Sewell and Repatriation Commission

[2005] AATA 1128

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 1128

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2005/298

VETERANS' APPEALS DIVISION		)
Re		RONALD SEWELL

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr S C Fisher, Member

Date16 November 2005

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

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

S C Fisher
  Member

CATCHWORDS

VETERANS’ APPEALS – Veteran’s Entitlement Act – reduction in rate of service pension – illness separated couples – “special circumstances” considered – decision affirmed.

Veterans’ Entitlements Act 1986 ss 5E(2)(a), 5R (3), 5R (4), 5R(5),

Secretary, Department of Social Security v Murphy [1998] FCA 809

Ajka Pty Ltd v Australian Fisheries Management Authority [2003] FCA 248

Bantick and Secretary, Department of Family and Community Services [2003] AATA 472

Bramwell v Repatriation Commission (1998) 51 ALD 56

Collins v Minister for Immigration and Ethnic Affairs (1981) 36 ALR 598

Clarkson and Secretary, Department of Social Security 15 ALD 424

Poulos and Repatriation Commission [2000] AATA 234
Samsome and Secretary, Department of Family and Community Services [2005] AATA 829
Ryde v Secretary, Department of Family and Community Services [2005] FCA
866.
Whippey and Repatriation Commission [1999] AATA 1030
Main v Main (1949) 78 CLR 636
Tulk v Tulk [1907] VLR 64
Re Beadle and Director-General of Social Security (1984) 6 ALD 1
Dranichnikov v Centrelink [2003] FCAFC 133

REASONS FOR DECISION

16 November 2005  Mr S C Fisher, Member

Introduction And Background

1.      Mr Ronald Sewell (the Applicant) served with the Royal Australian Army during World War II including service in Morotai (this service being classified as operational service).

2.      The Applicant is in poor health, so with the agreement of all parties, the hearing was held at his home at the Gold Coast, Queensland.  The Applicant's spouse and his daughter were in attendance as well but did not take part in the hearing itself.

Jurisdiction

3.      This appeal is governed by the Veterans’ Entitlements Act 1986 (Cth) (“the Act”). The Tribunal has jurisdiction in this appeal by virtue of sections 174 - 176 of the Act. In these Reasons for Decision, references to statutory provisions are to provisions of the Act unless the context indicates otherwise.

The Decision under Review

4. The decision under review is a decision made by the Repatriation Commission (the Respondent) on 17 February 2005 to reduce the rate of service pension payable to the Applicant and his partner with effect from 25 January 2005. The basis of this decision was that the Respondent considered that the Applicant and his spouse no longer satisfied the definition of "illness separated couple" in section 5R(5) of the Act, so the Applicant was paid the lower rate applicable to members of a couple who are not illness separated.

The Role of the Tribunal

5. The role of the Tribunal is to review the merits of the decision before it: section 43 of the Administrative Appeals Tribunal Act 1975 and Secretary, Department of Social Security v Murphy [1998] FCA 809. The Tribunal is guided by the norm that it should reach the correct and preferable decision on the basis of the material before it: Ajka Pty Ltd v Australian Fisheries Management Authority [2003] FCA 248 at [33]. The Tribunal is required to stand in the shoes of the original decision-maker and consider all evidence anew, bearing in mind statutory provisions and any significant legal precedent: Bantick and Secretary, Department of Family and Community Services [2003] AATA 472 at [23]. The Tribunal proceeds de novo: Bramwell v Repatriation Commission (1998) 51 ALD 56 at 60 per Weinberg J. The Tribunal must base its decision upon the material that is logically probative of the existence of facts that emerge from the evidence before it: Collins v Minister for Immigration and Ethnic Affairs(1981) 36 ALR 598 at 601.

6.      This Tribunal is not vested with a general discretion to circumvent, override, sidestep or supplant the otherwise very clear terms of legislation that determines income support entitlements such as veteran’s pension and related entitlements.

The Material Before the Tribunal

7.      The following documentary evidence was before the Tribunal:

Exhibit 1 Documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (documents T1 – T6).

Exhibit 2Diagram of residential quarters prepared by the Applicant.

Exhibit 3Advertisement and brochure relating to Village Life accommodation.

8.      The Applicant was self-represented.  Exhibits 2 – 3 were lodged on behalf of the Applicant.

9. The Respondent lodged documents T1 to T6 under section 37 of the Administrative Appeals Tribunal Act 1975.  These documents were taken into evidence as Exhibit 1.

10.     The Respondent was represented by Mr Anton Harris a departmental advocate.  The Respondent’s advocate provided a Statement of Facts and Contentions to the Tribunal.

11.     The Applicant lodged an outline of submissions with the Tribunal. The Tribunal considered carefully all of the documentary and oral evidence before it.

Evidence of the Applicant

12.     The evidence of the Applicant to the Tribunal (in chief and in cross-examination) was as follows:

1. The Applicant said that he is married to his wife, Mrs Patricia Sewell.
2. The Applicant described how he and his wife had separate bedrooms and bathrooms for medical reasons.  The Applicant described the various medical conditions that he and his wife each have (the details of which are not necessary to reproduce in these Reasons for Decision).  The Applicant said that the medical conditions each of them has prevents them from sharing the same bed together or for that matter, the same bedroom.
3. The Applicant said that they share common living areas such as the kitchen, dining room and lounge room and that they enjoy recreational activities such as watching television together.
4. The Applicant said that when they lived in Village Life (which was not a retirement village), they lived in conjoined units with separate numbers yet having the same address.  Their respective bedrooms were in the separate units.
5. The Applicant said that when they moved to an address in Lyster Street, the respondent treated them as an illness separated couple, yet the physical arrangements in terms of where the Applicant and his wife slept were no different than the arrangements in their current unit.
6. The Applicant said that he and his wife eat meals together (although they eat separate types of meals for medical reasons), they watch television together and that they otherwise socialise together.
7. The Applicant said that he and his wife pay rent in an amount of $271 per week and that they are invoiced together for this amount.
8. The Applicant described the residential history of himself and his wife since 1964.

13.     In response to questions from the Tribunal, the Applicant said that:

1. The rent that he and his wife pay for the unit is the same whether or not the two of them live there together.
2. The amount of rent that the Applicant pays is not pegged according to the amount of pension or rent assistance received (as was the case when they lived at Village Life).
3. He did not expect that their living arrangements or medical conditions which change much in the future, although he hoped that part of his back condition would improve.

Other relevant evidence

14.     The Tribunal took note of the documentary evidence from Exhibit 1.

Evidence for the Respondent

15.     The Respondent did not call any evidence.

View of the Residence of the Applicant and His Spouse

16.     The Presiding Member of the Tribunal and the parties had the opportunity to view the residential quarters of the Applicant.  During the view, the Presiding Member, the Applicant and the Advocate for the Respondent were present together at the same time.  The view discloses that the current residence of the Applicant is a three-bedroom unit.  The Applicant lives in one bedroom with an ensuite, his wife lives in a separate bedroom adjacent to which is a separate bathroom and separate toilet.  The third bedroom is used for storage and office purposes.  There is a single common lounge area and also a single dining area and kitchen.

Issue

17. The issue in this case is whether the Applicant and his spouse are an "illness separated couple" within the meaning of section 5R(5) of the Act, and so should be paid a higher, "non-partnered " rate of service pension.

Applicant’s Submissions

18.     The submissions of the Applicant (taken from his oral submissions during the hearing and from his correspondence in Exhibit 1) were to the following effect:

1. The Applicant argued that there is no essential difference between his current living arrangements in Queensland as distinct from those which had prevailed when he lived in New South Wales, where the Respondent then accepted that he and his wife were an illness separated couple.
2. The Applicant argued that the Respondent was applying the legislation inconsistently, and that the only reason for the change in illness separated couple status was because of a change of administration of his pension after his wife moved from New South Wales to Queensland for health purposes and to be near their daughter.
3. The Applicant said that when he and his wife lived in the Village Life complex in New South Wales, the unit there was a conjoined double-connected unit and the Respondent had no difficulty accepting them as an illness separated couple, so that this should not change with their move to Queensland.
4. The Applicant contended that he and his wife are unable to live together in a matrimonial home as a result of the illness or infirmity of either or both of them, and relied on the medical conditions each of them suffer from as a basis for this contention.
5. The Applicant contended that because of that inability to live together, their living expenses are, or likely to be greater than they would otherwise be.  The Applicant pointed to the fact that he and his wife were charged rent at a higher rate than if they lived in a single unit together.
6. The Applicant contended that the inability of himself and his wife to live together was likely to continue indefinitely as he could not see any beneficial change to their medical conditions which would alter this.

Respondent’s Submissions

19.     The submissions of the Respondent were to the following effect.

20. The Respondent argued that the Applicant and his wife should not be considered an illness separated couple. The Respondent contended that the Applicant and his wife clearly "live together" within the meaning of section 5R(5)(b) because of their shared life (meals and recreation time, for example) and said that the contention of the Applicant as to the meaning of "live together" was unduly narrow.

21.     The Respondent relied on the following passages from Clarkson and Secretary, Department of Social Security 15 ALD 424 as a guide to the meaning of "home" within the compound phrase "matrimonial home" as it is used within section 5R(5)(b):

35.  The word "home" in common parlance would generally mean a house or shelter for the residence of a family or a household.  In legal terms, the word "resides" has been said to include "the place where an individual eats, drinks and sleeps ...." (R v Inhabitants of North Curry (1825) 107 ER 1313 at 1315). These descriptions of "home" and "resides" would fit well with the word "living" which again in common parlance means to dwell or reside.

36.  Beattie, J. in Geothermal Energy N.Z. Ltd. v Inland Revenue Commissioner [1979] 2 NZLR 324 gave consideration to the word "home" for the purposes of sub-s.241(1) of the Income Tax Act 1976.  He states at p.341:

"For the married person who is not separated, "home" will generally be where his or her spouse and children are to be found;  and some such equivalent centre no doubt can be found for the single or separated person on the basis of the place where the normal course of his or her life occurs."

37.  The phrase "matrimonial home", although it occurs commonly in the context of the Family Law Act 1975 and its precursor, the Matrimonial Causes Act 1959, is not defined in those Acts and appears not to have been a matter of specific delineation by the courts.

38.  The context in which "matrimonial home" has been considered in the framework of Family Law is on an application for property settlement, or restitution of conjugal rights or orders for eviction.  However, a general reading of such cases reveals that the matrimonial home has been regarded as mainly the structure or building in which both spouses live together, and in addition, any land, facilities or appurtenances related to that structure which either of them may have had a right to control or occupy.  The structure or building could include a house, unit, flat, a portion of a house (such as in a boarding-house or rooms in a parent's or friend's house), whether such premises were owned, leased or otherwise legally occupied by them.

39.  Whilst the way in which a phrase is used in one Act should not necessarily dictate the way in which it is used in another Act, there seems to be no reason why the usage within the Family Law Act 1975 (supra) context, would not be applicable to the Social Security Act (supra) context.  That meaning is compatible with its usual and accepted meaning and there is, in my view, nothing to indicate that such meaning would be inappropriate in the context of this legislation.

48.  In such fact situations, the real concern will be whether or not the home in which that person is living is the "same home" as that lived in by the former spouse.  The words "living in the same home" raise questions as to separate living areas, for example, whether living downstairs where a spouse is living upstairs but with separate access is living in the same home; or whether living in an outbuilding or in a caravan in a backyard is living in the same home.  Each circumstance requires consideration as to whether or not the spouses could be said to be dwelling or residing in the same place for their eating, drinking and sleeping.  The more separate, self-contained and changed as to space, character and structure of the dwelling facilities, the easier it will be to decide whether the spouses are or are not living in the "same home".  Where, however, there is a blurring because there is merely a separation of some living activities or facilities in the same house structure, the more difficult it will be to determine whether they are living in the same home.  Bearing in mind that living in a home incorporates a number of functions other than sleeping, if those functions are performed by former spouses in common areas, then it would be more difficult to accept that the persons are living other than in the "same home".

22.     The Respondent contended that all of the important activities of the Applicant and his wife, such as eating and shared recreation time took place together.  The Respondent said that apart from the separate sleeping and bathroom areas the Applicant and his wife have, there is no structural difference between their situation and any other Australian home.

23.     The Respondent relied upon the decision of the Tribunal in Poulos and Repatriation Commission [2000] AATA 234 at paragraphs [27] and [30] in support of the contention that the Applicant and his wife were not an illness separated couple. In Poulos, while the veteran and his spouse in that case were illness separated while his spouse lived in a nursing home away from the veteran for a period of just over two years, they were treated as an illness separated couple by the Respondent.  The Respondent said that in this case, the life of the Applicant and his wife were inextricably linked together even though they have separate sleeping and bathroom arrangements.

24.     The Respondent conceded that the illnesses and infirmities of the Applicant and his wife result in them needing to sleep in separate bedrooms.

25. In connection with sections 5R(3) and (4) of the Act, the Respondent referred to a decision of this Tribunal in Samsome and Secretary, Department of Family and Community Services [2005] AATA 829 and of the Federal Court in Ryde v Secretary, Department of Family and Community Services [2005] FCA 866. These decisions were relied on in connection with the concept of "special circumstances" as an analogous concept to "special reason" as that phrase is used in section 5R(3). The argument, as it appeared to the Tribunal, was that the circumstances of the Applicant and his wife were not sufficiently distinct or unusual from many cases that the Respondent encounters in practice associated with veterans' affairs if illness separated couples were to sleep in separate bedrooms but still be considered to be living together under the same roof. The Respondent said that administrative difficulties would arise if the Respondent had to treat every veteran who lived separately from his or her spouse but under the one roof as an illness separated couple. The Respondent said that there was no "special reason" in this case to treat the Applicant and his wife as not being members of a couple.

The Legislation

26. This appeal turns on the interpretation and operation of section 5R(5) of the Act, which reads:

Illness separated couple determination

(5)       If the Commission is satisfied that:

(a)       2 people are members of a couple; and

(b)they are unable to live together in a matrimonial home as a result of the illness or infirmity of either or both of them; and

(c)because of that inability to live together, their living expenses are, or likely to be greater than they would otherwise be; and

(d)       that inability is likely to continue indefinitely;

the Commission may make a written determination that the 2 people are members of an illness separated couple for the purposes of this Act.

27. In addition, the Respondent cited sections 5R(3) and (4) of the Act, which read:

Person may be treated as not being a member of a couple

(3)       The Commission may determine, for any special reason, that a person who is a member of a couple is not to be treated as a member of a couple for the purposes of this Act.

Note:   for member of a couple see subsection 5E(2).

(4)       The determination must be in writing.

Findings of Fact

28.     Based upon the material before it, the Tribunal makes the following findings of fact:

A.The Applicant served in the Royal Australian Army during World War II and had operational service.

B.The Applicant married his wife Mrs Patricia Sewell on 30 August 1958.

C.The Respondent made a determination that the Applicant and his wife were an "illness separated couple" on 19 November 2002 whilst the Applicant and his wife resided in Coffs Harbour, New South Wales.

D.After the Applicant and his wife moved to another residence in New South Wales, the Applicant advised the Respondent of this fact by letter on 13 August 2003, and requested continuation of "illness separated couple" status.  The Respondent continued to pay the Applicant pension at the single rate.

E.On 11 June 2004, the Applicant notified the Respondent that they had moved to units with separate numbers at the Village Life hostel, Coffs Harbour, New South Wales.

F.On 17 January 2005, the Respondent received a letter from the Applicant advising that he and his wife had moved to the Gold Coast, Queensland.

G.The medical conditions of the Applicant and his wife require them to sleep in separate bedrooms with separate bathroom and toilet facilities.

H.The Applicant and his wife eat meals together, share leisure time together and otherwise socialise together.

Tribunal’s Reasons

29.     In Whippey and Repatriation Commission [1999] AATA 1030, this Tribunal explained the background to the variation between single and married rates of income support entitlements such as pensions and benefits in these terms:

7.        The rationale for the legislation by which a member of a couple is paid less than a person living alone, is based on two main premises:

(a) In Australia a spouse usually brings to marriage some financial benefit. A spouse usually has one or more of the following: savings, independent means, an occupation or rights to benefits under various Australian Acts.

(b) Two people living together can pool their financial resources, share their expenses, rationalise their overheads and thereby each member of a couple can live more cheaply than they could have as non-partnered persons.

30. Based upon the evidence before it, the Tribunal is satisfied that section 5R(5)(a) applies in favour of the Applicant. The Applicant and his wife are legally married to each other, and are not living separately and apart from each other on a permanent basis, so therefore they are each members of a couple within the meaning of section 5E(2)(a). This satisfies section 5R(5)(a). In this case, the critical issue is whether the Applicant and his wife are unable to "live together in a matrimonial home" within section 5R(5)(b). This in turn will feed into the financial inquiry predicated by section 5R(5)(c) and then into the temporal inquiry predicated by section 5R(5)(d). The Tribunal observes that the four elements set out in section 5R(5) are cumulative, so that if the Applicant does not satisfy anyone of them, there is no basis for a person who is in a decision-maker such as the Respondent (and on appeal, this Tribunal) to make a determination that the Applicant and his wife are members of an illness separated couple for the purposes of the Act.

31. In the opinion of the Tribunal, a "home" within section 5R(5)(b) is a place where a person dwells or resides: Clarkson and Secretary, Department of Social Security at [35]. Another way of expressing the same idea is that a home is a place where a person has their centre of gravity and where many of their important family and public and private social relationships are lived out and carried out.

32. What should be made of the qualifying objective "matrimonial" when conjoined to "home" within section 5R(5)(b)? The adjective "matrimonial" relates to the institution of marriage or the state or relationship of being married (Concise Oxford English Dictionary, 11th Edition, CD-ROM Version).  It is not necessary, for the purposes of this appeal, to distinguish matrimonial relationships from marriage-like relationships (such as de facto relationships) which do not arise out of a formal ceremony of marriage since the Applicant is married to his wife.  It is also not necessary for the purposes of the present case to review extensively the jurisprudence on the nature of a matrimonial relationship (but see Main v Main(1949) 78 CLR 636 at 643, Latham CJ, Rich and Dixon JJ in any case) or on the meaning of "matrimonial home" as the phrase has been deployed in primary and secondary legal resources. Every iteration of "matrimonial home" will depend on its own particular context and circumstances. Accordingly in the opinion of the Tribunal, a matrimonial home for the purposes of section 5R(5)(b), is the home of any given married couple, that place where their centre of gravity is in terms of their relationship with each other and with significant others in their lives (such as family members). The current residence of the Applicant and his wife is a "matrimonial home" within the meaning of within section 5R(5)(b).

33. Having established what a matrimonial home is for present purposes, the critical issue is whether the Applicant and his wife are unable to "live together in a matrimonial home" within section 5R(5)(b). The expression "live together" in this provision is less a term of art than perhaps even "matrimonial home" is. A married couple who lives together is a couple who resides together or who have a common place of domicile. The Applicant argued, in effect, that he did not "live together" with his wife because of their separate sleeping and bathroom arrangements. The riposte of the Respondent to this contention was that this was too narrow a view or understanding of "live together". In effect, the Respondent argued that it was necessary to have regard to the totality of the circumstances of the Applicant and his wife in order to apply the statutory integer contained within section 5R(5)(b).

34. In the opinion of the Tribunal, the essential meaning of the phrase "live together" within section 5R(5)(b) when applied to a married couple who would but for illness have a shared life and coexistence in a matrimonial home is that the members of the couple share a common life which exhibits some or all of the classic elements of a matrimonial relationship or a marriage-like relationship. Those elements are recognised as including those elements recognised by Cussen J in Tulk v Tulk[1907] VLR 64 at 65 (as approved by the High Court of Australia in Main v Main (1949) 78 CLR 636 at 643) where Cussen J referred to “marital intercourse, the dwelling under the same roof, society and protection, support, recognition in public and in private, correspondence during separation, making up as a whole the consortium vitae... The weight of each of these elements varies with the health, position in life, and all the other circumstances of the parties".  In the present case, the Applicant has not argued that some or most of these elements are not present to some extent or degree in his relationship with his wife.  The contention of the Applicant is that he should be treated as a member of an illness separated couple because he is unable to live together with his wife in the matrimonial home.  The Applicant relies in particular on two facets of daily life in order to demonstrate that he and his wife do not "live together", namely their separate sleeping and bathroom arrangements.  In contrast, the Respondent pointed to the otherwise shared life that the Applicant and his wife have.

35.     In this case, the Tribunal considers that the separate sleeping and bathroom arrangements of the Applicant and his wife do not indicate separate lives.  True it is for medical reasons that the Applicant and his wife had separate bedrooms and separate bathrooms.  To focus on separate sleeping and bathroom arrangements of the Applicant and his wife to the exclusion of all of the other dimensions of their shared life together is far too limiting.  In the opinion of the Tribunal, the separate sleeping and bathroom arrangements of the Applicant and his wife are insufficient to mark them as being unable to live together in a matrimonial home as a result of their individual or collective illnesses or infirmities.

36. Even if the correct approach to section 5R(5) is to read the sub-section as a whole instead of reading it atomistically, then it is necessary for this Tribunal to read the provision in that particular manner. Does illness or infirmity render the Applicant and his wife unable to live together in their matrimonial home? Despite the physical layout and arrangements of their home, and the particular sleeping and bathroom arrangements the Applicant and his wife have formed for the better management of their lives, reading section 5R(5) as an entire construct or idea leads also to the result that the Applicant and his wife are able to live together as members of a couple in their matrimonial home despite the limitations placed upon them by their own separate illnesses or infirmities. In short, the Applicant and his wife live together, not separately, despite the limitations of their own separate illnesses or infirmities.

37. For completeness, the Tribunal had regard to sections 5R(3) and (4). The Applicant did mount an argument to the effect that the Tribunal should make a determination that he should be treated as not being a member of a couple. While the contents of this argument were not expressed clearly, the Tribunal was able to follow the gist of it. "Special reasons" within section 5R(3) are, in the opinion of the Tribunal, synonymous with "special circumstances", a phrase that has a long history and a reasonably well-settled meaning in income support law. In Re Beadle and Director-General of Social Security (1984) 6 ALD 1, (dealing with waiver of social security debts on the basis of "special circumstances"), special circumstances have been interpreted to mean those circumstances that are unusual, uncommon or exceptional. The gloss placed on the meaning and operation of special circumstances in Dranichnikov v Centrelink[2003] FCAFC 133 can be put to one side for the moment. In the opinion of the Tribunal, the health circumstances of the Applicant and his wife are not outside the range of experiences of older Australians who are experiencing and living with declining ill-health in old age. The Tribunal acknowledges that the health circumstances of both the Applicant and his wife are of vital concern to them both. Nevertheless, ill-health alone is not sufficient to constitute a "special reason" because ill-health is not a matter that is unusual, uncommon or exceptional for the purposes of income support law such as veterans' entitlements. The Tribunal notes further that the decision under appeal did not involve sections 5R(3) and (4).

Tribunal’s Conclusion

38.     The Tribunal concludes that the Applicant and his wife live together in a matrimonial home despite the illnesses or infirmities which affect them both.  Accordingly, the Tribunal is not satisfied that the Applicant and his wife are unable to live together in a matrimonial home as result of their illnesses or infirmities.  The Respondent made the correct decision in relation to the rate of pension payable to the Applicant.

Tribunal’s Decision

39.     For these reasons, the Tribunal affirms the decision under review.

I certify that the 39 preceding paragraphs are a true copy of the reasons for the decision herein of Mr SC Fisher, Member

Signed:       Jeff Mills

Legal Research Officer

Date of Hearing  7 September 2005
Date of Decision  16 November 2005

The Applicant was self-represented
For the Respondent                  Mr A Harris, Departmental Advocate