O'Brien and Anor and Secretary, Department of Employment and Workplace Relations and Anor
[2007] AATA 1439
•18 June 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1439
ADMINISTRATIVE APPEALS TRIBUNAL )
) No D 200600018, D 200600019
GENERAL ADMINISTATIVE DIVISION ) Re THERESA O'BRIEN and GEOFFREY BENTLEY Applicants
And
SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS;
SECRETARY, DEPARTMENT OF FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondents
DECISION
Tribunal Deputy President P E Hack SC Date18 June 2007
PlaceBrisbane (Heard in Darwin)
Decision The Tribunal, in each application,
1. sets aside the decisions of the Social Security Appeals Tribunal;
2. substitutes a decision that the applicant was not a member of a couple at any time during the period 8 March 2004 to 22 September 2005.
............Signed.............
Deputy President
CATCHWORDS
SOCIAL SECURITY – rate of payment – whether applicants were living in a marriage-like relationship – consideration of matters listed in s4(3) Social Security Act 1991 – relationship one of mutual care and benefit – applicants not members of a couple during the relevant period – decisions of Social Security Appeals Tribunal set aside
Social Security Act 1991 – s 4(2), (3)
Guide to Social Security Law (4 June 2007) – paragraph 2.2.5.10
Pelka v Secretary, Department of Family and Community Services (2006) 151 FCR 546
REASONS FOR DECISION
18 June 2007 Deputy President P E Hack SC Introduction
1.These are applications to review decisions of the Secretary, Department of Employment and Workplace Relations (in the case of Mrs O’Brien) and the Secretary, Department of Families, Community Services and Indigenous Affairs (in the case of Mr Bentley), as varied by decisions of the Social Security Appeals Tribunal.
2.The major issue in each case is the same and it is whether, in the period from 8 March 2004 to 22 September 2005, Mrs O’Brien and Mr Bentley were living in what the Social Security Act 1991 describes as a marriage-like relationship. Because the issue is common to both cases the applications were heard together and evidence in each application was treated as evidence in the other.
Background
3.Mr Bentley was born in March 1940 and is presently aged 67 years. Up until 2002 when he suffered an incapacitating injury he had conducted a successful retail business in Alice Springs and Darwin. His immediate family live in Victoria.
4.Mrs O’Brien was born in June 1946. She is 60 years of age. She was divorced in 1998 and, as a consequence of the divorce, became the sole registered proprietor of a residential property in Crisp Street[1], Rapid Creek, a suburb of Darwin. Mrs O’Brien is in poor health and has been for some years. One of the consequences of her poor health is that she has reduced mobility.
[1] In some places in the material it is spelt “Chrisp”.
5.Mrs O’Brien and Mr Bentley first met in 1999 and they became friends. In 2000 Mr Bentley was living in Alice Springs. Mrs O’Brien was also in Alice Springs, visiting her daughter. Through a combination of circumstances Mrs O’Brien and her daughter needed a place to stay. Mr Bentley agreed that they could stay with him.
6.In March 2000 Centrelink received information concerning the relationship between Mr Bentley and Mrs O’Brien that generated an investigation by its officers. That investigation lead to an interview between Mrs O’Brien and a Centrelink officer in April 2000 in which, putting the matter as neutrally as possible, an allegation was put to Mrs O’Brien that she was then, and had been, living in a marriage-like relationship with Mr Bentley. The interview was, on Mrs O’Brien’s account, heated and unpleasant. It is neither possible nor necessary for me to make any findings about the interview.
7.Subsequently Mrs O’Brien returned to Darwin. Her friendship with Mr Bentley was maintained. In early 2002 Mr Bentley suffered a heart attack and, whilst in hospital, had a procedure that failed, leaving him incapacitated for work. He had been accustomed to staying in a hotel in Darwin but on his discharge from hospital could no longer afford to stay in such accommodation. Mrs O’Brien had a spare room at her Rapid Creek house and she volunteered to let him stay in a spare room at that house.
8.On or about 24 April 2002 Mrs O’Brien and Mr Bentley each applied for disability support pension. Each said on the claim form for that pension that they were in a de facto relationship with the other and had been from 15 December 2001. But before me, each said that that claim form was false in that particular, that they had not then been in such a relationship and had never been. The explanation, according to Mrs O’Brien, was that she described herself in this way, and told Mr Bentley to do so, as a consequence of the earlier unpleasant interview with the Centrelink officer in April 2000.
9.Centrelink acted in accordance with the information on the claim form and Mrs O’Brien and Mr Bentley received benefits, Newstart allowance in the case of Mr Bentley and disability support pension in Mrs O’Brien’s case, at the “member of a couple” rate from 20 April 2002.
10.In September 2003 Mr Bentley and Mrs O’Brien each completed Centrelink forms in which they declared that they were not in a de facto relationship. Centrelink did not accept that and the decision was the subject of proceedings in the Social Security Appeals Tribunal. That Tribunal determined on 9 September 2004 that Mr Bentley and Mrs O’Brien were in a marriage-like relationship. There was no appeal from that decision. Necessarily I am not concerned with the correctness of that decision and nothing that I say should be taken as reflecting upon the correctness of it.
11.In March 2004 Mr Bentley ceased sleeping at the Rapid Creek property except on an occasional basis. He moved some of his belongings to the property of friends at Ludmilla, another Darwin suburb, and generally slept there each evening. This decision was made following discussions with a Centrelink official who accepts that he “may have given Mr Bentley advice that if he was no longer living with Mrs O’Brien, that he may be considered single”. At this time Mr Bentley signed an application for carer allowance and carer payment as the carer for Mrs O’Brien. He was paid carer payment at the single rate from 26 March 2004 (which seems to be around the date he changed address) until July 2004. Then he received disability support pension, and later age pension, both at the single rate, until September 2005. On 4 August 2005 Mr Bentley ceased sleeping at the Ludmilla address and reverted to sleeping at Mrs O’Brien’s residence at Rapid Creek.
12.During the period from March 2004 to September 2005 Mrs O’Brien continued to receive disability support pension at the single rate.
13.Following Mr Bentley’s decision to resume living at Rapid Creek the living arrangements between him and Mrs O’Brien were assessed by Centrelink in September 2005. On 28 September 2005 Centrelink determined that Mr Bentley and Mrs O’Brien were members of a couple and had been from 4 August 2005 and that they should each be paid benefits at the married rate from that date.
14.On 7 October 2005 Centrelink determined to raise and recover a debt of $311.01 from Mrs O’Brien arising from an overpayment of disability support pension in the period between 4 August 2005 and 22 September 2005. Subsequently on 2 November 2005 a similar decision for a debt of $300.81 was made in relation to Mr Bentley’s age pension paid during that period.
15.Mrs O’Brien and Mr Bentley sought internal and external review of these decisions. The decisions were affirmed on internal review. Following a hearing, the Social Security Appeals Tribunal affirmed the decision to pay benefits at the married rate. The overpayment decisions were varied by that Tribunal adversely to Mrs O’Brien and Mr Bentley and it was determined that Mr Bentley and Mrs O’Brien had been in a marriage-like relationship in the period between 8 March 2004 and 4 August 2005, that is, the time during which Mr Bentley resided at Ludmilla. The matters were remitted to Centrelink for the purpose of assessing their entitlements to benefits at the married rate during this period and raising and recovering debts on that basis.
16.Mrs O’Brien and Mr Bentley now seek a review of these decisions in this Tribunal.
The statutory setting
17.The scheme of the Social Security Act is that a person who is a member of a couple receives benefits at a lesser rate to a person receiving benefits at a single rate. A person is member of a couple for the purposes of the Social Security Act in the circumstances set out in s 4(2) of that Act. Paragraph (a) of that sub-section is not relevant given that Mr Bentley and Mrs O’Brien are not, and have never been, lawfully married to one another. By virtue of paragraph (b) of the sub-section Mr Bentley and Mrs O’Brien will be regarded as being members of a couple if they have a relationship with each other, they are not legally married to each other, the relationship between them is, in the opinion of the Secretary (or the Tribunal on review) a marriage-like relationship, they are over the age of consent and are not within certain specified relationships.
18.For present purposes the only condition in issue is whether they are in a marriage-like relationship. Sub-section 4(3) of the Social Security Act requires me, in forming an opinion about the relationship between Mr Bentley and Mrs O’Brien,
“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 the 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; and
(iii)whether the people consider that the relationship is likely to continue indefinitely; and
(iv)whether the people see the relationship as a marriage-like relationship.”
19.The manner in which this task is to be undertaken has been authoritatively considered by French J in Pelka v Secretary, Department of Family and Community Services[2] where his Honour said:
[2] (2006) 151 FCR 546 at 555-6 at par [46]
“Having regard to the current provisions of s 4(3) and the approaches discussed in the earlier authorities mentioned, a decision-maker concerned with whether an unmarried person is in a marriage-like relationship with another person of the opposite sex:
1.Must have regard to their interpersonal relationship as a whole not limited by the factors listed in s 4(3).
2.Must have regard to each of:
(a) the financial aspects of the relationship;
(b) the nature of the household;
(c) the social aspects of the relationship;
(d) any sexual relationship between the people;
(e) the nature of the people’s commitment to each other.
3.In having regard to the preceding five matters, must have regard to all factors relevant to each and, in particular, must have regard to the factors listed under each heading in s 4(3).
4.Must specifically consider the total picture of the relationship created by all of these factors bearing in mind that consideration must be given to those which weigh against a marriage-like relationship and those that weigh in favour of it.
5.Must undertake the preceding consideration bearing in mind that a marriage-like relationship is not disclosed solely by any one of the following matters:
(a) financial cooperation;
(b) cohabitation;
(c) a sexual relationship;
(d) cooperative household arrangements;
(e) mutual commitment.”
Formation of the opinion
20.At the outset I should record that by and large I accept the evidence of Mr Bentley and Mrs O’Brien on matters of fact and detail regarding the relationship between them. Despite that, I observe that Mr Bentley in particular, and Mrs O’Brien to a much lesser extent, seemed intent upon using the witness box as a platform to rail against the injustice of the case advanced by Centrelink and the manner in which the matter has been dealt with by Centrelink over the years. But, once the hyperbole and histrionics are put to one side, a fairly clear picture of the relationship emerged from their evidence that enabled me to consider the overall nature of the relationship. There were aspects of their evidence where I had some reservations but I will deal with those aspects below when considering the evidence of their relationship.
21.Whilst the matter is not merely one of considering the matters listed in s 4(3) of the Social Security Act, it is useful to have regard to the evidence in the case by reference to the headings in that sub-section. I propose to first consider the position following Mr Bentley’s return in August 2005 before considering whether any different conclusion ought to be drawn during the period of his absence.
Financial aspects
22.Mrs O’Brien is the sole registered proprietor of the Rapid Creek property. Mr Bentley has no interest, whether legal or equitable, in the property. There is no other real estate and no other assets jointly owned by the parties nor are there any joint liabilities. On the evidence before me there are two instances of joint financial dealing.
23.The first involves a joint membership of a health insurance fund. In about October 2003 Mrs O’Brien had been a member of the fund for a number of years. Mr Bentley had no health insurance and no money to pay for health care but had significant health problems. According to Mrs O’Brien, she was told by her fund that having cover for both her and Mr Bentley would be cheaper than having cover just for herself. She “placed Geoff on [her] card”. For the next 2 to 3 years they had joint health insurance however each contributed half the cost of the insurance. Mr Hamilton, who appeared for the Secretaries, placed particular reliance upon the fact that the decision was made by Mrs O’Brien alone, that is, without reference to Mr Bentley.
24.It transpired that it was not cheaper to have joint membership; indeed it was disadvantageous because it increased the excess when a claim was made. Moreover, the fact of joint membership was relied upon by Centrelink’s authorised review officer in concluding that they were in a marriage-like relationship. In the result, about 12 months ago they each reverted to single membership of the health fund.
25.The other joint financial dealing concerned an aged motor vehicle. Mrs O’Brien’s evidence was that her property contained a number of palm trees that shed their leaves constantly such that she needed to pay a contractor on a regular basis to take garden rubbish to the tip. At that time she owned a motor vehicle and Mr Bentley did not. As a consequence, she was required to drive him frequently to medical appointments and other errands and wait for him to finish. She decided to purchase an old but cheap vehicle which would serve the dual purposes of providing transport to Mr Bentley and being a vehicle that Mr Bentley could use to remove her garden rubbish. She paid $1,200[3] to acquire this vehicle which was registered in the joint names of Mrs O’Brien and Mr Bentley to enable Mrs O’Brien to take advantage of a seniors’ discount on the registration fees.
[3] The evidence of Mr Bentley was that the purchase price was $1,000. I regard Mrs O’Brien as being a more reliable historian.
26.Again, it was said that after the fact of joint ownership was relied upon to affirm the original decision Mr Bentley agreed to purchase this vehicle from Mrs O’Brien at a price of $1,200 (or $1,500) with the purchase price being paid off at the rate of $20 per week. I have to say I found the evidence about this sale from both Mrs O’Brien and Mr Bentley to be entirely unconvincing. I think that the better view is that what was an informal arrangement has remained so but ultimately, given the amount involved, I do not regard the transactions regarding this vehicle as adding anything to an informed view about the nature of the relationship between Mr Bentley and Mrs O’Brien.
27.Prior to August 2005 Mr Bentley paid no rent or board to Mrs O’Brien. Once he returned to Rapid Creek in early August 2005 he commenced paying $65 per week to Mrs O’Brien which she used to defray the costs of upkeep on the house. I have no evidence of how this compares with commercial rates in Darwin but I accept, as was submitted by Mr Hamilton, that it is likely to be below a commercial rate.
28.Mr Hamilton suggested that there was significance, adverse to the applicants’ case, in the fact of this payment. His submission, stripped to its bare essentials, was that the payment of rent in this manner was “window-dressing”. I must say that I do not see it in the same light. There was no suggestion that the arrangement was a sham (using that term in its legal sense). At the time the arrangement was entered into Mr Bentley and Mrs O’Brien had had unfavourable experience with the attitude of Centrelink to their sharing a house without any payment by Mr Bentley to Mrs O’Brien. It seems to me to be perfectly logical to seek to put the relationship on to an apparently commercial, rather than personal, footing by agreeing to the payment of rent even if payment was being made at less than a commercial rate. A conclusion that a relationship is a marriage-like relationship would be more readily reached, in my view, where there is no payment by the guest to the owner. The existence of such a payment does not determine the matter, that determination must be made having regard to the statutory criteria, but the existence of an obligation to pay rent is a factor that tells against the existence of a marriage-like relationship.
29.The cost of utilities was shared between Mr Bentley and Mrs O’Brien although adjustments were made for individual usage. The telephone bill was dissected and paid according to individual usage. Groceries were generally purchased on an individual basis although one person might undertake all the grocery shopping at times when the other is unwell and they would frequently shop together. Petrol was purchased according to usage. Mrs O’Brien was solely responsible for the payment of rates, insurances and other property outgoings.
30.Neither Mr Bentley nor Mrs O’Brien are, or ever have been, beneficiaries under the other’s will. Mr Bentley says he has nothing to bequeath and Mrs O’Brien proposes to leave her estate to her children.
The nature of the household
31.There are no children in the household. Mr Bentley and Mrs O’Brien had separate bedrooms and Mr Bentley otherwise had access to the rest of the house. Once a week Mrs O’Brien had assistance from a Red Cross worker to undertake the housework. When both parties were in good health Mr Bentley tended to the garden and to the pool and tasks within the household were generally shared. There appears to be no set pattern other than that when one of the applicants is unwell (a frequent occurrence) the other would assume a greater burden of responsibility for domestic tasks.
The social aspects of the relationship
32.Subject to the question of the self description as being in a de facto relationship in the April 2002 claim forms there is no evidence that either Mr Bentley or Mrs O’Brien held themselves out as being married or in anything other than a relationship of friendship. I had evidence from a number of persons - Mr Vitone, Ms Williams, Ms Warnes and Mr Smith - who know them and speak of their observation of the relationship as being one of friendship.
33.Mr Bentley and Mrs O’Brien speak of the relationship as being one of friendship and mutual caring. The health of both of them is such that they obtain a mutual benefit from having the care of the other.
34.Each of Mr Bentley and Mrs O’Brien has friends with whom they socialise separately. Occasionally, and generally in connection with the activities of a carers’ support group to which they belong, they attend social functions together.
35.What remains to be considered under this head is the self description of the nature of the relationship as “de facto” in April 2002.
36.Mrs O’Brien explains the decision to so describe herself, and to suggest that Mr Bentley do likewise, on the basis of the earlier unpleasant interview with a Centrelink official. I do not find it necessary to reach any concluded view about what took place during that interview. It seems to me to be unlikely that, objectively viewed, the interview could have been as unsettling as Mrs O’Brien described. However my assessment of Mrs O’Brien, assisted to a limited extent by the psychologist’s description of her as having “a combined dependant and histrionic personality style”, leads me to conclude that Mrs O’Brien could view an interview that plainly involved allegations of wrongdoing[4] in the way that she did and to be as distressed as she said she was as a consequence of the interview.
[4] The interviewer administered a caution against self-incrimination.
37.It is, however, a somewhat different question whether the effect of the interview on Mrs O’Brien endured sufficiently for the next two years such that in April 2002 it led her to wrongly describe herself as being in a de facto relationship with Mr Bentley. But again it seems to me that a person with Mrs O’Brien’s somewhat dependant and vulnerable personality could persuade herself, wrongly, that it would be best to avoid trouble from Centrelink and describe herself as being in a de facto relationship. Mr Bentley, having at that time recently been released from hospital after a heart attack and a failed medical procedure, was hardly in a position to object to Mrs O’Brien’s proposal.
38.But ultimately, and if my view was too favourable to Mrs O’Brien, the description in April 2002 as being in a de facto relationship seems to me to carry little weight when the relationship in August 2005 and thereafter is in issue.
Sexual relationship
39.It seems to be common ground that Mrs O’Brien and Mr Bentley have never had a sexual relationship; indeed there is no suggestion of a physical relationship of any description.
The nature of the commitment
40.There is no doubt that Mr Bentley and Mrs O’Brien have a commitment to one another and that that commitment is long standing. It has changed over time. At the earliest time in the relationship it was one of pure friendship but as Mr Bentley was afflicted with poor health it has changed into more of a relationship of mutual care. I do not doubt that Mr Bentley and Mrs O’Brien provide emotional support for one another but equally they perceive their relationship to be one of care not one that is marriage-like.
41.It is, I think, of significance that neither considers the relationship as one likely to continue indefinitely. Indeed the perception of each of them is that the relationship will come to an end within a few months when Mr Bentley’s personal injury proceedings arising out of the failed medical procedure are concluded. When that occurs Mr Bentley plans to return to Victoria where his immediate family live. Mrs O’Brien would remain in the Northern Territory where her immediate family live. Mr Hamilton suggested in argument that these plans are unrealistic. That may be so but I am not required to reach any view on the reality of their expectations only what they consider to be the likely future of the term of the relationship.
Conclusion – August 2005 onwards
42.In my view, the evidence leads to the conclusion that the parties were not in a marriage-like relationship; rather the relationship was one of care. The matter is one where the Departmental Guide to Social Security Law[5] puts the matter rather well in these terms:
“For the purpose of the Social Security Act 1991 a marriage-like relationship exists if 2 people of the opposite sex, who are not close relatives, are considered to be living together as husband and wife. Indicators of a marriage-like relationship are set out in s 4(3) of the Act and the 5 factors listed in the Act are described below.
The definition above EXCLUDES a person who provides personal care and support to another person for payment or reward, on behalf of another person or a government, charitable or similar organisation.
It is Government policy to encourage people with a disability, or who are aged, to remain in their own home if support is available.
‘Care’ relationships exist which involves people of all ages. In cases where a person is sharing with another person of the opposite sex primarily for caring reasons and for companionship and there is little evidence of other factors present … the decision-maker should not form the opinion that a marriage-like relationship exists.”
[5] At paragraph 2.2.5.10
43.The present relationship perhaps takes the matter a step further in that each provides care to the other for mutual benefit. The arrangement is not strictly one where care is provided for payment or reward but for mutual benefit. But, as Example 2 in the Guide makes clear, the existence of payment or reward is not necessary for what is regarded as a care relationship. Indeed it is difficult to see how the present relationship differs markedly from that in Example 2. In the circumstances Example 2 warrants reproduction. It is in these terms:
“Example 2: Betty is a frail 70-year-old age pensioner who has severe arthritis and osteoporosis. She shares her public housing unit with an old family friend Fred, a 74-year-old age pensioner. Both Betty and Fred have been widowed and their adult children do not live in the local area. They provide each other with care and companionship. They have separate bedrooms, no jointly owned assets or income, have separate wills and have never had a sexual relationship with each other. They share all expenses 50:50. Fred is suffering from the early stages of dementia and Betty helps him manage his affairs and ensures that he takes his medication, showers daily etc. Fred is able to help assist Betty if she suffers a fall, and helps Betty by doing most of the housework, although Betty is still able to do the cooking. They go shopping together and go out socially to the local club to play bingo and have a drink with friends. Friends and family know that they are not a couple. They are not living in a marriage-like relationship as they are only providing each other with support and are caring friends to one another.”
44.Mr Hamilton placed reliance upon the fact that in at least two instances, the taking out of heath insurance for Mr Bentley and the decision to describe the relationship as a de facto relationship, Mrs O’Brien had made the decision without discussing the matters with Mr Bentley. But that does not detract from the conclusion I reach; rather it means that at the time of those decisions Mr Bentley was less able to make his own decisions and was more dependent upon the care provided by Mrs O’Brien.
45.Having regard to the circumstances of the relationship I am satisfied that Mr Bentley and Mrs O’Brien were not in a marriage-like relationship once Mr Bentley returned to the Rapid Creek property.
Conclusion – March 2004 to August 2005
46.Despite Mr Bentley notionally living under a separate roof during this period, in reality the relationship was little different to that that existed thereafter. He spent most of each day at the Rapid Creek property caring for Mrs O’Brien and returned to Ludmilla late in the day. Occasionally he stayed overnight at Rapid Creek, sleeping on the couch. Some of his clothes remained at Rapid Creek so that he could shower and change if necessary. But the relationship during this period was, in my view, not a marriage-like relationship, it was a care relationship.
Result
47.It follows that in each matter I would set aside the decision of the Social Security Appeals Tribunal and substitute in each matter a decision that the applicant was not a member of a couple at any time during the period 8 March 2004 to 22 September 2005.
48.I have not found it necessary to deal with the issue of waiver which is at least nominally relied upon by Mr Bentley. Were I to have reached a conclusion that Mr Bentley had been in a marriage-like relationship I would not have regarded his circumstances as being “special” in the sense used in s 1237AAD of the Social Security Act. In those circumstances I would not have regarded the matter as one where the discretion to waive an overpayment debt would have been exercised favourably to him.
I certify that the 48 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC
Signed: ...................Signed...............................................
Eleanor O’Gorman, AssociateDate of Hearing 30 May 2007
Date of Decision 18 June 2007Solicitor for the Applicant (D2006/18) Anthony D Buckland
Solicitors for the Applicant (D2006/19) Pipers Barristers and Solicitors
Solicitors for the Respondents Advocate, Centrelink Legal Services
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