Westcott and Secretary, Department of Social Services (Social services second review)
[2015] AATA 959
•11 December 2015
Westcott and Secretary, Department of Social Services (Social services second review) [2015] AATA 959 (11 December 2015)
Division
GENERAL DIVISION
File Number
2015/2867
Re
Lisa Westcott
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Senior Member A C Cotter
Date 11 December 2015 Place Brisbane The decision under review is affirmed.
.................................[Sgd].......................................
Senior Member A C Cotter
CATCHWORDS
SOCIAL SECURITY – Overpayment of Carer’s Pension – Pension paid at single rate – Whether applicant was a “member of a couple” at the relevant time – Failure to disclose relationship status – Evidence of marriage-like relationship - Decision under review affirmed.
LEGISLATION
Social Security Act 1991 (Cth) ss 1064, 4, 1223, 1236, 1237A, 1237AAD
CASES
Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164
Pelka v Secretary, Department of Family & Community Services (2006) 151 FCR 546
VBH and Anor and Secretary, Department of Family and Community Services (2006) 89 ALD 293
Phillip and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 135
Dewhurst and Secretary, Department of Education, Employment and Workplace Relations [2010] AATA 512
Secretary, Department of Social Security v Hales (1998) 82 FCR 154
Groth v Secretary, Department of Social Security (1995) 40 ALD 541
Angelakos v Secretary, Department of Employment and Workplace Relations (2007) 100 ALD 9
Dranichnikov v Centrelink (2003) 75 ALD 134
REASONS FOR DECISION
Senior Member A C Cotter
11 December 2015
INTRODUCTION
Ms Lisa Westcott has been in receipt of Carer Payment since February 2012, she being the full-time carer for her 90 year old war veteran mother.
In December 2013, Ms Westcott met Mr Robert MacKenzie. Their relationship developed over time to the point where, at some stage, they considered themselves partners.
There are varying accounts as to when Ms Westcott and Mr MacKenzie became partners. However, what is not disputed is that Ms Westcott gave the Department notification of the relationship in a Living Arrangements Form dated 18 November 2014.[1] In that form, she identified Mr MacKenzie as her former partner and confirmed that the relationship ended on that date; she was unsure as to whether there was a chance of reconciliation.
[1] Exhibit 1, T Documents, T 13, pages 88-91. Ms Westcott’s Living Arrangements Form dated 18 November 2014.
After making further inquiries and based on information provided by Mr MacKenzie, the Department raised a debt against Ms Westcott due to an overpayment of Carer Payment (she having been paid on the higher rate for a single person rather than on the partnered rate). The debt was calculated as $3,709.61, based on her and Mr MacKenzie having been partnered between 2 June 2014 and 3 November 2014.[2]
[2] Exhibit 1, T Documents T 19, page 157. Letter, Centrelink to Ms Westcott dated 3 December 2014.
Ms Westcott unsuccessfully sought a review of that decision by an Authorised Review Officer.[3] An application to the then Social Security Appeals Tribunal (“SSAT”) in March 2015 was similarly unsuccessful, with the Tribunal member finding that Ms Westcott had been a member of a couple with Mr MacKenzie since 2 June 2014, and continued to be so. The SSAT therefore decided that the debt was to be recalculated on that basis.[4] It was subsequently recalculated as $7,164.19, for the period 2 June 2014 to 10 August 2015.[5]
[3] Exhibit 1, T Documents, T 14, pages 93-98. Letter, Authorised Review Officer to Ms Westcott dated 5 March 2015.
[4] Exhibit 1, T Documents, T 2, pages 17-28. SSAT’s Decision and Reasons for Decision dated 1 June 2015.
[5] Exhibit 4, Attachment A, Secretary’s Statement of Facts and Contentions dated 29 September 2015.
Dissatisfied with the SSAT’s decision, Ms Westcott has sought a review by this Tribunal.
ISSUES FOR THE TRIBUNAL
Based on the material and the parties’ submissions, the issues for me to determine are as follows:
a.Whether Ms Westcott was a member of a couple with Mr Mackenzie as at 2 June 2014;
b.Whether Ms Westcott received amounts of Carer Payment to which she was not entitled; and
c.Whether there is a debt that must be repaid.
THE LEGISLATIVE FRAMEWORK
The rate of Carer Payment to which a person is entitled is calculated under s 1064 of the Social Security Act 1991 (Cth) (“Act”). Under that provision, a person’s relationship status is to be taken into account in determining their rate of payment. In effect, a person who is not a member of a couple is entitled to a higher maximum rate of payment than a partnered person.
So far as it is relevant, s 4 of the Act defines the term “member of a couple” as follows:
(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 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 (3) sets out the criteria for forming an opinion about a relationship. It relevantly provides:
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;
(iv) any sexual relationship between the people;
(v) the nature of the people’s commitment to each other, including:
(vi) the length of the relationship; and
(vii) the nature of any companionship and emotional support that the people provide to each other; and
(viii) whether the people consider that the relationship is likely to continue indefinitely; and
(ix) whether the people see their relationship as a marriage-like relationship or a de facto relationship.
Subsection (3A) goes on to provide:
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.
As O’Loughlin J observed in Staunton-Smith v Secretary, Department of Social Security, the list of considerations in subsection (3) is not exhaustive. Nor will each of them necessarily be considered in every case:
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.
It should, of course, be clearly understood that no Tribunal is required, in every case, to compile something in the nature of a checklist and then to proceed slavishly to comment on each item in the list. The personal circumstances of people vary substantially. The responsibility of the Tribunal is to extract from the evidence and other material that is before it those items of information that are properly classified as material to its deliberations.[6]
[6] (1991) 32 FCR 164, 170.
It has also been said that, when deciding whether or not a person is in a marriage-like relationship, regard must be had to their interpersonal relationship as a whole, not limited by the factors listed in s 4(3). The decision-maker must specifically consider the “total picture of the relationship created by all of those factors”.[7]
[7] See Pelka v Secretary, Department of Family & Community Services (2006) 151 FCR 546, 555, [46] (French J).
Although the criteria in s 4(3) have some subjective components, it is “overwhelmingly objective” in its nature and construct. As Senior Member Handley noted in VBH and Anor and Secretary, Department of Family and Community Services:
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.[8]
[8] (2006) 89 ALD 293, 310, [94].
CONSIDERATION
Having outlined the key legislative provisions, I return to the issues set out earlier.
Was Ms Westcott a member of a couple with Mr MacKenzie as at 2 June 2014?
I address this question by first considering the factors listed in s 4(3) of the Act, before looking at the totality of the relationship.
Before proceeding further, I note that Ms Westcott attended the hearing in person, accompanied by both her mother and Mr MacKenzie. After the Secretary’s representative outlined the Secretary’s position, I gave Ms Westcott the opportunity to give sworn or affirmed testimony. She declined, preferring instead to provide an unsworn and non-affirmed statement/submission. I asked her whether there were any factual errors in the SSAT’s published Decision and Reasons for Decision with which she took issue. She said there were not. Her main complaint was whether some of the matters inquired about were relevant, and the way in which some of the questions were asked of her. Ms Westcott did not call Mr MacKenzie to give evidence. At one point, late in the hearing, Mr MacKenzie asked whether he could say something. I indicated that, subject to hearing any objection which the Secretary’s representative might have, I was amenable to him providing sworn or affirmed evidence if he wished to; he declined.
I should also note at this point that Ms Westcott told me that she and Mr MacKenzie were married on 17 October this year. While that is important for context, my focus is on the period considered by the SSAT and which formed the basis for the recalculation of the debt, namely 2 June 2014 to 10 August 2015.
Financial aspects
Ms Westcott maintained that while she and Mr MacKenzie remained as friends during 2014, at no time did they have financial ties or pool their resources.[9] She told the SSAT that they had no shared financial arrangements and did not own anything jointly.[10] The rent on the leased premises at which she and her mother and daughter resided, at Commodore Drive, Paradise Waters (“Gold Coast residence”), was paid by contributions by each of them; Mr MacKenzie did not contribute at all to the rent.[11] Nor did Mr MacKenzie make any financial contribution towards the household expenses; when he stayed over, Ms Westcott paid for the food they ate.[12]
[9] Exhibit 5, Applicant’s document titled “A Brief History”.
[10] Exhibit 1, T Documents, T 2, page 19. SSAT’s Decision and Reasons for Decision, paragraph [10].
[11] Exhibit 1, T Documents, T 2, page 19. SSAT’s Decision and Reasons for Decision, paragraph [11].
[12] Exhibit 1, T Documents, T 2, page 19. SSAT’s Decision and Reasons for Decision, paragraph [12].
In contrast, Mr MacKenzie separately advised the Department, in the context of his own application of 21 October 2014 for Disability Support Pension (“DSP”), that his then current relationship status was “partnered”, which was noted to mean “living together in an opposite-sex or same-sex relationship, including de facto”.[13] He identified Ms Westcott as his partner and stated that they had started living together as members of a couple on 2 June 2014. He confirmed that he lived at the same address as his partner, which was given as the Gold Coast residence. The form also provided Ms Westcott’s Centrelink reference number and gave permission for her to discuss Mr MacKenzie’s payments with Centrelink.[14] Significantly, the application form was also signed by Ms Westcott (also on 21 October) as Mr MacKenzie’s partner.[15]
[13] Exhibit 2, Supplementary T Documents, S 10, page 42, Application for DSP dated 21 October 2014.
[14] Exhibit 2, Supplementary T Documents, S 10, pages 41, 42 and 43, Application for DSP dated 21 October 2014.
[15] Exhibit 2, Supplementary T Documents, S 10, page 65, Application for DSP dated 21 October 2014.
An income and assets form completed by Mr MacKenzie on 10 October 2014 in connection with his application for Newstart Allowance likewise identified Ms Westcott as his partner and gave her Centrelink reference number.[16] The form asked a series of questions about the financial circumstances of Mr MacKenzie “and/or your partner”. In response to one question, Mr MacKenzie estimated the current market value of his and/or his partner’s household contents and personal effects at $2,000.00, which they owned equally.[17] The form went on to list each of his and Ms Westcott’s respective motor vehicles[18] before listing their various bank accounts and relevant balances.[19] Again, that form was also signed by Ms Westcott as Mr MacKenzie’s partner.[20]
[16] Exhibit 2, Supplementary T Documents, S 8, page 14.
[17] Exhibit 2, Supplementary T Documents, S 8, page 15.
[18] Exhibit 2, Supplementary T Documents, S 8, page 16.
[19] Exhibit 2, Supplementary T Documents, S 8, page 17.
[20] Exhibit 2, Supplementary T Documents, S 8, page 29.
Another form, a real estate details form, also completed by Mr MacKenzie on 10 October 2014 in support of his Newstart Allowance application, listed a house that he owned at Boreen Point on the Sunshine Coast and which was rented out. That form was signed in two places by Ms Westcott as his partner (one providing an authority to inspect the property and the other verifying the information provided), even though the property listed was wholly owned by Mr MacKenzie.[21]
[21] Exhibit 2, Supplementary T Documents, S 7, pages 8-13.
For her part, Ms Westcott said she had no idea what household and personal items Mr MacKenzie was referring to in the income and assets form. As to the other forms she signed, Ms Westcott explained that this was the first occasion on which she and Mr MacKenzie had together dealt with Centrelink, that they found the forms confusing and were badly guided by Centrelink officers.
There is also some confusion as to whether Ms Westcott and Mr MacKenzie ended their relationship for a period in November and ceased living together. Mr MacKenzie gave the Department a separation form on 18 November 2014, advising that the relationship with Ms Westcott ended on that date. He was unsure as to whether there was the chance of a reconciliation. He said that he did not live in the same home as his partner, describing where he lived as “no fixed address”.[22] Ms Westcott lodged a similar form on the same date, confirming that the relationship ended that day and that Mr MacKenzie did not live in her home.[23] Notwithstanding that advice, a month later Mr MacKenzie was still apparently nominating Ms Westcott’s address as also being his address.[24] In August this year, Ms Westcott advised the Department of her change of address to 7 Laguna Street, Boreen Point,[25] which is the address of the Mr MacKenzie’s investment property.
[22] Exhibit 2, Supplementary T Documents, S 11, pages 66-69.
[23] Exhibit 1, T Documents, T 13, pages 88-91.
[24] See Medical Certificate dated 18 December 2014, Exhibit 2, Supplementary T Documents, S 12, page 70.
[25] Exhibit 4, Attachment D to Secretary’s Statement of Facts and Contentions dated 29 September 2015.
Apart from the suggestion that they might jointly own some household and personal items, there is no evidence that, during the period under consideration, Ms Westcott and Mr MacKenzie provided each other with any level of financial support. There was no suggestion of the amalgamation of their bank accounts or the transfer of funds between them; there is nothing to indicate the intermingling of their funds. Nor is there any evidence of any direct contribution by Mr MacKenzie to the household living expenses.
The absence of direct financial support is, however, not conclusive of the matter. As Senior Member Toohey has observed, members of a couple can obtain benefit from the pooling of resources:
The fact that members of a couple maintain financial independence does not mean they do not gain some benefit of pooling of resources, because sharing rent and household expenses is a form of pooling of resources. The fact that Mr Phillip and Ms Price do not share income and assets does not mean that he has nothing to pool, or that he obtains no benefit from Ms Price pooling her resources with him to the extent that she does [26]
[26] Phillip and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 135, [33].
While it is not possible, on the material before me, to quantify the precise value, I accept, as a general proposition, that members of a couple may derive benefits from the pooling of resources, even though they maintain financial independence. Economies and savings may be achieved in everyday expenses by a person living as part of a couple or family.
More significantly here, however, was the degree of openness that was displayed between Ms Westcott and Mr MacKenzie, in that they were prepared to share what is normally personal and confidential information about one’s finances. It would no doubt have been apparent to them that the Department was seeking that information for the purposes of the relevant income and assets tests; there was no other reason for that information to be requested. It is also significant that, on more than one occasion, Ms Westcott was required, as Mr MacKenzie’s partner, to verify the information being provided to Centrelink, and was given authority by Mr MacKenzie to deal with Centrelink or its agents concerning his property and financial affairs.
Nature of the household
Ms Westcott moved into the three bedroom Gold Coast residence in August 2013. The lease was initially for one year. A second lease for another 12 months was entered into in August 2014.[27] Ms Westcott said that she was the sole lessee, although her mother and eldest daughter, Shelley, resided there throughout the entire period. Ms Westcott’s youngest daughter, Kristie, came and went between an overseas working holiday and renting elsewhere.[28]
[27] Exhibit 3(a), Notice of Requirement to provide information to Rosemary Baker dated 27 October 2015.
[28] Exhibit 5, Applicant’s document titled “A Brief History”.
Ms Westcott told the SSAT that from about March 2014, Mr MacKenzie started staying with her, initially about once a month. By the time of the SSAT hearing in May 2015, she said that the number of times he might stay per month was “purely random”; “it might be one, two or three times a month”.[29] She did not say for how long Mr MacKenzie might stay on those occasions, but suggested it might be one or two nights a week.[30]
[29] Exhibit 1, T Documents, T 2, page 21, SSAT’s Decision and Reasons for Decision, paragraph [25].
[30] Exhibit 1, T Documents, T 2, page 23, SSAT’s Decision and Reasons for Decision, paragraph [40].
Mr MacKenzie presented a different picture. In his application of 21 October 2014 for Disability Support Pension, he gave Ms Westcott’s address as his permanent address and confirmed that he lived with her; a box in the form asking for the period when he was not living with his partner was left blank. He said that they started to live together as members of a couple from 2 June 2014. That form was also signed by Ms Westcott, who declared that the information in it was complete and correct.[31]
[31] Exhibit 2, Supplementary T Documents, S 10, pages 41, 42, 43 and 65.
There is little evidence about the housekeeping arrangements. Ms Westcott told the SSAT that when Mr MacKenzie stayed with her, she would prepare the meals. She said that she did the shopping on a Monday and would then cook during the week. When Mr MacKenzie stayed, the meals generally consisted of reheating left overs.[32]
[32] Exhibit 1, T Documents, T 2 page 21, SSAT’s Decision and Reasons for Decision, paragraph [24].
Social aspects of the relationship
As mentioned earlier, Mr MacKenzie completed various Departmental forms which indicated that Ms Westcott was his partner and that they lived together. She signed a number of those forms in her capacity as his partner. When later asked by the Department about the relationship, Ms Westcott stated that she had been in a “non living relationship” and Mr MacKenzie had stayed at her house occasionally but was living and working in Brisbane. She said that in October 2014, they decided to “become partnered”. After Centrelink was notified and her Carer Payment was decreased, she decided that the arrangement was not suitable.[33]
[33]Exhibit 1, T Documents, T 12, pages 85-86, Statement of Lisa Westcott dated 15 December 2014.
Ms Westcott told the SSAT that Mr MacKenzie lived in Brisbane with his son and his family and worked with his son’s sporting company. She had met the son and his family on numerous occasions but she had never stayed the night because of her commitments with her mother. She said that her mother knew and liked Mr MacKenzie and considered him to be Ms Westcott’s boyfriend.[34]
[34] Exhibit 1, T Documents, T 2 page 22, SSAT’s Decision and Reasons for Decision, paragraphs [28] and [29].
Both Ms Westcott and Mr MacKenzie held themselves out as a couple on social media. Ms Westcott’s profile is under the name “Lisa Jane MacKenzie”. The downloaded extract provided to the Tribunal showed a number of photographs of Ms Westcott and Mr MacKenzie together dating back to at least 5 May 2014.[35] On 5 May 2014 a friend commented on a photograph of Ms Westcott and Mr Mackenzie which had been uploaded to Ms Westcott’s Facebook page stating that she “looked so happy”, to which Ms Westcott replied “Happiest I’ve ever been!!”. On 11 June 2014 another friend commented on a photograph of Mr Mackenzie uploaded to Ms Westcott’s Facebook page asking “Who is this???”, to which Ms Westcott replied “My beautiful man.. Robbie…” Later that month, Ms Westcott described Mr MacKenzie as “My best friend”. The downloaded extract from Mr MacKenzie’s Facebook likewise showed photos of him and Ms Westcott together.[36] On 9 May 2014 he posted an update “in a relationship” and received a number of congratulatory replies from friends. Ms Westcott explained that the reason for the postings on Facebook was because Mr MacKenzie wanted to stop “unwanted attention” by saying he was in a relationship.[37]
[35] Exhibit 3(c).
[36] Exhibit 3(d).
[37] Exhibit 5, Applicant’s document titled “A Brief History”.
When Ms Westcott and Mr MacKenzie both gave notification of the claimed end of the relationship on 18 November 2014,[38] they were each asked to provide the contact details of two people with whom the Department could confirm the separation. They both nominated the same people, Ms Jane Walker and Mr Dallas Parkinson, to whom the Department wrote. Ms Walker did not respond. Mr Parkinson, who resides in St Kilda in Melbourne and who described himself as Ms Westcott’s friend, could not say when the separation took place, saying that he was informed about it when Ms Westcott called to let him know. He did not know the address of where Ms Westcott and Mr MacKenzie were living at the time of their separation, except to say it was at Main Beach. He did not know where Mr MacKenzie was living or the reason for the separation.[39]
[38] See Exhibit 1, T Documents, T 13, pages 88-91 (Ms Westcott) and Exhibit 2, Supplementary T Documents, S 11, pages 66-69 (Mr MacKenzie).
[39] Exhibit 1, T Documents T 11, page 83, Answers by Dallas Parkinson.
Ms Westcott later provided a letter from another friend, Amanda Martin of Viewbank in Victoria.[40] She stated that, to the best of her knowledge, Ms Westcott was not living in a de facto relationship with Mr MacKenzie, whom she understood had his own accommodation.
[40] Exhibit 1, T Documents, T 16, page 107, letter from Amanda Martin dated 14 May 2015.
Information provided by Ms Rosemary Baker, the lessor’s agent for the Gold Coast residence leased by Ms Westcott, stated that Mr MacKenzie resided at the property for the period of the second lease, from 14 August 2014 to 13 August 2015. She considered that Mr MacKenzie, whom she described as Ms Westcott’s boyfriend, would have called the property his principal residence. Ms Westcott had told her that she and Mr MacKenzie planned to marry. When the tenancy expired, she said Ms Westcott told her that she was moving to the Sunshine Coast to reside in Mr MacKenzie’s rental property.[41]
[41] Exhibit 3(a), Notice of Requirement to provide information to Rosemary Baker dated 27 October 2015.
Having regard to the above matters, I consider there is overwhelming evidence that Ms Westcott and Mr MacKenzie viewed themselves as a de facto couple, and held themselves out as such to family and friends, as well as to the world at large.
The various forms that they completed and signed clearly indicated that they were (or had been) living together as a couple. They were known to each other’s families and, regardless of their initial motive for doing so, conveyed through social media to their friends and the world at large that they were a couple. While Mr Parkinson’s statement does not take the matter very far because of his lack of direct knowledge (which is understandable, considering he resides in Melbourne), he nevertheless confirmed that they had been residing together. Ms Baker’s statement is also significant since, as the lessor’s agent, she was well placed to observe the relationship and draw her own objective conclusions.
Sexual relationship
Ms Westcott gave evidence to the SSAT that she and Mr MacKenzie had a sexual relationship.[42]
[42] Exhibit 1, T Documents, T 2, page 23, SSAT’s Decision and Reasons for Decision, paragraph [36].
While not conclusive of itself, the existence of such a relationship is consistent with Ms Westcott and Mr MacKenzie being members of a couple.
Nature of commitment
Ms Westcott told the SSAT that she intended to continue spending time with Mr MacKenzie. She said that she was hopeful that when her mother passed away, she and Mr MacKenzie would have a life together. While at the time of that hearing she had a lot on her plate, she said that it was “great to be able to have a cuddle, have nice sex and have a man to talk to”.[43]
[43] Exhibit 1, T Documents, T 2, page 23, SSAT’s Decision and Reasons for Decision, paragraph [38].
Ms Westcott confirmed to the SSAT that she was a member of a couple in October 2014 and then separated. It appears that was due solely to financial reasons because she could not afford the reduction in her payment. They then got back together as girlfriend and boyfriend. When asked as to what had changed in their relationship from when they were members of a couple, she replied “nothing”.[44]
[44] Exhibit 1, T Documents, T 2, page 25, SSAT’s Decision and Reasons for Decision, paragraph [47].
Ms Baker, an objective third party observer, described Mr MacKenzie as Ms Westcott’s boyfriend, and believed him to live at the Gold Coast residence during the life of the second lease (August 2014 - August 2015). During that time, Ms Westcott had obviously shared with Ms Baker the couple’s plans to eventually marry.[45]
[45] Exhibit 3(a), Notice of Requirement to provide information to Rosemary Baker dated 27 October 2015.
Ms Westcott confirmed that she and Mr MacKenzie decided in June 2015 that it would be prudent to move into Mr MacKenzie’s Sunshine Coast property. They also decided to get married so that Ms Westcott’s mother could be alive to see it. They were also concerned at Mr MacKenzie’s heart condition; he thought that if he had a short time to live, he would prefer it to be as Ms Westcott’s husband rather than de facto.[46] As I mentioned earlier, they were married a few weeks before the hearing.
[46] Exhibit 5, Applicant’s document titled “A Brief History”.
The above evidence clearly demonstrates that Ms Westcott and Mr MacKenzie had a strong commitment to each other throughout the relevant period. That did not change, even after the putative separation in November, which was apparently for purely financial reasons.
Overall assessment
Viewing the circumstances in their totality, I am satisfied that Ms Westcott and Mr MacKenzie have been members of a couple since 2 June 2014. Without intending to be exhaustive, the following factors in particular have led me to that conclusion.
First, the various forms completed by Mr MacKenzie in respect of his applications for Newstart Allowance and DSP are strong indicators as to how he viewed his relationship with Ms Westcott. That is reinforced by the fact that Ms Westcott also signed the forms as Mr MacKenzie’s partner, verifying the information provided. Significantly, those forms were completed before Ms Westcott realised the financial implications for her Carer Payment.
I do not think that the questions asked by the forms were ambiguous or unclear, as Ms Westcott contended. For example, the application for DSP listed a number of possible descriptions of the relationship and described each of them. In case there was any doubt, later questions asked when the applicant and their partner started “living together as a member of a couple” and whether the applicant currently lived “in the same home as your partner”.
Moreover, the importance of the documents would not have been lost on Ms Westcott and Mr MacKenzie. She obviously provided Mr MacKenzie with her Centrelink reference number and details of her personal financial arrangements. He authorised her to deal with Centrelink regarding his payments. The income and assets form Mr MacKenzie had to complete clearly and repetitively asked him about, not only his own finances, but also those of his partner. The purpose for seeking that information would have been apparent; it was not some informal or casual inquiry. Rather, it was an important inquiry which was integral to the assessment of Mr MacKenzie’s eligibility and entitlements.
Second, it is equally clear that from a relatively early stage, Ms Westcott and Mr MacKenzie held themselves out as a couple to their families and friends. Mr MacKenzie announced their relationship, presumably with Ms Westcott’s concurrence, as early as May 2014. At about the same time, Ms Westcott apparently updated her profile and was adopting Mr MacKenzie’s surname – a strong indicator of how she perceived the relationship and how she wished it to be viewed by her family and friends. By the time of the putative separation in November, it was no surprise to a friend such as Mr Parkinson that Ms Westcott and Mr MacKenzie had been living together at the Gold Coast residence. The nature of the relationship was such that it was also apparent to those outside their circle of friends, such as the lessor’s agent, Ms Baker.
Underlying that was the commitment which each obviously had to a long term relationship leading ultimately to marriage, about which they seemingly made no secret. The relationship was more than just a strong and enduring friendship with practical and emotional benefits to each of them; rather, it was “marriage-like”.[47]
[47] See Dewhurst and Secretary, Department of Education, Employment and Workplace Relations [2010] AATA 512, [69].
It follows from what I have said that I consider that Ms Westcott and Mr MacKenzie were members of a couple for the purposes of the Act from 2 June 2014 onwards.
Did Ms Westcott receive payments of Carer Payment to which she was not entitled?
Accordingly, from 2 June 2014 Ms Westcott was entitled to the partnered rate of payment of Carer Payment. Instead, she was paid the higher maximum rate for a single person. She therefore received an overpayment of her Carer Payment.
Following the SSAT decision, the Department recalculated the amount of the overpayment for the period 2 June 2014 to 10 August 2015 at $7,164.19.[48] That recalculation was not questioned or challenged by Ms Westcott.
[48] Exhibit 4, Secretary’s Statement of Facts and Contentions dated 29 September 2015, Attachment A.
Is there a debt that must be repaid?
Under s 1223(1) of the Act, if a person obtains the benefit of a social security payment to which they were not entitled, the amount of the payment is a debt due to the Commonwealth by the person and the debt is taken to arise when the person obtains the benefit of the payment.
The calculation of the overpayment not being questioned or challenged, I am satisfied that Ms Westcott has been overpaid Carer Payment totalling $7,164.19 and that this amount constitutes a legally recoverable debt owed to the Commonwealth.
The legislative intent behind the debt recovery provisions in the Act was best expressed by French J in Secretary, Department of Social Security v Hales:
The taxpayer is entitled to expect that in the ordinary course money paid to people which they are not entitled to receive will be recovered, albeit in a way appropriate to the circumstances which led to the overpayment and the circumstances of the persons concerned.[49]
[49] (1998) 82 FCR 154, 155.
Section 1236 of the Act provides for the possibility of writing off of a debt for a period. However, none of the circumstances are applicable in this case.
Section 1237A of the Act requires the Commonwealth to waive a right to recover a debt if it is attributable solely to administrative error by the Commonwealth and the person has received the payments in good faith. There is no suggestion here that an administrative error was the cause of the debt. Rather, it arose because Ms Westcott failed to disclose that she was a member of a couple with Mr MacKenzie. Therefore, this section is not applicable.
Finally, under s 1237AAD of the Act, the Secretary may waive all or part of a debt where it is not caused by a known false statement or failure to comply with the Act and there are “special circumstances (other than financial hardship alone) that make it desirable to waive”.
While the term “special circumstances” is not defined in the Act, it has been the subject of much consideration by the courts. It is often said that a finding of special circumstances requires something unfair or unjust that, in the circumstances, takes it out of the usual or ordinary case.[50] In making that assessment, it is relevant to consider how the overpayment came about.[51] It is also important to bear in mind the legislative intent behind the Act’s debt recovery provisions so that it is promoted rather than frustrated.
[50] Groth v Secretary, Department of Social Security (1995) 40 ALD 541, 545 (Kiefel J) and Angelakos v Secretary, Department of Employment and Workplace Relations (2007) 100 ALD 9, 17, [33] (Besanko J).
[51] Dranichnikov v Centrelink (2003) 75 ALD 134, [66].
In the present case, Ms Westcott told the SSAT that her Carer Payment is her sole source of income. Apart from funds in a superannuation account, she has no savings. She has outstanding debts of about $122,600.00. Although she is otherwise healthy and keeps fit, she suffers from depression which is being treated.[52]
[52] Exhibit 1, T Documents, T 2, page 28, SSAT’s Decision and Reasons for Decision, paragraphs [69] to [71].
Having regard to those matters and the principles outlined above, I do not consider that Ms Westcott’s circumstances are so special as to warrant the exercise of the discretion under s 1237AAD. Ms Westcott received money to which she was not entitled and the taxpayer is entitled to expect that those moneys are recovered. Her circumstances are not so unusual or out of the ordinary to justify departure from the general principles.
The debt is therefore to be repaid by Ms Westcott.
CONCLUSION
For the reasons outlined above, I believe that Ms Westcott and Mr MacKenzie have been members of a couple since 2 June 2014. During the period from 2 June 2014 to 10 August 2015, Ms Westcott was overpaid her Carer Payment by $7,164.19, which is a debt recoverable by the Commonwealth. There being no special circumstances to warrant a waiver of the right of recovery in this instance, I consider that the debt should be recovered from Ms Westcott.
Accordingly, the decision under review is affirmed.
I certify that the preceding 68 (sixty -eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member A C Cotter
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AssociateDated 11 December 2015
Date of hearing 2 November 2015 Applicant In person Solicitors for the Respondent Department of Human Services
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