Connellan and Secretary, Department of Family and Community Services [2002] AATA 299 (2 May 2002)

Last Updated: 3 May 2002

DECISION AND REASONS FOR DECISION [2002] AATA 299

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/1646

GENERAL ADMINISTRATIVE DIVISION )

Re Lois Connellan

Applicant

And Secretary, Department of Family and Community Services

Respondent

DECISION

Tribunal Ms N Bell, Member

Date 2 May 2002

Place Sydney

Decision The Tribunal affirms the decision under review.

[SGD] N Bell,

Member

CATCHWORDS

SOCIAL SECURITY- age pension- whether the applicant is a member of a couple- whether the applicant is in a marriage like relationship-financial aspects of the relationship-nature of the household-social aspects of the relationship-sexual relationship-commitment to each other

Social Security Act 1991 - sections 4(2), 4(3), 4(3A)

REASONS FOR DECISION

Ms N Bell, Member

1. This is an application by Ms Lois Connellan ("the Applicant") for review of the decision of the Social Security Appeals Tribunal ("the SSAT") dated 20 September 2001 to affirm the decision of the Secretary of the Department of Family and Community Services ("the Respondent") dated 8 March 2001 to reject the Applicant's claim for age pension. The earlier decision was reviewed and affirmed by an authorised review officer on 26 April 2001.

2. At the hearing before the Tribunal the Applicant appeared on her own behalf and gave oral evidence to the Tribunal. The Applicant's friend, Mrs Ivy Woods, also gave oral evidence to the Tribunal. The Respondent was represented by Ms Mantaring, an advocate from the Advocacy and Administrative Law Team at Centrelink. The following documentary evidence was before the Tribunal:

Exhibit Document Date

T1-T18 Documents lodged under section 37 of the Administrative Appeals Tribunal Act 1975 being T1 - T23, pages 1 - 75

A2 Documents relating to Applicant's health fund

A1 Rate notice from Wyong Shire Council

A3 Prescription Record Form of Applicant and scripts

A4 Parking Authority of Applicant

R1 Respondents Statement of Facts and Contentions

A5 Statutory Declaration of Mr Salvadore Undated

background

3. The Applicant claimed age pension on 10 January 2001. The claim was rejected by the Respondent following completion by the Applicant of an "Assessment of Living Arrangements" form and completion of a "Partner Details" form by Mr Adriano Salvador. The Applicant's claim was rejected on the basis that the Applicant is a member of a couple, and when Mr Salvador's income is taken into account in calculating the rate of the Applicant's pension. Mr Salvador's income was so high it precluded payment of the pension to the Applicant.

4. The Respondent's decision was reviewed by an authorised review officer who, on 26 April 2001, affirmed that decision. (T17) The Applicant applied to the SSAT for review of the decision and on 20 September 2001 the SSAT affirmed that decision.(T2)

Issues and legislation

5. The issue to be considered by the Tribunal is whether the Applicant is a member of a couple. This, in turn, requires consideration of whether the Applicant and Mr Salvador are in a marriage like relationship.

6. Section 4(2) of the Social Security Act 1991 defines the term "member of a couple" as follows:

"Member of a couple--general

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."

7. The matters to which regard is to be had in determining whether two people are in a "marriage like relationship" are set out in section 4(3) as follows:

"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.

4.(3A) The Secretary must not form the opinion that the relationship between a person and his or her partner is a marriage-like relationship if the person is living separately and apart from the partner on a permanent or indefinite basis."

Applicant's evidence

8. The Applicant confirmed her statement to the SSAT to the effect that the she had always been self-supporting and even in her marriage, prior to her relationship with Mr Salvador, had been financially independent. She confirmed her evidence to the SSAT that Mr Salvador had never financially supported her and had for many years lived and worked away from the house they own jointly, that she has never been known as Lois Salvador and he has never held out that she is his wife. She also confirmed that she does not share a bedroom with Mr Salvador and has not done so for over three years.

9. The Applicant also confirmed that she has had no income since November 2000 and has had to live off the proceeds of her superannuation. The Applicant provided a number of documents to the Tribunal that show she maintains private health insurance and has considerable monthly expenditure for medication. The Applicant told the Tribunal she underwent surgery in January 2001 which involved the removal of her bladder, uterus, appendix and cysts on her ovaries. She is shortly to undergo a bone density scan.

10. The Applicant said she had been going out with Mr Salvador when they decided to purchase a house together in 1982. The Applicant was unsure as to whether the house is owned as joint tenants or tenants in common but said they contributed equal shares to the purchase price of the house. The Applicant said that about 11 or 12 years ago she left the house she had bought with Mr Salvador for about six months after he had struck her, and then returned to the house to begin the relationship again. She said he has not hit her since.

11. The Applicant told the Tribunal that when Mr Salvador was working away from home, the longest period being for 12 months, he would contribute half the cost of the rates and the electricity. He would do this by leaving the Applicant a blank cheque to be applied to those costs. The Applicant said she would pay the cost of all other maintenance of the property. She said Mr Salvador stopped working and living away from home in 2000 and since then has lived constantly at the house. There have been no further separations.

12. The Applicant said she and Mr Salvador stopped being a couple about six or seven years ago, having "grown apart". However, she said they still share meals and the living areas in the house. They also share cooking and some cleaning and Mr Salvador looks after the lawns and the pool. She said they have not been out together for about one month and that the time before that when they went out was on New Years Eve. On both occasions they went out as part of a group. They also contribute equally to the cost of food, groceries and household items.

13. The Applicant said she has left Mr Salvador $20,000.00 in her will and the rest of her estate to her daughter and nieces and nephews. She thinks Mr Salvador has left her a life estate in the house, with the remainder to his son.

14. The Applicant told the Tribunal that when she first came out of hospital in January 2001 Mr Salvador helped more around the house but gave her no personal or nursing care. She said that on last Christmas Day Mr Salvador's son, daughter in law and their children visited from Sydney and they all, including the Applicant, had a Christmas meal together. They did not, however, exchange presents.

15. The Applicant said that she and Mr Salvador have no joint bank account but did purchase Telstra shares together. For the first Telstra share float Mr Salvador contributed the cost of the shares but had both their names placed on the shares. For the second share float, about two years ago, the Applicant and Mr Salvador contributed approximately $400.00 each to the cost of the shares. They have no other joint investments. The Applicant also said she and Mr Salvador changed their jointly held house insurance to another insurer last year. She said the household contents insurance is in her name only.

16. When asked by the Tribunal why she had described herself as being in a de facto relationship with Mr Salvador when she completed her "Assessment of Living Arrangements" form, she said she had left hospital just three days previously and her mother had recently died. She said she was overwhelmed at the time she completed the form and had been in a de facto relationship with Mr Salvador before. She agreed that Mr Salvador had stated on a "Partner Details" form on 22 February 2001 that he was in a de facto relationship with the Applicant. She was unable to offer an explanation as to why he had done so.

17. The Applicant said she has been supporting herself using her superannuation and some money her parents left her. She said if she does not get the pension and her money runs out, then Mr Salvador would not support her and she would somehow have to force the sale of the house to get her share. She said she raised the issue of selling the house with Mr Salvador a few months ago but he refused. She said she is considering leaving and going to Queensland where her daughter lives.

Ivy Woods' evidence

18. Mrs Woods said she has known the Applicant for 20 years, having worked with her and had close contact on a daily basis. She said she has often visited the Applicant's home. She said the Applicant and Mr Salvador are not a loving couple and there is no affection between them. She said she and her husband, who passed away last year, used to go out with the Applicant and Mr Salvador, but that was about eight years ago and ceased because Mr Salvador was away a lot.

19. Mrs Woods said she saw changes in the relationship between the Applicant and Mr Salvador about eight or nine years ago in that they no longer socialised or did things as a couple. Mrs Woods also said that Mr Salvador has had relationships with other women in the past.

Other evidence

20. Document T4 is the Applicant's claim for age pension.. In answer to question 15 on that claim form she described her marital status as de facto since 1982 and, in answer to question 16, gave Mr Salvador's name as her partner. The Applicant also indicated, at question 70 that she owns her home jointly with Mr Salvador.

21. Document T6 is an "Additional Income and Assets" form completed by the Applicant. At question 13 of that form she indicated that she owns Telstra shares jointly with Mr Salvador.

22. Document T7 is an "Assessment of Living Arrangements" form completed by the Applicant. In her answers to questions in that form the Applicant indicated that:

* she lived with Mr Salvador in a de facto relationship;

* they had separated at one stage for six months;

* Mr Salvador had been working and living away;

* they do not have separate living areas in their house;

* they have joint house and contents insurance;

* they share equally in the cost of electricity, telephone, rates, food and housekeeping items;

* the Applicant is covered by Mr Salvador's private medical insurance;

* they share household tasks;

* they sometimes go to the club together;

* they are considered by friends, relatives and associates as a couple;

* they are sometimes invited out as a couple by relatives and friends;

* they have claimed to be in a de facto relationship for the purpose of obtaining house insurance; and

* in the last two months Mr Salvador had provided care and support for the Applicant in the circumstances of her illness.

23. When asked, at question 52 of the form (T7)to describe her relationship with Mr Salvador, the Applicant said "Get on alright. Fight sometimes. Salvador has been doing cooking and housework since being ill."

24. Document T8 is a "Partner Details" form completed by Mr Salvador. At question 3 of the form, Mr Salvador described his current marital situation as "living de facto" since 1982.

25. Exhibit A5 is an undated statutory declaration by Mr Salvador stating that he had never supported the Applicant or been responsible for her debts. He stated that she had been totally self supporting in all of the years he had known her and as co-owner of their house she has paid half of the expenses relating to the house.

26. Following the hearing of this application Ms Mantaring for the Respondent forwarded to the Tribunal a title search of the Applicant's property. That search shows that the property is owned by the Applicant and Mr Salvador as tenants in common in equal shares.

Consideration

27. Section 4(3) of the Act lists the particular, but not exclusive, matters to which regard must be had in forming an opinion about the relationship between two people. It is convenient to consider the evidence before the Tribunal under the broad headings of those matters.

Financial Aspects of the Relationship

28. The Applicant's firm and consistent evidence is that she has, within the context of her relationship with Mr Salvador, always been financially self supporting. The Tribunal has no reason to doubt that evidence. However, the Tribunal notes the Applicant's evidence that in her marriage she also maintained financial independence.

29. There is no dispute that the Applicant and Mr Salvador are co-owners, in equal shares, of the house they live in. They also jointly own, on the Applicant's evidence, Telstra shares, purchased in the first share float by Mr Salvador but in both their names, and in the second share float by equal contribution as recently as two years ago.

30. On the Applicant's evidence, she and Mr Salvador contribute equally to the cost of rates, electricity, telephone, house insurance, food and household goods.

Nature of the Household

31. The Tribunal accepts the Applicant's evidence that she and Mr Salvador have separate bedrooms. However, it was also the Applicant's evidence that she and Mr Salvador share the living areas of the house, share the cooking, eat meals together and while the Applicant does most of the housework, Mr Salvador looks after the pool and the lawn.

Social Aspects of the Relationship

32. There was significant conflict between the evidence given by the Applicant before the Tribunal and the information she provided to Centrelink in the forms completed by her when she claimed age pension. The Tribunal prefers as more accurate the information contained on the forms completed by the Applicant, that is, that they sometimes go to the club together, they are considered by friends, relatives and associates as a couple, they are sometimes invited out as a couple by relatives and friends and that they have claimed to be in a de facto relationship for the purpose of obtaining house insurance.

33. The Tribunal accepts the Applicant's evidence that on Christmas Day she shared a Christmas meal with Mr Salvador and his son and daughter in law and grandchildren, who were visiting for the day.

Sexual Relationship

34. The Tribunal has no reason to reject the Applicant's evidence that there is no sexual relationship between the Applicant and Mr Salvador.

Commitment to Each Other

35. The Tribunal accepts the Applicant's evidence that during her illness Mr Salvador helped more around the house. The Tribunal also accepts that the Applicant has, in her will, left $20,000 to Mr Salvador and that it is her understanding that he has bequeathed her a life estate in the house.

36. Mrs Woods' evidence to the Tribunal as to the lack of harmony in the relationship is undermined somewhat by the Applicant's statements on the forms she completed for Centrelink when claiming her pension. In those forms the information she gave was that she and Mr Salvador "get on alright" but fight sometimes. She also stated that he provided care and support during her illness. Her evidence to the Tribunal was that they shared Christmas celebrations and they eat together regularly. The Tribunal concludes on this basis that there is a degree of companionability between them that is not unusual in a relationship of 20 years' standing.

37. The features of the Applicant's relationship with Mr Salvador, that are relied on by her to establish that she is not in a de facto relationship with Mr Salvador, are primarily her financial independence from Mr Salvador and the absence of a sexual relationship.

38. The Tribunal attaches little importance to the absence of a sexual relationship, given the age of the Applicant and Mr Salvador and the length of the relationship. As to the Applicant's financial independence, the Tribunal notes her evidence that she was equally financially independent in her marriage, before her relationship with Mr Salvador. Similarly noteworthy is the Applicant's evidence of Mr Salvador's purchase of Telstra shares in both their names and the further joint purchase of Telstra shares just two years ago. The household financial arrangements between the Applicant and Mr Salvador, while not indicating any particular subsidisation by Mr Salvador of the Applicant, show an equal pooling of resources regardless of degree of use or consumption.

39. The Tribunal considers that the circumstances of the Applicant's relationship with Mr Salvador, as found above, indicate a relationship that is, on balance, marriage like. The Tribunal's view is strengthened by the Applicant's and Mr Salvador's readiness to characterise their relationship as a de facto relationship before the effect of that characterisation on the Applicant's eligibility for age pension became apparent.

40. It follows that the Applicant is, pursuant to section 4(2) of the Act, a member of a couple and Mr Salvador's income is to be taken into account in assessing the Applicant's entitlement to age pension.

Decision

41. The Tribunal affirms the decision under review.

I certify that the 41 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Member

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

Associate

Date of Hearing 5 April 2002

Date of Decision 2 May 2002

Applicant self represented

Advocate for the Respondent Ms Mantaring