Xanh and Secretary, Department of Social Services (Social services second review) - [2019] AATA 5451

Xanh and Secretary, Department of Social Services (Social services second review) [2019] AATA 5451 (18 December 2019)
Division:GENERAL DIVISION
File Number(s): 2018/6601
Re:Kim Mai Xanh
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Emeritus Professor P A Fairall, Senior Member
Date:18 December 2019
Place:Sydney

The decision under review is set aside, and the matter is remitted to the Secretary for reconsideration in accordance with the terms of this decision.
............................[sgd]............................................
Emeritus Professor P A Fairall, Senior Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – whether a member of a couple – s4 Social Security Act 1991 (Cth) – parties legally married – period of cohabitation – whether sole administrative error – special circumstances – decision set aside and remitted
LEGISLATION
Social Security Act 1991 (Cth) s 4
CASES
Pelka v Secretary, Department of Family and Community Services [2006] FCA 735
REASONS FOR DECISION
Emeritus Professor P A Fairall, Senior Member
18 December 2019

This case raises a perplexing question as to the relationship status for Centrelink purposes of a married couple during their four years of marriage. Deciding whether a marriage is a real marriage or a sham is not always easy. Marriages are private affairs. Indeed, as one writer has said:
“It is the essence of marriage that it is private and apart from the rest of society. Its ‘selfishness’ or ‘exclusiveness’ is not its undertone but its heart and soul.”[1]
[1] Mount, F (1982) The subversive Family: An alternative History or Love and Marriage, London, Cape, at 188, quoted in Wilson K and Ridler A, “Marriage and Literature”, British Journal of Social Work (1989) 19, 111.
On 4 March 2014 the applicant and one Mr Dang were married by a marriage celebrant in Cabramatta. There was no ceremony and no public celebration. She did not tell her son or anyone else about the marriage.
The relationship ended on 21 March 2018 with the passing of the husband. They lived together in a one bedroom flat for approximately a third of the four years they shared as a married couple.
The applicant was the recipient of the Disability Support Pension (DSP), granted initially on 13 December 2010.
During the course of her marriage she was paid at the single rate rather than the lower rate applicable to those in a marriage or marriage like relationship.
The Department of Social Services (Centrelink) asserts that she was a member of a couple from the date of her marriage on 4 March 2014 until her husband entered a care facility on 5 December 2017.
The applicant received DSP of $84,563.21 over this period at the “single” rate but Centrelink says that she was only entitled to receive $63,743.13 at the “partnered” rate. On 12 December 2017 Centrelink decided to raise and recover a debt in the amount of $20,820.08.
On 13 August 2018, an authorised review officer (ARO) affirmed Centrelink’s decision.
On 8 October 2018, the Administrative Appeals Tribunal Social Services and Child Support…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Xanh and Secretary, Department of Social Services (Social services second review) [2019] AATA 5451
Case: [2019] AATA 5451
Decision Date: 18 December 2019

CaseChat Overview and Summary

This matter concerned an appeal by the applicant, Xanh, against a decision by the Secretary of the Department of Social Services regarding her eligibility for a disability support pension. The central dispute revolved around whether Xanh was considered a "member of a couple" for the purposes of the *Social Security Act 1991* (Cth) during a period when she and her legally married husband, Mr Dang, were cohabiting. The case was heard by Emeritus Professor P A Fairall, Senior Member.

The primary legal issue before the Tribunal was to determine whether Xanh and Mr Dang were living separately and apart on a permanent or indefinite basis, as defined by subsection 4(3) of the *Social Security Act 1991*. This involved assessing various indicators of a relationship, including financial aspects, household arrangements, social interactions, sexual relations, and the nature of their commitment to each other. The Tribunal also considered whether any debt arose due to the Department's sole administrative error and whether special circumstances existed to justify waiving or writing off any debt.

The Tribunal found that despite the applicant's subjective view that the marriage was not a "real marriage," her evidence, along with objective indicators such as Mr Dang listing the applicant's address as his own and identifying her as his spouse on aged care forms, supported the conclusion that they were members of a couple. The Tribunal reasoned that during their period of cohabitation from August 2016 to December 2017, they were legally married and, in the absence of evidence of profound estrangement, were not living separately and apart on a permanent or indefinite basis. The Tribunal further determined that the debt did not arise from the Department's sole administrative error and that no special circumstances were present to warrant waiving the debt. The decision under review was set aside, and the matter was remitted to the Secretary for reconsideration.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

I also find that the debt did not arise by reason of the Department’s sole administrative error, and there is no material before the Tribunal capable of supporting a finding of special circumstances so as to justify waiving or writing off the debt, in whole or in part.DECISION The decision under review is set aside, and the matter is remitted to the Secretary for reconsideration in accordance with the terms of this decision.

Ratio Decidendi

Legal Principle Established

The applicant’s evidence provides some foundation for saying that in her mind the marriage was not a real marriage. The subjective view of the parties is undoubtedly relevant to some of the objective features of marriage, such as the degree of commitment to each other and the way in which the relationship is presented to the outside world. CONSIDERATION It is accepted that the applicant has a powerful incentive to colour the nature of the relationship so as to achieve a financially beneficial outcome. However, I found her a credible witness. I note that on 7 December 2017, Mr Dang submitted a ‘Permanent Residential Aged Care’ form indicating that his address was the same as the applicant’s and that the applicant was his nominee (for aged care matters) and spouse. On 12 December 2017, the applicant completed a ‘Confirmation of Relationship’ form indicating that she was married to Mr Dang on 4 March 2014.[6][6] T6, 31. Given that the parties were legally married, the critical question is whether, in light of the criteria referred to in subsection 4(3) of the SSA, the parties were living separately and apart from each other on a permanent or indefinite basis, for some or all of the relevant period. Section 4(3) refers to key indicators which determine whether a person is a member of a couple:(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; and(e)the nature of the people's commitment to each other. The factors contained in this subsection are not cumulative. They are not necessary conditions. But in a case where the parties are legally married, with the benefits of a legally recognised union, the factors identified by AAT1 are, in my opinion, sufficient in this case to justify a finding that they were members of a couple, at least from when they started living together until separated by Mr Dang’s ill health. In my view, from the date in August 2016 (when they started to cohabit at the applicant’s flat) until 5 December 2017 (when Mr Dang departed the flat for a care facility) the provisions of subsection 4(2) of the SSA apply directly: 4(2) Subject to subsection (3), a person is a member of a couple for the purposes of this Act if:(a) the person is legally married to another person and is not, in the Secretary's opinion (formed as mentioned in subsection (3)), living separately and apart from the other person on a permanent or indefinite basis … In the absence of any evidence of profound estrangement, it stretches credulity to regard the applicant and Mr Dang as cohabiting in a one bedroom flat, but living ‘separately and apart from the other person on a permanent or indefinite basis’. During this period of cohabitation they were married, supporting each other in meaningful ways, and focused on their health needs. The applicant was at this point a member of a couple. I note that when on 12 December 2017 Mr Dang applied for residential care he gave his address as the applicant’s address[7] and he described the applicant as his “spouse”.[8] When on the same day the applicant completed a ‘Confirmation of Relationship’ form she confirmed her status as married. [7] T4, 55.[8] T4, 76.