WHNV and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
[2010] AATA 885
•11 November 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 885
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/1266
GENERAL ADMINISTRATIVE DIVISION
)
Re WHNV Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Senior Member K Bean Date11 November 2010
PlaceAdelaide
Decision The tribunal varies the directions made by the SSAT so that they provide as follows:
(a) the applicant is not a member of a couple with the other person for the purposes of s 4 of the Social Security Act 1991 and has not been a member of a couple with the other person at any time between 9 July 2009 and the date of this decision;
(b) the other person’s financial information is not relevant to determining the applicant’s rate of age pension; and
(c) the notice dated 26 November 2009 directed to the applicant requesting him to get the other person to sign a “Mod P” form is not a lawful notice under s 192 of the Social Security (Administration) Act 1999...............................................
K BEAN
(Senior Member)
CATCHWORDS
SOCIAL SECURITY – Age pension – Whether applicant a member of a couple – Evidence of relatively separate finances and occupation of different parts of house – Clear evidence of choice not to enter into “marriage-like” or “de facto” relationship and efforts to make practical arrangements accordingly – Pair not seen as couple by applicant’s family – Applicant not a member of a couple – Decision under review varied.
Social Security Act 1991 s 4
Social Security (Administration) Act 1999 s 192
Staunton-Smith v Secretary, Department of Social Security(1991) 32 FCR 164
Pelka v Secretary, Department of Family and Community Services(2006) 151 FCR 546
R v Toohey; Ex parte Meneling Station Pty Ltd(1982) 158 CLR 327REASONS FOR DECISION
11 November 2010 Senior Member K Bean 1. Although he is now 70 years old, the applicant is still working as he has been unable to obtain the age pension. In fact, his eligibility for age pension has not, at this stage, been fully tested, due to questions which have arisen in relation to the nature of his relationship with the woman he lives with. More particularly, the question has arisen of whether the two of them are members of a couple for the purposes of the Social Security Act 1991 (the Act). As with the identity of the applicant, the identity of the woman the applicant lives with cannot be disclosed due to the existence of a confidentiality order, and I will therefore refer to her in these Reasons as “the other person”.
2. The applicant applied for age pension on 9 July 2009 and on 26 November 2009, Centrelink sent him a letter enclosing forms for him to complete and for him to get the other person to complete, in support of his application. In December 2009 the applicant returned the forms but failed to provide the other person’s financial details as she did not complete the partner form, know as a “Mod P”.
3. On 15 December 2009, a Centrelink officer decided to reject the applicant’s claim for age pension on the grounds that he had failed to provide information about his partner. The applicant requested a review of that decision and on 21 December 2009 an Authorised Review Officer concluded that the decision was correct.
4. On 8 January 2010, the applicant applied to the Social Security Appeals Tribunal (SSAT) for review of that decision. On 23 February 2010, the SSAT decided to set aside the decision under review and send the matter back to the Chief Executive officer of Centrelink for reconsideration in accordance with the following directions:
“1. That [the applicant] is in a marriage like relationship with [the other person].
2.That [the other person’s] financial information is relevant to determine [the applicant’s] rate of Age Pension.
3.That the notice dated 26 November 2009 directed to [the applicant] requesting him to get [the other person] to sign a Mod P form is not a lawful notice under section 192 of the Administration Act.
4.That Centrelink has no basis to reject [the applicant’s] claim for Age Pension for failure to provide the requested information.
5.That Centrelink is to send a notice in accordance with sections 192 and 196 of the Administration Act to [the other person] to obtain relevant financial information.”
5. The applicant has now sought review by this tribunal of the decision of the SSAT.
the issue
6. Before me, the parties agreed that the only issue in dispute was whether the applicant and the other person are members of a couple for the purposes of the Act. If they are, then both parties agreed that the directions made by the SSAT were appropriate.
background facts
7. The applicant was born in Italy and arrived in Australia in 1954, becoming an Australian citizen in 1957. For many years he was married, and he has two children as a result of that marriage, now in their forties.
8. In 1995 the applicant and his wife separated, and at around that time the applicant met the other person, with whom he is now living, and began dating. The two of them have been friends ever since, and particularly in the earlier period of their relationship, the relationship also had a “romantic” and intimate component.
9. In January 2003, the applicant and the other person entered into an agreement to purchase a split level home at Marino in South Australia, which they did as tenants in common. They have both lived in that house since then, with the applicant primarily occupying one floor and the other person primarily occupying the other. They say that whilst their relationship retains an intimate component, they are not a “couple” in the conventional sense.
the law
10. The question of whether the applicant and the other person are members of a couple for the purposes of the Act must be answered by reference to s 4 of the Act, which relevantly provides as follows:
“4 Family relationships definitions—couples
…
Member of a couple—general
(2)Subject to subsection (3), a person is a member of a couple for the purposes of this Act if:
(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
(aa) both of the following conditions are met:
(i)a relationship between the person and another person (whether of the same sex or a different sex) is registered under a law of a State or Territory prescribed for the purposes of section 22B of the Acts Interpretation Act 1901 as a kind of relationship prescribed for the purposes of that section;
(ii)the person 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.
Member of a couple—criteria for forming opinion about relationship
(3)In forming an opinion about the relationship between 2 people for the purposes of paragraph (2)(a), subparagraph (2)(aa)(ii) 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, or in a de facto relationship with, each other; and
(ii)the assessment of friends and regular associates of the people about the nature of their relationship; and
(iii)the basis on which the people make plans for, or engage in, joint social activities;
(d) any sexual relationship between the people;
(e) the nature of the people’s commitment to each other, including:
(i) the length of the relationship; and
(ii)the nature of any companionship and emotional support that the people provide to each other; and
(iii)whether the people consider that the relationship is likely to continue indefinitely; and
(iv)whether the people see their relationship as a marriage‑like relationship or a de facto relationship.”
11. The matters listed in s 4(3) of the Act are not exhaustive, since the decision-maker’s obligation under that section is “to have regard to all the circumstances of the relationship including, in particular, the (enumerated) matters”. It is clear that the decision-maker is required to assess the totality of the evidence and other available material in order to decide whether an applicant for a pension is a member of a couple, taking into account that the personal circumstances of people vary substantially: see Staunton-Smith v Secretary, Department of Social Security(1991) 32 FCR 164 at 170; Pelka v Secretary, Department of Family and Community Services(2006) 151 FCR 546.
12. It is nevertheless necessary to “have regard to” the relevant matters. This expression has been interpreted to entail a requirement to take the relevant matters into account and give weight to them as a fundamental element in the decision-making process: R v Toohey; Ex parte Meneling Station Pty Ltd(1982) 158 CLR 327 at 333.
are the applicant and the other person members of a couple?
13. I accordingly propose to discuss the evidence by reference to each of the criteria set out above.
The financial aspects of the relationship
14. Mr Parker for the respondent submitted that the financial aspects of the relationship suggested that the applicant and the other person were a couple. He relied upon the fact that, as well being joint owners (as tenants in common) of the Marino property, the two of them jointly purchased a sailing boat in 2001 which they still share joint ownership of. He also pointed out that the other person had made provision for the applicant in her will.
15. He also relied upon a co-habitation agreement signed by the two of them in March 2003, which referred to them as having entered into a de facto relationship and which he said was intended to regulate their financial affairs as a couple. In particular, he relied on paragraph 8 of that agreement, which gave each of them first option to purchase the other half of any jointly owned assets. He also relied on paragraph 11 of the agreement, pursuant to which a joint bank account was established for the payment of household and living expenses.
16. He contended that these matters demonstrated joint ownership of assets, some pooling of financial resources and some mutual legal obligations, as well as sharing of day-to-day household expenses.
17. However, the applicant and the other person each explained in their evidence that they entered into the co-habitation agreement on legal advice, precisely because they wished to keep their financial affairs as separate as possible. They said they were advised that entering into this agreement was the most effective way to achieve that objective, and they both stated in their evidence that at the time they entered the agreement they did not see themselves as a couple and did not wish to become a couple. They also said that their financial affairs were kept separate, apart from a joint bank account for small common expenses, to which they both contributed. They said that having both been married previously, neither wished to get financially involved with the other.
18. The other person said she found it ironic that signing the agreement appeared to have had the reverse effect to that which was intended. She conceded that she had provided for the applicant in her will, but explained that this was primarily because she had no living relatives and, if she died, she did not want him to be in a situation of being forced to sell the house they own jointly and both live in.
19. It is clear on the evidence that the applicant and the other person do jointly own property, namely the Marino property and a sailing boat. However, they do so on the basis of clearly defined separate interests, with their contributions having been equal. Further there is a clear understanding between them as to what is to occur if either party wishes to sell their half of the relevant asset.
20. The evidence also shows some pooling of financial resources, but only to a very limited extent. They each acknowledged that they maintain a joint account to which they each contribute for joint household expenses or expenses associated with their boat. In relation to household bills however, these appear to be divided in accordance with liability. For example the applicant indicated that the other person paid more for the phone than he did due to the contracts she had entered into, whereas he paid less towards the rates as he was able to get a senior’s discount.
21. Further, whilst they have signed a co-habitation agreement, the effect of the evidence of both of them, which I accept, was that they did this on legal advice with a view to keeping their finances as separate as possible, and to provide for the situation in which one of them wished to sell their share of any joint asset.
22. In my view the evidence directed toward this criterion is equivocal and does not point strongly either toward or away from the two being members of a couple.
The nature of the household
23. The evidence directed toward this criterion revealed a relatively high degree of separation between the applicant and the other person. The evidence suggested they share a meal together only once or twice a week and were each responsible for cleaning their area of the house. Further, the applicant said that he took care of the gardening in the front yard, around his part of the house, whilst the other person did the back yard gardening. They also had two fridges, although the applicant conceded there was one main fridge which contained some shared things.
24. In my view, the evidence directed to this criterion points away from the two being members of a couple.
The social aspects of the relationship
25. Mr Parker pointed out that the applicant and the other person have common interests, in particular in boating and diving, they had taken a trip to Japan together and they socialised together to some extent.
26. Whilst that is true however, it was also clear on the evidence that the two do not hold themselves out as “married” to each other in the sense of being an exclusive couple. Further, whilst they socialise together and have some friends in common, this appeared to be as much a result of their common interests in sailing and diving as the nature of their relationship.
27. The evidence of both the applicant and the other person was that the applicant’s family do not see the other person as the applicant’s “partner” and she does not have a great deal of interaction with his children or grandchildren. She spent last Christmas with his family after her only remaining relative, her aunt, had passed away. However they both indicated in their evidence that she did not feel entirely comfortable on this occasion and they had no plans to repeat this. Nor did they have any current plans for future holidays together.
28. The applicant’s son also gave evidence that he saw the other person as his father’s friend, and she was not really part of the family life he shared with his father. A statement of the applicant’s daughter was also provided, which was to similar effect.
29. The applicant conceded that he had described the other person on some Centrelink forms as his “partner”, however he said that Centrelink had described her in that way and he had simply adopted that description. He also conceded that some of his friends may see he and the other person as having a relationship which goes beyond a “platonic” friendship, which it does. However he said this did not mean that his friends consider them to have a relationship in the nature of marriage. The other person said that when friends make the assumption that they are a couple, they always correct this.
30. On balance, I consider that the evidence directed toward this criterion points away from the applicant and the other person being members of a couple.
Sexual relationship
31. The evidence of the applicant, which I accept, was that whilst there was still a sexual aspect to his relationship with the other person, this was a less significant part of the relationship than it had been in the past, and not something which either party saw as defining their relationship.
32. In my view, the evidence directed towards this criterion is more consistent with the two being members of a couple, but does not point strongly toward them being a couple within the meaning of the Act.
The nature of the commitment
33. It was clear on the evidence that the applicant and the other person have known each other for over 20 years and have had a close relationship with one another since 1995, that is for some 15 years.
34. The evidence of each of them was also to the effect that they had a meaningful and close relationship in an emotional sense and that they each valued the companionship they share with one another. However the other person also indicated in her evidence that she would not be prepared to financially support the applicant in the event that this became necessary, and he indicated that he would not expect this. She also indicated they had never discussed plans for the long-term future, such as entering a retirement home together. If the applicant became ill and needed care, she expected that his family would provide this rather than her.
35. As alluded to above, it was also clear from the evidence from both of them, that they do not see themselves as being in a “marriage-like” or de facto relationship. In fact, each of them said they had been married before, and the effect of their evidence was that they had gone to some lengths to avoid entering into a similar type of relationship with one another. They both articulated a desire for a greater degree of autonomy, independence and separation than that which is usually entailed in a marriage or de facto relationship, and the practical arrangements between them appeared to be consistent with that stated aim. It was also clear from the evidence of both of them that their relationship was not exclusive, and never had been, and to that extent also differed from a marriage or de facto relationship in the conventional sense. Each of them also indicated that, if the tribunal decided they were members of a couple, the other person would move out of the Marino property. In fact, the applicant said that he understood the other person had already bought a block of land which she had plans to build on if it transpired that the applicant could not obtain the single rate of age pension while they were living together.
36. In my view, whilst there are aspects of the evidence pointing in both directions, on balance the evidence toward this criterion, particularly that relating to the qualitative nature of the relationship, points slightly away from the two of them being members of a couple.
Overall assessment
37. Whilst there are certain criteria prescribed by the Act, as alluded to above, it is also clear from the relevant authorities that the question of determining whether two people are members of a couple is not to be approached as a mathematical exercise. It is necessary for a decision-maker to have regard to all aspects of the relationship and the “total picture” as disclosed by the evidence.
38. However in this matter the total picture which I consider was conveyed by the evidence was, perhaps unsurprisingly, consistent with the conclusions I have reached in relation to each of the criterion addressed above. That is, whilst some aspects of the evidence were consistent with, and could be seen as pointing toward the two being members of a couple, taken as a whole the evidence suggested that the relationship was more in the nature of a close and enduring friendship than a de facto relationship.
39. I consider that both the applicant and the other person gave their evidence in a frank and open manner and I have no hesitation in accepting their evidence. I also therefore accept that, while they value their relationship and the companionship and practical advantages which it offers, they have in fact each chosen not to enter a “marriage-like” or de facto relationship with one another and have endeavoured to make practical arrangements between them that reflect that choice. Whilst there is a sexual component to their relationship, that is only one relevant consideration and in the context of the evidence as a whole, is not sufficient in my view to compel a conclusion that their relationship is a de facto or “marriage-like” relationship.
conclusion
40. I have therefore concluded that the applicant is not a member of a couple with the other person, and has not been a member of a couple with the other person at any time between the date that he lodged his application for age pension, 9 July 2009, and the date of this decision.
decision
41. I have accordingly decided to vary the directions made by the SSAT so that they provide as follows:
(a) the applicant is not a member of a couple with the other person for the purposes of s 4 of the Social Security Act 1991 and has not been a member of a couple with the other person at any time between 9 July 2009 and the date of this decision;
(b) the other person’s financial information is not relevant to determining the applicant’s rate of age pension; and
(c) the notice dated 26 November 2009 directed to the applicant requesting him to get the other person to sign a “Mod P” form is not a lawful notice under s 192 of the Social Security (Administration) Act 1999.
I certify that the 41 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member K Bean
Signed: .....................................................................................
AssociateDate of Hearing 16 September 2010
Date of Decision 11 November 2010Advocate for the applicant Ms M Riley
Welfare Rights Centre
Advocate for the respondent Mr A Parker
Centrelink Advocacy Branch
1
3
0