Vagg and Anor and Secretary, Department of Family and Community Services

[2004] AATA 728

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 728

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   N2003/2016

GENERAL ADMINISTRATIVE DIVISION		)
Re		Anthony Vagg

First Applicant

Re Betty Chatfield

Second Applicant

And Secretary, Department of Family and Community Services

Respondent

DECISION

Tribunal Mr RP Handley, Deputy President

Date9 July 2004

PlaceSydney

Decision The Tribunal sets aside the decision under review and remits the matter to the Respondent with a direction that the first and second Applicants are not members of a couple.

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RP Handley
  Deputy President  

CATCHWORDS

SOCIAL SECURITY – disability support pension – age pension – whether the Applicants are living in a marriage-like relationship – whether decision of Social Security Appeals Tribunal was correct – examination of the Applicants’ living and financial arrangements – examination of the reasons for the Applicants’ living arrangements – held that the indicia for a “marriage-like” relationship are not met – decision under review is set aside with a direction to the Respondent that the Applicants are not members of a couple.

Social Security Act 1991 ss 4(2), 4(3), 4(3A)

Re Needer and Secretary, Department of Social Security (AAT 8648, 12 March 1993))

REASONS FOR DECISION

9 July 2004	Mr RP Handley, Deputy President
Summary

1.      Centrelink and an Authorised Review Officer of Centrelink decided that the Applicants, Anthony Vagg and Betty Chatfield, were living in a marriage-like relationship and, as a result, reduced the rate of disability support pension payable to Mr Vagg and the rate of age pension payable to Mrs Chatfield.  Mrs Chatfield, with Mr Vagg as the joined party, appealed this decision and, on 6 November 2003, the Social Security Appeals Tribunal (“SSAT”) affirmed the decision that they were members of a couple.  This is the decision to be reviewed by the Tribunal.

Background

2.      Mr Vagg was born on 17 March 1939 and is aged 65. Since turning 65, he has been receiving age pension.  Mrs Chatfield was born on 23 April 1932 and is aged 72.  Mrs Chatfield has an adult daughter, Dianne, and two grandsons, Michael and Paul.  Mrs Chatfield first met Mr Vagg when she was 27 or 28 and living in Victoria (T p6).  She lived with Mr Vagg’s parents for a while, before moving to Narromine, New South Wales, where she lived with her mother who was sick.  Mr Vagg also stayed there for a while.  About 23 years ago (T p11), Mrs Chatfield moved to Nowra to live closer to her daughter Dianne.   Mr Vagg also moved to Nowra where he lived in a flat prior to serving a term of imprisonment.  When he was released from prison, he commenced living in the same house.  Mr Vagg has lived with Mrs Chatfield for most of the time since, with the exception of the time he spent in prison, a few days when he resided in Wollongong (T p11), and some months in most years which he has spent travelling in Australia.

3.      On 11 March 2002, Centrelink was informed that Mr Vagg and Mrs Chatfield were living in a marriage-like relationship and it was alleged that Mr Vagg was also the father of Mrs Chatfield’s daughter, Dianne.   On 11 March 2002, in response to this allegation, Centrelink wrote to Mr Vagg requesting that he complete a questionnaire and Assessment of Living Arrangements form (T4 p18).  On 20 March 2002, Mr Vagg completed the questionnaire and form, declaring that he and Mrs Chatfield were just friends and that they share accommodation.  He said he first lived at his current address in August 1999 but has not shared accommodation continuously since that date because he “spent 2 years in gaol and have also moved around the country”.  He said he started sharing accommodation with Mrs Chatfield because “I had nowhere else to go. She got sick and needed assistance” (T9 pp39-40).

4.      On 11 March 2002, Centrelink also wrote to Mrs Chatfield requesting that she complete a questionnaire and Assessment of Living Arrangements form (T5 p20).  On 19 March 2002, Mrs Chatfield completed the questionnaire and form, denying that Mr Vagg was her daughter’s father and declaring that Mr Vagg was just a friend and that they share accommodation.  She said she first lived at her current address in February 2002 but has not shared accommodation continuously since that date.  They started sharing this accommodation because Mr Vagg “had nowhere to live when he came out of gaol” (T p28). 

5.      On 20 March 2002, Centrelink determined that Mr Vagg and Mrs Chatfield were living in a marriage-like relationship.  On 21 March 2002, Centrelink wrote to Mrs Chatfield stating that her rate of age pension would be calculated as a member of a couple (T11 p51).   On that same date, Centrelink wrote to Mr Vagg advising that his rate of disability support pension would be calculated at half the married rate (T10 p49).   On 21 March 2002, Centrelink also wrote to the Department of Corrective Services requesting that they provide information from Mr Vagg’s prison records as to whom he had nominated as his next-of-kin and his relationship to that person (T16 p61).   On 25 March 2002, the Department of Corrective Services advised that Mr Vagg had nominated as his next of kin “Betty Chatfield  de-facto, Dianne Chatfield – step-daughter, Betty Spliet – mother-in-law” (TT17 p63).   Mr Vagg and Mrs Chatfield both sought internal review of the decisions and, on 3 April 2002, the decisions were affirmed by the original decision-maker (T20 p69).   

6.      By letter of 26 July 2002, Centrelink sought information from Shoalhaven District Memorial Hospital as to information provided by Mr Vagg on his admission to that hospital, including whom he had nominated as his next-of-kin and his relationship with that person (T22 p73).   On 1 August 2002, the Hospital advised Centrelink that Mr Vagg had nominated “Betty Chatfield – wife” (T23 p76).

7.      On 30 August 2003, an Authorised Review Officer affirmed the decisions (the Decision Statement of the Authorised Review Officer being written in the name of Mr Vagg only – T24 p77).   Mr Vagg and Mrs Chatfield appealed this decision and, on 6 November 2003, the SSAT determined that Mr Vagg and Mrs Chatfield were members of a couple on the basis that their relationship was long standing and that there was evidence that they themselves had, on a number of occasions, held themselves out to be a couple.  The SSAT therefore held, on the balance of the evidence, that Mr Vagg and Mrs Chatfield were members of a couple (T2).  On 18 December 2003, Mr Vagg lodged an application for a review of this decision and on 4 February 2004, Mrs Chatfield was joined as the second Applicant in the proceedings.

8. At the hearing, the Applicants were self-represented and the Respondent was represented by Andrea Garcia, Advocate of Centrelink. The evidence before the Tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the T Documents”) together with evidence tendered by the Respondent at the hearing. Mr Vagg and Mrs Chatfield gave evidence in person.

Applicable Legislation

9. Section 4(2) of the Social Security Act 1991 (“the Act”) sets out the circumstances in which a person will be treated as being a member of a couple:

4(2) Subject to subsection (3), a person is a member of a couple for the purposes of this Act if:

(a) the person is legally married to another person and is not, in the Secretary's opinion (formed as mentioned in subsection (3)), living separately and apart from the other person on a permanent or indefinite basis; or

(b)       all of the following conditions are met:

(i) the person has a relationship with a person of the opposite sex (in this paragraph called the partner );

(ii) the person is not legally married to the partner;

(iii) the relationship between the person and the partner is, in the Secretary's opinion (formed as mentioned in subsections (3) and (3A)), a marriage-like relationship;

(iv) both the person and the partner are over the age of consent applicable in the State or Territory in which they live;

(v) the person and the partner are not within a prohibited relationship for the purposes of section 23B of the Marriage Act 1961.

10. In determining whether a relationship is marriage-like, s 4(3) of the Act provides that the following factors must be considered:

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 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.

11. Section 4(3A) provides:

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.

Evidence

12.     Mr Vagg and Mrs Chatfield said that they first met a long time ago when Mr Vagg was working as a mechanic for a company drilling for minerals.  Their families knew each other through mineral drilling and he had become friends with Mrs Chatfield’s brothers and sisters who lived in Melbourne.   Although they had gone out as friends in Melbourne and had met again when Mr Vagg was working in Lightning Ridge and Mudgee, they did not know each other properly until they met again in Nowra about 15 years ago.  At that time, Mr Vagg was living with a friend in a flat in Douglas Street, Nowra and Mrs Chatfield was living in a Housing Commission house at Bomaderry.  Shortly after, Mr Vagg was imprisoned for three years and during this time his friend passed away from cancer.  Some friends of Mr Vagg moved his possessions out of the flat and took them to Mrs Chatfield’s house for storage because they knew she would always help out someone who needed help.  Mrs Chatfield acknowledged in cross-examination that she was happy to look after his possessions because she was brought up in a culture where people look after one another and do whatever they can for those in need.

13.     Mrs Chatfield said that when Mr Vagg was released from prison, about 12 years ago, she was granted permission by the Housing Commission for him to reside in her house, because he had no where else to live.  He would either stay in her spare bedroom or in his van which was parked in her yard.  Mr Vagg said that he never stayed there for long periods, but would pack his van and tour around for three or four months at a time, for example travelling to Lightning Ridge, before returning to Bomaderry.  He acknowledged that on one of his trips, he had stayed with Mrs Chatfield’s mother at Wellington.  Mrs Chatfield said that after the house in Bomaderry burned down, the Housing Commission moved her into another house.  Mr Vagg also moved into that house with her as he had no where else to go.  However, Mrs Chatfield said that he moved out and went and lived in Wollongong for a short period after a neighbour dobbed them in as living in a de facto relationship, which they both denied.

14.     Mr Vagg said that for the past 12 months he has been paying $50 per fortnight to the Housing Commission for rent.   He is a diabetic and buys and cooks his own food while Mrs Chatfield buys and cooks hers.  They both said they clean their respective rooms and do their separate washing.   Mrs Chatfield said that she does very little cooking for herself because of her health problems which prevent her eating a normal diet.  They never eat breakfast or lunch together and only occasionally eat an evening meal together.    Mrs Chatfield said that she pays all the bills for the house as she does not expect this of Mr Vagg as it is her house, although he occasionally makes a contribution towards the electricity account if he has been undertaking some mechanical work, for example welding, and knows that he has used a substantial share of the electricity.  Mr Vagg said that he mows the lawns and fixes anything around the house that needs fixing.

15.     Mr Vagg and Mrs Chatfield both said that there are no arrangements between them – they come and go when they like and do what they like without asking the other.  Mrs Chatfield said that is the way she likes it because she is very independent.  She has never been married and has never wanted to be married.  She does not want to have to ask a man what she can do.  Mr Vagg and Mrs Chatfield both stated that there has never been a sexual relationship between them, nor do they go out socially together.  Mr Vagg said on normal days, he will spend time tinkering with his dirt bikes which he races near HMAS Albatross, south of Nowra, or doing mechanical repairs for other people which he does for no payment because he likes to help others. Mrs Chatfield said she stays indoors most of the time because of her poor health.  However, she sometimes goes to Dubbo to see her elderly mother who is aged 95 and now in a nursing home.

16.     Mr Vagg said that he has stayed with Mrs Chatfield for longer periods in the past few years, having ceased touring around so often, because Mrs Chatfield got sick and needed someone to look after her and also because he was getting old and had developed some health problems, including diabetes, high blood pressure and stress, all of which make him moody and cranky.   When Mrs Chatfield became sick, he started to help her with cleaning the house and doing the washing because there was no one else to do this.  However, he does not do this all the time – only when she is sick or in hospital.

17.     Mr Vagg said that in 2002, a friend of Mrs Chatfield suggested that he approach Centrelink because he might be able to obtain a carer’s pension for looking after Mrs Chatfield.  Mr Vagg said that when he went to Centrelink at Nowra, he saw a Centrelink officer, Steven Shepherd, who completed the forms for Mr Vagg because he is “not very good with paperwork”.   Mr Vagg said that Mr Shepherd put on the form that he did all the cleaning and washing and that he and Mrs Chatfield were a couple, but Mr Vagg did not become aware of this until the application was refused.  Mr Vagg said that he did not tell Mr Shepherd that he and Mrs Chatfield were a couple because it is not true.  They have never been a couple.

18.     In cross-examination, Mr Vagg said that many people assume he and Mrs Chatfield are a couple because they live together.  However, in reality he is a loner and does not have many friends.  He has not had a relationship with a woman for the past 12 years, although he did previously.  While he does not treat Mrs Chatfield any differently to her grandsons, he acknowledged that she is closer to him than most of his family whom he rarely sees.  He does not know her birthday.  Mr Vagg said that as a friend of Mrs Chatfield, he assists her by driving her to doctors’ appointments or to do the shopping.  He also assists her daughter Dianne and her grandson Michael, who live with Mrs Chatfield, for example by driving Dianne to the methadone clinic in the mornings or taking Michael to work. 

19.     Mr Vagg acknowledged that Dianne calls him “poppy” because she has known him all her life, her father having died when she was three. This may have been why she listed him as her step-father on documents lodged with Centrelink when he stayed with her for two nights in Wollongong.  He said it is also possible that Dianne’s children both see him as a grandparent.  Mr Vagg acknowledged that Michael calls him “poppy” but he said that that is the name by which he is commonly known, even in the bike club.  

20.     Mr Vagg said that it is his intention to move out of Mrs Chatfield’s house when he can afford to get his van back on the road.  When this happens, he does not intend to return. 

21.     When asked about the medical records from Shoalhaven District Memorial Hospital, Mr Vagg said he never went to the emergency department of Nowra Hospital at Christmas 2001 and he is sure he would remember if he had. The only time he has been in hospital was for a prostate operation when he was in Long Bay Gaol.  He thinks the Hospital must have mistaken him for John Vagg, whom he knows lives at Falls Creek, as they did this when he went to the Hospital to collect some results about his diabetes and was given John Vagg’s papers instead. 

22.     With regard to the prison records, Mr Vagg said he does not know how the prison got Mrs Chatfield’s name as his de facto, Dianne Chatfield as his step-daughter and Betty Spliet as his mother-in-law: someone at the prison always filled out the forms for him because he was “not good at forms”.   The prison records are wrong as he was never in Parklea.  He acknowledged that he did know a Darryl Stuart, but only barely.  It is possible that he told the prison Dianne Chatfield was a relative because she was in prison at the same time as him and the only way you could telephone another prisoner was by saying that you were related.  Mr Vagg acknowledged that Mrs Chatfield had visited him when he was in prison, but that was because Mrs Chatfield’s grandson Michael was in prison at the same time and she visited them both.   When asked about her name on the prison records, Mrs Chatfield said that she had no idea why Mr Vagg would have stated that she was his de facto.

23.     When asked about his car registration, Mr Vagg said that he has always used Mrs Chatfield’s address for this purpose because you have to provide a permanent address which he has never had because he moves around all the time.  He could not use his parents’ address, because they are both dead.   Mr Vagg said the SSAT “got it wrong” when they said that Mrs Chatfield had travelled around with him or lived with him in Melbourne.

24.     When asked about the delay in lodging her appeal, Mrs Chatfield said the delay was due to her ill health – she recently underwent surgery which was unsuccessful and is due to go into hospital for further surgery within the next few weeks – and because she cannot read or write, but can only sign her name.  Mrs Chatfield does not believe that she and Mr Vagg are being given “a fair go” because they are not a couple and go their separate ways.  She finds it very difficult to live on the age pension she is receiving, particularly because of her medical expenses.

Application of the Law and Findings

25. Section 4(2) sets out the conditions which if met will result in a person being treated as a “member of a couple” for the purposes of the Act. Where a person has a relationship with a person of the opposite sex and they are not legally married, the relationship must be “a marriage-like relationship”. In forming an opinion about whether a relationship is “marriage-like, section 4(3) provides that regard must be had to all the circumstances of the relationship including the matters set out in paragraphs (a) to (e) of the subsection, set out above. With this in mind, and having regard to the evidence, the Tribunal makes the following findings.

26.     The Tribunal finds that Mr Vagg and Mrs Chatfield have been friends for many years, meeting from time to time at various places around Australia where Mr Vagg was working and Mrs Chatfield was staying.  Approximately 15 years ago, Mr Vagg and Mrs Chatfield met again in Nowra, just before Mr Vagg was imprisoned for three years.    During Mr Vagg’s imprisonment, the friend with whom he was living died and Mr Vagg’s possessions were moved to Mrs Chatfield’s house because Mr Vagg’s friends knew that Mrs Chatfield was a caring person who would always help those in trouble.  Mrs Chatfield looked after his possessions until his release from prison and then obtained permission from the Housing Commission for him to reside with her. Mr Vagg has resided in Mrs Chatfield’s house on and off since that time but on a more permanent basis since 2002 when Mrs Chatfield first became ill.

27.     Mr Vagg and Mrs Chatfield both gave evidence that they each buy their own food, do their own cooking and washing and, clean up after themselves.  They have never had a sexual relationship and consider themselves to be just friends, albeit close friends, even though other people may assume they are a couple because of the number of years they have lived together.  Both Mr Vagg and Mrs Chatfield stated that they do things for each other and care for each other when they are not well, but they do this out of kindness and because this is how they were brought up and, especially, is a part of Mrs Chatfield’s cultural background.  They do not consider their relationship as “marriage-like”.

28.     While Ms Garcia, for the Respondent, submitted that intimacy does not have to be present in a marriage-like relationship, she submitted there are clearly emotional ties which take their relationship beyond friendship to one of a “marriage-like” relationship.  She submitted it was clear that, having lived together for such a long time,  they have a high regard for each other and Mr Vagg is very close to Mrs Chatfield’s daughter Dianne who looks up to him as a father-figure.  Ms Garcia also pointed to the numerous forms in evidence on which they have held themselves out as being a de facto couple.  On this basis, the Respondent still contends that as at 21 March 2002, Mr Vagg and Mrs Chatfield were living in a marriage-like relationship.  

29.     The Tribunal is not persuaded by these arguments.  Mr Vagg and Mrs Chatfield are certainly friends and are very considerate of one another.  However, this is as a result of their upbringing and, to some degree, their age.   Whilst they are comfortable with their arrangements, the Tribunal accepts Mr Vagg’s evidence that if he could afford to fix his van and recommence his touring, then he would move out and Mrs Chatfield would not prevent him doing so.  The Tribunal also accepts Mr Vagg’s evidence that the application form for a carer’s pension was completed by a Centrelink officer and not by Mr Vagg and that he did not tell the officer he was in a relationship with Mrs Chatfield.

30.     As stated above, Mr Vagg and Mrs Chatfield are mature people who share Mrs Chatfield’s house because of the advantages this offers, in particular to Mrs Chatfield because of her ill health and to Mr Vagg as he had no where else to live upon his release from prison.  However, they are “quite independent of each other” (Re Needer and Secretary, Department of Social Security (AAT 8648, 12 March 1993)) which is how they wish to be, as Mrs Chatfield stressed.   They do not hold themselves out as being a couple.

31. In the Tribunal’s opinion, their relationship does not meet the indicia in s 4(3) of being a marriage-like relationship. In particular, the Tribunal finds no evidence of joint ownership of property, the pooling of resources or any legal obligation to one another (paragraph (a)), they have separate bedrooms and essentially each looks after their own needs (paragraph (b)), they do not hold themselves out as being in a relationship or engage in social activities (paragraph (c)), and there is no sexual relationship between the parties (paragraph (d)). While they have known each other for a long time, and provide support for one another, each denies any long term commitment and neither sees their relationship as “marriage-like” (paragraph (e)). The Tribunal finds that Mr Vagg and Mrs Chatfield’s relationship is not “marriage-like” and they are not “members of a couple”. It therefore sets aside the decision under review and remits the matter to the Respondent with a direction to this effect.

I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RP Handley, Deputy President

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

Date/s of Hearing  25 June 2004
Date of Decision  9 July 2004     
Representative for the Applicants    Self-represented
Representative for the Respondent  Ms A Garcia, Advocate