Sehra and Secretary, Department of Social Services (Social services second review)

[2018] AATA 1353

Sehra and Secretary, Department of Social Services (Social services second review) [2018] AATA 1353 (23 May 2018)

Division:GENERAL DIVISION

File Number:           2017/1224

Re:Daljit Sehra

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

File Number:           2017/1270

Re:Amarjit Sehra

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Deputy President K Bean

Date:23 May 2018

Place:Adelaide

In Applications 2017/1224 and 2017/1270, the decisions under review are set aside and in substitution for those decisions it is decided that as at and from 2 June 2016, Mr and Ms Sehra were not members of a couple within the meaning of section 4 of the Social Security Act 1991.

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

Deputy President K Bean

CATCHWORDS

SOCIAL SECURITY – Age pension and disability support pension – Where applicants have separated but not divorced – Where applicant relocates to a different state but subsequently moves back into the family home – Whether applicants are members of a couple – Decisions under review set aside and substituted.

LEGISLATION

Social Security Act 1991, s 4

REASONS FOR DECISION

Deputy President K Bean

23 May 2018

1. The applicants, Mr and Ms Sehra, have been legally married since November 1974. However, they separated in 2011 and Mr Sehra moved from Melbourne to Adelaide in April 2011, while Ms Sehra remained in Melbourne. Ms Sehra has been in receipt of disability support pension since June 2011.

2. Five years after Mr and Ms Sehra separated, in June 2016, Mr Sehra ceased renting a unit in Adelaide and moved back into the house in Melbourne where Ms Sehra and his sons were living. He also made a claim for the age pension,[1] and provided information which prompted consideration of whether he and Ms Sehra had resumed being members of a couple.

   [1]     Exhibit 1, T‑documents in Application no. 2017/1224, T9.

3. On 2 August 2016, Centrelink made a decision to pay Mr and Ms Sehra at the partnered rate for disability support pension and age pension respectively, from 2 June 2016.[2] The decisions to pay them at the partnered rates were subsequently affirmed by an Authorised Review Officer and by the Social Services and Child Support Division of this Tribunal.[3]

   [2]     Ibid T14; Exhibit 2, T‑documents in Application no. 2017/1270, T5.

   [3]     Exhibit 1, T2; Exhibit 2, T2.

4. However, Mr and Ms Sehra both claim they have not at any time resumed being members of a couple since their relationship broke down in 2011. Accordingly they have each sought further review of the decisions to treat them as members of a couple from 2 June 2016.

5. I should also note that, as at 1 March 2017, after Mr Sehra had moved back to Adelaide, Centrelink determined that Mr and Ms Sehra were no longer members of a couple. Therefore, in practical terms the period in dispute is from 2 June 2016 until 1 March 2017.[4]

   [4]     Respondent’s Statement of Facts, Issues and Contentions, dated 21 August in 2017/1224 [2.1]‑[2.2].

   STATUTORY FRAMEWORK AND ISSUE

6. Section 4(2) of the Social Security Act 1991 (the Act) relevantly provides:

   4      Family relationships definitions—couples

   …

   (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;

7. Section 4(3), also relevantly provides:

   (3)In forming an opinion about the relationship between 2 people for the purposes of paragraph (2)(a), subparagraph (2)(aa)(ii) 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, 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.

8. It follows that the main issue for my determination is whether, during the relevant period, Mr and Ms Sehra were living separately and apart on a permanent or indefinite basis, having regard to the matters referred to above.

   WERE MR AND MS SEHRA LIVING SEPARATELY AND APART BETWEEN 2 JUNE 2016 AND 1 MARCH 2017?

   The Evidence

9. The evidence of Mr and Ms Sehra was broadly consistent as to the reasons for them resuming cohabitation in their house in Bundoora, Melbourne, between 2 June 2016 and 1 March 2017.

10. The main reasons for this were that Mr Sehra needed to undergo a knee operation in Melbourne and also needed assistance in the aftermath of this. In addition, prior to undergoing the knee operation, Mr Sehra had given up his work in Adelaide and also terminated his lease. He explained that after he had given up work he could not afford to pay rent in Melbourne and also needed physical assistance while he recovered from the operation. As he was still an owner of the house in which his wife and sons were living, and one of his sons was supporting him, he moved into that house at around the time of his knee operation. He said his son visited him while he was in hospital and then collected him from hospital and also took him from the Bundoora house to rehabilitation and back again as needed.

11. Mr Sehra reiterated a number of times that he moved into the Bundoora house for practical reasons and Ms Sehra’s evidence was also consistent with this. Mr Sehra ultimately moved back to Adelaide in March 2017 as he found it too stressful living in the house with Ms Sehra and, being in receipt of the pension he could once again afford to pay rent.

12. Mr Sehra conceded that at one stage during 2016 he thought being in the same house may lead to a reconciliation with his wife, but said it quickly became apparent that this would not occur.

13. All of the evidence before me is consistent with there being minimal contact between Mr and Ms Sehra during the period of their cohabitation. It is clear there was no sexual relationship, they slept in separate bedrooms and used different bathrooms. They ate their meals separately and neither one shopped or cooked for the other. There was an understanding between them that Mr Sehra would do more outside chores and Ms Sehra more inside chores, however Mr Sehra cleaned his own room and changed his own sheets, and Ms Sehra did not enter his room while he was staying in the house. They did their laundry separately and each paid their share of the bills.

14. Mr and Ms Sehra both agreed that, despite being separated since 2011, they had not divorced partly for cultural reasons. They explained that divorcing would potentially jeopardise their sons’ chances of marriage. For the same reason, they indicated that while they were living in the same house during 2016 they would sometimes sit together in the same room while friends or family members were visiting, and they would sometimes be present in the same room together whilst their married daughter was visiting. However, they both said there was minimal interaction between them. They acknowledged that they each received assistance from their sons.

15. The evidence was also to the effect that they each had a car and were solely responsible for the running costs of their own cars. They also had separate bank accounts and did not access each other’s accounts.

16. As to other aspects of the financial relationship between them, they both acknowledged that during the relevant time Mr Sehra was the sole owner of the Bundoora property and paid the mortgage, and Ms Sehra did not pay rent. However, there was also some evidence to the effect that Ms Sehra would be entitled to a share of the house if it were sold, that Mr Sehra was reluctant to sell the house because he did not wish to give her half the proceeds and that she was unwilling to leave the property unless she could be assured of receiving her share of the proceeds.[5] They both indicated that subsequent to the relevant period, the property had been moved into both of their names in equal shares, although Mr Sehra continued paying the mortgage as Ms Sehra was unable to do this.

    [5]     Exhibit 2, T13/65.

    Consideration

17. Having regard to the evidence I have referred to, I have concluded that during the relevant period, the nature of the household, the nature of Mr and Ms Sehra’s commitment to each other and the absence of any sexual relationship were all reflective of the fact that although they were living under one roof, they were no longer members of a couple. The evidence suggests they lived parallel lives during this time, avoiding contact as much as possible and essentially doing nothing to support or assist one another in either a practical or emotional sense.

18. As to the social aspects of the relationship, they both acknowledged that some members of their community would still see them as a married couple and that they had deliberately held themselves out as such for the benefit of their sons. However, this was an impression they sought to create for cultural reasons but which did not in fact reflect the true nature of their relationship. As such, in my view this does not support a conclusion that they were in fact members of a couple during the relevant time.

19. It is clear that there was still in some respects a relatively high level of financial connection and interdependence between them, largely due to the fact that Mr Sehra had chosen not to sell the Bundoora house. However, the fact that Mr Sehra was the sole owner of the Bundoora property at the relevant time and that Ms Sehra was living in the house without paying rent was a product of the fact that their financial affairs had not been fully disentangled following the breakdown of their relationship, rather than an indication that they were still behaving as members of a married couple. Again, in my view, this aspect of the arrangements between them was attributable to practical reasons, including the fact that both sons still lived in the property, and does not displace the weight of the other considerations, all of which indicate that they were living separately and apart on an indefinite basis during the relevant period.

    CONCLUSION

20. For these reasons, I have concluded that between 2 June 2016 and 1 March 2017, Mr Sehra and Ms Sehra were living separately and apart on an indefinite basis, were not members of a couple, and should have been paid age pension and disability support pension respectively at the single rate.

    DECISION

21. In Applications 2017/1224 and 2017/1270, the decisions under review are set aside and in substitution for those decisions it is decided that as at and from 2 June 2016, Mr and Ms Sehra were not members of a couple within the meaning of s 4 of the Act.

I certify that the preceding 21 (twenty-one) paragraphs are a true copy of the reasons for the decision herein of Deputy President K Bean

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

Associate

Dated: 23 May 2018

Date(s) of hearing:	18 December 2017
Applicant:	In person
Solicitors for the Joined Party:	Ms E Moran Sparke Helmore