Re Brentnall;
[2007] AATA 2099
•21 December 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 2099
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W200600092
GENERAL ADMINISTRATIVE DIVISION ) Re SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS Applicant
And
STEPHEN BRENTNALL
Respondent
DECISION
Tribunal Ms L R Tovey, Member Date 21 December 2007
PlacePerth
Decision The Tribunal sets aside the decision of the Social Security Appeals Tribunal made on 22 February 2006 and substitutes a decision that the decision of the Applicant, to raise and recover overpayments of disability support pension of $2,111.08 for the period 6 February 2003 to 25 June 2003, is affirmed. ….....(Sgd. L R Tovey)...............
Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – whether Respondent was living in a marriage-like relationship
LEGISLATION
Social Security Act 1991 (Cth), s 4(2), 4(3), 1236(1A), 1237A, 1237AAD.
CASES
Pelka v Secretary, Department of Family and Community Services (2006) 151 FCR 546.Re Andreatta and Commissioner for Superannuation (1991) 23 ALD 326.
Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164.
V120/00A v Minister for Immigration and Multicultural Affairs (2002) 116 FCR 576.
REASONS FOR DECISION
21 December 2007 Ms LR Tovey, Member BACKGROUND
1. This is an application by the Secretary, Department of Employment and Workplace Relations ("the Applicant") for a review of a decision of the Social Security Appeals Tribunal ("SSAT") made on 22 February 2006 in relation to the recovery of disability support pension made to Mr Stephen Brentnall ("the Respondent").
2. Sadly, the Respondent died after the hearing of the matter, on 23 July 2007. Notwithstanding his death, the small amount in issue and the fact that the overpayment resulted from a failure by his alleged partner ("Jane") to declare her income, the Applicant has indicated that he requires a determination of the review application.
3. As the Applicant has elected to proceed with the review application it is incumbent upon me to determine the application according to law. The death of an applicant will bring to an end proceedings relating to a statutory entitlement which does not devolve to another on death and, in other cases, requires the election of any person on whom the right to continue the proceedings devolves: see V120/00A v Minister for Immigration and Multicultural Affairs (2002) 116 FCR 576 at 589, [53]; Re Andreatta and Commissioner for Superannuation (1991) 23 ALD 326. However, the death of a respondent does not deprive the Tribunal of its jurisdiction to determine the present application, or its duty to exercise that jurisdiction according to law.
4. The decision of the SSAT relates to payments of disability support pension to the Respondent between 6 February 2003 and 25 June 2003 ('the relevant period"). The amount of the overpayment is said to be $2,111.08.
5. By way of background, I note that prior to 6 February 2003 the Respondent had been receiving payments of disability support pension at the single rate. At that time delegates of the Applicant had been investigating whether the Respondent and Jane had been living in a marriage-like relationship. On 5 February 2003 the Respondent advised Centrelink that he and Jane had become partnered. At that time the Respondent's disability support pension payments were reduced to the partnered rate. The Respondent was notified of the reduced rate of his pension by letter dated 11 February 2003. The pension paid for the period 5 to 11 February 2003 was reduced to the partnered rate, as were subsequent payments. The reason for the reduction was explained to the Respondent in a telephone call with Centrelink on 17 February 2003.
6. On 26 June 2003 the Respondent advised Centrelink that he had separated from Jane. His payments of disability support pension were then increased to the single rate.
7. On 12 October 2005 the Applicant's delegate determined that Jane had failed to declare income which she had earned in her employment for the period 28 August 2002 to 26 August 2005. The increase in Jane's income had the effect of reducing the rate of disability support pension to which the Respondent, as a member of a couple, was entitled.
8. On 24 October 2005 the Respondent sought a reconsideration of the decision to raise this debt, on the grounds that he did not receive "any of my ex-partners earnings" from Jane's employer during the relevant period. On 26 October 2005 a delegate of the Applicant concluded that the decision to raise and recover the debt was correct and that, because the Respondent was partnered during the relevant period, Jane's income had to be taken into account in calculating his entitlement to disability support payments.
9. The Respondent subsequently sought a review of this decision by an Authorised Review Officer of the Applicant ("the ARO"). In support of that application for review the Respondent made a written statement dated 3 November 2005 in which he denied that he and Jane were in a de facto relationship during the relevant period. The statement made a number of factual assertions which were inconsistent with the existence of a marriage-like relationship. However, on 20 December 2005 the ARO affirmed the decision to raise and recover the debt.
10. On 9 January 2006 the Respondent sought a review by the SSAT of the decision to raise and recover the debt. On 22 February 2006 the SSAT decided to set aside the decision under its review and substitute a decision that:
(a)The Respondent was not living in a marriage-like relationship with Jane in the relevant period;
(b)The Respondent has not been overpaid disability support pension in that period, and does not have a debt; and
(c)The Respondent's rate of disability support pension in the relevant period is to be recalculated at the single rate and arrears paid to him.
11. On 30 March 2006 the Applicant sought a review of the SSAT's decision by this Tribunal.
ISSUES AND LEGISLATION
12. It is not in dispute that the Respondent was entitled to receive disability support pension during the relevant period.
13. Disability support pension is provided for by Part 2.3 of the Social Security Act 1991 (Cth) ("the Act"). Section 117 of the Act provides that a person's disability support pension rate is to be worked out using Benefit Rate Calculator A at the end of s 1064 of the Act. The rates provided for in that section vary according to whether or not the person is a "member of a couple" or "partnered", with a higher rate being paid to a person who is not a member of a couple. The income of both members of a couple is taken into account in determining that rate.
14. Subsections 4(2) and 4(3) of the Act define when a person is a member of a couple in the following terms:
"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
(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.
Member of a couple—criteria for forming opinion about relationship
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.
4(3A) The Secretary must not form the opinion that the relationship between a person and his or her partner is a marriage-like relationship if the person is living separately and apart from the partner on a permanent or indefinite basis."
15. Section 4(11)(a) of the Act provides that a person is "partnered" for the purposes of the Act if the person is a member of a couple.
16. It is clear from the evidence that the Respondent and Jane had a relationship with each other during the relevant period, but were not legally married to each other. Both the Respondent and Jane were over the relevant age of consent, and were not within a prohibited relationship for the purposes of s 23B of the Marriage Act 1961. The requirements of s 4(2)(b)(i), (ii), (iv) and (v) of the Act were satisfied. The Respondent will therefore have been a member of a couple if during the relevant period, or part thereof, his relationship with Jane was, in my opinion, a "marriage-like relationship". In forming that opinion I am required to have regard to the matters specified in s 4(3) of the Act, and I am subject to the limitation identified in s 4(3A) of the Act.
17. The Respondent does not dispute that Jane did not declare all of the income received from her employer. Rather, he has asserted that he was not a member of a couple during that period, so that Jane's earnings during the relevant period do not affect his rate of disability support pension.
18. The critical issue for my determination is therefore whether, in my opinion, (formed as mentioned in s 4(3) and (3A) of the Act) the relationship between the Respondent and Jane was a marriage-like relationship during the relevant period.
APPLICABLE PRINCIPLES
19. In Pelka v Secretary, Department of Family and Community Services (2006) 151 FCR 546 at 555-6, [46] French J summarised the approach required of the Tribunal when considering whether two persons were in a marriage-like relationship in the following terms:
"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; and
(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 which 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; or
(e) mutual commitment."
20. As French J also noted, the judgment to be made is difficult and, once out of the range of obvious cases falling within the core concept of “marriage-like”, will be attended by a degree of uncertainty. His Honour recognised that it may be that different decision-makers on the same facts could quite reasonably come up with different answers.
21. Also in Pelka, at 544, [39], French J endorsed the statement of O'Loughlin J in Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164 at 173 that:
"… it is not sufficient to merely note that a couple are sharing accommodation, nor is it sufficient to note that one is financially dependent on the other; it is necessary to delve deeper to find the reasons for those arrangements. Those reasons will be better indicators in determining the correct nature of their relationship."
22. In Pelka, at 556-7, [52], French J expressed the view that the reference to "pooling" in s 4(3)(a)(iii) of the Act was to the putting of resources into a common stock or fund, sharing in common and combining for the common benefit. It involved something more than financial cooperation or separate contributions to different elements of household expense. In relation to cooperation, French J stated at 557, [53]:
"Cooperation is not identified as a specific factor in s 4(3) of the Act. That is not to say cooperative behaviour may not be taken into account for the matters listed in s 4(3) are not exhaustive. But cooperation of itself does not take a relationship very far down the path towards characterisation as 'marriage-like'. Cooperation is an indispensable feature of human society and of a multiplicity of different kinds of relationships within human society including the purely commercial. The same may be said of 'mutual benefit' which attaches to a large range of arrangements between people."
23.Later, French J stated at 559, [61]:
"A decision-maker in applying the matters set out in s 4(3) should acknowledge that they are non-exhaustive and at least indicate that consideration has been given to whether there might be any other factors relevant to the difficult judgment of whether a 'marriage-like' relationship exists. Each of the individual matters listed in s 4(3) is accompanied by a non-exhaustive list of factors. Again, the decision-maker in each case should consider whether there are any other factors relevant to the particular matter listed."
24. The decision in Pelka identifies the approach which I am bound to take in considering whether the Respondent and Jane were in a marriage-like relationship during the relevant period.
CONSIDERATION OF THE ISSUES
25. The Applicant adduced the evidence of a number of witnesses, together with a bundle of Supplementary Documents, which establish that the Respondent and Jane had, over the longer term, a relationship that was clearly marriage-like, if often tumultuous. That evidence, which was not before the SSAT, was not contradicted by the Respondent in the proceedings before me.
26. A short written statement of Jane, dated 16 April 2007, was provided to the Tribunal, which indicated that she had "been friends with" the Respondent "for years", but had not "been in a relationship with him for a long time". That statement is not inconsistent with the Respondent and Jane having been members of a couple during the relevant period, which was some 4 years prior to the date of the statement. Jane did not in the end give evidence before me.
27. It appears clear from the oral and documentary evidence adduced by the Applicant that the Respondent and Jane had a long term relationship with each other. They had a daughter born in 1994 who tragically drowned in 2002 while in foster care. There was evidence of the Respondent and Jane living together as a couple and sharing financial resources at various times. While much of that evidence relates to times before and after the relevant period, it may be taken into account in considering the likelihood of the Respondent and Jane living as a couple during the relevant period. In the absence of any evidence to suggest that the position was any different during the relevant period, evidence of the nature of the relationship both before and after the relevant period may support an inference as to the nature of the relationship during the relevant period. It remains necessary to consider the evidence as it relates to the relevant period against the background of the nature of the relationship between the Respondent and Jane before and after the relevant period.
28. I will firstly consider the particular matters identified in s 4(3)(a)-(e) of the Act, before turning to consider the facts established by the evidence more generally.
Financial Aspects of the Relationship
29. There are a number of aspects of the financial relationship between the Respondent and Jane which suggest that they were in a marriage-like relationship before, during and after the relevant period.
30. Firstly, prior to September 2002, the Respondent and Jane were joint lessees of a residence at George Way in Cannington, where they both lived from June 2000. Evidence that they both resided at that address from that date is contained in Department of Planning and Infrastructure licensing records produced before me. While the Applicant accepts that the end date of the residence at George Way in those records is incorrect, there is no evidence to suggest that the indication of the commencement date in those records is incorrect.
31. On 24 September 2002 the Respondent obtained a lease of a flat, unit 10, in a high-rise complex in Peninsular Road, Maylands ("Unit 10"). In August 2004 the Respondent obtained a lease of another, larger, unit in the same complex ("Unit 1"). While both leases were in the Respondent's name alone, the evidence of Ms Parkes, an office manager of Ray White Real Estate, and Ms Chardai Henneberg, a tenant of the Units, indicated that both the Respondent and Jane resided together in these units and shared the payment of rent.
32. Secondly, there is evidence that Jane supported the Respondent financially, and that the Respondent would attend Jane's place of employment to collect Jane's wages. The support included the purchase of motor vehicles by Jane for the Respondent. That is the effect of the evidence of Ms Chardai Henneberg and Ms Pukeke before me, which I accept.
33. Thirdly, Australia Post documents produced show that the Respondent and Jane maintained a joint post office box for both their mail.
34. The above facts tend to count in favour of the existence of a marriage-like relationship.
35. While there was evidence of sharing of expenses, and Jane providing the Respondent with financial support, the evidence before me does not establish pooling of financial resources, in the sense explained by French J in Pelka. However, neither does the evidence positively establish a lack of pooling. In light of the evidence of sharing of financial resources, noted above, I would regard the absence of evidence of pooling to be neutral.
Nature of the Household
36. There is evidence from a number of witnesses called by the Applicant which establishes that the Respondent and Jane were living together as a couple at the same place, both before and after the relevant period. This includes the evidence of:
(a)Michael Lawlor, who had known the Respondent and Jane since 1988, and stayed with them in a rented property in Maylands about three months before they moved into the George Way premises. He lost contact with them after that time, although he saw the Respondent in mid-2003 at which time the Respondent indicated that he had separated from Jane. That suggests that the Respondent and Jane were together as a couple until mid-2003, which was the end of the relevant period. Otherwise, there was no reason for the Respondent to say that he had separated from Jane if they were not together in the immediately preceding period.
(b)Chardai Henneberg, who resided in the Maylands apartment complex and knew the Respondent and Jane from May 2004. While this was after the relevant period, Ms Henneberg understood from her conversations with the Respondent and Jane that they had been in a de facto relationship for a very long time and that, while they would have problems that would cause one to leave the other, this would never be for more than a month at a time and was not regarded, by the Respondent and Jane, as a formal separation.
(c)Margaret Susinetti, who knew Jane from a bingo centre from around the beginning of 2005. While again this was outside the relevant period, her evidence was that Jane told her that she and the Respondent had been in a relationship for many years since moving from Queensland.
(d)Julie Henneberg, who also resided in the Maylands apartment complex and knew the Respondent and Jane from approximately May 2004;
(e)Tania Pukeke, who worked at Jane's place of employment and who had known the Respondent since he and Jane were residing at George Way and, in January 2007, had known Jane for approximately six years; and
(f)Susan Prior, the owner of the company which employed Jane, who had known Jane since 1999 and had understood the Respondent to be her partner since that time.
37. There was also evidence of Ms Chardai Henneberg, which was not challenged by the Respondent, that Jane did 90% of the housework when Jane and the Respondent lived together.
38. The Respondent and Jane did not have the care of any children during the relevant period.
Social Aspects of the Relationship
39. The witnesses referred to above all understood the Respondent and Jane to be partners, as a result of the Respondent and Jane holding themselves out as a de facto couple to their friends and acquaintances.
40. There was also evidence, in the form of Baycorp credit reports, that from time to time Jane held herself out as having the surname Brentnall in her financial dealings.
41. There was evidence from Mr Glynn Smart, Ms Julie Henneberg and Ms Susinetti that the Respondent and Jane occasionally attended bingo and a casino together after the relevant period. Ms Pukeke, who had known the Respondent and Jane since a time prior to the relevant period, gave evidence that the Respondent and Jane had attended bingo, the casino and bowling together as a couple prior to and during the relevant period.
42. All of the above factors tend to count in favour of the existence of a marriage-like relationship.
Sexual Relationship
43. The evidence of the witnesses called by the Applicant was that there was a sexual relationship between the Respondent and Jane before, during and after the relevant period. While the relationship was not exclusive, the evidence was that this was due to reasons other than a lack of commitment of the Respondent and Jane to each other.
44. There was also evidence that Jane began seeing a man named Michael, for whom she left the Respondent. However, the evidence of Ms Pukeke was that this relationship with Michael began after the relevant period.
45. The sexual relationship between the Respondent and Jane counts in favour of the existence of a marriage-like relationship. While the non-exclusive nature of the sexual relationship would ordinarily count against the existence of such a relationship, the reasons for that lack of exclusivity in the present case are not inconsistent with the Respondent and Jane being in a marriage-like relationship during the relevant period.
Nature of the Commitment to each other
46. The evidence I have referred to establishes, in the absence of contradictory evidence by the Respondent or Jane, that Respondent and Jane were together as a couple at least since they lived at George Way. The birth certificate tendered by the Applicant shows that the Respondent and Jane had a child together in 1994, so that their relationship dates from at least that time.
47. The evidence of the witnesses called by the Applicant also establishes that the relationship involved frequent fights, and that the Respondent was also abusive towards Jane. This appears to have been the reason for the Respondent's daughter being taken into State care. The fact that the Respondent and Jane remained together despite this aspect of their relationship does demonstrate a considerable commitment to each other. The fact that there were abusive aspects to the relationship is not, unfortunately, necessarily inconsistent with the existence of a marriage-like relationship.
48. The advice given to Centrelink by the Respondent on 5 February 2003, that he and Jane were partnered, shows that during the relevant period the Respondent considered himself to be in a de facto relationship. The evidence of witnesses that the Respondent and Jane held themselves out as being in a de facto relationship supports that view. The subsequent change in the Respondent's view as to the nature of his relationship during the relevant period appears to have been a result of his challenge, at a point after the relationship had ended, to a decision raising a debt due to the undeclared income of Jane.
49.The above factors count towards the existence of a marriage-like relationship.
50. There was little evidence as to the nature of the companionship and support which the Respondent and Jane provided to each other during the relevant period, or whether they considered that their relationship was likely to continue indefinitely. This absence of evidence tends to count against the existence of a marriage-like relationship although, as it is merely an absence of evidence, the extent to which it does so is limited.
Overview of the Relationship
51. Taken together the evidence establishes the existence of a long-term relationship between two partners which, if often acrimonious, was marriage-like in nature. The Respondent and Jane lived together as a couple at the same premises, shared a bedroom over this period, and shared finances. Jane supported the Respondent both financially and in terms of domestic chores. The held themselves out as a de facto couple to their friends, acquaintances and those with whom they dealt and, during the relevant period, regarded their relationship as such. They engaged in social activities together as a couple. Taking all of those matters into account, I am satisfied that the relationship between the Respondent and Jane was marriage-like during the relevant period from 6 February 2003 to 25 June 2003.
52. In reaching this conclusion, I have considered the composite picture of the relationship between the Respondent and Jane at the relevant time. While I have had regard to the particular matters identified in s 4(3) of the Act in the manner described above, I have recognised that those matters, and the list of factors relating to each matter, are non-exclusive. In respect of each of those matters and factors I have considered whether there are any other factors relevant to the judgment I am required to make and, where I have concluded that there are other factors, had regard to them in the manner described above.
53. For these reasons I am of the opinion (formed as mentioned in s 4(3) and (3A) of the Act) that the relationship between the Respondent and Jane was, during the relevant period, a marriage-like relationship.
Waiver and Write Off of Debt
54. There was no argument from the Respondent that the debt which I have found to exist should be either waived or written off, or material placed before me which would support such a decision. I have nevertheless considered whether the debt should be written off or waived and concluded that it should not.
55. A raised debt may be written off under s 1236(1A) of the Act only if it is not recoverable, if a debtor has no capacity to repay it, if a debtor’s whereabouts are unknown or if it is not cost effective for the Commonwealth to take action to recover it. There is no evidence that any of these criteria apply.
56. Section 1237A of the Act provides that a debt must be waived if it is attributable solely to an administrative error made by the Commonwealth and if it was received in good faith. In my view the debt raised against the Respondent was not attributable solely to administrative error made by the Commonwealth, but rather was attributable to a failure by Jane to declare her income, and the advice given by the Respondent to Centrelink on 5 February 2003 that he and Jane were partnered.
57. Section 1237AAD of the Act permits waiver in special circumstances but only if the debt that has been raised did not result wholly or partly from the debtor or another person knowingly making a false statement or false representation and there are special circumstances making it desirable to waive the debt and it is more appropriate to waive than to write-off the debt. In this case the debt did arise wholly or partly from Jane making a false statement about the extent of her income.
DECISION
58. For the above reasons, the Tribunal sets aside the decision of the Social Security Appeals Tribunal made on 22 February 2006 and substitutes a decision that the decision of the Applicant, to raise and recover overpayments of disability support pension of $2,111.08 for the period 6 February 2003 to 25 June 2003, is affirmed.
I certify that the 58 preceding paragraphs are a true copy of the reasons for the decision herein of Ms LR Tovey, Member
Signed: ............(Sgd. R Riberi)..............
AssociateDates of Hearing: 17 and 18 April 2007
Date of Decision 21 December 2007
Representatives for the Applicant Ms N Owen-Conway and Mr S Ferguson
Representative for the Respondent In Person
Solicitors for the Applicant Australian Government Solicitor
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