Price and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2008] AATA 516

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 516

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          2007/0881 &

GENERAL ADMINISTRATIVE  DIVISION		)          2008/0056
Re		JENINE PRICE

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES & INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Dr K S Levy, RFD, Senior Member

Date20 June 2008

PlaceBrisbane

Decision

The Tribunal sets aside the decision under review, and substitutes the decision that:

(1)   Ms Price was not a member of a couple for the period under review.

(2)  The matter is remitted to Centrelink to adjust Ms Price’s disability support pension record and refund any repayments of debt based on the original decision under review.

...............[Sgd]..........................

Senior Member

CATCHWORDS

SOCIAL SECURITY – Pensions, Benefits and Entitlements – disability support pension – overpayment of benefits – member of a couple – criteria for forming opinion about relationship – applicant not a member of a couple – friendship rather than marriage-like relationship – repayments of debt to be refunded – decision under review set aside.

Social Security Act 1991 ss4(2), 4(3), 24(1),

Re Lynne Janet Staunton-Smith v Secretary, Department of Family and Community Services [1991] FCA 513

Re Secretary, Department of Social Security and Marshall [1991] AATA 7079

Re Erdmann and Secretary, Department of Social Security [1996] AATA 10939

Pelka v Secretary, Department of Family and Community Services [2008] FCAFC 92

Holmes and Secretary, Department of Employment and Workplace Relations [2007] AATA 1502.

REASONS FOR DECISION

20 June 2008	Dr K S Levy, RFD, Senior Member
INTRODUCTION

1.      The applicant, Jenine Price, has been in periods of cohabitation with Mr Raymond Booth since 1987.  She has had approved Social Security benefits since 1996 and more recently, has been on a disability support pension.  For the period 12 October 2006 to 3 December 2006, she was living with Mr Booth.  Centrelink determined that she was living as a “member of a couple” for this period, however, as she had been paid at the single rate, she was overpaid $2,266.91 for that period. 

2.      The applicant appealed that decision to the Social Security Appeals Tribunal (SSAT).  At the first determination, the SSAT determined that the applicant was a member of a couple and affirmed the original decision.  That Tribunal heard the matter subsequently to also determine whether the debt raised was correct.  The debt determination was also affirmed.

3.Those decisions are the subject of appeal to this Tribunal.

ISSUES

4.The issues to be determined by the Tribunal are:

(1)         Are Ms Price and Mr Booth “a member of a couple”?;

and, if so -

(2)         Does the applicant owe a debt to the Commonwealth?;

(3)         If the answer to (2) is yes, then should the debt be recovered?;

(4)If the answer to (3) is yes, is there any justification for write off or waiver of the debt, or are there any “special circumstances” for write off of the debt.

LEGISLATION

5.      The issues involved in this case are governed by the Social Security Act 1991 (“the Act”). The statutory provisions dealing with issue (1) above is contained in s4(2) and 4(3) of the Act. These provide as follows –

“Member of a couple--general

s4(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

(b)       all of the following conditions are met:

(i)the person has a relationship with a person of the opposite sex (in this paragraph called the partner );

(ii)       the person is not legally married to the partner;

(iii)the relationship between the person and the partner is, in the Secretary's opinion (formed as mentioned in subsections (3) and (3A)), a marriage‑like relationship;

(iv)both the person and the partner are over the age of consent applicable in the State or Territory in which they live;

(v)the person and the partner are not within a prohibited relationship for the purposes of section 23B of the Marriage Act 1961 .

Note:a prohibited relationship for the purposes of section 23B of the Marriage Act 1961 is a relationship between a person and:

*          an ancestor of the person; or

*          a descendant of the person; or

*          a brother or sister of the person (whether of the whole blood or the part‑blood).

Member of a couple--criteria for forming opinion about relationship

s4(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 is as follows:

“Person may be treated as not being a member of a couple (subsection 4(2))

s24(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.

(2)       Where:

(a)a person has a relationship with a person of the opposite sex (the partner ); and

(b)       the person is not legally married to the partner; and

(c)the relationship between the person and the partner is a marriage‑like relationship; and

(d)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.”

6.      In relation to issues (2), (3) and (4) in paragraph 4 above if these require determination following consideration of issue (1), then s1237AAD will become relevant.

EVIDENCE

7.      The applicant and Mr Booth have lived together at various times since 1987.  For example, they were living together between 1987 and 1993.  There was then a period of separation but they were then cohabitating at least in 1995 when, in that year, there was a Temporary Protection Order granted by the Magistrates Court against Mr Booth and in favour of Ms Price.  That Order was made under the Domestic Violence (Family Protection) Act 1989 (Qld).

8.      In 1996, real property was registered in the name of both Ms Price and Mr Booth and in 2003, both the applicant and Mr Booth acquired an interest in property at Goodnight[1].

[1] T31, folio 68.

9.      The oral evidence was that Mr Booth had known Ms Price for a very long time.  Mr Booth stated that he had been advised by a Centrelink officer that the fact that they sometimes have shared a house together should not be regarded as affecting their entitlements from Centrelink.  He described Ms Price as having very unfortunate circumstances and at times, would have lived on the street had he not provided shelter.  He described his own background as being difficult and with no family to rely on and that he merely offered some support to Ms Price.  He had also, on occasions, offered respite for another woman who was being intimidated.

10.     The oral evidence mostly centred on the payments Ms Price had received from Centrelink but both Mr Booth and Ms Price stated that the majority of the debt was paid in one lump sum back payment.  However, it was contended by Ms Price and Mr Booth that while the amount might have been paid to the bank, it has never been credited to Ms Price’s account.  Both Ms Price and Mr Booth gave evidence that there had been other occasions when amounts had not been credited to her bank account and on one occasion following complaint to the Banking Ombudsman, a refund was made. 

11.     In relation to the present debt however, it was not in dispute that, despite a conference previously to resolve the matter, it was not until the morning of the hearing that Centrelink were able to provide to the applicant the date of the payment and the listing showing payments made, and in particular, the date of the lump sum back payment which forms the majority of the present debt.

12.     There was a description of a number of unfortunate events where Ms Price had been unlawfully harassed.  She was at the time of the hearing, attending lengthy proceedings before the Anti-Discrimination Commission.  At one stage, in the course of discussing that evidence, Ms Price was visibly upset and broke down.  She was highly emotional on another occasion during the hearing when Mr Booth advised the Tribunal that Ms Price had been sexually assaulted and has been very seriously affected emotionally as a result.

13.     There was evidence that all of these circumstances exist in the context of other mental health conditions which Ms Price suffers from.  From her evidence which was uncontradicted, she has a number of co-morbid mood disorders as well as at least one diagnosed phobia.  She described Mr Booth now as her “best mate” as he has given her money when she otherwise would have been homeless.  This relationship has been in existence for some time when she had responsibility for her daughter.  Certainly, Mr Booth told the Tribunal that Ms Price’s daughter had at least at some time in the past, had some difficulty with her mother and was only prepared to live with her if Mr Booth was also present.

14.     In describing the relationship which Ms Price and Mr Booth have, Ms Price admitted that there had been a sexual relationship on some occasions in the past but that Mr Booth tended to care for her and be there to drive her to the doctor or shops when necessary.  She explained that her conditions are such that she cannot cross a road by herself.  On some occasions, she stays a few nights with him as her present living arrangements are crowded, and when she finds it difficult to cope there.

15.     Mr Flintoft, for the respondent, submitted that there were financial and social arrangements which indicated that they were a member of a couple.  Also, he referred to a sexual relationship and their commitment to each other pointing to the fact that Ms Price was a member of a couple with Mr Booth.  Ms Price, and again supported by Mr Booth, gave evidence which they denied that this was the case.  Ms Price described her feelings for Mr Booth and the support that she gets from him in terms of friendship, but were not feelings of a married-like relationship. 

CONSIDERATION

16.     I have considered all of the statutory and case law relevant to determining the present matter in arriving at a determination of the issues.

17. The legislation shows that in s4(2)(b) that where a couple are not legally married, they can still be “a member of a couple” where the applicant has a relationship with somebody of the opposite sex; is not legally married to that person; is living in a marriage-like relationship; and where both parties are over the age of consent. Ms Booth appears to clearly satisfy all of those conditions, subject to there being a “relationship” envisaged by s4(2)(b)(i). In order to determine whether there is such a “relationship”, this is defined in s4(3) and requires a consideration of the financial aspects of the relationship, the nature of the household in which the parties live, the social aspects of their relationship, any sexual relationship and the nature of the couple’s commitment to each other (s4(3)). In assessing each of these requirements, the Tribunal is obliged to consider the weight of the evidence, any issues of credibility about any of the witnesses and then weigh all of the circumstances against the legislative factors as a whole[2].

[2] Staunton-Smith v Secretary, Department of Family and Community Services [1991] FCA 513.

18.     In relation to the financial aspects of the relationship, it is apparent that over a long period of time, Ms Price and Mr Booth have become joint owners of real estate.  However, of more recent times, it was suggested that the interest acquired by Ms Price was in fact gifted to her by Mr Booth rather than her paying any money.  The Tribunal was told that Mr Booth’s background shows that he now has three sisters who are alive but they do not get on well and that Mr Booth had decided that he wished to make Ms Price the beneficiary of his property in the event of his demise. There are no other legal obligations owed by either of the parties in respect of the other and there was no evidence presented that there is a sharing of household expenses.

19.     In relation to the nature of the household, apart from the arrangements where they had both lived in the same house for a number of periods over the past almost 20 years, these are not the only factors to be taken into consideration.

20.     In relation to the social aspects of the relationship, Ms Price stated that there were no aspects which one could regard as the normal social activities of two people who were partners or married.  Ms Price said that they did not have any social activities together, they did not go to dinner nor did they go out in public together.  Ms Price also described a sexual relationship some years ago and said that sexual activity did occur “once in a blue moon” however, due to an unfortunate incident in which she was involved about three years ago (which does not involve Mr Booth) she said she has not had physical contact with Mr Booth for some time.  Where there is no permanent relationship involving love and merely satisfying physical needs (sexual or other), then that might not be sufficient to show that two people are “a member of a couple”[3].

[3] Re Secretary, Department of Social Security and Marshall [1991] AATA 7079.

21. One of the main factors overall is, what is the nature of the commitment of the parties to each other? Of course, the Tribunal is obliged to determine which of the evidence has veracity and if so, the weight that should be accorded to it [4].

[4] Re Erdmann and Secretary, Department of Social Security [1996] AATA 10939.

22. This factor requires consideration of s4(3)(e) of the Act. That sub-section requires a consideration of the following:

(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.

23.     In Pelka v Secretary, Department of Family and Community Services[5] it was held that in determining the issues in terms of Section 4(3), the Tribunal may look at a comparative approach to the relationship between Ms Price and Mr Booth, in terms of whether they would have more support for each other than for any other friend.

[5] [2008] FCAFC 92.

24.     I accept as a fact, that there has been a cohabitation between them, at least in years gone by, and it is not possible to determine whether in the past they have been a “member of a couple”.  That is because there was a need and a desire for affiliation between the two.  There are usually two main elements of any marriage-like relationship between parties, that is, a passionate love (or a highly emotional and absorbing love) and a compassionate love (which requires a deeper sound passionate love) and a commitment to support each other in any time of need.

25.     It appears that there is certainly an attachment between Ms Price and Mr Booth.  The attachment seems to be one of a long-standing friendship.  But given the level of dysfunction in the ordinary life activities of Ms Price, I have accepted her and Mr Booth as witnesses of truth and that there is some bond between them. Based on his own previous life, Mr Booth has some degree of motivation and, it seems, a strong commitment to helping Ms Price, but I find that it was not in the sense of a normal enduring and loving relationship which one would expect if there is to be a recognition of them being partners or, “a member of a couple”.

26. Whatever relationship they may have had some years ago, it now appears to be a friendship and a willingness to support each other. While much of the support tends to be provided by Mr Booth to Ms Price, there was evidence that there is a reciprocal friendship and some of the elements of s4(3) have been in the past, or still are, satisfied. They have had a lengthy friendship and relationship (albeit not continuously) and this is likely to continue. Neither of the parties see it as a marriage-like relationship. However, overall, I am satisfied that the bond that exists is driven by the long period of time over which they have known each other, that they both appreciate hardship in life, and that Ms Price would otherwise have been vulnerable to living without shelter on many occasions had it now been for Mr Booth. The level of Ms Price’s disability would seem also to be a strong influence in their degree of attachment and reliance, and if that was not so impactful on the relationship, their dependence and friendship might not otherwise still exist in its current form. Indeed, even the joint ownership of land, particularly the more recent interest acquired by Ms Price, appears to have been gifted to her by Mr Booth. Had he not been so distant from his own family, then those gifts as well as Ms Price being a beneficiary of whatever superannuation he may have, would probably not exist for her.

27.     The quality of a marriage-like relationship is that of an enduring relationship and is not to be judged by the relative presence of a sexual relationship.  Indeed, it must be measured more by the intimate feelings and warmth that is demonstrated and felt by the parties usually in a reciprocal manner.  That quality was not evident by Ms Price and Mr Booth in the presentation of their evidence, but there was evident a sense of safety which Ms Price feels on relying on Mr Booth when she cannot cope alone.  She is certainly fortunate to have someone to rely upon at those times. 

28.     However other elements should be present such as trust and loyalty, and feelings of closeness or intimacy[6].  There is clearly a presence of trust by Ms Price in Mr Booth.  There is also evidence of loyalty, particularly by Mr Booth to Ms Price.  But that seems to be existent depending on the issues, which are governed by how Ms Price is coping (or not coping) independently, rather than an all encompassing and reciprocal trust and loyalty.  While it is sometimes difficult to separate the personal feelings from the basic needs of people with emotional and mental health disorders, I am satisfied the desire to satisfy basic needs were the overwhelming motivations of Ms Price.  This is also consistent with the express evidence of both Ms Price and Mr Booth.

[6] Re Holmes and Secretary, Department of Employment and Workplace Relations [2007] AATA 1502.

29. I therefore find that there was not a relationship that could be regarded as defining them as members of a couple for the purposes of the Act.

30.     Given that finding, it then follows that Ms Price was entitled to be paid at the single rate of disability support pension for the period concerned.  That being the case, consideration of the remaining issues for the Tribunal’s consideration is otiose.

31. I might mention however, that even if my analysis of those factors in s4(3) might have technically been able to conclude that Ms Price was a member of a couple or living in a marriage-like relationship, then I would have determined that s24(2)(d) of the Act would have been relevant and that for the same reasoning as outlined above. That is, I would have found that there was a special reason why she should not be treated as being a member of a couple in any event. That special reason relates to the mental health disorder of Ms Price which shows instability and vulnerability which makes any period of living with Mr Booth highly unusual and not likely to have the rewards and intimacy associated with most married-like relationships.

CONCLUSION

32.     Therefore, the Tribunal sets aside the decision under review, and substitutes the decision that Ms Price was not a member of a couple for the period under review.   The matter is remitted to Centrelink to adjust Ms Price’s disability support pension record and refund any repayments of debt based on the original decision under review.

I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Dr K S Levy, RFD, Senior Member

Signed: .......................[Sgd].........................................................
  Elizabeth Young, Research Associate

Date of Hearing  3 June 2008        
Date of Decision  20 June 2008
For the Applicant  Ms Price (self represented)
For the Respondent                  Paul Flintoft, Departmental Advocate