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

RFGW and Secretary, Department of Social Services (Social services second review) [2022] AATA 2154 (1 July 2022)
AppID:  RFGW and Secretary, Department of Social Services
MatterType:    Social services second review
Division:GENERAL DIVISION
File Number:          2021/1227
Re:RFGW
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Emeritus Professor P A Fairall, Senior Member
Date:1 July 2022
Place:Sydney

The Tribunal affirms the reviewable decision.
....................................[sgd]....................................
Emeritus Professor P A Fairall, Senior Member
CATCHWORDS
DISABILITY SUPPORT PENSION – long marriage - member of a couple – joint tenants of residential property - domestic violence – continued co-residence – whether living separately and apart – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth), ss 49(2)(a),49(3), 24(1)
CASES
Boscolo v Secretary, Department of Social Security [1999] FCA 106; (1999) 90 FCR 531
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Holt and Secretary, Department of Education, Employment and Workplace Relations [2010] AATA 143
SD and Secretary, Department of Social Services [2014] AATA 764
U’Brien and Secretary, Department of Social Services [2014] AATA 761
SECONDARY MATERIALS
Social Security Guide. See topic 2.2.5.50
REASONS FOR DECISION
Emeritus Professor P A Fairall, Senior Member
1 July 2022
INTRODUCTION

The applicant and his wife (Mrs GC’) married in 1984 and have three adult children.
The applicant is a long-standing recipient of Disability Support Pension (DSP). From 2010 to 23 July 2020, he was paid at the single rate, on the footing that he was not a member of a couple.
On 23 July 2020, the applicant’s DSP rate was reduced to the partnered rate,[1] a decision confirmed by an authorised review officer on 14 September 2020.[2] The partnered rate is lower (per person) than the rate for singles.
[1] T10/95.
[2] T13/99.
Mrs GC also receives DSP, and provides some care for the applicant, for which she received a Carer’s Payment (CP). In December 2016, she refused an offer of community housing, a one-bedroom flat, where she could live separately and apart from the applicant. On 23 July 2020, Centrelink decided that she was a member of a couple and applied the partnered rate. On 10 November 2020, an authorised review officer (ARO) affirmed the decision to pay her at the partnered rate.
The applicant and Mrs GC applied separately to the Administrative Appeals Tribunal (the Tribunal) for review of the Centrelink decisions of 23 July 2020.
On 25 January 2021, the Social Security and Child Support Division of the Tribunal (AAT1) affirmed that the applicant was legally married and was not living separately and apart from his wife on ‘a permanent or indefinite basis’. The AAT1 found that the applicant was a member of a couple with Mrs GC.[3] The AAT1 also found that Mrs GC was a member of a couple with the applicant. As a result of these decisions, the applicant’s DSP net pension payment (after deductions for electricity and withholdings) went from $819.30 to $586.80.[4]
[3] T2/3.
[4] T18/131.
Mrs GC’s pension also fell, from $1050.40 to $711.80, allowing for certain deductions.[5] She continued to receive Carer’s Payment at $131.90 per fortnight and, occasionally, Carer’s Supplement.
[5] T9/111, 142.
The applicant and Mrs GC applied to the General Division of the Tribunal (AAT2) for a second review.[6] The applicant stated in his application that they lived completely separate lives, had separate bank accounts, attended appointments separately and paid their bills separately. He said they did their own shopping and cooking and ate separately, that they had their own rooms within the house, their own cars and bathrooms.[7]
[6] The applicant applied on 25 February 2021; Mrs GC applied on 16 March 2021.
[7] T1/2.
Mrs GC stated in her application that she believed that the AAT1 decision was wrong because they did not live as a married couple, had separate sleeping, cooking and cleaning arrangements, and she provided care to him, showering and dressing him because of his injuries.
CONFIDENTIALITY ISSUE
In September 2021, the Tribunal received a letter from Mrs GC, referring to police reports relating to the applicant, and asking that they be considered. She said that a lot more would be found out about her husband’s temper.[8]
[8] Undated letter received by the Tribunal on 7 September 2021.
Incident reports for the period 2008 to the present period were duly obtained under summons from the NSW Police and received into evidence. An order was made under section 35 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) in respect of the applicant’s letter, but later withdrawn after the applicant indicated that her husband was aware that she asked for them to be considered.
Nevertheless, I have decided to make a confidentiality order in respect of this decision.

MATERIALS

The applicant did not file any materials.
The Respondent filed an Amended Statement of Facts and Contentions, dated 17 March 2022. The Respondent also filed two sets of documents under section 37 of the AAT Act (the ‘T docs’), a set relating to each of the applicants, each of which is essentially identical.
The Respondent also filed Supplementary T documents, consisting of the following:
·ST1: Documents summonsed from NSW Police relating to Mrs GC (1-14)
·ST2: Documents summonsed from NSW Police relating to the Applicant (15 – 56)
·ST3: Property title search
·ST4: recent payment rate records for the applicant
·ST5: recent payment rate records for the applicant
Mrs GC filed the following documents:
·     Letter from KK (Mrs GC’s daughter), dated 11 Jun 2021
·     Medical letter dated 2 Jun 2021
·     Two undated handwritten statements of reply by Mrs CG filed on 7 September 2021 and 7 October 2021

THE HEARING

The application was heard together with Mrs GC’s application by telephone on 17 May 2022. Mr M Gauci represented the Respondent in both matters. The applicant and Mrs GC gave evidence in the absence of one another. Neither was represented by a solicitor.
I note that in December 2017, the applicant and Mrs GC provided information to Centrelink about their relationship. Mrs GC said that she assisted the applicant to complete the forms because he had difficulty reading and writing.
LEGISLATION
The relevant legislation provides that a person is a member of a couple if the person is legally married to another person and is not, in the Secretary's opinion, living separately and apart from the other person on a permanent or indefinite basis.[9] In forming an opinion about their relationship the Tribunal must have regard to all the circumstances of the relationship including, in particular, the financial aspects of the relationship; the nature of the household; the social aspects of the relationship; any sexual relationship between the people; and the nature of the people’s commitment to each other.[10] Under each of these topics there are specific matters that the Tribunal is required to consider.
[9] Social Security Act 1991 (Cth) sub-s 4(2).
[10] Ibid sub-s 4(3).
The Tribunal may also be required to consider whether there is a special reason why the applicant should not be treated as a member of a couple despite being married and not living separately and apart from Mrs GC on a permanent or indefinite basis.[11]
[11] Ibid sub-s 24(1).
I turn to consider each of the factors identified in the legislation.
(a) The financial aspects of the relationship
The applicant and Mrs GC are registered as joint tenants of a four-bedroom three bathroom house in a suburb of Newcastle. The mortgage account is in both their names.[12]
[12] Transcript of Proceedings (17 May 2022) 22.
The applicant told the Tribunal that he bought the house in 1993 with compensation money he received from an accident. He said that he put Mrs GC’s name on the property title as an act of good will and that this caused problems. He said that he put the property on the market twice ‘a few years back’ but never discussed it with her.[13]
[13] Ibid 31.
He also confirmed that when Mrs GC received her pension, she gave him so much each fortnight. He said that this went ‘towards the amount she has to give me for the month and then I go and pay the bank monthly payments.[14] And that’s the mortgage paid every month.’ He said that she paid him about $600 one fortnight and a little more the next fortnight, from which he took out the water and other different things and he put the rest towards the mortgage. He said that she had to pay towards the mortgage because she was a party to the mortgage.[15]
[14] Ibid.
[15] Ibid 30 - 32.
Mrs GC did not dispute that she was registered on the house title. However, she was of the belief that the house belonged exclusively to the applicant. It was his house, not hers.[16] She had to contribute towards the mortgage because her name was on the mortgage agreement. She had to make payments even if she did not live there, because the applicant has said as much.[17]
[16] Ibid 24.
[17] Ibid 20.
The house is growing in value and would form part of the matrimonial pool in the event of divorce. His belief to the contrary is simply mistaken. The applicant said that houses in the area were selling for between $800,000 and a million dollars.[18] The house needed maintenance and would not fetch an optimum price. He said that there was approximately $100,000 owing to the bank.[19]
[18] Ibid 30 - 32.
[19] Ibid.
At a transactional level the applicant and Mrs GC operate with a degree of independence. Neither is accountable to the other for expenditures, as long as Mrs GC makes her fortnightly payments towards the utilities and mortgage.
There is no evidence before the Tribunal that they have joint savings accounts, although there is some suggestion that they took out a loan together some ten years ago to do something with the house. Mrs GC could not remember any specific details about this matter.[20]
[20] T13/151.
The applicant and Mrs GC have their own cars, and each pays their own running expenses. They both agreed that on occasion they could use each other’s car.
The information before the Tribunal suggests that they continue to have a degree of intermingling of their financial affairs, especially in relation to the principal asset, the house in which they reside. This tends to suggest that the applicant is a member of a couple with Mrs GC.
(b) The nature of the household
The applicant and Mrs GC live in the same house. The couple’s adult son also lives in the house.
Both parties said that they did their own cooking. They did not eat meals together with the odd occasion. They shopped separately.
Mrs GC cleaned her own room, and the applicant did the rest of the house. The applicant also did the backyard.[21] The applicant said that he cleaned the house and that he expected her to clean up any mess she made outside her bedroom.[22]
[21] Transcript of Proceedings (17 May 2022) 29.
[22] Ibid 29.
Mrs GC told the Tribunal that she and the applicant had their own bedrooms. She said that she had a lock on the door. The applicant confirmed that he put a lock on her door.[23] Her bedroom has a bathroom attached. According to her evidence, she was free to use the rest of the house. She occasionally joined the applicant and her son for a meal. She said that she spent most of her time in her room, where she has a television.
[23] Ibid 16.
The evidence relating to the nature of the household suggests that the applicant and his wife are estranged from one another although they continue to have personal contact due largely to the physical care that Mrs GC continues to provide for the applicant. This does not necessarily mean that they are not living separately and apart, although it tends to point in that direction.
(c) The social aspects of the relationship
The applicant and Mrs GC agreed that they presented to the world as a married couple.[24] Mrs GC said that only her daughter was aware of the situation because they did not let anybody know their business.[25] They attended school functions for grandchildren together and had Christmas together.
[24] Ibid 29.
[25] Ibid 12.
The applicant said that when they had marital difficulties, he presented his wife with divorce papers, but the children suggested that they continue to live together because the house was big enough for them to have separate lives.[26] Mrs GC said that the reason they did not go ahead with the divorce was because of the three children.[27]
[26] Ibid 29.
[27] Ibid 12.
The fact that the applicant and his wife continue to present to the world as a couple is an affirmation of that status. It supports an inference that they are not living separately and apart, and that the applicant is a member of a couple with Mrs GC.
(d) Any sexual relationship between the people;
The applicant and Mrs GC both said that they did not have a sexual relationship. The respondent does not seek to contest this evidence. I accept that the couple are no longer sexually intimate.
This factor favours a finding that the applicant is not a member of a couple.
(e) The nature of the people’s commitment to each other.
Mrs GC said that she provides daily care to the applicant, for which she receives a Carer’s Payment. She helps him with washing, showering and dressing. She also assisted him with reading and writing, since he did neither.
Mrs GC described their relationship as follows:
just like a brother and sister relationship sort of thing, you know what I mean. It was nothing - I don’t know how to describe things, that’s why I’m - yes, it was just like I had to do things for him because of his reading and writing, so it was just like an ordinary relationship, not a marriage relationship. It’s the only way I can describe it. Sorry.
The applicant used similar language. He said it was like ‘best friends or a brother and sister relationship or something’.[28]When asked whether Mrs GC was kind to him, he said:
Yes, she’s really helpful, I’ll give her that, the shit I put her through, she’s helpful. It’s like I said, it’s like best friends, or a brother and sister relationship or something. She’s there to be there to help if she can and when I need things she’ll read a letter for me or if I have to go the hospital and fill in paperwork, I’ll say can you come to the hospital and she’ll come up and fill out the paperwork for me. But we just, for some reason, we just couldn’t – well I couldn’t live as husband and wife, I thought we got on better as just friends. So I don’t know what caused that, I don’t know what, I put it down to all the shit I been through and the pain and the injuries, I’ve had both legs broken, they were going to amputate my left leg and I fell over and saved that leg from being amputated. But (indistinct) and my leg is not joined properly, it’s not side by side and the doctor said it was a miracle. So I’ve been through the wars and (indistinct) sometimes why, why me?
[28] Ibid 41.
Based on the materials before the Tribunal, the oral evidence given by the applicant and Mrs GC, and applying the objective criteria contained in subsection 4(3) the Social Security Act 1991 (Cth) (the Social Security Act), I am satisfied that the applicant is married to Mrs GC and a member of a couple. I am satisfied that the relationship has not broken down to the point that they should not be regarded as a couple for present purposes.
I note in passing that in the related decision I come to the same conclusion with respect to Mrs GC. She is a member of a couple with the applicant. The findings are reciprocal.[29]
[29] It is hard to imagine a case where a finding that P is a member of a couple with Q did not also imply that Q was a member of a couple with P.
There is a further matter to consider, and that is whether there is a ‘special reason’ why, despite the findings made above, the applicant should not be treated as a member of a couple? The AAT1 did not consider this issue.
Section 24(1) of the Social Security Act provides:
(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 (emphasis added).
The Guide to Social Security Law (the Guide) provides some assistance on the application of the discretion contain in subsection 24(1). The Tribunal is expected to follow and apply government policy unless there are cogent reasons in a particular case for not doing so: see Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60.
The Guide states (at 2.2.5.50):
Section 24 discretion exists to deal with unfair, inequitable and/or unjust anomalies.
Section 24 is intended to be the option of last resort, and should only be applied when all other reasonable means of support have been explored and exhausted.
...
It is not possible to predict all the situations where section 24 should be applied as the circumstances of each particular situation need to be considered on a case-by-case basis.
...
The discretion to treat a person as NOT being a member of a couple should be exercised ONLY where a full consideration of all the circumstances relevant to the individual's case would make it unjust or unreasonable not to do so (emphasis added).
It is appropriate that the decision maker strike a balance between the individual circumstances of the person and the circumstances of the couple.
...
The couple's circumstances should be compared to a couple in similar circumstances but for whom the special circumstances to apply section 24 do not exist. There must be some degree to which circumstances are outside the couple's or individual's control and cannot be changed.
...
Three questions that need to be considered as part of the assessment while looking at the full circumstances of the case are:
Is there a special reason to be considered in this couple's circumstances?
Is there a lack of being able to pool resources for the couple as a result of the circumstances?
Is there financial difficulty as a result of the couple's circumstances?
I have reviewed the summons material provided by the New South Wales Police relating to the period 1 January 2008 to the present. It appears that the police attended the property on many occasions. The applicant said they were always there.[30] In all there are 54 recorded incidents involving the applicant but most of these involve his interactions with neighbours. He said that a malicious neighbour was responsible for calling the police on these several occasions.
[30] Transcript of Proceedings (17 May 2022) 39.
The summons materials tend to show that on occasion he was a perpetrator of domestic violence. Between 2008 and 2013 there are four recorded domestic incidents. One of these involved a serious assault on Mrs GC coupled with a threat to have her raped if she ever left him. I also note the assault on a female officer attending on one of these occasions.[31]
[31] ST2/31.
The applicant stated in evidence to the Tribunal that Mrs GC was probably scared of him ‘because of the tempers I have’, although he said that he never hit her.[32] He denied any wrongdoing.
[32] Transcript of Proceedings (17 May 2022) 36.
In her oral evidence, the applicant did not say that she was subject to ongoing coercion or that she lived in fear, or that she feared him. She was not explicit. She was not asked about the information contained in the Police reports. In her Separated under one Roof (SUOR) form she stated: ‘We have nothing in common. We fight all the time. He is very abouves (sic).[33] Try and stay away from him’.[34]
[33] The word ‘abusive’ was probably intended.
[34] T7/90.

The question is whether there is something ‘unusual or different’ about the applicant’s relationship with Mrs GC that takes it out ‘of the ordinary course’, recognising that the reference to ‘special’ does not require the case to be ‘extremely unusual, uncommon or exceptional’.[35] I also note the Guide, which provides that the discretion to treat a person as not being a member of a couple should be exercised only where a full consideration of all the circumstances relevant to the individual's case would make it unjust or unreasonable not to do so.
[35] See Boscolo v Secretary, Department of Social Security [1999] FCA 106; (1999) 90 FCR 531, at [18] per French J (as he then was).
The existence of family violence is not a special reason that prevents the applicant, as the perpetrator of such violence, from being regarded as a member of a couple with Mrs GC. No inference arises from the summons material that the applicant is the victim of domestic or family violence.
The Guide also refers to an inability to pool resources and financial difficulties. The evidence suggests that they are able to pool a significant resource in the form of a substantial four-bedroom property. I accept that the reduction of the rate at which DSP is paid to the applicant will cause him some financial pressure. However, he and Mrs GC control a significant financial asset that could be sold.
There is no ground for exercising the discretion in subsection 24(2) in favour of the applicant.

FINDINGS

I find that the applicant is married to Mrs GC and that, based on the objective criteria within subsection 4(3) of the Social Security Act, they are not living separately and apart on a continuing or indefinite basis.
Section 24(2) of the Social Security Act does not apply.
I have also decided, on my own initiative, to issue a confidentiality order.

CONCLUSION

The Tribunal affirms the reviewable decision.

I certify that the preceding 61 (sixty-one) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member

.....................................[sgd]...................................
Associate
Dated: 1 July 2022

Date of hearing: 17 May 2022

Applicant: Self-Represented

Solicitors for the Respondent: Mr M. Gauci, Hunt & Hunt Lawyers

[2022] AATA 2154

1 July 2022

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Date of hearing:	17 May 2022
Applicant:	Self-Represented
Solicitors for the Respondent:	Mr M. Gauci, Hunt & Hunt Lawyers