Rourke and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2011] AATA 612

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 612

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2011/1540

GENERAL ADMINISTRATIVE  DIVISION		)
Re		MICHAEL ROURKE

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Mr R G Kenny, Senior Member

Date2 September 2011

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

...............[Sgd].................

Senior Member

CATCHWORDS

SOCIAL SECURITY – Benefits and entitlements – Disability support pension – Applicant and partner not living separately and apart on a permanent or indefinite basis – Applicant in de facto relationship for purposes of Act – Applicant a member of a couple at relevant time – Insufficient information to enable determination of payability of disability support pension –  Decision under review affirmed

Social Security Act 1991 (Cth) ss 4, 23, 1064

Social Security (Administration) Act 1999 (Cth) ss 35, 36, 37

REASONS FOR DECISION

2 September 2011 Mr R G Kenny, Senior Member    

BACKGROUND

1.      On 23 November 2010, Michael Rourke made a claim for the disability support pension, a form of income support which is payable under the Social Security Act 1991 (Cth) (“the Act”). His claim was rejected by Centrelink and, in turn, by the Social Security Appeals Tribunal (“the SSAT”). He now seeks review of the decision by the Administrative Appeals Tribunal (“the Tribunal”).

ISSUES AND LEGISLATION 

2.      There is an obligation on Centrelink to determine a claim for a social security payment in accordance with the social security law.[1] That includes a claim for the disability support pension.[2] Further, Centrelink must determine that the claim is to be granted if satisfied that the claimant is qualified for disability support pension and that the disability support pension is payable to the claimant.[3] Payability is worked out by using the pension rate calculator at the end of s 1064 of the Act. This requires that regard be had to the person’s income and assets. Where a person is living as a member of a couple, the income and assets of the person’s partner are also taken into account. In determining Mr Rourke’s claim Centrelink requested but was not provided with financial details of Brenda Porter, the woman with whom Mr Rourke shares premises. Centrelink determined that Mr Rourke and Ms Porter were living as members of a couple and that, in the absence of information about her financial circumstances, the matter of payability of disability support pension could not be determined. On that basis, Mr Rourke’s claim for disability support pension was rejected. The SSAT also determined that Mr Rourke and Ms Porter were members of a couple and affirmed Centrelink’s decision.

[1] See s 36 of the Social Security (Administration) Act 1999 (Cth) (“the Administration Act”).

[2] See s 23 of the Act.

[3] See s 37(1) of the Administration Act.

3. At issue for the Tribunal is whether or not Mr Rourke and Ms Porter have been properly assessed as being members of a couple. Relevant to that determination are the following provisions of the Act:

Member of a couple—general

4(2)     Subject to subsection (3), a person is a member of a couple for the purposes of this Act if:

(a)…; or

(aa)…; or

(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.

…

Member of a couple—criteria for forming opinion about relationship

4(3)     In forming an opinion about the relationship between 2 people for the purposes of… 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.

4(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.

MR ROURKE’S EVIDENCE

4.      Mr Rourke met Ms Porter in the mid 1970s and cohabited with her, along with her two sons from a previous relationship, in various rental properties. They have a daughter, Lisa, who was born in 1978. Since 1995, Mr Rourke and Ms Porter have cohabited in a house which they purchased jointly. This house remains subject to a joint mortgage for which they have a joint home loan account with the Commonwealth Bank. In his evidence, Mr Rourke described his relationship with Ms Porter as one which gradually changed, with a decreasing frequency of contact until, by about the mid 1990s, they lived separate lives under the one roof. His evidence was that he has exclusive use of one bedroom and a rumpus area; that Ms Porter has exclusive use of one bedroom and the living room; and that they share use of the remainder of the house including the kitchen, bathroom and laundry. 

5.      Ms Porter’s employment requires her to work various shifts including frequent night work. Until recently, Mr Rourke worked as a plumber in his own business which meant that they regularly had different sleeping and eating times and rarely saw each other. Mr Rourke said that he and Ms Porter have not had a sexual relationship since the early 1990s. He also said that they have not engaged in any joint social activity for several years, although he agreed that they had both recently attended a birthday party for Lisa’s daughter. Mr Rourke also said that, some two or three years ago, he and Ms Porter agreed to become guarantors for Lisa in her purchase of a house and, in order to do so, used their own house as security.

6.      Mr Rourke said that he and Ms Porter share the cost of utilities and that each is responsible for their own purchasing of household needs, including groceries and toiletries, for preparing meals and for completing laundry duties. Ms Porter utilises the services of a cleaner whom she pays and, in return, Mr Rourke assumes responsibility for maintaining the grounds. They communicate as and when necessary through Lisa as an intermediary. Ms Porter receives periodic invoices for household services such as the telephone, Foxtel and rates. She passes them to Lisa who takes them to Mr Rourke. Mr Rourke then completes a cheque for his respective contribution to each invoice and Lisa returns the documents to Ms Porter, who then makes the payment.  

7.      Mr Rourke has not been able to work for several months and described himself as being in difficult financial circumstances. He has debts of about $10,000 on each of his two credit cards and has been forced to sell some of his trade tools. While he was working, he had two utility vehicles, one for general use and the other for his work. He sold the former in January 2011 for $22,000 and traded down his work vehicle for a less expensive one in the week before the hearing. This was after the bank, which financed its purchase and to which Mr Rourke owed $10,700, attempted to repossess the vehicle. The trader who arranged that exchange of vehicles is a friend of Mr Rourke and he paid the bank what it was owed. Mr Rourke now has a debt to him. Mr Rourke said was not concerned with this because his friend has extended some accommodation to him in relation to making repayments. 

8.      In evidence were two Centrelink documents entitled “Relationship Details – Separated under one roof” (“relationship forms”). These were sent to Mr Rourke by Centrelink on 29 November 2010 with a request that they be completed by him and Ms Porter to assist Centrelink in processing his disability support pension claim. Centrelink requested that they be returned by 13 December 2010. Mr Rourke said that he completed both of them with the assistance of a friend, Trevor Brown. He also said that he and Mr Brown each had a form and they each completed it with information that Mr Rourke provided. Once completed, Mr Rourke arranged for Lisa to obtain Ms Porter’s signature on the form which was in her name. He then lodged them with Centrelink. 

9.      In the relationship form signed by Mr Rourke, it is declared that Mr Rourke and Ms Porter intended to live in their house “indefinitely”; that the mortgage on the house was being repaid at $1,200 per month with his share of that being $600; that both he and Ms Porter’s names appear on his Medicare card; that they have no joint bank accounts; that they separated on 6 October 2001; that he has a car registered in his name; and that Ms Porter was a beneficiary in his will. In the relationship form which purports to have been signed by Ms Porter, it is declared that the issue of remaining in the house in the future was “undecided”; that the mortgage on the house was being repaid at $1,200 per month with Ms Porter’s share of that being $600; that there was no area of the house dedicated solely for her own use; that she owns her own car; that she has no bank account jointly with Mr Rourke; and that they separated on 6 October 2001. In each form, the details referred to by Mr Rourke in his evidence concerning the use of rooms, sleeping arrangements and sexual activity, and their sharing of expenses were confirmed.

10.     In respect of his Medicare card, Mr Rourke said that, on Centrelink advice, he has now had his card reissued for himself alone. He said he didn’t realise that Ms Porter had been on his card and that he would not have been concerned if he had been aware of it. In relation to his reference to a will, Mr Rourke said that he has never had a will. In the reasons for its decision, the SSAT recorded Mr Rourke as advising that he had a will in which he left his share of the house to Ms Porter. He also is recorded there as having stated that he did not have a will. As to the mortgage on the house, Mr Rourke conceded that he and Ms Porter have a joint account with the Commonwealth Bank in relation to their home loan. As to the repayments on the mortgage, he said that he and Ms Porter each make repayments on their house loan and that, initially, they contributed equally. He said that this changed after he incurred a taxation bill of $50,000 some four or five years ago. The only means available to him to meet that payment was to refinance their house loan. Mr Rourke said that, although reluctant initially, Ms Porter agreed to the refinancing and, since then, Mr Rourke has paid a greater amount of each monthly repayment than does Ms Porter. In respect of the car nominated by Mr Rourke in his relationship form as being registered to him, Mr Rourke said at the hearing that this was not his car and that it belonged to his brother, who allowed him to use it. 

11.     After his initial claim was rejected, Mr Rourke made a further claim for disability support pension in early 2011. In processing that claim, Centrelink requested information concerning the financial circumstances of both himself and Ms Porter. In evidence was an Assets form for Ms Porter and an Income and Assets form for Mr Rourke. Again, Mr Rourke said that he and Mr Brown completed both of these forms and arranged to obtain Ms Porter’s signature in the same way as had been done earlier. 

12.     In the Assets form purportedly signed by Ms Porter on 19 April 2011, it is declared that she did not own a vehicle and had no income. The Income and Assets form is dated 24 May 2011 and bears Mr Rourke’s signature and also that of Ms Porter as his “partner”. In that Income and Asset form, Ms Porter is described as Mr Rourke’s “partner”. They are both described as being unemployed but, in addition, details are provided of Ms Porter’s income from her shift work at Qantas. Mr Rourke explained that he placed a tick in the partner box because he did not know what the term “partner” meant. Also, in the Income and Asset form Mr Rourke listed his car as being valued at $15,000 with an amount of $16,500 owing on it.

OTHER EVIDENCE

13.     Trevor Brown has been a friend of Mr Rourke for some 15 years. In his evidence he said that Mr Rourke visits him, by himself, as often as five times per week. He said that he saw Ms Porter on occasions and would merely exchange a greeting with her in passing. He recalled that, when he first met Ms Porter and Mr Rourke, they would go to a local hotel to socialize. Mr Brown said that this had not happened for some years. He agreed that he had sat with Mr Rourke to assist him in completing the Centrelink relationship form. However, he stated that he did this on only one occasion and only one form was involved. Mr Brown denied that he had played any part in relation to the completion of either of the Assets forms. 

14.     A letter from Derek Corbett was also in evidence. He described Mr Rourke as a friend of more than 10 years standing and wrote that he believed that Mr Rourke and Ms Porter “share a house together but as a separate couple”. He also wrote that he was aware that they shared household expenses. 

15.     In evidence was a report by Dr John Corbett which was sent to Mr Rourke’s general practitioner, Dr Peter Bradley. This was in a bundle of documents given to Mr Rourke by Dr Bradley for lodgement with Centrelink. The report relates to a sleep apnoea study conducted on Mr Rourke on 31 July 2008 and includes the following comment:

Sleep-related complaints include daytime lethargy, disruptive snoring (always causes partner to sleep separately)…

16.     Mr Rourke denied that he had said this to the examiner and that, if he did, it was merely a “stupid one liner” and not a serious comment.

17.     In a Centrelink file note dated 17 February 2011, Mr Rourke is  recorded as advising that his daughter is the nominated beneficiary in his will and that Ms Porter’s will nominates her two sons as beneficiaries.

18.     In evidence was a copy of a Commonwealth bank account statement in the joint names of Mr Rourke and Ms Porter for the period from 1 September 2009 to 30 November 2009. It records home loan repayments of $1,053 on 15 October 2009 and 16 November 2009. It also records deposits of varying amounts including $774.27, $1,000 and $650 for which Mr Rourke said he was responsible and another deposit of $350 which Mr Rourke attributed to Ms Porter. Copies of a Foxtel bill and two Telstra bills were also in evidence. They contain the notation “paid in full”. Mr Rourke said that Ms Porter bore the responsibility of making these and other periodic payments and that he contributed by completing a cheque in respect of his share of the expenses. He said that this was 50% unless he had been the greater user of the particular service. As an example, he said that he sometimes watched pay programs on television, such as movies or special sporting events, at home with some of his “mates”. He said that he paid the share of the bill attributable to these viewings.  Also in evidence were copies of cheque butts drawn by Mr Rourke. Some of these indicate that they represent half of particular bills, for example, for rates and Telstra payments. Other entries make no such notation.

SUBMISSIONS

19.     Mr Rourke submitted that he and Ms Porter lived separate lives and that they should not be treated as members of a couple. For the respondent, Mr Hamilton submitted that the inconsistencies in Mr Rourke’s evidence were such that it would be difficult to make findings about his living arrangements with Ms Porter but that, nonetheless, there were sufficient features of those arrangements which demonstrated that they were not living separately and apart on a permanent or indefinite basis. In particular, he referred to the length of their relationship, their joint financial dealings with the house, the shared Medicare card, the family unit they formed with their daughter, Ms Porter’s willingness to rearrange the financing of their home to assist Mr Rourke with his tax debt and Mr Rourke’s willingness to allow Ms Porter to take responsibility for managing the home finances. He submitted that their relationship was one which changed over time and reflected factors such as Ms Porter’s pattern of shift work and the need to absent herself from Mr Rourke’s disruptive snoring at night.

CONSIDERATION  

20.     There were many inconsistencies in Mr Rourke’s evidence.  These include:

·     the manner in which the relationship forms and the Income and Asset forms were completed. Mr Brown did not support Mr Rourke’s statements that he and Mr Brown sat together with each set of forms and that each completed one of them. Mr Rourke also said that he completed both forms on each occasion. 

·     Mr Rourke declared in the relationship form that he and Ms Porter had no joint bank accounts when they held a home loan account with the Commonwealth Bank. Indeed, they continue to hold this account.

·     The Income and Asset form described Ms Porter as Mr Rourke’s “partner” and it bears the signature of both Ms Porter, who signed as a “partner”, and Mr Rourke. Ms Porter was not called as a witness to verify her signature on the forms or that she had even seen them. 

·     The various versions given on the issue of whether or not Mr Rourke has completed a will and who the nominated beneficiaries, if any, are. In the relationship form which he claimed to complete for Ms Porter, Mr Rourke advised that she had a will in which he was the nominated beneficiary. He is also recorded as having made contradictory statements to the SSAT regarding having a will.

·     Mr Rourke’s evidence relating to his vehicles. Contrary to what he said at the SSAT hearing and in the Centrelink forms he completed, Mr Rourke said that he did not own the vehicle he sold in January 2011. He also gave very different valuations of the other vehicle and the extent of his indebtedness in relation to it.  These were $15,000/$16,500, respectively, in May 2011 and $9,000/$10,700, respectively, in the week prior to the hearing when he traded it for a less expensive vehicle.

·      In the Assets form which Mr Rourke claimed to have completed on behalf of Ms Porter, she is listed as having no vehicle and as earning no income. However, in the relationship form purported to be signed by Ms Porter, she is noted as owning a car and, at the hearing, Mr Rourke confirmed that Ms Porter does frequent shift work

·     the notations on the cheque butts, some of which describe a 50% contribution to a household bill, others not doing so.

·     the share that Mr Rourke and Ms Porter pay into the loan account for their mortgage on the house. At times, Mr Rourke described an equal contribution, and at other times he claimed to be paying a higher percentage because of the $50,000 increase in the debt due to his taxation commitment.

21.     Those inconsistencies leave me satisfied that Mr Rourke is an unreliable witness and one who should not be taken as a witness of truth. Further, he relied on documentation bearing Ms Porter’s signature, but she was not called to confirm the contents of those documents or to support Mr Rourke’s evidence of their relationship.  Similarly, their daughter Lisa was not called to give evidence even though Mr Rourke’s evidence placed her in an important role as communicator between himself and Ms Porter.

22. In accordance with s 4(2) of the Act, Mr Rourke and Ms Porter will be members of a couple if all five of the conditions in s 4(2)(b) of the Act are met. Of these, the only condition in dispute is that set out in s 4(2)(b)(iii) of the Act ie that they are in a de facto relationship. In determining whether or not Mr Rourke and Ms Porter have been living separately and apart under s 4(3A), all of the circumstances of their relationship must be considered. These include the matters referred to in s 4(3) of the Act.

23.     In relation to their financial circumstances[4], Mr Rourke and Ms Porter purchased a house jointly. That is understandable at the time of purchase because, at that time, it is not disputed that they were members of a couple. However, that arrangement has been continued and they retain their joint loan account with the Commonwealth Bank. Further, they have demonstrated a clear capacity to cooperate in financial matters when they renegotiated their mortgage to enable Mr Rourke to settle his outstanding taxation debt. That degree of cooperation was also demonstrated in their willingness to use their own house as security to enable their daughter Lisa to purchase a house. Mr Rourke claims to meet his share of the accounts relating to periodic household expenses, but these are managed by Ms Porter. Mr Rourke has clearly placed his trust in her doing so.

[4] See s 4(3)(a) of the Act.

24.     On Mr Rourke’s evidence, the nature of the household[5] is characterised by extensive physical separation. This includes their occupying separate bedrooms and having separate areas of the house for relaxed activity, such as watching television. However, this is partly explained by the shift work nature of Ms Porter’s employment and also by the medical report of Dr Corbett who attributed separate sleeping arrangements to Ms Porter’s reaction to Mr Rourke’s snoring. I do not accept Mr Rourke’s statement that he did not provide this information during his sleep apnoea test. Of course, the Tribunal did not have the advantage of hearing Ms Porter’s evidence on these matters. As for television viewing, separation is not surprising given Mr Rourke’s evidence that he likes to watch pay programs and does so in the company of his “mates”. While Mr Rourke’s evidence was that he assumes responsibility for the grounds and Ms Porter does so for the interior of the house, this is not an uncommon division of responsibility in many households.

[5] See s 4(3)(b) of the Act.

25.     It may be the case that Mr Rourke and Ms Porter have little in the way of joint social activity in recent times.[6] Mr Brown noted that this was not the case when he first met them some 15 years ago. However, such a reduction in attending social functions is not unusual over a timeframe of 15 years. Mr Corbett wrote in an unsworn statement that he understood that Mr Rourke and Ms Porter shared their house as a separate couple. However, he was not called as a witness and the basis upon which he made that statement is unknown. Ms Porter and Mr Rourke have no young children but Mr Rourke’s evidence was that he and Ms Porter recently attended the birthday party of their grandchild.

[6] See s 4(3)(c) of the Act.

26.     Mr Rourke’s evidence was that he and Ms Porter do not have a sexual relationship.[7] In any event, that is not a necessary component of a long-term relationship such as that of Mr Rourke and Ms Porter.

[7] See s 4(3)(d) of the Act.

27.     A significant feature of the relationship between Mr Rourke and Ms Porter is the nature of the commitment that each has to the other[8]. This is demonstrated by the willingness of each of them to live at the same premises even if, on Mr Rourke’s evidence, it is at arm’s length. They have been living together in a series of flats and houses for more than 30 years. Further, it would seem that the present arrangement is likely to continue as Mr Rourke’s relationship form records that the present arrangement will continue indefinitely; the form attributed to Ms Porter records her as being undecided about the future. In either case, there is no plan for them to change their current living arrangements. The evidence concerning the Medicare card also demonstrates commitment. The inclusion of the two names may have a historical basis, but Mr Rourke’s evidence was that he did not know of this. Significantly, he said that he would not have been concerned if had been aware of it.

[8] See s 4(3)(e) of the Act.

28. In this case, Mr Rourke and Ms Porter have been together for some 35 years. While their circumstances may have changed during that period, that is not surprising as each relationship has its own characteristics and the factors which characterise it are bound to change over time. Despite nominating a specific separation date in his relationship form, it was Mr Rourke’s evidence that the circumstances of his living with Ms Porter gradually changed. On the evidence before me in relation to all of the factors detailed in s 4(3) of the Act, I am satisfied that Mr Rourke and Ms Porter were not living separately and apart on a permanent or indefinite basis when Mr Rourke made his claim for disability support pension. It follows that Mr Rourke and Ms Porter are members of a couple for the purposes of s 4(2) of the Act, and that Ms Porter’s income and assets must be included in determining whether disability support pension is payable to Mr Rourke. At the time of assessing his claim, Centrelink did not have that information. Therefore, regardless of whether or not Mr Rourke was qualified for disability support pension, Centrelink was unable to determine that disability support pension was payable to him.[9]

[9] See s 37 of the Administration Act.

DECISION

29.     The Tribunal affirms the decision under review.

I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member R G Kenny

Signed: .........................[Sgd]............................................
  Danielle Armstrong, Research Associate

Date of Hearing  9 August 2011
Date of Decision  2 September 2011
Applicant was self-represented
Solicitor for the Respondent     Robert Hamilton, departmental advocate