Yakoubian and Secretary, Department of Family and Community Services
[2005] AATA 452
•19 May 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 452
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2003/1179
GENERAL ADMINISTRATIVE DIVISION
Re: FARIDA YAKOUBIAN
Applicant
And:SECRETARY,
DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal: G.D. Friedman, Member
Date: 19 May 2005
Place: Melbourne
Decision:The Tribunal affirms the decision under review.
(sgd) G.D. Friedman
Member
SOCIAL SECURITY - newstart allowance ‑ overpayment - member of a couple - debt to Commonwealth - waiver of debt - write-off of debt
Family Law Act 1975 s 49
Social Security Act 1991 ss 4(1), 4(2), 4(3), 24, 643, 1223(5), 1224, 1236, 1237A(1),
1237AAD, 1068
Re Beadle and Director-General of Social Security (1984) 6 ALD 1
Re Peck and Secretary, Department of Social Security (AAT 8357, 2 November 1992)
REASONS FOR DECISION
19 May 2005 G.D. Friedman, Member
1. This is an application by Farida Yakoubian (the applicant) for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 24 September 2003. The SSAT affirmed three decisions of an authorised review officer of Centrelink : a decision dated 26 May 2003 that the applicant was a member of a couple; a decision dated 5 August 2003 to raise and recover a debt of $5299.44 arising from an overpayment of newstart allowance between 19 March 1999 and 23 December 1999 (the first debt period); and a decision dated 5 August 2003 to raise and recover a debt of a debt of $5668.09 arising from an overpayment of newstart allowance between 15 March 2002 and 2 January 2003 (the second debt period).
2. At the hearing on 13 October 2004 and 5 April 2005 Ms D. Rasheva of counsel represented the applicant, assisted by an interpreter in the Arabic language. Ms K. Navarro, a Centrelink advocate, represented the Secretary to the Department of Family and Community Services (the respondent).
3. The Tribunal received into evidence the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 (T1‑T77), with one exhibit (Exhibit A1) tendered by the applicant and one exhibit (Exhibit R1) tendered by the respondent.
BACKGROUND
4. The applicant was born in Egypt on 7 September 1944. She married Albert Yacoubian on 23 November 1972 and arrived in Australia in 1973.
5. The applicant had been receiving newstart allowance between 19 March 1999 and 23 December 1999 at the single rate. Mr Yakoubian had been working as a cleaner. Payment of newstart allowance ceased when the applicant travelled overseas on 24 December 1999, and recommenced on 1 February 2000 after her return. On 24 February 2003 a Centrelink officer decided that the applicant had received $5299.44 in excess of her newstart allowance between 19 March 1999 and 9 December 1999, because her husband’s earnings affected her rate of payment, and that she should have been paid at the partnered rate. On 5 August 2003 an authorised review officer affirmed the decision to recover the overpayment.
6. In relation to the second debt period, Mr Yakoubian claimed sickness allowance due to illness, after ceasing work on 14 January 2002, stating that he and the applicant had separated. (Mrs Yacoubian’s newstart allowance had recommenced on 1 February 2000.) A Centrelink officer decided that Mr Yakoubian and the applicant were members of a couple and his sickness allowance was assessed accordingly. He was paid at the partnered rate until 11 April 2002. Subsequently, he was paid sickness allowance from 9 December 2002. The applicant had been receiving newstart allowance at the single rate between 15 March 2002 and 2 January 2003. Centrelink then decided that the applicant had been overpaid $18, 301.90 in newstart allowance between 9 June 2000 and 5 December 2002 as she had been paid at the single rate when she should have been paid at the partnered rate. . On 5 August 2003 an authorised review officer varied the decision to an overpayment of $5,668.09 between 15 March 2002 and 2 January 2003.
7. On 8 August 2003 the applicant sought review by the SSAT of two decisions: a decision made by a Centrelink officer on 9 January 2003 to assess newstart allowance on the basis that the applicant is a member of a couple; and a decision made by a Centrelink officer on 21 February 2003 to recover two debts of overpaid newstart allowance: $5299.44 between 19 March 1999 and 23 December 1999 and $5668.09 between 15 March 2002 and 2January 2003 (as varied by the authorised review officer on 5 August 2003). The SSAT affirmed both the decisions. On 23 October 2003 the applicant lodged an application with the Tribunal for review of the SSAT decision.
8. The issues before the Tribunal are whether the applicant was a member of a couple during the relevant periods and whether there are recoverable debts.
EVIDENCE
9. In oral evidence the applicant stated that the state of her marriage had deteriorated over many years and her husband had become aggressive, uncommunicative and non-supportive. She said that he had developed a serious gambling problem and on 7 September 1999 (her 55th birthday) she told her husband that she was unhappy and considered the marriage to be over, although she continued to live in the family home in St Albans which was jointly owned, because she had nowhere else to go. She stated that on 25 February 2000 she lodged an Assessment of Living Arrangements-Separated under one roof form (T15) with Centrelink. She told the Tribunal that the home was sold in 2001 because her husband had accumulated gambling and other debts, and her husband bought a house in Delahey in his name with the proceeds of the sale. She said that she lived in the home, but separately from her husband, until it was sold in September/ October 2003, although she spent one month living with her sister in May 2003.
10. The applicant explained that her decision to remain with her husband, although separated, was based on her unwillingness to leave their son Osama (born on 26 October 1980) with Mr Yakoubian. She said that, when they separated, they only went out together to visit their children. She stated that she told only her sister, her children and close friends about the separation because divorce is considered shameful in Muslim culture. The applicant said that in December 1999 she travelled to Egypt alone to visit her ill mother, and did not seek her husband’s permission.
11. The applicant stated that in about November 2003 the Delahey property was sold because of the difficulty in meeting mortgage repayments. They now live in rented accommodation and pay $939 per month. The applicant told the Tribunal that she and Mr Yakoubian reconciled in October 2003 because she wanted to give her husband an opportunity to make changes in his life, and to restore some semblance of family life. She also stated that she feels sorry for her husband, who suffers from a number of illnesses. She said that they share expenses but her husband pays the rent. She emphasised that she is unable to afford alternative accommodation for herself and her son, as she is dependent on newstart allowance for her income. The applicant said that her other two children are married and are working, but have their own commitments and are unable to provide significant financial assistance.
12. The applicant stated that during the periods of the debts she and her husband lived separate lives, slept in separate rooms and had little communication with each other.
13. Under cross-examination, the applicant agreed that on Centrelink forms she had listed the date of separation variously as September 1999, November 1999 and December 1999, but said that she was suffering from depression at times, and the correct date was November 1999. She acknowledged that in a Claim for Job Network assistance while Looking for Work, lodged by her on 4 February 2000 (T12), she did not answer the question about her marital status. She said that she did not understand the question, and also said that she had forgotten to answer it at the time. The applicant disputed the accuracy of a written statement to Centrelink on 7 February 2000 (Exhibit R1), compiled by a Centrelink officer and signed by the applicant, in which she is quoted as saying: …My husband has returned to work full‑time.
14. In a written report dated 13 August 2004 (Exhibit A1) Dr P. Keddie, medical practitioner, stated that the applicant has been a patient at his practice for about 24 years. He said that in the clinical notes there is mention of marital discord since at least 1986. He stated that he could recall in the recent past that she had told him that she and her husband were living separate lives under the same roof. In oral evidence Dr Keddie stated that, from 1996 to 1999, the applicant had consulted another doctor at the practice. He said that he treated her for stress and anxiety, and that she had referred to marital difficulties. Under cross-examination Dr Keddie agreed that in his notes of consultations in December 1999, March 2002, June 2002 and December 2003, there was no reference to family or domestic issues, and the applicant did not state that she was separated from Mr Yakoubian.
15. Mr Yakoubian gave oral evidence that during the first debt period he slept on the couch and the applicant slept in the bedroom. He said that they shared the payment of household bills, although they led separate lives and rarely spoke to each other. They did not socialise together apart from visits to their children. Mr Yakoubian stated that they did not have enough money to live in separate houses, so they remained separated under one roof. He told the Tribunal that formal separation occurred in November 1998, and that references to November 1999 in various documents, completed by himself and the applicant, to the contrary were a mistake.
16. Mr Yakoubian explained that, in 2001 after selling the St Albans property, he purchased the Delahey property in his name only, because he was unable to obtain a loan in joint names at the time. He said that he sometimes played poker machines as an interest, and denied that he had a gambling problem at any time. He said that he did not recall the applicant informing him in September 1999 that she considered the marriage to be over. He said that he has never told his children, relatives or friends that he had been separated, as in his culture separation was not a matter of pride.
17. In respect of the second debt period Mr Yakoubian told the Tribunal that a similar situation existed whereby he and the applicant slept in separate rooms and did not spend time together apart from visits to their children. He said that they reconciled in October 2003 after he suffered a severe illness, although they do not have enough money to go out on a regular basis. Mr Yacoubian explained that he has not made a will, and expects that his assets would be shared by the applicant and their children.
18. Mr O. Yacoubian (Osama), the applicant’s youngest child, gave oral evidence that he lives with his parents. He said that, for the last 6 or 7 years, the applicant and Mr Yacoubian have not been happy, they do not speak to each other and nothing has changed significantly in that period, although they sometimes sleep in the same room. He explained that, during the first debt period, his parents had separated, with the applicant paying for food and Mr Yacoubian paying other bills. He said that Mr Yacoubian has performed most of the household tasks. Osama stated that, during the second debt period, a similar financial arrangement applied.
19. Osama told the Tribunal that he considers his parents to be separated, but he believes that they remain in the same house for financial reasons and because he is living there. Under cross-examination he said that the applicant has discussed the marital relationship with him several times and has told him how unhappy she has been, although he said that in times of need his parents would support each other. He said that, because of the unpleasant atmosphere at home, he spends as little time there as possible. He ruled out the possibility of living with one parent in a different location.
CONSIDERATION OF THE ISSUES
20. In respect of whether a person is a member of a couple, the relevant sections of the Social Security Act 1991 (the Act) are:
4.(1) In this Act, unless the contrary intention appears:
…
"member of a couple" has the meaning given by subsections (2), (3), (3A), (6) and (6A);
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; or
(b) all of the following conditions are met:
(i)the person has a relationship with a person of the opposite 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 marriage-like 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 for the purposes of section 23B of the Marriage Act 1961.
Note: …
4.(3) In forming an opinion about the relationship between 2 people for the purposes of paragraph (2)(a) 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 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.
21. Section 643 of the Act provides that a person’s rate of newstart allowance is calculated using the rate calculator at s 1068 of the Act. If a person is partnered then the partner’s income must be taken into account to determine the rate of newstart allowance.
22. Ms Rasheva submitted that during the relevant periods the applicant and her husband were separated, despite residing under the one roof. She referred to s 49 of the Family Law Act 1975, which provides that parties to a marriage may be held to have separated, even though they have continued to reside in the same residence or that one party has rendered some household services to the other. She noted that the applicant and Mr Yakoubian did not have a common social life, there was no meaningful communication between them, no sexual relationship, and no common decision-making. She stated that Mr Yakoubian’s gambling had altered the relationship, and had drastically reduced the applicant’s access to financial resources for basic household expenses or to consider living separately. Ms Rasheva pointed to cultural difficulties in a physical separation because of the shame of divorce in the Muslim community.
23. In relation to waiver of the debts, Ms Rasheva submitted that there are special circumstances, in that the applicant was forced to live with her husband in a situation where they no longer regarded themselves as husband and wife because of cultural aspects of their religion and the shame of divorce. She stated that the applicant has suffered depression as a result of emotional abuse by Mr Yakoubian over a long period, and consequently she lacked the confidence and strength to undertake a difficult separation and divorce. Ms Rasheva pointed to the applicant’s poor health and her age, and the difficulty of supporting herself and her son through employment, and her dire financial situation. She submitted that Centrelink has been inconsistent and confusing in its approach to the question of whether the parties were separated at relevant times.
24. Ms Navarro submitted that the applicant’s statements to Centrelink, the SSAT and the Tribunal contained many inconsistencies and contradictions. She referred to the criteria contained in s 4(3) of the Act and stated that the evidence pointed to a finding that, at relevant times, the applicant was married to Mr Yakoubian and she was not living separately and apart from him on a permanent or indefinite basis. She stated that, as the applicant received newstart allowance payments to which she was not entitled, there was an overpayment under the Act, and the debts were raised correctly. Ms Navarro said that there was no administrative error attributable to the Commonwealth; there were no special circumstances to justify waiver of the debt; and there were no grounds to write off the debt.
25. In reaching its decision the Tribunal takes into account the oral and written evidence and the submissions made at the hearing.
26. The Tribunal agrees with Ms Navarro that the evidence from the applicant and Mr Yakoubian contained a number of inconsistencies and contradictions, particularly regarding the date of separation between them and subsequent periods of reconciliation. In considering each of the factors contained in s4(3) of the Act the Tribunal takes into account that, in her application for newstart allowance dated 4 February 2000, the applicant provided details of her partner and did not answer the question as to whether she was separated. The Tribunal does not accept that she did not understand the question or that she accidentally missed the question when preparing her answers.
27. The Tribunal accepts the evidence from Osama, who has observed his parents’ relationship while living with them, that his parents sometimes share a bedroom; that they have been unhappy for a number of years, but would assist each other if necessary. The Tribunal accepts his evidence that the situation has not changed for a number of years.
28. In relation to the financial aspects of the relationship, the Tribunal notes that, during the first debt period, the applicant and Mr Yacoubian jointly owned the St Albans property. The Tribunal finds that the parties shared the payment of household bills. During the second debt period, the Tribunal finds that, although the Delahey property was in Mr Yacoubian’s name, the parties continued to share the household bills. The parties have had separate bank accounts.
29. In relation to the nature of the household, the Tribunal finds that during both debt periods the parties lived with Osama, and did not interact greatly, with Mr Yacoubian performing some household tasks and the applicant performing others. The applicant has been reluctant to alter the household arrangement, even after the sale of the St Albans property, and Osama was not in a position to move out of the family home.
30. In relation to the social aspects of the relationship, the Tribunal finds that during the debt periods the applicant and Mr Yacoubian did not socialise together apart from joint visits to their other children, or when their children visited them. The Tribunal is satisfied that friends and relatives were not made aware that the parties considered themselves to be separated, and that they held themselves out as a married couple.
31. In relation to any sexual relationship between the applicant and Mr Yacoubian during the debt periods, the Tribunal accepts that the parties generally did not have a sexual relationship, although the Tribunal notes Osama’s evidence that they sometimes shared a bedroom.
32. In relation to the parties’ commitment to each other, the Tribunal takes into account that they have been married for a long time. The Tribunal accepts the evidence that Mr Yacoubian has not made a will, but expects that any assets would be divided between the applicant and the children. No formal steps have been taken to bring the marriage to an end, and despite the poor relationship there is no indication that during the debt periods the parties had severed all emotional or other connections with each other.
33. In Re Peck and Secretary, Department of Social Security (AAT 8357, 2 November 1992) the Tribunal stated (at p 7):
…
The Tribunal would note at the outset that s.4(3) does not contain an exhaustive list of criteria to be addressed when determining whether a "marriage-like relationship" exists (Re Staunton-Smith and Secretary, Department of Social Security (1990) 21 ALD 456) and the weight to be given to each factor will vary depending on the circumstances involved, with the object of identifying the presence or absence of the essential character of a marriage-like relationship.
34. The Tribunal notes Mr Yacoubian’s evidence that he reconciled with the applicant in October 2003 and he considers that he and the applicant are living as husband and wife. Given the nature of their relationship, the Tribunal accepts Osama’s evidence that the relationship has not changed for a number of years, and the Tribunal accepts that, during the debt periods, there were no plans by the applicant or Mr Yacoubian to live apart. The Tribunal accepts the accuracy of the information contained in the member of a couple assessments completed by Mr Yakoubian and by the applicant on another occasion, and finds that separation occurred in December 1999, and not September 1999, and that there has been significant pooling of resources and mutual commitment throughout the debt periods.
35. On the material presented, the Tribunal finds that the applicant was, at the relevant times, legally married to Mr Yakoubian and was not living separately and apart from him on a permanent basis. Therefore, the applicant was a member of a couple for the purposes of s 4 of the Act. Section 24 of the Act provides the decision-maker with discretion to find that, for a special reason in the particular case, a person not be treated as a member of a couple. The Tribunal finds that the applicant and Mr Yakoubian expected to benefit from the pooling of resources that usually occurs in a marital relationship, so the discretion in s 24 should not be exercised.
36. The Tribunal finds that the applicant failed to notify Centrelink of changes in Mr Yacoubian’s income as required in recipient letters sent to the applicant, and received payments of newstart allowance, to which she was not entitled, of $5299.34 for the first debt period; and $5668.09 for the second debt period. The overpayments are a debt to the Commonwealth under s 1223(5) and s 1224 of the Act.
37. Section 1236 of the Act provides for a write-off of a debt owed to the Commonwealth under certain circumstances. The Tribunal finds that the applicant has the capacity to repay the debt by deduction from ongoing social security payments, and that the debt is not irrecoverable at law. Therefore, those circumstances are not present.
38. Section 1237A of the Act provides for waiver of a debt arising from administrative error:
1237A(1) Subject to subsection (1A), the Secretary must waive the right to recover the proportion of a debt that is attributable solely to an administrative error made by the Commonwealth if the debtor received in good faith the payment or payments that gave rise to that proportion of the debt
1237A(1A) Subsection (1) only applies if:
(a)the debt is not raised within a period of 6 weeks from the first payment that caused the debt; or
(b)if the debt arose because a person has complied with a notification obligation, the debt is not raised within a period of 6 weeks from the end of the notification period;
whichever is the later.
In view of its findings that the debts arose because the applicant provided incomplete and inaccurate information to Centrelink, the Tribunal finds that the applicant’s debts to the Commonwealth were not attributable solely to administrative error by Centrelink. Therefore, the debt cannot be waived under s 1237A of the Act.
39. Section 1237AAD of the Act provides for waiver of the debt in certain other circumstances:
1237AAD. The Secretary may waive the right to recover all or part of a debt if the Secretary is satisfied that:
(a)the debt did not result wholly or partly from the debtor or another person knowingly:
(i) making a false statement or false representation; or
(ii)failing or omitting to comply with a provision of this Act or the 1947 Act; and
(b)there are special circumstances (other than financial hardship alone) that make it desirable to waive; and
(c)it is more appropriate to waive than to write off the debt or part of the debt.
40. In Re Beadle and Director-General of Social Security (1984) 6 ALD 1 the Tribunal held that the special circumstances, referred to in s 1237AAD(b), must be unusual, uncommon or exceptional. The Tribunal accepts that, for cultural or religious reasons, the applicant and Mr Yacoubian might have been reluctant to divulge marital problems to relatives and friends, or to seek a formal end to the marriage. The Tribunal also accepts that the applicant’s financial position is difficult, and that major financial decisions appear to have been made by Mr Yacoubian without adequate consultation with the applicant.
41. On balance, the Tribunal is satisfied that, although the applicant’s overall situation may have been difficult, the circumstances in this case, including suggestions that the applicant suffered emotional abuse from Mr Yacoubian, are not unusual, uncommon or exceptional, and do not constitute special circumstances (other than financial hardship alone). Therefore, the waiver provisions of s 1237AAD of the Act do not apply.
42. Therefore, the applicant owes debts to the Commonwealth in the amounts of $5299.34 and $5668.09, which cannot be written off or waived.
43. Having dealt with the second of the two Centrelink decisions affirmed by the SSAT, the Tribunal now turns to the first decision: i.e. the decision made by a Centrelink officer on 9 January 2003 to assess newstart allowance on the basis that the applicant is a member of a couple. In light of the evidence before the Tribunal, on balance, the Tribunal is satisfied that, as at 9 January 2003, the applicant was a member of a couple for the assessment of newstart allowance.
DECISION
44. The Tribunal affirms the decision under review.
I certify that the forty-four [44] preceding paragraphs are a true copy of the reasons for the decision of:
G.D. Friedman, Member
(sgd) Catherine Thomas
Clerk
Dates of hearing: 13 October 2004
5 April 2005
Date of decision: 19 April 2005
Counsel for the applicant: Ms D. Rasheva
Solicitor for the applicant: Victoria Legal Aid
Advocate for the respondent: Ms K. Navarro, Centrelink
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