KATHLEEN GAWN and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
[2012] AATA 169
•16 March 2012
[2012] AATA 169
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/4147
Re
KATHLEEN GAWN
APPLICANT
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
RESPONDENT
DECISION
Tribunal Senior Member Dr K S Levy, RFD
Date 16 March 2012 Place Brisbane The decision under review is affirmed.
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Senior Member Senior Member Dr K S Levy, RFD
CATCHWORDS
SOCIAL SECURITY – Age Pension – Pension Bonus Scheme – Member of a couple – Age pension at partnered rate – Age pension at single rate – Factors in determining whether applicant was a member of a couple – Decision under review affirmed
SOCIAL SECURITY – Procedure – Review of original decision after 13 weeks – Section 109 Social Security (Administration) Act 1999 (Cth)
LEGISLATION
Evidence Act 1995 (Cth) s 140
Social Security Act 1991 (Cth) ss 4, 23, 43, 93A- 93J
Social Security (Administration) Act 1999 (Cth) s 109
CASES
Briginshaw v Briginshaw (1938) 60 CLR 336
Pelka v Secretary, Department of Families, Housing and Community Services [2006] FCA 735
Secretary, Department of Education, Employment and Workplace Relations v Holmes [2008] FCA 105
SECONDARY MATERIALS
Guide to Social Security Law
REASONS FOR DECISION
Senior Member Dr K S Levy, RFD, Senior Member
INTRODUCTION
Kathleen Gawn registered for the pension bonus scheme in 2005. She continued to work for a further period before retiring. Since then and up to the present time, she has shared accommodation with Mr Colin Cossar.
On 14 August 2009 Ms Gawn applied for aged pension and for a pension bonus. The original application indicated that she was not partnered with any person and this document was returned to her on 26 August 2009. As Mr Cossar was asked to complete personal details, Ms Gawn lodged an amended application dated 31 August 2009. There, she indicated that Colin Cossar was her partner. On 16 September 2009 Centrelink decided:
a)that Ms Gawn should be paid the pension bonus as a member of a couple with effect from 31 July 2009. The amount of pension bonus paid was $7,320.20; and
b)that Ms Gawn should be paid aged pension as a member of a couple with effect from 31 July 2009.
Ms Gawn has disputed the amount of age pension bonus since that date. She applied for a review during a conversation with a call centre operator on 5 October 2005 and advised that she had been told that she would receive $35,000 in aged pension bonus. The matter was reviewed by an Authorised Review Officer (ARO) and, on 29 October 2009, the ARO decided that the original decision of Centrelink should be affirmed.
Ms Gawn subsequently made application for review of that decision to the Social Security Appeals Tribunal (SSAT) but withdrew the matter as she also had a current complaint about the same matter lodged with the Ombudsman. She had also contacted her local Member of Parliament. The Ombudsman subsequently advised her that her complaint was unsuccessful.
On 6 November 2009, approximately one week after the decision of the ARO, Ms Gawn advised Centrelink that she had separated from Mr Cossar but that she was still living in the same house as Mr Cossar.
It was not until 24 March 2011 that Centrelink decided to pay Ms Gawn at the single rate. However, that decision was subject to a review after 12 weeks because she lived in a flood affected area in Queensland and formal assessments were not able to be undertaken at that time. On 7 April 2011, Ms Gawn then applied for a review of the decision dated 16 September 2009 and sought to have all payments of the pension bonus and age pension payable since 31 July 2009 recognised at the single rate rather than as a member of a couple. That request was rejected on 5 May 2011. An ARO affirmed that decision on 14 July 2011. On 19 July 2011 she made application for review by the SSAT. On 22 August 2011 the SSAT affirmed the original decision. On 28 September 2011 she then sought a review by this Tribunal. It is the SSAT’s decision which is the subject of this review.
It is noted that a separate review process by Centrelink, determined on 29 November 2011, reviewed the determination of 24 March 2011 and considered that Ms Gawn should again be regarded as a member of a couple. Ms Gawn requested a review of that decision, dated 5 December 2011, and she continues to be paid at the single rate until the outcome of that review by an ARO is finalised (letter of 24 January 2012).
ISSUES
The grounds of appeal are contained in Ms Gawn’s written application for review in this Tribunal dated, 27 September 2011. She states “I believe I have been unfairly treated in all aspects to [sic] the pension bonus scheme”.
This is expanded upon in a 2 ½ page statement attached to that application (T‑document 1, folios 3-5). That statement highlights the following:
a) She is particularly aggrieved by failing to receive the amount of $35,000 which was her expectation of the pension bonus scheme (and was granted only $7,320).
b) She disputes the SSAT decision on the basis that evidence said to have been given (and recorded at para 28 of the SSAT decision) is incorrect.
c) Ms Gawn states that she and Mr Cossar should not be treated as members of a couple.
The claim made at paragraph 9 at (b) is dealt with procedurally in the current review as the Administrative Appeals Tribunal hears applications de novo and therefore will hear evidence afresh and is not bound by any factual evidence presented in the SSAT.
The issues for determination are concerned with the accuracy of the amount paid for age pension and pension bonus. These are both related to whether Ms Gawn and Mr Cossar are members of a couple.
The answers to these issues are to be determined by examination of the following legal questions:
Issue 1Was Ms Gawn a member of a couple for the period under review; and
Issue 2Even if Ms Gawn is entitled to be paid at the single rate for the period under review, is she precluded from being paid, except from the date of her application for review on 7 April 2011, by virtue of the 13 week limitation in s 109(1) of the Social Security (Administration) Act 1999 (Cth)?
EVIDENCE
The documentary evidence reveals the historical background shown above. In particular, Ms Gawn has pursued the shortfall in the amount of pension bonus which she received compared with her expectation of $35,000. It appears that this amount had been mentioned to her when she initially made enquiries and she had an expectation that that amount would be received in any event when she ultimately retired.
The applicant seeks review not only of the amount of pension bonus but also the amount of age pension which she has received from 31 July 2009. Both of those decisions determined that she would be regarded as a member of a couple and amounts paid in respect of both age pension and pension bonus were made on that basis. This affects the amount actually payable.
Ms Gawn has claimed that she was never a member of a couple when she claimed aged pension and now asks to be regarded as living separately from Mr Cossar from the original date of her claims (T-document 25, folio 136). That application was rejected, initially on 5 May 2011, on the basis that her application was not made within 13 weeks after the date of the original decision. It was further reviewed by an ARO on 14 July 2011 and again rejected.
As indicated earlier, from a practical legal perspective, the applicant has been accepted as being entitled to both age pension and pension bonus, but it is the amount which has been determined that is the issue in dispute. The central issue is whether the applicant and Mr Cossar were living together as a couple during that period. The original application by Ms Gawn was received by Centrelink on 14 August 2009. Upon request for further information and for income and assets information of her partner on 24 August 2009, Ms Gawn contacted Centrelink that same day. She requested that her application form be returned so that she might include her partner’s details. It is apparent from the original application that Ms Gawn had moved from New Zealand and commenced living in Australia on 14 March 1980 and that Mr Cossar moved from New Zealand also but did not commence living in Australia until 15 June 2005. In this application, Ms Gawn describes Mr Cossar as her partner (see for example, T-document 9, folio 47). The decision of Centrelink, dated 16 September 2009, in respect of both age pension and pension bonus was considered by an ARO and, on 29 October 2009, the original decision was affirmed. In relation to pension bonus specifically, the ARO outlined in his decision the factual issues and the reasons why Ms Gawn was entitled only to $7,320.20 for pension bonus (T-document 18, folios 102-105).
It is apparent that Mr Cossar only arrived in Australia in 2005. However, in the notes leading to the decision of the ARO dated 14 July 2011, Ms Gawn is recorded as showing the background to both her and Mr Cossar’s need for fresh accommodation and that they decided to share a unit at Kuraby from July 2008. At that time she reported that they were “good friends” (T-document 28, folio 148); they have shared accommodation since. During that period they also travelled together to New Zealand where they each have relatives. They have made two such trips. In addition, they travelled together on a 15 day vacation to the United States of America. She reported that they shared motels but with single beds (T-document 28, folio 149).
In oral evidence before the Tribunal all of this background evidence was essentially confirmed. In addition, Ms Gawn confirmed information contained in the application dated 14 August 2009 and agreed that she had declared in that application that they were “partnered” (T-document 9, folio 50, question 45) and that they started living together on 7 July 2008 (T-document 9, folio 50, question 47). Ms Gawn also stated that they now live separately in a number of respects and that she “does her own thing”. She also acknowledged joined holidays together, both to New Zealand and to the United States of America (T-document 20, folio 112, question 37) and described their relationship as being that of “good friends” and that “sometimes they go out together”.
In relation to financial details, Ms Gawn said they originally had a joint bank account but that it was only for them to pay rent and other common expenses such as electricity. However, copies of bank statements provided by Ms Gawn in the 2008-2009 period does indicate a direct credit of both hers and Mr Cossar’s salaries into the joint bank account on a regular basis. I did note to the applicant however, in the course of the hearing, that that account also seemed to be used for paying other purchases of a more individual nature as well as other expenditure which seemed to support the inference that the account was not used only in the way which she had portrayed it during her oral evidence.
During the course of the evidence Ms Gawn was at times defensive. Towards the end of the hearing she made an attack on Mr McQuinlan, the respondent’s legal representative, and stated that they had recently had a telephone conversation during which he was either aggressive or indicated that she would not succeed in the claims that she made. Mr McQuinlan made a lengthy and strong objection to the veracity of Ms Gawn’s assertions.
CONSIDERATION
I have considered all of the documentary and oral evidence made available to the Tribunal in coming to a determination about the issues in dispute. The statutory provisions relevant to determination of these matters are:
(a) In relation to age pension, s 43 of the Act is relevant.
(b) In relation to the pension bonus scheme, ss 23(5B) and 23(5D) of the Social Security Act 1991 (Cth) (the Act), as to pensionable age of a woman, are relevant. The provisions which pertain to the calculation of entitlement to pension bonus are contained in ss 92A to 93L of the Act. Section 93J(2) of Act is specifically relevant for the calculation of pension bonus in this case.
(c) In relation to whether the delay in submitting an application for review of the decision in September 2009, s 109 of the Social Security (Administration) Act 1999 (Cth) relevantly provides:
109Date of effect of favourable determination resulting from review
(1) If:
(a) a decision (the original decision ) is made in relation to a person's social security payment; and
(b) a notice is given to the person informing the person of the original decision; and
(c)within 13 weeks after the notice is given, the person applies to the Secretary, under section 129, for review of the original decision; and
(d)the favourable determination is made as a result of the application for review;
the favourable determination takes effect on the day on which the determination embodying the original decision took effect.
ISSUE 1
The first aspect of this issue is concerned with age pension. In determining whether Ms Gawn should be paid at the single rate or as a member of a couple, s 4(2) of the Act is relevant in relation to the definition of a “member of a couple”. Further and specifically, the statutory criteria for determining whether a person is a member of a couple are contained in s 4(3) of the Act as follows:
Member of a couple--criteria for forming opinion about relationship
(3) In forming an opinion about the relationship between 2 people for the purposes of paragraph (2)(a), subparagraph (2)(aa)(ii) 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, 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.
As stated above, the central issue has the pragmatic effect of the amount payable to Ms Gawn, and specifically, whether she is a “member of a couple”. Critical to this assessment is whether the indicia or “factors” in s 4(3) of the Act are met. As was submitted by the respondent, in forming a concluded assessment of whether Ms Gawn was in a marriage like relationship or a de facto relationship, the individual statutory factors are not conclusive by themselves but, rather, the “total picture of the relationship” is the determining factor (Pelka v Secretary, Department of Families, Housing and Community Services [2006] FCA 735 at [46]). The SSAT decision of 22 August 2011, in defining the legal application of the term “marriage like”, referred to the decision of Secretary, Department of Education, Employment and Workplace Relations v Holmes [2008] FCA 105. That decision mentioned, in particular, that ss 4(2), 4(3) and 4(3A) of the Act are not to be limited to some form of conventional and out-dated notion of what is a “normal marital household”. It might be seen in the context of “… a relationship where there is a sense of union between two people and a common purpose” (per Logan J at [39]). There is a general acceptance in contemporary society of a broader view of relationships where there is this sense of commitment between two people even though not formally or legally married in the strict or conventional sense.
That approach is particularised in s 4(3) of the Act in a way to provide a more objective assessment of any particular circumstances which indicate that there may be a marriage like relationship in existence.
Considering those provisions, the following factual evidence exists:
Section 4(3)(a) – The financial aspects of the relationship
(i)There is no jointly owned real estate; the parties have separate bedrooms; they buy food separately; and they each maintain a motor vehicle.
(ii)They share rental accommodation; they are both parties to the rental agreement; there is a joint insurance policy for contents; the electricity account is in joint names; there is (or was for a period during the period under review) a joint bank account for the payment of rent and other household expenses.
(iii)There were some indications from the bank statements provided that the bank account for household expenses seemed to have been used for other more personal expenditure, some of which may have been for the benefit of both members of the household, in addition to covering expenses of rent, electricity or other more commonly shared expenses of the household.
The respondent submitted that the pattern of expenditure shows some pooling of resources in the sense envisaged by the Act.
There has been evidence previously that both parties have made wills but they have left their property to their children from former relationships. There is nothing unusual in that, particularly given Mr Cossar is over 60 years of age and Ms Gawn is over 70. The present position about the status of wills seems explicable in the circumstances and neither adds to, nor detracts from, the financial aspects of whether they are members of a couple. In addition, Ms Gawn has mentioned in evidence during the hearing and, I note, before the SSAT, that she had exhausted her own resources providing for herself over the last couple of years.
On the balance of that evidence, I find the financial aspects of the relationship point to Ms Gawn and Mr Cossar being members of a couple.
Section 4(3)(b) – The nature of the household
Ms Gawn told the Tribunal that she and Mr Cossar share separate bedrooms and that, generally, she mostly provides for and cooks for herself. She did add that there were times when one of them would cook a roast meal and then invite the other to share it with them. There is some suggestion that in the ordinary course, Ms Gawn and Mr Cossar do not have meals together. However, Ms Gawn said that she does not have breakfast and Mr Cossar does shift work and is often not home overnight when he works. They share housework of the common areas and, for the most part, they each do their own washing. She noted however they do sometimes watch television together.
Taking account of their ages and stations in life (where particularly Mr Cossar does shift work) this pattern of lifestyle will be consistent with Ms Gawn being a member of a couple with Mr Cossar.
Section 4(3)(d) – The social aspects of the relationship
As to whether Ms Gawn and Mr Cossar hold themselves out as being married or in a de facto relationship with each other, it was conceded that their respective friends are now also a more common group of friends together. They do go out for drinks together at a club and this can occur fairly frequently. Ms Gawn indicated that some of their friends would assume that they were in a relationship and she said she has never denied that.
Ms Gawn told the SSAT that Mr Cossar sometimes accompanies her to events with her family. This was in the context though that she doesn’t seem to have much family in Australia. Nevertheless, it seemed common evidence that Ms Gawn and Mr Cossar have travelled together to New Zealand on two occasions. However, this is not surprising as they both come from New Zealand and if they are good friends it might also not seem too extraordinary. While on those holidays it seems that they have accompanied each other to family functions of the other.
They have also travelled on holidays to the United States together.
There is certainly evidence of a relationship under this subsection. There also seems to be sufficient evidence that their friendship and accommodation arrangements are somewhat stronger than a mere relationship of convenience and that the frequency and extent of their social and recreational lives justify a conclusion that s 4(3)(c) is satisfied and points to Ms Gawn being a member of a couple with Mr Cossar.
Section 4(3)(d) – Any Sexual Relationship between the People
There seems to be consistent evidence that there was, for a short time, a sexual relationship between the parties. Ms Gawn says, however, that it did not work out terribly well and they both decided that this aspect of their relationship should not continue. It seems Mr Cossar gave evidence to the SSAT that the sexual relationship arose out of an occasion when they came home after going to the club and he was a bit inebriated.
I find there has not been an ongoing sexual relationship and this factor is not satisfied by the evidence.
Section 4(3)(e) – Nature of the Commitment
The relationship would appear to have been in existence for four to five years. In oral evidence at the hearing, Ms Gawn told the Tribunal that they had met over the internet and that the current relationship started over six years ago. Ms Gawn did indicate that when she goes to hospital shortly, Mr Cossar would be supportive and assist her in the recovery phase. She has indicated on previous occasions that Mr Cossar would care for her if there was a health issue (T-document 29, folio 155).
The evidence is scant here but there is no contrary evidence. I sensed, from observing Ms Gawn as a witness, that there was a commitment to each other which was not a detached or impersonal relationship of merely living together under the same roof because of necessity or convenience.
I find that this commitment is consistent with Ms Gawn and Mr Cossar being members of a couple.
The Position Overall
There seemed to me to be enough evidence of the factors in s 4(3) of the Act, particularly the sharing of financial resources, the social relationships and nature of the commitment, to indicate that the parties are not living separate lives under the one roof. The extent of the sharing of resources and of their lives indicates that they are sufficiently close and supportive to found a conclusion that Ms Gawn is a member of a couple.
In balancing the evidence and forming that conclusion I must be satisfied that the applicant demonstrated the burden of proof to the standard of “on the balance of probabilities”. That is the standard of proof required by s 140 of the Evidence Act 1995 (Cth). I am not satisfied that the applicant has proved her case to the requisite standard of proof. In addition, there does appear that there may have been a position adopted as a matter of convenience. For example, following the ARO decision of 29 October 2009 affirming Centrelink’s determination that Ms Gawn was a member of a couple (based on her own stated position), she advised only one week later (on 6 November 2009) that she and Mr Cossar were living separate lives although still living together in the same residence. Even if that was so, the pattern of existence, assessed on the factors in s 4(3) of the Act, is not consistent with that. In addition, Ms Gawn lacked some credibility as a witness. Her responses were often more emotional than factual. Also, her attack on Mr McQuinlan’s integrity struck me as being an unwarranted attack, and I reject it. That was another blow to her credibility. In forming a concluded view on the ultimate issues, I must also have a belief in the evidence provided by the parties that it is of the weight necessary to meet the standard of proof prescribed. Because of the credibility of the witness at the hearing and the evidence as a whole, I was not able to come to the belief as specified in Briginshaw’s case (Briginshaw v Briginshaw (1938) 60 CLR 336 per Dixon J).
I therefore find that Ms Gawn was a member of a couple in respect of the period for which she was assessed for both aged pension and pension bonus.
The second aspect of this issue is Pension Bonus. Sections 93J(2) to (5) of the Act specifies the calculation of amount of pension bonus where a person is entitled to the single pension rate for part of the period and the partnered rate for part of the period.
Despite Ms Gawn’s expectation of an amount of pension bonus, only an amount authorised by law can be paid. The statutory provisions above set out what is authorised and this is explained in s 3.4.7.100 of the Guide to Social Security Law (T-document 4, folios 21-24).
The calculation of the prescribed formula is shown step by step in the ARO’s decision of 14 July 2011 and (see T-document 29, folios 156-158). I am satisfied that those calculations accord with the law authorised by s 93J of the Act. Ms Gawn therefore cannot succeed on this point.
ISSUE 2
The remaining issue is whether she would have been entitled to arrears of payment because of a greater than 13 week delay in seeking review. Section 109(1) of the Social Security (Administration) Act 1999 (Cth) means that if she had succeeded, she could not have been paid for any period prior to the effective date of her application for review. Nevertheless, that is of no assistance to the applicant in this case as she has been unsuccessful in respect of the primary issues for determination. I therefore find that she cannot succeed in respect of this issue.
DECISION
The decision of the original decision-maker, that Ms Gawn should be assessed as a member of a couple both for aged pension and pension bonus, is affirmed.
I certify that the preceding 47 (forty seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr K S Levy, RFD.
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Associate
Dated 16 March 2012
Date(s) of hearing 15 February 2012 Applicant In person Advocate for the Respondent Rick McQuinlan, departmental advocate
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