Martin-Worland and Secretary, Department of Family and Community Services

[2004] AATA 801

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 801

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2003/424 and Q2003/941

GENERAL ADMINISTRATIVE DIVISION		)
Re		DAVID MARTIN-WORLAND

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Ms M J Carstairs, Member

Date7 July 2004

PlaceBrisbane

Decision The Tribunal affirms the decisions under review.  

...................[Sgd]...........................

M J Carstairs
  Member

CATCHWORDS

SOCIAL SECURITY – benefits and entitlements – disability support pension – whether applicant in a marriage-like relationship –  financial support and social interaction – some concealment of separation from family and friends – commitment and support – marriage like relationship – decision affirmed

SOCIAL SECURITY – benefits and entitlements – disability support pension – overpayment – partner’s income not correctly disclosed to department – overpayment properly raised – no administrative error – no special circumstances - no basis to waive Commonwealth’s right to recover overpayment – decision affirmed

Social Security Act 1991 ss 4, 1237A, 1237AAD

Re Peck and Secretary, Department of Social Security (AAT 8357, 2 November 1992)
Re Reid and Secretary, Department of Social Security (AAT 10463, 12 October 1995)
Re Stephenson and Secretary, Department of Social Security (1998) 3 SSR 69
In the Marriage of Pavey (1976) 10 ALR 259

WRITTEN REASONS FOR ORAL DECISION

23 July 2004 Ms M J Carstairs, Member            

1.      This is an application by David Martin Worland (the applicant) for review of two decisions made by the Social Security Appeals Tribunal (the SSAT).  Both SSAT decisions affirmed earlier decisions of delegates of the Secretary to the Department of Social Security (the respondent).  The effect of the first decision was that the applicant was a member of a couple for purposes of paying a rate of disability support pension under the legislation.  The second decision was that the applicant had been overpaid disability support pension for the period 23 February 2001 to 6 March 2003 (the relevant period).

2.      At the hearing the applicant was represented by Ms F Kennedy, solicitor, from Delaney and Delaney Solicitors.  The respondent was represented by its advocate Ms H Wallis-Dunn.

3.      The Tribunal had before it the documents lodged under s37 of the AAT Act as well as exhibits marked A1 for the applicant and R1– R2 for the respondent.

4.      On 7 July 2004, the Tribunal gave an oral decision in this matter, affirming the decisions under review.  On 14 July 2004, the applicant requested the Tribunal provide written reasons for its oral decision.  These are those reasons.

BACKGROUND

5.      The applicant is aged fifty eight. He married Denise Martin-Worland on 12 December 1994. He was seriously injured in a surfing accident during their honeymoon, but eventually was able to resume employment prior to accepting a redundancy from Australia Post about 1998. After a period when he received newstart allowance from Centrelink, the applicant has received disability support pension since February 2001. He suffers from osteoarthritis, heart disease, depression and gout.  Throughout, he has been paid at the married rate of disability support pension.

6.      The applicant and Ms Martin-Worland reside together, renting a house at Corinda from the Housing Commission. The house has special facilities for people with disabilities. They moved to the Corinda house in January 1999, having lived in rented accommodation at two other addresses in the course of their marriage (T2).

7.      A data match between the records of the Australian Taxation Office and those of Centrelink was carried out in June 2002 and revealed that Ms Martin-Worland’s income for the 2000/2001 financial year was $28,351.  Centrelink had recorded as her income, which was used to calculate the applicant’s rate of disability support pension, the amount of $12,560.60. As a result of this discrepancy, Centrelink raised a debt of $6,473.89 for the period 23 February 2001 to 6 March 2003.

8.      The applicant has disputed that he was a member of a couple and he considers that he should be assessed as a single person from the time that he and Ms Martin-Worland decided that their marriage was over in August 2000.  He sought review of this decision with the Tribunal on 20 May 2003 and the issue for the Tribunal in that application is whether he and Ms Martin-Worland remained members of a couple after August 2000.  The applicant, on 7 November 2003, also sought review of the Centrelink decision to raise as a debt, and recover, the overpayment of disability support pension that occurred because Centrelink was using an incorrect amount of earnings when calculating the applicant’s rate of disability support pension.  The issue for the Tribunal in that application is whether there is a debt and whether it should be recovered from the applicant.

EVIDENCE

9.      The applicant gave evidence that he and Ms Martin-Worland had been pressured to marry by her children and for religious reasons.  She has thee children by a previous marriage and he has two, with whom he has lost contact. The applicant and Ms Martin-Worland had been in a relationship for three years prior to their decision to marry in 1994.  The applicant said that there were problems in the marriage from the start, particularly from because of his back and his neck after the accident on their honeymoon.  On medical advice they refrained from sexual relations.

10.     The applicant said that Ms Martin-Worland was diagnosed with non-Hodgkin’s lymphoma in 2000 and had become terribly ill. He said that her deteriorating health also had affected their relationship.  He said that before she became ill they had enjoyed eating at restaurants and regularly mixed with a group with whom they played tennis.  She is now unable to play tennis and they no longer mix with that group.  He said he could not think who Ms Martin-Worland’s friends were now, and noted that she rarely sees her family.  He said in evidence that Ms Martin-Worland also rarely goes out, and obtains her enjoyment from her work (a matter confirmed by the evidence of Ms Martin-Worland). He said “we do not have a wide circle of friends”.  The applicant said that he told one friend that he was separated when the issue came up in casual conversation. 

11.     The applicant said that he and Ms Martin-Worland used to attend church together although they were of different religions; however he said that in about 1998 or 1999 she had returned to her own church.  He said that he rarely goes out except to shop or pick up the mail twice a week.  The applicant said that he and Ms Martin Worland had discussions in 2000, acknowledging that their relationship was more like that of brother and sister.  Divorce was discussed, but they did not want the expense.  He said that he advised Centrelink about their separation and had been told that the details had been entered on his computer record at Centrelink. The applicant said that he and Mr Martin-Worland have separate bank accounts but agreed under cross-examination that this had been so throughout the marriage.  He said that prior to their separation Ms Martin-Worland could use his account card at any time. 

12.     In regard to household goods, the applicant said that these mostly belonged to Ms Martin-Worland, though he had used his superannuation payment to pay for air-conditioning.  The applicant said that he contributes what money he can spare towards rent, but Ms Martin-Worland pays for most things and in return he does the housework.  He said that he prepares the evening meal, runs the kitchen and laundry.  He said that he cooks for both of them and that they sit down and eat together when they can, though he agreed that she prefers to eat earlier than his preferred meal time.  He said that if there is a documentary on television he would watch it with her in the evening. 

13.     The applicant likened their relationship to that of a middle-aged brother and sister and said that Ms Martin-Worland feels safe with him. He said that he is argumentative but he is not and prefers to disappear into their garden. He referred to the four gardening awards that they have won since moving to the house at Corinda: for Best New Garden, Best Small Garden, and Best Practical Garden.  He said that the garden was entered competitions in joint names.

14.     The applicant said, in regard to notices sent by Centrelink, that he could not recall reading them; did not dispute getting them as he received much paperwork at the time he claimed disability support pension; could not recall whether he read material on the reverse side of Centrelink letters but did not think that the term “combined income” used in Centrelink letters referred to Ms Martin-Worland’s income, rather to any additional finances he might have.   He said that he thought the pension was a set amount, affected only by his outside income.

15.     Ms Martin-Worland gave oral evidence that she cared deeply for her husband when they married and she said that the accident on their honeymoon brought them closer, as they only had each other.  She said that her own illness, diagnosed on 2 August 2000 after years of sickness, had a bad affect on her.  She said that she became aggressive and short-tempered and takes things out on the applicant.  She said that she does not understand why the applicant puts up with her behaviour. Ms Martin-Worland said that the applicant was devastated about her illness.  She said that the applicant irritates her, so she prefers to eat separately to avoid chatting.  She said also that she is intolerant of many foods and eats less meat than the applicant because of her cancer.  She said that the applicant cooks his food and she cooks hers.

16.     Ms Martin-Worland said that, apart from the tennis group, she and the applicant rarely went out before their separation as there was little money to do so.  She noted that they occasionally went to a restaurant or met old friends at a pub near where they used to live.  In regard to their interest in gardening she said that they do not garden together and do not need to consult each other on the garden as each knows what jobs are to be done.

17.     Ms Martin-Worland said that the applicant had a card linked to her bank account so that he could pay the bills but that she took the card back - she could not recall whether it was six months ago or longer - when she thought that there were discrepancies in the account. Ms Martin-Worland said that she pays the rent, telephone and electricity accounts, as the applicant does not have sufficient money.  She said they used to share the rent at other places where they have lived together, but that after the applicant ceased work she set up the rent payment as a direct deduction from her account.  His contribution, she said, is the household tasks, while she works full-time.  She said they rarely shop together though sometimes the applicant is at the supermarket on Saturdays as he knows her movements.  She said that they shopped together prior to separation.  However she said that she did not recall when that ceased, and she said that she could not recall when they separated, stating “I do not know how the date had been set”.  She said that ceased sharing a bedroom because  a symptom of her condition is night sweats, and that this was the reason she moved into the spare bedroom three years ago. 

18.     Ms Martin-Worland referred to the “magic” in their relationship being absent for many years. She said however that she takes comfort from knowing there is someone there to come home to.

19.     Ms Martin Worland said that the applicant reads and wanders around the house, while she watches television.  She said that they rarely sit in the lounge together.  She visits her parents and daughters alone and noted that the applicant has never been accepted by her eldest daughter.  She said that they do not holiday together. Her youngest daughter lived with them until she left home after having her own child and she said this daughter’s wedding  will take place later this year and she is involved with the preparations without the applicant being involved.  She said she has told women at her workplace that she is separated but has not told family members, noting that her parents are elderly and had difficulty coping with her illness without the additional worry.

20.     Ms Martin-Worland said that she has seen the applicant as her best friend but believes that she has destroyed the relationship because of her behaviour and she did not blame him for seeking a divorce. She said that she is unable to move elsewhere for financial reasons and prefers to stay as the house is well set up for her disability.  She said if the applicant left the house he would not be in a financial position to obtain something as suitable and that if something happens to her, he could continue to live there.

CONSIDERATION OF THE ISSUES

21.     The relevant sections of the Social Security Act 1991 (the Act) are:

“4(1)    In this Act, unless the contrary intention appears: …

‘member of a couple’ has the meaning given by subsections (2), (3), (3A), (6) and (6A);

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.”

22.     Ms Kennedy submitted, in addition to her Statement of Facts and Contentions, that there was real evidence of a breakdown in the relationship.  She referred to In the Marriage of Pavey (1976) 10 ALR 259 and said and while parts of the evidence pointed to issues related to Ms Martin-Worland’s illness, over all there was a pattern of breakdown in the relationship itself. She said that this was reflected in no longer attending church together, gardening separately, spending evenings separately, not relying on each other emotionally. She said the relationship was more like flatmates, one providing the rent and the other the household duties. She submitted that they do not consult each other on how to live, there is no financial intermingling, they do not socialise together, have no sexual relationship and the commitment was no more than each having a person available for an emergency. She referred the Tribunal to similar cases in Re Reid and Secretary, Department of Social Security (AAT 10463, 12 October 1995) and Re Stephenson and Secretary, Department of Social Security (1998) 3 SSR 69.  She noted in particular in Reid that it is not fatal that the parties have concealed the separation, and she submitted that there they had good reasons for doing so.

23. Ms Wallis-Dunn submitted that many factors identified for possible consideration in s4(3) simply did not arise, either before or after the date of separation. She submitted that as a married couple they did not pool finances though at one time they had access to each others cards. There were no shared assets. She said that both before and after the date of separation they had little sexual relationship. She noted that this would not be unusual in many relationships with middle-aged people. She noted that the relationship was simply the reverse of the traditional married role – in this case the female is the breadwinner and the applicant the homemaker. She referred to the day to day sharing of financial matters through the use of Ms Martin-Worland’s better resources to finance the rent and other outgoings. She noted the elements of social interaction at meals and within the house, and the absence of other supports in either person’s life. She noted that their social life had been limited for years. She noted that the applicant agreed that others would see them as a couple and that their failure to tell family members confirmed this. She submitted that many aspects of interaction and activity had been curtained by illness, noting in particular the evidence of Ms Martin-Worland that she had left the shared bedroom well before the date of separation. Ms Wallis-Dunn submitted that there was no fundamental breakdown in the relationship itself. She referred also to the length and stability of the relationship and that the evidence was that Ms Martin Worland was happy to have the applicant stay as long as he could put up with her.

24.     In reaching its decision the Tribunal takes into account the written material, the oral evidence and the submissions made at the hearing. In Re Peck and Secretary, Department of Social Security (AAT 8357, 2 November 1992), the Tribunal stated:

“The Tribunal would note at the outset that s.4(3) does not contain an exhaustive list of criteria to be addressed when determining whether a ‘marriage-like relationship’ exists (Re Staunton-Smith and Secretary, Department of Social Security (1990) 21 ALD 456) and the weight to be given to each factor will vary depending on the circumstances involved, with the object of identifying the presence or absence of the essential character of a marriage-like relationship. …”

25.     The Tribunal noted that there were some inconsistencies in the evidence of the applicant and Ms Martin-Worland on certain matters. The Tribunal preferred the evidence of the applicant in matters where there was inconsistency, as the applicant was honest and forthright in the giving of his evidence, whereas Ms Martin-Worland at times was reluctant to reveal details of their household and repeatedly acknowledged that her memory was not good.  The Tribunal preferred the applicant’s evidence about his involvement in the preparation of the meals and the likelihood that they eat together. 

26. In considering each of the factors contained in s4(3) of the Act the Tribunal takes into account that, despite the separation, the parties have continued to live together. The Tribunal noted that the applicant filed for divorce in March 2004 and the matter was heard in June 2004. This of itself does not affect how the relationship is to be determined in the relevant period.

27.     Financial Aspects: There has been no joint ownership of assets in real estate in this marriage.  The parties have shared rental premises and the evidence of Ms Martin-Worland was that rent was shared while the applicant worked, but this changed at their present address. This change occurred before the date that the applicant regards as the date of separation. The Tribunal considered that there is pooling of financial resources in the arrangement that they have whereby Ms Martin Worland shares her income with the applicant by paying the rent and outgoings and that this arrangement was in place before and after the named date of separation.  There is no intention that this arrangement will end.

28.     Nature of the Household:  The Tribunal was satisfied that there is a mutually agreed household arrangement, similar to a conventional marriage but with the roles reversed. There is significant interaction and the parties have worked out their household interaction even though it may have elements that each find unsatisfying.

29.     Social Aspects: There was little evidence that the parties have anyone much in their lives except each other. They would be taken as married by objective observers and by their family.  Their social activities are few, due to illness affecting both their lives.  They have a shared commitment to the garden.  The Tribunal took into account that the relationship has changed over the years and accepts that the gloss may have gone from it, however the Tribunal accepts the respondent’s submission that this is true for many marriages at the applicant and Ms Worland’s  stage of life and reflects the impact of disability on their lives.

30.     Sexual relationship: The evidence was that there is none and has not been for some time.  The Tribunal accepted the submission of Ms Wallis-Dunn that this is not a feature that necessarily precludes the continuing existence of a marriage-like relationship. 

31.     Nature of Commitment:   The factors which stands in the relationship the nature of the applicant’s and Ms Martin-Worland’s commitment to each other and their reliance on each other.  The Tribunal accepted the applicant’s evidence that he has an honest belief that that the marriage had broken down and that he was separated from Ms Martin-Worland from August 2000.  However this perception of the relationship on his part is outweighed by the evidence of the relationship’s overall continuity and the manner in which the applicant and Ms Martin-Worland look to each other and really to no-one else through difficult times. The Tribunal considers that with respect to whether the relationship is likely to continue indefinitely, sufficient regard must be given to the meaning of likely.  The relationship has been in place for over twelve years, neither party sees an end to their sharing the residence. Their major interest in the garden is a shared one and the Tribunal preferred the evidence of the applicant in coming to that conclusion. They have few other contacts. The Tribunal was satisfied that, in the relevant period and now, the relationship with Ms Martin-Worland is likely to continue indefinitely based as on their committed support they have shown towards each other.  The Tribunal does not accept that this relationship is akin to flatmates.

32. On the material presented, the Tribunal finds that the applicant was, in the relevant period, a member of a couple within the meaning of s4(2)(a) of the Act.

33.     The Tribunal finds that the applicant received payments of disability support pension in excess of his entitlement. The overpayments are a debt to the Commonwealth under s1223(1) of the Act (after 1 July  2001) and ss1223(1) and (5) of the Act (prior to 1 July 2001). The Tribunal notes that ss1223(1) and (5) are essentially no-fault provisions that allow for recovery in circumstances of this kind – that is, where a rate has been calculated without full regard to a level of earnings. The Tribunal was satisfied that whether or not the applicant read notices and regardless of what he thought “combined income” meant in those notices, he did not let Centrelink know that Ms Martin-Worland earned over $25,000 per year.  Had Centrelink known that was the level of income the applicant would not have been paid at the rate that he was.  These sections of the Act allow that error now to be corrected.

34.     The Commonwealth’s right to recover an overpayment of social security benefits can be waived in limited circumstances.  In this regard, he relevant sections of the Act are as follows:

“1237A(1)       Subject to subsection (1A), the Secretary must waive the right to recover the proportion of a debt that is attributable solely to an administrative error made by the Commonwealth if the debtor received in good faith the payment or payments that gave rise to that proportion of the debt.

1237A(1A)     Subsection (1) only applies if:

(a)the debt is not raised within a period of 6 weeks from the first payment that caused the debt; or

(b)if the debt arose because a person has complied with a notification obligation, the debt is not raised within a period of 6 weeks from the end of the notification period;

whichever is the later.

…

1237AAD       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 false representation; or

(ii)failing or omitting to comply with a provision of this 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.”

35. There are no grounds to write off the debt under s1236(1A) of the Act (this matter was not argued). With respect to waiver of the debt, the Tribunal finds that the debts were not attributable solely to an administrative error made by the Commonwealth, so the debt may not be waived under s1237A of the Act. In relation to s1237AAD of the Act, the debt must not result from the debtor or another person knowingly making a false statement or failing or omitting to comply with a provision of the Act. The Tribunal is satisfied that the applicant was an honest and forthright person and did not knowingly fail or omit to comply with the Act in not providing Ms Martin-Worland’s income. The Tribunal accepts that it was his belief that he was being assessed as separated after attending the Centrelink office to advise this in about September 2000.

36.     The Tribunal was satisfied that there are no special circumstances that make it desirable to waive the debt. The applicant receives ongoing Centrelink payments and whilst these are low in themselves (about $190 per fortnight, because of Ms Martin Worland’s income) these payments can form the basis of a recovery regime. Ten dollars per fortnight is being withheld from the applicant’s social security payments. The applicant told the Tribunal that the amount withheld leaves him short of funds. However his major outgoings are paid by Ms Martin-Worland and there does not appear to be a likelihood that this will end. The Tribunal took into account the significant health issues, but this is a factor for all who receive disability support pension and is not a matter that set the applicant apart from the usual run of cases. The Tribunal finds that the applicant does not satisfy s1237AAD(b) of the Act, so the debt should not be waived.

DECISION

37. For these reasons, the Tribunal finds that the applicant was, in the relevant period, legally married to Ms Martin-Worland and was not living separately and apart from her on a permanent basis. Therefore, the applicant was a member of a couple for the purposes of s4 of the Act.

38.     The Tribunal further finds that the applicant received social security benefits to which he was not entitled, and therefore the respondent’s decision to raise and recover an overpayment of benefits was properly made.  The Tribunal is satisfied that there is no basis for waiver and that the debt should be recovered.

39.     The Tribunal affirms the decisions under review.

I certify that the 39 preceding paragraphs are a true copy of the reasons for the decision herein of Ms M J Carstairs, Member

Signed:   S Oliver

Associate

Date of Hearing  6 July 2004
Date of Oral Decision                7 July 2004
Date of Written Reasons          23 July 2004
For the Applicant  Ms Kennedy, Delaney & Delaney
For the Respondent                  Ms Wallis-Dunn, Departmental Advocate