Ms A; Secretary, Department of Family and Community Services [2002] AATA 439 (10 June 2002)

Last Updated: 11 June 2002

DECISION AND REASONS FOR DECISION [2002] AATA 439

ADMINISTRATIVE APPEALS TRIBUNAL )

) No W2001/147

GENERAL ADMINISTRATIVE DIVISION )

Re SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Applicant

And MS A

Respondent

DECISION

Tribunal Mr R D Fayle, Senior Member

Date 10 June 2002

Place Perth

Decision Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the decision under review, being that of the Social Security Appeals Tribunal made on 21 March 2001, is set aside and in substitution therefor the Tribunal decides that the respondent was a "member of a couple" as that term is defined in s4(1) of the Social Security Act 1991.

...........(sgd R D Fayle).......................

Senior Member

CATCHWORDS

SOCIAL SECURITY - question of whether "member of a couple" - whether living in a "marriage-like relationship" - couple sharing accommodations and cost of rent; exclusive sexual relationship; child of the union; couple sharing responsibility for child's welfare and day to day costs; couple regard relationship as boyfriend/girlfriend as do friends; couple individually financially independent; no joint or several liabilities (apart from lease); couple do not regard their relationship as permanent or indefinite.

Social Security Act 1991, ss.4(1), (2) (3), (6); s24

Re: Secretary, Department of Family and Community Services and WAP [2000] AATA 7 (unreported, 12 January 2000)

Re: SRWW and Department of Family and Community Services, [2001] AATA 495, (unreported, 19 June 2001)

REASONS FOR DECISION

10 June 2002 Mr R D Fayle, Senior Member

1. Ms A, the respondent, applied to the Tribunal pursuant to s35 of the Administrative Appeals Tribunal Act 1975, to have her name and that of her representative, who as will be seen, is implicated in these proceedings, remain confidential. An order was duly made after consideration of a number of relevant factors - in essence the interests of the respondent were judged as outweighing the public interest. The respondent will be identified as Ms A and her representative as Mr X. Further, Ms A requested that the matter be determined on the papers without a hearing. The Secretary, Department of Family and Community Services ("the Secretary") consented to that request.

2. The Tribunal had before it the documents filed pursuant to s37 of the Administrative Appeals Tribunal Act 1975, a statement of Facts and Contentions filed by Mr X on behalf of Ms A and a statement of Facts and Contentions filed by the Secretary.

3. This is an appeal by the Secretary from the decision of the Social Security Appeals Tribunal ("SSAT") on 21 March 2001, which decided that Ms A and Mr X were not "living in a marriage like relationship". On that basis Ms A would be entitled to the Disability Support Pension ("DSP") at the single rate, without regard to the income of Mr X.

Background

4. Ms A was in receipt of DSP on the basis that she was single. It is not in issue that Ms A is qualified for DSP. On 16 September 2000 Ms A completed a Living Arrangements form (T4) in which she nominated Mr X as her "nominated person". Mr X indicated his acceptance of this responsibility by counter signing the form. Since Ms A did not nominate Mr X to receive mail or payments on her behalf, it seems that Mr X's relevant authority was to respond to questions and supply information asked of and sought from Ms A by the Secretary (through its agency Centrelink).

5. On 14 September 2000 Ms A signed a (partially) completed form entitled Assessment of Living Arrangements (T6). Mr X (partially) completed a similar form and signed it on 20 September 2000 (T7).

6. On 23 December 2000 Ms A gave birth to a daughter acknowledged also as Mr X's daughter (T12). Interestingly, the daughter was given the father's (Mr X's) family name rather than that of Ms A (T4, p.66).

7. On 10 January 2001, a delegate of the Secretary advised Ms A that she was "living as a member of a couple", the other member of which was Mr X, and in consequence Ms A was no longer able to receive the DSP at the single rate (T20). Ms A's DSP payments were suspended pending the Secretary being advised of Mr X's income. Forms for that purpose were provided and it was requested that the information be provided within 14 days. The notice further advised that failure to provide the information would be assumed as a request by Ms A for the payments to be stopped. There is nothing in the documents to indicate that Mr X's income details were provided. There are references to conversations which Mr X had with Centrelink to the effect that he did not consider Ms A and himself to be living in a marriage-like relationship or as "a couple".

8. It is clear that Ms A, through Mr X, requested a review of the decision, which was affirmed on 16 January 2001 (T23), and then a review by an Authorised Review Officer. The ARO, after an extensive telephone discussion with Mr X (T25) affirmed the decision of the delegate by letter of 7 February 2001 (T27). Ms A requested that the decision be reviewed by the SSAT. The SSAT overturned the delegate's decision as affirmed by the ARO, deciding that Ms A was not a member of a couple (supra).

Evidence

9. The following findings on which these reasons are founded have been gleaned from the T documents and the relevant statements of Facts and Contentions to the extent that those purported facts are consistent with the T documents. The T documents include the SSAT decision. Mr X indicated that Ms A and he spent "around 3 to 4 hours" being interviewed by the SSAT. No exception was taken by or on behalf of Ms A to the findings of fact as determined by the SSAT. Those are set out below in context.

10. Apparently Ms A was sharing accommodation with a friend when she met Mr X. Further, Mr X who was previously married, indicated that he had gone out with his spouse for about 5 years before their engagement and they were together for about 2 years after their marriage, which dissolved after a period of 12 months separation. It was during this separation period that he met Ms A.

11. Mr X moved in with Ms A and her friend who left soon after. At first they slept in different rooms. However, after a short time Ms A and Mr X began sleeping together.

12. Because the matter is to be decided on the papers, the Tribunal did not have an opportunity to ask either Ms A or Mr X questions to embellish the evidence in the material before it. The Tribunal however is of the opinion, that based on the material before it, certain inferences can be drawn that, in its opinion, assist in assessing the evidence. The first such inference turns on the undisputed fact that Ms A was not accepted by Mr X's family until some time after the divorce in May 2000 or until after the birth of their daughter. The inference is that that is a perfectly natural reaction from a family who may be distressed about their son's broken marriage and they would see the relationship between their son and a "girlfriend" as threatening any hope of reconciliation which they, the parents (or siblings) may have held at the time.

13. The second inference turns on Ms A's evidence that Mr X and herself never socialised with her family and the only family member she had any interaction with was her sister and that never included Mr X. T document T13 is a photocopy of a page from Ms A's passport with a handwritten note signed by Mr X. The inference is that in all likelihood Ms A's family are not residents of Australia or if they are then for some inexplicable reason she and her family, apart from her sister do not have regular contact. It0 would not be unusual in these circumstances that Ms A met with her sister alone. In the Tribunal's opinion, very little weigh can be put on the assertions that Ms A and Mr X together have had no social contact with Ms A's family and only on rare occasions with Mr X's family and then only since the birth of the daughter.

14. In the Tribunal's opinion it is not unreasonable that Mr X would be reluctant to enter into another marriage (de facto or otherwise) after the failure of his first marriage, especially as it seems that that marriage followed a long term relationship. So it is quite understandable that Mr X would be cautious about making another serious commitment after a relatively short time of having met Ms A, despite their living together in the circumstances they describe as fact. Indeed, that background goes some of the way to explain why Mr X would have told the ARO on 28 January 2001, during their telephone conversation (T25) that "he couldn't commit to the relationship [ie, that of Ms A and himself] because of past experiences which gives him cause to believe that all relations are temporary".

15. The facts as found and relied upon by the SSAT are:

(a) Ms A moved into a house in Mt Hawthorn with Mr X in August 1999.

(b) On 23 December 2000 their daughter ... was born.

(c) Ms A pays $100 (per week) towards the rent and Mr X pays $75. They pay 50/50 for household expenses except for Ms A's telephone calls and personal items for which she pays 100%.

(d) Mr X pays for half the recurrent cost of their child. Ms A has paid for all of the set up costs.

(e) Ms A carries out most of the household tasks. Mr X does his own washing and ironing and Ms A has full responsibility for the child's care.

(f) Ms A's friends invite them out as a couple on occasions but Mr X rarely goes with her. Mr X's friends do not invite her out in social situations. Ms A has little contact with her family except for her sister. Mr X does not visit her sister. In the latter half of [Ms A's] pregnancy Mr X's family have on specific occasions invited her to join them socially.

(g) Family and friends see them as boyfriend and girlfriend.

(h) They have a mutually exclusive sexual relationship.

(i) [As to their relationship], Ms A and Mr X do not know what the future will hold for them.

16. In the opinion of the Tribunal there are additional aspects of the evidence that impact on the outcome of this case. The first is that the lease of the Mr Hawthorn premises is in joint names. Also, the household insurance is in joint names. Ms A bears the brunt of the household duties because Mr X works whilst Ms A is a full-time mother at home. Mr X's interests are different to those of Ms A, as are the majority of their respective circle of friends, which probably accounts for their fairly separate social lives. Because Ms A is on DSP (or was), she is not able to afford much in the way of a social life.

17. In the "Living Arrangements" questionnaires completed by each of Ms A and Mr X (T6 & T7), in responses to the question, "How and why did you start sharing this accommodation?" Ms A said "Just happened" whilst Mr X said "Convenience". In response to the question "How long do you intend to share accommodation?". Ms A said "Life!" whilst Mr X said "Unsure". They agreed that they did not have separate living areas and that in the event of a split they would each take their own property. In response to question 34, "Do you share social and leisure activities with (the other)?" each answered "Yes" - an apparent contradiction to the evidence given at a much later time before the SSAT. And in response to question 44, "To what extent does (the other) provide care, support or help to you in any of the following circumstances?" the respective answers of Ms A and Mr X to each prompt were:

* "illness" - Ms A: "Takes me to the Dr"; Mr X: "N/A"

* "personal crisis - Ms A: "Emotional support"; Mr X: "N/A"

* money matters - Ms A: "nothing"; Mr X: "N/A"

* family disputes - Ms A: "nothing"; Mr X: "N/A"

18. Because the Tribunal had no opportunity to ask Mr X what he meant by "N/A" one can only assume that he regarded the questions as either "not applicable" to his situation or that, in his opinion, as none of the relevant issues had arisen as a problem there was no applicable answer.

19. It should be further noted that at the time of completing the respective Living Arrangements questionnaires (T6 & T7) neither Ms A nor Mr X answered question 43: "Do you have an ongoing sexual relationship with (the other)?" Other evidence indicates that when they answered the questionnaire in September 2000 they may not then have been in an ongoing sexual relationship although they had been previously. The evidence indicates that after Ms A and Mr X had been living together and become involved in what both understood to be a mutually exclusive sexual relationship, Ms A went to Melbourne to attend a course and whilst there had a sexual encounter with another. When Mr X discovered that Ms A was pregnant they slept apart for a while as there was some doubt about whether Mr X was the paternal father of the then unborn child (born in December 2000). Since then it seems that Mr X's parentage of the child has been established and the evidence is that they have carried on their exclusive sexual relationship.

The legislation

20. The relevant provisions of the Social Security Act 1991 ("the Act") follow:

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: a prohibited relationship for the purposes of section 23B of the Marriage Act 1961 is a relationship between a person and:

* an ancestor of the person; or

* a descendant of the person; or

* a brother or sister of the person (whether of the whole blood or the part-blood).

Member of a couple - criteria for forming opinion about relationship

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(6) A person is not a member of a couple if a determination under section 24 is in force in relation to the person.

Note: section 24 allows the Secretary to treat a person who is a member of a couple as not being a member of a couple in special circumstances.

Discussion & Reasons

21. In Re: SRWW and Department of Family and Community Services, [2001] AATA 495, (unreported, 19 June 2001), the Tribunal noted , in relation to the concept of a "marriage-like relationship" under the Social Security Act 1991 that

"... each individual case must be considered on its merits and in today's world, the indicia of a marriage or a marriage-like relationship and being a member of a couple has very different connotations, depending on the circumstances of the couple and the context in which their relationship occurs. It behoves decision-makers to look at the merits of the individual case and to be flexible in its findings about such matters. This is not a case where one can apply specific role models or conventional standards. These general principles have been discussed in a number of decisions of the Tribunal and Courts and the Tribunal has specifically gained some assistance in considering the individual merits of a particular case, when considering decisions such as Re Secretary, Department of Social Security and Le-Huray (1995) 36 ALD 682 and also Secretary, Department of Social Security v Le-Huray (1996) 138 ALR 533." (para. 61)

22. And in Re: Secretary, Department of Family and Community Services and WAP, [2000] AATA 7 (unreported, 12 January 2000), the Tribunal added:

"...that in deciding whether a person is a "member of a couple" for the purposes of s4(2) of the (Social Security) Act, an opinion is formed having regard to all the circumstances of the relationship, including, in particular, those matters enunciated in paragraphs 4(3)(a) to (e) inclusively. Those provide objective criteria, which can be determined on the evidence. However, there is no guidance as to how much weight one attributes to each criterion. In the circumstances, it falls to the Tribunal to make a value judgement giving weight to each criterion having regard to all the circumstances of the relationship. The criteria must be considered as a whole in context." (para. 11)

23. In the present case it is not in dispute that Ms A has a relationship with Mr X, a person of the opposite sex; that they are not legally married; that they are both over the age of consent; and neither is within a prohibited relationship for the purposes of section 23B of the Marriage Act 1961. That is, apart from the question of whether a marriage-like relationship exists, the facts support all other relevant conditions set out in s4(2)(b) of the Act.

24. The essence of submissions made by Mr X for Ms A is that there is no pooling of financial resources nor any legal obligations toward one another. Indeed, the evidence is that Mr X pays less than half the rent, never assists Ms A in meeting any expenses other than those relevant to their daughter and insists that as Ms A and himself are not married he is not responsible for any of her expenses, which she must meet from her own resources. The evidence also is that when Ms A needed money (presumably after her DSP was suspended) Mr X refused to help and Ms A borrowed from her friends to meet the cost of rent and food. Further, it was submitted that the lack of emotional or other support by Mr X is indicative of a lack of commitment (by Mr X) to a relationship, which, on the evidence, is clearly not stable. In essence, the submission is that these facts, when taken in the context of the subjective nature of the judgement as to what constitutes a "member of a couple" do not support a contention that Ms A and Mr X were members of a couple or if that judgement was viewed as on a sliding scale, their relationship would be at the base level. The Tribunal understands this contention to be that whilst there is clearly a relationship between Ms A and Mr X, in the opinion of Ms A it is far from a stable or mutually committed relationship and at best is approaching (but not yet there) the kind of relationship between two persons of the opposite sex that could be considered, in the modern context, as "marriage-like". The Tribunal further understands that Ms A is submitting that because there is no mutual financial commitment to debts and liabilities incurred by each of Mr X and herself, apart from the unavoidable lease and household insurance, this too points to a lack of relevant commitment as members of a couple. Ms A submitted that their relationship was not relatively stable, substantial or seriously exclusive such that it went beyond the kind of relationship ordinarily attributed to a courting couple or boyfriend/girlfriend.

25. The Tribunal accepts the evidence and submissions of Ms A as a contention that in her (and, by implication, in Mr X's) opinion, they have not reached the level of mutual commitment toward each other such that it could be perceived as "marriage-like" or that they were "members of a couple". However, with respect, in the opinion of the Tribunal, how two cohabitating persons of the opposite sex view their relationship in a comparative sense, based on their mutual or individual perceptions of what constitutes a marriage-like relationship, is not determinative. The judgement must be objective having regard to the legislation and facts of the particular case. In this context the Tribunal said in Re WAP:

"The Tribunal is sympathetic with WAP when she takes the view that one cannot be in a marriage-like relationship (and therefore not a member of a couple) unless the couple provide each other with emotional support and share everything including financial obligations. However, whilst that no doubt is an acceptable description of the phrase as it is commonly understood, although not exhaustive, it is not the relevant statutory test. Therefore, in getting to its decision the Tribunal finds it necessary to work through the statutory criteria in s4(3) of the Act and consider all the relevant circumstances of this case.) (para. 12)

Those statutory criteria are considered below, having regard to the evidence before the Tribunal.

26. Financial aspects of the relationship - This is a young couple. There is no evidence that either has as yet accumulated major assets, although Mr X owns a motor vehicle. Indeed, the evidence indicates that Mr X may have accumulated liabilities before he met Ms A and that to some extent these are a burden. They do not own any real estate, share credit cards or the like, nor have they joint bank accounts, so, to that extent, there is no joint liability or liabilities. Nor would it be surprising in the circumstances of their relationship, where Mr X works and Ms A receives DSP, that there is no significant pooling of financial resources or any joint or several legal financial obligations. However, they do share day-to-day household expenses save that Mr X insists that Ms A pays for her personal toiletries etc. It seems that Mr X uses his mobile telephone and therefore expects Ms A to meet the cost of the telephone installed at their house and apparently exclusively used by her.

27. The nature of the household - There is a child from the relationship and it would appear that Mr X has assumed responsibility for assisting with the day to day cost of caring for the child. It is not disputed that Mr X treats the child in a loving and caring way and is concerned about her welfare. Ms A's evidence at the SSAT was that "Mr X loves the child and she could not take the child away from him" (T2). Nor is it disputed that Ms A is a loving and caring mother. Ms A and Mr X live together under the same roof and share a bedroom (whilst it is clear from the evidence that there are other rooms which could be used as bedrooms). Ms A does most of the cooking and household chores although the evidence is that Mr X is willing to assist in these tasks. He does his own washing and ironing. There is some doubt about the mutuality of concern for each other. Ms A's evidence at the SSAT was that Mr X " ... works a lot, comes home late then goes out again ... [he] is never home, he is always out. He will not talk to her about how he feels and ignores what she states are her feelings". The Tribunal has noted certain inconsistencies (above) in answering relevant questions before Ms A's DSP was suspended and subsequently during SSAT hearing. The inconsistency raises the possibility that some of the evidence before the SSAT may have been self-serving.

28. The social aspects of the relationship - They share a house together and care for their child in a responsible and loving manner. Their friends view them as a couple.

29. As mentioned, they socialise together only occasionally although they each also pursue their own exclusive friendships and interests. Neither, it seems, has been ill to the point where it has been necessary for someone to care for them although apparently Mr X was responsibly supportive of Ms A when she was confined and following the birth of their child. Mr X told the SSAT that if Ms A fell sick he would assist her getting to the doctor.

30. Any sexual relationship between the couple - They are in an exclusive sexual relationship. The Tribunal understands this evidence to mean that neither has any other sexual relationship and that they will be faithful to each other in this respect. The evidence supports this understanding of what Ms A and Mr X understand the expression to mean.

31. The nature of their commitment to each other - The relationship has continued since August 1999, which, at the time of the decision under review in March 2001 is a period of over one and a half years. Although Ms A told the SSAT that she gets virtually no emotional support from Mr X, she answered differently when completing the Assessment of Living Arrangements form (T6 - see above). On the other hand, Mr X implies that he regards the arrangement as one of convenience, which he believes is not unusual for young people such as themselves. However, Ms A considers the relationship to be continuing indefinitely in the sense that she stated that she and Mr X intend sharing accommodation "for life!" (T6, p.28). Also, the evidence points to a conclusion that whilst neither Ms A nor Mr X may view their relationship as that of a couple or marriage-like, an objective conclusion is that it is more than just two people sharing accommodation for mutual financial benefit. By design initially Ms A and Mr X shared the accommodation exclusively, presumably to foster their then exclusive sexual relationship, which, after a brief suspension, has continued. Since the birth of their daughter the shared accommodation has become a safe and loving environment in which to care for the daughter. Granted Mr X does not provide financial assistance to Ms A beyond a contribution toward the child's expenses. This may well be the consequence of Mr X's personal debt situation, possibly a limited income, and/or an understanding that Ms A is financially self-sufficient having regard to her expectations from Social Security for herself and the child - but there is no evidence either way to assist the Tribunal in understanding the reason for Mr X's attitude. Suffice it to say that Mr X acknowledges by his actions his bare financial responsibilities for the child's welfare.

32. It is apparent from the SSAT decision (T2) that it placed considerable weight on the lack of financial support rendered by Mr X to Ms A, concluding that this was "a strong illustration of [Mr X's] lack of care and commitment" (para. 43). In the opinion of this Tribunal, whilst it is evident that Mr X is not a willing contributor to support Ms A, that attitude is not so unusual in a marriage or de facto relationship (where each partner has a separate source of income), so as to be unduly influential in arriving at a conclusion based on an objective consideration of the relationship.

33. In the opinion of the Tribunal the arrangements which Ms A and Mr X have made about sharing accommodation and household chores including attending to the physical needs of their child are not unusual where one member of the couple has a demanding job and pursues his or her own exclusive interests (such as fishing) and the other ordinarily stays home during the day. This is even more understandable where the working person also (often) works week ends (as was Ms A's evidence to the SSAT).

34. In the opinion of the Tribunal there is evidence to support the apparent lack of attending regular family gatherings or sharing in regular social activities - a situation somewhat exacerbated by the need to care for a very young child. The evidence in this respect should not be seen as necessarily pointing to a couple who have nothing in common and simply go their respective ways.

35. In the opinion of the Tribunal there are objective reasons as to why Mr X would be reluctant to view his relationship with Ms A, despite the child, as in any sense permanent. These have been considered in context above and go to subjective reasons, possibly induced by his previous marriage break-down, no doubt an emotionally damaging experience and one which has made him understandably cautious about an ongoing committed relationship.

36. In the opinion of the Tribunal the evidence that each of Ms A and Mr X regard their relationship as that of "girlfriend/ boyfriend" does not assist, except to say that whatever they each mean by that is a subjective judgement possibly moulded by their own perceptions of how their relationship differs in material ways from that of a marriage. In Ms A's case, she clearly feels that Mr X's lack of emotional support and apparent selfishness as two very compelling reasons why their relationship is not "marriage-like". And, as mentioned, Mr X is most cautious in making any such commitment. It is noted that the SSAT made observations about the evidence before it that is suggestive of each having a hope for a future mutual marriage.

37. In reaching their decision, the SSAT considered the fact that Ms A and Mr X shared accommodation and an exclusive sexual relationship, as circumstances in which "[m]any young people remain in ... for years whilst establishing themselves economically and socially" (T2, paragraph 50). The implication is that the SSAT did not place much weight on those facts in its determination that they did not live in a marriage-like relationship. With respect however, in the opinion of the Tribunal and for reasons already discussed and especially having regard to the child and the relationship of each parent toward her, those two factors, shared accommodation and an exclusive sexual relationship, in context are significant indicia of a marriage-like relationship between Ms A and Mr X. Further, the SSAT decision seems to have been significantly influenced by a perception on the part of Ms A in particular, that if she and Mr X did marry "it would not last". Be that as it may, in the opinion of the Tribunal it is not so much a question of what may or may not be the future of any existing relationship but rather what is the nature of the existing relationship viewed objectively.

38. In sum, having regard to the provisions of s4(3) of the Act and the above discussion, in the opinion of the Tribunal:

(a) The financial aspects of the relationship are not so unusual in a situation like the present, where each member of the couple has a separate source of income. The lack of financial support of Ms A by Mr X is not so unusual or significant in the circumstances to be determinative of the nature of the relationship.

(b) The nature of the household points to a mutually exclusive family arrangement, which, in the opinion of the Tribunal is a significant factor supporting the Secretary's contention.

(c) The social aspects of the relationship are not so unusual as to point to two people sharing accommodation for convenience. When the evidence is taken as a whole, the lack of regular mutual social activities both in and outside the home is not so unusual as to point to a possible perception by friends and family that Ms A and Mr X are not a couple.

(d) Any sexual relationship between the people. This factor is established as positively pointing to a marriage-like relationship.

(e) The nature of the people's commitment to each other -

(i) the relationship had been ongoing for over a year and a half at the time of the decision under review;

(ii) there is some doubt about mutual emotional support although Ms A indicated that she believed Mr X would provide emotional support in a personal crisis (T6, p.35);

(iii) it is not in dispute that friends regard Ms A and Mr X as "boyfriend/girlfriend". The evidence generally supports the contention that since the birth of the child their relationship is likely to continue indefinitely; and

(iv) it is not in dispute that neither Ms A nor Mr X see their relationship as a marriage-like relationship. However, as discussed those perceptions are not determinative, nor, in the opinion of the Tribunal should those perceptions be given much weight in the present circumstances.

In the opinion of the Tribunal, the weight of evidence is that Ms A and Mr X were, at the relevant time, members of a couple.

39. Finally, neither the decision under review nor any of the submissions has considered the potentially ameliorating effect of subsection 24(2) of the Act, which states:

24(2) Where:

(a) a person has a relationship with a person of the opposite sex (the ); and

(b) the person is not legally married to the partner; and

(c) the relationship between the person and the partner is a marriage-like relationship; and

(d) the Secretary is satisfied that the person should, for a special reason in the particular case, not be treated as a member of a couple;

the Secretary may determine, in writing, that the person is not to be treated as a member of a couple for the purposes of this Act

40. As no decision has been made in relation to subsection 24(2) and neither party has been given the opportunity to address that as a separate issue, this Tribunal has no jurisdiction to consider its application in the present circumstances.

Decision

41. For the above reasons and pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the decision under review, being that of the Social Security Appeals Tribunal made on 21 March 2001, is set aside and in substitution therefor the Tribunal decides that the respondent was a "member of a couple" as that term is defined in s4(1) of the Social Security Act 1991.

I certify that the 41 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R D Fayle, Senior Member

Signed: .......(sgd V Wong)................................

Associate