Xanh and Secretary, Department of Social Services (Social services second review)

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 Division (AAT1) also affirmed this decision. The learned member found that the applicant was a member of couple during the relevant period because:
“…they shared household expenses; bequeathed and inherited significant savings; shared time, travel, interests and a household; and demonstrated an emotional, caring and legal commitment to each other.”[2]
[2] T2, 7 [19].
The question before the Tribunal is whether the applicant was entitled during the course of her marriage to receive the higher single rate for the DSP. The fact that the parties were married does not by itself answer that question.
The applicant is required to repay any overpayment unless the debt resulted from Centrelink’s sole administrative error or there are special circumstances, such that the debt should be waived or written off, in whole or in part.
LEGISLATIVE FRAMEWORK
Section 4 of the Social Security Act 1991 (Cth) (SSA) provides a framework for determining whether a person is a member of a couple:
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 …
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.
THE HEARING
The application came before the Tribunal on 12 September 2019. The applicant gave evidence in person.
The applicant was born in 1965. She lives in community housing. Her first marriage at age 24 ended in divorce. The union lasted only a year but resulted in a son, now in his late twenties. Her first husband passed away.
In 2005 the applicant met Mr Dang, an elderly divorcee with one son. He had some skills in alternative medicine and she consulted him about health issues. They did not have any social contact for the next eight years but in 2013 she reached out to him because of her health problems. According to a Statement tendered to the Tribunal:
“In 2013 my health condition got worse. I was suffering from a bad back, dizziness and often fell when walking. I got in touch with him toward the end of 2013. He offered to become my carer. He told me that it would be easier for him to care for me if we get married.”
As noted above, the parties were married on 4 March 2014.
The applicant says they were not sexually intimate for the entirety of their marriage.
By her account it was, while it lasted, a very caring and supportive relationship. They got on very well. Mr Dang was kind and caring. They did not argue, or at least not much; and he had a way of calming her down when she got upset. He sounded rather like an ideal husband, a proposition with which she agreed at the hearing.
They travelled together - to Vietnam (10 July 2014, 2016)[3], the United States (2014)[4] and Japan (2 March 2016).[5] But they did not live together until sometime in August 2016, when Mr Dang moved into the applicant’s flat.
[3] T11, 112, 115; T9, 100.
[4] T11, 109.
[5] T9, 100.
Sadly, Mr Dang was admitted to hospital in November 2017 and entered a care facility on 5 December 2017. He died on 21 March 2018.
In all, they cohabited in her one bedroom flat for a little over a year.
The applicant told the Tribunal that she did not see Mr Dang as her husband. She says she saw him as an elder brother, or her father, but not as her husband. She said they were not a ‘fair dinkum couple’. That is why they did not tell anyone about their marriage. But it was not a secret. She didn’t mind if people found out. She was just private about the fact. She saw no need to tell her son. Nor did Mr Dang tell his son. The sons did not know each other.
The applicant’s son provided a sworn affidavit to the Tribunal in which he asserts that his mother did not tell him about her marriage.
The applicant says that she did not love Mr Dang as she had loved her first husband. When asked whether Mr Dang loved her she said “Yes, but he loved humanity”. She says that they were just two old persons trying to help each other. The age and indeed ethnicity of the parties may have some bearing on the question before the Tribunal.
On 14 December 2017 Mr Dang executed a will in favour of the applicant, described as ‘my wife, full name: Kim Mai Xanh’. She was the sole beneficiary of his estate. According to her statement she inherited about $60,000 from his superannuation and share accounts.
Her evidence is that Mr Dang was essentially a health carer, and a friend. She was in a good deal of pain and he provided care. Mr Dang was in receipt of a carer’s allowance in relation to the applicant from 28 April 2016.
The picture painted is one of caring and mutual support with a degree of emotional expedience. It was not entirely convenient. When the couple started to reside together, in late 2016, he slept in the lounge room and she had the bedroom.
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.
But was the applicant a member of a couple from 4 March 2014, the date of her marriage to Mr Dang? I think that is a much more complex question.
In my view, and with great respect for AAT1, I have come to the conclusion that from the date of the registration of marriage on 4 March 2014 until Mr Dang moved in to her apartment, the parties were in fact living separately and apart on a permanent or indefinite basis.
I am mindful of the key factors that require consideration, but in light of her evidence and the objective facts as to their independence, frequency of interactions, and the lack of publicity associated with their marriage, I have concluded that they were during this phase of their marriage, living separately and apart on a permanent or indefinite basis.
This apartness may well have continued to the end, but for a twist of fate, or perhaps one might say, with greater accuracy, a twist of the applicant’s ankle. This triggered an unplanned event. But for the twisted ankle, they may have continued as LATs (standing for, Living Apart Together), the name given by sociologists and popular culture for those who choose to live apart while enjoying a committed relationship.[9]
[9] A Reimondos, A Evans, E Gray, Living Apart together (2011) Family Matters, No 87, 43. (accessed on 17 December 2019).
Nevertheless, it would be unrealistic to think that cohabitation under these circumstances did not change the relationship. They were during this new phase sharing the costs and burdens of living together. She says for example that he contributed to the rent and utilities by paying money directly to the applicant.
The conclusion I have reached is respectfully different from that reached by AAT1. I am heartened by the words of Justice French (as he then was) in Pelka v Secretary, Department of Family and Community Services [2006] FCA 735, where his Honour said, at [46]-[47]:
[46] The decision-maker ‘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 weight against a marriage-like relationship [and those which weigh in favour of it.
…
[47] The judgment to be made is difficult and, once out of range of obvious cases falling within the core concept of ‘marriage-like’, will be attended by a degree of uncertainty. Indeed, it may be that different decision-makers on the same facts could quite reasonably come up with different answers’.
One area of some certainty is the date on which they commenced cohabitation. Although there is no independent record of this date, the applicant said that Mr Dang moved in sometime in August 2016.
I note that Mr Dang updated his home address with Centrelink to the applicant’s address on 16 November 2016. This is a significant date. However I have chosen, based on the applicant’s evidence, the end of August 2016 as the relevant date on which cohabitation commenced. Therefore:
(a)I find that for the period 4 March 2014 to 31 August 2016, the applicant was living separately and apart from her husband Mr Dang on a permanent or indefinite basis; and during this period she was entitled to DSP at the single rate. Since she was paid at the single rate, no debt arises by reason of her DSP payments for this period.
(b)I find that for the period 1 September 2016 to 5 December 2017, the applicant was a member of a couple with her husband Mr Dang, and during this period she was entitled to DSP at the lower partnered rate. Since she was paid at a rate higher than that to which she was entitled, she is required to repay the overpayment. This is a debt owed to the Commonwealth.
Sole administrative error
There is no basis for finding that this debt arose due to sole administrative error by the Department. The applicant claims that she advised Centrelink that she was “married on 4 March 2014 but lived separately”. AAT1 rejected this contention. There is nothing in the material before the Tribunal to support the contention that in around August 2016 or at any prior time the applicant informed Centrelink that Mr Dang was or would be living with her. It was not until 12 December 2017 that the applicant informed Centrelink that she was married.
Special circumstances
The applicant relies upon her health and financial circumstances as special circumstances justifying waiver of all or some part of the debt. The evidence is that during the final months, the applicant and Mr Dang shared the flat, and that they shared his final days until he was required to go to a care facility in a manner befitting married couples. It is also relevant to note that she was the sole beneficiary of his estate, in an amount far exceeding the debt amount that will arise by the overpayment during the period they were living together. There is nothing in the living arrangements of this married couple over the last period of cohabitation that lifts it out of the ordinary so as to create a special circumstance. The evidence does not support a finding of special circumstances.
CONCLUSION
I find that:
(a)For the period from 4 March 2014 until 31 August 2016, the applicant was not a member of a couple and was (despite being married to Mr Dang) living separately and apart from him on a permanent or indefinite basis. She was therefore entitled to DSP at the single rate during this period.
(b)For the period from 1 September 2016 until 5 December 2017, the applicant was a member of a couple with her husband Mr Dang. She was therefore not entitled to receive the DSP at the single rate during this period but ought to have received the lower rate of payment applicable to couples.
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.

I certify that the preceding 50 (fifty) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member

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Associate
Dated: 18 December 2019

Date(s) of hearing: 12 September 2019

Applicant: In person

Solicitors for the Respondent: Mr L Dennis, Department of Human Services

[2019] AATA 5451

18 December 2019

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Jurisdiction

Date(s) of hearing:	12 September 2019
Applicant:	In person
Solicitors for the Respondent:	Mr L Dennis, Department of Human Services