Elliott and Secretary, Department of Family and Community Services [2002] AATA 209 (2 April 2002)

Last Updated: 3 April 2002

DECISION AND REASONS FOR DECISION [2002] AATA 209

ADMINISTRATIVE APPEALS TRIBUNAL )

) No S2001/117

GENERAL ADMINISTRATIVE DIVISION )

Re DOROTHY ANNE ELLIOTT

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Senior Member WJF Purcell

Date 2 April 2002

Place Adelaide

Decision The Tribunal affirms the decision under review.

(Signed)

WJF PURCELL

(Senior Member)

CATCHWORDS

SOCIAL SECURITY - pensions, benefits and allowances - Bereavement Payment - whether applicant was entitled to Bereavement Payment in respect of her late husband - whether applicant and her late husband were members of a couple

Social Security Act 1991 sections 21, 82, 660XKG

REASONS FOR DECISION

2 April 2002 Senior Member WJF Purcell

1. This is an application for review of a decision of the Social Security Appeals Tribunal (the SSAT) of 1 March 2001, which affirmed the decision of an Authorised Review Officer of 30 May 2000, not to pay to the applicant Bereavement Payment in respect of her late husband, Dean Elliott.

2. The evidence before the Tribunal comprised the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T Documents). The Hearing was conducted by telephone. The applicant, who appeared on her own behalf, gave oral evidence, and was assisted by Mr Wells of Disabled People (Whyalla) Incorporated. Mr Kilderry represented the respondent (the Department).

3. On 4 June 1966, the applicant was married to Mr Dean Elliott. He was nearly 9 years younger than the applicant. He was in receipt of Mature Age Allowance when he notified the Department that he had separated from the applicant some time in 1991. He was paid Mature Age Allowance then, at the single rate. The applicant was in receipt then of Age Pension at the single rate. On 28 February 2000 a person, identifying himself as Mr Elliott, telephoned the Department to advise that he wanted his niece, Ms Gail Gillings, to have authority to inquire about his payments, and that he did not wish his ex-partner to have any access to his account. The Departmental file note [T8/22] reads as follows:

"rang a/n - he is now in cleve hospital and would like his postal add to be changed to 9 fitzgerald st, cleve which is his niece's address. His home address will be c/- cleve hospital. he said that he had sorted out all his other queries when he contacted centrelink and did no[t] wish to discuss any other matters.

he also did not wish to be visited by a social worker etc as the hospital and his niece are assisting with financial affairs etc.

this ph no for cleve hospital should be 86282399.

rang a/n back as i forgot to advise him i will send an authority to enquire form for his niece. a/n is not paying any board and lodging at present as he is classed as a temporary resident. he will ring me if he starts paying anything or has any other queries. he would like gail gillings to have authority to ring re maa etc. a/n also enquired re payments if he passes away. he does not wish his ex partner to have any access to his account etc. I advised a/n the last payment would be paid direct to his nominated account and I suggested he contact the bank to ensure that his ex ptnr could not have any access to this. I also coded the executor of the estate (niece) at a/n's request."

4. On the night of 10 April 2000 Mr Elliott died. The Departmental entries record that earlier that same day, the applicant inquired as to whether she could receive a Bereavement Payment, as her husband was in hospital very ill. She stated that he had been back living with her for a couple of years, and that he went to hospital on 23 December 1999 [T8/23]. The Departmental entries record also that the applicant telephoned the Department on 11 April 2000 and advised of the husband's death. The applicant said in evidence that she did not make any telephone calls to the Department until three days after the husband's death, and that the call on 11 April would have been made by the husband's niece, Ms Gillings. The Departmental note [T8/24] of a telephone conversation with the applicant on 18 April 2000 reads as follows:

Customer notified of Death of ex-husband on 10/4 - Dean Elliott. Customer wishes to apply for berevement [sic] payment as she claims they were living together before he passed away. On ex-ptr's record there is a doc stating that he is not with Dorothy and that he did not have long to live and that she should not receive any berevement [sic] payments on his behalf. Dean's address has not matched 5 Schulz Ave since Jan 1999. Dorothy still wants a review of the decision. Have issued ss351 to her on the18/4. Dorothy has been receiving single rate of pension since 1991."

5. The application was refused on 18 April 2000 on the basis that the Department had recorded Mr Elliott as a single person who had requested explicitly, that his ex-partner not receive the payment. Section 660XKG of the Social Security Act 1991 (the Act) applies in relation to the death of a single person and provides:

"660XKG Death of recipient

(1) If:

(a) a person is receiving mature age allowance; and

(b) either:

(i) the person is not a member of a couple; or

(ii) the person is a member of a couple and the person's partner:

(A) is not receiving a social security pension; and

(B) is not receiving a service pension; and

(c) the person dies;

there is payable, to such person as the Secretary thinks appropriate, an amount equal to the amount that would have been payable to the person under this Act on the person's payday after the person's death if the person had not died.

(2) If an amount is paid under subsection (1) in respect of a person, the Commonwealth is not liable to any action, claim or demand for any further payment under that subsection in respect of the person."

6. The husband's last payment on 13 April 2000, 3 days after his death, was paid into his bank account as usual. In the normal course, the Department makes the final payment into the bank account, allowing the executor of the estate to use the payment as is deemed appropriate.

7. On 30 May 2000 an Authorised Review Officer affirmed the decision, and the applicant applied to the SSAT for review. The SSAT affirmed the decision on 1 March 2001. The applicant has applied to this Tribunal for review of that decision.

8. The applicant submits that at no time was she divorced from her husband, nor an "ex-partner" or an "ex spouse". He left her on several occasions due mainly to his illness, and to his chronic drinking problem, but he returned home in 1997 and stayed with the applicant until his admission to hospital on 24 December 1999. The applicant maintains also, that she went into the Centrelink office during 1997 and 1999 and told a Departmental officer that her husband had returned to live with her. She believes that she did everything expected of her to keep the Department informed; and what the Department decided to do with that information had nothing to do with her. She told the truth, and the Department may not have recorded correctly what she said.

9. The Department argues that the appropriate person to receive the amount payable, pursuant to section 660XKG of the Act, is the executor of the estate. Since 1991 the husband had been treated as not being a member of a couple. He had advised the Department on 28 February 2000 that he did not wish his ex-partner to have access to any payments if he passed away; and the person thought appropriate to receive the amount payable was the executor of the estate.

10. In accordance with the legislation, had the husband been regarded as a member of a couple, the applicant, as the recipient of an Age Pension, would be eligible for a large Bereavement Payment, pursuant to section 82 of the Act, which as far as is relevant for the purposes of this review, provides:

"(1) If:

(a) a person is receiving an age pension; and

(b) the person is a member of a couple; and

(c) the person's partner dies; and

(d) immediately before the partner died, the partner:

(i) was receiving a social security pension; or

(ii) was receiving a service pension; or

(iii) was a long-term social security recipient; and

(e) on the person's payday immediately before the first available bereavement adjustment payday, the amount that would be payable to the person if the person were not qualified for payments under this Subdivision is less than the sum of:

(i) the amount that would otherwise be payable to the person under section 85 (person's continued rate) on that payday; and

(ii) the amount that would otherwise be payable to the person under section 83 (continued payment of partner's pension or benefit) on the partner's payday immediately before the first available bereavement adjustment payday;

the person is qualified for payments under this Subdivision to cover the bereavement period.

Note 1: section 83 provides for the payment to the person, up to the first available bereavement adjustment payday, of amounts equal to the instalments that would have been paid to the person's partner during that period if the partner had not died.

Note 2: section 84 provides for a lump sum that represents the instalments that would have been paid to the person's partner, between the first available bereavement adjustment payday and the end of the bereavement period, if the partner had not died.

...

(2) A person who is qualified for payments under this Subdivision may choose not to receive payments under this Subdivision.

Note: if a person makes an election, the date of effect of any determination to increase the person's rate of age pension may, in some circumstances, be the day on which the person's partner died (see subsection 80 (5A)).

(3) An election under subsection (2):

(a) must be made by written notice to the Secretary; and

(b) may be made after the person has been paid an amount or amounts under this Subdivision; and

(c) cannot be withdrawn after the Department has taken all the action required to give effect to that election.

(4) If a person is qualified for payments under this Subdivision in relation to the partner's death, the rate at which age pension is payable to the person during the bereavement period is, unless the person has made an election under subsection (2), governed by section 85."

11. "Bereavement period" is defined in section 21 of the Act as follows:

"...

(2) For the purposes of this Act, if a person dies:

(a) the bereavement period in relation to the person's death is the period of 14 weeks that starts on the day on which the person dies; and

(b) the bereavement notification day in relation to the person's death is the day on which the Secretary becomes aware of the death; and

(c) the first available bereavement adjustment payday in relation to the person's death is the first payday of the person after the bereavement notification day for which it is practicable to terminate or adjust payments under this Act to take account of the person's death; and

(d) the bereavement rate continuation period in relation to the person's death is the period:

(i) that begins on the day on which the bereavement period begins; and

(ii) that ends:

(A) if the first available bereavement adjustment payday is before the end of the bereavement period - on the day before the first available bereavement adjustment payday; or

(B) if the first available bereavement adjustment payday occurs on or after the day on which the bereavement period ends - the day on which the bereavement period ends; and

(e) there is a bereavement lump sum period in relation to the person's death if the first available bereavement adjustment payday occurs before the end of the bereavement period and the bereavement lump sum period is the period that begins on the first available bereavement adjustment payday and ends on the day on which the bereavement period ends."

12. Both the applicant and the husband were paid Social Security payments at the single rate from 1991 onwards. If, as the applicant asserts, she and the husband should be regarded as members of a couple from 1997 to the date of the husband's death in April 2000, they both should have been in receipt of payments at the married, or partnered rate. They would both have been paid therefore more than their entitlement over a period in excess of 2 years, and a recoverable debt to the Commonwealth would exist. The applicant said on several occasions during the course of the Hearing that she was aware now that an overpayment could arise, but that she, in effect, wanted to put the record straight.

13. The applicant gave evidence that although she and the husband separated in 1991, it wasn't a "real" separation as he lived at his mother's at Cleve, but would stay with the applicant from time to time; and by late 1996 the husband's mother had died and in 1997 he returned to live with the applicant. She said in evidence that in 1997 she attended at the Centrelink office in Whyalla and told a Departmental officer that the husband had returned to live with her. The male Departmental officer entered the information onto the computer. She said that Centrelink had to know what was going on, and it was up to Centrelink to adjust the pensions. The applicant said she was aware that no adjustment was made; her evidence reads in part:

"MR KILDERRY: Did you realise at any stage that there had been no adjustment made?---Yes, I knew that there hadn't been any adjustment but I can't, I - - -

Why didn't you advise again?---Well, what's the good of advising them? They don't seem to take any notice. Why didn't they take notice of me in the first place? That's what they're there for.

So that is you answer, is it?---Well, they should've - yes it's true. I mean, I can't, I couldn't be running over to them every week telling them about it. I mean, they were told and they should have made a check of that.

So there was only one contact where you told Centrelink that you were living together with Mr Elliott?---No, I told them again in the end of '99.

How did you tell them this time?---I told them the same thing, that he was there with me.

How do you remember it was the end of 1999?---Look, it would have been about November, I think."

14. I note that in the course of its Reasons for Decision, the SSAT stated at T2/3:

"...

However, Mrs Elliott told the Tribunal that in 1997 Mr Elliott returned to Whyalla as he was unwell, suffering from diabetes, and he resided at her home in a separate bedroom. Mrs Elliott said that she provided care to Mr Elliott and she drove him to doctors' appointments and assisted him with his medication. Mrs Elliott told the Tribunal that due to her health and Mr Elliott's health, she did not tell Centrelink that Mr Elliott's address was her address. ..."

15. The applicant gave evidence that in January/February 1999 the husband rented a flat in Whyalla, he purchased a refrigerator and some furniture, but she says left most of his belongings with her. She said that she did not know why he took the unit. There had been no discussion, no argument, no cross words; but she thinks his niece was behind it. On her evidence, however, he stayed at the flat on few occasions. His health deteriorated, he was afraid of being in the flat alone and he spent most of his time with her, particularly over the last 4 months of 1999, when he had various admissions to hospital for cancer treatment.

16. The husband was admitted to Whyalla Hospital in the early hours of 24 December 1999. The Ambulance Office Report [T14/41] records the husband's residential address as the rented flat, but that he was at the applicant's address when the ambulance was called. A later Whyalla Hospital document recording his admission on 6 February 2000 shows his residential address as the rented flat, his marital status as "single", but his "contact person" and "next of kin" as the applicant, his "wife".

17. The applicant said in evidence that when she and the husband separated in 1991, he sold his home and gave a lot of the proceeds to his nieces. She does not know what happened to the balance. She said also that when he went into the Whyalla Hospital in December 1999, he left his wallet and bank passbooks with her; but that the husband's brother-in-law demanded he withdraw the $15,000 he had in the savings account. She says that the brother-in-law and the niece took all the money and personal possessions that she would have wanted to retain. The applicant and Mr Wells are recorded as informing the SSAT that the husband had executed a will in 1988 (3 years before separation) naming his niece as executor. There was also a codicil to that will in 1992, which indicated that no provision was made in the will for the applicant, as there had been a previous property settlement. The applicant denied in evidence that any such property settlement had occurred.

18. As the Hearing of this matter was conducted by way of telephone link up, assessment of the veracity of a witness's evidence is difficult. I accept the applicant's evidence that in 1997 the husband returned to live in Whyalla, and that he spent some time residing with her. They had by that time been married for more than 30 years. Neither had instituted divorce proceedings and there was clearly an ongoing love/hate relationship; but I do not consider that there had been a resumption of cohabitation, which would render payments of benefit at the single rate inappropriate. I consider, on the evidence, that the husband spent more time with the applicant as his health deteriorated and less time in his rented accommodation, as he became fearful of living alone. It is clear from the instructions he gave to the Departmental officer in February 2000 that he did not consider himself to be a member of a couple. He had not changed the will he executed in 1988, nor the codicil executed in 1992; and as late as 28 February 2000, had contacted the Department to ensure that the applicant did not receive any Departmental payments upon his death. Only the applicant and the husband knew the true nature of their relationship, and the Department had no reason to think that the relationship was anything other than as it was portrayed by the applicant and the husband.

19. The decision under section 660XKG of the Act was made on the basis that the husband was receiving Mature Age Allowance, and was not a member of a couple. Although the applicant maintains now in her evidence that she informed the Department in 1997 and in 1999 that the husband had returned, she is recorded as informing the SSAT that due to their health, she did not tell the Department that the husband had returned. I do not accept her evidence that she attended personally at the Whyalla office on two occasions in 1997 and 1999. In those circumstances, the Department had no reason to treat the husband as other than a person who was not a member of a couple. In addition, it had specific instructions from the husband, who at that time (28 February 2000) was in hospital, and the Departmental officer telephoned him again to clarify an issue.

20. I am satisfied, on the evidence, that although the husband resided at the applicant's home from time to time from 1997 and was cared for by the applicant, that for the purposes of the legislation, the marital relationship was not resumed, and that they remained non members of a couple, and qualified for payment of benefit at the single rate.

21. The legislation provides where a person who is not a member of a couple dies, that the amount is payable to such person as the Secretary thinks appropriate. I consider that in all the circumstances the appropriate course was for the Secretary to pay the moneys in the normal way into the husband's bank account, to be dealt with by the executor in due course.

22. For these reasons, the Tribunal affirms the decision under review.

I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member WJF Purcell

Signed: .....................................................................................

Associate

Dates of Hearing 24 September 2001 & 3 October 2001

Date of Decision 2 April 2002

Counsel for the Applicant In person with Mr Wells

Solicitor for the Applicant Disabled People (Whyalla) Inc

Counsel for the Respondent Mr R Kilderry

Solicitor for the Respondent Centrelink