SRSSS and Secretary, Department of Family and Community Services

[2002] AATA 565

DECISION AND REASONS FOR DECISION [2002] AATA 565

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2001/1513

GENERAL ADMINISTRATIVE  DIVISION       )          
           Re      SRSSS         
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES        
  Respondent

DECISION

Tribunal       Mr M J Sassella Senior Member

Date10 July 2002

PlaceSydney

Decision      The tribunal affirms the decision under review.
   [SGD] M J SASSELLA
  Senior Member
CATCHWORDS
SOCIAL SECURITY - Age Pension - whether applicant a member of a couple - whether applicant and partner living separately and apart under one roof - marriage-like relationship – policy on marriage-like relationships

Social Security Act 1991 ss 4(1) ("member of a couple"), (2), (3), (6), 5A, 24(1).
Hucker and Secretary, Department of Social Security, Re (unreported, 15 January 1992; (1992) 66 SSR 935)

REASONS FOR DECISION

10 July 2002            Mr M J Sassella Senior Member             

HISTORY OF APPLICATION

1. On 16 December 1993 the applicant was granted Age Pension and was paid at the rate applicable to a pensioner who is "a member of a couple" under the Social Security Act 1991 ("the Act") (T2).

2. On 12 January 2001 the applicant requested Centrelink, the Commonwealth agency that delivers social security benefits on behalf of the Secretary, Department of Family and Community Services ("the respondent"), to pay him at the higher rate applicable to a pensioner who is not a member of a couple (T5).  This was because, he said, he and his wife were separated and should not be treated as a married couple.  He was given a "Module LA" form and an "assessment of living arrangements" form (T7) to complete, as was the applicant's wife (T8).  "LA" apparently refers to "living arrangements".  The applicant also made an additional statement in writing about aspects of his and his wife's living arrangements, property arrangements, and general presentation to the world (T10).

3. On 19 February 2001 a sub-delegate of the Secretary rejected the applicant's request (T15).

4. On 22 January 2001 the applicant requested that an authorised review officer ("ARO") review the decision to refuse his request (T16).

5. On 6 March 2001 an ARO affirmed the decision to refuse the applicant's request (T19).

6. On 5 April 2001 the applicant lodged with the Social Security Appeals Tribunal ("the SSAT") an application for review of he ARO's decision (T2).
   reviewable decision

7. On 23 August 2001 the SSAT affirmed the decision under review (T2).  The SSAT heard from the applicant and his wife and, in affirming the decision, made the following findings of fact:

   "…

   16.       It is not in dispute that [the applicant and his wife] are legally married.

   17.      The Tribunal accepts the findings of the delegate on the form Mod LA for the assessment of living arrangements and recorded under the following headings:
   Financial aspects of the relationship
   Any joint ownership of real estate or other major assets or joint liabilities:

   18.      There is joint ownership of real estate, the property at [address].  They have no joint liabilities, except that [the applicant's wife] mentioned they were paying off the kitchen stove.
   Any significant pooling of financial resources:

   19.      Financial resources are pooled 50/50 to cover household expenses including buying food.  The telephone account is split 25/75 because of high use by [the applicant's wife].  They have separate bank accounts and each owns a car.  They share a car if they are going to the same destination.
   Any legal obligations owed by one person in respect of another:

   20.      Each has made a will naming the other as beneficiary.
   The basis of any sharing of day-to-day household expenses:

   21.      [The applicant's wife] does cooking and cleaning and [the applicant] does yard care and repairs.  All other expenses are shared equally as stated above.
   Nature of Household:

   22.      [The applicant and his wife] have separate bedrooms and bathrooms.  They jointly own the furniture.  Until very recently there were two television sets; at the moment there is only one in the shared living room.  They share all living areas.  The household jobs are shared, as stated above.
   Social Aspects of the relationship, including
   Whether the people hold themselves out as married:

   23.      Although [the applicant and his wife] regard themselves are separated, they do not hold themselves out to their children or to the community in which they live as anything other than a married couple.  They do not wish to inform others of their private business.
   The assessment of friends and regular associates of the people about the nature of their relationship:

   24.      Three of [the applicant's wife's] closest friends know that [the applicant and his wife] regard themselves are separated, but these friends live in Sydney and are not part of the... daily community [of the applicant and his wife].
   The basis on which the people make plans for, or engage in, joint social activities:

   25.      [The applicant and his wife] share some social activities and most family occasions with their children and grandchildren.  They have separate holidays.
   Any sexual relationship between the people:

   26.      There is no sexual relationship according to [the applicant and his wife in their] oral evidence to the Tribunal and Centrelink accepts this.
   The nature of the commitment to each other, including
   The length of the relationship:

   27.      [The applicant and his wife] have been married about 45 years.  About 15 years ago they lived apart for one year but came together again because of finances and also a desire to give the relationship another chance.
   The nature of any companionship and emotional support provided to each other:

   28.      [The applicant] says that he would care for and support [his wife] if she were ill or in a crisis.  He would not give financial support because they have had separate finances for 20 years.
   Whether the people consider that the relationship will continue indefinitely:

   29.      [The applicant] does not know how long the current situation will last.  [His wife] thinks that it will continue indefinitely.
   Whether the people see their relationship as marriage-like:

   30.      [The applicant] says that it is not like a marriage because they have had separate finances for 20 years and because there is no closeness or intimacy between them.  [The applicant's wife] says it is not like a marriage because they do few things together and she spends time away with friends or family.  They have managed their own finances separately for 20 years.

   …

   36.      The tribunal considered all aspects of the relationship on which there was available evidence.  While the couple maintain separate bank accounts there is in fact is some pooling of financial resources.  There is joint ownership of real estate purchased relatively recently, but not other assets such as shares.  Each is the beneficiary under the other's will

   37.      [The applicant and his wife] have their own bedrooms and sometimes watch TV or undertake other leisure activities together.  They share furniture.  [The applicant's wife] cooks for both.  [The applicant] does the laundry and washing up.  They sometimes shop together and they have a kitty for shopping and joint household expenses.  The Tribunal considered that basic daily activities, like cooking, eating and laundering were performed cooperatively and as members of a unit. 

   38.      [The applicant and his wife] share some social activities at the ... club, and the dance club at the RSL.  They belong to the same political party.  They have separate cars, but drive together in one of the cars when going to the same function.  They attend many family functions together although [the applicant's wife] also visit's their children on her own.

   40.      The couple do not share a sexual relationship.  The Tribunal notes that, about 15 years ago, [the applicant and his wife] separated for about one year, but aside from this interlude, have lived together for nearly 45 years.  Each would provide care for the other in case of illness and other emergency.  [The applicant] told the Tribunal that he would not abandon his wife to a nursing home.  Importantly, they hold themselves out as married to the community and to their children and grandchildren and see the relationship as indefinite in duration in their situation.  Apart from close friends of [the applicant's wife], other people see their relationship as marriage like.

   41.      The Tribunal decided that on those significant aspects singled out in other legal determinations viz the lack of a sexual relationship, the lack of the complete household and the lack of permanence, the relationship was marriage-like in two of these three aspects.  The tribunal concluded that the relationship is stable and long lasting and each of them shows a commitment to care for one another in illness or adversity.  In these respects the relationship is marriage-like, notwithstanding the lack of the sexual relationship.  The Tribunal also found that the relationship was marriage-like in other significant aspects such as the way they held themselves out and were seen by others, the joint ownership of the house and the shared participation in family occasions.

   42.      While each of them, particularly [the applicant], sees themselves as living separately under one roof, the majority of the objective criteria are not consistent with this view…"

8. On 2 October 2001 the applicant lodged with the Administrative Appeals Tribunal ("the tribunal") an application for review of the SSAT's decision (T1).
   RELEVANT LEGISLATION

9. The following provisions from the Act are relevant: ss 4(1) ("member of a couple"), (2), (3), (6), 5A, 24(1).

   SOCIAL SECURITY ACT 1991
   Family relationships definitions - couples
   4.(1)     In this Act, unless the contrary intention appears:

   …

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

   …

   (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;

   …

   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) or subparagraph (2) (b) (iii), the Secretary is to have regard to all the circumstances of the relationship including, in particular, the following matters:
   (a)       the financial aspects of the relationship, including:

   (i)        any joint ownership of real estate or other major assets and any joint liabilities; and

   (ii)       any significant pooling of financial resources especially in relation to major financial commitments; and

   (iii)      any legal obligations owed by one person in respect of the other person; and

   (iv)      the basis of any sharing of day-to-day household expenses;
   (b)       the nature of the household, including:

   (i)        any joint responsibility for providing care or support of children; and

   (ii)       the living arrangements of the people; and

   (iii)      the basis on which responsibility for housework is distributed;
   (c)       the social aspects of the relationship, including:

   (i)        whether the people hold themselves out as married to each other; and

   (ii)       the assessment of friends and regular associates of the people about the nature of their relationship; and

   (iii)      the basis on which the people make plans for, or engage in, joint social activities;
   (d)       any sexual relationship between the people;
   (e)       the nature of the people's commitment to each other, including:

   (i)        the length of the relationship; and

   (ii)       the nature of any companionship and emotional support that the people provide to each other; and

   (iii)      whether the people consider that the relationship is likely to continue indefinitely; and

   (iv)      whether the people see their relationship as a marriage-like relationship.

   …

   Member of a couple - special excluding determination

   (6)       A person is not a member of a couple if a determination under section 24 is in force in relation to the person.
   Note:   section 24 allows the Secretary to treat a person who is a member of a couple as not being a member of a couple in special circumstances.

   …

   Single person sharing accommodation
   5A.(1)  For the purposes of this Act, a person is to be treated as a single person sharing accommodation if the person:
   (a)       is not a member of a couple; and
   (b)       has no dependent children; and
   (c)       has, in common with one or more other people, the right to use at least one major area of accommodation.

   (2)       A person is not to be treated as a single person sharing accommodation if the person:
   (a)       pays, or is liable to pay, amounts for the person's board and lodging; or
   (ab)     is residing in exempt accommodation (see subsections (5A), (5B) and (5C)); or
   (b)       is the recipient of a disability support pension or a carer pension; or
   (c)       is residing in a nursing home.

   (3)       A person who has the exclusive right to use a bathroom, a kitchen and a bedroom is not to be treated as a single person sharing accommodation solely because the person has the right, in common with one or more other people, to use other major areas of accommodation.

   (4)       A person is not to be treated as a single person sharing accommodation solely because the person shares accommodation with one or more recipient children of the person.

   (5)       If:
   (a)       a person lives alone in a caravan or mobile home, or on board a vessel; or
   (b)       a person shares accommodation in a caravan, mobile home or vessel solely with one or more recipient children of the person;
   the person is not to be treated as a single person sharing accommodation solely because the person has the right, in common with one or more other people, to use one or more major areas of accommodation in a caravan park or marina.
   (5A)     A person's accommodation is exempt accommodation if it is in premises that are, in the Secretary's opinion, a boarding house, guest house, hostel, hotel, private hotel, rooming house, lodging house or similar premises.
   (5B)     In forming an opinion about a person's accommodation for the purposes of subsection (5A), the Secretary is to have regard to the characteristics of the accommodation including, in particular, whether or not the following are characteristics of the accommodation:
   (a)       the premises are known as a boarding house, guest house, hostel, hotel, private hotel, rooming house, lodging house or similar premises;
   (b)       a manager or administrator (other than a real estate agent) is retained to manage the premises or administer the accommodation on a daily or other frequent regular basis;
   (c)       staff are retained by the proprietor or manager of the premises to work in the premises on a daily or other frequent regular basis;
   (d)       the residents lack control over the day-to-day management of the premises;
   (e)       there are house rules, imposed by the proprietor or manager, that result in residents having rights that are more limited than those normally enjoyed by a lessee of private residential accommodation (for example, rules limiting the hours of residents' access to their accommodation or limiting residents' access to cooking facilities in the premises);
   (f)        the person does not have obligations to pay for his or her costs of gas, water or electricity separately from the cost of the accommodation;
   (g)       the accommodation is not private residential accommodation, having regard to:

   (i)         the number and nature of bedrooms in the premises; or

   (ii)        the number of people who are not related to one another living at the premises; or

   (iii)       the number and nature of bathrooms in the premises;
   (h)       the person's accommodation has not been offered to the person on a leasehold basis;
   (j)        there is no requirement that the person pay a bond as security for either the payment of rent or the cost of any damage caused by the person, or for both;
   (k)       the person's accommodation is available on a daily or other short-term basis.
   (5C)     Each of the characteristics set out in subsection (5B) points towards the accommodation in question being exempt accommodation.

   (6)       In this section:
   major area of accommodation means any of the following, whether identifiably separate from other areas of accommodation or not:
   (a)       a bathroom;
   (b)       a kitchen;
   (c)       a bedroom.
   recipient child means a child who receives any of the following, but who does not receive any amount by way of rent assistance:
   (a)       a social security payment;
   (b)       * * * * *
   (c)       a payment under the ABSTUDY Schooling scheme or the ABSTUDY Tertiary scheme;
   (d)       a service pension;
   (e)       a youth training allowance.

   …

   Person may be treated as not being a member of a couple (subsection 4 (2))
   24.(1)   Where:
   (a)       a person is legally married to another person; and
   (b)       the person is not living separately and apart from the other person on a permanent or indefinite basis; and
   (c)       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.

BACKGROUND

1. The applicant was born on 3 April 1928 (T7).  The applicant told the SSAT that he and his wife had kept their finances as separate as possible for 20 years and that he would like that recognised.  They jointly owned their current house because they realised that for half the money each they could never get the kind of house that each would want to live in.  They sold the house they had owned in a Sydney suburb for $310,000 and bought a superior house in rural New South Wales for $200,000.  They had $90,000 left over.  They took $30,000 each and the remaining $30,000 was spent on installing a machine shop for the applicant.  He had always worked from home with machines and now that he was retired it was his hobby.  His wife had agreed that this was a fair arrangement. 

2. The applicant said that as long ago as 1993 he had made inquiries as to whether Centrelink (or its predecessor) might consider them to be separated under one roof.  He found, however, that the local office was obstructive and did not supply him with information he requested so he did not pursue the matter.  In 1997, however, he inquired again and was refused.  Then in 2000 there was a question about NRMA shares and his pension was reviewed.  The applicant's tax agent had advised him not to lodge tax return in the previous year and Centrelink had demanded that his wife give them his tax details.  The applicant felt that what he did should not affect her, that she should not have to request his taxation details from him and so he applied once again to obtain a pension at the single rate.
   HEARING, APPEARANCES AND DOCUMENTS

3. On 3 July 2002 the tribunal convened in rural New South Wales a hearing in this matter.  The applicant represented himself.  Ms H Schuster of the Centrelink Advocacy and Administrative Law Team represented the respondent.  The only oral evidence came from the applicant.

4. The tribunal had access to the following documentary evidence:

• Exhibit TD1 – Section 37 Statement and associated documents (exhibits T1-T20) provided by the respondent.

• Exhibit R1 – Respondent's statement of facts and contentions dated 19 June 2002.

SECTION 35 ORDER

1. At the applicant's request the tribunal issued the following direction in accordance with s 35(2)(aa) of the Administrative Appeals Tribunal Act 1975:

   "The tribunal directs that the names and addresses of the applicant and his wife are not to be published."

EVIDENCE
applicant's oral evidence

1. The applicant presented his case by relying on the letter dated 27 September 2001 that he had sent to the tribunal and which was regarded as an application for review (T1).  In that letter he said as follows:

   "…
   The contents of the Social Security Appeals Tribunal report is generally true and correct as discussed, with the exception of item 18, stating that we were paying off a kitchen stove. The stove was fully paid for prior to delivery. The other exception is the omission of my alternative request for calculating and paying pensions separately, and the statement that there was no provision in the Social Security Act to pay pensions in the requested manner.
   [My wife] does not wish to be involved with this further application, because she is not comfortable discussing personal matters with strangers.
   My reason for wishing to pursue the matter further, is because initially the Department of Social Security and later Centrelink has withheld requested information prior to our application for an aged pension, and throughout the time that we have received the aged pension.
   Our application to have the method of pension payment reviewed was the result of Centrelink sending to me a pension review form dated 18th December 2000, even though both our pensions were reviewed during the year 2000.
   They sought information about [my wife's] finances from me, even though they had her separate file, and her finances are none of my business.  So I gave them her file number so that they may deal with her direct.
   They also asked for my tax return to the year ending June 1999.
   Since I had not needed to pay tax for a number of years, and my tax agent had advised me that I no longer needed to lodge a return, I gave them my tax file number to check up.
   Both [my wife] and myself then received separate letters from Centrelink, threatening to suspend our pensions if they did not receive the required information within 14 days.
   I visited the Centrelink office..., gave them information, and requested an interview with the manager, because neither [my wife] or myself wished to be held responsible for each other's pension information, and it seemed that the only way to achieve this was to have our pensions assessed at the single rate.
   I did not get to see the manager, but was given two living arrangement forms to fill in, one each for [my wife] and myself, and was given an appointment date and time.
   We were interviewed separately by the same DSS officer that we had dealt with during the year 2000, when we asked for our pensions to be assessed separately. Our request was denied, without any information about the Social Security Act.
   It was only after proceeding with the further application to an Authorised Review Officer that we received with his assessment a copy of the guidelines that I had unsuccessfully sought from the department prior to 16th December 1993.
   It is the interpretation of the information given at the two interviews with, DSS officer, and the Social Security Appeals Tribunal that I question.
   [My wife] and myself have been accepted into the small community of..., because we recognise our social and community responsibility.  Our personal relationship is our own business, and we have no wish to discuss the details of that relationship with other members of the community.
   To suggest that we are living in a marriage like relationship is a nonsense, in this day and age, when current divorce rates are at 46 % of marriages, and it is well known that a significant number of the rest of the population are separated or just staying together for economic reasons.
   In an article in The Sydney Morning Herald on Wednesday July 6th 1994, under the heading 'Retiree Incomes', the then shadow treasurer Peter Costello, said that the existing system was a hotch-potch, rather than a careful design directed at a comprehensive retirement incomes or savings policy.
   The present government in which Peter Costello is the Treasurer, and nearing the end of its second term, has done little to address the problem.
   I cannot extract from Centrelink, what needs to be done to stop them from demanding tax returns that do not have to be obtained, or to stop them from demanding from me, financial details of [my wife's] investments and savings.
   I cannot get an explanation from Centrelink, why they cannot assess our pensions, independently under the combined pension rate.
   …"

1. The applicant told the tribunal more about his and his wife's history.  They separated in 1985 and lived in separate houses.  A daughter went with the applicant's wife.  The daughter later moved out and the applicant and his wife decided to re-establish in one residence again.  They again found they had personality differences, however.  They had remained separate but under one roof since that time.

2. The applicant argued that the policy in this area should concentrate only on the financial aspects as between the parties. He argued that the concept of a "marriage-like relationship" should be dispensed with and replaced by something like "a shared living arrangement" in recognition of the economies of more than one person living under the same roof. He could see no reason why same-sex couples could cohabit yet receive pensions at the single rate. The same was true of siblings and platonic friends. He recognised that he was in effect criticising legislative rules enacted by Parliament. He said that the Act had been amended frequently since 1993 and that it was "not a very good Act, then or now".

3. The applicant had made a submission to a retirement incomes review in 1993 suggesting that pensions should be income tested on a sliding scale.  The tribunal took this to mean that a scheme similar to progressive income tax scales should be introduced.  This had come to nothing.

4. The tribunal asked the applicant to concentrate on the things that indicate how he and his wife are independent of each other and to talk about them.  In response he mentioned that they participate in the University of the Third Age and do some courses separately but that they do some together.  The applicant's wife can go away by herself for the week.  She does this frequently.  The applicant goes kayaking without his wife.  The applicant goes ballroom dancing and dances part of the time with others even if his wife is present also.  The applicant and his wife are "fiercely independent".  That is the source of their personality differences.  The applicant's wife enjoys cooking whereas he does not.  The applicant enjoys bushwalking whereas his wife does not.  The applicant said that he and his wife know whether they have a good marriage relationship and that no one else does.  They live under the one roof but keep out of each other's way.
   ms schuster's submissions

5. Ms Schuster submitted that s 4(3) of the Act applies to the applicant such that he and his wife should be regarded as members of a couple in a marriage-like relationship. The evidence suggests that there is a substantial mutual commitment as between the applicant and his wife. Most notably, she said, they are seen as a married couple by the community and by their family, and the applicant and his wife want it this way. She referred to social activities they enjoy in common such as ballroom dancing and the University of the Third Age. She said that, viewed objectively, the applicant and his wife do not appear to be living apart. She said that the two had arranged matters so as to obtain some of the benefits of being a married couple.
   the applicant's final submissions

6. The applicant said that he could not understand why Centrelink was reviewing his and his wife's situation. His complaint is as to the secrecy and lack of help provided by Centrelink. He said that policy experts need to know that people can live as he and his wife do. He referred again to the divorce figures. He said that for many living under one roof is merely a matter of convenience. He wished to see the Act changed to reflect the introduction of a "shared cost living arrangements" pension. He finished by stating that he and his wife feel discriminated against and that they have had their privacy invaded because they are seen as in a relationship that is marriage-like.
   FINDINGS ON MATERIAL QUESTIONS OF FACT WITH REFERENCE TO THE EVIDENCE AND OTHER MATERIAL IN SUPPORT OF THOSE FINDINGS

7. The tribunal adopts the findings of fact of the SSAT (see paragraph 7 above), except that the reference to paying off a stove in the quote from paragraph 18 of the SSAT decision is deleted in view of the applicant's evidence in paragraph 15 above and in T1.  That change, however, is insignificant in relation to the overall tenor of the facts in this matter.

8. The tribunal finds that the applicant and his wife, on those facts and on the additional material in paragraph 19 above, are living in a marriage-like relationship. The applicant effectively conceded this to be so during the hearing when he said that his problem was with the legislative scheme in the Act. The tribunal could not help but note, however, that when identifying matters that might indicate a lack of interdependence between the applicant and his wife in paragraph 19 above, the applicant cited some examples and behaviours that are not at all rare amongst married couples of mature age who have been together for some 45 years. Certain others were overwhelmingly matters of subjective appreciation as between the parties. As the applicant recognised, the Act concerns itself very largely with how a relationship would appear to an objective observer rather than how the parties to the relationship perceive it. The SSAT had cited in its reasons the tribunal's decision in Re Hucker and Secretary, Department of Social Security (an unreported decision handed down on 15 January 1992; (1992) 66 SSR 935) in which the tribunal noted that an unhappy married relationship was still a married relationship.  This appears apposite to the applicant's situation.

9. The tribunal was, of course, interested in the applicant's views on how the Act should be amended to reflect better the living arrangements adopted by people in the early 21st Century. It may be of interest to the applicant for him to know that, to an extent at least, Parliament has recognised sharer relationships in the Act.

10. Section 5A of the Act aims to reduce the rate of Rent Assistance paid to certain single persons who achieve certain economic benefits from sharing accommodation. The commentary on s 5A from Social Security and Family Assistance Law by Peter Sutherland (Sydney, The Federation Press and Welfare Rights and Legal Centre, 2001) explains at pages 60-63 the history and operation of s 5A:

    "…
    [5A.01]          Legislative history – s 5A
    Schedule 2 of the Social Security Legislation Amendment (Further Budget and Other Measures) Act 1996 (No 83/1996), with effect from 1 July 1997, inserted new s 5A which implemented the 1996-97 Budget decision to reduce the maximum rate of rent assistance for single people without dependants who share accommodation. Section 5A defines who is to be treated as a "single person sharing accommodation", while amendments to each Rate Calculator set the maximum rate of rent assistance for affected people as two thirds of the full rate.
    Schedule 2 of the 1998 Budget Measures Legislation Amendment (Social Security and Veterans' Entitlements) Act 1998 (No 116/1998), commencing on 1 January 1999, introduced new s 5A(2)(ab) and s 5A(5A), (5B) and (5C) to exclude from the single share provisions persons living in "exempt accommodation" (defined in s 5A(5A) as "a boarding house, guest house, hostel, hotel, private hotel, rooming house, lodging house or similar premises"). This amendment was intended to correct what was widely seen as an anomaly in the original provisions; the Explanatory Memorandum stated:

    The exemption recognises that people living in this type of accommodation are in a different situation from those who share accommodation in private residential group houses. Boarding-type accommodation more closely resembles a discrete dwelling unit than a shared living arrangement.

    Clause 3 of Schedule 2 is an Application clause which provides that the amendments 'apply to instalments of social security payments that fall due on or after the first payday after 31 December 1998'.

    [5A.02]          'single person sharing accommodation' - s 5A
    Section 5A(1) specifies that a person is to be treated as a single person sharing accommodation if the person:

    (a)       is not a member of a couple (see the discussion at [4.03]);
    (b)       has no dependent children (see the discussion at [5.05]); and

    (c)'has, in common with one or more other people, the right to use at least one major area of accommodation'; these are defined in s 5A(6) as a bathroom, a kitchen or a bedroom.

There are exceptions to the application of the provision in respect of:

·a person who pays, or is liable to pay, amounts for the person's board and lodging (s 5A(2)(a));

·a person who is residing in "exempt accommodation" (ie. "a boarding house, guest house, hostel, hotel, private hotel, rooming house, lodging house or similar premises") (s 5A(2)(ab));

·recipients of DSP or a carer payment (s 5A(2)(b));

·residents of nursing homes (s 5A(2)(c));

·parents living with a "recipient child", as defined in s 5A(6) (s 5A(3));

·people living alone in a caravan, mobile home or on board a vessel (s 5A(5)).

Explanatory Memorandum
The Explanatory Memorandum is brief in its discussion of the measure:

'Schedule 2 - Single persons sharing accommodation
'This Schedule makes amendments to the Social Security Act 1991 and the Student and Youth Assistance Act 1973 to set a new maximum rate of rent assistance for single people who share accommodation.
'The new maximum rate will be introduced in recognition of the reduced costs faced by people in this form of accommodation.  The amendments will set a new maximum rate of rent assistance for single people (without dependent children) who share accommodation (other than boarders and lodgers, residents of nursing homes, people who share accommodation with their non-dependent children and people who live alone in caravans, mobile homes and vessels).  The new maximum rate will be two-thirds of the maximum rate of rent assistance applicable to single people.
'Date of effect:  1 July 1997
'Financial impact:     1996-97         $4.206m (costs)
(net outlays)              1997-98         $31.759m (savings)

1998-99         $38.661m (savings)'

[5A.03] 'in common with one or more other people, the right to use at least one major area of accommodation' - s 5A(1)(c)
In Re Wynne and SDSS (1998), the applicant lived in a hotel where he had exclusive possession of a bedroom and shared a bathroom with other residents of the hotel.  The Tribunal rejected an argument that he had no 'right' to use the bathroom because he was a mere licensees with only a variable personal privilege of access:

'16.      In my view, such submissions are not consistent with the plain terms of the statute. It is not necessary that the identity of "other people" remain constant, any more than it would be necessary to identify persons who might be entitled to use a right of way in conjunction with the grantee in common of a right of way. What is essential in the application of the phrase is that the applicant's right to use the major area of accommodation is not vested solely in that person. The commonality of the right is its crucial feature, rather than the identity of the persons with whom that right is shared. The applicant has a right to use the bathroom when it is not being used by other people who are also entitled to use the bathroom. To my mind this falls clearly within the requirements of the paragraph.
'17.      It is not true to say that the applicants have no enforceable rights. Each applicant has entered into a contract with the proprietor of the hotel. In consideration of the payment of a weekly sum, the applicants are given rights of occupation exclusively of their rooms and non-exclusively of the bathroom. If the landlord breaches his obligations under that contract by causing either of those facilities not to be made available then quite apart from any other statutory remedy, the applicants would have rights in contract. Those rights would be enforceable in the same way as any other contractual right, namely by an action for damages or even, in appropriate circumstances, an action for specific performance. The fact that the right is not a statutory right is, in my view, irrelevant. The applicants have rights guaranteed by the law which arise out of the various contracts they have made with their landlords.'

[5A.04]          'amounts for the person's board and lodging' - s 5A(2)(a)
In Re Wynne and SDSS (1998), the applicant lived in a hotel where he had exclusive possession of a bedroom, shared access to a bathroom with other residents and did not have access to any other common facilities such as a residents' kitchen or lounge room.  No meals were provided as part of the lodging contract.  The Tribunal held that it was not 'board and lodging', rejecting a number of arguments based on a Senate Report and on a purposive approach to the provision.  Noting that the provision was clear on its face, the Tribunal said:

'21. In the present case, however, it is possible to read section 5A in its own terms, without reaching an absurd conclusion. It certainly does not follow from the applicants' submissions that the use of the long recognised term "board and lodging" results in the operation of the section in a way which clearly the legislature did not intend. Nor can one say that the statutory provision should not apply because, had the attention of the legislature been directed to the question, it would have made clear that it should not.
'22.      There are reasons why inmates of boarding houses should be excluded from the category of sharers who can achieve economies of scale. The fact that the legislature has chosen to follow that path is a matter for the legislature. It is not an obvious mistake. Whether, in fact, the applicants face lower costs through "economies of scale" compared with the costs of boarders is not to the point. The legislation has adopted the distinction in clear words. It has chosen to use a term that has been defined for a number of years and must be taken to be well known to those in the Social Security field. "Board and lodging" means the provision of meals and accommodation and "boarders and lodgers" has a corresponding plural meaning. "Board and lodging" does not mean the provision of accommodation and services apart from meals. Whatever current commercial practice may be, for the purpose of the Social Security Act "board and lodging" has a fixed meaning.
'23.      It is in accord with the dictionary meaning. The appropriate definition attributed by the Macquarie Dictionary to the word "board" is "daily meals, especially as provided for pay" or (meaning 26) "to take one's meals, or be supplied with food and lodging at a fixed price". A "boarder" is defined as "one who is supplied with meals and lodging" and a "boarding house" is defined as "a place, usually a home, at which board is furnished, often with lodging". Neither the statutory definition, nor the dictionary meaning, assists either of the applicants in their contentions that their weekly payments are for their board and lodging.
'24. I find no contrary intention in the legislation. I find that the words used in section 5A can be given their ordinary meaning. It is not necessary in construing the section to resort to extrinsic aids. I have sought to find some policy in the extrinsic aids which might assist in identifying the purpose or object of the amendment for the purposes of section 15AA of the Acts Interpretation Act 1901. Except for the brief extracts to which I have referred, there is no such indication. The statute must therefore be read in its own terms which, in my view, clearly categorise the applicants as single persons sharing accommodation. …'

The Government announced in the 1998/99 Budget that people living in private hotels, boarding houses and hostels would be exempted from the single-sharer rent assistance reduction with effect from 1 July 1999.  In fact, the relevant legislative amendment (introducing "exempt accommodation") commenced on 1 January 1999 upon the commencement of Schedule 2 to the 1998 Budget Measures Legislation Amendment (Social Security and Veterans' Entitlements) Act 1998 (No 116/1998); see [5A.01].
…"

1. While there is a qualitative and quantitative difference between a Rent Assistance payment and a payment of Age Pension, it may be instructive to consider how Parliament has dealt with the issue recognised by the applicant, albeit in relation to only Rent Assistance.  It is instructive too to see, from the above extract, how difficult was the implementation of this treatment of Rent Assistance.
   another policy suggestion from the applicant

2. The applicant had submitted that, if he and his wife cannot be treated as single pensioners, they should be paid the "combined married rate of pension" but each should receive a proportion of the total payable to the two of them, the proportion payable to either pensioner being referable to the proportion of total income earned, derived or received by that pensioner. 

3. This is again an interesting suggestion, although it would add further complexity to an already complex area of administration. The applicant understood that the Act does not at present allow for such an arrangement.
   CONCLUSION

4. For reasons given above the tribunal has affirmed the decision under review.  That means that the applicant and his wife are to be paid their age pensions at the rate applicable to two persons who are members of a couple and who are living in a marriage-like relationship.

5. The tribunal thanks the applicant for his interesting and sincerely held submissions which were presented with courtesy and wit.
   DECISION

6. The tribunal affirms the decision under review.

   I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella
   Senior Member

   Signed:         .....................................................................................
     Associate

   Date of Hearing  3 July 2002
   Date of Decision  10 July 2002
   Advocate for the Applicant      Self-represented

   Advocate for the Respondent  Ms H Schuster, Centrelink Advocacy and Administrative Law Team