Whell and Secretary, Department of Employment and Workplace Relations

[2007] AATA 1741

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1741

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 200700329

GENERAL ADMINISTRATIVE DIVISION		)
Re		MADONNA WHELL

Applicant

And

SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS            

Respondent

DECISION

Tribunal M J Carstairs, Senior Member

Date7 September 2007

PlaceBrisbane

Decision The Tribunal varies the decision under review to provide that arrears of disability support pension at the single rate were payable to Mrs Whell from 24 March 2006, but in all other respects affirms the decision under review.

...............[Sgd]..............

Senior Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – marriage-like relationship – payment of arrears – decision under review varied

Social Security Act 1991 (Cth) ss 4(2), 4(3)
Social Security Administration Act 1999 s 109

Pelka v Secretary Department of Family and Community Services (2006) 151 FCR 546

7 September 2007   M J Carstairs, Senior Member

1. Mrs Madonna Whell receives disability support pension, as well as a carer payment in respect of care she provides to Graham Foan, with whom she lives.  The rate of a disability support pension is determined, in part, according to whether Centrelink assesses a person as single or as having a partner. 

2. In the past, Centrelink has assessed Mrs Whell as single, even though she has resided with Mr Foan over a number of years.  At present, Centrelink once again is assessing Mrs Whell as a single person and ultimately set as the date of effect for that decision in her favour as being the date of 24 March 2006. 

3. For the period from September 2004 to March 2006 Centrelink, however, assessed Mrs Whell’s disability support pension at the partnered rate on the basis that she and Mr Foan were in a marriage-like relationship.  When the Social Security Appeals Tribunal looked at the decision under review before them (limited as that decision was to the question of arrears), the Tribunal decided that Mrs Whell should not be paid arrears of disability support pension at the single rate any earlier than 31 May 2006.

4. Mrs Whell says that Centrelink has never been correct to treat her as Mr Foan’s partner and maintains that she is entitled to be paid at the higher, single rate for the whole of the period 2004 to 2006 when she was paid at the lower rate.

ISSUE

1. The issues to be decided are:

   §   whether their relationship was marriage-like during the relevant period; and

   §  the date of effect of the favourable determination made by Centrelink in June 2006 to pay Mrs Whell’s disability support pension at the single rate.

BACKGROUND

1. Mrs Whell and Mr Foan have known each other since childhood but their acquaintance was renewed in the mid-1990’s when they lived at the same residential complex in Tenterfield, New South Wales.  In 1998 Mr Foan moved into Mrs Whell’s unit at the complex.[1]  It seems that he had some issues with his health and she took over a caring role.  They together moved some months later to Toowoomba in Queensland. 

   [1]        Exhibit A2.

2. At first Mrs Whell and Mr Foan rented a flat together.  Then a house was purchased in Spring St, Toowoomba.  According to Mr Foan he purchased this house, but included Mrs Whell’s name on the title.  Between January 1999 and June 2004 Mrs Whell and Mr Foan jointly owned this property and for the most part they lived there together.  According to Mr Foan there were certain periods in 2001 and 2003 when he moved out of Spring Street (to Erica Court for 5 months in 2001 and to McFarlane Street for 7 months in 2003).

3. Since about mid-2004 Mr Foan has lived with Mrs Whell at Diosma Drive Highfields, a property registered in Mrs Whell’s name, but which she readily admits was purchased using her part of the proceeds from the sale of the house at Spring Street.  Additional money was required by way of mortgage to fund the purchase of the Highfields property.

4. It was some time after they moved to the new house at Highfields that Centrelink decided that Mrs Whell and Mr Foan should be treated as members of a couple. That question is determined under s 4(3) of the Social Security Act 1991. 

LEGISLATION

1. Mrs Whell and Mr Foan have never been married to each other.  The Act nevertheless provides that a person will be a member of a couple and therefore treated as if married, if they are:[2]

   §  in a relationship with another person of the opposite sex;

   §  not married to that person; and

   §  the decision-maker is of the opinion that they are in a marriage-like relationship.

   [2] Sub-section 4(2)(b) of the Act.

2. This section calls for the formation of an opinion about a relationship, by reference to matters set out in sub-section 4(3) which lists a number of factors relevant to determining the nature of a relationship. These include the financial aspects of the relationship, the nature of the household, the social aspects of the relationship, any sexual relationship between them, and their commitment to each other. This statutory framework was examined by the Federal Court in Pelka v Secretary Department of Family and Community Services (2006) 151 FCR 546.

3. Forming opinions on these matters requires something more than treating the factors as a checklist, as was reiterated by French J in Pelka as follows:

   46.  Having regard to the current provisions of s 4(3) and the approaches discussed in the earlier authorities mentioned, a decision maker concerned with whether an unmarried person is in a marriage-like relationship with another person of the opposite sex:

   1. Must have regard to their interpersonal relationship as a whole not limited by the factors listed in s 4(3).

   2.        Must have regard to each of:

   a)        the financial aspects of the relationship;

   (b)       the nature of the household;

   (c)        the social aspects of the relationship;

   (d)       any sexual relationship between the people;

   (e)       the nature of the people’s commitment to each other.

   3. In having regard to the preceding five matters, must have regard to all factors relevant to each and, in particular, must have regard to the factors listed under each heading in s 4(3).

   4.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.

4. It is in that context that I turn to the evidence, addressed under the factors set out in s 4(3) of the Act.

5. Before doing so I should observe that in weighing up the factors in s 4(3), certain of the more personal aspects of a relationship and evidence about the workings of a household will be matters known only to the two people involved, and not readily capable of proof or disproof. To be confident on matters of that kind, I need to be satisfied as to the truth of that evidence.

6. In that regard, I formed the opinion - having heard evidence from both Mrs Whell and Mr Foan - that neither was a reliable witness.  Mrs Whell’s evidence was evasive, confusing and inconsistent.  The truth of important matters concerning their financial affairs has never been revealed by her.  Almost invariably it has had to be discovered by Centrelink investigations.  These were matters that Centrelink needed to know in order to properly assess the nature of the relationship as a whole and to ensure that Mrs Whell was being paid at the correct rate.  Mrs Whell’s response in many instances, once material was discovered in these investigations, was to profess outrage and accuse Centrelink officers and others of proceeding on baseless assumptions. 

7. I concluded, taking into account the extent of the matters that Mrs Whell did not willingly disclose, that I could not rely on her evidence.  Where her evidence was inconsistent with documentary materials I prefer to take the evidence of documentary materials.

8. Mr Foan gave the impression in his evidence that he filled out Centrelink forms with little regard for the truth of their contents.  He referred to filling answers out in haste, in anger, or in a “mood”.  He appears to rely upon his post traumatic stress disorder as a sufficient explanation for this behaviour.  He resorted to anger when questioned at the hearing.  I concluded that he, too, was an unreliable witness, whose evidence I could not rely upon unless corroborated by other sources.

(a)      the financial aspects of the relationship:

§  any joint ownership of real estate or other major assets and any joint liabilities; and

§  any significant pooling of financial resources especially in relation to major financial commitments; and

§  any legal obligations owed by one person in respect of the other person; and

§  the basis of any sharing of day-to-day household expenses

1. Reference has been made above to Mrs Whell’s and Mr Foan’s joint ownership of Spring St, Toowoomba, purchased in November 1998 and sold in June 2004.  During this period Toowoomba City Council issued rates notices in joint names.  Mr Foan maintains that he supplied the purchase moneys for Spring St and decided that Mrs Whell’s name should appear on the title, because she had done so much for him as his carer.  Mrs Whell said that this generosity on his part had to be understood in the context of Mr Foan having fallen out with his children, who no longer speak to him, and he therefore had no-one other than her to whom to leave his property.   Mrs Whell said that while a house might seem a significant gift, even more generous gifts are not unknown in a carer situation. 

2. On 10 March 2005 Mrs Whell and Mr Foan made statutory declarations,[3] stating that Mr Foan had purchased the house at Spring St and that Mrs Whell paid rent there from 12 January 1999 - although her name was on the title.  However I note that in a claim form for Centrelink Carer Payment lodged by Mrs Whell in 2002 she stated that Mr Foan rented part of the house, with the clear implication that he was renting it from her.[4]

   [3]        T28 and T29.

   [4]        T10.

3. In 2004, Mrs Whell purchased the house at Highfields where they now live, apparently using the proceeds of the sale of Spring Street, topped up by a mortgage.  The documentary material included her application for the mortgage, which stated that Mrs Whell had sold her current home at Spring Street and was applying the proceeds to the purchase of the house at Highfields.  Mrs Whell was referred to in the mortgage application as being self employed and operating Madonna’s Coffee Lounge with her partner Graham Foan.  Mrs Whell’s evidence was that she did not fill out that application, which she maintains was completed by an egotistical finance broker and that she had signed this form in blank. 

4. Mrs Whell and Mr Foan held a joint account at Heritage Building Society, which was opened on 30 May 2001 and closed 26 July 2006.[5]  Mrs Whell agreed that this account existed, but only once its existence was discovered as a result of Centrelink investigations.  She now maintains that it was operated in relation to Mr Foan’s business, called Madonna’s Coffee Lounge, and in order for her to operate the account should Mr Foan die or be unable to manage his affairs.

   [5]        Exhibit R1, attachment C.

5. I was told that Mr Foan receives a TPI pension from the Department of Veterans’ Affairs for his post traumatic stress disorder, which has been determined to be a result of his war service. This is one of the disabilities in respect of which Mrs Whell provides him with care.  In 2001 Mr Foan started operating Madonna’s coffee lounge.  Mrs Whell says Mr Foan named it after her because he did not have anyone else to name it after.  The Certificate of Registration showed Mr Foan registered as a sole trader, however in May 2004 the Australian Business Register shows Mrs Whell as the sole trader and the business changed its name to “Madonna’s Kitchen.” 

6. Mrs Whell maintains that Madonna’s Coffee Shop was Mr Foan’s business.  She said she did not need to be involved in the business because Mr Foan had an assistant, although she would help out if things were busy and she would also do errands or shop for supplies.  She said the business only operated from 10am to 2pm and was a means for Mr Foan to relieve his tensions.

7. Mrs Whell said that she used Mr Foan’s ABN when making purchases for the coffee lounge and it was on one such occasion (26 March 2004) that she was approached to complete an application for a Woolworths Ezy MasterCard.  On the application form Mrs Whell nominated that she was a self-employed business manager, gave the ABN number for Madonna’s kitchen and noted the business as returning gross income of $80,000.  She also stated on that form that she was living in her own home and paying it off with monthly repayments of $600.[6]  At this time, that is March 2004, the home referred to would have been Spring St.

   [6]        T36.

8. In October 2004, Mr Foan later started another business, “Hillcrest Cottage” which was a coffee shop attached to a nursery at Highfields.  This venture was the subject of a newspaper report in a local newspaper, showing a photograph of Mrs Whell and Mr Foan under the caption Graham and Madonna Whell-Foan at Hillcrest Coffee Lounge and Kitchen.  The article continued:

   Graham and Madonna Whell-Foan run the coffee lounge.

   They formerly conducted a similar business in Toowoomba for three years.

   Madonna said that they decided to open the Hillcrest business after buying a house at Highfields.[7]

   [7]        T 56.

9. Mrs Whell said that the newspaper reporter was inexperienced and had completed the article in a hurry.  She said that she complained to the editor of the newspaper when she saw the article had used the hyphenated name. 

10. However this was not the only occasion on which the hyphenated name Whell-Foan appeared in the documentary materials.  The lease for Hillcrest Coffee Lounge was also drawn up using the hyphenated names Graham and Madonna Whell-Foan.  Mrs Whell’s evidence was to the effect that other people were filling out these documents and they acted on their incorrect assumptions, not on information that she or Mr Foan provided.  In support of this Mrs Whell pointed out with respect to the lease for the Hillcrest coffee shop, that they had each signed using their own name, not using the hyphenated name that appeared on the face of the document. 

11. There were too many documents in evidence using the hyphenated surname for me to accept Mrs Whell’s explanation of the use of their names in that way.  As to the lease, Mrs Whell said that the hyphenated name was written on that document by the owners.  Mr Foan at first agreed, stating that the owner, Mrs J Elliott, one of the signatories to the lease, had filled out the details on the front page.  However Mr Foan later acknowledged in cross-examination that it was his writing on the front page (where the hyphenated surname was used).  Mrs Whell attempted to minimise the significance of the lease, referring to is as a ‘casual’ document; Mr Foan by stating that it was not of any real consequence and was only needed for security purposes. 

12. However, it was readily apparent that the lease was an important document, part of the legal arrangements related to the business, and it is disingenuous on her part to suggest that they were treating it casually or that it should be disregarded.  Importantly, the lease was but one of numerous occasions on which Mrs Whell and Mr Foan represented their relationship as de-facto or as partners, even though they insist to Centrelink they are not.

13. Mr Foan and Mrs Whell also referred to their relationship in documents when applying for superannuation.  Information from Sunsuper (recently obtained and not earlier disclosed to Centrelink by Mrs Whell) showed their respective member application forms.[8]  On 28 January 1999 Mr Foan named Madonna Whell-Foan as the preferred beneficiary of his superannuation and where the form asked the relationship, it reads: wife.  Mrs Whell also signed a member application form on 7 April 2006 and in that form listed Mr Graham Foan as the preferred beneficiary.  Where asked to identify the relationship, the answer provided is spouse.

    [8]        Exhibit R4

14. There is significant pooling of resources in regard to major financial commitments in this case.  I was satisfied that Mrs Whell and Mr Foan have owned and/or contributed to two houses, and have run two businesses together.  I do not accept that Mrs Whell had the minimal involvement that she now says she had in the businesses.  Mrs Whell insists that their involvement in these businesses as a couple has been misrepresented.  I do not accept that this is so.  There are too many documents revealing that in all the financial and legal matters relating to the two businesses and to purchasing properties Mrs Whell and Mr Foan have operated as a couple and have presented themselves that way in the course of making legally binding arrangements. 

15. Mrs Whell and Mr Foan have a joint bank account into which they have paid their respective wages from Hubbard’s Coaches.  They had a Heritage Building Society Account, opened on 30 May 2001 in joint names.[9]   Neither of them now dispute that they both have their wages paid into the bank account from which the mortgage on the Highfields house is paid.  This evidence indicates clearly that they continue to pool their financial resources, Mr Foan indicating in his evidence that Mrs Whell could use his money in whatever way she wished.

    [9]        Exhibit R1, attachment C.

16. There were legal obligations arising from their joint business ventures.  There were legal obligations arising from their leases and from their joint bank accounts.  Whatever the basis of the sharing of day to day expenses, the evidence appears that they treat the funds as pooled.

17. Taken as a whole, the weight of the evidence on all financial aspects of the relationship points strongly to this being marriage-like.  These two people are heavily financially interdependent and have been throughout the time that they have been together.

(b) the nature of the household, including:

§  any joint responsibility for providing care or support of children; and

§  the living arrangements of the people; and

§  the basis on which responsibility for housework is distributed

1. In considering the nature of the household, it is significant that both have lived now at common addresses for some 8 years.   Mrs Whell has provided intimate day to day care for Mr Foan as evidenced in her application for a carer payment.[10]

   [10]        T10

2. The consideration of joint responsibility for providing care or support for children is not applicable in this case.  As I understand it, their respective offspring are now adults.

3. Mrs Whell provided plans of the house at Highfields where they have lived since 2004, showing that their sleeping areas in the house are quite separate.  In oral evidence she said that the living areas are shared.  They tend to have meals together.  Mrs Whell said that she sometimes cooks for Mr Foan, but for the most part he arranges his own meals.  Mrs Whell said that Mr Foan does his own washing.  Mr Foan mows the lawns.  She said that she is now working, so is absent from the household for part of the day, during which time Mr Foan might be socialising with his veteran mates or looking after his birds.  She described him as quite a capable person.  This seems quite different from the picture she presented of Mr Foan in answers to questions in her claim for carer payment.[11] However Mrs Whell was not questioned about this document, and there may be an explanation about for the level of care changing.

   [11]        T10

4. Mr Foan has recently claimed rent allowance on the basis of rent being paid to Mrs Whell at Highfields.  Earlier Mr Foan had claimed that his rent at Highfields was paid to Mrs E Mortimer of 10517 New England Highway Highfields.[12]  Mrs Whell acknowledges that Mortimer is her maiden name, but said that she was unaware that Mr Foan was claiming rent assistance on this basis.  Mr Foan said that he put the name of Mortimer on the form in a fit of anger, and agreed that it was not true.  In an earlier (July 2004) claim for rent assistance in relation to the house at Highfields, Mrs Whell claimed rent assistance, stating that she was paying $130 per week rent to Mr Foan (who gave his address as a flat at McFarlane St Toowoomba).  This claim was clearly untrue as Mrs Whell is the owner of Highfields. 

   [12]        T12 and T13.

1. Overall it could be said there is little in the evidence concerning the nature of the household points one way or the other to a marriage-like relationship.  I have difficulty accepting Mrs Whell’s evidence concerning these matters in view of the dishonest answers that she has given in relation to their business arrangements, and in relation to rent claims when they were not paying rent.  I concluded that any evidence that they might give in regard to how their household operates would be calculated to ensure receiving the maximum Centrelink payment rather than given honestly.  I am not prepared to accept their evidence about their independence of each other within the home. 

(c)      the social aspects of the relationship, including:

§  whether the people hold themselves out as married to each other; and

§  the assessment of friends and assosciates; and

§  social activities

1. Again in view of the dishonest or misleading answers given in relation to various documents one must be cautious about accepting the evidence of Mrs Whell and Mr Foan.  I took into account that Mr Foan told one medical practitioner in 1998 that he was moving to Toowoomba with his ‘girlfriend’.  This on its own might be of little consequence, but this kind of reference has been made in numerous circumstances subsequently. 

2. When Mrs Whell and Mr Foan first went to Toowoomba they rented a flat.  Mrs Whell objected to a purported file note of a conversation an officer of Centrelink had with someone from the rental agency to the effect that Mrs Whell and Mr Foan presented very much as a couple.[13] Again, the impression of an unnamed source at a rental agency might not have been correct and certainly Centrelink did not act on it at the time, paying Mrs Whell at the single rate.

   [13]        T8 – 14 August 1998.

3. Mrs Whell stated that she has never portrayed Mr Foan as her husband, de-facto or partner.[14]  However I do not accept that evidence, and take into account the following evidence:

   §  The newspaper article citing the use of the hyphenated surname Whell-Foan.

   §  The statement of Mr Bernoth of the Bernoth Centre (where Madonna’s coffee lounge was located) indicating that the owners of the business were Madonna Whell-Fone and Graham Whell-Fone and that he assumed that they were de-facto partners. 

   §  The lease for Hillcrest, signed by Mrs Whell and Mr Foan (albeit in their own names), where the hyphenated surname also appears.

   §  A Magistrates Court order dated 14 March 2007 where the defendants in an action taken by Mr Bernoth are named as Graham Clyde Whell-Foan and Madonna Whell-Foan.[15]

   [14]        Exhibit A1.

   [15]        Exhibit R1, attachment E.

4. I do not accept that these usages of the hyphenated name could ever have happened merely by chance and without the involvement of Mrs Whell and Mr Foan in encouraging its usage.  This is supported by the application Mr Foan made to Sunsuper in 1999[16]  and their references in the superannuation applications to each other as wife and spouse.  

   [16]        Exhibit R4.

5. I was provided with a number of statements from friends and acquaintances in support of Mrs Whell and Mr Foan being no more than friends.  However I gained little assistance from them, as none of the authors of the statements appear to be aware of the extensive financial interactions that exist now or in the past between Mrs Whell and Mr Foan, as shown conclusively by the evidence set out above.  To that extent these statements are of little assistance.  These statements provided some general support to Mrs Whell’s assertions that she would avoid any de-facto relationship.  However these people were not called as witnesses.  There was no opportunity to test the veracity of the information that they provided.

6. As to the social aspects of the relationship, there was little evidence from Mrs Whell and Mr Foan.  However I have taken into account under this heading that they have shared their day to day lives in common residential addresses for over a period of some eight years. 

(d)   any sexual relationship between the people

1. There was no evidence of a sexual relationship.  In view of Mrs Whell’s age and their significant illnesses, the absence of a sexual relationship would not be remarkable.  It is a matter, however, on which I could form no view, but one of the areas of evidence upon which I could not confidently rely on Mrs Whell’s evidence.

(e) the nature of the people’s commitment to one another

§  the length of the relationship

§  nature of companionship and support

§  whether the people consider that the relationship is likely to continue indefinitely.

§  whether the people see their relationship as marriage like

1. Mr Foan and Mrs Whell have lived at residences together for some ten years.  Both Mr Foan and Mrs Whell indicated that they expect the relationship to continue.  Mrs Whell pointed out that she knew Mr Foan’s parents, and as his carer had come to put trust in Mr Foan just as he had in her.  She said she knows Mr Foan would not let her down.  She said that so long as Mr Foan was happy with their arrangement, she was too.  In a Centrelink form completed on 22 May 2006[17] Mrs Whell said that she intended to share accommodation with Mr Foan until he died.

   [17]        T44.

2. One unexplained aspect of the evidence was that in December 2004 Mr Foan applied for Centrelink carer payment for himself, stating that he provided care to Mrs Whell.[18]  Mrs Whell said that she had no idea that he had made such a claim, and Mr Foan was unable to explain in his evidence why he had made this claim.  The presence of this form, at the very least, suggests that Mr Foan considered at that time that he was providing care to Mrs Whell sufficient to make a claim for doing so.

   [18]        T24.

3. It was evident that they provide emotional and other support to each other.  Mrs Whell said that she visits him when he is in hospital.  In her claim for carer payment in 2002,[19] Mrs Whell indicated that Mr Foan needed considerable help with the personal functions of daily living and self care and that she was providing this to him.  His evidence now is that Mr Foan is quite self reliant and capable and they each do their own thing.  I am unable to resolve these discrepancies in the evidence, but the answers on the claim form demonstrating at high level of care in the past indicates both a level of commitment and intimacy that, taken with other factors in this case, supports a marriage like relationship. 

   [19]        T10.

MARRIAGE LIKE RELATIONSHIP

1. Having considered all of the material before me in relation to the factors in s 4(3) of the Act and looking at the total picture of their relationship, I am satisfied that there was a marriage-like relationship between Mrs Whell and Mr Foan during the period from 21 September 2004 to March 2006. The total picture of the relationship is that they have moved together from Tenterfield to Toowoomba where they have lived for the most part at the same residence. They purchased Spring Street together and the house was in joint names. I was satisfied that both were contributing to the mortgage repayments and in that regard I accept the evidence from the credit card application in preference to Mrs Whell’s evidence that she was paying rent to Mr Foan.

2. Mr Foan has allowed her to take a share of the proceeds of the sale of Spring Street.  I do not accept that this was merely an expression of his appreciation of her role towards him as carer.  I regard it as pointing more strongly towards the relationship being marriage-like, especially in view of Mr Foan continuing to provide funds towards paying off the mortgage even though his name is not on the title of that property.  I regard as dishonest Mrs Whell’s and Mr Foan’s various attempts to claim rent assistance in these circumstances.  They have been far from honest in their dealings with Centrelink and I concluded that this was to ensure that the real nature of their relationship was not revealed.

3. I was satisfied, and find accordingly, that Mrs Whell and Mr Foan were members of a couple during the relevant period.  As such, Mrs Whell was correctly paid disability support pension at the partnered rate during that period. 

THE QUESTION OF ARREARS

1. On this matter Mr Amundsen, who appeared for the Secretary, submitted that the decision under review was the question of whether Mrs Whell and Mr Foan were members of a couple between 21 September 2004 and 31 May 2006.[20]  I cannot agree, and note that the Social Security Appeals Tribunal characterised the decision, correctly in my view, as being a decision to pay arrears of disability support pension (that is, at the single rate) from 24 March 2006.

   [20]        Exhibit R1.

2. Mrs Whell submits that the date should be set much earlier, and that she should never have had her rate reduced at any time.  The legislative provisions do not allow that extent of back-payment in her circumstances, even were she entitled to arrears, which in my view she clearly is not.  The evidence clearly demonstrates that she was in a marriage-like relationship in that time. 

3. The Social Security Appeals Tribunal changed the date of effect, deciding instead that no earlier date could be set than the date of the Centrelink decision itself, that decision concluding that Mrs Whell and Mr Foan were not living as husband and wife.[21]This decision appears to have been made on 1 June 2006 and the Social Security Appeals Tribunal used that date to set, as the date of effect, 31 May 2006.

   [21]        T45.

4. I have concluded that the date of effect set by Centrelink was the correct date. I was satisfied, having looked through all the materials, that Mrs Whell first sought review of the decision about her rate of payment on 27 March 2006. The authorised review officer decided to adopt the date 24 March 2006, relying on the date of a notice of decision that had been sent to Mrs Whell. That was a date of effect open to the authorised review officer under s 109(1)(a) of the Social Security Administration Act 1999.

5. I do not agree that the date set by the Social Security Appeals Tribunal was one that was available on a proper application of s 109 of the Administration Act and to that extent I vary the decision and reinstate the date set by the authorised review officer in his decision.

6. I was invited by the respondent to consider and comment upon the correctness of Centrelink’s decision made on 1 June 2006 to pay Mrs Whell at the single rate.  That was not the decision under review before me and I decline to do so.

DECISION

1. The Tribunal varies the decision under review to provide that arrears of disability support pension at the single rate were payable to Mrs Whell from 24 March 2006 but in all other respects affirms the decision under review.

I certify that the preceding 59 paragraphs are a true copy of the reasons for the decision herein of Senior Member Ms M J Carstairs.

Signed:  M J Brazier
  Associate

Dates of Hearing  20 August 2007 and 5 September 2007
Date of Decision  7 September 2007
For the applicant   The applicant was self-represented   
For the respondent                    Mr M Amundsen, departmental advocate