McKenzie and Anor and Secretary, Department of Family and Community Services

[2006] AATA 92

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 92

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          Nos T2005/113 and 114

GENERAL ADMINISTRATIVE  DIVISION		)
Re		DONALD McKENZIE and LORRAINE WARD

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Miss Mary Imlach (Senior Member)

Date 6 February 2006

PlaceHobart

Decision The decision under review is affirmed.

..............................................

Senior Member

CATCHWORDS

Age pension - member of a couple - marriage-like relationship.

Social Security Act 1991 - ss4(2)(a) and 4(3)

Re Staunton-Smith and Secretary, Department of Social Security (1991) 25 ALD 27

Re Peck and Secretary, Department of Social Security (1992) (AATA No. 8357)

Re Almond and Secretary, Department of Family and Community Services (2004) AATA 923

Re Gordon and Secretary, Department of Social Security (1985)

REASONS FOR DECISION

6 February 2006 Miss Mary Imlach (Senior Member)         

1.      Mr Donald McKenzie has been the recipient of an age pension since 21 March 1996.     Centrelink records reveal that Mrs Lorraine Ward has been the partner of Mr McKenzie since 1989.     In December 2004 and January 2005 Mr McKenzie and Mrs Ward queried the rate of their age pension.   Mr McKenzie claimed that Mrs Ward and he should be paid at the single rate and not on the basis that they were partners.    On 4 January 2005 a decision was made by Centrelink (“the decision”) to continue to pay Mr McKenzie and Mrs Ward their age pension on the basis that they were in a marriage-like relationship.   Mr McKenzie sought a review of the decision.    On 27 April 2005 Centrelink wrote to Mr McKenzie confirming the decision.    An Authorised Review Officer (ARO) affirmed the decision on 11 May 2005 on the basis that the information available to Centrelink revealed the relationship between Mr McKenzie and Mrs Ward was and continued to be marriage-like.   Mr McKenzie and Mrs Ward appealed the decision to this Tribunal on 30 August 2005.    Both matters were heard  concurrently.

Issues

2.      The issue to be determined is whether Mr McKenzie and Mrs Ward are members of a couple as that term is defined in the Social Security Act 1991 (“the Act”).

Applicable Legislation

3. The relevant legislation is contained in the Act.

4. Section 55 of the Act states how a person’s age pension rate is calculated. Section 1064A(2) states that where two people are members of a couple they will be treated as pooling their resources, assets and income. The basic single rate is higher than the partnered pension rate.

5.      Mr McKenzie claimed that as Mrs Ward is his carer and not his partner he should be paid at the single rate.

6. Section 4 of the Act defines when a person is considered to be a member of a couple. The factors which are to be taken into account are set out in s4(3) and include the nature of a person’s social, financial and sexual relationship, as well as the level of their commitment to each other.

7.      The applicants did not deny that for a period of 15 years they had both indicated to Centrelink that they were living in a de facto relationship.   They claimed that they now disputed this designation of their relationship because they were finding it increasingly difficult to manage financially on their combined income.

8.      Both Mr McKenzie and Mrs Ward gave evidence that there never had been a sexual relationship between them, although they had lived together for 15 years.   It was for this reason they did not consider their relationship to be “marriage-like” or “de facto”.  

9.      In cross-examination both Mr McKenzie and Mrs Ward admitted that they owned their home at 50 Adelaide Street, Georgetown, jointly, that they held a joint bank account into which Mr McKenzie’s superannuation was paid, that they shared all living expenses equally and that Mr McKenzie paid Mrs Ward $150.00 per fortnight for housekeeping.

10.     Mrs Ward said that she considered herself as single and that  Mr McKenzie was her friend and that as he needed looking after she was prepared to give him all the help he needed and she considered that she had a moral obligation to care for him.

11.     In turn Mr McKenzie admitted that what social life they had, was shared together and that Mrs Ward was the only one he could trust.

12.     Both applicants gave evidence that they had excluded all members of their family from their Wills and had appointed the other sole executor and beneficiary of each others Wills.   Mr McKenzie also confirmed that Mrs Ward was the beneficiary of his superannuation.

Respondent’s Submissions

13. The Secretary contended that the criteria relating to a relationship between two people as set out in s4(3) of the Act is the basis upon which the Secretary forms an opinion when determining whether a person is a “member of a couple”.

14.     The Secretary is to have regard to all the circumstances of the relationship including the financial, household, social, sexual aspects and nature of the commitment.

15. In support of this contention that the criteria set out in s4(3) are not exclusive nor is equal weight to be given to each criterion, the advocate for the Secretary referred the Tribunal to the decision in Staunton-Smith and Secretary, Department of Social Security (1991) 25 ALD 27 and Peck and Secretary, Department of Social Security (1992) (AATA No. 8357).

16.     The Secretary contended that the financial connections of the two applicants were very similar, if not the same as de facto or de jure couples in that they derived financial advantage from their relationship.

17.     Further, the Secretary contended that the nature of the household maintained by the applicants mirrored the arrangements of a de jure/or de facto couple in that they lived together, ate together and shared household duties.

18.     The social aspect of the applicants’ relationship was akin to a husband and wife as they lived together and were invited out as a “couple”.    They had admitted  to the Department since 22 September 1989 that they were having a de facto relationship.

19.     In relation to the applicants’ contention that because there is no sexual relationship there is no marriage-like relationship, the Secretary referred the Tribunal to the decision in Almond and Secretary, Department of Family and Community Services 2004) AATA 923 and Gordon and Secretary, Department of Social Security (1985) to support his contention that no admitted sexual relationship is not determinative.

20.     The Secretary claimed that the last criteria, the nature of the commitment of the parties to each other, had been established by the evidence given by the applicants that they have an ongoing and lasting commitment to each other, which extends far beyond mere friendship.

Consideration of Law and Findings

21. The relevant legislation is contained in s55 of the Act which states how a person’s pension rate is calculated. In the applicant’s case it refers to s1064(4) and in particular to s1064-A2 which states that where two people are members of a couple they will be treated as pooling their resources, assets and income. This affects the calculation of the applicant’s entitlement because the basis for single pension rate is higher than a partnered pension rate.

22.     The first applicant, Mr McKenzie has claimed that he should be paid at a single rate and not at the partnered rate because the second applicant, Mrs Ward is his carer and not his partner.

23.     Mr McKenzie and Mrs Ward although they have described themselves as living in a de facto relationship on several forms submitted to the Department over many years, now find that they are unable to cope financially on the partnered rate of pension and claim that because there is no sexual relationship between them they should not be treated as partnered under the Social Security laws.

24. In order to determine whether Mr McKenzie and Mrs Ward are to be considered as partnered or a member of a couple as defined in s4 of the Act, the Secretary must consider all the factors set out in subsection 4(3) of the Act which includes the nature of a person’s social, financial and sexual relationship and the level of commitment to the other person.

25. The main contention of the applicants has been that their relationship should not be viewed as marriage-like because they have never had a sexual relationship. The legislation makes it clear that the criteria set out in subsection 4(3) are not exclusive.

26.     The Tribunal follows the decision of this Tribunal in Peck and Secretary Department of Social Security (1992) where it was said:

“s4(3) does not contain an exhaustive list of criteria to be addressed when determining a “marriage-like relationship” exists … 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.”

27. The Tribunal accepts the evidence of the applicants that there never has been a sexual relationship, but on the evidence provided by the applicants themselves, the other criteria set out in s4(3) has been established.

(a)Mr McKenzie and Mrs Ward have lived together since 1989, they share the same house, eat together and share domestic tasks.

(b)They own the house in which they live jointly, have a joint bank account from which they share household expenses.

(c)Mr McKenzie and Mrs Ward stated that they considered each other as a friend and that good friends of the two know that they do not sleep together.   The written evidence submitted by the applicants from friends did not disclose on what basis their friends formed this opinion nor were any of those friends called to give evidence to the Tribunal.

(d)The fact that both Mr McKenzie and Mrs Ward demonstrated great care for the safety and welfare of the other.    This was substantiated by the fact that both have appointed the other as sole execution and beneficiary of each other’s Will.

(e)The evidence indicates that the relationship between Mr McKenzie and Mrs Ward has existed very successfully for 15 years, and they both disclosed  concern for each other’s welfare which is a lasting commitment.

28. The Tribunal concludes that having regard to all the aspects of the relationship between Mr McKenzie and Mrs Ward and on a proper assessment of all the circumstances the relationship is “marriage-like” within the meaning of s4(3) and that Mr McKenzie and Mrs Ward are members of a couple for the purpose of Social Security law.

Decision

29.     The decision under review is affirmed.

I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of Miss Mary Imlach (Senior Member)

Signed:  K L Miller (Administrative Assistant)

Date/s of Hearing  21 November 2005
Date of Decision  6 February 2006
Counsel for the Applicant         Mr J Crookes
Solicitor for the Applicant          Launceston Legal Community Service
Counsel for the Respondent     Mr B Sparkes
Solicitor for the Respondent     Centrelink Legal Services