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

Vo and Secretary, Department of Social Services (Social services second review) [2019] AATA 2341 (2 August 2019)
Division:GENERAL DIVISION
File Number: 2018/6422
Re:Mr Muoi Van Vo
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:The Hon. R Baldwin, Member
Date: 2 August 2019
Place:Sydney

The Tribunal affirms the decision that Mr Vo was living as a member of a couple for the purposes of the Social Security Act 1991 (Cth) at the relevant date of 19 June 2018.
.............................[sgd]...........................................
The Hon. R Baldwin, Member
Catchwords
SOCIAL SECURITY – whether applicant was a member of a couple at the relevant date – whether applicant is separated under one roof with former partner – whether there is a special reason why the applicant should not be treated as a member of a couple – decision affirmed
Legislation
Social Security Act 1991 (Cth) – s 4
Cases
Anderson and Secretary, Department of Social Services [1993] AATA 173
Burkett and Burkett and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 131
Hartley and Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 470
Hawkins and Secretary, Department of Social Security (1996) 44 ALD 651
Holt and the Secretary, Department of Education, Employment & Workplace Relations [2010] AATA 143
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
Secretary, Department of Family and Community Services and VHB and Anor [2006] AATA 1
Sperring and Secretary, Department of Employment and Workplace Relations [2007] AATA 1050
Staunton-Smith v Secretary, Department of Social Security [1991] FCA 513
Secondary Materials
Guide to Social Security Law
REASONS FOR DECISION
The Hon. R Baldwin, Member
2 August 2019
DECISION UNDER REVIEW

The decision under review was made by the Administrative Appeals Tribunal (Social Services & Child Support Division) (AAT1) on 22 October 2018.
In that decision, the AAT1 affirmed the original decision made by the Department of Human Services (the Department) on 21 June 2018, as affirmed by an Authorised Review Officer (ARO) on 25 July 2018, that the applicant, Mr Muoi Van Vo (Mr Vo) was a member of a couple with Thi Nhu Ha Nguyen (Ms Nguyen) for the purposes of the social security law. Subsequently on 1 November 2018, Mr Vo lodged an application to this division of the Tribunal for a review of that decision.[1]
[1] T1, pp.1-2
THE ISSUE TO BE DECIDED
The issue to be decided in this application is whether the applicant was a member of a couple as defined in subsection 4(2) of the Social Security Act 1991 (the Act) as at 19 June 2018.
FACTS
Mr Vo is aged 60 years. On 15 June 1994, Mr Vo commenced a de facto relationship with Ms Nguyen.[2] Mr Vo and Ms Nguyen have a daughter, Natalie (Daughter) born in 1994.
[2] T1, p.13
Mr Vo and Ms Nguyen never married and claim to have been separated since December 2015.[3]
[3] T6, p.56
On 8 February 2018 Mr Vo lodged a claim for Disability Support Pension (DSP) which was rejected on 10 July 2018 as Mr Vo was found to not be medically eligible for DSP.
On 8 February 2018 Mr Vo lodged a claim for Newstart Allowance (NSA).[4] Despite the Department seeking further information from Mr Vo to enable his NSA claim to be assessed, nothing was received.[5]
[4] T4, pp. 30-35
[5] T15, p.145
On 19 June 2018 the Department determined that Mr Vo and Ms Nguyen were living as members of a couple.[6] On 1 September 2018 Mr Vo’s claim for NSA was rejected.
[6] T9, p.104
Mr Vo attended the hearing without representation; assisted by a Vietnamese interpreter.
LEGISLATION
The relevant legislation is the Social Security Act 1991.
The part of the Act to be applied for determining whether a person is a “member of a couple” is section 4, namely subsections 4(2),4 (3), 4(3A), 4(6) and 4(6A).
The relevant policy for determining if a person is a member of a couple is found in the Guide to Social Security Law.[7] As outlined in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, the Guide should be applied by the Tribunal unless there are cogent reasons to depart from it.
[7] Accessible from: >
Subsection 4(2) of the Act provides the definition of ‘member of a couple’ (for social security purposes). Relevantly, paragraph (2)(b) states:
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:
…….

(b) all of the following conditions are met:
(i)     the person has a relationship with another person, whether of the same sex or a different sex (in this paragraph called the partner);
(ii)    the person is not legally married to the partner;
(iii)    the relationship between the person and the partner is, in the Secretary’s opinion (formed as mentioned in subsections (3) and (3A)), a de facto relationship;
(iv)   both the person and the partner are over the age of consent applicable in the State or Territory in which they live;
(v)    the person and the partner are not within a prohibited relationship.
Subsection 4(3) of the Act sets out the criteria for forming an opinion about a relationship, and provides:
(3) In forming an opinion about the relationship between 2 people for the purposes of ... 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.
Subsection 4(3A) of the Act further states:
(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.
In examining each of the criteria set out in subsection 4(3) of the Act, for the purposes of determining the status of Mr Vo & Ms Nguyen the evidence shows as follows.
The “financial aspects” of the relationship between Mr Vo and Ms Nguyen, under subsection 4(3)(a)
In April 1999, Mr Vo and Ms Nguyen purchased a property at Dee Why (Dee Why property) as tenants in common with 90% apportioned to Mr Vo, and 10% to Ms Nguyen.[8]
[8] Annexure D to Respondent’s Statement of Facts, Issues and Contentions dated 27 May 2019
In March 2002, Mr Vo and Ms Nguyen purchased and moved into a property at Dundas (Dundas property), as joint tenants.[9]
[9] Ibid, Annexure C
Mr Vo & Ms Nguyen had a joint (with 50% ownership each) National Australia Bank (NAB) account, noting that the date of closure, 26 October 2018,[10] was well after the date of separation (1 December 2015) and the relevant date of the decision on 19 June 2018, the date at which the Tribunal has to determine if Mr Vo and Ms Nguyen were a member of a couple.
[10] Exhibit R2
At the relevant date the NAB account showed monthly credits from “The Novak Agency”.[11] These are understood to represent rental income from the Dee Why property.[12]
[11] T15, pp. 148-162
[12] T8, pp. 89-90
Mr Vo provided a Part VIIIAB Financial Agreement under section 90UD of the Family Law Act 1975, signed on 29 October 2018, well after the relevant date.[13]It is noted in the property title searches included at Annexures C and D of the Respondent’s written submissions that no action has been taken to register the changes reflected in that agreement to Land Registry Services in relation to the properties.
[13] Exhibit A1
Mr Vo agreed that as at 9 April 2019 there had been no change to the land title ownership as per the Land Registry Services title search but stated that he was now getting financial help from family in Vietnam to facilitate him making the changes to the Title.
Despite the Family Law Agreement, there was no indication that Mr Vo and Ms Nguyen have any intention to separate their jointly held financial assets.
The Tribunal agrees with the Secretary’s contention that it is significant that on the relevant date the Dundas property, Mr Vo and Ms Nguyen’s most significant asset, was jointly owned in such a manner that if either of them unexpectedly passed away the survivor would have been the sole owner of the property. An analogous situation was addressed by the Tribunal in Hartley and Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 470 at [46], as follows:
I consider that the evidence supports a finding that at the relevant date Mr and Mrs Hartley had taken few steps to arrange their financial affairs separately. A major consideration, in my view, is in relation to the home and the investment property. It is highly relevant in considering the nature of a relationship that the largest asset of the parties – the family home – was a property held as joint tenants. While ever they were joint tenants of that property, had either unexpectedly passed away, the survivor would have been the sole owner of that property. I acknowledge that neither Mr nor Mrs Hartley may have been able to afford to buy the other’s share of the family home, but the joint tenancy could have been dissolved.
At the hearing when Mr Vo was asked why he didn’t move into the Dee Why property following his separation from Ms Nguyen, his response was that his daughter was injured at the time, and that he had no money to move out and live alone. He also stated that the rental income from the Dee Why property went into their joint account at that time and was not his alone.
Mr Vo and Ms Nguyen continued the sharing of household expenses such as their Health Insurance Policy and Joint Home Insurance Policy as evidenced in a Separated Under One Roof (SUOR) form completed by Ms Nguyen on 13 April 2018.[14]
[14] T19, pp.192-202
In a SUOR form dated 4 April 2018, Mr Vo stated that he was responsible for payment of council rates, water rates, phone bills and electricity rates; that there was a joint bank account; and that while he splits the cost of food and housekeeping items with Ms Nguyen, she is responsible for the grocery shopping.[15]
[15] T6, pp. 57, 62, 63.
The SUOR form also notes that the parties share joint private medical insurance, and that this is paid for by Ms Nguyen.[16]
[16] Ibid, p.64. Mr Vo contributes “some money” to the cost: see T19 p. 199.
The Tribunal has taken into consideration the meaning of “pooling of financial resources” as was considered by the Federal Court in Pelka v Secretary, Department of Family and Community Services [2006] FCA 735, which stated at [52]:
A relevant constructional question which arises under the first ground is the meaning of the term ‘pooling of financial resources’ in s 4(3)(a)(ii). The ordinary meaning of the word ‘pool’ in this context is set out in the New Shorter Oxford English Dictionary thus:
‘Put resources into a common stock or fund; share in common, combine for the common benefit.’
This, in my opinion, is the sense in which the noun ‘pooling’ is used in s 4(3)(a)(ii). It plainly involves something more than financial cooperation or separate contributions to different elements of household expense.”
The Tribunal also considers the decision in Burkett and Burkett and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 131 which said at [33]:
As can be seen, the financial arrangements between Ms Burkett and Mr Lavender are not entirely separate; there is some pooling of resources and income, most notably in respect of the joint household and arrangements in which they share, and from which they and their respective children benefit. Arrangements of this kind are not unusual, uncommon or out of the ordinary course.
Mr Vo stated in his SUOR form that he is not sure how long he intends to live at the same address as Ms Nguyen but continues to live there for financial reasons. It is clear Mr Vo and Ms Nguyen continue to benefit financially from sharing expenses as a joint household.
There is no evidence of any joint liabilities held by Mr Vo and Ms Nguyen.
The “nature of the household aspects” of the relationship under subsection 4(3)(b) between Mr Vo and Ms Nguyen
Mr Vo, Ms Nguyen and their daughter continue to reside under the one roof at the Dundas property at which they have resided since 1999. This living situation has not changed other than Mr Vo now sleeping in a separate bedroom.
Whilst Mr Vo & Ms Nguyen have separate sleeping arrangements at the Dundas property, this does not necessarily result in two persons not being in a “member of a couple” relationship. So much was found by the Tribunal in Anderson and Secretary, Department of Social Services [1993] AATA 173, where it stated:
Though the living arrangements of the parties emphasised the fact that they had no close or personal relationship, especially the use of separate bedrooms and refrigerators, there was nevertheless a sense that the house provided a facility for keeping the four persons in some kind of family relationship. It is apparent that though the applicant and Mr Anderson in many respects maintained independent existences, such as eating at different times and places, this was to some extent the result of convenience (such as Mr Anderson eating at his place of work) and also their different working times. So far as responsibility for housework was concerned, though there was no formal arrangement with distribution, there was an acceptance of some degree of responsibility...
Their schedule of chores is not very different from any other couple, when providing oral evidence Mr Vo’s restated his SUOR form noting that responsibility for household tasks are as follows: Mr Vo attends to gardening and general maintenance and Ms Nguyen attends to the food shopping, cleaning and washing.[17]
The “social aspects of the relationship” under subsection 4(3)(c) of the relationship between Mr Vo and Ms Nguyen
[17] T6, p.63
The perceived relationship between Mr Vo and Ms Nguyen has not significantly changed at any time since 1994. In oral evidence, the Daughter said Mr Vo does not and has not in the past socialised with Ms Nguyen’s family. Ms Nguyen & her daughter undertake visits to Ms Nguyen’s family separately.
There is no evidence of a broader social relationship between Mr Vo and Ms Nguyen existing before their relationship ended in 2015 despite their shared home.
There has been no public declaration of the separation of the de facto relationship. In fact, Mr Vo stated “cultural issues prevent him making it common knowledge within his community.”[18]
[18] T14, p. 118
The Daughter said that Mr Vo and Ms Nguyen, as far as she could remember, regularly went overseas separately. This is evidenced by the Travel Outside Australia Summary showing most overseas travel being undertaken separately during the period of 1994 – 2015.[19]
[19] Exhibit R1
Mr Vo has five siblings, two of which are overseas, which Mr Vo has visited separately. Mr Vo said that they have been helping him financially for the past two years.
The “sexual relationship between the people” under subsection 4(3)(d) of the relationship between Mr Vo and Ms Nguyen
Mr Vo contends that for medical reasons there has been no sexual relationship between himself and Ms Nguyen since 2015. The Respondent accepts this to be the case and this issue is not contested.
The “nature of the people’s commitment to each other” under subsection 4(3)(e) of the relationship between Mr Vo and Ms Nguyen
In a Statutory Declaration dated 29 October 2018, Mr Vo stated “In my opinion, there is no reasonable likelihood of cohabitation being resumed.”’[20] In his SUOR form “he was not sure whether there is any possibility of reconciliation with Ms Nguyen”.[21]
[20] T1, p. 5
[21] T6, pp. 55-66
Mr Vo said he was not seeing other people, that he had not had a relationship since separation as “I have no money, I have been sick” but believed Ms Nguyen was. He stated that Ms Nguyen did not bring her “friend” to the house. In oral evidence, the Daughter could not confirm if Ms Nguyen was seeing another person. She said Ms Nguyen and Mr Vo had always maintained separate social lives.
Mr Vo states that he and Ms Nguyen “are not friends” and that they are “only polite to each other – more like enemies”.[22] In a further letter of 19 September 2018, Mr Vo states that since separating with Ms Nguyen there is “no talk, no meals, no dinners together, in last 3 years”.[23]
[22] T14, p.122
[23] T16, p.164
The Daughter gave evidence that whilst Mr Vo and Ms Nguyen live apart under one roof, they are still cordial to each other in the household. She stated whilst they eat separate meals, her father in the lounge, her mother at the table, they still had a family dinner earlier this year where they were civil to each other.
In Pelka, the Full Federal Court commented on what regard the decision maker should have to the nature of two person’s commitment to each other for the purposes of determining whether or not the persons were members of a couple. The Court stated at [30]:
The matter to which s 4(3) of the Social Security Act requires a relevant decision maker to have regard is the nature of the commitment of two people to each other. That regard is to include, in particular, four specific matters. Clearly, the Tribunal had regard to those four specific matters in terms. The essential requirement of the provision, however, is that the decision maker must have regard to the nature of the commitment of two people to each other. It is clearly relevant to that matter to have regard to the fact that a commitment that each of those persons has to each other is different from the commitment that each person has to any other person. Overall, there is no evidence of any substantial contrast in the relationship between the parties before and after the alleged separation in December 2015.
In Secretary, Department of Family and Community Services and VHB and Anor [2006] AATA 1, the Tribunal held at [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.

Similarly, in Hartley and Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 470, the Tribunal held:
The issue of how two cohabitating persons view their relationship, based on their mutual or individual perceptions of what constitutes a “marriage-like relationship”, is not determinative.
The Secretary contends and the Tribunal agrees that Mr Vo did not formally notify the Department that he was separated under one roof with Ms Nguyen until 5 April 2018, which is after his February 2018 claims for NSA and DSP, and over two years since the relationship purportedly broke down.
Importantly, this view was supported by the Daughter when she said she was not aware that her father and mother were separated in 2015.
The Tribunal in considering whether the de facto relationship exists follows the advice set out in Official Trustee on behalf of Jennie Martyniak and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 5, where the Tribunal noted as follows at [64]:
What must be considered is not only whether the parties live separately, in physical terms, albeit under one roof, but also whether their de facto relationship (the consortium vitae) has broken down. These are matters of fact and degree.
The Tribunal and Federal Court have summarised the application of subsection 4(3) of the Act on numerous occasions. In Staunton-Smith v Secretary, Department of Social Security [1991] FCA 513, O’Loughlin J noted:
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.
The Tribunal in Sperring and Secretary, Department of Employment and Workplace Relations [2007] AATA 1050 also made reference to the criteria in subsection 4(3) at [70]:
Determining whether a relationship is ‘marriage-like’ is a difficult task. The assessment is made somewhat easier by the common sense criteria identified in the legislation, as addressed above. As observed in Cullinane (where there was found to be a marriage-like relationship) being a member of a couple involves a lot more than sharing a common address. However, all the criteria need not be satisfied. In fact, one may satisfy few of them but still be considered to be a member of a couple. All of the circumstances need to be considered. Each matter is different.
In Pelka v Secretary, Department of Family and Community Services [2006] FCA 735, the Federal Court also made mention of the test in subsection 4(3) and its application at [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.
The Tribunal considers that it can be objective when deciding whether a relationship has truly broken down or whether it continues along a well-established rocky path. The Tribunal must consider all of the factors as a whole and not in isolation in determining the status of the relationship. What may be apparent when viewed from the outside can be vastly different from those living in a relationship.
Based on all of the evidence before the Tribunal, in particular the evidence in relation to social and family engagement given by their daughter, the Tribunal finds that there is evidence of a relationship existing, the same in many respects to that prior to the “ending of the relationship” in December 2015.
IS THERE A SPECIAL REASON WHY MR VO SHOULD NOT BE TREATED AS A MEMBER OF A COUPLE?
Subsection 24(2) of the Act confers a discretion on the Secretary to determine in writing that a person who is in a de facto relationship with another person is not to be treated as a “member of a couple” for subsection 4(2) purposes, if the Secretary is satisfied that some “special reason” exists in that particular case. This justification was expanded in Hawkins and Secretary, Department of Social Security (1996) 44 ALD 651 (at 652) as follows:
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; but that there would have to be some special reason not to apply those expectations to members of other couples.
In Holt and the Secretary, Department of Education, Employment & Workplace Relations [2010] AATA 143 (at [29]-[30]), the Tribunal found that caution should be exercised about reliance on cases which deal with the meaning of “special circumstances”:
There has been a tendency in the cases to treat the expression ‘for a special reason in the particular case’ in section 24(1)(c) as being equivalent to the expression ‘special circumstances’ used elsewhere in the Act. Undoubtedly, both expressions - ‘special circumstances’ and the ‘special reason in the particular case’ – do grant a wide discretion to the decision-maker. Nonetheless, choice of a different expression when it could have been expected that another, well used expression of similar import would suffice, indicates a legislative intention to differentiate between the two. On that basis, some caution should be exercised about relying on the cases which deal with the meaning of ‘special circumstances’. The Tribunal notes that there appears to be a division of opinion in the cases as to whether the two expressions are equivalent, as is indicated in the Guide to Social Security Law at [24.05].
The Tribunal’s concern about eliding the two expressions is that a number of the cases and the Guide import a requirement that whatever the ‘special reason’, it must be ‘outside the couple’s or individual’s control and cannot be changed’. The quotation is taken from the Guide to Social Security Law (Guide) at 2.2.5.50, which relates to the discretion in section 24 to treat a person as not being a member of a couple for a special reason. This additional criterion would appear to have originated from the tests for ‘special circumstances’ which in two of the ‘special circumstances’ provisions in the Act contain a requirement that not only must there be ‘special circumstances’ but they must be ‘beyond the person's control’. No such criterion is written into the ‘special reason in the particular case’ provisions in the Act. For that reason, caution should be exercised about importing any such requirement.
The Tribunal finds that in examination of all of the evidence and observing previous rulings, there is no special reason why Mr Vo should not be treated as a member of a couple.
DECISION
Based on the evidence before the Tribunal, it is clear that Mr Vo and Ms Nguyen were not living separately and apart on a permanent basis. Accordingly, the exception under subsection 4(3A) of the Act does not apply.
Having regard to the evidence and each of the criteria under paragraphs 4(3)(a)-(e) of the Act, the Tribunal finds that on the balance of probabilities and on an objective test, that Mr Vo was a member of a couple with Ms Nguyen at the relevant date.
The Tribunal finds that no special reason exists as per subsection 24(2) of the Act that Mr Vo and Ms Nguyen are not to be treated as a “member of a couple” for the purposes of subsection 4(2).
On the basis of the evidence before the Tribunal and the reasons set out above, the Tribunal affirms the decision that Mr Vo and Ms Nguyen were living as members of a couple for the purposes of the Act at the relevant date of 19 June 2018.

I certify that the preceding 63 (sixty - three) paragraphs are a true copy of the reasons for the decision herein of The Hon. R Baldwin, Member

.............................[sgd]...........................................
Associate
Dated: 2 August 2019

Date of hearing: 2 July 2019

Applicant: In person

Advocate for the Respondent: Mr S Agnello

Solicitors for the Respondent: Department of Human Services

[2019] AATA 2341

2 August 2019

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Standing

Date of hearing:	2 July 2019
Applicant:	In person
Advocate for the Respondent:	Mr S Agnello
Solicitors for the Respondent:	Department of Human Services