Pisano and Secretary, Department of Families, Community Services and Indigenous Affairs

[2006] AATA 763

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 763

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S2006/100

GENERAL ADMINISTRATIVE DIVISION		)
Re		PASQUALE PISANO

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Senior Member L Hastwell

Date7 September 2006

PlaceAdelaide

Decision The Tribunal affirms the decision under review.

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

L HASTWELL
  (Senior Member)

CATCHWORDS

SOCIAL SECURITY – pensions, benefits and allowances – Age Pension – whether member of a couple – living separately and apart on a permanent or indefinite basis – living under the same roof – long marriage – change in relationship over a number of years – consideration of details of day-to-day living arrangements – nature of long term commitment to each other – decision affirmed

Social Security Act 1991 ss 4(1), 4(2), 4(3), 24

Re Rendall and Patrick and the Secretary, Department of Family and Community Services [2004] AATA 711
Re Secretary, Department of Family and Community Services and “VBH” and Another (2006) 89 ALD 293

REASONS FOR DECISION

7 September 2006   Senior Member L Hastwell  

1.      Mr Pisano (the applicant) has been married to his wife, Roma, for 50 years.  He was 71 years of age at the date of the hearing before the Tribunal.

2.      On 28 September 2005 he completed and lodged an “Assessment of Living Arrangements - Separated under one roof” form with Centrelink in which he asked to be treated as a single person for Social Security purposes. 

3.      A decision was made by Centrelink on 21 November 2005 to continue to treat the applicant as a member of a couple for Social Security purposes.  This decision was affirmed by an Authorised Review Officer (ARO) on 18 January 2006.  The applicant sought a review of that decision from the Social Security Appeals Tribunal (SSAT).  On 5 April 2006 the SSAT affirmed the decision under review.

4.      The applicant seeks of review of that decision.

relevant legislation

5. The relevant legislation is contained in ss 4(2)(a) and 4(3) of the Social Security Act 1991 (the Act) which provide as follows:

“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

…

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.”

Section 24 of the Act provides:

“24(1)  Where:

(a)      a person is legally married to another person; and

(b)the person is not living separately and apart from the other person on a permanent or indefinite basis; and

(c)the Secretary is satisfied that the person should, for a special reason in the particular case, not be treated as a member of a couple;

the Secretary may determine, in writing, that the person is not to be treated as a member of a couple for the purposes of this Act.

issues

6.      The issues to be determined in this case are:

·whether the applicant is living separately and apart from his wife on a permanent or indefinite basis; and if not

·whether there are special reasons in his case why he should not be treated as a member of a couple.

the hearing

7.      The applicant presented his own case and gave evidence on his own behalf.  Ms McIntyre represented the respondent (the Department).  The T documents and supplementary T documents were received into evidence.  Other exhibits were tendered and where relevant will be referred to.

8.      The applicant gave his evidence in a straightforward manner, although he was emotional at times.  He told the Tribunal that he has been married to his wife for 50 years and that they only recently celebrated their 50^th wedding anniversary.  They had a small party with their children.  They have three adult children, one of whom is disabled and lives at the Strathmont Centre.  Their other daughter resides next door to them in a house that the applicant and his wife gifted to their son and daughter some months ago.  This gifting in itself is having a considerable impact on the applicant’s Social Security entitlements because of the assets that he is deemed to still maintain. 

9.      The applicant has had poor health for several years.  He was receiving WorkCover payments for work related neck problems until his retirement at the age of 65 years.  His neck problems became considerably worse in the 1990s.  His evidence was that in 1996 he moved to a separate bedroom in the Millswood home which he has shared with his wife for many years.  In 2000 he was provided with an electrical bed that could be adjusted for his neck.  He was also provided with a special chair that he continues to use.

10.     He was diagnosed with type 2 diabetes in or around 1994 and thereafter he began to eat a special diet.  He now prepares his own food and he no longer eats the same sort of food as his wife.  This means that they have separate evening meals, although they often eat at the same time.

11.     In 1998 when his wife ceased her employment at Myers, she received a lump sum payment.  She insisted that it was her money and she has consistently refused to share those funds at all with the applicant, despite his entreaties that she does so.  She also earns some money from doing a few casual hours work per week for their daughter.  She also keeps these earnings separate and the applicant has no access to this money.

12.     The applicant’s evidence was that it was in the year 2000 that their joint account was closed.  He believed that they have not had any joint account since that time. 

13.     Until 6 months ago, he and his wife jointly owned both the adjoining property and the home in which they continue to reside.  They decided to transfer the adjacent house to two of their children.  This in itself has had an impact on their Social Security entitlements because they are still deemed to own part of that asset.  He is having difficulty managing financially and was angry at the fact that he continues to be treated as being a member of a couple for Social Security purposes. 

14.     He detailed the following additional information about his life and his relationship with his wife:

·He and his wife each pay half of all household accounts save that they pay for their own separate food they eat quite different food.

·He and his wife jointly own the property in which they reside.  It is unencumbered.

·They each have their own separate bank accounts.  He has tried to have discussions with his wife about sharing her money with him, but she refuses to share her earnings or her savings with him.

·He loves his wife and would never divorce her.  He said that they would always help each other and that she is still his wife.  Their friends see them as a married couple, as do their children, although the children are probably aware that they do not sleep in the same bedroom any more. 

·His wife does not drive, so he drives her to do her shopping each week and to appointments such as to the doctor.  Mrs Pisano has had bouts of ill health in recent years and he has also taken her to hospital on several occasions.  He would continue to care for her if she were ill.

·They have dinner with the daughter who resides next door on most Monday nights.  He and his wife celebrate other family occasions with their children.  He and his wife sometimes sit in the lounge and watch television in the evenings.  They do not always eat together in the evenings.

·He does his own cleaning of his particular areas in the home and in that regard he has his own bedroom and his own toilet.  There are two kitchens in the house and they each have their own kitchen space, but they share a fridge and pots and pans.  They each do their own washing and cooking.  The second kitchen and toilet were installed many years ago.

·They go out together around once a fortnight and present themselves socially as still being husband and wife.  They would never tell their children that they were separated as it would distress them.  Their children regularly visit them.

·The shift to a separate bedroom was triggered by the applicant’s medical condition and his need for a special bed.  The cessation of a sexual relationship occurred gradually over time and he is saddened by the loss of that aspect of his relationship.  He feels that his medical condition now precludes a sexual relationship in any event.

·He considers that they have a commitment to each other and would care for the other if required to do so.

·He has not changed his will and his wife remains his beneficiary.  He does not intend to change his will.

·He and his wife no longer holiday together.

·The applicant considers that their relationship is likely to continue indefinitely and he cannot contemplate life without his wife.  He said that they would never harm each other and that he still loves her.

15.     The applicant was shown a record of a conversation that he had with a Centrelink officer in which he discussed his relationship with his wife (T16).  He confirmed the contents of that document as representing an accurate account of that conversation.  That statement also contained references to the financial frustration that the applicant was suffering due to his wife not allowing him access to her savings.  In that statement he indicated that the separation had been for about 8 years and from the time that his wife received her lump sum payment and refused to share it with him.

16.     At T17 there is also a statement of a conversation a Centrelink officer had with the applicant’s wife.  Mrs Pisano was not called to give evidence, nor did she respond to a letter sent to her by the Department requesting that she give evidence.  The Tribunal had no reason to doubt the accuracy of the report of the conversation.  The contents were not challenged by the applicant.  Mrs Pisano’s statement confirmed most of the applicant’s evidence about the nature of their current relationship.

17.     In addition to confirming a great deal of the applicant’s evidence.  Mrs Pisano is reported to have said that even if the house next door were transferred into her name, she would continue to live in the current home with her husband.  She said that her will had not been changed.  She stated that she did share her income and the responsibility of the household accounts with the applicant, but not her earnings being the money she received for working for her daughter.

18.     She acknowledged that discussions about finances can become stressful between them.  She confirmed that they each buy their own groceries, toiletries and cleaning products separately and that her husband takes her shopping every Friday because she does not drive.  She said that most furniture and household items are shared.  She said that they socialise together when they see their children, however they have not been on a holiday together since 1998.  She goes to Melbourne twice a year with her daughter, but no longer holidays with the applicant.  In her mind she feels they have been separated around 3 years or longer because that is when they stopped having any sexual contact.  That is also when they started having meals on their own and leading more separate daily lives.  She dated the permanent move to a separate bedroom to have occurred at a later date than that put forward by the applicant.

19.     She confirmed she would not contemplate divorce for religious reasons and because of her family.  She also said that she and her husband would support each other and are happy to help each other if they are sick.  She did not see their living situation changing in the foreseeable future.

20.     The Tribunal notes that there was conflicting information before the Tribunal about the date of separation.

21.     A claim for Age Pension lodged on 18 January 2000 by the applicant stated that he was married to Mrs Pisano and was not separated. 

22.     A claim for Age Pension (T5/31) lodged by Mrs Pisano on 3 June 2002 declared that she was married and not separated and that form was also signed by the applicant saying that the information was correct (T5/36).

23.     In his application lodged on 28 September 2005 the applicant claimed that he had separated 8 years ago.

24.     In the statement in the T documents at T17 Mrs Pisano said that she thought the separation may have occurred around 3 years ago.

25.     An Activity of Daily Living Assessment was contained in Exhibit A2.  This document was prepared in 2000, some months after the applicant retired, and it was prepared in the context of his WorkCover claim.  It appears that at that stage he was still occasionally sharing the main bedroom with his wife and his wife was assisting him with a number of household tasks including his cleaning, laundry and shopping.

discussion of the evidence

26.     The applicant was a straightforward witness although at times confused or uncertain of dates.

27.     He is distressed at the situation he finds himself in.  He has poor health which largely confines him to home.  His wife has been ill recently, but on the whole has been more active in recent years.  Due to health problems, he and his wife have had to commence sleeping in separate bedrooms and for reasons that are not clear, his wife has insisted for a number of years that she retain her own earnings and savings separate and she is not willing to share funds with the applicant. 

28.     The applicant appeared uncertain as to when the separation occurred.  Nevertheless, he is elderly with significant health problems and the Tribunal takes that into account and was satisfied that there was no deliberate attempt to mislead the Tribunal with respect to separation dates by either the applicant or his wife.

findings of fact

29.     On the basis of all the evidence and exhibits provided, the Tribunal makes the following findings of fact:

·The applicant has been married for 50 years and neither he nor his wife have any intention of divorcing or moving to separate premises in the foreseeable future.

·The applicant and his wife have three adult children and a number of grandchildren, and they present themselves as a married couple to their children, grandchildren and to other third parties.

·The applicant and his wife commenced sleeping in separate rooms on a full-time basis after he was given a special electric bed by WorkCover in 2000.  Prior to that he slept on and off in a separate bedroom from the mid 1990s onwards because of his health condition.

·He and his wife have progressively lived more separate lives under the one roof while continuing to consider themselves as being married to each other.

·It is likely that their sexual relationship ceased altogether in 2001 or 2002.  Each party gives a different version of their recollection of when they last had intimate contact.  The applicant’s health problems are the main reason for the cessation of that aspect of their relationship.

·They had a joint account until recently, but it has not been actively used for some years and the final balance was transferred to the applicant in 2005.  The account no longer exists.  They have also kept separate bank accounts for some years, but contribute equally to all household accounts and other outgoings with respect to their property.  They each pay for their own food as they have different dietary requirements.

·Neither party has changed their will and each party stands to benefit from the other party’s estate.  They retain wills that were made many years ago.  Neither party intends to change their will.

·Mrs Pisano received a lump sum payment in 1998 when she ceased her employment.  She considers this to be her separate money and has refused to allow the applicant to have access to those funds. 

·The parties use separate toilets in the home.  This is a matter of convenience for both of them.  They also have two kitchens so they are able to cook in separate rooms.  They sometimes eat together and on a weekly basis they have a family dinner with their daughter and grandchildren.  They share some pots and pans and kitchen items.

·In 2000 Mrs Pisano made an application for Carer Payment with respect to her care of the applicant and at that stage she was still providing him with significant care.

·Mrs Pisano has been ill herself in recent years and so her ability to provide assistance to the applicant has reduced.  Their daughter, who resides next door, now provides assistance to both her parents.

·The applicant still drives and he takes his wife out once a week to do her shopping and at least fortnightly they go on an outing together.

·His wife has annual holidays with their daughter interstate, but no longer holidays with the applicant.  The applicant is to a degree housebound because of his ill health.  He is also concerned about the possibility of contracting an ailment while outside the home.  He has become more reclusive in recent years.

·The applicant does not intend to leave his wife and considers that they are married.  He loves her and each party would help the other in any sort of medical or health crisis.  During the recent period when Mrs Pisano had cancer and was required to go to hospital, it was the applicant who would take her to those appointments.  They would both continue to care for the other as required.

·The applicant and his wife made a joint financial decision to gift a major asset to their son and daughter 6 months ago.  This had an adverse affect on their pension entitlements because of the gifting rules.

submissions

30. The Department’s submission was that when the criteria set out under s 4(3) of the Act are considered the applicant and his wife are a member of a couple and are not a married couple who are separated within the meaning of s 4(1) of the Act.

31.     The Department pointed to the various joint aspects of their life, including their ownership of assets, and their joint gifting of a major asset to their children.  The Department argued that they show an ongoing significant commitment to the marriage and the changes in the relationship that have taken place have been driven by medical problems rather than anything else.  The Department submitted that while there have been changes in the relationship over 50 years due to the parties’ ages and medical conditions, there remained a strong sense of commitment between the applicant and his wife which demonstrated the real strength of their marriage. 

32.     The Department submits that the absence of a sexual relationship was not an issue as all other evidence indicated a level of commitment to a marital relationship.

consideration and application of the law

33.     The primary issue to determine in this case is whether the applicant is a member of a couple for Social Security purposes.  He is married to his wife and the Tribunal must determine whether he is living separately and apart from his wife on a permanent or indefinite basis in which case he would no longer be a member of a couple. 

34. Section 4(3) of the Act sets out five criteria to be considered in determining whether or not a person is residing in a marriage-like relationship. The Tribunal must consider these factors in determining whether the applicant is separated or not.

financial aspects of the relationship

35.     The parties continue to jointly own assets and made a joint decision to gift a joint asset to their son and daughter some months ago, which effectively precluded any possibility of them being able to afford to move to separate properties.  The decision was made in the context of what they perceived to be best for their family and involved the disposition of a very substantial asset.  The disposition has left both parties with lower pensions because of the gifting rules under the Social Security legislation.  They jointly acted to their detriment as they continue to see themselves as a couple who are working together to ensure the best possible outcome for their children. 

36.     The parties each maintain separate bank accounts, and have so for some years.  Mrs Pisano’s receipt of a lump sum upon her resignation in 1998 appears to have been a trigger to her insisting on maintaining a separate account.  They share all household expenses on an equal basis.  Mrs Pisano has determinedly kept her termination payment and her “earnings” from work with her daughter distinct from her income (her pension) from her husband.  He is distressed by this and considers this to be a major reason why they are now separated.  The Tribunal does not accept that this in itself is the basis for the finding of a separation.  It is not uncommon for married couples to maintain separate bank accounts.  The parties continue to maintain jointly their major asset.

nature of the household

37.     The parties occupy separate bedrooms and have done so for several years.  This is not uncommon in elderly people with health problems.  The applicant made it quite clear that this is not his preference and his health has forced this separation of bedrooms.  The house is set up in such a way that they are able to each have their own toilet and kitchen, but they share all other spaces save for their separate bedrooms.  They now each do their own cooking and cleaning.  Both receive assistance from their daughter.  There is no estrangement between them and if one party were to require assistance, the other is willing to give it in terms of the day-to-day running of the household.  They jointly entertain their children and grandchildren on a regular basis.  They shop together, albeit for separate food items and the applicant continues to assist his wife by driving her when she goes shopping or attends medical appointments.  They perceive themselves to still be a married couple.  There have been no discussions regarding property settlement, separation or divorce.  Neither anticipates any change in the current arrangement and neither has any contemplation of a life without the other.

social aspects of the relationship

38.     Friends and family do not see them as being a separated couple.  They have not told their children that they are separated.  Because of the applicant’s ill health and a fear of contracting illnesses, he has become more reclusive in recent years and he is less sociable.  His wife tends to socialise more than he does.  Nevertheless they still go out together socially on occasions.  They entertain their children regularly and share all special events with their children such as Christmas and recently their own 50^th wedding anniversary.  Neither party has established a relationship with anyone else.  Neither party would contemplate divorce in any event for religious reasons.  They continue to maintain the appearance of being married which they claim is for cultural and family reasons. 

sexual relationship

39.     The parties no longer have a sexual relationship because of their health problems.  That aspect of their relationship broke down around 3 years ago and neither party contemplates a resumption of that relationship.  The applicant is saddened at the loss of this aspect of his relationship with his wife. 

nature of the commitment

40.     The parties have a commitment to each other of companionship and support and intend to continue residing in their current property into the foreseeable future.  They do share information and communicate with each other and will help each other if there is a personal or family crisis.  They each remain the beneficiary under the other party’s will.  If one party were ill, the other party would assist and recently the applicant regularly drove his wife to medical appointments during a period of cancer treatment. 

41.     Neither party has sought legal advice about separation or divorce nor contemplates doing so.

conclusion

42.     Having regard to the provisions of ss 4(2)(b) and 4(3) of the Act, I am satisfied that the applicant continues to live in a marriage with his wife and that they are not living separately and apart under the one roof to the extent that they could be considered to be separated.

43.     A determination as to whether a couple are living separately and apart under the one roof can only be made after a consideration of all the evidence.  At common law the issue was whether the evidence established that the “consortium vitae” had broken down between the parties. Section 4(3) of the Act is an attempt to give guidance as to the criteria that should be considered in determining whether their “life together” has broken down.

44.     In this case the relationship has changed over a 50 year marriage.  Medical issues have largely driven the need for the applicant to relocate to a separate room in the home and the ability to share an intimate relationship has been significantly affected by each party’s medical condition.  Nevertheless, both parties continue to have a sense of long-term commitment to each other and each party remains a beneficiary under the others will.  The fact that they occupy separate bedrooms and that their sexual relationship has ceased is not in itself conclusive of the existence or otherwise of a marriage-like relationship. 

45.     The Tribunal refers to Re Rendall and Patrick and the Secretary, Department of Family and Community Services [2004] AATA 711 where the Tribunal made the following statement:

“As previously stated by the Tribunal in other references, an attempt to define a marriage-like relationship is fraught with difficulty.  This difficulty evolves from the need to compare a relationship with a very imprecise standard, namely marriage.  Notwithstanding that difficulty, the Tribunal is of the view that, generally, a marriage-like relationship will exist where a man and woman commit to an ongoing relationship which involves a sharing of their emotional feelings towards each other and also a sharing of their responsibilities and worldly possessions.  The task of the Tribunal is to have due regard to all of the circumstances of the relationship including those specified in subsection 4(3) which, in the opinion of the Tribunal, are linked to one or more of the types of commitments previously mentioned.  All of those matters must be taken into account and given weight as fundamental elements in the decision-making process.  It is the overall impression gained from this exercise that will be determinative.”

46.     The Tribunal notes that most recently Senior Member Handley had to consider this issue of a marriage-like relationship in the case of Re Secretary, Department of Family and Community Services and “VBH” and Another (2006) 89 ALD 293. He commented on the s 4(3) criteria in the following terms:

“94.     The s 4(3) criteria does have some subjective components but it is overwhelmingly objective in nature and in construct.  Additionally, the opinion formed about the relationship is not that of the parties to it, but the regard the Secretary is to have to its circumstances, including the criteria at (3).  The opinion formed will be based on the whole of the circumstances of the relationship, viewed objectively.”

47.     The Tribunal is of the opinion that objectively the applicant presents as continuing to live in a committed marriage with his wife, and even subjectively considers himself still married.  The applicant and his wife are not separated under the one roof such that they can be considered to be permanently or indefinitely separated.  Over time, aspects of their relationship may have changed, but this is not because of any desire to separate but largely for health reasons.  The fact that his wife keeps her savings to herself is her prerogative and certainly not an indication of a separation.  They have recently made a substantial joint financial decision and they continue to share all household expenses.

48. The Tribunal then went on to consider whether there were any special circumstances under s 24(1) of the Act whereby the Department could be satisfied that the applicant is not a member of a couple for the purposes of s 4 of the Act. To find if special circumstances exist the Tribunal must find that there is something out of the ordinary, unusual or exceptional in this case.

49. The Tribunal cannot see that there is anything unusual or exceptional in this case that puts it into a category where the Tribunal could exercise that discretion. The applicant is distressed that his income is not apparently sufficient to cover his outgoings and this has partly been caused by their joint decision to gift an asset, namely the adjoining property. His wife declines to share her excess income with him, and this also distresses him. That is not in itself something that would make this case special and warrant the exercise of the discretion in s 24(1) of the Act.

50.     In the circumstances the Tribunal affirms the decision under review.

I certify that the 50 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member L Hastwell

Signed:         .............J Coulthard ........................................
  Associate

Date of Hearing  18 August 2006
Date of Decision  7 September 2006
Applicant  In person
Solicitor for the Respondent    Ms J McIntyre (Sparke Helmore)