Stevens and Secretary, Department of Family and Community Services

[2004] AATA 1137

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1137

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2004/287

GENERAL ADMINISTATIVE DIVISION		)
Re		JOYCE STEVENS

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Dr EK Christie, Member

Date2 November 2004

PlaceBrisbane

Decision The Tribunal affirms the decision under review.  This means Mrs Stevens’ application for review is unsuccessful.

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

EK Christie
  Member

CATCHWORDS

SOCIAL SECURITY – benefits and entitlements – age pension – bereavement allowance – marriage like relationship – preferred decision – status of Departmental policy guidelines for legal decision-making.

Social Security Act 1991 s 4(2), 4(3), 24

Social Security (Administration) Act 1999 s 109, 110

R v Toohey & Anor Ex Parte Meneling Station Pty Ltd & Ors (1982) 158 CLR 327
Qld Medical Laboratory & Ors v Blewett & Ors (1988) 84 ALR 615
Department of Defence v Fox (1997) 24 AAR 171
Re Aston and Secretary, Department of Primary Industry (1985) 8 ALD 366 at 376
Skoljarev v Australian Fisheries Management Authority (1995) 22 AAR 335 at 337

Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60)

REASONS FOR DECISION

2 November 2004     Dr EK Christie, Member

1.      This is an application by Joyce Stevens to review a decision of the Social Security Appeals Tribunal (“the SSAT”) made on 30 March 2004 which decided that Joyce Stevens was living as a member of a couple with her husband Albert Stevens. 

2.      In its discussion of the evidence the SSAT concluded:

“13.     Examining the above list of factors which the Tribunal is required to consider reveals a small number of factors which suggest Mrs Stevens should not have been treated as living as a member of a couple.  In September Mrs Stevens took her name off a formerly joint bank account she had with Mr Stevens.  Mr Stevens’ name was not on the tenancy agreement Mrs Stevens had with the Housing Commission and Mrs Stevens had asked for Mr Stevens’ name to be removed from their Energex account.  Mr Stevens’ health meant that the relationship he enjoyed with Mrs Stevens lacked any social aspects.

14.      As against the above factors, the Tribunal notes that Mrs Stevens had a strong commitment to her husband – which extended to heroic efforts to ensure the best possible support and care for him.  When she felt that Mr Stevens was not receiving appropriate care, she made great personal sacrifices to care for him.  It is clear to the Tribunal that she loved her husband very much.  The Tribunal notes that Mrs Stevens referred to Mr Stevens as her husband in the Tribunal hearing, indicating a continuing commitment to her relationship at all times.

15.      In weighting up all the above the Tribunal is persuaded that Mrs Stevens and her husband were living as a couple, and accordingly the decision under review should be affirmed.”  (T2 Folio 7)

3.      At the hearing, Mrs Stevens represented herself.  The respondent was represented by Ms J Dwyer, a Departmental Advocate.

4. At the hearing, the Tribunal had in evidence before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the “T” documents) (Exhibit 1) and the various documents lodged by the parties.

Issues Before the Tribunal

5.      The only issue for the Tribunal to decide was whether Joyce Stevens and Albert Stevens were in a marriage-like relationship and therefore a member of a couple for the purpose of the Social Security Act 1991 (“the Act”).  The relevant commencement date for this application for review was 11 May 2003 (when Mrs Stevens’ husband returned home from an Aged Care Home).  The relevant period ended on 27 October 2003.

Facts

6.      Albert and Joyce Stevens were married in 1952.  Albert Stevens died on 14 December 2003.

7. Apart from entitlements received under the Social Security Act, the late Mr Stevens was entitled to a part payment of the British Age Pension at the Single Rate plus a lesser Dependent Spouse Benefit.

8.      The late Mr Stevens became a permanent Australian resident in 1969 prior to becoming 65 years of age.

9.      On the basis of the evidence before it, the SSAT made the following findings of fact:

(i)        Mr and Mrs Stevens were married in 1952.

(ii)Mr Stevens went into aged care from 25 October 2002 until 11 May 2003.

(iii)Mr Stevens then lived with Mrs Stevens at her home until a brief period of hospitalisation just before his death on 14 December 2003.

(iv)While Mr and Mrs Stevens were living under the one roof from 11 May 2003 onwards Mrs Stevens provided constant care and support for her husband.

10.     Mrs Stevens agreed with these findings, but qualified the third finding of fact, that is, her late husband spent a brief period in aged care (about 3 weeks) from 27 October 2003 before being admitted to hospital where he passed away.

Statutory Requirements and Case Law

11. Subsection 4(3) of the Act sets out the matters to be considered when forming an opinion as to whether a person is in a marriage-like relationship.

“4(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 place 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.

4.(3A)  The Secretary must not form the opinion that the relationship between a person and his or her partner is a marriage-like relationship if the person is living separately and apart from the partner on a permanent or indefinite basis.”

12. Under subsection 4(3) of the Act, in forming an opinion about the relationship between two people for the purposes of sub-paragraph (2)(b)(iii) of the Act, the Secretary is required to “have regard to all of the circumstances of the relationship”.  The Act then particularises specific matters. The phrase “have regard to” has been considered judicially on many occasions:

(a)It requires [the Commissioner] to take those matters into account and give weight to them as a fundamental element in making his recommendation: per Gibbs CJ in R v Toohey & Anor Ex Parte Meneling Station Pty Ltd & Ors (1982) 158 CLR 327 at 333;

(b)The mere assertion that [the Committee] had acted would not be conclusive if it were demonstrated that regard had not been had to those matters in any real sense:  per Gummow J in Qld Medical Laboratory & Ors v Blewett & Ors (1988) 84 ALR 615; and

(c)There would be a failure [by the Authority] to have regard to matters nominated in the statute if the regard was not adequate or not sufficient: per O'Loughlin J in Department of Defence v Fox (1997) 24 AAR 171.

13.     Both parties have referred to the application of a Departmental Policy “Guide to the Social Security Law 2.2.5.20” and its application in relation to being paid entitlements as a single person.  Accordingly, the Tribunal has considered the weight to be given to this Departmental policy to the legal decision-making process, by considering the legal principles that have emerged from cases decided by our courts.

14.     The Tribunal has considered the following authorities in order to determine the status or weight that may attach to the Departmental Policy “Guide to the Social Security Law”.

“(a)‘Policy is not law.  A statement of policy is not a prescription of binding criteria’:  Re Aston and Secretary, Department of Primary Industry (1985) 8 ALD 366 at 376; and

(b)‘Policy does not constitute a binding rule, unless a statute so provides… Absent a statutory provision requiring compliance with policy, a decision-maker may depart from policy and, in an appropriate case should do so’:  per Davies J in Skoljarev v Australian Fisheries Management Authority (1995) 22 AAR 335 at 337.”

The Tribunal has adopted the approach in the above legal authorities as to the weight that may attach to the Departmental Policy in relation to deciding the issues in dispute. In the absence of any statutory provision in the Social Security Act as to these guidelines being binding, the Tribunal has no option other than to apply these authorities. That is, the Tribunal must determine the issues in dispute according to the law as prescribed in the Social Security Act.

15. In effect, this means the only legal requirement that is legally binding for the Tribunal, and ensuring its decision as to the existence of a marriage-like relationship is in accordance with the law, is section 4 of the Social Security Act. The Departmental policy is a “relevant consideration” for the Tribunal, but is not binding in law.

Contentions and Submissions of the Parties

16.     Ms Dwyer stated that Centrelink was advised that Mr Stevens went into aged care from 11 October 2002;  an officer then decided on 25 October 2002 to assess Mrs Stevens at the “illness-separated” rate from 11 October 2002.

17.     Ms Dwyer stated that Mrs Stevens was advised of the change in her rate of payment on 25 October 2002.  She stated that Mrs Stevens was always paid the maximum rate of age pension.  The combined income of Mr and Mrs Stevens as reported to Centrelink was always under the income free area.  Consequently, the rate of payment at the “illness-separated’ rate was equivalent to the “single rate” of payment because the income of Mr and Mrs Stevens was not sufficient to reduce the rate of payment.

18.     Ms Dwyer stated that Mr Stevens lived with Mrs Stevens at their home until a brief period of hospitalisation prior to his death on 14 December 2003.  In addition, together with some assistance from her son, Mrs Stevens provided constant care and support for her husband while they were living together from 11 May 2003.

19.     Ms Dwyer then referred to Mrs Stevens’ reliance on the Departmental policy material:  Guide to the Social Security Law 2.2.5.20, in relation to being paid social security entitlements as a single person.  The payment of the single rate of payment to couples who were separated by illness was in recognition of the costs of running separate households.  This recognition was further extended to couples who were indefinitely living apart, and where the relationship had ceased so that the each person was assessed at the single rate - without the income and assets of the other person affecting their rate of payment.

20.     It was Ms Dwyer’s contention that the policy dealing with “relationship ceased due to ill health” was only relevant to couples who were living apart and was not relevant to couples who were living in the same home.  She stated that the policy referred to one member of the couple being “institutionalised”.

21.     Ms Dwyer submitted that it was relevant that Mrs Stevens had not referred to a breakdown in her relationship with her husband prior to him leaving their home for medical care.  However, she noted that it did refer to Mr Stevens’ illness being the reason for the relationship ceasing.

22.     Ms Dwyer submitted that it was also relevant that, prior to her letter of 15 June 2004, Mrs Stevens had not sought review of the decision to assess her at the “illness-separated” rate from October 2002.

23.     Accordingly, Ms Dwyer contended that a favourable determination took place from the date requested (section 110 of the Social Security (Administration) Act 1999 (“the Administration Act”) - unless a review of a decision was sought. If the latter situation was the case, it was possible for the “favourable” determination to be back-dated, if the requirements of the legislation were fulfilled (section 109).  In Mrs Stevens’ circumstances, there was no “favourable” determination to be made because Mrs Stevens’ rate of payment could not be increased as she was paid at the maximum rate of the single rate of payment.

24.     Ms Dwyer then made the submission that if Mrs Stevens was successful in her appeal in relation to being assessed as a single person for the period from May 2003 onwards, arrears would be payable.  However, a recoverable debt would then be raised in relation to the overpaid amount of bereavement allowance.

25. Ms Dwyer submitted that whilst there was discretion in section 24 of the Act to not treat a person as a member of a couple, for a “special reason”, the preferable decision in this case was not to exercise the discretion, as the consequences associated with the payment of bereavement allowance would have substantial adverse financial effects for Mrs Stevens.    

26.     Ms Dwyer concluded with the submission that Mr and Mrs Stevens were not living separately and apart whilst they were residing in their home, in accordance with the statutory criteria for a marriage-like relationship.  In addition, Mr and Mrs Stevens were able to pool their resources by having access to the married rate of payment for each member of the couple.

27.     The basis of Mrs Stevens’ appeal related to the decisions that treated her as a member of an illness separated couple from 27 October 2002 to 11 May 2003 but then to treat her as a member of a couple from 11 May 2003 to 27 October 2003. 

28.     Ms Stevens contended that:

(a)her relationship with her late husband ceased due to his ill health as of 27 October 2002;

(b)there was no reasonable possibility of the relationship being resumed; and

(c)she was not a member of a couple, within the meaning of the Act, for qualification or income and assets tests purposes, on and from the 27 October 2002.

29.     Mrs Stevens referred to the fact that her late husband had dementia, that the problems with this condition were increasing and that he was incapacitated.

30.     Mrs Stevens submitted that, because of her late husband’s medical conditions, he had no commitment to her whatsoever. 

31.     Mrs Stevens acknowledged that when her late husband returned to live at home, that the rent, electricity, food and other household expenses were shared equally between herself and her late husband, together with her son who was living at home at the time.

32.     In terms of the Departmental Policy and the test for a relationship that ceased due to ill health, Mrs Stevens submitted that it was relevant that it was granted to her when she was living apart from her late husband when he was institutionalised.  However, she contended that once it was established that the relationship had ceased due to ill health, it was difficult to see how the relationship could be resumed at a later date, as in her case, no matter where she and her late husband lived.

33.     Mrs Stevens expressed her concerns relating to the variations in the estimates of overpayments as well as the amount of bereavement allowance.  This created uncertainty for her with respect to her potential financial liability.  Mrs Stevens referred to a number of discrepancies made by the respondent, in this regard.

34. Mrs Stevens concluded by highlighting the inadequacies arising from the distinction between eligibility for social security payments and entitlement to social security. Moreover, she expressed concern over the difficulties social security recipients had in interpreting the legislation. It was her contention that the Government had no real liability to pay anyone if no one was entitled, and that the ambiguous Social Security Act was open to misinterpretation, misunderstanding, malpractice and misappropriation, accidentally or by design. She expressed further concerns as to Centrelink’s accountability. In addition, without a social security recipient understanding the basis for calculating entitlements, Mrs Stevens concluded that no recipient knows how much they will be paid or why no two people get the same amount and such a situation was inconsistent with the beneficial nature of the legislation.

Tribunal’s Inquisitorial Powers

35.     At the end of the hearing, the Tribunal exerted its inquisitorial powers in order for the respondent provide further information to clarify the actual amount of arrears of social security entitlements accrued by Mrs Stevens and her late husband over the period 15 May 2003 to 27 October 2003, including any information on the effects of the “Dependent Spouse Benefit (British Age Pension)” on social security entitlements received by Mrs Stevens.

Supplementary Submissions

36.     Ms Dwyer provided the following supplementary submissions in response to the Tribunal Direction:

(a)If Mrs Stevens was not in a marriage like-relationship and paid Age Pension at the single rate over the period 11 May 2003 to 27 October 2003, her income would not exceed the prescribed threshold and she would be entitled to receive Age Pension at the maximum rate.  Arrears of Age Pension entitlements payable to her would amount to approximately $863.20;

(b)For the same period, if Mr Stevens was entitled to Age Pension at the single rate, his Estate would be entitled to receive arrears of $602.10;

(c)However, if Mrs Stevens were in a marriage-like relationship and paid at the married rate over the period 11 May 2003 to 27 October 2003 (and paid the correct entitlement for Age Pension) she would have been overpaid an amount of approximately $226.28; and

(d)An acknowledgement that some consideration of eligibility for bereavement allowance payment, the status of the Stevens’ marriage-like relationship and carer payment as an alternative to Age Pension may arise in the future.  However, this issue was not part of the reviewable decision now before the Tribunal.

37.     The Tribunal received supplementary submissions in response from Mrs Stevens on 18 October 2004.  Mrs Stevens’ submissions can be summarized as follows:

(a)The respondent’s submission that the bereavement allowance became a recoverable debt if Mrs Stevens were not in a marriage-like relationship over the relevant period, was fallacious;

(b)A submission in support of a proposition that a Bereavement payment is subject to further means testing whereby it is only possible if the recipients are on the lower married pension rate; and

(c)Mr and Mrs Stevens were entitled to the bereavement payment at the time of death.  Mr and Mrs Stevens were also entitled to the single rate of age pension due to their actual separation being imposed upon them by Mr Stevens’ increasing, permanent state of dementia for which he was institutionalized.

38.     Further submissions in response were received by Ms Dwyer on 1 November 2004.

Consideration of the Issues

39.     The question for determination of the Tribunal when conducting an application for review is whether the decision under review was the correct (that is when there is only one decision) or preferable one (that is, when a range of decisions is available) on the material before the Tribunal:  See Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60) [Full Federal Court at 68]. The legislation is the only basis for the review of this administrative decision dealing with Age Pension entitlements. Administrative decision-makers are not permitted to depart from the law. The Tribunal must make its decision on the merits of the case – but in accordance with the legal requirements imposed by the Social Security Act and the Social Security (Administration) Act, together with the relevant legal principles that arise from decision made by our Courts.

40.     Based on all the information and submissions before the Tribunal and depending on whether Mrs Stevens and her late husband were in a marriage-like relationship, a range of financial outcomes for the period 11 May 2003 to 27 October 2003, can be summarised as follows:

TABLE 1

§  Decision I  : Marriage-like relationship exists

(Payment at married rate)

Entitlement

$

1.  Bereavement Allowance

         $1,883.00 [credit]

2.  Age Pension Overpayments

     (Mrs Stevens)

             $226.28 [debit]

3  Age Pension Overpayments      (Presumably the late Mr Stevens      would accrue much the same      overpayment as Mrs Stevens)

              $226.28

         [non-recoverable]

§  Decision II: Marriage-like relationship does not exist

(payment at single rate)

Entitlement	$
1.  Bereavement Allowance	$1,883.00 [debit]
2.  Age Pension Arrears (Mrs Stevens)	$863.20 [credit]
3  Age Pension Arrears (the late       Mr Stevens)	$602.10 [credit]

41.     In summary, if a marriage-like relationship exists then Mrs Stevens would have a “credit balance” of around $1,883.  If a marriage-like relationship did not exist then Mrs Stevens (and her late husband’s Estate) would have a “debit balance” of around $418.  The Tribunal has not considered the question of any eligibility for bereavement allowance payment, the status of the Stevens’ marriage-like relationship and carer payment as an alternative to Age Pension, not only because it is not part of the reviewable decision before the Tribunal – but, moreso, because any such consideration, at this stage, is mere speculation!  That is, it cannot facilitate the Tribunal’s decision-making power to ensure the correct or preferred decision is made.

42.     Accordingly, based on the summary of financial outcomes in Table 1, the first issue for the Tribunal to decide is whether Mrs Stevens was in a marriage-like relationship over the period 15 May 2003 to 27 October 2003.

43.     The Tribunal recognises that the late Mr Stevens suffered a severe and debilitating medical illness and that Mrs Stevens had taken him out of the Aged Care Facility.  From the  time they recommenced living under the one roof.  She saw this step as the only humane option available to her.  Mrs Stevens had made every effort to ensure the Aged Care Facility provided their services effectively to meet the needs of her husband but, in her opinion, had met with little success. 

44.     The Tribunal has considered the statutory criteria for a marriage-like relationship.  The “nature of commitment” to each other is relevant – particularly the nature of the commitment of Mrs Stevens to her late husband. (Emphasis added).  The case Re Poulos and Repatriation Commission [2000] 59 ALD 307 is a case of reasonably similar facts to Mrs Stevens’ application. In Poulos, the applicant had been the full-time carer for his severely ill wife for many years and had reached the end of his emotional and financial resources.  However, this did not amount to living separately and apart, as the Tribunal concluded:

“30.     Having regard to all of the evidence, I find that Mr Poulos felt that he was living in a marriage that was a marriage in name only.  He had lost the companionship of his wife and he was simply a carer who bore the financial and emotional worries of caring for her as well as performing the many physical tasks required of a person in such a situation.  Does that mean that they were living separately and apart on a permanent basis?  I do not think that it does.  While the precise nature of their relationship might have changed and while their respective roles in that relationship might have changed, they remained two people whose lives were inextricably interlinked.  They were interlinked both by their physical proximity in the same flat and by Mr Poulos’ caring for Mrs Poulos.  They were interlinked emotionally even if only in the sense that Mrs Poulos was completely dependent upon Mr Poulos.  They could not be said to have been living separately and apart from each other in such circumstances.”

45.     Applying the reasoning in Poulos’ case to Mrs Stevens’ application, the Tribunal concludes that over the period 15 May 2003 to 27 October 2003:

§  the respective roles of Mrs Stevens and her late husband had changed due to his illness;

§  their lives were “inextricably linked” by living under the same roof where Mrs Stevens cared for her late husband;

§  their lives were interlinked emotionally as her late husband was completely dependent on her for care; and

§she retained her commitment to care for her late husband.

46.     Accordingly, the Tribunal can make no other finding than to apply the case law (Poulos) and the legislation and conclude that the criteria for “The nature of commitment to each other” under the Act is satisfied. In addition, as Mrs Stevens has acknowledged the sharing of day-to-day household expenses, the Tribunal must conclude that the criteria for “The financial aspects of the relationship” is also satisfied.

47. The Tribunal has taken into account the matters specified in subsections 4(3)(c)(e) of the Act [that is, “The nature of commitment to each other” and “Financial aspects of the relationship”] into account but also has had regard to all of the matters specified in subsection 4(3). The Tribunal has done so on the basis of all the material before it and concludes, on balance, that during the relevant period 11 May 2003 to 27 October 2003, Mrs Stevens was in a marriage-like relationship with her late husband.

48.     In making this finding the Tribunal completely agrees with the conclusion of the SSAT that “[Mrs Stevens] went to heroic efforts to try to ensure the best possible care for [her late husband].  She cared for him, nursed him, fed him and stayed with him until his death” (T2 Folio 7). However, the Tribunal had no discretion other than to apply the facts to the statutory criteria contained in the Social Security Act that prescribe the meaning of a “marriage-like relationship” for social security recipients.  The Tribunal has no alternative other than to make the decision it has made based on the facts and their application to the law. 

49.     The next issue is to consider Mrs Stevens request for a review of assessment at the “illness separated” rate from 27 October 2002 to 11 May 2003. Her application for review was made on 15 June 2004. The operation of the Administration Act requires such applications for review to be made within 13 weeks of Mrs Stevens’ receiving notice of payment of her “illness separated” entitlement [section 109(1)]. However, this section needs to be read in conjunction with section 110 of this Act.

50. The operation of section 109 and 110 operates to provide for a favourable determination to take place from the date requested [section 110 of the (Administration) Act] unless a review of a decision is sought. In such a case it may be possible for the favourable determination to be back-dated, if the requirements of the legislation are fulfilled (section 109). However, in Mrs Stevens’ circumstances, there is no “favourable” determination to be made.  Mrs Stevens’ rate of payment cannot be increased because she was paid the “illness-separated” entitlement at the maximum rate, that is the “single rate” of payment, because the income of Mr and Mrs Stevens was not sufficient to reduce the rate of payment.

51. In making the findings in this application for review, the Tribunal has applied the law as it is prescribed in the Social Security Act and the Social Security (Administration) Act. The Departmental policy as set out in the “Guide to the Social Security Law” is not law.

52.     Based on all of the above reasons, the Tribunal finds that Mr and Mrs Stevens were in a marriage-like relationship over the period 11 May 2003 to 27 October 2003.  In addition, there is no statutory basis to change the decision with respect to entitlements for the illness – separated rate for the period 27 October 2002 to 11 May 2003. 

53.     The consequences of these findings is that Mrs Stevens is entitled to retain the bereavement allowance of $1,883 but she personally has been overpaid Age Pension entitlements over the period 11 May 2003 to 27 October 2003 of $228.28.  These overpayments are now a debt due to the Commonwealth that can now be recovered.  The Tribunal considers this to be the “preferred decision”. That is, for the Tribunal to not exercise any discretion under section 24 of the Act and to treat Mrs Stevens as not being a member of a couple for a “special reason”.  To apply this discretion would mean Mrs Stevens would have to return the bereavement allowance ($1,883), notwithstanding being entitled to a total of Age Pension arrears of $1,465.  This would be a significantly worse financial outcome for her compared to being in a marriage-like relationship over the same period.  In the latter situation, the bereavement allowance ($1,883) would be retained together with a “neutral” balance of Age Pension payments when the payments made to Mrs Stevens and her late husband are considered.

54.     However, before the debt can be recovered by Centrelink, Mrs Stevens must prepare a Statement of Financial Circumstances which must be used to determine the actual amount of repayments that can be recovered from her fortnightly social security entitlements.  The Department must determine this amount of repayment in conjunction with Mrs Stevens.

55.     The Tribunal affirms the decision under review. 

I certify that the 55 preceding paragraphs are a true copy of the reasons for the decision herein of Dr EK Christie, Member

Signed:   S Appleton

Associate

Date/s of Hearing  26 August 2004
Date of Decision  2 November 2004         

The Applicant appeared in person
For the Respondent                  Ms J Dwyer, Departmental Advocate