Patterson and Secretary, Department of Family and Community Servi Ces

[2003] AATA 1073

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 1073

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2002/1137

GENERAL ADMINISTRATIVE  DIVISION		)
Re		CASSANDRA ANN PATTERSON

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Deputy President Don Muller

Date12 September 2003

PlaceBrisbane

For the reasons given orally at the hearing, the Tribunal:

(1)  Sets aside that part of the decision of the Social Security Appeals Tribunal dated 26 November 2002 which decided that CASSANDRA ANN PATTERSON was living in a marriage-like relationship with Anthony Trembath between 6 November 1998 and 8 April 2002, and that, therefore she was overpaid Disability Support Pension, the Age Pension and Telephone Allowance totalling $42,544.66 during the said period;

(2)  In substitution decides that CASSANDRA ANN PATTERSON was not living in a marriage-like relationship with Anthony Trembath and that she was entitled to receive the Disability Support Pension, Age Pension and Telephone Allowance during the said period;

(3)  Further decides that from 19 October 1999 to 8 April 2002 CASSANDRA ANN PATTERSON was not entitled to receive Rent Assistance and that any Rent Assistance received by her was an overpayment which constitutes a debt to the Commonwealth;

(4)  Decides that the right of the Commonwealth to recover the said debt due to the overpayment of Rent Assistance is not to be waived or written off;

(5)  Remits the matter to the Respondent to calculate the debt owing to the Commonwealth.

...............(Signed)...............................

D.W. MULLER

DEPUTY PRESIDENT

CATCHWORDS

SOCIAL SECURITY – whether member of a couple

Social Security Act 1991: s4

REASONS FOR DECISION

Deputy President Don Muller       

1.      This is an application to review a decision to raise and recover an overpayment of $42,544.66 in relation to payments made to Cassandra Ann Patterson (“the Applicant”) by way of disability support pension from 6 November 1998 to 8 February 2001 and thereafter from 9 February 2001 until 8 April 2002 by way of aged pension.    The overpayment also included some telephone allowance and it also included some rent assistant.

2.      The basis for raising the overpayments was the determination that the Applicant was a “member of a couple” and therefore not entitled to Social Security Benefits at the rate at which she was paid.

3.      The Applicant was born on 9 August 1939 and is now 64 years of age.  She has had a troubled background which is documented in the section 37 statement.  The Tribunal is satisfied that the Applicant had a very troubled childhood and a very troubled adulthood.  She suffers from a serious psychiatric illness which has been diagnosed as chronic post traumatic stress disorder.  There is no doubt that she has some depressive features and serious anxiety problems.

4.      The Applicant has been the recipient of a disability support pension since 1997 but she last worked in about 1994.  The Applicant owned a one-bedroom unit in Adelaide from about 1989 through to relatively recent times.  She came to Brisbane in 1998 to give evidence to the Ford Inquiry, which was a Commission of Inquiry into the abuse of children in government institutions, she having been a victim of such abuse.  She had a good friend who came from Queensland who had a brother, Anthony.  The friend also had another sister.

5.      The applicant’s good friend died.  Anthony had been living with his other sister and it was decided that Anthony and the Applicant would share a flat or unit.  They paid rent on that unit and eventually decided to purchase the unit.  They purchased the unit on 19 October 1999.  They purchased the unit in joint names and they shared some expenses, but basically the Applicant kept her money to herself and Anthony kept his money to himself.  They supported themselves independently of each other.  Anthony was fully employed and still is, as far as the Tribunal is aware. He did not support the Applicant, although she was able to borrow his car now and again and they went to a movie or two or other social events together.  Anthony is 63 years of age.

6.      The Applicant and Anthony had a brief sexual relationship in about November 1998. 

7. The Tribunal has had regard to section 4 of the Social Security Act 1991 in relation to the matters to be considered to determine whether a person is a member of a couple or not.  Although the Applicant and Anthony did have joint ownership of real property and pooled resources from time to time, it is my view that in their circumstances, at their age, and taking into account the Applicant’s serious psychiatric illness, the relationship between them was more of a sharing of resources and a need for Anthony to fulfil an obligation to his late sister to provide comfort, support and security for the Applicant in her time of need.

8.      They had some bad neighbours in one of the units and decided to buy that unit so they could have some control over the tenants who rented the property.  That unit does not bring them any income.  The Applicant sold her unit in Adelaide and put the money from that towards the unit that she lives in and that is her contribution to the mortgage repayments.  The arrangement provides her with some degree of security and a roof over her head. 

9.      The Applicant and Anthony have separate bedrooms. Anthony appears to have a significant relationship with another woman.  The Applicant and Anthony have had a strained relationship since early 2002.

10.     The Tribunal is satisfied that the Applicant was not living in a marriage-like relationship with Anthony during the period under review.

11.     The Tribunal sets aside the decision under review. 

12.     The Applicant was not living in a marriage-like relationship, or living as a couple with Anthony so that there was no overpayment of age pension, disability support pension or telephone allowance. 

13.     There was an overpayment of rent assistance from 19 October 1999, that is the date on which the unit was purchased.  The Applicant was not entitled to rent assistance after she became the part owner of the unit.

14.     The matter is remitted to the respondent to calculate the overpayment of rent assistance and the debt owing to the Commonwealth.

15.     There are no circumstances sufficiently special to warrant a finding that the debt should be waived or written off.

I certify that the 15 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Don Muller

Signed:         .......................................................................................
           C. O’Donovan, Associate

Date/s of Hearing  12 September 2003       
Date of Decision  12 September 2003
Written reasons for decision     24 October 2003
Applicant   Ms. Patterson, herself
Respondent   Ms. Shea, departmental advocate