions, Mr de Uray confirmed the submissions in the Respondent’s Statement of Facts and Contentions, namely that:

(a)Mr and Mrs Jones are unable to live together in their home as a result of the illness of Mr Jones (s (7)(a));

(b)Because of that inability to live together, their living expenses are or are likely to be greater than they would otherwise be (s (7)(b));

(c)Their inability to live together is likely to continue indefinitely; and as a consequence:

(d)section 4(7) of the Act is satisfied.

14.After considering all the evidence, I find that Mr and Mrs Jones satisfy the provisions of subsection 4(7) of the Act and I find that Mr and Mrs Jones are a couple separated by illness.  Accordingly, I affirm the decision of the SSAT. 

DECISION

15.The Tribunal affirms the decision under review.

I certify that the fifteen [15] preceding paragraphs
are a true copy of the reasons for the decision herein of:
Mr C. Ermert, Member

Signed:........................[sgd].........................................
  Associate                  

Date of Hearing  23 January 2012
Date of Decision  2 February 2012
Advocate for the Applicant             Mrs Jones, wife of the applicant

Advocate for the Respondent        Mr de Uray, Centrelink Advocacy Branch