RONALD LESLIE HOAD and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
[2009] AATA 541
•21 July 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 541
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/5857
GENERAL ADMINISTRATIVE DIVISION ) Re RONALD LESLIE HOAD Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Senior Member L Hastwell Date21 July 2009
PlaceAdelaide
Decision The Tribunal sets aside the decision under review and substitutes a decision that Mr Hoad does not live in a marriage-like relationship with his wife and is not a member of a couple for Social Security purposes.
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L HASTWELL
(Senior Member)
CATCHWORDS
SOCIAL SECURITY – pensions, benefits and allowances – Disability Support Pension – whether a marriage-like relationship exists – financial issues considered – no emotional commitment – gradual estrangement over years – economic reasons for continuing to share accommodation – age and partner’s health a relevant factor – qualitative change in nature of relationship – decision set aside
Social Security Act 1991 ss 4, 24
Pelka v Secretary, Department of Family and Community Services [2006] FCA 735
REASONS FOR DECISION
21 July 2009 Senior Member L Hastwell 1. Mr Ronald Hoad (the applicant) has been a recipient of Disability Support Pension (DSP) since 1996.
2. He resides with his wife and his son in the home he owns jointly with his wife.
3. In April 2008, Mr Hoad queried Centrelink treating him as a married person for the purposes of the calculation of his entitlement to DSP as he considered that he should not be treated as a married person.
4. He was then asked to fill in an assessment of living arrangements and his wife was asked to do the same. As a result of this, a decision was made on 17 June 2008 that he and his wife continued to live in a marriage-like relationship.
5. That decision was affirmed by an Authorised Review Officer (ARO) on 8 September 2008. Upon review, the Social Security Appeals Tribunal (the SSAT) affirmed that decision on 4 November 2008.
6. Mr Hoad seeks review of the SSAT decision to this Tribunal.
relevant legislation
7. The Social Security Act 1991 (the Act) sets out the provisions to determine whether a person is a member of a couple. In particular, ss 4 and 24 are the relevant provisions.
8. Section 4(2) provides as follows:
“Member of a couple—general
(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
(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.
(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.
…
Member of a couple—special excluding determination
(6)A person is not a member of a couple if a determination under section 24 is in force in relation to the person.
…
24 Person may be treated as not being a member of a couple (subsection 4(2))
(1) Where:
(a) a person is legally married to another person; and
(b)the person is not living separately and apart from the other person on a permanent or indefinite basis; and
(c)the Secretary is satisfied that the person should, for a special reason in the particular case, not be treated as a member of a couple;
the Secretary may determine, in writing, that the person is not to be treated as a member of a couple for the purposes of this Act.
(2) Where:
(a)a person has a relationship with a person of the opposite sex (the partner); and
(b) the person is not legally married to the partner; and
(c)the relationship between the person and the partner is a marriage‑like relationship; and
(d)the Secretary is satisfied that the person should, for a special reason in the particular case, not be treated as a member of a couple;
the Secretary may determine, in writing, that the person is not to be treated as a member of a couple for the purposes of this Act.”
issues
9. The issues to be determined in this case are:
·whether Mr Hoad is a member of a couple for the purpose of his entitlements under the Act; and
·if he is a member of a couple, whether there are special reasons for determining that he is not a member of a couple.
background facts
10. The following facts are not disputed:
· Mr Hoad and Mrs Hoad have been married for 36 years. They reside in their jointly owned home at Salisbury Downs.
· Mr Hoad has not worked since 1986. He is a recipient of DSP and, for DSP purposes, he has to date been considered to be a member of a couple.
· Mr Hoad also suffered a very severe angina attack in 2002 and had a stent put in an artery.
· Mrs Hoad was receiving Carer Payment with respect to the care she provided to Mr Hoad until 6 August 2007.
· On or about 6 August 2007, Mr Hoad requested that Mrs Hoad’s Carer Payment be cancelled because he did not consider that she was providing him with care and he considered that he was attending to his own care needs. Her Carer Payment was cancelled effective from that date.
· Mr Hoad received a compensation payment as a result of the accident he sustained at work in 1986. Some of those funds were used to pay off the jointly owned matrimonial home and some to modify it.
· He and his wife have occupied separate bedrooms in their home since 2003. They have not had a sexual relationship since some time prior to that date.
· He and his wife have separate bank accounts and have no access to each other’s accounts. Their accounts are at different banks.
· Mr Hoad has a small investment which comprises the balance of a payout from a work injury. This is solely in his name.
· Mr Hoad has health insurance for himself only. His wife does not have health insurance.
· He and his wife eat together on occasions and sometimes they cook meals for each other. Their son occasionally joins them.
· They have two adult children. Their son resides with them.
· All household accounts, including food costs, are divided three ways between the three occupants of the home, with each paying their share from their own individual resources.
· Mr and Mrs Hoad attend family gatherings together on rare occasions, although often they travel separately to these events.
· Both parties have sought legal advice about their marital situation, but neither has carried through with any active attempts to either resolve a property settlement or divorce the other.
· The family home has been modified to deal with Mr Hoad’s mobility problems, including a ramp and handrails to the front door, a large wider step added to the back door, an electric bath hoist and handrails in the bathroom and hand rails in the toilet.
· When Mrs Hoad filled out the living arrangements form in May 2008, she stated that she considered that they were not separated.
· When Mr Hoad filled out the living arrangements form in May 2008, he stated that he had separated from his wife in July 2003.
· Mr Hoad put a notice in the public notices of the SA Advertiser in July 2007 referring to his “estranged wife” and stating that as of 19 July 2007 he would not be held responsible for any debts incurred in his name by his estranged wife.
· Mr Hoad has been seeing a psychiatrist since 2004, who has diagnosed him with post-traumatic stress disorder with depressed mood.
· Mr Hoad’s most recent will dated 5 May 2004 (T31/91) appoints his daughter as executor. In that will, he allows his wife to retain a 40 percent share in their jointly owned home and he gives the remainder to his children on the basis of his express understanding stated in the will that his ownership in the home was 60 percent of that asset because it was paid out by his compensation. His guns and other possessions are given to his children. The only asset that he gives to his wife is “the Fairlane” if it was still in their possession at the date of death.
hearing
11. Mr Hoad represented himself and gave evidence to the Tribunal. The Tribunal received the documents filed under s 37 of the Administrative Appeals Tribunal Act 1975 into evidence. The respondent called Mrs Hoad as a witness.
further evidence provided by mr hoad as to the status of his relationship with his wife
12. Mr Hoad told the Tribunal that he had approached Centrelink and asked them to cancel his wife’s Carer Payment in August 2007 because she was not caring for him.
13. On his account, their relationship has been unhappy for a number of years and worsened when his wife’s father died in 2002. Mr Hoad became suspicious about the cause of death and this caused difficulties in his relationship with his wife.
14. He has had significant health problems over the years. He sustained major injuries in an accident at work in 1986 which left him with many disabilities. His wife received Carer Payment for the care that she has given him over the years.
15. In 2002, he had a very severe attack of angina and was hospitalised for a number of days. A stent was fitted to unblock an artery. It appears the relationship with his wife declined further after that event.
16. Since his wife moved to a separate bedroom in July 2003, she has refused to discuss what he refers to as “her problems”. Conjugal relations ceased prior to that date.
17. His wife further offended him by insisting that he be investigated for Alzheimer’s in 2005, because of her concerns about his memory.
18. He first presented her with divorce papers in 2003 and he again consulted a lawyer in January 2008 about resolving a property settlement with his wife. He discussed with that lawyer how his compensation payment, which had been invested into the house and a vehicle, would be treated in the settlement. The house has been adapted for his specific use and he is not in a position to leave that property. That lawyer did not provide him with an assurance that he would receive back in total his compensation amount in any settlement with his wife.
19. His wife has minimal superannuation entitlements as she has only been working for a few years. He cannot see how financially they could separate and move into two different houses. He is not willing to leave the matrimonial home as it is specially modified and he considers it to be mainly his property because his compensation was used to pay it off.
20. He makes his own bed, washes his own sheets and clothes and manages his own room. Their adult son resides with them and all household expenses are split three ways. The Tribunal was provided with an example of the fortnightly calculations. This arrangement has been in place for three to four years.
21. He has no access to his wife’s accounts and vice versa. They keep entirely separate finances.
22. The parties each lead their own separate lives. His wife does not go out very much. He likes to go out quite often in the evenings and his son also leads quite an independent life. Mr Hoad is a member of a pistol club and socialises at the club on his own. He provided the Tribunal with a letter from a member of the club which confirmed his involvement and that he only socialises there without a partner.
23. He and his wife have significant arguments on occasions and his perception is that she does not listen to what he says. They do very little together and things periodically escalate into arguments between them with. The last time that they had been out as a family was to go to Christmas lunch at their daughter’s home and even then he travelled in a separate car. He does not always go to family functions.
24. He is taking medication to assist him to sleep and he is seeing a counsellor. He is on a lot of other medication for his various problems, including gout, angina and reflux.
25. Mr and Mrs Hoad have their own separate vehicles. Cooking is done on an ad hoc basis, with him and his wife occasionally eating at the same time and their son sometimes joining them, but with no planned arrangement to eat as a family. The only reason they occasionally eat together is for economic and pragmatic reasons.
26. His wife will not go into his bedroom at all, but as his computer is in her bedroom he will sometimes access it during the day when she is not there. In the evenings she goes into her room, takes the dog with her and locks the door. There are minimal exchanges between them.
27. He has a small investment remaining from his compensation payment which remains in his separate name. It was in joint names, but is now in his name solely. He has been warned by Megan Dansie, solicitor that the longer he remains living under the same roof with his wife, the greater the claim his wife may have on his compensation money. He has problems with his own mother who has an aggressive form of Alzheimer’s and he has to assist in managing her situation.
28. When questioned about why he had said that it was likely that they would reconcile when he filled in his statement with respect to their relationship (T14), his response was it was because if his wife could deal with her issues he may consider reconciliation. He would not say what those issues were, but he went on to say that it had reached a point in their relationship where things had gone too far.
29. Each party has their own television in their individual room and they do not watch television together. He has discussed with his daughter how he could possibly pay out his wife in a settlement and how he could find a lender who could assist him. He cancelled the Carer Payment because he did not want her to care for him and he did not think that his wife was entitled to it.
his wife’s evidence as to their relationship
30. Mrs Hoad confirmed her husband’s evidence as to the financial and domestic arrangements. She was clearly sad about the breakdown of their relationship and her view was that the estrangement became acute in the last three to four years. She does not intend to divorce, but she told the Tribunal that she no longer believes that they are in a marriage-like relationship. She feels that the relationship broke down when their son’s marriage ended and at that point her husband appeared to change. She related that to a point in time some five or more years ago.
31. She said that it would be nice if there could be an improvement in the relationship. She did not see that there was much hope of that.
32. She was particularly distressed when she discovered that he writes Christmas cards to their two children that he addresses from himself alone.
33. She said that she had been her husband’s shadow for many years after he was injured. She feels that he no longer cares for her the way he used to and so her caring for him also tended to drop off. She said he is not interested in doing anything with her anymore.
34. She acknowledged that she had also sought legal advice as to her situation and as to separation. She does not intend to leave her home as she has nowhere to go and it is her home.
35. She said that there had been a real change in the quality of their relationship. They once loved going to the movies together and on family outings. They no longer share those interests together.
36. She sees herself as being in a marriage in a legal sense, but not in a marriage-like relationship.
other evidence
37. The Tribunal had regard to all other evidence on the file, including a letter from Mr and Mrs Hoad’s two children that confirmed the situation put to the Tribunal by Mr and Mrs Hoad.
consideration and application of the law
38. The Tribunal had no reason to disbelieve anything that was put by Mr and Mrs Hoad.
39. They both presented as genuine and credible people whose relationship has clearly broken down, partly precipitated by significant health stressors and by other stressors in their lives. The reason they continue to reside under the one roof appears to be largely economic.
40. By reference to the criteria in s 4(3) of the Act, the Tribunal makes the following findings of fact in addition to the matters set out in paragraph 10 hereof.
financial aspects of the relationship
41. Mr and Mrs Hoad jointly own a home, but have no other joint assets other than furniture acquired in the course of the relationship. They have separate bank accounts with no access to each other’s accounts.
42. Mr and Mrs Hoad each contribute to a third of all house-hold expenses, the other third being paid by their adult son who lives with them. Mrs Hoad tends to be the financial manager and at the end of each fortnight she provides Mr Hoad and her son with a calculation as to their contribution which they each individually pay.
43. Mr Hoad retains a single health insurance cover and not a family health insurance cover. Mrs Hoad does not have health insurance cover.
44. Mr and Mrs Hoad do not have any joint liabilities, other than the shared cost of household insurance.
the nature of the household
45. Mr and Mrs Hoad have two adult children who are financially independent.
46. Mr and Mrs Hoad have separate bedrooms. Mrs Hoad moved to a separate bedroom in July 2003 and the parties have not resumed sharing the same bedroom since that time.
47. Housework is largely carried out by Mrs Hoad and Adam. Mr Hoad has some significant disabilities and admits to being lazy, but he does do some housework. He takes complete responsibility for his own washing and managing his own bedroom space. Mrs Hoad will not enter his bedroom.
48. Mr and Mrs Hoad have televisions in their own separate rooms and Mrs Hoad tends to shut herself in the bedroom at night quite early and watch her own television.
social aspects of the relationship
49. Mr Hoad holds himself out as being a separated person and has done so for some time. He has gone to the extent of putting an advertisement in the paper in 2007 stating that he is not liable for the debts of Mrs Hoad. He refers to her in that advertisement as his “estranged wife”.
50. Mrs Hoad would like it if they could resume a marital relationship, but considers that the relationship is over and that they do not live in a marriage-like relationship, although they remain “married”.
51. Mr and Mrs Hoad do nothing socially together, and have not done so for a number of years. They used to enjoy going to the car club and the movies together, but that has now stopped. They very rarely attend family events together and even on those occasions Mr Hoad now usually travels separately.
52. Mr and Mrs Hoad do not engage in joint social activities.
53. Mr Hoad attends the pistol club regularly, but Mrs Hoad does not attend with him.
sexual relationship
54. There has been no sexual relationship between Mr and Mrs Hoad for a number of years and certainly since she moved to a separate bedroom.
the nature of the couple’s commitment to each other
55. Although Mr and Mrs Hoad have been married since 1972, they no longer provide companionship or emotional support to each other, nor have they done so for a period of at least three to four years based on the evidence given to the Tribunal.
56. Neither Mr nor Mrs Hoad like the situation they are in and, although they may continue to live in the same home indefinitely, neither considers that their relationship is a marriage-like relationship.
57. Mr Hoad has made provision for his children in his will in preference to his wife. His provision for his wife is minimal.
consideration and application of the law
58. The enquiry as to whether people are living in a marriage-like relationship is a factual enquiry and must be determined on a case by case basis.
59. The Tribunal has considered all of the matters set out in s 4(2) of the Act, being the criteria that it is required to consider in determining whether people are residing in a marriage-like relationship. In this case, all the relevant factors on balance pointed against the existence of a marriage like relationship and strongly so.
60. The fact that Mr and Mrs Hoad continue to share a house appears to be pragmatic in that neither party can afford to buy out the other in a property settlement and at their age and stage in life, it is an almost impossible thought for the parties to contemplate the sale of the property which is their only significant asset and which has been their home for many years.
61. In terms of the nature of the commitment of these people to each other, it is a commitment based solely on the fact that they share two children whom they both clearly love and that they jointly own a property that neither can afford to leave. There appears to be no real caring commitment at all and Mr Hoad’s will indicates that he has scant regard for his wife in terms of making any provision for her. He was also quite genuinely disparaging about her in giving his evidence.
62. Their relationship has gradually deteriorated over a number of years with there being a complete estrangement from at least 2007 onwards in terms of all the criteria that are indicative of a marriage-like relationship.
63. The Tribunal refers to the Federal Court case of Pelka v Secretary, Department of Family and Community Services [2006] FCA 735:
“The judgement to be made is difficult and, … will be attended by a degree of uncertainty. Indeed it may be that different decision-makers on the same facts could quite reasonably come up with different answers”.
64. It is the Tribunal’s view that this is a case where the marriage-like relationship has broken down. For reasons related to their age, health and finances, Mr and Mrs Hoad cannot face a final settlement that may result in their house being sold and which would necessitate both of them having to re-house in less than adequate circumstances with the little capital that they would each have available to them.
65. The fact that they are occupying separate rooms and not having a sexual relationship is not in itself sufficient to necessarily establish that they are separated. However, here all the indicators combined point towards a real separation and an end of their relationship as man and wife. Further, the quality of their relationship has changed. Although Mr Hoad considers that the separation occurred in 2003 when Mrs Hoad left the bedroom, it is the Tribunal’s view that it is more likely that the real separation occurred some two to three ago with a gradual estrangement until the relationship reached a point where it was qualitively different to the relationship that they had when they were residing in a marriage-like relationship. The consortium vitae had clearly broken down.
66. In the circumstances the Tribunal sets aside the decision under review and substitutes a decision that Mr Hoad does not live in a marriage-like relationship with his wife and is not a member of a couple for Social Security purposes.
I certify that the 66 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member L Hastwell
Signed: .....................................................................................
AssociateDates of Hearing 25 May 2009
Date of Decision 21 July 2009
Advocate for the Applicant Self-representedAdvocate for the Respondent Mr C Visser
Centrelink Legal Services and Procurement Branch
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