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

Solberg and Secretary, Department of Social Services (Social services second review) [2018] AATA 1242 (4 May 2018)
Division:GENERAL DIVISION
File Number: 2017/4406
Re:Roslyn Solberg
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Senior Member Dr M Evans
Member C Edwardes
Date:4 May 2018
Place:Perth

1.The Tribunal refuses to grant a confidentiality order under s 35(2) and (3) of the Administrative Appeals Tribunal Act 1975 (Cth).
2.The Tribunal:
a.sets aside the AAT Tier 1 Decision and finds that the Applicant is not a member of a couple within the meaning of s 4(2) and (3) of the Social Security Act 1991 (Cth); and
b.remits the matter to the Respondent with the direction that the Respondent is to determine whether the Applicant meets the remaining eligibility and qualification requirements for an aged pension.

.......[sgd].................................................................
Senior Member Dr M Evans
CATCHWORDS
SOCIAL SECURITY – aged pension – appeal from AAT Tier 1 Review – whether the Applicant is a member of a couple – financial aspects of the relationship – pooling of resources – the nature of the household – social aspects of the relationship – sexual relationship – total picture of the relationship – whether a confidentiality order under s 35(2) or (3) should be made - decision set aside and remitted
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) - s 25(1), s 35(2) and (3)
Social Security Act 1991(Cth) – s 4(2) and (3), s 24, s 24(2)
Social Security (Administration) Act 1999 (Cth) - s 37, s 63, s 142(1), s 179(1)
CASES
Oliveri v Administrative Appeals Tribunal (1997) 79 FCR 394
Pelka v Secretary, Department of Family & Community Services (2006) 151 FCR 546; [2006] FCA 735
Phillip and Secretary, Department of Families, Housing Community Services and Indigenous Affairs [2013] AATA 135
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Re Secretary, Department of Employment and Workplace Relations and Sperring [2007] AATA 1050
Re Secretary, Department of Family and Community Services and WAP [2000] AATA 7
Re SRWW and Secretary, Department of Family and Community Services [2001] AATA 495
SECONDARY MATERIALS
Guide to Social Security Law – 2.2.5.10
Administrative Appeals Tribunal, Publication of Decisions Policy - s 4.1(a)
REASONS FOR DECISION
Senior Member Dr M Evans
Member C Edwardes
4 May 2018
BACKGROUND

The Applicant is a 67 year old woman.
On 23 December 2016, the Applicant contacted Centrelink to discuss making a claim for the aged pension whereby she would not be treated as a member of a couple pursuant to s 24 of the Social Security Act 1991(Cth) (the Act). The file note made by the customer service officer (Exhibit R1, T21, page 120) stated:
Cust enq re [sic] being paid AGE [sic] under s24 because she states the call centre told her she should test her eligibility under s24. Discussed with partner section 24…Cust [sic] is in a de facto relationship with a person who works in the mines and is only home 6 days a month. He earns more than $100k annually. The home they live in is owned by her partner and all assets are owned by him. Cust [sic] is upset as she states that as he owns everything and they have no joint finances, she should be assessed as a single person and her partner’s income should not be used in her AGE [sic] claim assessment.
Have issued AGE [sic] claim so she can test her eligibility.
The Applicant lodged a claim for the aged pension on 17 January 2017. In a handwritten letter dated 17 January 2017, which the Applicant submitted with her claim, she stated that she was “living with my boyfriend in his house” and that she wanted to “apply for a pension under section 24 for financial hardship” (Exhibit R1, T14, page 98-99). The Tribunal will refer to the Applicant’s “boyfriend” as “G” in these reasons for decision.
On 25 January 2017, Centrelink wrote to the Applicant requesting additional information under s 63 of the Social Security (Administration) Act 1999(Cth) (Administration Act) by 8 February 2017 otherwise her claim would be rejected. The additional information requested by Centrelink included: “Proof of all bank balances for yourself and G… for the 6 month period to 17^th January 2017”, and “Payslips for you and G… for past 3 months to 17^th January 2017”.
The Applicant telephoned Centrelink on 6 February 2017 regarding this request for additional information. The Centrelink officer’s file note of the conversation (Exhibit R1, T21, page 123) stated:
Customer called to advise that she cannot provide any documents for her boyfriend as he is refusing to supply information. He believes CLK does not need to know anything about his finances. Customer states he is only living with her in the same property 6 days a month as he works away from home. The house is his and she doesn’t pay him any rent. They have separate bank accounts and PO box addresses. Customer advises she stated some of this information in a letter she sent us (in documents loaded 19/01/2017). Customer will provide her income and assets test. Customer would like to be assessed for financial hardship as she states she has no income and he does not provide for her financially.
In a letter dated 13 February 2017, the Applicant’s claim for an aged pension was rejected. The letter stated, “[w]e cannot pay you Age Pension because we have not received a reply to the letter/s we sent you” (Exhibit R1, T16, page 102).
On 21 February 2017, the Applicant contacted Centrelink by telephone to request a review of the decision dated 13 February 2017.
On 23 February 2017, an authorised review officer of Centrelink affirmed the decision dated 13 February 2017. In this letter, the authorised review officer stated that, “I have reviewed the decisions made to reject your claim for Age Pension because you failed to reply to correspondence and that you are to be assessed as a member of a couple…” and that “…I have found these decisions were correct” (Exhibit R1, T18, page 106).
On 3 March 2017 the Applicant requested a review of the authorised review officer’s decision by the Administrative Appeals Tribunal (AAT). The AAT affirmed the review officer’s decision on 20 June 2017 (AAT Tier 1 Decision).
On 26 July 2017 the Applicant sought a review of the AAT Tier 1 Decision in the General Division of the AAT (AAT Tier 2 Review).
ISSUE
The overall issue is whether the Applicant’s claim for an aged pension was correctly rejected.
Specifically, the issues in dispute are:
(a)whether the Applicant was a member of a couple, as defined in s 4(2) and (3) of the Act, as at 17 January 2017? If the answer to this question is “no”, it is unnecessary to answer the next question; and
(b)if the Applicant is a member of a couple, are there special reasons not to treat her as a member of a couple, pursuant to s 24 of the Act?
However, the determination of these issues alone will not be enough to give the parties a conclusive decision as to whether the Applicant’s claim was correctly rejected, or in other words, whether she was eligible for an aged pension. In this regard, the Tribunal refers to the letter from Centrelink dated 25 January 2017 requesting the Applicant provide additional information about her income and assets, as well as the income of G. If the Tribunal finds in favour of the Applicant with respect to the issues in subparagraphs (a) or (b) above, the matter may need to be remitted to Centrelink to determine whether she satisfies the eligibility criteria regarding her income and assets.
JURISDICTION
The jurisdiction of the AAT is established by s 25(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), which states:
(1) An enactment may provide that applications may be made to the Tribunal:
(a) for review of decisions made in the exercise of powers conferred by that enactment; or
(b) for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.
In summary, s 25(1) of the AAT Act states that the jurisdiction of the Tribunal is given to it by other “enactments”, which grant it jurisdiction to review certain decisions made under those enactments.
Section 142(1) of the Administration Act gives the AAT jurisdiction to conduct a Tier 1 Review. It provides:
(1)Subject to section 144, application may be made to the AAT for review (AAT first review) of:
(a) a decision of the Secretary, the Chief Executive Centrelink or an authorised review officer made under section 126 or 135; or
(b) a decision under this Act made personally by the Secretary or the Chief Executive Centrelink.
Section 179(1) of the Administration Act provides that an application may be made to the AAT for a Tier 2 Review:
(1)Application may be made to the AAT for review (AAT second review) of a decision of the AAT on AAT first review made under subsection 43(1) of the AAT Act.
Accordingly, the Tribunal has jurisdiction under s 179(1) of the AAT Act to review the AAT Tier 1 Decision.
CONFIDENTIALITY
Section 35 of the AAT Act provides as follows:
Public hearing
(1)Subject to this section, the hearing of a proceeding before the Tribunal must be in public.
Private hearing
(2)The Tribunal may, by order:
(a) direct that a hearing or part of a hearing is to take place in private; and
(b) give directions in relation to the persons who may be present.
Orders for non-publication or non-disclosure
(3)The Tribunal may, by order, give directions prohibiting or restricting the publication or other disclosure of:
(a) information tending to reveal the identity of:
(i)a party to or witness in a proceeding before the Tribunal; or
(ii)any person related to or otherwise associated with any party to or witness in a proceeding before the Tribunal; or
(b) information otherwise concerning a person referred to in paragraph (a).
In an email to the AAT dated 13 March 2018, the Applicant stated:
I am very concerned about the fact that my hearing on Wed 28^th March at 10am may be made public. I am very stressed about this as I believe that my issue is private and it will give me anxiety knowing that people from the public will be able to sit in on my hearing. Also, the fact that the results will be made public on the internet using my name will also give me anxiety…
In an email dated 27 March 2018, the Respondent’s legal representative stated that his client opposed the grant of a confidentiality order in these proceedings, and made the following submissions:
We note that strict criteria govern the making of an order excluding the public from a hearing and s35 should be applied in exceptional cases where the principle that it is desirable that hearings of the AAT be held in public cannot be applied. There must appear to be a real possibility of doing injustice to, or inflicting a serious disadvantage upon, a party, a witness or a person giving information if the proceedings were in public, or it must clearly appear that the publication of the proceedings would be contrary to the public interest (Re Pochi).
The applicant has provided no evidence from a medical practitioner to support her contention that she will suffer from anxiety if her name were to be public or the hearing was conducted in public. We submit that the applicant’s situation is not an uncommon occurrence and does not put her case in to the category of exceptional cases.
The Tribunal agrees that it is not an uncommon occurrence for an applicant to feel anxious about attending a hearing at the AAT, and that the Applicant did not produced any evidence, such as a medical certificate, in support of her initial request for a confidentiality order (Oliveri v Administrative Appeals Tribunal (1997) 79 FCR 394).
At the commencement of the hearing the confidentiality order was discussed with the Applicant and the Respondent’s legal representative. The Tribunal noted that whilst proceedings were open to the public, as a matter of practicality, members of the public rarely attended. That was the case at this hearing. The Applicant conceded that she no longer wished to pursue the confidentiality order, and accordingly, no such order was made.
In accordance with section 4.1(a) of the Publication of Decisions Policy of the AAT, which provides that information about persons will only be included if it is relevant to the findings or otherwise necessary for the cogency of the reasons, in this decision the Tribunal refers to the Applicant’s “boyfriend” by the initial “G”.
MATERIAL BEFORE THE TRIBUNAL AND THE HEARING
The application was heard by the Tribunal on 28 March 2018. The Applicant was unrepresented and appeared in person. The Respondent was represented by Mr Ashley Burgess from Sparke Helmore Lawyers who appeared in person. Oral submissions were made by both parties and the Applicant gave evidence under oath. The Tribunal found the Applicant to be an honest witness who gave evidence to the best of her recollection.
The following material was before the Tribunal:
(a)the Respondent’s s 37 documentation (T1-T21) (Exhibit R1);
(b)the Respondent’s Statement of Facts, Issues and Contentions dated 16 January 2018 (Exhibit R2);
(c)a bundle of documents comprising copies of:
(i)a handwritten letter from the Applicant to the AAT dated 18 December 2017;
(ii)a photocopy of the Applicant’s Medicare card;
(iii)the Applicant’s completed Relationship Details form signed by the Applicant on 12 December 2017;
(iv)a Synergy Account for the period 29 September 2017 to 28 November 2017 in G’s name;
(v)a Telstra mobile phone account for the period 18 October to 18 November 2017 in the name of the Applicant;
(vi)a “First and Final Account” from the Department of Transport for “Licence and Motor Injury Insurance Policy” in the name of the Applicant;
(vii)a tax invoice for Council Rates for the year ending 30 June 2018 in G’s name; and
(viii)a Telstra account for the period 7 October 2017 to 6 November 2017 in G’s name. This account appears to be for a home telephone/internet due to the reference to “bundle” in the top right hand corner of the account.
These were labelled Exhibit A1;
(d)a handwritten 5 page statement signed by the Applicant and dated 18 January 2018 which attaches a document titled “B Crew Roster 2018” as page 6 (Exhibit A2); and
(e)a letter to the Respondent’s legal counsel from the Applicant dated 12 March 2018 attaching a photograph of toiletries, two bathroom photographs, six photographs of clothes and wardrobes, three photographs of items stored in a shed and three more bathroom photographs (Exhibit A3).
At the commencement of the hearing, the Applicant handed the following documents to the Tribunal. Copies of these documents were provided to the Respondent’s legal representative at the hearing.
(a)a bundle of documents containing:
(i)a pawn ticket from Cash Converters for nine items of jewellery with a contract date of 3 October 2017 and a due date of 3 January 2018 signed by the Applicant;
(ii)an “Anniversary Statement” from “Insuranceline” with a covering letter dated 1 March 2018 for funeral insurance for the Applicant;
(iii)a letter from HBF to the Applicant confirming that her policy has been suspended at her request from 11 September 2017 to 9 March 2018; and
(iv)a Carer Subsidy Statement dated 13 March 2018;
These were labelled Exhibit A4; and
(b)a bank account transaction statement from Bendigo Bank for the period 4 October 2017 to 3 January 2018 (Exhibit A5).
The following material was received by the AAT after the hearing:
(a)an email from the Applicant to the AAT dated 2 April 2018 in which the Applicant states, in part:
As you are aware I attended a hearing on the 28^th March
I was very concerned that I never put my case forward enough on the day…I have been worried sick all the long weekend, and feel that I need to express myself to the two senior members who attended my hearing knowing that it was my last chance to be heard, I just froze on the day and when I left the meeting I felt sick as I didn’t get the important factors across to the members…
The Applicant continues on in the email to make additional submissions about “the five factors” which relate to whether the Applicant should be treated as a member of a couple. The Tribunal notes that these submissions do not provide any additional information to that already before the Tribunal at the date of the hearing.
(b)an email from the Respondent’s legal representative dated 3 April 2018 to the AAT (copied to the Applicant) in response to the Applicant’s email of 2 April 2018. In this email the Respondent’s legal representative states:
We note that this matter proceeded to hearing on 28 March 2018 and the applicant gave evidence and was cross examined on that evidence.
Despite the applicant introducing new evidence after the hearing, the respondent does not consider that the matter needs to be listed for a resumed hearing for the applicant to be cross-examined on the new evidence.
The respondent requests that the Tribunal proceed to making its decision on the available evidence.
The Tribunal is sympathetic to the difficulties faced by unrepresented applicants, and appreciates that appearing at the Tribunal hearing may be a stressful experience. The Tribunal conducted the proceedings so as to ensure the Applicant was able to be heard by the Tribunal, including asking the Applicant questions and otherwise ensuring that all relevant submissions and material were before the Tribunal. The Tribunal is satisfied that both parties were afforded procedural fairness, particularly with respect to the hearing rule, and agrees that there is no need for a resumed hearing.
LEGISLATIVE FRAMEWORK
Section 4(2) of the Act sets out when a person is considered to be a member of a couple:
Member of a couple—general
(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
(aa) both of the following conditions are met:
(i)a relationship between the person and another person (whether of the same sex or a different sex) is registered under a law of a State or Territory prescribed for the purposes of section 2E of the Acts Interpretation Act 1901 as a kind of relationship prescribed for the purposes of that section;
(ii)the person 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 another person, whether of the same sex or a different 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 de facto 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.
Section 4(3) of the Act further provides:
Member of a couple—criteria for forming opinion about relationship
(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.

French J in Pelka v Secretary, Department of Family & Community Services (2006) 151 FCR 546 [2006] FCA 735 discussed the statutory objective behind treating persons as being in a marriage like relationship at [62]:
The statutory criterion of ‘marriage-like relationship’ is no doubt intended to ensure that there is no unfair discrimination in the payment of benefits as between those who are married and those who enjoy the benefits of marriage without its formalities. The formula is likely to be productive of difficulty in application and uncertainty in result…. The real difficulty arises from the fact that, in the payment of various classes of benefit, there is a distinction drawn between married and unmarried people. So long as marriage is a basis for different levels of benefit there will be a policy imperative to apply the distinction to marriage-like relationships.
His Honour (as he then was) provided guidance as to how the AAT should interpret and apply the criteria in s 4(3) of the Act, and also noted the difficulty in applying the criteria in s 4(3) of the Act, at [46]-[47]. His Honour stated:
46. 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;
(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;
(e)mutual commitment.
47. 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.
His Honour also said the following, with respect to the AAT’s decision which was the subject of the appeal, at [61]:
This conclusion did not proceed, as one might have expected, from a weighing of the various factors against each other. It is plain that there were matters pointing in different directions. A decision-maker in applying the matters set out in s 4(3) should acknowledge that they are non-exhaustive and at least indicate that consideration has been given to whether there might be any other factors relevant to the difficult judgment of whether a ‘marriage-like’ relationship exists. Each of the individual matters listed in s 4(3) is accompanied by a non-exhaustive list of factors. Again, the decision-maker in each case should consider whether there are any other factors relevant to the particular matter listed ...
In Re Secretary, Department of Employment and Workplace Relations and Sperring [2007] AATA 1050 (Sperring), Senior Member Isenberg was required to consider whether the respondent was a member of a couple under s 4(2) and (3) of the Act for the purpose of calculating her entitlement to a parenting payment and family tax benefit. In Sperring, at [52], Senior Member Isenberg cited the following passage from Re SRWW and Secretary, Department of Family and Community Services [2001] AATA 495:
The Tribunal notes that each individual case must be considered on its merits and in today's world, the indicia of a marriage or a marriage-like relationship and being a member of a couple has very different connotations, depending on the circumstances of the couple and the context in which their relationship occurs. It behoves decision-makers to look at the merits of the individual case and to be flexible in its findings about such matters.
Further, with respect to the weight to be given to the criteria in s 4(3) of the Act, Senior Member Isenberg stated, at [54]:
In Re Secretary, Department of Family and Community Services and WAP [2000] AATA 7, the Tribunal said that the provisions of section 4(3) of the Act provide objective criteria for determining if a person is a member of a couple. However, as there is no guidance as to how much weight is to be attributed to each criterion, it falls to the Tribunal to consider all of the circumstances of the relationship and what weight is to be accorded to those circumstances.
The five criteria in s 4(3)(a) to (e) of the Act are further explained in the Guide to Social Security Law (the Guide) at 2.2.5.10.
In Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 645 (Drake (No 2)), Brennan J stated at 642:
In point of law, the Tribunal is as free as the Minister to apply or not to apply that policy. The Tribunal’s duty is to make the correct or preferable decision in each case on the material before it, and the Tribunal is at liberty to adopt whatever policy it chooses, or no policy at all, in fulfilling its statutory function.
Later in his judgment, Brennan J (at 645) explained how the AAT should apply government policy when reviewing administrative decisions:
In my view, the Tribunal, being entitled to determine its own practice in respect of the part which ministerial policy plays in the making of Tribunal decisions, should adopt the following practice.
When the Tribunal is reviewing the exercise of a discretionary power reposed in a Minister, and the Minister has adopted a general policy to guide him in the exercise of the power, the Tribunal will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case. Where the policy would ordinarily be applied, an argument against the policy itself or against its application in the particular case will be considered, but cogent reasons will have to be shown against its application, especially if the policy is shown to have been exposed to parliamentary scrutiny.
Accordingly, the Tribunal considers it appropriate to apply the Guide in assessing the five criteria in s 4(3)(a) to (e) of the Act in accordance with the direction given by Brennan J in Drake (No 2).
Section 24(2) of the Act is relevant to determine whether, for a special reason, the person should not be treated as a member of a couple:
(2)Where:
(a) a person has a relationship with another person, whether of the same sex or a different sex (the partner); and
(b) the person is not legally married to the partner; and
(c) the relationship between the person and the partner is a de facto relationship; and
(d) the Secretary is satisfied that the person should, for a special reason in the particular case, not be treated as a member of a couple;
the Secretary may determine, in writing, that the person is not to be treated as a member of a couple for the purposes of this Act.
CONSIDERATION
Section 4(2) of the Act, as outlined above, is a general provision regarding whether a person is “a member of a couple”. As the Applicant is not legally married to G, s 4(2)(b) of the Act requires the Secretary to assess whether persons are in a de facto relationship (see s 4(2)(b)(iii) of the Act) with reference to s 4(3) of the Act. Thus, the Tribunal must weigh the criteria in s 4(3) of the Act to form a conclusion as to whether the Applicant was, at the relevant time, a member of a couple with G. The Tribunal will also consider the “total picture of the relationship”, and any other factors which may be relevant to evaluating whether the Applicant is a member of a couple with G.
Additionally, when evaluating the criteria in s 4(3)(a) to (e) of the Act below, the Tribunal has had regard to the policy statement in the Guide at 2.2.5.10 which further explains the aspects of the person’s relationship that can be taken into account under each criteria.
Financial aspects of the relationship
The Applicant resides in a house which is owned by G. G pays the mortgage on the house which is in his sole name (Exhibit R1, T14, page 98). G is a Fly-in-Fly-Out worker who is only home for six days after working away for 15 days. The Applicant does not pay rent to G, but there is an agreement between them that, in substitution for rent, the Applicant will look after the house and feed G’s animals (including sheep, ponies, horses, and chickens) while he is away (Statutory declaration of G dated 9 July 2017 in Exhibit R1, T1, page 6). The Applicant gave evidence at the hearing that G used to pay someone to look after the animals when he was away working but that she now undertakes this task in return for not paying rent.
G pays the shire rates on his house (Exhibit R1, T5, page 61), and the electricity account with Synergy (Exhibit R1, T6, page 63), toward which the Applicant pays $100 per month. G also pays for the home telephone and internet (Exhibit R1, T9, page 68-69). The Applicant gave evidence at the hearing that the house is supplied with rainwater, so there are no water costs. The Applicant pays for her own health insurance (Exhibit R1, T11, page 72-73), which she recently suspended because she could not afford the payments (Letter from HBF dated 30 January 2018 in Exhibit A4). The Applicant believes that G earns over $100,000 per year, but does not have any access to pay slips or financial information, and consequently was not able to provide these to Centrelink, resulting in her claim for an aged pension being rejected on 13 February 2017.
The Applicant and G do not jointly own any real estate or other assets, and do not owe any legal obligations to one another. They have separate bank accounts (Exhibit R1, T8, page 67) and separate postal addresses. They pay medical insurance and tax as single persons (Letter from the Applicant dated 18 January 2018 in Exhibit A2). The Applicant and G each have their own cars and separately pay for their own motor vehicle licensing and insurance (Exhibit R1, T7, page 65; Exhibit R1, T10, page 70). G’s three sons from a previous marriage are the beneficiaries under his will. The Applicant is not a beneficiary under his will (Exhibit R1, T1, page 4) or under his superannuation or life insurance policy (Letter from the Applicant dated 18 January 2018 in Exhibit A2).
Upon the commencement of their co-habitation, the Applicant and G agreed to keep all finances separate, and that he would not support her financially. G’s intention to have completely separate finances from the Applicant, and his intention not to financially support her, even after his death, is evident from his statutory declaration (dated 9 July 2017, Exhibit R1, T1, page 6). It is relevant to reproduce it here because, as well as from a financial perspective, it assists to assess the nature of the relationship:
I am the boyfriend of Roslyn…Roslyn is now living full time at my house…Roslyn does not pay any rent as she looks after the property and animals while I am at work. My roster is 15 days on and 6 off. I am the sole owner of the property and owned it for a period of nearly 6 years. I have a mortgage to pay and also I am paying off a loan from a failed business, which I sold last year. Roslyn and I have separate bank accounts, cars, post boxes, health insurances, household insurances ect [sic]. All the furniture in the house belong [sic] to me and Roslyn’s furniture is stored in the shed in the property. I had no intention of fully supporting Roslyn when she moved in and she said she had intentions of retiring and claiming her aged pension. I pay single mans [sic] tax and have done since my divorce 10 years ago from a marriage of nearly 30 years. I believe that Roslyn could take half my house if we were to split, if she was dependent on me. Roslyn is very independent and has always said that she never wanted me to fully support her and was happy living in the house free of charge. Roslyn said Centrelink wants me to support both her and …[the child] who is also living at the property. I will not agree to that as I do not believe that I have to take on the financial responsibilitys [sic] of them both. It was not the plan we discussed between us and I am not intending to chang [sic] my point of view. I have started from scratch financially twice in my life and do not intend to go there again.
The Tribunal notes that G was not present at the hearing, and was therefore not cross-examined on the content of this statutory declaration.
The Applicant also has the sole care of a minor child (the child). She gave evidence at the hearing that she relied on her carer’s payment as her sole means of income, and has recently pawned jewellery due to financial hardship (Exhibit A4) which G did not know about. She gave evidence at the hearing that G did not give her any money. The Tribunal notes that, under cross-examination, the Applicant was unable to remember the source of a cash deposit into her bank account of $550 on 28 November 2017 and 21 December 2017 for $600 (Exhibit A5). However, given G’s statements in his statutory declaration, the Tribunal finds that these sums were unlikely to be from him, and were more likely to be a loan from the Applicant’s sister as she suggested when giving evidence at the hearing. With the exception of providing accommodation and paying for most of the electricity (less the $100 per month contributed by the Applicant) and the occasional sharing of meals for some of the six days when G is home from work, G does not financially contribute to the child’s care.
The Respondent has submitted that “[w]hile there is some financial independence in that the Applicant and … [G] do not pool their income and keep separate bank accounts, insurances, vehicles and phone accounts, there is a degree of pooling of resources insofar as some of the household expenses such as gas and electricity are shared and the Applicant receives the benefit of living at the property rent free.” (Exhibit R2, para [40]).
The Tribunal further notes the Respondent’s reference to the following passage from Phillip and Secretary, Department of Families, Housing Community Services and Indigenous Affairs [2013] AATA 135 (Phillip) at [33] (Exhibit R2, para [39]):
The fact that members of a couple maintain financial independence does not mean they do not gain some benefit of pooling of resources, because sharing rent and household expenses is a form of pooling resources.
The pooling of resources is, however, something that requires further consideration in light of the comments of French J in Pelka. In Pelka, for a 16 year period, the applicant paid the mortgage and rates on her property, which Mr K lived in rent free, although Mr K paid for an annual overseas holiday for them both. Mr K also paid for gas, electricity and the telephone account. They did not own any property together, have any joint liabilities, or bank accounts together.
French J disagreed with the Tribunal’s finding that, “…their financial relationship involved significant cooperation, pooling of resources and mutual benefit” (at [19]). With respect to whether there was “a pooling of financial resources”, his Honour stated at [52]:
A relevant constructional question which arises under the first ground is the meaning of the term “pooling of financial resources” in s 4(3)(a)(ii). The ordinary meaning of the word “pool” in this context is set out in the New Shorter Oxford English Dictionary thus:
Put resources into a common stock or fund; share in common, combine for the common benefit.
This, in my opinion, is the sense in which the noun “pooling” is used in s 4(3)(a)(ii). It plainly involves something more than financial cooperation or separate contributions to different elements of household expense. The so-called “barter system” did not constitute a pooling of financial resources in that sense. If Mr Kuhl paid for or contributed to overseas travel for Ms Pelka instead of paying rent, that is not a “pooling of financial resources” any more than his payment of rent would be so described. There was no evidence of pooling, properly so called, identified by the Tribunal in its findings and the Tribunal’s finding that there was appears to reflect an error of law. That error is a misconstruction of s 4(3)(a)(ii). There was no pooling “in relation to major financial commitments” which is a particular focus of the pooling to be considered under s 4(3)(a)(ii).
The Tribunal accepts, as the Tribunal did in Phillip, that living under the same roof, sometimes sharing meals during the six days when G is home from work, and separately paying utility bills may be more financially beneficial to the Applicant than if she were living separately. However, applying the comments of French J in Pelka, as outlined above, the Tribunal finds that this would only amount to “small scale pooling”, and that there was no “pooling of resources” with respect to major financial commitments. The Tribunal also notes that the non-payment of rent in return for looking after the house and animals while G was away was similar to the non-payment of rent in return for an annual holiday in Pelka. In Pelka, despite such a “barter-system”, French J found that the Tribunal erred in law because it misinterpreted the law with respect to whether the parties had pooled their financial resources within the meaning of s 4(3)(a)(ii) of the Act (French J, in Pelka, at [52]).
Some pooling of resources may be indicative that a person is a member of a couple. However, in the present situation of the Applicant and G, the Tribunal finds that any pooling of resources was not sufficient enough to suggest that the Applicant and G were a “member of a couple”.
Nature of the household
The Applicant and G share a bedroom in G’s three bedroom house. The Tribunal notes that the Applicant and G could occupy separate bedrooms if they chose to do so. Sharing a bedroom, when there is the option of moving to another bedroom, is suggestive that the Applicant and G are members of a couple. The Applicant and G also share common living areas in the house (Exhibit A2, page 2).
G’s clothes are in the bedroom cupboard, but the Applicant’s clothes are on a separate clothes rack. The Applicant and G use separate bathrooms (Exhibit A3). Having separate hanging space for clothes, even in different rooms, and using separate bathrooms is not unusual for couples, and therefore does not suggest that the Applicant and G are not members of a couple.
As G indicated in his statutory declaration (discussed above), and in accordance with the evidence given by the Applicant at the hearing, the Applicant and G have separate postal addresses. Whilst the Applicant lives in G’s house, she does not have any of her furniture in the house. It is in storage in G’s shed. The Applicant and G do not have any joint ownership of household items (Letter from the Applicant dated 18 January 2018 in Exhibit A2), and all items of furniture and other household items in the house are the property of G.
The Applicant and G have no children together. The Applicant has the sole care of the child, and supports the child financially via a carer subsidy payment (Carer Subsidy Statement in Exhibit A4). As stated by G in his statutory declaration, there is no joint responsibility for this child. G does not support the child financially, except for allowing her to live in his house in her own bedroom.

G does his own washing when he is home. The Applicant does washing for herself and the child. If G cooks when he is home, he will clean up after himself (Exhibit A2, page 2). The Applicant gave evidence at the hearing that she buys food for herself and the child. She gave evidence that G buys food (for example, meat for a barbeque) for himself when he is home. Sometimes the Applicant and G will share meals on the six days he is back home from work. The Applicant primarily cleans inside the house. G is responsible for chores outside the house when he is home (Exhibit A2, page 2).
There are many similarities between the living arrangements of the Applicant and G and the living arrangements of co-tenants. The separation of some chores (washing and food shopping), the separate postal addresses of the parties, the separate ownership of household items, the absence of any of the Applicant’s furniture in G’s house, and the Applicant’s role as sole carer for the child, tend to suggest that they are not members of a couple.
Social aspects of the relationship
The Applicant made the following written submission about the social aspects of her relationship with G (Letter from the Applicant dated 18 January 2018 in Exhibit A2, page 3):
We never present as a de facto couple. If asked we say boyfriend/ girlfriend (sic).
We have not gone to joint social activities together in 5 years (sic).
Have corrected someone if they say “husband/ Wife” [sic]. It is corrected to girlfriend/ boyfriend (sic).
Have never presented as a de facto couple in writing or verbally to any third party.
Yes, family & friends look on G…and myself as a couple but know that we class each other as casual & no intentions of a serious relationship like marriage or engagement.
At Christmas time if G…is home he goes to his family & I have time with my family. Both families are seperate (sic) at Christmas…
The Applicant’s reference to G as her “boyfriend” and G’s reference to her as his “girlfriend” tends to suggest that they regard themselves as being a couple. So too does the Applicant’s perception that family and friends regard them as a couple in a casual sense. Practically speaking, a person can still be a couple, even if they do not have “intentions of a serious relationship”.
On the other hand, the Tribunal notes the Applicant’s comment that she and G have “not gone to joint social activities together in 5 years”. The Applicant gave evidence at the hearing that they attend social events alone and do not go anywhere together. She has only met two of G’s friends. They do not have any common interests apart from watching television together when he is home from working away. They do not have any shared short or long term plans. For example, they do not spend Christmas together or go on holiday together. These factors tend to suggest that the Applicant and G are not members of a couple.
Sexual relationship between the people
The Applicant stated the following with respect to the existence of a sexual relationship with G (Letter from the Applicant dated 18 January 2018 in Exhibit A2, page 4):
[G] and I have had a sexual relationship for a period of over six years. We had an on off relationship for the first two years. At the beginning we were both seeing other people & it was not an exclusive relationship. Our sexual relationship is again casual with never any mention of marriage or engagement. (emphasis in original)
A casual sexual relationship does not by itself indicate that the persons are members of a couple. However, a shared bedroom and the existence of a sexual relationship for a six year period weighs in favour of the Applicant being a member of a couple with G.
Nature of the people’s commitment to each other
The Applicant and G do not appear to have a relationship involving companionship or emotional support, and appear to know little about the details of each other’s lives (Exhibit A2, page 5) despite having a relationship of approximately six years in duration. The Applicant gave evidence at the hearing that she did not immediately notify G when she had an emergency operation in March 2017. Further evidence from the Applicant was that if the Applicant had personal issues involving her family, she would not inform G (Exhibit A2, page 5). The Applicant’s sister is her next of kin on her medical records, and her Medicare postal address is her sister’s address (Exhibit R1, T1, page 4). The Applicant has also paid for her own funeral insurance (see Policy Schedule in Exhibit A4).
The Applicant’s statement above, concerning her sexual relationship with G, also does not describe a close or marriage-like relationship. She describes the sexual relationship as “casual” and that they do not have any intention of engagement or marriage. She also stated in her written submission that, “I describe our relationship as casual” (Exhibit A2, page 5).
In the same written submission (Exhibit A2, page 5) the Applicant distinguished her relationship with G from that of a de facto relationship:
I understand the term de facto relationship as being supported by a person as husband & wife. That everything is shared as one. That bank accounts – furniture, cars & all bills are together. One supports the other. I never came into this relationship to be supported. I have had a tough life and don’t want or expect someone to support me…Just because I live in his house & share the bedroom why should I be classed as a de facto couple when we have everything separate. If I ever leave then I will leave with what I came with.
As noted above, the Applicant and G have no common interests and do not socialise or spend any time together. The Applicant further indicated that she does not “rely on him for emotional support or a personal crisis” (Exhibit A2, page 5). Apart from providing a statutory declaration (Exhibit R1, T1, page 6), G refused to provide documentation regarding his income to the Applicant or Centrelink which resulted in the rejection of her initial aged pension claim. At the hearing, the Applicant described the relationship as “at the moment, permanent” but went onto state that she was only living in G’s house because she was supporting the child. The Applicant also described herself in her evidence at the hearing as closer to the child than to G. She also stated, “I am 67 years old & don’t want to move out because I would have to share with other people as I could not afford to live on my own” (Exhibit A2, page 5). Thus, it appears that financial hardship, instead of a commitment to a long term relationship with G, contributes to her living with him.
Based on the consideration of the above evidence, the Applicant and G do not appear to have a close or supportive relationship as would a de facto couple. This weighs against the Applicant and G being regarded as a member of a couple.
CONCLUSION
Total picture of the relationship and other relevant factors
In Sperring, Senior Member Isenberg stated at [70]:
Determining whether a relationship is ‘marriage-like’ is a difficult task. The assessment is made somewhat easier by the common sense criteria identified in the legislation, as addressed above. As observed in Cullinane (where there was found to be a marriage-like relationship) being a member of a couple involves a lot more than sharing a common address. However, all the criteria need not be satisfied. In fact, one may satisfy few of them but still be considered to be a member of a couple. All of the circumstances need to be considered. Each matter is different.
The Tribunal has weighed the evidence relevant to each of the criteria in s 4(3) of the Act to form an opinion as to the “total picture of the relationship” (French J in Pelka) between the Applicant and G.
On the one hand, a characterisation of some of the criteria, as discussed in detail above, may weigh in favour of the conclusion that the Applicant is a member of a couple with G. For example, there is some sharing of living expenses by the Applicant and G by virtue of sharing a house, some sharing of meals for six days (after every 15 days away) when G returns home from work, and G’s payment of most of the utility bills. The parties also share a bedroom, have a sexual relationship, and refer to each other as “boyfriend/ girlfriend”.
On the other hand, some of the criteria discussed in detail above, weigh against the conclusion that the Applicant is a member of a couple with G. For example, the relationship is not one of companionship and emotional support. The parties do not socialise together and have no common interests or goals as a couple. They keep their financial affairs separate from one another, and indeed, know little about each other’s finances. The parties do not have any shared assets, bank accounts or liabilities. They share some household expenses by virtue of living under the one roof and sharing some meals for six days when G returns from work. The Applicant looks after G’s house and animals in lieu of rent when he is away. However, these factors are not sufficient enough to amount to substantial “pooling of resources”. The Applicant and G conduct themselves, and organise their affairs (for example, socialising, the payment of tax and health insurance, and the Applicant being the sole carer of the child) as single people. That is, they do not hold themselves out as a couple to any government departments to obtain any benefits, or for any legal purposes. They are not beneficiaries of each other’s superannuation or life insurance. With the exception of a sexual relationship and a shared bedroom, the Tribunal is of the opinion that the relationship is more akin to a co-tenant relationship, than the membership of a couple.
The Tribunal has weighed the available evidence, and based on the analysis of the criteria above, the Tribunal has come to the conclusion that the “total picture of the relationship” is that the Applicant is not a member of a couple with G within the meaning of s 4(2) and (3) of the Act. There are no other relevant factors in addition to those discussed above (as referred to by French J in Pelka). It is therefore unnecessary to consider s 24 of the Act.
DECISION
The Tribunal refuses to grant a confidentiality order under s 35(2) and (3) of the Administrative Appeals Tribunal Act 1975 (Cth).
The Tribunal:
(a)sets aside the AAT Tier 1 Decision and finds that the Applicant is not a member of a couple within the meaning of s 4(2) and (3) of the Social Security Act 1991 (Cth); and
(b)remits the matter to the Respondent with the direction that the Respondent is to determine whether the Applicant meets the remaining eligibility and qualification requirements for an aged pension.

I certify that the preceding 74 (seventy-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans, and Member C Edwardes

....[sgd]....................................................................
Associate
Dated: 4 May 2018

Date of hearing: 28 March 2018

Applicant: In person: self-represented

Representative for the Respondent: Mr Ashley Burgess

Solicitors for the Respondent: Sparke Helmore Lawyers

[2018] AATA 1242

4 May 2018

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Standing

Date of hearing:	28 March 2018
Applicant:	In person: self-represented
Representative for the Respondent:	Mr Ashley Burgess
Solicitors for the Respondent:	Sparke Helmore Lawyers