Lee and Secretary, Department of Social Services (Social services second review)

Lee and Secretary, Department of Social Services (Social services second review) [2020] AATA 3361 (1 September 2020)
Division:GENERAL DIVISION
File Number(s): 2019/7452
Re:Joanna Nging Thor Ly Lee
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Mr S Evans, Member
Date:1 September 2020
Place:Sydney

The decision under review, being the decision of the Social Services and Child Support Division made on 15 November 2017 is varied with the following determinations:
(a)Ms Lee was a member of a couple during the periods 30 March 2001 to 24 May 2001, 19 June 2002 to 30 June 2002 and 14 April 2005 to 6 May 2011 and the Applicant has the following NSA and DSP debts:
oNSA debt in the amount of $1,475.75 for the period 30 March 2001 to 24 May 2001
oNSA debt in the amount of $8,543.02 for the period 19 June 2001 to 30 June 2002
oDSP debt in the amount of $146,832.51 for the period 1 July 2002 to 6 May 2011

(b)These debts are to be recovered in full by the Respondent.

.........................[SGD]...............................................
Mr S Evans, Member
CATCHWORDS
SOCIAL SECURITY – debt – newstart allowance – disability support pension – whether applicant a member of a couple during the relevant period – credibility of the applicant – where applicant found to be a member of a couple – where the applicant enjoyed the economies of shared living costs – where debts correctly calculated – where no write-off or waiver of debt – decision varied
LEGISLATION
Social Security Act 1991 (Cth) ss 4, 1223, 1237A, 1237AAD
Social Security (Administration) Act 1999 (Cth) s 68
CASES
Boscolo v Secretary, Department of Social Security [1999] FCA 106
Boskoski and Secretary, Department of Social Services [2014] AATA 915
Cullinane and Secretary, Dept of Family and Community Services [2004] AATA 789
Day and Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 415
Pelka v Secretary, Department Family Community Services (2006) 151 FCR 546
Sperring and Secretary, Department of Employment and Workplace Relations [2007] AATA 1050
Staunton – Smith v Secretary, Department of Social Security (1991) 32 FCR 164
REASONS FOR DECISION
Mr S Evans, Member
1 September 2020
INTRODUCTION

The applicant, Ms Joanna Lee, received payments from Services Australia by way of newstart allowance (“NSA”) and disability support pension (“DSP”) at various times between 30 March 2001 and 6 May 2011. The payments were made at the single rate on the basis that Ms Lee was not a member of a couple during that time. Services Australia determined that Ms Lee was in fact a member of a couple and in receipt of income at various times and therefore owes a debt to the Commonwealth. Ms Lee does not agree and has sought review of the decision to raise a debt against her.
On 15 November 2017 the Social Services and Child Support Division (“AAT1”) of the Administrative Appeals Tribunal affirmed a decision that Ms Lee owed a debt to the Commonwealth in the sum of $146,832.51 arising from overpayment of benefits. The Tribunal also found that Ms Lee was liable to pay this amount to the Commonwealth.
Ms Lee has applied for review of the decision of the AAT1, which I will refer to as the “decision under review”.
BACKGROUND
Ms Lee was in receipt of NSA from 30 March 2001 to 24 May 2001 and 19 June 2001 to 30 June 2002 and in receipt of disability support pension from 1 July 2002 to 6 May 2011. I will refer to these times as the “relevant periods”.
On 19 May 2011 the Department of Social Services (“the Respondent” or “the Secretary”) determined that Ms Lee was a member of a couple with Mr MJ and that she subsequently owed a debt for the benefits she had received during the relevant periods. Specifically, it was calculated that Ms Lee owed:
·NSA debt in the amount of $1,475.75 for the period 30 March 2001 to 24 May 2001
·NSA debt in the amount of $8,543.02 for the period 19 June 2001 to 30 June 2002
·DSP debt in the amount of $146,832.51 for the period 1 July 2002 to 6 May 2011
Ms Lee sought review of the decision by an authorised review officer (“ARO”) on 20 July 2011. The ARO determined that Ms Lee was not a member of a couple prior to 14 April 2005 and the decision was varied accordingly. The ARO concluded that “[t]there is insufficient evidence to support a decision that you were a member of a couple with [Mr MJ] for the period 30 March 2001 to 13 April 2005”. The debt amount was recalculated in light of the ARO’s finding and the NSA debts were excluded. The debt amount of $146,832.51 remained, being the amount overpaid in DSP from 1 July 2002, as it was determined that Ms Lee’s income meant she was ineligible for the benefits she received in the relevant period during which she was not considered a member of a couple.
Review before the Tribunal
On 1 September 2017 Ms Lee applied to the AAT1 of the Tribunal for review. On 15 November 2017 the AAT1 affirmed the decision finding that Ms Lee lived with Mr MJ in a de-facto relationship since at least 14 April 2005.
Ms Lee sought review of the AAT1 decision on 28 November 2017 and the matter was heard in the General Division of this Tribunal, differently constituted, on 23 and 25 July 2018. During the hearing Ms Lee withdrew her application. The transcript from those proceedings is before the Tribunal and were accepted into evidence. I will refer to this as “the first hearing”.
Ms Lee subsequently sought to have her withdrawal revoked. On 3 September 2018 she filed an Application for Review of Decision form and on 24 September 2018 the application was dismissed. Ms Lee filed a further application for review on 19 February 2019 and this was dismissed on 1 March 2019. Ms Lee sought review of the decision to dismiss in the Federal Court stating that she withdrew her initial application in the General Division of the Tribunal “under duress”.
In summary, the Court determined that as Ms Lee had only made one application for review of the AAT1 decision (“the decision under review”), Ms Lee was permitted to have the matter heard in the General Division of this Tribunal.
The hearing
The matter was heard on 2 June 2020 and Ms Lee and the representative for the Secretary appeared via video conference in accordance with the COVID-19 Special Measures Practice Direction issued under section 18B of the Administrative Appeals Tribunal Act 1975 (Cth). Ms Lee was self-represented.
THE ISSUES
The issues to be determined are:
(c)whether Ms Lee a member of a couple with Mr MJ at any time during the relevant period;
(d)whether there was a special reason to treat Ms Lee as not being a member of a couple during the debt periods;
(e)whether Ms Lee was overpaid benefits during the relevant period and if she owes a debt to the Commonwealth; and if so
(f)whether the whole or part of the debt should be written off or waived.
RELEVANT LEGISLATION
Subsection 4(2) of the Social Security Act 1991 (Cth) (“the Act’) defines a “member of a couple” to include a de facto relationship. The term was inserted into the Act during the relevant period, but the substantive law was consistent for the purposes of Ms Lee’s application. Subsection 4(2) sets out when a person is considered to be a member of a couple:
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; or
(aa)both of the following conditions are met:
(i)a relationship between the person and another person (whether of the same sex or a different sex) is registered under a law of a State or Territory prescribed for the purposes of section 2E of the Acts Interpretation Act 1901 as a kind of relationship prescribed for the purposes of that section;
(ii)the person 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 another person, whether of the same sex or a different 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 de facto 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.
As Ms Lee and Mr MJ were not married during the relevant period, they can only be considered a member of a couple if they fulfil the criteria under paragraph 4(2)(b) of the Act.
Subsection 4(3) of the Act further provides:
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.
The application of this test has been discussed in numerous Tribunal and Federal Court decisions. In Cullinane and Secretary, Dept of Family and Community Services [2004] AATA 789, Senior Member McCabe (as he then was) provided the following useful analysis:
16.Application of the criteria will often be difficult because relationships come in many forms. Not all relationships are happy, and they do not always conform to the stereotypes of family life. And why should they? People must be free to structure their domestic arrangements as they please. But it is still necessary to attempt to characterise the relationship where the decision whether or not to take into account the other person’s income depends on whether they are members of a couple, or merely share a common address. The criteria offer common-sense indicators. One need not satisfy them all; indeed, one may satisfy few of them but still be considered to be a member of a couple if the decision-maker forms the view the applicant is in fact a member of a couple. The matters referred to in s 4(3) inform the exercise of the discretion, but they are not the end of the story.
When deciding whether or not a person is in a relationship, I must have regard to the interpersonal relationship as a whole, not limited by the factors listed in subsection 4(3). The decision-maker must specifically consider the “total picture of the relationship created by all of those factors”; Pelka v Secretary, Department Family Community Services (2006) 151 FCR 546.
Deputy President J W Constance said in Boskoski and Secretary, Department of Social Services [2014] AATA 915 at [63] that “In considering the various criteria set out in subsection 4(3) it is necessary to take an objective view of the facts. However the subjective views of the parties may be relevant in considering aspects of the relationship, such as the commitment of each party to the other”.
EVIDENCE
The evidence before the Tribunal comprised:
·The T-documents lodged by the Respondent in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (Cth).
·The Respondent’s Statement of Facts, Issues and Contentions which includes the transcript of proceedings at the first hearing.
·Exhibits tendered by Ms Lee including her letter to the Federal Court.
·The oral evidence of the applicant, Ms Lee.
Evidence of Ms Lee
Ms Lee contends that she and Mr MJ were flatmates. She said they were never in a relationship, she regrets lying to the bank, which I will come back to, and that she cannot afford to pay back the debt that has been raised against her.
She writes in her letter to the Federal Court dated 7 August 2019:
[Mr MJ] is not my partner as alleged by Centrelink, Department Social Services.
[Mr MJ] have been violences towards me for many years and I did nothing accept just ring DV Connect and asked for help and accommodation, so I therefore just put up with it and suffesr abuse…
… I have escaped to stairs, basement, sleep in the car so on when [Mr MJ] hits me. I suffered all these years because I have no accommodation of families who can take me in to stay. But not all times is violence, there is also peace and happy housemate times and we social out together with friends and [Mr MJ] have helped me with foods and accommodation when Centrelink stopped payment in 2011 and I exchange by working all hours (whatever needed done from house chores to driving, grocery shopping and so on)…
I am writing sincerely pleading for waived of my debts…
[errors and emphasis in original]
Ms Lee told me that, with brief exceptions, she had been living with Mr MJ since April 2000. She was taken to a Centrelink Rent Certificate[1] by the representative of the Respondent in which she was asked “do you live with other people” and Ms Lee wrote “yes” and identified Mr MJ as the person she lived with but wrote “No relationship” next to Mr MJ’s name. She signed the document on 16 August 2001. The Respondent’s records confirm that Ms Lee was residing at the same address as Mr MJ in Leichhardt as of 30 March 2001.
[1] Exhibit A at p 55.
Ms Lee’s evidence was that she and Mr MJ are no longer on speaking terms, with their friendship ending in September 2019. Ms Lee had gone to New Zealand in May that year to stay with her sister after Mr MJ asked her to leave. She returned to Brisbane in September to appear before the Federal Court regarding this matter. She stayed with Mr MJ for one night, and that was the last time they spoke. She told me:
For me, I left with good terms, and I guess I was emotional now, because I thought that we’d be able just to speak to each other and – and yes, as friends, because – and that’s what I thought friends do, we’re friends … forever, and yes – so that’s why I’m emotional and I leave it at that.
Asked if she thought Mr MJ’s expectation or understanding was that Ms Lee and he were in a romantic relationship, Ms Lee confirmed that was the case.[2] She also confirmed that Mr MJ had proposed marriage to her in Brisbane in around 2009, but she had refused.
[2] Transcript, 2 June 2020 at p 40.
The 2005 loan application
In 2005 Ms Lee and Mr MJ purchased a house together, as an investment property in Ryde (“the Ryde property”). Included in the T-documents are copies of loan applications and supporting materials which were presented to financial institutions by Ms Lee and Mr MJ who were seeking finance.
Steven Lee is Ms Lee’s brother, and owner of a company called Natural Green Pty Ltd (“Natural Green”). Before the Tribunal is a letter[3] from Natural Green which is signed by Steven Lee (Ly) and dated 10 April 2005. It reads in part:
We confirm Miss Joanna N T Lee have been employed with our company, Natural Green Pty Ltd, since November 1996 and currently.
Her gross salary is $95,500.00 per calendar year plus … superannuation.
[3] Exhibit A at p 265.
Ms Lee says that she was never employed by Natural Green and told me so at the hearing. This evidence is consistent with what she said at the first hearing.
Ms Lee submits that she drafted the letter stating that she worked for Natural Green, which she then had her brother sign, in order to gain approval for the loan. She said it was a lie, the wrong thing to do and that she now regrets it.
Ms Lee was taken to a St George Bank Finance Application (“the St George Application”) dated 14 April 2005. She noted that it was not her handwriting on the application form, but confirmed she had signed it. Ms Lee was asked about details in the application, specifically where it was stated[4] that Natural Green was her employer and noted her length of service as nine years. Her gross salary is listed as $95,500 with rental income of $16,380.00. Also listed are two savings accounts with balances of $169,985 (CBA) and $53,379 (WBC). She lists as her assets a property in Ermington (“the Ermington property”) valued at $620,000 and an existing mortgage with Citibank of $386,000[5] and a Toyota vehicle valued at $36,000.00.
[4] Exhibit A at p 301.
[5] Exhibit A at p 302.
Ms Lee told the Tribunal she was “shocked” that the St George Application listed her employment and period of employment as she was never employed by Mr Lee.
She was then taken to a Loan Application Form for ING bank[6] (“the ING Application”) also dated 14 April 2005. In the ING Application Mr MJ and Ms Lee are identified as the joint applicants, with Mr MJ “App 1” and Ms Lee “App 2”. They are both listed as living at the same address in Ryde. Mr MJ lists his current residential status as “paying mortgage” and Ms Lee marks “other” and it is written “living with partner (App1)”.
[6] Exhibit A at p 240.
The ING Application also lists Ms Lee’s employer as Natural Green, this time as an “Internet Marketing Manager”, a role she commenced on 5 November 1996. Her assets are listed as a CBA account with $169,900.00 and a WBC account with $53,100 and a Toyota Prado worth $3(?),000.00 and Telstra shares worth $7,000.00.
Attached to the ING loan application are supporting documents. These include:
·A CBA bank statement in Ms Lee’s name which ends on 25 February 2005 and shows a closing balance of $189,985.00
·A WBC bank statement in Ms Lee’s name which ends on 18 March 2005 and shows a closing balance of $53,370.31.[7]
·A PAYG payment summary for year ending 30 June 2003 confirming Ms Lee was paid $92,628.00 by Natural Green for that financial year.
·A PAYG summary for the year ending 30 June 2004 confirming Ms Lee was paid $94,826.00 by Natural Green for that financial year.
·A payslip for February 2005 confirming gross income from Natural Green of $7,957.25.
·A payslip for March 2005 confirming gross income from Natural Green Pty Ltd of $7,937.75.
[7] Exhibit A at p 260.

In evidence[8] is a form completed by Mr MJ’s employer dated 30 November 2010 in which it is confirmed that Ms Lee was “noted as partner” in 2008/09 at an address in Ryde which Ms Lee confirms she lived at. When questioned about this, Ms Lee told the Tribunal she could not explain it. Similarly, an application for residential tenancy completed for a property in Brisbane is included in evidence. Dated October 2008, in the application Mr MJ lists Joanna Lee as his “partner”.[9]
CONSIDERATION
[8] Exhibit A at p 198.
[9] Exhibit A at p 179.
Credibility
I am referred by the representative of the Respondent to the case of Day and Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 415 where the credibility of the applicant was considered. In Day the Tribunal identified various instances of dishonest behaviour on the part of the applicant which gave the Tribunal grave concerns about the honesty of the applicant. The Tribunal determined at [43]:
In these circumstances the Tribunal regards it as appropriate, in analysing the evidence before it for the purpose of forming an opinion about the nature and character of the relationship… generally to place greater reliance on the relevant objective or independent evidence when the applicant’s evidence is inconsistent with that evidence, and to accept the applicant’s evidence regarding material matters only where it is corroborated or supported by objective or independent evidence.
In light of Ms Lee’s evidence relating to the letter from Mr Lee regarding her employment at Natural Green, the Respondent submits that Ms Lee’s evidence should be carefully scrutinised and the Tribunal should be wary of accepting her evidence if it is not independently verifiable.
Ms Lee told me that the debt and the appeal process was causing her stress, which I accept. I note also that whilst she has a sound command of English, it is not her first language. I have also made allowance for the fact that following a back injury she developed an addiction to oxycontin for which she sought treatment in the early 2000s, though she could not say exactly when.
Even with these allowances, Ms Lee was a difficult witness. She claimed to have a very poor recollection of events to the extent she could not confirm the year her father passed. She told the Tribunal she had access to a vehicle during the relevant period but she did not know who it belonged to. Ms Lee could not recall when she ceased working for Natural Green, telling the Tribunal it was sometime between 1998 and 2009. I found Ms Lee was particularly opaque in her answers regarding her financial affairs, and unable to confirm the origin or existence of substantial deposits in her bank accounts amounting to over $220,000. Whilst she was provided an opportunity to do so, she did not account for the proceeds from the sale of the Ryde Property, other than to submit in a written document that she made a loss on account of maintenance costs and interest.
It is apparent to me that Ms Lee was not as forthcoming as she might be in providing evidence. For these reasons, I have chosen to prefer documentary evidence over the testimony of Ms Lee where there are discrepancies.
A: Was Ms Lee a member of a couple during the relevant period?
There is no dispute that Ms Lee meets the conditions set out in subparagraphs 4(2)(b)(i), (ii), (iv) and (v). The only question is whether I am of the opinion that Ms Lee’s relationship with Mr MJ was a de facto relationship as referred to in subparagraph 4(2)(b)(iii). My opinion is to be formed in accordance with subsection 4(3). Subsection 4(3A) does not apply in this case.
The representative of the Respondent referred me to a number of judgements of the Federal Court and decisions of this Tribunal which set out the applicable principles in determining this issue.
The Federal Court in Staunton – Smith v Secretary, Department of Social Security (1991) 32 FCR 164 stated:
20. It is not suggested that this list is exhaustive nor will each of these subjects fall to be considered in every case. It must also be emphasised that a particular answer to a single subject will rarely, if ever, supply a final solution. The responsibility of the fact-finding tribunal is to have regard to all the material facts of each case, treating the matters listed above only as indicators. The Tribunal will make its determination whether a particular man and woman are or are not living separately and apart only after assessing the totality of the evidence and other material that is before it.
The Tribunal in Sperring and Secretary, Department of Employment and Workplace Relations [2007] AATA 1050 stated:
…being a member of a couple involves a lot more than sharing a common address. However, all the criteria need not be satisfied. In fact, one may satisfy few of them but still be considered to be a member of a couple. All of the circumstances need to be considered. Each matter is different.
The Secretary contends that Ms Lee was a member of a couple with Mr MJ during the entire relevant period. Ms Lee contends that she was not a member of a couple. In order to determine if Ms Lee was a member of a couple during the relevant period the Tribunal is required to consider the circumstances of the relationship in accordance with the criteria in the Act and the principles outlined above.
Financial aspects of the relationship
Ms Lee wrote in her application to the Tribunal dated 28 November 2017 that she “has no financial connection” to Mr MJ. She writes that Mr MJ “issued [her] with a credit card as partner because this is the only way to get a second credit card”. She submits that she used the card to purchase food and groceries. She acknowledges that she used the credit card for her own personal use but says her lack of both funds and employment precluded her from obtaining a credit card in her own name. Ms Lee still owes a debt to Mr MJ and writes that she sought to repay the money she spent on the credit card whenever she was able.
Ms Lee acknowledged that she and Mr MJ had pooled their financial resources in a “Separation Details” form she submitted on 15 November 2018.[10] She writes that she and Mr MJ were sharing a property in Queensland and this will “save cost overall”. Where asked “Do you have a sexual relationship with the other person” she selected “NO” and writes “only by force, because he pays for everything now!!!”. She indicates that their sharing arrangement also helped “save on electricity cost of laundry powder”. She submits that the total rent for the apartment was $530 per week, of which her contribution was supposed to be $150 but she writes “I supposed to paid [sic] $150 but I have no money”. She writes that Mr MJ pays for everything for this reason.
[10] Exhibit A at p 501.
It is not in dispute that Ms Lee and Mr MJ purchased the Ryde property together on 17 June 2005 and the evidence shows that they made a joint loan application together.
Ms Lee confirmed at the first hearing[11] that she relocated from Sydney to Brisbane with Mr MJ in August 2010. She also told the Tribunal that Mr MJ “paid for my car, he paid for a lot of the food”. She told the Tribunal that she moved to Queensland with Mr MJ because she could not afford to live on her own.[12]
[11] Transcript, 23 July 2018 at p 23.
[12] Transcript, 23 July 2018 at p 30.
Overall, I find that the financial aspects of the relationship are indicative that Ms Lee and Mr MJ were members of a couple.
Nature of the household
The Secretary contends that Ms Lee and Mr MJ’s living arrangements are indicative of Ms Lee and Mr MJ being in a de facto relationship. Ms Lee told the first hearing that she would drive Mr MJ to work and that they prepared meals for each other. She would also prepare meals for them both using the food which Mr MJ paid for.
Ms Lee submits that she always had her own bedroom. Mr MJ’s children resided with Ms Lee and Mr MJ at various times, but there is no indication that Ms Lee was involved in their care in any way.
Having regard to the living arrangements and the nature of the household, I find that overall they suggest that Ms Lee and Mr MJ were members of a couple.
Social aspects of the relationship
Ms Lee confirmed that Mr MJ referred to her as his partner publicly and that she did not correct him. She testified that she and Mr MJ were “living in the same flat”[13] and when asked if she had a social relationship with Mr MJ or if they went out together she said “again because we live in the flat – the same flat”.
[13] Transcript, 2 June 2020 at p 20.
Ms Lee and Mr MJ travelled overseas together. Travel records provided by the Respondent indicate they both departed and returned to Australia on the following occasions:
·14 May 2001 – 21 May 2001
·25 July 2003 – 4 August 2003
·27 November 2004 – 5 December 2004
·13 October 2007 – 22 October 2007
·5 June 2008 – 11 June 2008
·8 August 2009 – 24 August 2009
·9 October 2010 – 5 November 2010
·22 December 2010 – 3 January 2011
Asked about the overseas trips that they took together, Ms Lee explained that sometimes her family paid for the trips and other times Mr MJ paid for them. She said that on occasions she had returned to Australia on her own. This may be the case but the evidence indicates that they travelled overseas together extensively. Ms Lee confirmed that her and Mr MJ would routinely share a room when travelling and that they had shared a cabin when they took a cruise together. She said that it was a necessity on her part because she could not afford to pay for a room for herself.
Ms Lee conceded that she went to parties with Mr MJ and his friends and colleagues but she told the Tribunal he did not meet her friends or family. However, in a letter to the Tribunal dated 28 November 2017 she confirms that Mr MJ attended her mother’s funeral with her to support her and because he knew her sisters and brothers.
Having regard for the social aspects of the relationship, I find that this consideration is indicative that Ms Lee was a member of a couple.
Sexual relationship
Ms Lee concedes that she and Mr MJ have had a sexual relationship. Mr MJ, who gave evidence at the first hearing, was asked if he and Ms Lee had an ongoing sexual relationship and he confirmed that they had “on limited occasions”.
In questioning, Ms Lee conceded that Mr MJ perceived them to be in a romantic relationship.
I find that their sexual relationship was indicative of Ms Lee and Mr MJ being members of a couple.
The nature of their commitment
An application for residential tenancy completed for a property in Brisbane is included in the T-documents. Dated October 2008, Mr MJ lists Ms Lee as his “partner”.[14]
[14] Exhibit A at p 179.
Ms Lee confirmed that she was living with Mr MJ and his children and they called her “auntie”. She said her and Mr MJ would take care of each other if they got sick. She would take him to the hospital if needed, but she would do that for anyone if they were in trouble.
She says that she moved to Queensland with Mr MJ because she couldn’t afford to live on her own in NSW. She said that she never told other people that he was her partner. Ms Lee was listed as Mr MJ’s next of kin and emergency contact person with his employer in 2009.
Ms Lee said that she would classify their relationship as flatmates and good friends who have known each other for a long time. It was only, she submits, Mr MJ who publicly referred to them as partners.
Ms Lee and Mr MJ lived together between 30 March 2001 and May 2019 when she went to New Zealand.
I am satisfied that the nature of their commitment is strongly indicative that Ms Lee was a member of a couple with Mr MJ.
Conclusion
Having regard to all the circumstance of the relationship, including the matters set out in subsection 4(3) of the Act, I have formed the opinion that Ms Lee and Mr MJ were in a marriage like relationship for the entire relevant period being 30 March 2001 to 6 May 2011. The factors which show Ms Lee and Mr MJ were members of a couple are:
·their joint ownership of real estate;
·their regular overseas travel together;
·Ms Lee receiving a credit card from Mr MJ which was used to purchase groceries and personal items;
·their pooling of financial resources;
·Mr MJ’s description of Ms Lee as his partner on his next of kin form at work;
·Ms Lee’s reference to Mr MJ as her partner on the ING application;
·their attendance together at social events;
·Mr MJ’s proposal of marriage of Ms Lee;
·their sexual relationship together;
·their living together from 2001 through to 2019;
·Ms Lee attending to domestic duties to support Mr MJ.
B: Was there was a special reason to treat Ms Lee as not being a member of a couple during the debt periods?
Section 24(1) of the Act confers a discretion on the Secretary to determine that a person who is legally married to another person is not to be treated as a “member of a couple” for section 4(2) purposes, if the Secretary is satisfied that some “special reason” exists in that particular case. The effect is that the person is treated as single, so that he or she can receive the higher rate of a pension or benefit and is unaffected by the income or assets of the partner.
The expression “special reason” should be interpreted in the context and consistent with the scope and purpose of the Act. The Explanatory Memorandum of the Social Security Legislation Amendment Bill (No 4) 1991 (Cth), relevantly provides:
… there is justification in paying a higher rate to an unpartnered person then to a member of a couple if both members of the couple are living together. This justification is based on the premise that the unpartnered person does not enjoy the economies of shared living costs as does the member of a couple in those circumstances. If the economies of scale are not available to the member of the couple because, for example, of the illness of one or both members of the couple, then each would face similar living costs as an unpartnered person.
In Ms Lee’s case there is ample evidence which strongly supports the conclusion that she enjoyed the economies of shared living costs during the relevant period. Consequently, there is nothing that would indicate that it would be unjust or unreasonable not to exercise the discretion afforded by subsection 24(1) in Ms Lee’s case.
C: Was Ms Lee overpaid benefits and does she owe a debt to the Commonwealth?
Section 1223 of the Act provides that when a person obtains the benefit of a payment that the person was not entitled to for any reason, the amount of overpayment is a debt due to the Commonwealth.
The Respondent submits that Ms Lee received payments in excess of her correct entitlement because either her partner’s income or her own income or assets was not taken into consideration during the relevant period and that consequently she owes a debt to the Commonwealth.
It is apparent that Ms Lee was working and in receipt of income during the relevant period. Based on the group certificates and payslips which are before the Tribunal, I am satisfied that Ms Lee was in receipt of income for the financial years 2002/03, 2003/04 and 2004/05. The details of these records indicate that Mr Lee’s letter stating that Ms Lee had been employed by Natural Green since November 1996 at a rate of $95,500 per annum was an accurate reflection of her income during the period for which records are available.
Though it is probable that Ms Lee was employed by Natural Green from 1996, there is insufficient evidence to determine with certainty Ms Lee’s income prior to the 2002/03 financial year as to do so would be based solely on the letter from Mr Lee which Ms Lee submits she drafted and was “a lie”.
In any event, I am satisfied that on the basis of Mr MJ’s income, Ms Lee’s income, her assets or a combination thereof, Ms Lee was ineligible for the benefits received during the relevant period.
Based on the calculations included in the T-documents at T45 – 46, I am satisfied that the amount of the overpayment received by Ms Lee in respect to each period is as follows:
·NSA debt in the amount of $1,475.75 for the period 30 March 2001 to 24 May 2001;
·NSA debt in the amount of $8,543.02 for the period 19 June 2001 to 30 June 2002;
·DSP debt in the amount of $146,832.51 for the period 1 July 2002 to 6 May 2011.
Ms Lee owes these amounts to the Commonwealth.
D: Is Ms Lee liable to pay the debt to the Commonwealth?
Section 1236 of the Act provides a debt may be written off in certain circumstances.
(1A) The Secretary may decide to write off a debt under subsection (1) if, and only if:
(a)the debt is irrecoverable at law; or
(b)the debtor has no capacity to repay the debt; or
(c)the debtor’s whereabouts are unknown after all reasonable efforts have been made to locate the debtor; or
(d)it is not cost effective for the Commonwealth to take action to recover the debt.
I am satisfied that Ms Lee’s debts cannot be written off under section 1236 as none of the preconditions set out in subsection 1236(1A) are satisfied. The debts are recoverable at law. Ms Lee is currently in receipt of NSA. Her whereabouts are known, and it is cost effective for the Commonwealth to recover the debt.
Section 1237A provides that a debt may be waived if the debt is solely attributable to administrative error. There is no evidence to suggest that any such error occurred.
Section 1237AAD provides the right to recover all or part of the debt may be waived in certain circumstances:
(1) 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.
Throughout the relevant period Ms Lee was sent notices in accordance with subsection 68(2) of the Social Security (Administration) Act 1999 (Cth) which required her to inform the Respondent of a change in her circumstances, including should she marry or commence living with someone like she was married.[15] She was also advised to notify the Respondent should her assets or income change. There is evidence before me that similar notifications, which also advised Ms Lee of her obligation to advise the Respondent should her circumstances change, were sent to Ms Lee throughout the relevant period.
[15] Exhibit A at p 1012-1013.
Ms Lee concedes that she received these notices. Despite purchasing and selling two investment properties during the relevant period, there is no evidence that she complied with the requirements to notify the Respondent of these transactions.
The Respondent contends that Ms Lee knowingly failed to comply with the information notices for financial gain. I am satisfied that Ms Lee was aware of her obligation to report her income, the nature of her relationship and the acquisition and disposal of real estate assets to the Agency and that her failure to do so was done knowingly.
Even if Ms Lee were eligible to have all or part of the debt waived under 1237AAD, for special circumstances to exist, they must be more than financial hardship alone. Ms Lee has not established financial hardship nor identified any other special circumstances which would demonstrate that her circumstances were “unusual, uncommon or exceptional”: Boscolo v Secretary, Department of Social Security [1999] FCA 106.

What evidence there is suggests that she is in a favourable financial situation compared to many others who are receiving NSA. Ms Lee has not provided full details of her financial circumstances but she told the Tribunal that she currently receives $1,085 per fortnight NSA, a figure which includes the temporary coronavirus supplement. She claims that she has no assets other than $1,100 in one bank account and $50 in another.
Ms Lee currently lives with her sisters in a house which is owned by their brother. She spends between $150 and $200 each fortnight on food which they share. She said she has some difficulties with one of her sisters, but none of this indicates that Ms Lee finds herself in a situation which would ordinarily qualify as a special circumstance.
Having determined that Ms Lee does not satisfy subparagraph 1237AAD(1)(a)(ii) of the Act, the discretionary power to waive the debts on the basis of special circumstances cannot be exercised. Further, I am not satisfied that there are any special circumstances that make it desirable to waive the debt.
DECISION
For the reasons stated above the decision under review, being the decision of the Social Services and Child Support Division made on 15 November 2017 is varied with the following determinations:
(a)Ms Lee was a member of a couple during the periods 30 March 2001 to 24 May 2001, 19 June 2002 to 30 June 2002 and 14 April 2005 to 6 May 2011 and the Applicant has the following NSA and DSP debts:
oNSA debt in the amount of $1,475.75 for the period 30 March 2001 to 24 May 2001
oNSA debt in the amount of $8,543.02 for the period 19 June 2001 to 30 June 2002
oDSP debt in the amount of $146,832.51 for the period 1 July 2002 to 6 May 2011
(b)These debts are to be recovered in full by the Respondent.

I certify that the preceding 88 (eighty -five) paragraphs are a true copy of the reasons for the decision herein of Mr S Evans, Member

.................................[SGD].......................................
Associate
Dated: 1 September 2020

Date(s) of hearing: 2 June 2020

Applicant: In person

Solicitors for the Respondent: J Forsyth, Mills Oakley Lawyers

[2020] AATA 3361

1 September 2020

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Natural Justice

Procedural Fairness

Standing

Statutory Construction

Date(s) of hearing:	2 June 2020
Applicant:	In person
Solicitors for the Respondent:	J Forsyth, Mills Oakley Lawyers