Simoes and Secretary, Department of Family and Community Services

[2005] AATA 786

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 786

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          N2004/1568   

GENERAL ADMINISTRATIVE DIVISION		)
Re		MARIA RIBEIRO SIMOES

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Ms N. Isenberg, Member

Date18 August 2005

PlaceSydney

Decision The decision under review is affirmed.

[SGD] Ms N. Isenberg          
  Member

CATCHWORDS

SOCIAL SECURITY – Applicant in Portugal – social security agreement between Australia and Portugal – Applicant widowed – claim for parenting payment single – Applicant was living separately and apart from husband on permanent or indefinite basis immediately before he died – not a member of a couple – not a member of an illness separated couple – decision affirmed

Social Security Act 1991 ss. 4 and 23
Social Security (Administration) Act 1999 s. 29
Social Security (International Agreements) Act 1999 Schedule 9

REASONS FOR DECISION

18 August 2005 Ms N. Isenberg, Member

1.      This is an application by Mrs Ribeiro Simoes (“the Applicant”) for review of a decision by the Social Security Appeals Tribunal (“SSAT”) made on 5 July 2004 rejecting the Applicant’s claim for parenting payment single. The SSAT affirmed the decision of the Authorised Review Officer, who decided that Mrs Ribeiro Simoes was not living with her husband as a member of a couple immediately prior to his death, and therefore did not qualify for parenting payment single.

2. At the hearing, the Applicant appeared without representation and by conference telephone. The Secretary, Department of Family and Community Services (“Centrelink”) was represented by Ms H Schuster. The Applicant gave evidence, as did Mr Joao Da Silva Simoes and Mrs Maria Rosalina Correla Da Silva, all of whom gave evidence by telephone from Portugal. The Tribunal was assisted by Mr A Da Costa, accredited interpreter in the Portuguese language. I had before me the documents (T documents) lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 and the ‘depositions’ of the latter two witnesses.

BACKGROUND

3.      There did not appear to be any dispute between the parties concerning the following relevant facts:

a.Mrs Ribeiro Simoes is a 42 year old woman with two children who is residing in Portugal.

b.Mrs Ribeiro Simoes, her husband, Mr David Oliveira Da Silva, and their two children left Australia to go to Portugal together in June 2001, when Mr Oliveira Da Silva was terminally ill.  

c.On or about 17 September 2001 Centrelink received a letter from Mr Oliveira Da Silva’s brother-in-law, Mr Francisco Manuel Gomes Alves, stating that Mr Oliveira Da Silva was seriously ill in Portugal. The letter further advised that Mrs Ribeiro Simoes had left her husband on 23 June 2001 (T4/16-17).

d.On 17 December 2001 Mr Oliveira Da Silva passed away in Portugal (T9/24).

e.On 10 April 2002 Mrs Ribeiro Simoes lodged a claim under the previous social security agreement between Portugal and Australia for Widow Pension (T13/31; T14/38). This claim was rejected on the basis that that pension has not been available since 1997 (T23/72).

f.Centrelink also assessed Mrs Ribeiro Simoes’ claim under the provisions for parenting payment single but on 26 November 2002 also rejected that claim. (T27/78-79).

LEGISLATION

4. Section 29 Social Security (Administration) Act 1999 relevantly provides that only a person who is an Australian resident and who is in Australia can make a claim for a social security payment.

5.      When a person is residing overseas, claims can only be made on the basis of international social security agreements between Australia and other countries pursuant to the Social Security (International Agreements) Act 1999.

6. There is a current agreement between Australia and Portugal, which is contained in Schedule 9 to the Social Security (International Agreements) Act 1999 and is titled “AGREEMENT BETWEEN AUSTRALIA AND THE REPUBLIC OF PORTUGAL ON SOCIAL SECURITY” (“the Agreement”).

7.      Article 2 of the Agreement states that, in relation to Australia, the Agreement affects “pensions payable to widows”. Under Centrelink’s Guidelines, the Agreement covers parenting payment single (“PPS”) as this is a payment payable to widows if they have dependent children.

8.      The term “widow” is defined in clause 1(k) of the Agreement as follows:

"widow" means:

in relation to Australia:

-a de jure widow; or

-a woman who was a member of a couple for 3 years immediately before her partner died and was wholly or mainly financially maintained by him;

-but does not include a woman who has a partner

…

Section 23 of the Social Security Act 1991 (“the Act”) defines ‘widow’ as follows:

"widow" means a woman who was the partner of a man immediately before he died.

9. Section 4(1) and 4(11) of the Act provide that someone is “partnered” if he or she is a “member of a couple”. In turn, “member of a couple” is defined by reference to subsections (2), (3), (3A), (6) and (6A). Most relevant to the present matter are the following provisions:

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

…

Illness separated couple

4(7)  Where 2 people are members of a couple, they are members of an illness separated couple if:

(a)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

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

(c)that inability is likely to continue indefinitely.

…

Temporarily separated couple

4(9A)  Two people are members of a temporarily separated couple if they:

(a)are members of a couple for the purposes of this Act; and

(b)are legally married to each other; and

(c)are living separately and apart from each other but not on a permanent or indefinite basis; and

(d)are neither an illness separated nor a respite care couple.

Note:   for "member of a couple" see subsection 4(2) and section 24.

ISSUE BEFORE THE TRIBUNAL

10.     Whether Mrs Ribeiro Simoes was a ‘member of a couple’, in other words, that she was not living ‘separately and apart’ from her husband David Oliveira Da Silva immediately before he died on 17 December 2001.

CONSIDERATION OF THE EVIDENCE

11.     In coming to the correct and preferable decision, I took into account all the evidence, submissions, case law and relevant legislation.

12.     It was Centrelink’s contention that Mrs Ribeiro Simoes was living separately and apart from her husband on a permanent basis at the time of her husband’s death, and was therefore not ‘a member of a couple’.

13.     Mrs Ribeiro Simoes’ evidence was that she and her husband and children had travelled to Portugal in June 2001 at the insistence of her brother-in-law, Manuel Oliveira da Silva, but at her expense. She said that she did not think that it was in her husband’s best interests that he travel to Portugal when he was dying. He had been “unconscious” and her brother-in-law had made all the arrangements.

14.     Mrs Ribeiro Simoes said that when they arrived in Portugal they went to stay in her mother-in-law’s house. She said she stayed there until “after October”. However in cross-examination she said she could not recall if it was June or October when she left. In a letter to Centrelink dated 2 October 2003 (T36/113) she had written:

“When I arrived here, I was not allowed to see my husband by my mother-in-law.”

15.     Mrs Ribeiro Simoes said in her evidence that her husband went to hospital, which she thought was a month before he died, and at that time the family “expelled” her and her children, although she had wanted to stay. She said that she went to the house owned by her late father which was about 15 kilometres away.

16.     I asked Mrs Ribeiro Simoes what had been her role in the house after her arrival and before she left. She said the family had wanted her to feed her husband as he had no capacity to do anything for himself. She said that she would “keep him company, nothing else”. She also had to take care of the children and was asked to do some cleaning of the house and cooking. She was asked in cross-examination about the contention made by Francisco Manuel Gomes Alves (T31/104) that she had told him that she could not care for both her husband and the children. She agreed that she had said that.

17.     Mrs Ribeiro Simoes said she knew at the time when she was leaving her mother-in-law’s house that she would not be returning.

18.     Mrs Ribeiro Simoes was asked if she saw her husband after he was taken to the hospital. She said she took the children there twice, however she was “stopped” by the family from seeing him. When asked how she was prevented from seeing her husband, she said that it was quite a distance to the hospital and it was “complicated” because she had to take the children, as there was no one to leave them with. Mrs Correla Da Silva, a witness called by Mrs Ribeiro Simoes, told me that she had never been asked to mind the children, even though, it appeared, she was a close friend of Mrs Ribeiro Simoes and had given her money.

19.     The depositions of the 2 witnesses, Mr Da Silva Simoes and Mrs Correla Da Silva were, in identical terms, that Mrs Ribeiro Simoes:

“1… always lived and accompanied her late husband until the day of his death.

2… who tried to assist her husband in the last days of his life in Portugal, by diligently caring for his health, or by arranging the necessary needs with other people.

…

5.… never separated from her late husband, even when he returned to Portugal ill.

6.… the relatives… intended to separate the couple by expelling her from the house where they lived.”

20.     When questioned, however, it was clear that neither had first hand knowledge of the matters to which they had deposed, the source of their information being Mrs Ribeiro Simoes’ brother. Neither had been to the family’s home, as it was 3 hours away, and they had only met Mrs Ribeiro Simoes‘ husband once or twice. Neither knew when it was that Mrs Ribeiro Simoes had left the family home.

21.     In these circumstances I am unable to find the two witnesses and their depositions to be of any assistance in this matter.

22.     Two letters from Mrs Ribeiro Simoes’ solicitor dated 13 October 2003 and 20 November 2003 (T37/116 and T39/120 respectively) repeat the contentions of the two witnesses called by Mrs Ribeiro Simoes, and these are also of little assistance.

23.     There is evidence that Mrs Ribeiro Simoes left her husband to be cared for by his relations at some time after returning to Portugal (T4/17; T11/27). There is also evidence from the relatives that Mrs Ribeiro Simoes did not take care of her husband nor visit him while he was ill.

24.     Mrs Ribeiro Simoes was able to tell me the name of the clinic her husband attended, but her husband had been taken there by his brother-in-law, Francisco. Mrs Ribeiro Simoes did not know the medication her husband was taking.

25.     Mr Gomes Alves wrote (T31/104) that on one of his days’ off he took Mr Oliveira Da Silva to visit the children. Mrs Ribeiro Simoes confirmed this in her evidence. She said her husband could not stay at her father’s home because there were no facilitates.

26.     Mrs Ribeiro Simoes told me her brother-in-law had telephoned her brother so he could inform her that her husband had died. She did not attend her husband’s funeral because she was scared of the family. She said they were “always against me” ever since she had been in Portugal. She was “worried they might harm me” if she went to the funeral and did not feel “comfortable around them”. She said she had wanted to go to the funeral.

27.     Mrs Ribeiro Simoes said that her husband had no will and the “division” was done “when he was in good health” many years before, that is, in 1995 or 1996. In Australia they had separate bank accounts for tax purposes, whereas in Portugal they had a joint account which had been opened many years before.

28.     Centrelink drew my attention to the evidence that Mrs Ribeiro Simoes’ in-laws appear to have had access to all of her husband’s personal documentation, and contended that this supported the view that it was they, not Mrs Ribeiro Simoes, who looked after him once in Portugal (T19/62).

29.     Mrs Ribeiro Simoes’ evidence was that she had handed over approximately 23,000 Euros to her husband’s family in the month after she and her husband had arrived in Portugal. It was unclear why this had occurred, but Mr Gomes Alves had written (T31/104) that it was half the couple’s savings and was to finance the care of Mr Oliveira Da Silva. In an undated translated statement (T45/142) Mrs Ribeiro Simoes wrote that the family had “seized” money “belonging to her”, whereas she told me that this was half of the money owned by her and her husband. She also wrote that the family had seized her husband’s “passport, identity card, benefit card, tax identification number, health benefit card and 2 Australian benefit cards”. She told me she had to borrow money because she had been unable to access her money, but it was unclear as to why this might have been, even if the family had retained her husband’s documents.

30.     It also remains unclear as to why it was necessary for Mrs Ribeiro Simoes to commence legal proceedings against the family after her husband’s death.

31.     A letter from Mrs Ribeiro Simoes’ solicitor dated 13 October 2003 (T37/116) was to the effect that there was “no legal procedure determining the divorce or judicial separation…” There is no dispute that Mrs Ribeiro Simoes and her husband were still legally married at the date of his death.

32.     There also does not appear to be any dispute that Mrs Ribeiro Simoes was not physically living with her husband at the time of his death.

33.     I turned to consider whether Mrs Ribeiro Simoes and her husband were separated on a permanent or indefinite basis.  I have already found that Mrs Ribeiro Simoes, as at 17 December 2001, was living separately and apart from her husband. Her evidence was that at the time she left the family home she knew she would not return. I therefore find that Mrs Ribeiro Simoes and her husband were, immediately before he died, living separately and apart on a permanent basis.

34. I then turned to consider if they were an ‘illness separated couple’ in accordance with section 4(7) of the Act. The evidence indicates that at the time of Mr Oliveira Da Silva’s death the couple was not only physically separated, but there was also a significant breakdown in the relationship, such that they were not separated simply due to her husband’s illness. The level of care Mrs Ribeiro Simoes was providing to her husband, even before the “expulsion”, was limited, on her evidence, to “keeping him company”. I accept that it was difficult having to care for two small children and a seriously ill husband, but Mrs Ribeiro Simoes, on her evidence, appears to have been unable to cope with both roles. This apparently led to some tension with members of her husband’s family.

35.     After Mrs Ribeiro Simoes left her husband’s family’s home, her level of interest in her husband’s well-being was, it seems to me, minimal. In the time he was in hospital, she took the children to visit him only twice. She did not know his medications.  She did not ask her friend, Mrs Correla da Silva to look after the children so she could spend time with her husband. She does not appear to have been in contact with the hospital and only found out from her brother that her husband had passed away. She did not attend the funeral, for reasons which I do not consider to have been satisfactorily explained.

36.     As to Mrs Ribeiro Simoes’ and her husband’s finances, it is unclear whether funds were “seized” or voluntarily handed over to the family. Those funds were attributed to the care of Mrs Ribeiro Simoes’ husband. After his death, albeit after some court proceedings had been commenced, all remaining funds were returned to her. In any event, their main finances were separated well before the time of her husband’s death.

37. I therefore find that Mrs Ribeiro Simoes was not a member of a couple, given that she had lived separate and apart from her husband on a permanent or indefinite basis, nor was she a member of an ‘illness separated couple’ in accordance with section 4(7) of the Act.

DECISION

38.     Accordingly, the decision under review is affirmed.

I certify that the preceding 38 paragraphs are a true copy of the decision and reasons for decision of Miss N Isenberg, Member:

Signed:         A. Garcia
          ..................................................................................……………………………….

Associate

Date of Hearing  28 June 2005

Date of Decision  18 August 2005

Representative for the Applicant               Self represented      

Representative for the Respondent         Ms H Schuster