TSMB and Secretary, Department of Social Services (Social services second review)
[2019] AATA 4366
•25 October 2019
TSMB and Secretary, Department of Social Services (Social services second review) [2019] AATA 4366 (25 October 2019)
Division:GENERAL DIVISION
File Number(s): 2018/5296
Re:TSMB
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:25 October 2019
Place:Sydney
The decision under review is set aside and the Tribunal remits this matter to the Secretary, Department of Social Services with the direction that TSMB was not a member of a couple pursuant to the Social Security Act 1991 (Cth) from 11 April 2017. The Tribunal further directs the Secretary to recalculate the Applicant’s entitlements to Carer Payment at the single rate for the relevant period
...........................[sgd]..............................................
Chris Puplick AM, Senior Member
CATCHWORDS
SOCIAL SECURITY – carer payment – rate of payment– whether applicant was a member of a couple – financial aspects of relationship – nature of household – social aspects of relationship – sexual relationship – nature of commitment to each other – decision set aside and remitted
LEGISLATION
Social Security Act 1991 (Cth)
Supreme Court Act 1935 (WA)
CASES
Boscolo v Secretary, Department of Social Security [1999] FCA 106
Boskoski and Secretary, Department of Social Services [2014] AATA 915
Burkett and Burkett and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 131
Gordon and Secretary, Department of Employment and Workplace Relations [2006] AATA 792
Hawkins and Secretary, Department of Social Security (1996) 44 ALD
Holmes and Secretary, Department of Social Security [1987] AATA 896
Main v Main [1949] HCA 39
O’Brien and Anor and Secretary, Department of Employment and Workplace Relations and Anor [2007] AATA 1439
Official Trustee on behalf of Jennie Martyniak and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 5.
Pelka v Secretary, Department of Family and Community Services [2006] FCA 735
Phillips and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 135
Re Secretary, Department of Employment and Workplace Relations and Spering [2007] AATA 1050
Re Secretary, Department of Family and Community Services and VBH and VBG [2006] AATA 1
Staunton-Smith v Secretary, Department of Social Security [1991] FCA 513
SECONDARY MATERIALS
Explanatory Memorandum Social Security Legislation Amendment Bill (No 4) 1991 (Cth)
REASONS FOR DECISION
Chris Puplick AM, Senior Member
25 October 2019
This application concerns a claim by TSMB TSMB (the Applicant) that she, although still legally married to and living under the same roof with SV is not a member of a couple with SV for the purposes of being paid Carer Payment by the Department of Social Services. The Secretary of that Department (the Respondent) claims that the Applicant is a member of a couple and hence entitled to payment at only the maximum couple rate rather than the higher single rate.
The claim in question - history
TSMB and SV were married in 1981. In 2013 SV suffered an accident which rendered him incapable of working.
On 22 March 2016 TSMB lodged a claim for the Carer Payment on the basis that she was providing full-time care for SV. In that application she stated that she was “married” to SV.[1]
[1] Section 37 Tribunal Documents at [37].
The Respondent drew attention to the fact that the Applicant had not applied for the Carer Payment until some three years after SV’s accident; however, in the Tribunal hearing accepted the Applicant’s evidence that she had not been aware of this entitlement prior to the date of lodgement.
The Applicant was granted the Carer Payment on 10 March 2016. On 11 April 2017 the Applicant contacted the Department to advise that she and SV had been separated, although living under the same roof, since 2015 and then on 10 May 2017 lodged a Separated Under One Roof (SUOR) declaration. A similar SUOR was lodged by SV subsequently.
This advice was considered by the Department which, on 25 November 2017 made a determination that the Applicant and SV were not only living under the same roof but were, for the purposes of the Social Security Act 1991 (the Act), living as members of a couple.
That decision was affirmed by an Authorised Review Officer (ARO) of the Department on 8 May 2018. The Applicant sought a review of the ARO’s decision on 4 June 2018 and that matter was heard by the Social Security and Child Support Division of this Tribunal (AAT1) which, on 28 August 2018 affirmed the ARO decision.
On 17 September 2018 the Applicant sought review of the AAT1 decision by this Tribunal where the matter was heard on 21 October 2019.
LEGISLATIVE FRAMEWORK
Matters related to the definition of what constitutes a couple for the purposes of payments such as Carer Payment are set out in the Act as follows:
Section 4(1)
"member of a couple" has the meaning given by subsections (2), (3), (3A), (6) and (6A).
These sections relevantly provide:
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
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.
(3A) The Secretary must not form the opinion that the relationship between a person and his or her partner is a de facto relationship if the person is living separately and apart from the partner on a permanent or indefinite basis.
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.
That section provides:
(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.
In short, the Act provides that a person who is married is to be regarded as a member of a couple unless they can demonstrate that they are “living separately and apart” from each other and that this is a “permanent or indefinite” situation.
The Act sets out five principal criteria upon which the nature of the relationship or coupledom is to be assessed: financial aspects of the relationship; the nature of the household; social aspects of the relationship; sexual relationship and nature of the commitment to each other.
Where a person is still married but effectively living separately and apart from their partner and this situation is likely to continue into the future then, if there is a “special reason” why the individual should not be regarded as a member of a couple, the Secretary may make such a determination and that person will, for social security payment purposes, be treated as if they were a single person.
Unhelpfully, key terms such as “separately and apart” and “special reason” are not defined in the legislation itself.
Before proceeding to consider the “coupledom criteria” cited above, it is necessary to consider what these legislatively undefined terms mean and how they guide the Tribunal in its decision making.
The term “separately and apart” has been given a variety of meaning which have evolved over time.
In 1949 the High Court defined this term[2] with an emphasis placed upon the degree of physical separation of the parties.
The two words "separately and apart" show that physical separation is necessary and that it is not enough that there has been a destruction of the consortium vitae or matrimonial relationship while the spouses dwell under the same roof. In matrimonial law the expressions like "live separately", "separated" and "separation" are commonly used to indicate that the conjugal relation no longer exists between the parties to the marriage. Although usually the existence of the conjugal or matrimonial relationship or consortium vitae means that the spouses share a common home and live in the closest association, it is not inconsistent with absences one from another, even for very long periods of time. It rests rather on a real mutual recognition by husband and wife that the marital relationship continues to subsist and a definite intention to resume the closer association of a common life as soon as the occasion or exigency has passed which has led to an interruption regarded by both as temporary.[3]
[2] With reference to the Supreme Court Act 1935 (WA) s. 69(6).
[3] Main v Main [1949] HCA 39 at [6].
However legislative changes to both social security legislation and family law have changed the focus from a primary reliance on physical separation to an emphasis on the nature of the consortium vitae, the inter-personal relationship between the parties. This was evident in the decision of the Federal Court in Staunton-Smith.[4] There, O’Loughlin J stated:
35. Some assistance can be gained, when considering what amounts to living separately and apart, from a consideration of the provisions of the Family Law Act 1975 (Cth) and the cases decided on the relevant provisions of that legislation. However care must be exercised in the sense that the Family Court is testing whether a particular marital union has ceased to exist whereas the Department, and later the Tribunal, are looking to see whether a marital or quasi-marital union does, in fact, exist.
36. The subject of living separately and apart is covered by sub-s.49(2) of the Family Law Act. It provides –
(2) The parties to a marriage may be held to have separated and to have lived separately and apart notwithstanding that they have continued to reside in the same residence or that either party has rendered some household services to the other.
[4] Staunton-Smith v Secretary, Department of Social Security [1991] FCA 513.
In the Marriage of Todd (No.2), Watson J stated:
Three concepts require examination: (a) separation, (b) living separately and apart, and (c) resumption of cohabitation. In my view “separation” means more than physical separation — it involves the destruction of the marital relationship (the consortium vitae). Separation can only occur in the sense used by the Act where one or both of the spouses form the intention to sever or not to resume the marital relationship and act on that intention; or, alternatively, act as if the marital relationship has been severed. What comprises the marital relationship for each couple will vary. Marriage involves many elements, some or all of which may be present in a particular marriage — elements such as dwelling under the same roof, sexual intercourse, mutual society and protection, recognition of the existence of the marriage by both spouses in public and private relationships.
When it is asserted that a separation has taken place it may be necessary to examine and contrast the state of the marital relationship before and after the alleged separation. Whether there has been a separation will be a question of fact to be determined in each case.
As to the second element, that of living separately and apart, this element is present and continues to be present unless there is a substantial resumption of the marital state. Casual acts of sexual intercourse do not constitute an interruption of separation. An agreement to resume cohabitation which is not carried out is insufficient. Just as intention (or acceptance) and action thereon are ingredients in the element of separation so intention (or acquiescence) and action thereon are necessary ingredients in the termination of separation. [5]
[5] In the Marriage of Todd (No.2) (1976) 9 ALR 401 at [403].
The reference to a ”special reason” in section 24 of the Act, not to be equated with the terminology of “special circumstances” as used in section 1237AAD of the Social Security Act,[6] has been discussed by the Federal Court is Boscolo:[7]
[18] …………… The core of the requirement for "special circumstances" or "special reasons" is that there be something unusual or different to take the matter the subject of the discretion out of the ordinary course - Minister for Community Services and Health v Chee Keong Thoo (1988) 78 ALR 307 at 324 (Burchett J). But that does not require that the case be extremely unusual, uncommon or exceptional - Secretary, Department of Social Security v Hodgson (1992) 108 ALR 322. In Beadle (supra) the Full Court, having concluded that the term "special" was sufficiently well understood not to require a judicial gloss said the matter was one for the decision-maker, in that case the Director-General of Social Security.
[19] The decision-making process under s24 is notionally in two stages. First, is the assessment whether there is a special reason in the particular case for which the Secretary is satisfied that the person the subject of his discretion should not be treated as a member of a couple. There follows the determination that the person is not to be treated as a member of a couple. The latter determination involves the exercise of discretion although as a practical matter assessment and determination will tend to be rolled up as one decision.
[20] It is of importance in the present case to note that s24 requires the decision-maker to focus on the position of one person, not the couple, and to assess whether that person should for a special reason not be treated as a member of the couple. It is possible that in the case of two married persons in receipt of different benefits, each paid at a married rate, one person might not be treated as a member of the couple while the other might continue to be so treated.
[6] Holt and Secretary, Department of Education, Employment and Workplace Relations [2010] AATA 143 at [29].
[7] Boscolo v Secretary, Department of Social Security [1999] FCA 106.
There is however a greater degree of unanimity among the authorities on two points, namely that in making a determination about whether individuals are members of a couple or not, no one indicia should be regarded as determinative and that the totality of arrangements must be considered, and secondly, that any such determination is a difficult task and will depend upon the particular circumstances of each individual case.
20. It is not suggested that this list is exhaustive nor will each of these subjects fall to be considered in every case. It must also be emphasised that a particular answer to a single subject will rarely, if ever, supply a final solution. The responsibility of the fact-finding tribunal is to have regard to all the material facts of each case, treating the matters listed above only as indicators. The Tribunal will make its determination whether a particular man and woman are or are not living separately and apart only after assessing the totality of the evidence and other material that is before it.[8]
….
[70] Determining whether a relationship is ‘marriage-like’ is a difficult task. The assessment is made somewhat easier by the commonsense 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.[9]
….
[46] [The decision-maker] 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.[10]
[8] Staunton-Smith v Secretary, Department of Social Security [1991] FCA 513.
[9] Re Secretary, Department of Employment and Workplace Relations and Spering [2007] AATA 1050.
[10] Pelka v Secretary, Department of Family and Community Services [2006] FCA 735.
It is also accepted that in considering the facts in each case in light of the stated criteria, some of those criteria will more readily lend themselves to objective judgement (for example the sharing of financial resources) while others will depend upon much more subjective and personal assessments (for example the commitment of the parties to each other).
[94] The s 4 (3) criteria does have some subjective components but it is overwhelmingly objective in nature and in construct. Additionally, the opinion formed about the relationship is not that of the parties to it, but the regard the Secretary is to have to its circumstances, including the criteria at (3). The opinion formed will be based on the whole of the circumstances of the relationship, viewed objectively.[11]
…..
[63] In considering the various criteria set out in subsection 4(3) it is necessary to take an objective view of the facts. However the subjective views of the parties may be relevant in considering aspects of the relationship, such as the commitment of each party to the other.[12]
….
[64] What must be considered is not only whether the parties live separately, in physical terms albeit it under one roof, but also whether their de facto relationship (the consortium vitae) has broken down. These are matters of fact and degree.[13]
….
[17] The living situations of different people that could constitute separation "under the one roof" are too numerous to detail. At the least the evidence must satisfy the decision maker that a couple's lives are led separately, not only in the personal but also in the social and economic sense and that joint activity is not because of the existence of an exclusively binding relationship but for some material advantage. Commonly, in the quite numerous similar cases coming before this Tribunal, the reason for remaining under the one roof is the fact that the property is jointly owned and that division would be economically disastrous.[14]
[11] Re Secretary, Department of Family and Community Services and VBH and VBG [2006] AATA 1 at [94].
[12]Boskoski and Secretary, Department of Social Services [2014] AATA 915.
[13] Official Trustee on behalf of Jennie Martyniak and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 5.
[14] Holmes and Secretary, Department of Social Security [1987] AATA 896.
THE EVIDENCE BEFORE THE TRIBUNAL
Apart from the extensive written material before the Tribunal which included statements (including some in statutory declaration form) from -TSMB, SV and their two children (PV andLV), some medical and financial records and a letter from a neighbour, AL, the Tribunal heard sworn oral testimony from all four members of the Applicant’s family.
The Tribunal notes that the AAT1 stated: “The tribunal found that TSMB was a credible and genuine witness.”[15] This Tribunal endorses those remarks.
[15] Section 37 Tribunal Documents at [8].
From their testimony, subject to cross-examination by the Minister’s representative, the Tribunal accepts the following:
1.TSMB and SV were married in 1981. In 2013 SV suffered an accident which resulted in him being unable to work and becoming dependent upon TSMB to act as his carer. All parties agree that after the accident SV started to display signs of depression and often increasing anger and hostility towards TSMB. He became withdrawn and reclusive in his habits. He admits to having had suicidal thoughts[16] and the other members of the family are conscious of this and concerned about it.
[16] This is supported by a letter from Dr Ip (Hornsby Community Mental Health Centre) dated 28 March 2018. Attached to Applicant’s Statement of Evidence
2.TSMB found herself under increasing strain both managing SV’s care and putting up with his changes in mood and attitude towards her and in 2015 came to the conclusion that she no longer regarded herself as being “married to” SV.
3.Despite this she accepted, for family and “cultural reasons” that she had an obligation to care for SV and made it clear that she believed (in her own words) that “if anything happened to him and it was my fault for not caring then me children would never forgive me.”
4.TSMB worked part-time providing disability support to people through the House With No Steps programme but had to cease such work in 2016 in order to cope with SV’s increasing care needs.
5.SV and TSMB were, and still are, joint owners of a property in East Lindfield which they purchased some 18 or 19 years ago. All four family members told the Tribunal that at some time or other, because of the tensions between SV and TSMB, the family had contemplated selling the property. LV was more precise in saying that this consideration occurred some time between the date of the accident (late 2013) and the time when she left the family home to get married in 2015. All parties agreed that a real estate agent had been asked to give a valuation of the property but they had collectively decided that the money they would receive from this sale would not be sufficient for both to acquire separate properties and still manage arrangements for SV’s care. SV said in evidence. “that would be a stupid thing to do”.
6.A letter from the Applicant’s solicitor confirms this joint ownership; that the couple live “separately and apart under the same roof”, and that “when either of them dies the whole of the property will pass to the other by survivorship”.[17]
[17] Letter dated 11 December 2018 attached to Applicant’s statement of Evidence.
7.In any event, SV is now not prepared to sell the property. He told the Tribunal, “I just want to stay in the area, it’s very quiet and I can’t handle noise. Anyway I could never get a bank loan.”
8.In 2016 TSMB began receiving carer’s payment as SV’s primary (sole) carer, in circumstances as outlined above.
9.SV has made three applications for the Disability Support Pension, however each application has been unsuccessful.
10.TSMB and SV share the same house. Within that house they live separate lives. Each has their own bedroom and they sleep separately and have done so since at least 2015. TSMB provides full-time care for SV. She cooks his meals, however they do not eat together, and even when one of both of the children come over for meals, the family does not eat together, TSMB and SV eat separately.
11.During the day SV confines himself to his own room where he spends most of his time watching the television. TSMB occasionally takes him to visit his aged, widowed mother. On these occasions she then visits her own aged, widowed mother and later returns to collect SV.
12.TSMB does all the shopping, cleaning and housekeeping.
13.There are two bathrooms in the house and TSMB and SV share use of one because the other is kept for use by guests (of whom there are very few) but is otherwise unused because it would require extra cleaning effort on TSMB’s part. In addition the one used bathroom is equipped with disability support features and it is necessary for TSMB to assist SV with matters of his personal hygiene such as showering.
14.SV does not otherwise leave the house other than on occasions when he needs to visit the doctor where either TSMB or their son will accompany him. On very odd occasions TSMB will stop and have a cup of coffee with SV, although she says that this is primarily because such socialisation is part of the treatment recommended for SV by his psychologist.
15.TSMB and SV occasionally attend family gatherings, “only when they can’t be avoided.” When they do attend such gathering they usually do not sit at the same tables.
16.There is no sexual relationship between the parties.
17.TSMB occasionally goes out to have coffee or dinner with other men and she has taken brief holidays on her own. When she takes these holidays their son returns to the home (he left the family home on his marriage in 2016) to look after his father. SV told the Tribunal that, in relation to such matters, he has said to TSMB “what you do in your private life, I don’t care. I don’t want to know about it.” The Applicant’s son says about this: “I don’t know what else she does – she doesn’t tell us – I don’t expect her to.”
18.TSMB manages the family finances. Both TSMB and SV have separate bank accounts (primarily for the receipt of social security payments). There is a joint account and when bills are to be paid, TSMB arranges the transfer of money from each of the separate accounts to the joint account from which such payments are made. TSMB keeps SV informed of all financial transactions through a phone-app and he is assisted in this by his son who verifies and checks payments with him.
19.When TSMB was asked about the prospect or possibility of divorce she replied: “It’s possible but I’d still have to care for him”. SV said: “We talked about is, but it’s not going to change anything, is it?”
20.In her Statutory Declaration of 25 July 2019 (supported by that of Mr SV of the same date), LV writes: “My parents are regarded as old fashioned when it comes to marriage and with legal proceedings for divorce.”
21.Both TSMB and SV characterise themselves as “private people”, as do their children. They are also from what they describe as conservative religious and family backgrounds. It is for this reason that they have not shared with other members of their family the fact that their marriage has broken down and that they do not regard themselves as a married couple.
22.In relation to their respective mothers – both aged over 90 and both in ill-health, both TSMB and SV said that they would never tell them about their marital status or problems because of the distress which it would cause them. In relation to TSMB’s sister, she has not been told because, in TSMB’s written submission, “she can’t keep anything to herself” and in LV’s testimony, “she has a big mouth.”
23.Despite the Secretary’s assertion that, “the Applicant’s conduct demonstrates that she continues to hold herself out to the community at large as being in a married relationship with SV”[18] there is no evidence to support this proposition as far as any representations to “the community at large” are concerned.
[18] Respondent’s Statement of Facts, Issues and Contentions at [50].
24.TSMB told the Tribunal that she has little or no contact with any of her neighbours who she knows on just a nodding-acquaintance basis. There is one exception to this, her neighbour Mr AL.[19] He provided evidence to the Tribunal to the effect that he has been called by TSMB to assist her on occasions when SV has either fallen in the bathroom or bedroom or has been unable to get out of bed. He assists physically on these occasions and has been able to observe that SV is often in a state of deep depression and unwilling to leave his bedroom or television room. He has been involved with assistance to SV since April 2015.
[19] Letter dated 20 July 2018 attached to Applicant’s statement of Evidence.
25.There are statements before the Tribunal from general practitioners Dr Bonovas (8 March 2018) and Dr Lichti (5 July 2018) and from clinical psychologist Margie McCaskill (18 January 2019) which attest to SV’s poor state of physical and mental health, but do not provide any probative evidence in support of any findings about the nature of the relationship between TSMB and SV other than noting that TSMB is his full-time carer.
26.In terms of the nature of the relationship between TSMB and SV:
(a)LV attests: “They have both been separate and haven’t been a couple for years. They continue to live at the same address due to being able to compromise the situation as neither one of them can afford to pay the other out.”
(b)PV attests: “my parents TSMB & SV have been separated for some time and have only stayed under the same roof because of my father needing caring due to his disability. This situation has been hard on both of them and something that my sister and I haven’t been happy about. They sleep in different rooms and have different living areas of the house.”
(c)SV told the Tribunal that, “for a few years back, I can’t remember we haven’t got a relationship, it’s just convenient.”
27. TSMB told the Tribunal:
·“I do not regard this man as my husband – I can’t look at him and think of him as such”
·“I don’t have a relationship with SV – I am just his carer. As far as I am concerned it’s just a job.”
·“I had had enough of him by 2015 but I had to care for him, no-one else would and I do so only out of compassion for the kids.”
28. TSMB told the AAT1 that her husband’s accident had changed everything and that, as a result, “all the headaches are on me, all the stress is on me” and that she felt her existence was no longer that of a wife but rather a nurse and a taxi driver, indeed, “it feels like I’m looking after my father. I have an obligation to stay but it’s not a marriage.”[20] She expressed similar sentiments in different words before this Tribunal.
[20] Section 37 Tribunal Documents at [9].
CONSIDERATIONS
It is against this background of evidence that the Tribunal must give consideration to the factors listed in s 4(3) to establish whether or not, to the best of its satisfaction, TSMB is a member of a couple or not.
Section 4(3)(a) : Financial aspects of the relationship
The evidence establishes, without any qualification, that TSMB and SV pool their financial resources in order to obtain maximum economies in the management of their financial affairs. They continue to be joint owners of their residential home and they contribute jointly to the payment of household expenses.
It is an express purpose of the legislation that where there is a pooling of resources in order to achieve economies of scale, payments should be made to the parties at the partnered (lower) rate.
The Explanatory Memorandum laid before Parliament with the introduction of the Social Security Legislation Amendment Bill (No 4) 1991 states at page 17:
…there is justification in paying a higher rate to an un-partnered person than to a member of a couple if both members of the couple are living together. This justification is based on the premise that the un-partnered person does not enjoy the economies of shared living costs as does the member of a couple in those circumstances. If the economies of scale are not available to the member of the couple because, for example, of the illness of one or both members of the couple, then each would face similar living costs as an un-partnered person.
Similarly the Federal Court has held that:[21]
The evident policy behind the relevant legislative provision is that ordinarily couples should be expected to pool their resources and practise economies of scale: that those expectations should not apply to couples who are separated by illness or imprisonment; buy that there would have to be some special reason not to apply those expectations to members of other couples.
[21] Hawkins and Secretary, Department of Social Security (1996) 44 ALD 651 at [652].
The advantages of the pooling of resources have been outlined in numerous decisions of this Tribunal, even where there is some degree of financial independence maintained by each party[22], and arrangements of this kind are recognised as not uncommon or unusual.[23]
[22] Phillips and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 135.
[23] Burkett and Burkett and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 131.
Of course there are many instances where the pooling of resources does not establish the participants as members of a couple – for example where housemates share financial obligations, but in the context of this legislation, and given that the parties are married, this status becomes attendant upon the financial arrangements they have entered into jointly.
The financial arrangements in place currently between TSMB and SV establish that they are each a member of a couple for the purposes of the Act.
Section 4(3)(b) : The nature of the Household
The evidence is clear that, apart from making a financial contribution (see above) SV makes no contribution to the management or operation of the household. All the responsibilities fall upon, and are accepted by SV. She is, to all intents and purposes, the sole contributor to all aspects of the household relationship and there is nothing that establishes that she does this other than as an individual. She does not do this as a member of a couple.
The Secretary contends that while “certain aspects of the household are kept separate … the overall nature of the household indicates that the Applicant is a member of a couple.”[24] The Tribunal does not accept this assertion – it finds that all aspects of the household are kept separate and no aspect of household management is shared as would be the case were the parties to be members of a couple.
[24] Respondent’s Statement of Facts, Issues and Contentions at [44].
The Secretary comments, in almost Tolstoyean terms[25]: “They continue to live together, regardless of how unhappily.” [26]That much is true.
[25] “All happy families are alike; each unhappy family is unhappy in its own way.” Leo Totstoy: Anna Karenina (1873).
[26] Idem.
Section 4(3)(c) : Social aspects of the relationship
This criteria encompasses three elements – the social presentation of the parties (as a married couple or otherwise); the assessment of the relationship by other friends and associates and the basis upon which the individuals plan or engage in joint social activities.
The Secretary can adduce no evidence to support a claim that TSMB andSV in any way present themselves to the community at large as a married couple. In the first instance they rarely present themselves in any fashion in the wider community and secondly they undertake no joint community-based activities. Even at family gatherings they act and interact separately.
Their children, their neighbour and their medical providers all regard them as separated, not as a couple, and the reason other members of their family have not be informed of their true status has been explained above.
It is true that on certain departmental forms TSMB has chosen to tick the box of “married” rather than “separated”,[27] but she explains this as being what she thought she was legally required to do, the couple not being divorced. In other instances her forms refer to SV as wither her “partner” or “husband”, again on the basis of her understanding of what she thought was legally required.[28]
[27] Section 37 Tribunal Documents at [37].
[28] Ibid at [54] and [70] respectively.
There are no jointly undertaken activities, other than TSMB acting in her carer capacity when taking SV to his medical appointments or acting as his chauffer when taking him to visit his mother.
There is no couple-like or marriage-like social relationship.
Section 4(3)(d) : Sexual relationship
It is uncontested that there is no sexual relationship between TSMB and SV. The Secretary rightly draws attention to the Tribunal’s previous determination that the absence of a sexual relationship is “not alone conclusive in establishing that they are not members of a couple.”[29]
[29] Gordon and Secretary, Department of Employment and Workplace Relations [2006] AATA 792 at [43].
The Secretary must of course, accept the corollary of this – none of the individual criteria in section 4(3) is, of itself alone, determinative of the status in question.
Section 4(3)(e) : The nature of the parties commitment to each other
There is a marked difference between what actually transpires between two parties and how each of the parties thinks about that transaction. Support, including mutual support may be provided for a variety of reasons or motives:
·Two people may provide mutual support and commitment because they love each other and are devoted to each other.
·Two people may provide mutual support and commitment because they have no choice if either or both of them is to survive.
·Two people may provide mutual support and commitment because they have a legal or ethical duty to do so.
·Two people may provide mutual support and commitment because each of them derives some benefit from doing so.
·Two people may provide mutual support and commitment because they have been doing so for a prolonged period of time and neither is motivated to cease such activities.
No doubt this list could be expanded further but suffice to say that simply because one person provides support for another, or they provide mutual support, is not sufficient to establish the exact nature or quality of the relationship between them.
In the case of SV – he provides financial support (see above) to TSMB and they jointly own their home. All evidence suggests that this is where the level of commitment ceases. The Secretary contends that: “SV provides financial contribution and friendship to the relationship.”[30] The first part of the statement is undoubtedly true. There is no evidence to support that latter contention.
[30] Respondent’s Statement of Facts, Issues and Contentions at [59].
It is true that the relationship between the parties has been lengthy, dating back to 1981 and that from that date to 2013 there would have been no reason to question the matter of their mutual commitment. The evidence suggests that that changed in 2013 and by 2015 had assumed an entirely different character.
The Secretary relies on a comment from rehabilitation consultant Alana Nicol that: “SV has a supportive wife who assists when required.”[31] If anything, this is supportive of a non-couple relationship – TSMB is “supportive” (rather than “committed to”), “when required” (rather than all the time).
[31] Ibid at [60].
The Secretary repeats the Tolstoyean imagery: “Whilst the Applicant and SV may be unhappy, the fact remains they are committed to each other.”[32] The evidence suggests otherwise. It suggests that TSMB supports SV out of a sense of duty, he accepts that support as a matter of necessity.
[32] Ibid at [61].
Authority suggests that the Tribunal, in making assessments under this section, must understand that: “The essential requirement of the provision, however, is that the decision maker must have regard to the nature of the commitment of the two people to each other.”[33]
[33] Pelka v Secretary, Department of Family and Community Services [2006] FCA 735 at [30].
The Secretary seeks to distinguish the findings of the Tribunal in O’Brien[34] from those in this case and while it is true that in O’Brien[35] the parties were not married and their future arrangements were likely to change, what was said in that case resonates here:
[40] There is no doubt that Mr Bentley and Mrs O’Brien have a commitment to one another and that that commitment is long standing. It has changed over time. At the earliest time in the relationship it was one of pure friendship but as Mr Bentley was afflicted with poor health it has changed into more of a relationship of mutual care. I do not doubt that Mr Bentley and Mrs O’Brien provide emotional support for one another but equally they perceive their relationship to be one of care not one that is marriage-like.
[42] In my view, the evidence leads to the conclusion that the parties were not in a marriage-like relationship; rather the relationship was one of care. The matter is one where the Departmental Guide to Social Security Law puts the matter rather well in these terms:
For the purpose of the Social Security Act 1991 a marriage-like relationship exists if 2 people of the opposite sex, who are not close relatives, are considered to be living together as husband and wife. Indicators of a marriage-like relationship are set out in s 4(3) of the Act and the 5 factors listed in the Act are described below.
The definition above EXCLUDES a person who provides personal care and support to another person for payment or reward, on behalf of another person or a government, charitable or similar organisation.
It is Government policy to encourage people with a disability, or who are aged, to remain in their own home if support is available.
Care’ relationships exist which involves people of all ages. In cases where a person is sharing with another person of the opposite sex primarily for caring reasons and for companionship there is little evidence of other factors present … the decision-maker should not form the opinion that a marriage-like relationship exists.
[34] Respondent’s Statement of Facts, Issues and Contentions at [64].
[35] O’Brien and Anor and Secretary, Department of Employment and Workplace Relations and Anor [2007] AATA 1439.
The Tribunal finds that on the evidence before it, while TSMB provides support to SV clearly evidences a commitment to do so, that commitment is not in any way one that could be characterised as anything other than a “business-like” arrangement rather than a “marriage-like” arrangement. It appears from her testimony that, were TSMB able, absent her cultural constraints, the continuing (enforced) joint ownership of their home and her fear of the disapproval of her children, she would cease providing the degree and level of support to SV which she now does. In her evidence she contemplates that she could perhaps, have a separate life, but sees no immediate prospect of this.
CONCLUSION
The evidence before the Tribunal is persuasive of the conclusion that while section 4(3)(a) would indicate that TSMB is a member of a couple for the purposes of the Act, sections 4(3)(b), 4(3)(c), 4(3)(d) and 4(3)(e) are persuasive that she is not.
As no one factor is alone ultimately determinative of the outcome of such an assessment the Tribunal, weighing all the factors together comes to a clear conclusion that, under the criteria of section 4(3) of the Act, TSMB was not a member of a couple with SV, from 11 April 2017 (the relevant date).
DECISION
The decision under review is set aside and the Tribunal remits this matter to the Secretary, Department of Social Services with the direction that TSMB was not a member of a couple pursuant to the Social Security Act 1991 (Cth) from 11 April 2017. The Tribunal further directs the Secretary to recalculate the Applicant’s entitlements to Carer Payment at the single rate for the relevant period.
I certify that the preceding 59 (fifty-nine) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
.............................[sgd]...........................................
Associate
Dated: 25 October 2019
Date(s) of hearing: 21 October 2019 Applicant: In person Solicitors for the Joined Party: Ms T Hibberd, Department of Human Services
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