Walters and Secretary, Department of Family and Community Services
[2006] AATA 8
•9 January 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 8
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2004/888
GENERAL ADMINISTRATIVE DIVISION
Re: LEANNE WALTERS
Applicant
And: SECRETARY,
DEPARTMENT OF FAMILY ANDCOMMUNITY SERVICES
Respondent
DECISION
Tribunal: Regina Perton, Member
Date: 9 January 2006
Place: Melbourne
Decision:The Tribunal affirms the decision under review.
(sgd) Regina Perton
Member
SOCIAL SECURITY – sole parent pension - member of a couple – marriage-like relationship – debt to Commonwealth – write off of debt – waiver of debt – special circumstances – decision affirmed
Social Security Act 1991 ss 4(2), 4(3), 24(2), 249, 1236, 1237, 1237AAD
REASONS FOR DECISION
9 January 2006 Regina Perton, Member
1. Over a decade ago, the Department of Social Security (DSS) determined that Leanne Walters had received sole parent pension payments to which she was not entitled. On 5 May 1994, Ms Walters incurred a recoverable debt of $24,504.80 to the Commonwealth being payments for the period between 5 December 1991 and 21 April 1994 (the relevant period). DSS determined that Ms Walters was living in a de facto relationship during that time rather than as a sole parent.
2. Ms Walters did not seek review of the DSS decision until mid 2003. Centrelink now administers pensions on behalf of the successor agency to DSS, the Department of Family and Community Services. On 19 February 2004, an authorised review officer (ARO) of Centrelink affirmed the original decision. On 25 March 2004, Ms Walters sought review from the Social Security Appeals Tribunal (SSAT). The SSAT affirmed the decision on 7 June 2004.
3. An application for review was lodged with the Tribunal on 30 July 2004. The application was out of time but Centrelink consented to an extension of time for lodgement of the application. Ms Walters was assisted by Victoria Legal Aid in her application.
4. Before the SSAT, Ms Walters admitted that she was not entitled to payment of the sole parent pension during the relevant period but sought waiver of the debt. Ms Walters’ solicitors provided this Tribunal with a signed witness statement on 24 January 2005 in which Ms Walters conceded that she was in a de facto relationship during the relevant period but sought waiver of the debt due to special circumstances. However, before the start of the hearing, Ms Walters’ counsel, Ms Di Rasheva, advised the Tribunal that her client had instructed that she now believed that the relationship should not have been categorised as marriage-like and therefore she should not have a debt to the Commonwealth.
5. The Tribunal must consider whether Ms Walters has incurred a debt to the Commonwealth. To do that, it must consider whether Ms Walters was in a marriage‑like relationship during the relevant period. If it finds that she does have a debt, the Tribunal will then need to consider whether the debt should be written off or waived on the basis of special circumstances.
EVIDENCE
6. In a signed statement received by the Tribunal on 24 January 2005, Ms Walters acknowledged that she had provided a statement to Centrelink in September 1994 in which she admitted that she was in a de facto relationship with Peter Crocker, who is the father of her child, Damien. She stated that her former partner, Peter Crocker, made me rip off the system. She indicated that Mr Crocker subjected her to ongoing verbal and psychological abuse and had instructed her to claim sole parent pension. She stated that she knew she was not entitled to sole parent pension while living with him but nonetheless signed the documents at his request. She stated that she did not have the physical or mental stamina to remove herself from the relationship during that time. She described herself as being dependent on Mr Crocker and that he controlled most facets of her life. This included control of finances, correspondence with Centrelink and her social life. Ms Walters stated that Mr Crocker had forced her into a sexual relationship in the first two years of their cohabitation, they slept in separate bedrooms throughout the period. She stated that they had separate bank accounts but that Mr Crocker controlled hers due to her illness. Ms Walters stated that she was unable to get help from her family as her mother was a good friend of Mr Crocker. She has been estranged from her siblings since 1994.
7. Ms Walters indicated that she suffered from epilepsy until 1998. She experienced double vision and dizziness due to her epilepsy and medication during the period she lived with Mr Crocker as well as weekly seizures. She stated that following successful surgery in 1998, her epilepsy is now controlled and she has not had any seizures for six years
8. In oral evidence, Ms Walters told the Tribunal that she is presently living in Rye with Peter Crocker, the same person with whom she was sharing accommodation during the period in which she incurred the debt. She said that she and Mr Crocker are not in a relationship. She said that she is living in his home so she can be with their son, Damien Crocker, who was born on 14 January 1991. Ms Walters initially stated that for the first two years of Damien’s life, she was in a de facto relationship with Mr Crocker. In relation to financial matters during that two year period, Ms Walters said that Mr Crocker paid for the rent, food, telephone bills and similar expenses. If she needed money, Ms Walters would ask Mr Crocker who controlled their finances. Ms Walters said that she had ended the relationship with Mr Crocker as he was a domineering and controlling person. She said that they slept in separate rooms and that there was no sexual relationship between them after that first two years. She continued living in the same house as Mr Crocker during the entire period that the debt accumulated. She said that Mr Crocker paid the general household bills whilst they were in the same residence but she paid food bills. Mr Crocker undertook maintenance around the house while Ms Walters cleaned the house.
9. Ms Walters stated that she thought that her situation could be described as that of a sole parent once the sexual relationship with Mr Crocker ceased. Ms Walters’ counsel referred her to various documents she signed under her then name of Lee Ingram in 1991 concerning her sole parent pension in the period preceding the relevant period (T3 – T8). Ms Walters agreed that it was her signature on the documents but said that the handwriting on the forms was not hers. She said that she had signed various documents at the insistence of Mr Crocker. She said that she had been quite ill and did not really know what she was doing when she signed the documents. Ms Walters also could not explain why a Mr J Alexandrou was named as being a resident landlord to whom she stated she paid rent from May 1991 for premises in Oakleigh (T6). She had a similar response to a question as to why she had signed a statement on 3 January 1992 in which she indicated that she had moved to an address in Rye along with Mr Alexandrou to whom she paid rent whilst he met other bills. She said that she and Mr Crocker had been paying rent to an estate agent and that there was no one else living in the house in Oakleigh or Rye except Mr Crocker, herself and her son. She said that she, Mr Crocker and their son Damien had not shared any of their homes with anyone else. She lived in the same home as Mr Crocker until 2003 when she moved to a refuge for some months and also shared with friends for a time. After her move to the refuge, Damien wanted to return to his father and did so. She said that she had only moved back in with Mr Crocker so that she could be with Damien.
10. Ms Walters could not provide an explanation of why she had made a statement on 12 April 1991 to DSS that she did not know who the father of her child was (T5). Ms Walters stated that her memories of what happened around that time are not very clear. She stated that the major surgery in 1998 was successful in that she no longer suffers from epilepsy. She stated that the operation has affected her memory of events preceding the surgery. She said that her personality and attitudes have changed dramatically for the better since the surgery.
11. Under cross-examination, Ms Walters was again referred to her application for sole parent pension completed on 11 March 1991 (T3). In that form, she had written that she was living in Carnegie with a Peter Stevens. She stated that she had been sharing accommodation with Peter Crocker at that time and was unable to explain why the name Peter Stevens had been written on the form. Ms Walters said that she could not recall the details of the forms that she filled out or conversations with DSS staff at that time. She reiterated that she had done what Mr Crocker had told her to do when completing forms despite knowing that the information provided was wrong. She indicated that she had known all along that Mr Crocker was Damien’s father despite her statement to DSS on 12 April 1991 that she did not know who the father was (T5). She said that Mr Crocker had invented the story that Damien’s father was a person whose name she did not know whom she had met at a friend’s place in Wangaratta. Ms Walters said that she could not recall why she had given wrong answers about the rent she paid or whose house she was living in when completing a Sole Parent’s Review Form on 7 June 1991.
12. Ms Crocker said that she could recall receiving letters about sole parent pension from DSS during the relevant period but cannot remember whether she read them or what information the letters contained. Ms Walters was referred to a statement she made on 3 January 1992 witnessed by a DSS officer (T8). In that statement, she stated that she had moved address and that Mr Alexandrou had also moved with her. She also stated that she paid Mr Alexandrou $400 rent per month. Ms Walters stated that the information in that statement about the rent she paid and the statement that she shared her property with Mr Alexandrou were not true. Ms Walters also acknowledged that the contents of a statement dated 8 January 1992 (T10) in which she claimed rent assistance on the basis of living alone with her son at that date was also incorrect. She indicated that she knowingly included incorrect information in that statement. She said that she was living with Mr Crocker at the time but they were not in a de facto relationship as they led separate lives despite living under the same roof.
13. Ms Walters was referred to the notes of DSS field officers who met with her in April and May 1992 (T26-T28). She conceded that she had described herself as married to Mr Crocker to the landlord’s estate agent but said that it was only done to ensure that they were able to rent the house. Ms Walters was referred to a statement she made on 5 April 1994 at her home before a DSS field officer (T24). In that statement, she stated that she had been living in a marriage-like relationship with Mr Crocker since early November 1991 and that she was aware that she had not been entitled to a sole parent pension since 23 November 1991. She indicated that she was surrendering that pension from 5 April 1994. Ms Walters said that the DSS officer was very abusive and she felt forced to sign the statement as she was scared of him. She said that she had done the wrong thing because Peter Crocker controlled her. When asked why she claimed to be married to Mr Crocker in a Partner Details form on 11 April 1994, Ms Walters stated that she had done so as that was all she could claim for at the time was a wife’s disability support pension.
14. Ms Walters was referred to the DSS Prosecution Report dated 2 November 1995 (T46) which indicated that she had pleaded guilty in the Magistrates’ Court to a charge of knowingly obtaining payment of a pension which was not payable. She said that she had pleaded guilty as she knew that she had done the wrong thing in making fraudulent statements.
15. When asked by Mr Perdon about her relationship with Mr Crocker, Ms Walters said that she had first met him in 1987. She said that she does not have a driver’s licence and that Mr Crocker drives her if asked. She said that they have never had joint bank accounts nor do they have wills. She said that she had her own bed, television, clothes etc and purchased their food. Mr Crocker owned the computer, stereo and other items. She said that others do not consider them a couple. She said that she does not socialise with Mr Crocker who is involved in a number of local community organisations. She said that he has the main parenting role of their son.
16. Mr Perdon questioned Ms Walters about details of her life over the past few years referring to a medical report prepared by senior medical staff of the Austin & Repatriation Medical Centre’s specialist epilepsy program (T59). The medical report indicated a significant improvement in Ms Walters’ health since her operation in 1998 and referred to the considerable impact that improvements in patients’ health can have on earlier personal relationships. The report also discussed her increased working capacity, new personal relationships she had developed and her increased competence in managing her own affairs. Ms Walters described whom she had lived with, the formation and subsequent break up of a relationship and the circumstances of her return to Mr Crocker’s home. She stated that she is now on a disability support pension. She also makes sculptures, including some of high profile people in Melbourne but stated that she had not gone commercial yet.
17. Centrelink provided the Tribunal and Ms Walters’ solicitors with written information about the social security benefits received by Mr Crocker during the relevant period. At the end of the hearing, Ms Rasheva requested and was granted the opportunity to provide further written submissions. However, no further submissions were received.
CONSIDERATION OF THE ISSUES
18. Section 4(2) of the Social Security Act 1991 (the Act) provides the criteria for a person to be considered as 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;
….
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.
19. Mr Perdon submitted that Ms Walter’s admissions in 1994 and 1995 that she was in a marriage-like relationship during the relevant period should be given greater weight than the more recent evidence. He cited her guilty plea before the court when prosecuted for knowingly wrongfully claiming the pension payment. Ms Walters’ solicitors in their written submission submitted that she was not a member of a couple during the relevant period. In the alternative, they submitted that the Tribunal should exercise the discretion allowed for under s 24 of the Act. Section 24(2) of the Act allows the Secretary (and the Tribunal) to not treat a person as a member of a couple where there is a special reason in the particular case.
20. In reaching its decision the Tribunal takes into account the written material, the oral evidence and the submissions made at the hearing.
21. In determining the nature of the relationship between Ms Walters and Mr Crocker, the Tribunal has regard to the criteria set out in s 4(3) of the Act and considers whether the applicant’s circumstances meet those criteria, as follows:
Financial aspects of the relationship
22. Ms Walters indicated that she and Mr Crocker had separate bank accounts. She stated that he controlled her bank account during the relevant period due to her illness. She indicated in oral evidence that Mr Crocker paid the rent and she paid for their food. In the documents provided to DSS during the relevant period, Ms Walters indicated she was paying rent for her accommodation to a landlord she later conceded was fictitious. The lease for the property in Rye where they lived from November 1991 was in Mr Crocker’s name with the agent/landlord being advised that they were a married couple.
Nature of the household
23. Throughout the entire relevant period, the household appears to have consisted of Ms Walters, Mr Crocker and their young son, Damien. In the claim forms provided to DSS, Ms Walters indicated at various times that she lived alone with her child or with a landlord by another name with whom she was not in a relationship. She later conceded that she had provided incorrect information and that the household was comprised of herself, Mr Crocker and Damien. Ms Walters has given varying accounts of the nature of the relationship with Mr Crocker. They have ranged from a de facto relationship for the entire period to the parties being independent of each other. The Tribunal accepts that Ms Walters may well have had her own room for some or all of the period. Ms Walters indicated that she undertook the cleaning of the premises in which they lived while Mr Crocker undertook its maintenance and any outside chores. Ms Walters stated that Mr Crocker was the primary caregiver to their son but it is not clear what the situation was during the relevant period. Ms Walters indicated that she was quite ill during much of the relevant period.
Social aspects of the relationship
24. As indicated earlier, Ms Walters has provided varying accounts of her relationship with Mr Crocker at different points of time. In her evidence to the Tribunal, she stated that she and Mr Crocker lived independent lives. Ms Walters indicated that she did not hold a driver’s licence and that Mr Crocker would drive her to places should she require it. Ms Walters indicated that Mr Crocker is prominent in their local community but that she does not go anywhere with him. She stated that people do not see them as a couple. The Tribunal is not in a position to assess what the social aspects of the relationship were in a period which is now between 10 and 14 years ago. Ms Walters indicated that her memory of that period is now poor, partly due to the impact of her operation. There was no independent and/or reliable evidence provided to the Tribunal about this criterion.
Any sexual relationship between the people
25. Ms Walters’ evidence has varied on this aspect over the years. Even before the Tribunal, her oral evidence varied from the sexual relationship lasting for some two years after they moved in together to no sexual contact at all after the birth of the child except occasionally under duress. Ms Walters gave evidence about her ill health and her separate bedroom. However, in late 1994 and 1995, she admitted to a de facto relationship for the entire relevant period and subsequently claimed to be Mr Crocker’s de facto partner receiving consequent social security benefits available to partners. With the effluxion of time, the inconsistent evidence provided by Ms Walters and the lack of any corroborating evidence, it is difficult for the Tribunal to assess this criterion.
The nature of the people’s commitment to each other
26. Ms Walters gave evidence that she met Mr Crocker in 1987. Damien was born in 1991 with Mr Crocker being his father. Ms Walters lived in the same household as Mr Crocker from 1991 until 2003. She lived away from him in a refuge and/or with others for a period of time but has now resumed sharing his home. It appears that she and Mr Crocker are no longer in a de facto relationship but that it is her desire to be close to her son, for whom Mr Crocker is the primary carer, that has prompted her return. Ms Walters gave statements to DSS soon after the relevant period in which she stated that she and Mr Crocker were de facto partners. She subsequently claimed social security benefits as his partner until May 2003 when she provided Centrelink with a Separation details form (T49). In that form, she stated that she and Mr Crocker separated permanently on 7 May 2003 because of verbal and emotional abuse.
27. The Tribunal agrees with Mr Perdon that Ms Walters has given inconsistent and contradictory evidence about the nature of her relationship over the years. In particular, her oral evidence is inconsistent with the documentary evidence provided by Centrelink in which she described herself as Mr Crocker’s partner. The Tribunal is satisfied that Ms Walters was aware of what she was doing when she made statements to DSS in 1994 and 1995 that she was in a de facto relationship. The Tribunal also gives weight to her guilty plea in the Magistrates’ Court when she was convicted of knowingly claiming a benefit to which she was not entitled. The Tribunal is satisfied that Ms Walters (or Miss Ingram as she was then known) was a member of a couple during the relevant period.
28. Ms Walters’ solicitors submitted that the Tribunal should exercise discretion pursuant to s 24(2) of the Act if she was found to be a member of a couple. That section allows a person who is in a marriage like relationship to be treated as if she/he were not a member of a couple. The Tribunal is not satisfied that there is a sound basis for it to exercise its discretion for a special reason in a particular case. Ms Walters, knowingly, over a period of years and on several occasions, provided incorrect information to DSS. This included deliberately providing incorrect information about whom she shared a house with and the rent she was paying. She gave false information about the identity of her child’s father. She pleaded guilty in the Magistrates Court and obtained a penalty for doing so. The Tribunal accepts that Ms Walters may well have been in a difficult relationship and that she was suffering from an illness. However, the Tribunal is not satisfied that it should exercise its discretion pursuant to s 24 of the Act.
29. During the relevant period, s 249 of the Act set out the qualifications for sole parent pension. A person who was a member of a couple was not entitled to such a payment. Hence, Ms Walters was not entitled to the sole parent pension. The Tribunal is satisfied that a debt to the Commonwealth was correctly raised.
30. Ms Walters’ solicitors submitted that if the Tribunal found that the debt was correctly raised, it should either waive the debt pursuant to s 1237AAD of the Act or write it off pursuant to s 1236.
31. Section 1236 of the Act provides for a write‑off of the debt in certain limited circumstances, namely if it is irrecoverable at law, the debtor has no capacity to repay the debt, the debtor’s whereabouts are unknown or it is not cost effective for the Commonwealth to take action to recover the debt. s 1236(1C), the subsection cited by Ms Walters’ solicitors, states where a debt is recoverable by means of deductions from a debtor’s social security payment, the debtor is taken to have a capacity to repay the debt unless recovery by those means would result in the debtor being in severe financial hardship. Ms Walters is currently receiving a social security benefit. She is living in Mr Crocker’s house and is not paying rent. Her son is primarily being cared for by her father. Her health has improved and she has developed skills that she may be able to use for additional income in due course. Deductions of $25.00 per fortnight were being made from her social security benefit with $11,059.66 having been recovered from the total debt as at 13 December 2004. She has not provided evidence to show that recovery of the debt by ongoing deductions will result in severe financial hardship. Therefore, the Tribunal is not satisfied that it is appropriate to write‑off the debt.
32. Section 1237 and the sections immediately following it set out the circumstances in which the debt may be waived. Unless a debt arises solely out of an administrative error by the respondent resulting in an overpayment (s 1237A(1)), or a debt is less than $200 and is not recoverable from social security benefits and the cost of retrieval outweighs the debt (s 1237AAA), or in certain other limited circumstances (also not applicable to the applicant), there is no discretion to waive a debt, unless s 1237AAD applies.
33. Section 1237AAD of the Act provides for waiver of the debt in certain other circumstances:
1237AAD. The Secretary may waive the right to recover all or part of a debt if the Secretary is satisfied that:
(a)the debt did not result wholly or partly from the debtor or another person knowingly:
(i) making a false statement or false representation; or
(ii)failing or omitting to comply with a provision of this Act or the 1947 Act; and
(b)there are special circumstances (other than financial hardship alone) that make it desirable to waive; and
(c)it is more appropriate to waive than to write off the debt or part of the debt.
34. Waiver of a debt due to special circumstances is not available where the debt arose as the result of the debtor knowingly making a false statement. In this case, Ms Walters has acknowledged that she made false statements to obtain sole parent pension. These included, amongst other things, statement as to whom she lived with and the rent she paid for the accommodation. She has also been convicted of a breach of the Act. Her personal circumstances, including her illness, cannot be considered to be mitigating circumstances. The Tribunal finds that Ms Walters does not meet the criteria set out in s 1237AAD(a) of the Act. Therefore, the Tribunal is unable to find that there are special circumstances as s 1237AAD(a) is a precursor that must be met before the special circumstances provisions can be invoked.
35. The Tribunal finds that Ms Walters owes a debt to the Commonwealth of $25,504.80 being payment of sole parent pension for the period 5 December 1991 to 21 April 1994. The Tribunal notes that more than half of that amount has already been repaid.
DECISION
36. The Tribunal affirms the decision under review.
I certify that the thirty-six [36] preceding paragraphs are a true copy of the reasons for the decision of:
Regina Perton, Member
(sgd) Angela Dennis
Clerk
Dates of hearing: 27 January 2005, 3 March 2005
Date of decision: 9 January 2006
Counsel for the applicant: Ms D Rasheva
Solicitors for the applicant: Victoria Legal Aid
Advocate for the respondent: Mr D Perdon, Centrelink
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