Renwick and Secretary, Department of Social Services (Social services second review)

[2019] AATA 4969

Renwick and Secretary, Department of Social Services (Social services second review) [2019] AATA 4969 (25 November 2019)

Division:GENERAL DIVISION

File Number(s):      2019/2638 and 2019/2657

Re:Andrew James Renwick and Ian Gallagher Ogston

APPLICANTS

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Mr R Reitano, Member

Date:25 November 2019

Place:Sydney

The decisions under review are affirmed.

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Mr R Reitano, Member

CATCHWORDS

SOCIAL SECURITY ­– Disability Support Pension – Age Pension – rate of payment – whether applicants were a member of a couple – marriage-like relationship – financial aspects of relationship – nature of household – social aspects of relationship – sexual relationship – nature of commitment to each other – reviewable decisions affirmed

LEGISLATION

Social Security Act 1991 (Cth) s 4

CASES

Hartley and Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 470

Pelka and Secretary, Department of Family and Community Services (2006) 151 FCR 546

Sperring and Secretary, Department of Employment and Workplace Relations [2007] AATA 1050

REASONS FOR DECISION

Mr Rob Reitano, Member

25 November 2019

1. Since 1 July 2009, the Social Security Act 1991 (Cth) (Act) has provided for the recognition of same sex relationships. This means that people claiming Disability Support and Age Pensions who are in those relationships as a couple are no longer able to claim benefits at the rate prescribed for single people and are to be paid at the partnered rate.

2. An Authorised Review Officer (ARO) decided on 10 December 2018 that Mr Andrew Renwick, who was in receipt of a Disability Support Pension (DSP), was one of those people because he had been partnered with Mr Ian Ogston since 1 July 2009 and so reduced his DSP to the partnered rate. Correspondingly, it was decided on the same date that Mr Ogston’s Age Pension was to be reduced to the partnered rate for the same reason.

3. On 9 April 2019, the Social Services & Child Support Division of the Tribunal (AAT1) affirmed both decisions of the ARO.

4. Mr Renwick has sought a review of AAT1’s decision because he says he is not a ‘member of a couple’ as that term is defined in the Act. Mr Ogston has sought a review of AAT1’s decision in his matter for the same reason. Both matters were heard together with evidence in one being evidence in the other.

5. I have decided to affirm both decisions and what follows are my reasons for doing so.

   BACKGROUND

6. Mr Renwick and Mr Ogston both gave evidence about matters relevant to these reviews. I accept their evidence as being generally truthful and reliable. They also provided some documents that I will refer to where necessary in these reasons.

7. Mr Renwick and Mr Ogston have lived together for more than twenty-five years originally living with Mr Ogston’s mother and sister at Five Dock in Sydney, and after 1993 at Chain Valley Bay on the south-eastern end of Lake Macquarie on the Central Coast. Mr Ogston owns the house where they both live. Mr Renwick does not pay Mr Ogston board or rent. When they moved to Chain Valley Bay, they both worked together to renovate the house for about 6 months.

8. They do not own any real property together but have, on occasions, shared the cost of whitegoods, furniture and a compact disc player. Since Mr Renwick had his DSP reduced to the partnered rate, Mr Ogston has given Mr Renwick money on the odd occasion to help him out. Mr Ogston keeps a record of how much he gives him.

9. Mr Renwick and Mr Ogston share living expenses with Mr Renwick paying for the electricity, internet and telephone bills and both sharing the cost of food. Mr Renwick does almost all the cooking because, according to Mr Ogston, he is a ‘good cook’. Mr Renwick does most of the washing. Other household chores are done on an ad hoc basis but generally speaking they are shared evenly.

10. Mr Renwick described his living with Mr Ogston as ‘a couple of blokes living together’. They do not have a romantic or sexual relationship. They have never had a romantic or sexual relationship. They sleep in separate bedrooms. Mr Renwick frankly conceded that they care, and provide emotional support, for one another. They go on holidays together, walk their dogs together, go out socially together and do the grocery shopping together. It is reasonably obvious from both their history and in their behaviour at the Tribunal that both men care specially for each other. One example of this is that Mr Renwick suffers from anxiety and severe depression and he stated that Mr Ogston has always been supportive ‘as I have been very low at times and I need the other persons (sic) support’.

11. I asked Mr Renwick during the hearing what he considered to be different between his relationship with Mr Ogston and that of a married couple. He said that he had thought about the matter and explained that the difference is because there were no expectations of commitment to marriage in their relationship. Mr Ogston, when asked the same question, was unable to identify any difference between his relationship with Mr Renwick and that of a married couple. Mr Renwick and Mr Ogston both said they do not see themselves as a couple.

12. There was some material provided to the Tribunal that suggested a range of people acquainted with Mr Renwick and Mr Ogston did not consider them to be a couple. On the other hand, Mr Ogston frankly conceded: ‘no wonder people think we are a couple because, you know, that’s how we act together’.

13. In some forms submitted to the Department of Social Services (the Department), Mr Ogston and Mr Renwick describe the relationship between them in varying terms using the words ‘partnered and currently living together’, ‘friend/housemate’, ‘partner’, ‘partner/housemate’, ‘housemate’ and ‘just friends sharing daily expenses…’.

    ‘MEMBER OF A COUPLE’

14. Subsection 4(2) of the Act provides:

    (2) Subject to subsection (3), a person is a member of a couple for the purposes of this Act if:

    . . .         

    (b) all of the following conditions are met:

    (i) the person has a relationship with another person, whether of the same sex or a different 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 de facto 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.

15. Subsections 4(3) and (3A) provide:

    (3) In forming an opinion about the relationship between 2 people for the purposes of paragraph (2)(a), subparagraph (2)(aa)(ii) 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, or in a de facto relationship with, 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 or a de facto relationship.

    (3A) The Secretary must not form the opinion that the relationship between a person and his or her partner is a de facto relationship if the person is living separately and apart from the partner on a permanent or indefinite basis.

    ISSUE

16. The issue is whether Mr Renwick and Mr Ogston are respectively ‘a member of a couple’ as defined by s.4(2)(b) of the Act. The requirements of s.4(2)(b)(i), (ii), (iv) and (v) are obviously met so that the only issue is whether the relationship between Mr Renwick and Mr Ogston is, ‘in the Secretary’s opinion (formed as mentioned in subsections (3) and (3A)), a de facto relationship’.

    CONSIDERATION

17. The question posed by s.4(2)(b)(iii) is not whether Mr Renwick and Mr Ogston are in fact in a de facto relationship but whether in the Secretary’s opinion, formed having ‘regard to all the circumstances of the relationship including, in particular’ the matters set out in s.4(3)(a) to (e), there is such a relationship. The difference is significant because it does not require an affirmative finding that there is, in fact, a de facto relationship; the Secretary is required to form an opinion on reasonable grounds having regard to the mandatory statutory criteria.

18. In making its decision the Tribunal stands in the shoes of the Secretary so the question is whether in the Tribunal’s opinion, having regard to all the circumstances and the matters referred to in s.4(3)(a) to (e), Mr Renwick and Mr Ogston are in a de facto relationship.

19. The words ‘de facto relationship’ are, a little surprisingly, not defined by the Act. Nonetheless, the words ‘de facto relationship’ usually mean a relationship where two people are living together on a genuine domestic basis. One of the definitions used in the cases concerning s.4(3) directs attention to whether the relationship is fairly viewed as being ‘marriage-like’.[1] This is obvious when regard is had to the matters to which s.4(3) directs attention to. The words ‘de facto relationship’ are to be considered by viewing the domestic arrangement between the people in question and characterizing it as ‘marriage-like’ or not. The test is not one-dimensional but rather, as s.4(3) identifies, is multifaceted.

    [1] Pelka and Secretary, Department of Family and Community Services (2006) 151 FCR 546 at 555–556; Sperring and Secretary, Department of Employment and Workplace Relations [2007] AATA 1050 at [70]; Hartley and Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 470 at [41].

    FINANCIAL ASPECTS OF THE RELATIONSHIP

20. Mr Renwick and Mr Ogston do not own any real property together. They have jointly purchased some items in their household such as whitegoods, furniture and a compact disc player. There is no significant pooling of financial resources and there are no legal obligations owed by one to the other.

21. Mr Ogston owns the Chain Valley Bay property where they live but, as I have observed, Mr Renwick does not pay any board or rent. They do, however, share some household expenses with Mr Renwick paying for the telephone, internet and electricity and Mr Ogston paying for some other household expenses. There is a level of sharing of day-to-day expenses.

22. One aspect of the financial relationship between Mr Renwick and Mr Ogston is ‘marriage-like’ although generally speaking the lack of any significant joint assets, any joint legal obligations between the two or any significant pooling of resources suggest that this criterion is only very finely supportive of the existence of a de facto relationship. It relies only upon the sharing of day-to-day living expenses.

    NATURE OF THE HOUSEHOLD

23. There are no children of the relationship and neither men have any children. Mr Renwick and Mr Ogston do not share a bedroom. Mr Renwick does most of the cooking as he likes to cook and is a ‘good cook’. They generally eat together. They do their grocery shopping together. They walk their dogs together. They share other household responsibilities such as cleaning, gardening and washing.

24. This indicator points strongly in favour of the existence of a de facto relationship having regard to the sharing of household responsibilities. Stereotypically, married couples share household responsibilities like the way in which Mr Renwick and Mr Ogston do.

    SOCIAL ASPECTS OF THE RELATIONSHIP

25. I accept that, in general, Mr Renwick and Mr Ogston do not hold themselves out as being married or, indeed, as being in a de facto relationship. Against that is the fact that on some forms submitted to the Department they have, at times, described themselves in a way that is consistent with them being a de facto couple.

26. In evidence, there were a series of statutory declarations from friends and a neighbour which all said that those people did not see Mr Renwick and Mr Ogston as being in a de facto relationship. There was some other evidence from a medical practitioner and nurse confirming that Mr Renwick and Mr Ogston were not in a de facto relationship. I accept that evidence, but it is at odds with Mr Ogston’s own evidence when he stated that ‘no wonder people think we are a couple because, you know, that’s how we act together’.

27. It is important that Mr Renwick and Mr Ogston holiday together each year and accompany each other to social outings. Again, more typically than not, married couples holiday together and go out socially with one another.

28. This points in favour of the existence of a de facto relationship.

    SEXUAL RELATIONSHIP

29. It is accepted that Mr Renwick and Mr Ogston do not have a sexual relationship. This points strongly against the existence of a de facto relationship.

    THE NATURE OF THE COMMITMENT TO ONE ANOTHER

30. It is tolerably clear that both Mr Renwick and Mr Ogston provide a level of emotional support and commitment to one another. They clearly have a special relationship with one another as was evident in the course of the hearing for these matters. That level of support and commitment is apparent from the fact that Mr Ogston has supported Mr Renwick in dealing with his anxiety and severe depression.

31. But that caring goes much further and extends to a range of matters such as family crisis, illness, money and family disputes as Mr Renwick pointed out in his Relationship Details Form provided to the Department in November 2018. Mr Renwick described that support as being ‘as friends do’ because it illustrates that the support provided is over and above that of mere acquaintances. Again, stereotypically, married couples provide a similar level of care and support for one another.

32. This, when considered against the backdrop of more than twenty-five years of living together, points strongly in favour of a finding of a de facto relationship.

    CONCLUSION

33. No single factor is determinative of the question as to whether Mr Renwick and Mr Ogston are ‘members of a couple’. All the factors need to be objectively weighed and an opinion needs to be formed objectively as to the existence or otherwise of a de facto relationship. One thing is very clear which is that Mr Renwick and Mr Ogston are not strangers to one another and one is not merely a boarder in the other’s house.

34. In my opinion, having regard to the matters to which s.4(3) directs attention, Mr Renwick and Mr Ogston are ‘members of a couple’. This is largely because of their shared domestic arrangement, their sharing of household expenses, their sharing of household tasks (cooking, cleaning, walking the dogs and so on), their enjoyment of holidays and social events together, and their level of commitment one to the other. Those factors have the hallmarks of a ‘marriage-like’ relationship. I also consider it significant, albeit on its own perhaps not determinative, that both have at times described themselves as ‘partners’ in one way or another on various forms. Likewise, Mr Ogston’s frank concession that people see him and Mr Renwick as a couple because that is how he and Mr Renwick act together is also of some relevance albeit not determinative.

35. An objective bystander viewing the relationship from afar, like the Secretary or in this case the Tribunal, would form the opinion that Mr Renwick and Mr Ogston are in a de facto relationship. Their relationship is, having regard to the statutory criteria to which the Act directs attention, ‘marriage-like’. They are members of a couple for the purpose of the Act.

36. I affirm the decisions under review.

I certify that the preceding 36 (thirty-six) paragraphs are a true copy of the reasons for the decision herein of Mr Rob Reitano, Member

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Associate

Dated: 25 November 2019

Date(s) of hearing:	4 October 2019
Applicants:	In person
Solicitors for the Respondent:	Ms E Ulrick, Department of Human Services