SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS and SEAN THOMAS O'GORMAN

[2009] AATA 156

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 156

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/3319

GENERAL ADMINISTRATIVE DIVISION		)
Re		SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Applicant

And SEAN THOMAS O'GORMAN

Respondent

DECISION

Tribunal Deputy President S D Hotop

Date12 March 2009

PlacePerth

Decision The Tribunal sets aside the decision under review and remits the matter to the applicant for reconsideration in accordance with the direction that the rate of youth allowance payable to the respondent be calculated on the basis that, from 20 July 2007, the respondent has been a “member of a couple” for the purposes of the Social Security Act 1991 (Cth).

..........[sgd S D Hotop]........

Deputy President

CATCHWORDS

SOCIAL SECURITY – youth allowance – respondent received youth allowance at independent rate – respondent had relationship with person of opposite sex to whom not legally married – consideration of all circumstances of relationship including statutory criteria – relationship between respondent and other person a marriage-like relationship – respondent a member of a couple – rate of youth allowance payable to respondent to be calculated on that basis – decision under review set aside

Social Security Act 1991 Cth, s 4(2)(b) and s 4(3)

Pelka v Secretary, Department of Family and Community Services (2006) 151 FCR 546

REASONS FOR DECISION

12 March 2009 Deputy President S D Hotop

Introduction

1.      Sean Thomas O’Gorman (“the respondent”), who was born in August 1987, was granted youth allowance under the Social Security Act 1991 (Cth) (“SS Act”) in March 2004 and he received youth allowance at a rate calculated on the basis that he was an “independent” person with effect from 23 February 2004.

2. On 10 August 2007 a Centrelink officer decided that the respondent had a “marriage-like relationship” with Kristy Lee Guerin (“Ms Guerin”), with effect from 20 July 2007, and that the rate of his youth allowance was to be recalculated on the basis that he was a “member of a couple”, for the purposes of the SS Act, with effect from that date. That decision was affirmed by a Centrelink authorised review officer (“ARO”) on 12 May 2008.

3. On 16 June 2008, however, the Social Security Appeals Tribunal (“SSAT”) set aside the decision of the Centrelink officer as affirmed by the ARO and substituted a new decision that the respondent did not have a “marriage-like relationship” with Ms Guerin and, accordingly, he was not a “member of a couple” for the purposes of the SS Act.

4.      The Secretary, Department of Education, Employment and Workplace Relations (“the applicant”) has applied to this Tribunal for review of the decision of the SSAT.

The Relevant Legislation

5. The phrase “member of a couple” is relevantly defined in s 4 of the SS Act as follows:

“4(1)    In this Act, unless the contrary intention appears:

…

member of a couple has the meaning given by subsections (2), (3), (3A), (6) and (6A);

…

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)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

4(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.”

The Evidence

6.      The evidence before the Tribunal comprised:

·     the “T” Documents” (T1–T54, pp 1–195) lodged by the applicant in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth);

·     supplementary T Documents (ST1–ST21, pp 196–632) filed by the applicant on 3 February 2009 (Exhibit A1);

·     list of notices sent by Centrelink to the respondent in the period from 16 March 2004 to 24 November 2008 (Exhibit A2);

·     Guide to Social Security Law (2.2.5.10): “Determining a Marriage-Like Relationship (De Facto Marriage)” (Exhibit A3);

·     Commonwealth Bank statements for period from 18 July 2007 to 31 December 2008 (Exhibit R1);

·     the oral evidence of the respondent.

The Relevant Factual Background

7.      The following relevant background facts are not in dispute.

8.      The respondent first met Ms Guerin (who was born in April 1986) in November 2006 when they were both students at Edith Cowan University (“ECU”) and were living in the student village on the University campus in Bunbury, Western Australia.

9.      In February 2007 the respondent commenced studies in the Bachelor of Commerce/Bachelor of Engineering program at The Australian National University (“ANU”) in Canberra and he resided in a student hall of residence on the ANU campus.  On 5 July 2007, however, the respondent withdrew from that program at ANU.

10.     In July 2007 the respondent commenced engineering studies at Curtin University of Technology in Perth and Ms Guerin transferred her nursing studies from the Bunbury campus to the Perth campus of ECU.

11.     On 9 July 2007 the respondent and Ms Guerin made a joint application to lease residential premises in South Perth (ST5, pp 216–224).

12.     On 18 July 2007 the respondent and Ms Guerin jointly opened an account with the Commonwealth Bank (ST11, pp 527–529).

13.     On 20 July 2007 the respondent and Ms Guerin jointly signed a residential property lease in respect of premises in South Perth for the period from 20 July 2007 to 19 July 2008 (T24).

14.     On 31 July 2007 Ms Guerin lodged with Centrelink a completed “Partner details” form, dated 26 July 2007, in connection with the respondent’s ongoing receipt of youth allowance (T21).  In that form Ms Guerin provided (inter alia) the following information:

·     in respect of the question, “What is your relationship to the person claiming?”, two alternative answer boxes, namely, “Married” or “De facto”, were included in the form and Ms Guerin ticked the “De facto” box;

·     in respect of the question, “What date did you start living together?”, Ms Guerin answered: “20-7-07”;

·     her only assets consisted of household contents whose total market value was $1,500 (of which her share was valued at $750 and the respondent’s share was valued at $750), a 1991 model motor vehicle whose market value was $5,000, and the sum of $250 in a Commonwealth Bank account held in her name.

15.     On 10 August 2007 the respondent lodged with Centrelink a completed “Income and investments” form, dated 30 July 2007 (T26).  In respect of the question, “Do you currently have a partner? (Your partner is your husband, wife or de facto)”, the respondent answered, “Yes” and gave his “partner’s name” as “Kristy Guerin”.

16.     On 22 August 2007 Ms Guerin completed an application for employment with Hall & Prior as a part-time care worker (ST8, p 261) and provided the following “emergency contact” details:

“Name:          Sean O’Gorman

Relationship:  Partner”.

17.     On 28 February 2008 the respondent lodged with Centrelink a completed “Assessment of living arrangements” form, dated 27 February 2008 (T43), in which he provided (inter alia) the following information:

·     Ms Guerin, his “partner”, first stayed at his address in South Perth on 20 July 2007, and she never “stays away”;

·     he and Ms Guerin have “shared accommodation continuously” since 20 July 2007 and intend to share accommodation “indefinitely”;

·     he and Ms Guerin “share” (ie do not have “separate”) living areas, sleeping areas, and the kitchen, laundry and bathroom;

·     he pays rent for the property, the total amount of rent being $200 per week of which he pays $100 per week;

·     both his and Ms Guerin’s names appear on the lease agreement and they each paid half of the rental bond;

·     he and Ms Guerin each own, and do not share the use of, a car and each of them is responsible for the running costs of their own car;

·     he and Ms Guerin purchased a refrigerator (whose value is $600) and a washing machine (whose value is $400), each of them paying half of the cost of those items);

·     he and Ms Guerin have not made any arrangements about the disposal of household goods if either of them was to move out;

·     he and Ms Guerin have a joint bank account into which they each pay an equal amount per week for “rent and bills”;

·     he is not authorised to use a credit card which operates on an account in the name of Ms Guerin;

·     Ms Guerin is not authorised to use a credit card or store credit which operates on an account in his name;

·     he and Ms Guerin do not have any outstanding joint debts;

·     he and Ms Guerin do not jointly hold any insurance policies;

·     he is not nominated as a beneficiary under a will, life insurance policy or superannuation policy in Ms Guerin’s name;

·     Ms Guerin is not nominated as a beneficiary under a will, life insurance policy or superannuation policy in his name;

·     he has never claimed Ms Guerin as a dependant for taxation purposes;

·     he and Ms Guerin each pay half of the electricity, gas, telephone and other bills;

·     he and Ms Guerin each pay half of the costs of food and housekeeping items;

·     neither he nor Ms Guerin is covered by any private medical insurance arranged by the other person;

·     household tasks are “spread evenly” between him and Ms Guerin;

·     he “regularly” shares social and leisure activities with Ms Guerin;

·     he and Ms Guerin “rarely” go on holiday together;

·     relatives, friends and regular associates do not consider his relationship with Ms Guerin as similar to that of a married couple, but they “sometimes” invite him and Ms Guerin out as a couple;

·     he has not claimed that he and Ms Guerin are married or a de facto couple for any purposes;

·     in circumstances of illness, personal crisis or family disputes, Ms Guerin is “very supportive” to him;

·     as regards money matters, he and Ms Guerin “go halves in everything”, and they “do not have the means to support each other financially” (original emphasis);

·     he and Ms Guerin “are in a boyfriend/girlfriend relationship, living together and [they] share all financial requirements and household chores equally”;

·     he and Ms Guerin “do not believe that [they] fulfil the criteria for a marriage-like relationship because [they]:

oare not married/engaged;

odo not have children;

odo not share finances;

oboth contribute equally to all bills and expenses”.

18.     In August 2008 the respondent and Ms Guerin made a joint application to lease residential premises in Joondanna (ST6, pp 239–240).

19.     On 13 August 2008 the respondent and Ms Guerin jointly signed a residential property lease in respect of premises in Joondanna for the period from 13 August 2008 to 12 September 2009 (ST6, pp 246–247).

20.     On 8 August 2008 the respondent completed an application for employment with Water Corporation (ST10,p295) and provided the following “emergency contact” details:

“Name:          Kristy Guerin

Relationship:  Partner”.

Has the respondent had a marriage-like relationship with Ms Guerin from 20 July 2007?

Approach to the question

21.     In Pelka v Secretary, Department of Family and Community Services (2006) 151 FCR 546 (which also concerned the question whether a person was in a “marriage-like relationship” within the meaning of s 4(2)(b)(iii) and s 4(3) of the SS Act) French J said (at 553–556):

“ …

Marriage-like relationships

Social security legislation has long been concerned to differentiate the rate of benefits payable between those who are single and those who enjoy the benefits of marriage or like relationships.  Such distinctions were made in the Social Services Act 1947(Cth) which preceded the Act.

An example of an earlier statutory formula giving effect to such a distinction was considered by the Full Federal Court in Lambe v Director-General of Social Services (1981) 57 FLR 262. The question was whether a single mother in receipt of a support parent benefit was ‘living with … a man as his wife on a bona fide domestic basis although not legally married to him’. In deciding whether such a relationship existed the Court held that it was necessary to take into account a variety of factors, albeit no factors were spelt out in the statute. The Court held that all facets of the interpersonal relationship of the two persons had to be taken into account. Importantly (at 271):

… the question of the financial support which [the man] provides is an important although not necessarily crucial consideration, but is only one of a number of relevant matters which the Tribunal should take into account in characterizing, as required by the definition, the nature of the relationship …

The same statutory formula was considered by Fitzgerald J in Lynam v Director-General of Social Security (1983) 1 AAR 197. He applied Lambe and said, inter alia (at 200):

Each element of a relationship draws its colour and its significance from the other elements, some of which may point in one direction and some in the other.  What must be looked at is the composite picture.  Any attempt to isolate individual factors and to attribute to them relative degrees of materiality or importance involves a denial of common experience and will almost inevitably be productive of error.  The endless scope for differences in human attitudes and activities means that there will be an almost infinite variety of combinations of circumstances which may fall for consideration. In any particular case, it will be a question of fact and degree, a jury question, whether a relationship between two unrelated persons of the opposite sex meets the statutory test.

The criterion of marital relationship was considered O’Loughlin J (sic) in Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164. The question in that case was whether a woman claiming a sole parent’s pension was ‘a married person … living separately and apart from her spouse’. Having separated from her husband she had returned home as a matter of convenience and because of his assistance in caring for their disabled child. O’Loughlin J referred to Lambe and Lynam.  He endorsed the observations of Fitzgerald J quoted earlier.  He said (at 173):

… it is not sufficient to merely note that a couple are sharing accommodation, nor is it sufficient to note that one is financially dependent on the other; it is necessary to delve deeper to find the reasons for those arrangements.  Those reasons will be better indicators in determining the correct nature of their relationship.

In determining whether a marriage-like relationship exists under the present Act, the nature of the exercise is much the same as that required under the statutory formulas in use in the cases cited above.

…

Having regard to the current provisions of s 4(3) and the approaches discussed in the earlier authorities mentioned, a decision-maker concerned with whether an unmarried person is in a marriage-like relationship with another person of the opposite sex:

(1)Must have regard to their interpersonal relationship as a whole not limited by the factors listed in s 4(3).

(2)       Must have regard to each of:

(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 people; and

(e)       the nature of the people’s commitment to each other.

(3)In having regard to the preceding five matters, must have regard to all factors relevant to each and, in particular, must have regard to the factors listed under each heading in s 4(3).

(4)Must specifically consider the total picture of the relationship created by all of these factors bearing in mind that consideration must be given to those which weigh against a marriage-like relationship and those which weigh in favour of it.

(5)Must undertake the preceding consideration bearing in mind that a marriage-like relationship is not disclosed solely by any one of the following matters:

(a)financial cooperation;

(b)cohabitation;

(c)a sexual relationship;

(d)cooperative household arrangements; or

(e)mutual commitment.

The judgment to be made is difficult and, once out of the range of obvious cases falling within the core concept of ‘marriage-like’, 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.

…”

Application of the statutory criteria in the present case

The financial aspects of the relationship

22.     The Tribunal is satisfied, on the basis of the evidence before it, that the respondent and Ms Guerin:

·     have a joint bank account with the Commonwealth Bank which they opened on 18 July 2007;

·     have jointly applied for a residential property lease and subsequently signed such a lease on two occasions, namely, on 20 July 2007 (in respect of a lease for the period from 20 July 2007 to 19 July 2008) and on 13 August 2008 (in respect of a lease for the period from 13 August 2008 to 12 September 2009);

·     each have their own individual bank account and credit card account and neither is authorised to operate on the other’s bank account or credit card account;

·     do not have any outstanding joint debts;

·     jointly own their household furniture and effects, the most valuable of which are a refrigerator ($600) and a washing machine ($400);

·     each own, exclusively use, and are wholly responsible for the running costs of, their own car;

·     contribute approximately equally to the cost of rent, utilities and the internet and to the cost of food and day-to-day household expenses;

·     do not jointly hold any insurance policies;

·     have not nominated each other as a beneficiary under a will, life insurance policy or superannuation  policy.

There is, furthermore, no evidence that the respondent and Ms Guerin jointly own any real estate or other major assets.

23.     As regard the abovementioned joint bank account with the Commonwealth Bank, the Tribunal notes that statements covering the period from July 2007 to March 2008 indicate that that account was used primarily, if not exclusively, for the payment of rent, utilities and the internet, but that statements covering the period from April 2008 to December 2008 indicate that that account was also used occasionally for the payment of other, relatively minor, expenses, including the cost of restaurant meals, liquor, petrol and department store purchases (Exhibit R1).  Although that joint bank account constitutes a “pooling of financial resources” by the respondent and Ms Guerin, it does not, in the Tribunal’s opinion, constitute a substantial or significant pooling of such resources.  The Tribunal, furthermore, accepts the respondent’s evidence that that account was opened and maintained by him and Ms Guerin in order to provide a convenient means of paying their rent, and paying for their use of utilities and the internet.

24.     In the Tribunal’s opinion the abovementioned evidence regarding the financial aspects of the relationship between the respondent and Ms Guerin indicates financial cooperation and some financial interdependence between them but it does not indicate that either of them is providing any financial support to the other.  Although that evidence is consistent with the existence of a marriage-like relationship between them, it is also, in the Tribunal’s opinion, not inconsistent with the existence of a relationship between close, mutually trusting friends who are sharing the cost of accommodation and household expenses solely for financial reasons and whose relationship is qualitatively different from a marriage-like relationship.

The nature of the household

25.     The Tribunal is satisfied, on the basis of the evidence before it, that the respondent and Ms Guerin:

·     commenced cohabitation on 20 July 2007 and from that date they have cohabited in a 1-bedroom home unit, first in South Perth and subsequently (from 13 August 2008) in Joondanna;

·     share the use of all areas of their accommodation, including the bedroom, the living room, the bathroom, the kitchen and the laundry;

·     share the major household chores as follows – he disposes of the garbage and does the vacuuming and washing up, while she does the cooking and the clothes washing.

26.     The Tribunal accepts the respondent’s evidence that he and Ms Guerin intend to continue the abovementioned living arrangements until at least September 2009 (when their current lease expires) and that they will then review their living arrangements having regard to the fact that Ms Guerin will have completed her studies and will be earning a substantial income whereas he will still have 3–4 years of studies before he completes his engineering course.  The Tribunal also accepts the respondent’s evidence that he and Ms Guerin do not have, and do not plan to have, any children.

27.     In the Tribunal’s opinion the abovementioned evidence regarding the nature of the household maintained by the respondent and Ms Guerin is clearly consistent with the existence of a  marriage-like relationship between them, but it by no means conclusively demonstrates the existence of such a relationship.

The social aspects of the relationship

28.     The Tribunal is satisfied, on the basis of the evidence before it, that the respondent and Ms Guerin:

·     hold themselves out as a couple in the sense of boyfriend/girlfriend, but not as a married couple;

·     are invited to social functions as a couple by family members and friends;

·     regularly share social and leisure activities with each other;

·     have holidayed together on only one occasion, namely, for two days in Margaret River in the summer of 2007/2008;

·     each have their own friends with whom they socialise separately.

29.     As regards the nature of the relationship which the respondent and Ms Guerin present to independent third parties, the Tribunal notes that:

·     in an employment application dated 22 August 2007, Ms Guerin described the respondent’s relationship to her as “partner”;

·     in an employment application dated 8 April 2008, the respondent described Ms Guerin’s relationship to him as “partner”.

30.     As regards holidays, the Tribunal notes, and accepts, the respondent’s evidence that he went on a holiday in Europe for about six weeks in June/July 2008 with a male friend and not with Ms Guerin.

31.     The abovementioned evidence regarding the social aspects of the relationship between the respondent and Ms Guerin is, in the Tribunal’s opinion, consistent with the existence of either a marriage-like relationship, or merely a boyfriend/girlfriend relationship (not amounting to a marriage-like relationship), between them.

The presence or absence of a sexual relationship

32.     The respondent acknowledged that he and Ms Guerin have had an ongoing exclusive sexual relationship from 20 July 2007.

33.     That evidence (which the Tribunal accepts) is obviously consistent with the existence of a marriage-like relationship between the respondent and Ms Guerin, but it is also, in the Tribunal’s opinion, consistent with the existence of an intimate boyfriend/girlfriend relationship (not amounting to a marriage-like relationship) between them.

The nature of the mutual commitment

34.     It is common ground that the relationship between the respondent and Ms Guerin commenced no later than 20 July 2007 when they commenced living together, and that their relationship has continued without interruption since that date.

35.     The Tribunal is satisfied, on the basis of the evidence before it, that the respondent and Ms Guerin:

·     have provided ongoing substantial companionship and emotional support to each other throughout the period of their cohabitation;

·     consider that their existing relationship will continue indefinitely in the sense that neither of them wishes to terminate the relationship now or to indicate or estimate when the relationship might end.

The Tribunal also accepts the respondent’s evidence that he does not regard his relationship with Ms Guerin as a marriage-like relationship because he and Ms Guerin have not undertaken, and do not propose to undertake, the kinds of major commitments, such as buying a house and having children, that some of his young married friends have undertaken or propose to undertake.  The Tribunal also notes his evidence that, although he does not want to marry Ms Guerin, he does want ultimately to get married and have children.  Unfortunately, the Tribunal did not have the benefit of hearing first hand from Ms Guerin (who was not called as a witness) and is, accordingly, not prepared to make a finding as to whether she genuinely regards, or does not regard, her relationship with the respondent as a marriage-like relationship.  The Tribunal notes, in this connection, that it does not regard the use of the word “partner” by each of the respondent and Ms Guerin to describe their relationship (see paragraphs 16, 20 and 29 above) as necessarily indicating that each of them regards their relationship as marriage-like.

36.     Although it appears from the respondent’s evidence that he does not have a commitment to a long-term relationship with Ms Guerin, the Tribunal is nevertheless satisfied, having regard to his evidence, that he has, since at least 20 July 2007, had an emotional connection and commitment to Ms Guerin that are qualitatively different from the emotional connection and commitment that he has had to any other person since that date, and the Tribunal is of the opinion that that emotional connection and commitment are consistent with the existence of a marriage-like relationship between them.  The Tribunal acknowledges, on the other hand, that the respondent’s emotional connection and commitment to Ms Guerin are also consistent with the existence of a serious personal relationship, not amounting to a marriage-like relationship, between them.

Conclusion regarding the nature of the relationship between the respondent and Ms Guerin

37.     The respondent submitted, in essence, that, having regard to the abovementioned statutory criteria, his relationship with Ms Guerin is not marriage-like but, rather, is no more than that of two friends living together as boyfriend and girlfriend (in an exclusive sexual relationship) while undertaking university studies and sharing equally accommodation and living expenses and housework, in an arrangement which enables them to minimise those expenses and provides a convenient environment in which they can support each other in their studies.

38.     Having considered the whole of the evidence regarding the circumstances of the relationship between the respondent and Ms Guerin, including, in particular, the circumstances relevant to each of the abovementioned statutory criteria, the Tribunal is of the opinion that those circumstances are, on balance, indicative of the existence of a marriage-like relationship.  The Tribunal is satisfied that, from 20 July 2007 onwards, the relationship between the respondent and Ms Guerin has involved:

·a significant degree of financial cooperation between them including their holding of a joint bank account and their jointly signing two consecutive residential property leases for a period of 12 months each;

·exclusive cohabitation with each other in a 1-bedroom home unit;

·an exclusive sexual relationship between them;

·cooperative household arrangements between them;

·joint presentation to society as a couple in an exclusive personal relationship and joint participation in social activities to a substantial degree;

·a mutual commitment to continue their relationship indefinitely and to provide ongoing companionship and support to each other for the duration of their existing relationship.

Having regard to the presence of all of those circumstances, the Tribunal is of the opinion that the relationship between the respondent and Ms Guerin, from the commencement of their cohabitation on 20 July 2007, transcended that of a mere boyfriend/girlfriend relationship entered into and maintained by them for the purpose of minimising accommodation and living costs and providing moral support to each other while pursuing tertiary studies, and assumed the character of a de facto or marriage-like relationship.

Conclusion

39. It is common ground that the conditions specified in subparas (i), (ii), (iv) and (v) of s 4(2)(b) of the SS Act are met in the respondent’s case. As stated in the preceding paragraph, the Tribunal is of the opinion that the relationship between the respondent and Ms Guerin has, from 20 July 2007, been a marriage-like relationship, within the meaning of subpara (iii) of s 4(2)(b) of the SS Act, and, accordingly, the condition specified in that subparagraph is also met in the respondent’s case. The Tribunal concludes, therefore, that the respondent has been a “member of a couple”, for the purposes of the SS Act, from 20 July 2007.

Decision

40. For the above reasons the Tribunal sets aside the decision under review and remits the matter to the applicant for reconsideration in accordance with the direction that the rate of youth allowance payable to the respondent be calculated on the basis that, from 20 July 2007, the respondent has been a “member of a couple” for the purposes of the SS Act.

I certify that the 40 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop

Signed: :...............[sgd D Brodie]........................

Associate

Date of Hearing  23 February 2009
Date of Decision  12 March 2009

Solicitor for the Applicant                   Ms C Wallwork

Legal Services Branch, Centrelink
Representative of the Respondent    Self-represented