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

Noy and Secretary, Department of Social Services (Social services second review) [2019] AATA 4420 (30 April 2019)
Division:GENERAL DIVISION
File Number: 2019/0087
Re:Martin Noy
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:The Hon. Matthew Groom, Senior Member
Date:30 April 2019
Date of written reasons: 31 October 2019
Place:Melbourne

The decision under review is affirmed.
[sgd]........................................................................
The Hon. Matthew Groom, Senior Member
Catchwords
SOCIAL SECURITY – Member of a couple – has a child – no sexual relationship – no shared bed – separate laundry – separate meals – shared finances – joint mortgage – decision affirmed
PRACTICE AND PROCEDURE – request for written reasons – four months out of time – Federal Court of Australia appeal – written reasons granted
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Secondary Materials
Guide to the Social Security Law
REASONS FOR DECISION
The Hon. Matthew Groom, Senior Member
31 October 2019
INTRODUCTION

This application involves a review of a decision of the Administrative Appeals Tribunal Social Services and Child Support Division (AAT1) dated 16 November 2018. The AAT1 affirmed a decision of an authorised review officer (ARO) dated 18 September 2018 which in turn affirmed earlier decisions of the Department of Human Services (the Department) that the applicant’s claim for the age pension be rejected on the basis that:
(a)the applicant is a member of a couple; and
(b)he has not provided details of his partner’s income and assets necessary to enable the Department to make an assessment of any pension payable to him.
A hearing was conducted on 30 April 2019. The applicant was unrepresented. The respondent was represented by Ms Kellie Latta of Sparke Helmore Lawyers.
At the hearing the Tribunal delivered an oral decision affirming the decision under review.
On 27 September 2019 the Tribunal received a request from the applicant for written reasons in respect of its oral decision. The request for written reasons was approximately four months out of time pursuant to section 43(2A) of the Administrative Appeals Tribunal Act 1975.
The Tribunal understands that the applicant has lodged an appeal against the Tribunal’s decision in the Federal Court of Australia. Given those circumstances the Tribunal provides these written reasons in order to facilitate that appeal.
ISSUES
The issues for the Tribunal are:
(a)whether the applicant is a member of a couple for the purpose of section 4(2) of the Social Security Act 1991 (Act);
(b)whether a discretion should be exercised under section 24 of the Act to not treat the applicant as a member of a couple for the purpose of the Act; and
(c)having regard to the above, whether the applicant’s claim for the age pension should be rejected on the basis that he has not provided details of his partner’s income and assets necessary to enable an assessment of any pension payable to him.
BACKGROUND
The applicant lives with Ms Lynne Comben in New Gisborne and has done so for more than 10 years. Prior to that they had lived together since around 2003 at a house in Eaglehawk and before that at a house at Moonee Ponds.
The applicant and Ms Comben have a daughter together who currently lives with them at the property. The daughter is approximately 15 years of age.
The applicant and Ms Comben are not legally married. The applicant contends that while he was previously in a de facto relationship with Ms Comben dating back to around 2001, they have been separated since around 2009 and continue to live separately under one roof. The evidence before the Tribunal was that Ms Comben also maintains that she is now separated from the applicant although the Tribunal did not have the benefit of hearing from Ms Comben directly.
The applicant and Ms Comben have integrated financial relations including joint property ownership and joint bank accounts. The applicant did not dispute that details relating to Ms Comben’s income and assets were not provided to the Department for the purpose of assessing the amount of the age pension that may otherwise be payable to him.
RELEVANT LEGISLATION
In considering this matter the Tribunal has considered the relevant provisions of both the Act and also the Social Security (Administration) Act 1999 (Administration Act).
The Tribunal has also had regard to the Guide to the Social Security Law.
Under section 4(2)(b) of the Act a person is considered to be a member of a couple if the person has a relationship with another person but they are not legally married and, in the Secretary’s opinion, the relationship is a de facto relationship.
Under section 4(3) of the Act, in forming an opinion about the relationship between two people the Secretary is to have regard to all the circumstances of the relationship including in particular:
(a)the financial aspects of the relationship including:
(i)any joint ownership of real estate or other major assets and any joint liabilities;
(ii)any significant pooling of financial resources especially in relation to major financial commitments;
(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;
(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 or not the people hold themselves out as married to, or in a de facto relationship with, each other;
(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;
(ii)the nature of any companionship and emotional support that the people provide to each other;
(iii)whether the people consider that the relationship likely to continue indefinitely; and
(iv)whether the people see their relationship as a marriage-like relationship or a de facto relationship.
Section 4(6) of the Act states that a person is not a member of a couple if a determination under section 24 is in force in relation to the person. Section 24 provides that the Secretary may determine, in writing, that a person is not to be treated as a member of couple for the purpose of the Act if the Secretary is satisfied that a person should, for a special reason in the particular case, not be treated as a member of a couple.
Section 36 of the Administration Act provides that where a claim for a social security payment has been made such a claim must either be granted or rejected. Section 37 of the Administration Act provides that for a social security payment to be granted to a person the decision-maker must be satisfied that the person is qualified for the social security payment and that the social security payment is payable.
In order to determine any pension amount that may be payable the rate of the pension must be calculated in accordance with the rate calculator set out in section 1064 of the Act. That calculator provides that where two people are a member of couple for the purpose of the Act, they must be treated as pooling their income and assets and their maximum basic rate will be the rate relevant to a member of a couple.
CONSIDERATION
Having heard evidence from the applicant and having considered all of the materials before the Tribunal, as well as the written submissions of the parties, the Tribunal is satisfied that each of the conditions set out in section 4(2)(b) of the Act are met and therefore the applicant should be considered to be a member of a couple for the purposes of the Act.
The Tribunal acknowledges the existence of a number of indicia consistent with the applicant having separated from Ms Comben including, in particular, the absence of any form of sexual relationship. The Tribunal fully accepts that the applicant’s relationship with Ms Comben is not sexual and that his relationship with Ms Comben has become more distant over time. It accepts that the applicant feels a considerable pressure to contribute more financially to the family and feels that his irregular income has had a significant adverse impact on his relationship, not just with Ms Comben but also with his children and grandchildren. Other indicia that emerged from the evidence before the Tribunal that were consistent with separation include that:
(a)the applicant has not shared a bed with Ms Comben and has, for significant periods, slept in a separate room to Ms Comben since around 2009. The applicant told the Tribunal that he had for a brief period slept in a shed at the property. He also acknowledged that during a more recent period while one of his adult sons was residing at the property, he had shared a bedroom with Ms Comben although he stated that he had not slept in the same bed as Ms Comben. The applicant told the Tribunal that the last time he had shared a bedroom with Ms Comben was in around November 2018.
(b)the applicant generally does his own laundry and, for the most part, facilitates his own meals. The applicant told the Tribunal that Ms Comben generally assumes responsibility for facilitating meals for both herself and their daughter although he acknowledged that, occasionally he may make a meal which they then eat at a later time and also occasionally he may eat a meal prepared by Ms Comben. The applicant told the Tribunal that generally he does not eat a meal at the same time as Ms Comben and his daughter although occasionally he may. The applicant told the Tribunal that he generally shops separately from Ms Comben as their tastes in food differ although they share staples together and Ms Comben would usually shop for staples.
(c)The applicant had at one point sought advice in relation to a potential property settlement although he acknowledges that he has not pursued that course. The applicant told the Tribunal that he could not afford a property settlement. However he also told the Tribunal that he did not wish to pursue a property settlement as he wanted to maintain “a sense of family” for the benefit of his daughter.
(d)The applicant and Ms Comben engage in very limited social activities together although the applicant acknowledged that in any case he rarely sees people outside of his family other than people he knows through his greyhound activities. The applicant did acknowledge that occasionally he would attend family events with Ms Comben and also some school and sporting events involving their daughter. He told the Tribunal that he had very recently stopped attending his daughter’s sporting events, at least in a manner that was obvious to his daughter, but that this was driven by his daughter’s preference for him not to attend such events, not Ms Comben.
However, having considered all the circumstances of the case, and applying the criteria set out in the Act, the Tribunal is satisfied that the indicia consistent with the applicant being a member of a couple outweigh those against.
The indicia consistent with the applicant being a member of a couple include that:
(a)the applicant and Ms Comben jointly own property. The applicant told the Tribunal that he and Ms Comben jointly own their principal residence at New Gisborne. In addition, the applicant told the Tribunal that he had a beneficial interest in two investment properties that were held in Ms Comben’s name. The applicant told the Tribunal that the investment properties had been purchased together and that he had contributed significantly to building works and maintenance associated with the properties.
(b)the applicant told the Tribunal that one of the investment properties had been sold in 2018 and that Ms Comben had provided him with $5,000 of the sale proceeds although he told the Tribunal that he considered his true entitlement to the proceeds to be significantly greater. He also told the Tribunal that he was not certain where the balance of the proceeds had gone although he expected that it would have gone towards paying the down the remaining mortgages.
(c)the applicant and Ms Comben are both parties to the mortgage over the two remaining properties and have each contributed towards the mortgage. The applicant has indicated that he is constrained to some degree from contributing what he considers to be his share towards the mortgage because of his irregular income, however, he has told the Tribunal that he contributes cash where ever he can and also contributes in other ways including in ongoing maintenance of the properties. He told the Tribunal that he had previously been able to make significant contributions to the mortgages from proceeds from his greyhound activities however more recently that income had dried up and at present Ms Comben is covering the mortgage payments.
(d)there was a refinancing of the joint mortgage over the New Gisborne property in 2015 which is well after the applicant claims to have separated from Ms Comben.
(e)the applicant told the Tribunal that he was a joint named party to two bank accounts with Ms Comben being the two loan accounts for the New Gisborne and Eaglehawk properties. He acknowledges that the rent for the Eaglehawk property was paid into that loan account although he said that he was not aware of the details as Ms Comben “handles the finances”.
(f)there is a significant degree of pooling of resources in order to meet the day-to-day costs of the household. Again, the applicant indicated that his capacity has been more limited recently due to his irregular income, however, he contributes to the costs where he can. The applicant told the Tribunal that while Ms Comben usually pays the rates for the properties he had done so on occasion when he had available funds. He told the Tribunal that Ms Comben usually pays the water bill.
(g)the applicant and Ms Comben attend some family and social events together although, as stated above, joint social activities are limited.
(h)there is a significant degree of shared living arrangements including quite recently sharing a bedroom on occasion, although in separate beds. As stated above, the applicant’s evidence, which the Tribunal accepts, is that for the most part since 2009 they have lived in separate rooms. The applicant told the Tribunal that generally the applicant, Ms Comben and their daughter will spend time sharing the common areas of the house, in particular the lounge area where they would watch TV together. The applicant told the Tribunal that despite this, there is generally limited interaction between himself and his wife and daughter in the home.
(i)there is significant cooperation in the maintenance of the household including the sharing of certain household tasks. The applicant told the Tribunal that generally Ms Comben will undertake the less physical aspects of the house and garden maintenance and he will undertake the more physical aspects of such maintenance.
(j)there is a significant degree of cooperation in the raising of their daughter. The applicant told the Tribunal that as far as possible he and Ms Comben have attempted to maintain a sense of family life for their daughter’s benefit.
The Tribunal also notes the limited extent the applicant and Ms Comben have communicated their separation to others including the fact that the applicant has not actually told his daughter or a significant number of his immediate family. However, the Tribunal acknowledges that, notwithstanding the applicant conceding that he has not told his daughter of his separation from Ms Comben, he told the Tribunal that he is “reasonably sure” that his daughter is aware of what he claims to be his separation from Ms Comben.
The Tribunal also notes the fact that the applicant and Ms Comben have lived together for almost 20 years and this has included a significant period since the claimed separation. The applicant continues to have no specific plan to change this arrangement. The Tribunal acknowledges that the applicant has more recently given further consideration to more formally separating from Ms Comben however the Tribunal notes that in the evidence the applicant gave there was no specific plan to effect a more formal separation.
Having regard to all of the evidence before it, the Tribunal is satisfied that the applicant and Ms Comben are not living separately and apart nor are they living separately under one roof. While there are indicia that lean both ways, on balance, the Tribunal is satisfied that the applicant and Ms Comben continue to live together as a de facto couple although it is acknowledged that the relationship is not a close and intimate one.
The Tribunal has also had regard to whether or not the discretion under section 24 should be exercised to treat the applicant as not being a member of a couple for the purpose of the Act.
This discretion should only be exercised for a special reason in a particular case where the specific circumstances would make it unjust or unreasonable to treat the person as being a member of the couple for the purpose of the Act. In general the circumstances must be unusual, uncommon, abnormal, or exceptional. It is the context which generally determines whether the circumstances in one case are markedly different from the usual run of cases. This is not to say that the circumstances must be unique but they must have a particular quality that permits them to be described as special.
The Guide to Social Security Law references circumstances that limit the capacity of the applicant to pool resources with his partner or some other form of financial difficulty as a result of the individual or couple’s circumstances. The Tribunal accepts that it is a broad discretion which may require consideration of circumstances that go beyond mere financial concerns.
The Tribunal has considered all of the applicant’s circumstances and having done so is not satisfied that a special reason exists for the applicant to be treated as not being a member of couple that would justify the exercise of the discretion. In particular the Tribunal acknowledges the following:
(a)as described earlier in these reasons, the Tribunal is satisfied that there is a considerable pooling of the joint resources of the applicant and Ms Comben.
(b)while the applicant may have experienced some difficulty in accessing what he considers to be his proper entitlement to joint assets owned by himself and Ms Comben the Tribunal is not satisfied that the applicant has taken all reasonable steps that are available to him to access such assets.
(c)the applicant suffers from ongoing health issues including anxiety and depression as well as having difficulty with his back and knee. This has given rise to a need for medication and health services and has also limited his capacity to take up employment in order to supplement his income.
(d)the applicant is experiencing some difficulty in securing consistent income through his greyhound activities. While he was previously securing quite significant income through his greyhound activities, which involve breeding, training and racing, the Tribunal is satisfied that income from those activities is at best inconsistent and more recently has been very limited.
(e)the Tribunal acknowledges that the applicant has had difficulty in meeting some personal expenses including medical expenses or expenses associated with his vehicle repair and registration although the Tribunal is satisfied that his general day to day needs are being met through the pooling of resources with Ms Comben.
(f)the applicant feels some genuine pressure to contribute more financially to the family and is concerned about the impact his inability to contribute more significantly from a financial perspective is having on his relationship with his children as well as Ms Comben’s relationship with his children.

While the Tribunal, like the Department, has not had the benefit of information regarding the true position of the applicant and Ms Comben’s joint financial position, there is certainly evidence before the Tribunal of the existence of significant joint assets. There was also evidence that Ms Comben continues to be employed and receive a regular income and that from time to time the applicant has earned significant income from his greyhound activities although, again, the Tribunal accepts that more recently that has been very limited.
As stated earlier in these reasons, the Tribunal is satisfied that, on balance, the applicant continues to live as a member of a de facto couple with Ms Comben. While the Tribunal recognises that the applicant feels some considerable pressure to contribute more financially than he is presently able to and that he feels that he is entitled to a greater share of the joint assets owned by both himself and Ms Comben, the fact is that he continues to enjoy the benefit of a significant degree of resource pooling. In those circumstances it would not be appropriate to exercise a discretion under section 24 in favour of the applicant entitling him to be treated as being single for the purpose of an assessment of his entitlement to the age pension.
While some of the applicant’s circumstances are difficult and present a significant challenge for him personally the fact is he has chosen to maintain those circumstances of his own free will. The Tribunal is not satisfied that there is a substantive practical impediment which would prevent the applicant from securing his own financial independence should he wish to do so. The fact is the applicant chooses to maintain the status quo. In saying that, the Tribunal acknowledges that he does so for quite noble reasons including a desire to not engage in an acrimonious family breakup and to maintain a sense of a loving and supportive family environment for his daughter.
For these reasons, the Tribunal does not consider that a special reason exists to exercise the discretion under section 24.
As the applicant should be considered a member of a couple for the purpose of the Act, in the absence of the relevant financial information regarding his partner’s income and assets being provided to the Department it is not possible to calculate the amount of any pension payable to him and in those circumstances his claim must be rejected. Accordingly, the Tribunal is satisfied that the decision to refuse the applicant’s claim for the age pension was the correct or preferable decision.

DECISION

The decision under review is affirmed.

I certify that the preceding 34 (thirty -four) paragraphs are a true copy of the written reasons for the decision herein of The Hon. Matthew Groom, Senior Member

[sgd]........................................................................
Associate
Dated: 31 October 2019

Date of hearing: 30 April 2019

Applicant: In person

Advocate for the Respondent: Kellie Latta

Solicitors for the Respondent: Sparke Helmore Lawyers

[2019] AATA 4420

30 April 2019

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Date of hearing:	30 April 2019
Applicant:	In person
Advocate for the Respondent:	Kellie Latta
Solicitors for the Respondent:	Sparke Helmore Lawyers