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

[2010] AATA 1066

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 1066

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/2812

GENERAL ADMINISTRATIVE  DIVISION		)
Re		ANNE SALTER

Applicant

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

Respondent

DECISION

Tribunal Senior Member K S Levy, RFD

Date24 December 2010

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

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

Senior Member

CATCHWORDS

SOCIAL SECURITY – Benefits and entitlements – Aged pension – Applicant receiving partnered rate of benefit and treated as a member of a couple – Marriage like relationship – Discretion not appropriate - Decision under review affirmed

Social Security Act 1991 (Cth) ss 4, 24

Staunton-Smith v Secretary, Department of Family and Community Services [1991] 32 FCR 164
Re  Secretary, Department of Social Security and Marshall [1991] AATA 91
Re  Erdmann and Secretary, Department of Social Security [1996] AATA 175
Jones v Dunkel (1959) 101 CLR 298

REASONS FOR DECISION

24 December 2010 Senior Member K S Levy, RFD    

INTRODUCTION

1.      The applicant in this matter is Anne Salter.  She is legally married to Ken Hepburn and has been so married since 8 December 1998.  Ms Salter has been on disability support pension since 15 March 1990.  On 7 April 2008, she was entitled to age pension and was transferred to that rate of benefit.  She has been paid the age pension at the partnered rate since 21 April 2010.  She sought review of this decision with the Social Security Appeals Tribunal (“SSAT”) and that Tribunal affirmed the original decision dated 21 April 2010.  She now appeals to this Tribunal against that decision.

ISSUE FOR DETERMINATION

2.      As Ms Salter seeks review of the decision to pay her age pension at the partnered rate with effect from 21 April 2010, in effect, she disputes being classed as a “member of a couple” under the Social Security Act 1991 (“the Act”).  In technical terms, the issue the Tribunal must determine is:

(1) Is Ms Salter a “member of a couple” under s 4 of the Act?

EVIDENCE

3.      Ms Salter married Mr Ken Hepburn on 8 December 1998.  The applicant says that after they were married, they bought a house together in Raymond Terrace.  The purchase of the house was paid for by money she received from her mother’s estate and Mr Hepburn’s lump sum superannuation.  However, the house is recorded now in her name only.  She also states that they were married as she got on “okay” with Mr Hepburn and that she had made a promise to her mother to marry him.

4.      Ms Salter gave evidence also that had she not married Mr Hepburn and pooled resources with him, she would have lived in a caravan.  She had, prior to that, lost a daughter who had had a drug problem and Ms Salter then had a nervous breakdown.  Ms Salter’s house had also burned down around that time.

5.      Ms Salter advised that she and Mr Hepburn lived at Raymond Terrace from November 2005 to November 2008.  That property was then sold and Ms Salter purchased a relocatable home in Tweed Heads with the proceeds of sale.  She and Mr Hepburn have resided there since November 2008.

6.      Ms Salter states that the SSAT misunderstood the facts of her situation.  She gave evidence that she and Mr Hepburn do not have a relationship and that he is most ineffective around the house.  She said that she cooks all meals and will not have him in the kitchen as he is unhygienic.  She does his washing for him (except his underwear) but does not clean his room.

7.      She described their financial arrangements as having never had joint bank accounts and they have separate health funds.  They have never had an account in both names although there is an amount of $90,000 in an account in her name which is Mr Hepburn’s money and from which he withdraws money for gambling.  She essentially maintains control over their finances.

8.      Ms Salter said that she is at home most of the time whereas Mr Hepburn is out a good deal of the time.  She denied that they were beneficiaries of each other’s Wills and said that she will not be entitled to his superannuation.  In terms of social arrangements, Ms Salter says that she does not know many of Mr Hepburn’s friends.  She also said that she drives Mr Hepburn around.  She stated that there had never been a sexual relationship between them.

9.      Under cross-examination from Mr Hawker, she acknowledged that they have had a number of overseas holidays together since they were married in 1998.  Indeed, evidence was given that they had an overseas holiday together in 1998 (to Indonesia), in 1999 (to Fiji), in 2001 (for approximately two months to Fiji), in 2004 (to Phuket in Thailand), in 2006 (to Fiji) and again in 2009 (to Indonesia).  In respect of the latter holiday, her son accompanied them also to Bali.

10.     The applicant described the need for a bridging loan to purchase the house in Raymond Terrace.  Under cross examination, she acknowledged that there is another account of $50,000 in her name but she said that Mr Hepburn gets money whenever he needs it.  She also referred to her husband as having a gambling problem and as a result, she looks after the finances.  Despite her evidence in chief stating that she drove Mr Hepburn around, under cross-examination she said that Mr Hepburn does the driving.  They have a Hyundai car which the applicant said Mr Hepburn purchased.  However, everything is in her name.  She indicated that she pays money towards petrol and parking from her pension.

11.     Also in relation to their social arrangements, Ms Salter said that in times of illness such as when Mr Hepburn had a heart bypass operation six or eight years ago, she has supported him.  She also mentioned that she does the washing and Mr Hepburn puts it on the line.  He also carries out the grocery shopping for her although she gives him money to purchase these.  She also stated that they have gone to a local tavern a couple of times a week originally to get cheap meals, but that has now ceased.

12.     In relation to their new relocatable home, she described their house as two bedrooms with an open area together with a separate shower and toilet.

13.     She noted that she has three pension cards being in both her name and Mr Hepburn’s name.

14.     A witness, Ms Sheila Newton, one of their neighbours from Tweed Heads also gave evidence.  Ms Newton stated that she was the direct next door neighbour and that she had known the couple for about 18 months to two years since they moved to the village.  Ms Newton said that she had noticed that they lived separate lives and that they eat separately.  Under cross-examination, it was apparent that she has occasionally been there for morning tea but is virtually never there to make any observations about whether they have meals together or not.

15.     Each of the parties made submissions about their evidence and the law. The applicant claims she was not fairly treated by Centrelink.  She also was sensitive that she did not get a face-to-face hearing with the SSAT.  She claimed that she had provided all of the relevant information to Centrelink at the time they moved in to the house at Raymond Terrace.

16.     Mr Hawker noted that the decision under review is effective as at 21 April 2010 and that any events after that date would not be relevant.  Mr Hawker also addressed each of the legislative components and made submissions about the corresponding evidence.

CONSIDERATION

17.     All of the statutory provisions and the common law relevant to determination of the issue in dispute has been taken into account.

Legislation

18. The relevant statutory provisions are s 4 and 24 of the Act. Section 4(2) defines a member of a couple which includes a person who is legally married to another person and is not living separately and apart on a permanent or indefinite basis.

19. Section 4(3) amplifies the relevant considerations in determining whether somebody is a member of a couple. In particular, the relevant factors are:

(a)The financial aspects of the relationship;

(b)The nature of the household;

(c)The social aspects of the relationship;

(d)Any sexual relationship between the couple; and

(e)The nature of the parties’ commitments to each other.

20. Section 24 describes a discretion which the Secretary has to determine that somebody will not be regarded as a member of a couple even though they are legally married, not living separately and apart on a permanent or indefinite basis, and where the Secretary is satisfied there is a special reason for the parties not to be treated as a member of a couple (s 24(1)). Likewise, the Secretary has a discretion to determine where a couple will not be regarded as being a member of a couple yet they live in a marriage-like relationship and there is a special reason for so declaring them (s24(2)).

21.     The Tribunal must give consideration to all of the evidence including the weight of evidence by various witnesses and their credibility[1].  Evidence may show that a couple have no permanent relationship where there is no physical contact[2].  In considering the evidence, the Tribunal must consider the veracity of the evidence and the weight which should be accorded to it[3].  I note the applicant’s husband, Mr Ken Hepburn, was not called as a corroborating witness.  That may be a factor which might be relevant to the weight of evidence[4].

[1] Staunton-Smith v Secretary, Department of Family and Community Services [1991] 32 FCR 164

[2] Re  Secretary, Department of Social Security and Marshall [1991] AATA 91

[3] Re  Erdmann and Secretary, Department of Social Security [1996] AATA 175

[4] Jones v Dunkel (1959) 101 CLR 298 at 312 and 317

22. The evidence shows that of the criteria for determining whether there is a relationship pointing to the parties being a member of a couple, the criteria in s 4(3) are the tests of significance. In particular, the financial aspects of the relationship show that there is a pooling of resources, a significant sharing of bank accounts and that Ms Salter has some oversight of Mr Hepburn’s gambling problems.  It is clear also that the residential properties they have owned have been funded by the joint capital of both parties.  There also appear to be mutual wills where there is a moral obligation at least for the applicant, to make Mr Hepburn the beneficiary of her Will as submitted by the respondent.  However, there does not appear to be any documentary evidence in support of that submission (s4(3)(a)). The financial arrangements are largely pooled in what seems to be a convenient arrangement by the parties.

23.     The nature of the household in which they live is such that the applicant’s case was supported by the witness, Ms Sheila Newton.  Her evidence was scant and apart from saying that she had had morning tea there on a number of occasions, most of her evidence was internally inconsistent.  Her evidence of the meal arrangements of the applicant and her husband does not seem to be supported by any direct evidence that she had of such arrangements. She appeared to be a witness of convenience designed to provide confirmatory evidence or to bolster the weight or credibility of the applicant’s evidence. I found her evidence to be of low weight and her credibility of limited value.

24.     Other evidence of the household appears to be organised so that the applicant provides at least one meal per day; there is a sharing of the washing duties (Mr Hepburn hangs the washing out); in relation to the shopping, he contributes $200 a week to costs and particularly if Ms Salter is unwell, Mr Hepburn does the shopping on behalf of both of them; and they both access common areas, for example, the bathroom (s 4(3)(b)). The evidence shows sharing of household facilities and costs as well as sharing of the household duties by agreement or perceived necessity of the parties.

25.     In relation to the social aspects of the relationship (s4(3)(c)), Ms Salter and Mr Hepburn have had a number of international holidays together dating back to even before their marriage in 1998.  They have also lived together in the property at Raymond Terrace and also at Tweed Heads.  She referred to both parties sharing nights at the tavern for some time and she now sometimes makes baked dinners for both of them. The social arrangements are consistent with two people living as a member of a couple.

26.     She denied there has ever been a sexual relationship between them (s4(3)(d)).

27.     The nature of the commitment of the parties (s4(3)(e)) reveals that they have lived together at least from 2005 to 2008 and the applicant has shown concern for Mr Hepburn particularly about his gambling, his personal living arrangements such as hygiene and at times of his bad health.  There appears to be no evidence of any plan for them to move out of the house at Tweed Heads despite evidence from the applicant that the parties intend to divorce.  That fact however is not relevant as at the date of the decision under review, that is, as at 21 April 2010.

28.     The relationship between the parties is not completely a conventional married relationship.  However, their relationship has been lengthy and that there is or has been some bond which points to a relationship of convenience, reliance upon each other and some degree of attachment, albeit that it seems Ms Salter might not regard that as a deep and enduring bond.  No evidence was available from Mr Hepburn in this respect as he was not called to give evidence. Nevertheless, the relationship has existed for well over a decade and the reliability of the applicant’s evidence has not been corroborated by Mr Hepburn who, it seems, could have been brought before the Tribunal to corroborate the applicant’s evidence.  The weight of her evidence, particularly when taken together with her demeanour and somewhat cavalier attitude (together with some minor inconsistencies in her evidence such as who does the driving duties) reduces the credibility of the applicant as a witness[5].

[5] Jones v Dunkel (1959) 101 CLR 298

29. Despite the lack of corroboration of the applicant’s evidence, I find that on the balance of probabilities, the criteria in s 4(3) support a finding that Ms Salter and Mr Hepburn are a member of a couple at the date of the decision under review. Had her case been stronger, I may have been persuaded that notwithstanding that Ms Salter and Mr Hepburn are legally married, that there may have been a case to exercise a discretion in her favour under s 24(1) of the Act. The evidence, however, does not justify applying that discretion.

30.     In the circumstances, I find Ms Salter is a member of a couple.  The decision under review is therefore affirmed.

I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member K S Levy, RFD

Signed: ...................................[Sgd]........................................
              Alex Seagar, Research Associate

Date/s of Hearing  27 October 2010
Date of Decision  24 December 2010
Applicant was self-represented
Solicitor for the Respondent     Matthew Hawker, Sparke Helmore Lawyers