Roberts; Secretary, Department of Family and Community Services

[2004] AATA 358

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 358

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2003/39

GENERAL ADMINISTRATIVE  DIVISION		)
Re		SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERV ICES

Applicant

And MARIA ANN ROBERTS

Respondent

DECISION

Tribunal Associate Professor B W Davis AM (Part-time Member)

Date6 April 2004

PlaceHobart

Decision The decision of the Social Security Appeals Tribunal made on 17 January 2003 is set aside and the original decision made by the Department of Social Security (now  Centrelink) on 5 November 1987 is affirmed.

[Sgd B W Davis]

Part-Time Member

CATCHWORDS

Social Security - supporting parents benefit - Centrelink - debt - marriage-like relationship - living separately and apart - aspects of relationship - living separately under one roof - review by SSAT.

Social Security Act 1991 - s4

Social Security ( Administration) Act 1999

Social Security Act 1947, ss83AAA and 83AAC

Guide to Social Security Law

Re Costello and Secretary, Department of Transport (1979) 2 ALD 934

Re  Nguyen and Secretary, Department of Social Security (1986) 10 ALD N145

Re Tang and Secretary, Department of Social Security (1981) 3 ALN N83

Stuanton-Smith v Secretary, Department of Social Security (1992) 57 FLR 262

Re Petty and Davis and Secretary, Department of Social Security (1982) AATA 0784

Re Waterford and Secretary, Department of Social Security (1980) AATA 0431

REASONS FOR DECISION

6 April 2004 Associate Professor B W Davis AM (Part-time Member)   

1.      The decision under review is a decision made by the Department of Social Security, now known as Centrelink, to raise and recover an alleged debt of $18,023.62, being overpayment of supporting parents benefit for the period 1 July 1984 to 15 May 1987, on the basis that the respondent (Maria Anne Roberts) was living in a de facto relationship and thus not entitled to the benefit.

2.      The Social Security Appeals Tribunal (SSAT) on 17 January 2002, set aside the original decision and substituted its own decision that there was no debt and any money already recovered by Centrelink should be repaid to the respondent.

Issues

3.      (a)       Was the respondent in a de facto relationship and therefore not entitled to supporting parents benefit?

(b)      If there is a debt, what is its quantum and should it be recovered?

Standard of Proof

4. The Tribunal must determine the matter to its reasonable satisfaction, using criteria specified in s4(3) of the Social Security Act 1991 (“the Act”) and provisions of the Social Security Act 1947 especially ss83AAA and 83AAC.  These requirements will be discussed in more detail later in this text.

Background

5.      On 5 November 1987 the Department of Social Security (now Centrelink) decided to raise and recover a debt of $18,023.62 from the respondent (Maria Anne Roberts) on grounds she was not qualified to receive payment of supporting parent benefit, as she was living in a marriage-like (de facto) relationship with another, on a bona fide domestic basis.    The individual involved was claimed to be a Mr George Burton (formerly known as George Davidson).

6.      As a result of the Centrelink decision, the respondent has been repaying this debt for many years since the 1980’s, without apparent objection.   Centrelink records indicated that $10,814.90 had been recovered as at 25 June 2002.

7.      More than 14.5 years later than the initial decision, on 2 December 2001, the respondent and Mr Burton wrote to Centrelink and requested details of all debts that had been raised against the respondent.

8.      On 14 May 2002, almost 15 years after the debt was originally raised, Mr Burton formally sought review of the debt on behalf of the respondent and the matter was referred to an Authorised Review Officer (ARO).

9.      The ARO decided on 25 June 2002 to affirm the decision made on 5 November 1987, citing a number of reasons for this view.

10.     The ARO reported that on 18 June 1987 the former Department of Social Security (DSS) received information that Maria Roberts was allegedly living in a de facto relationship with Mr Burton .    A debt of $18,023.62 was then raised against Ms Roberts, but Centrelink is now unable to locate papers relating to calculation of this debt.   The ARO noted that in similar cases, the AAT and Federal Court had ruled it possible to infer a debt existed because of the existence of other evidence.   In the current case, computer records indicate the reason for raising the debt was “marital status”.

11.     The ARO also believed Ms Roberts and Mr Burton had a longstanding relationship extending back to 1983.   Since 1983 they have (according to the ARO):

·     had at least two children together;

·     lived together as a couple;

·     lived together while separated, to provide support for their children;

·     formed a private company and family trust together, which has been involved in a variety of business activities, including land subdivision, management of a hotel and property rental;

·     there is an FOI letter dated 5/2/87, showing there was a public denunciation that Ms Roberts was living with Mr Burton;

·     Centrelink taxation records indicate taxation statements were issued to both individuals at the same address on at least two occasions during the period January 1985 to July 1987.

12.     The ARO decided it was not possible to determine at what date they began to live together as a couple, however it appeared that nearly three years payment of supporting parents benefits had been sought and paid between 1984 and 1987.   In November 1984 Mr Burton departed Tasmania to live in Newtown, Sydney and Ms Roberts followed him in January 1985.  At that time they already had one child together and later a second child was born.

13.     The ARO concluded that the debt could not be waived, because there was no evidence of administrative error.   Mr Burton was either in receipt of single rate unemployment benefits or paid employment at the time.   During the period in question the respondent and Mr Burton lived at various addresses in Hobart and Sydney.

14. In May 1987 the qualification requirements for supporting parents benefit were set out in s83AAC of the Act, with a requirement that a person claiming assistance be a single person. Section 83AAH required Ms Roberts to inform the DSS if her domestic circumstances changed or if she commenced living with a man as his wife on a bona fide domestic basis, although not legally married to him. The ARO considered Ms Roberts had not fully informed DSS of her domestic arrangements and that a de facto situation existed (section 6(1) of the 1947 Act) and hence supporting parents benefit had incorrectly been claimed and paid.

15.     The respondent did not lodge an appeal for review of the original 1987 decision until it was affirmed by the ARO in June 2002.   She then lodged a request for review by the Social Security Appeals Tribunal (SSAT) on 29 August 2002.

16.     The SSAT hearing was conducted in part in Hobart on 5 December 2002, but adjourned to obtain further information, being resumed and completed on 17 January 2003.   Ms Roberts attended both hearings, accompanied by Mr George Burton and both spoke to the Tribunal.   At the second hearing on 17 January 2003 Ms Roberts was represented by Mr Hamish Locke, solicitor, from the Hobart Community Legal Service.

17.     After considering Centrelink records about the debt and events following Mr Burton and Ms Roberts at the Tribunal hearings, then turned to discussion of the evidence,  application of the law and a decision to overturn the original decision made by Centrelink in November 1987, on grounds no debt existed and Ms Roberts should be paid all money recovered by Centrelink.

18.     In evidence to the Tribunal Mr Burton claimed he had been friends with Maria Roberts and her siblings for a long time, in fact since she was 12 years old.   He described her as a drug-dependent person, declared so by the Department of Health in 1990, but with an extensive history of drug abuse prior to that in NSW, moving in and out of treatment and shifting between NSW and Tasmania at various times.   Ms Roberts served nine months in prison in 1989 for armed robbery, at which time she was pregnant by another man.

19.     George Burton admitted to having been a drug dealer himself from the time he left school in 1969 until he achieved reform in the 1990’s.   His life had been threatened in 1981/82 after giving evidence in a drug trafficking case and he had moved to Sydney where Ms Roberts joined him at age 18 and he moved in with her after a child was born in May 1983.   Ms Roberts went back to Tasmania a number of times, but was also spending periods in NSW, using drugs, seeing other boyfriends and attempting drug rehabilitation at various times.

20.     Mr Burton described his relationship with Ms Roberts as one where casual sex occurred, but he now felt great responsibility for her and his two children by her, having lost access to other children from previous relationships.

21.     Ms Roberts told the Tribunal she started using heroin when she relocated to Sydney for protection, but stayed there because of the ready availability of drugs.   She had tried rehabilitation five times, but was often on the move, returning to Tasmania at times but living in a variety of locations in NSW, mostly where Robert Burton resided.   She did not inform Centrelink of every move and could not explain how a substantial debt for incorrect payment of single parenting benefit had arisen in the 1980’s.    At the time of the SSAT hearing she was in receipt of parenting payment single and Mr Burton was on disability support pension.

22.     The SSAT attempted to reconstruct her movements and domestic circumstances between 1981 and 1988, but was largely reliant on Mr Burton’s account for the principal period of interest 1984-1987.   At a later period the AAT had found in May 1995 that the couple were living in a marriage-like relationship between June 1992 and January 1993.

23.     Counsel for Ms Roberts attempted to aid the SSAT by setting out claimed details of the relationship, based on comments by her and Mr Burton.   The principal claims were as follows:

(a)      Financial arrangements:

Ms Roberts did not contribute to rent, but family trusts were established for the children in 1998/99; Ms Roberts is not a beneficiary.

(b)      Household arrangements:

They had separate rooms, there were often others in the house and both had relationships with other people during the period in question.

(c)       Sexual relationship:

They had a casual sexual relationship resulting in two children.

(d)      Social relationship:

They had never held themselves out as married, but Ms Robert’s parents blamed Mr Burton for the daughter’s downfall and a drug based relationship.

Third parties residing in homes:

Other people stayed with them and paid rent, some did not pay rent.

Living separately and apart:

Mr Burton said that at times he purposely made Ms Roberts leave the premises, as he had heard six months was the limit to de-facto relationship.

Relationship with the other party:

Both claimed the relationship centred about caring for the children.

24.     Having weighted this and other evidence the Tribunal was of a view limited material existed about the relationship at the relevant time.   The Tribunal acknowledged there were some elements of a de facto relationship, but some evidence was inconsistent with such a relationship.   The situation was not aided by the loss of some DSS records, including how the Department initially concluded the couple were living in a de facto relationship.   It was not a conventional relationship and essentially drug-based.

25.     On balance the Tribunal found that, during the period in question, the arrangements between Ms Roberts and Mr Burton did not fit the definition of a de facto relationship.   The SSAT therefore set the original decision aside and concluded there was no debt and any money already money already recovered by Centrelink should be repaid to Ms Roberts.

26.     The Department of Family and Community Services disagreed and decided to seek review by the AAT on 26 February 2003.

Facts and Contentions

27.     In a statement of facts and contentions submitted on 16 December 2003, the applicant (DFCS) argued that the debt was lawfully raised, that Ms Roberts and Mr Burton had not queried this for 15 years and were now using this period to prejudice the applicant’s case, relying upon the fact some DSS records were no longer available.   The applicant contended that at all relevant times the respondent was living with Mr Burton on a bona fide domestic basis and for this reason was not qualified to receive supporting parent’s benefit at the time.   The applicant submitted detailed case evidence to support its claims.

28.     The statement of facts and contentions filed on behalf of the respondent (Ms Roberts) on 21 January 2004 argued that inferences drawn by the ARO in June 2002 were speculative and validity of the debt had been questioned from a FOI request of February 1988.   There is no evidence the respondent was earlier advised of reason for the debt, other than claims that she and Mr Burton were in a de facto relationship at the time.    The available evidence did not support such a contention, as domestic arrangements involved a number of persons, rather than two.   The onus was on the Department to show a de facto relationship had existed.

The AAT Hearing

29.     The AAT hearing was conducted in Hobart on 26 February 2004; the applicant was represented by Mr Brian Sparkes and the applicant by Mr Hamish Locke.   Ms Roberts and Mr Richard Burton were present and gave evidence, no other witnesses were called.

30.     Counsel for the applicant (DFCS) outlined the principal issues in the case, stating supporting parent benefit was falsely claimed for a period between 1984 and 1987 by the respondent as she was then and at later times living in a marriage-like relationship with Mr Burton.   There had not been any querying of the debt situation until an FOI request in 1988 and formal request for review in May 2002.   The ARO had correctly affirmed the original decision after detailed investigation, but the SSAT had overturned this, although admitting there were considerable difficulties about evidence.    The AAT was now in a position to consider the situation de novo.   There were numerous prior case determinations about marriage-like situations and these fully supported Centrelink’s case.

31.     Mr Richard Burton was then called as initial witness for the respondent.     Mr Burton gave a highly detailed account of events during the 1980’s and his relationship with Ms Roberts.   He claimed to be a caring person, often having people staying in his house, whether paying rent or not.    He had known Maria Roberts from the age of 12, she saw him as a friend in time of need and despite relationships with other people, they were often living in the same house, with only casual sexual relationship.   Neither considered it a marriage-like relationship.   Both were primarily concerned about care of the children.

32.     Mr Burton claimed that despite his drug-related background he was now regarded as having a humanitarian role in aiding drug-dependent people and had gained community recognition for his work.   His actions on behalf of Maria Roberts arose from genuine concern about her and his children and a recognition she could not always cope, given her lifestyle.  

33.     Under cross-examination Mr Burton claimed he had never held himself out as being married to the applicant, nor had he called her his partner.   When showed documentation in which he used this phrase, he said it related to a custody situation only.   He was also questioned about an AAT case in 1995 (Burton and Secretary, Department of Social Security 1995) AATA 10208) in which he was shown to have been in a de facto situation.   He said it was about an ex-partner and he would not comment further.   The reality was that he had various partners at different times and was father to six children.  He claimed that a document showing Ms Roberts and him living at the same address in 1989 did not look like his writing.   Counsel for the applicant then drew attention to comment from the previous AAT decision, which indicated Mr Burton was considered an unreliable witness.

34.     Maria Anne Roberts was then sworn and agreed she and Robert Burton had often lived in the same house at various locations in NSW and Tasmania at various times.    Although he was the father of two of her children, she had never regarded him as her partner.   She had a drug affected mind and could not recall in detail events of the 1980’s, but considered her relationship with George Burton was not de facto, rather she relied upon him for advice and support.   Under cross-examination as to why it had taken her so long to query the single parenting payment debt, she said she was not focussed earlier and really did not comprehend what was going on.

35.     In closing submissions, counsel for the applicant said that the debt incurred between 1984 and 1987 had been very substantial at the time and the DSS had acted lawfully in raising the debt.   In any case, Maria Roberts had failed to meet the requirements of s83AAH of the 1947 Act to keep the Department informed of her various residential location and domestic arrangements.   While the 1947 Act and the more recent Social Security (Administration) Act 1999 treated phrases such as “de facto couples” and “marriage-like relationships” in slightly different ways, virtually the same criteria were used to assess whether or not a couple were sharing a close personal relationship.

36.     There were a number of weaknesses in the case presented by the respondent.   The fact that the debt was not questioned until 15 years after it was raised, was indicative of acceptance.   There was confirmation a marriage-like relationship existed at least in the early 1990’s, even if deliberate attempts were made to circumvent such an appearance by periods of selective separation.   No witnesses had been produced to vindicate any of the evidence given and much of this was presented by Mr Burton, who in an earlier AAT case had been described as an unreliable witness.   The timing of the request for review of the original decision had placed Centrelink in a difficult situation, when some of the documentation had been lost or destroyed; nonetheless the Tribunal should place more weight on the extant documentary evidence than the claims of Ms Roberts and Mr Burton.   Centrelink considered the SSAT decision was equivocal but in error, hence the original decision should be affirmed.

37.     In closing submissions, counsel for the respondent said that the existence of a de facto relationship at the relevant time was staunchly denied.  Centrelink did not appear to have investigated the origin of the debt in any detail; it was largely dependent upon an anonymous tipoff and inferences drawn from that.   The mere fact that Ms Roberts and Mr Burton had shared a relationship resulting in two children did not confirm a de facto relationship existed; both parties had other partners at times.   They were often separated for weeks or months at a time, during and after the debt period.   The respondent contended overall that the indicia of a de facto relationship were not present.

38.     It was admitted there were times outside the relevant period when Maria Roberts used the title “Mrs Burton”, but this was only for the sake of convenience.  A spasmodic sexual relationship existed, but it was neither loving or permanent.   Mr Burton perceived the relationship in terms of his concern for people and the need to take responsibility for Ms Roberts and her children.    It was clear the respondent’s drug addiction had led to difficulty in conducting her affairs and remembering past events.   Things had not been aided by the Department’s failure to keep adequate records; administrative justice could not occur in such situations and there was an onus for those involved to come forward, otherwise all was hearsay.

39.     The respondent contended that the debt was not correctly raised and the parties were not in a de facto relationship at the relevant time.

Analysis

40.     The Tribunal is required to stand in the shoes of the origin al decision-maker, considering all evidence anew, noting statutory provisions and any relevant case determinations.

41.     In the current case this is not an easy assignment, given the efflux of time, the loss of some documents and the absence of any witnesses against which the evidence of both parties might be tested.   Given the above, the Tribunal has taken considerable care to examine all documentary records and the transcript of hearing evidence in some detail.

42.     The first matter to be tested is the origins of the claimed debt and its validity.  Evidence suggests it was an anonymous tipoff which led the DSS to decide Maria Roberts and George Burton were living in a de facto relationship between 1984 and 1987, and therefore Ms Roberts was not entitled to parenting payment single and repayment was required.

43.     Although relevant documentation has been lost or destroyed, it is highly unlikely such a substantial debt would have been raised against the respondent without considerable further investigation and checking, indeed computer records indicate the reason for raising the debt was “marital status”.   The fact that no objection was raised for nearly 15 years after this decision is highly indicative of acceptance.    Although Maria Roberts subsequently claimed she did not know what was going on at the time, Mr Burton was involved throughout and in a position to formally request review, which he did not do until mid 1992.   it should also be noted that further debts were raised against the respondent, for different reasons, after 1987.

44.     Having examined the evidence the Tribunal is of a view, on the balance of probabilities, that no administrative error arose in raising the debt.   The more substantive issue is whether Maria Roberts and George Burton (George Davidson) were living in a de facto relationship at the time.   The SSAT decided on balance they were not, but noted that some elements of a de facto relationship were evident.

45.     The relevant legislation at the time the debt was raised, was the Social Security Act 1947, which is now superseded by the Social Security Act 1991 and the Social Security (Administration) Act 1999.   The AAT hearing is de novo and the Tribunal must consider the circumstances at all relevant times, but apply the law applicable at the time of review and decision (Re Costello and Secretary, Department of Transport (1979) 2 ALD 934;  Nguyen and Secretary, Department of Social Security (1986) 10 ALD N145)

46.     There are a number of case determinations which clarify the factors relevant to a decision about marriage-like relationships (see for example Re Tang and Secretary, Department of Social Security (1981) 3 ALN N83 Stuanton-Smith v Secretary, Department of Social Security (1992) 57 FLR 262).    These criteria are also set out in paragraph 4.03 of the Guide to Social Security Law.   The general matters to be considered include:

·the living, eating and sleeping arrangements in the household;

·the existence or otherwise of a sexual relationship between the parties involved;

·character of the social relationship;

·the relationship between any third parties in the house and the individuals involved;

·the financial arrangements and how expenses are met;

·whether the applicant and the other party hold themselves out as living separately and apart;

·did they claim to others the relationship did not contain any degree of permanence?

·did the relationship between the applicant and the other party give rise to any moral, social or legal rights between them?

47.     As already noted, at the SSAT hearing, counsel for the respondent submitted a number of claims that a de facto relationship did not exist during the relevant period.   In  brief outline it was submitted that:

·Ms Roberts did not contribute to rent, but family trusts were established for the children.

·They had separate rooms, there were often others in the house and both had relationships with other people.

·There was a casual sexual relationship resulting in two children.

·They did not hold themselves out as married.

·They claimed to be living separately and apart.

·They claimed the relationship centred around the children.

The central problem with all of this, is that it is largely hearsay, since no witnesses were called to validate the claims.   The issue of credibility of the parties has also been raised.

48.     Counsel for the applicant (DFCS) provided a different perspective of the situation:

·There was a sharing of household expenses, as joint financial dealings existed through family trusts.

·Taxation records show a common address and they shared homes at various times during the relevant period.

·They had a sexual relationship and two children together.

·They claim not to have held themselves out as married, but documents show they used the term “partner” on several occasions and signed as such.

·The contrived to create the perception of separation, George Burton admitting he had heard 6 months was the limit to a de facto relationship.   Following Re Petty and Davis and Director-General of social Security (1982) 4 ALN 215, this could be regarded as an attempt to conceal the true nature of the relationship.

·The relationship between the parties is longstanding and indicates a significant degree of permanence.    The decision in Burton and Secretary, Department of Social Security (1995) AATA 10208 shows they were living in a marriage-like relationship in 1992 – 93.

49.     Not all of this is proof a de facto relationship existed between 199984 and 1987, but it does support the notion of a close relationship, sexual, financial and otherwise over many years.   Household arrangements and relationships were scarcely of the usual kind, nonetheless there are strong indications Mr Burton was in command of affairs and made key decisions affecting Maria Roberts life.   He considers this to have been a guardian-like situation, but there is every appearance it was more than that.

50.     This brings us to the point of credibility of the parties and their evidence.  Maria Roberts is open in her admission that her drug-related state meant she was not always aware of what was going on.   But Mr Burton was aware and made all the key decisions.   The AAT Tribunal in its decision of Burton found that for the period 19 June 1992 to 13 January 1993, the respondent and Mr Burton were living in a marriage-like relationship.   In relation to Mr Burton’s evidence Deputy President Blow said:

“In so far as his evidence tended to suggest that he and Miss Roberts were not living in a marriage-like relationship, I think it should be viewed with great scepticism.  His assertions are difficult for anyone to contradict.   He had a strong financial incentive to tailor his evidence to support the proposition that the relationship with Miss Roberts was not a marriage-like one.   He was content to have the department treat the relationship as a marriage-life one until he discovered that, as a result, his bank was not receiving money that he wanted it to receive.   In my view he was not a credible witness.”

51.     Having examined the evidence in detail, the Tribunal agrees with the SSAT that not every indicator of a de facto relationship has been met, but then we are not dealing with normal household arrangements or relationships, but one where rather bizarre and drug-related circumstances apply.   The Tribunal does not give full credibility to Mr Burton’s evidence; it was at times rather glib and evasive of close questioning.   While it is not possible to prove or disprove that Maria Roberts and George Burton were in a de facto relationship between 1984 and 1987, the Tribunal believes on balance such a relationship did exist, was checked and identified by the Department and the debt relating to parenting payment single was appropriately raised and lawful.

Decision

52.     The decision of the SSAT dated 17 January 2003is set aside and the original decision of 5 November 1987 affirmed.

I certify that the 52 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor B W Davis AM (Part-time Member)

Signed: K L Miller (Administrative Assistant)

Date/s of Hearing  26 February 2004
Date of Decision  6 April 2004
Counsel for the Applicant         Mr Brian Sparkes
Solicitor for the Applicant          Centrelink
Counsel for the Respondent     Mr Hamish Locke
Solicitor for the Respondent    Hobart Community Legal Centre