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Administrative Appeals Tribunal of Australia |
Last Updated: 31 October 2003
ADMINISTRATIVE APPEALS TRIBUNAL )
GENERAL ADMINISTRATIVE DIVISION |
) | |
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Re |
PHYLLIS ROBERTSON |
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And |
SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES |
Tribunal |
Mr RG Kenny, Member |
Decision
(Sgd) RG Kenny
CATCHWORDS
SOCIAL SECURITY - benefits and entitlements - disability support pension - rate of pension payable - marriage-like relationship - whether applicant overpaid an amount of disability support pension - whether there is a debt due to the Commonwealth
Social Security Act 1991 ss 1237, 1237A, 1237AAD
Re Kajzer and Secretary, Department of Family and Community Services [1999] AATA 362
Kajzer v Secretary, Department of Family and Community Services [2000] FCA 259
Re Secretary, Department of Family and Community Services and Bell [2000] AATA 252
31 October 2003 |
Mr RG Kenny, Member |
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BACKGROUND
1. From 6 November 1996, Phyllis Robertson (the applicant) received payments of disability support pension in accordance with the terms of the Social Security Act 1991 (the Act) and these were paid to her on the basis that she was entitled to receive those monies at the single rate rather than at the married rate.
2. On 22 March 2002, a Centrelink delegate, on behalf of the Secretary, Department of Family and Community Services (the respondent) determined that she had been living in a marriage-like relationship from 6 November 1996 and an overpayment of $26,412.83 was raised as a debt due by her to the Commonwealth. An authorised review officer, on 13 November 2002, varied that decision by bringing forward the commencement date of the overpayment to 1 December 1997 and reducing the debt to $24,481.23. The matter was then reviewed by the Social Security Appeals Tribunal (the SSAT) which, on 7 February 2003, again varied the decision by determining that the applicant had been in a marriage-like relationship from and including 9 November 1998 thereby further reducing the amount of the debt. The SSAT did not quantify the amount of that debt.
3. On 27 February 2003, the applicant sought review of that decision by the Administrative Appeals Tribunal (the Tribunal).
HEARING
4. The applicant attended the hearing and was represented by Mr B Mumford of Counsel. Ms H Wallis-Dunn from the Service Recovery Team appeared for the respondent.
5. At the hearing, the documents prepared in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the AAT Act) were taken into evidence as exhibit 1 (the T Documents: T1-T69). In addition, Mr Mumford tendered a bundle of documents which were taken into evidence as exhibit 2 and which comprised:
§ a statement, dated 19 May 2003, by the applicant;
§ a statement, dated 12 May 2003, by Roslyn Francis;
§ a medical report, dated 3 February 2003, from Dr Mohammed Sultan;
§ a medical report, dated 18 May 2003, from Dr Peter Bevan;
§ medical reports, dated 23 October 1992 and 29 September 1993, from Dr Thomas Clark, consultant forensic psychiatrist;
§ a counsellor's report, dated 25 June 2002, from Nerryl Wheatley; and
§ a determination, dated 18 October 1993, of an Application for Victims Compensation by the applicant.
ISSUES AND LEGISLATION
6. Under the Act, payments of disability support pension are made in accordance with income levels of a recipient and also, in the case where the recipient is a member of a couple, with the income of a partner. In this case, the issue for determination is whether the applicant was a member of a couple during periods when disability support pension was paid to her and, if so, the duration of that period, the amount, if any, of any overpayment that was made to her and whether any such amount constitutes a debt owed by her to the Commonwealth.
7. Relevant to the determination of those issues are the respective recovery provisions of the Act that have been relevant in the time-frame under consideration viz. those in Part 5.2 of the Act from time to time, as well as the relevant waiver provisions of the Act as they applied from time to time and, in particular, sections 1237, 1237A and 1237AAD of the Act.
8. The central issue for consideration is whether or not the applicant meets the requirements of being in a marriage-like relationship as that term is set out in section 4 of the Act. It reads:
"Member of a couple--general
(2) Subject to subsection (3), a person is a member of a couple for the purposes of this Act if:
(a) the person is legally married to another person and is not, in the Secretary's opinion (formed as mentioned in subsection (3)), living separately and apart from the other person on a permanent or indefinite basis; 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.
Member of a couple--criteria for forming opinion about relationship
(3) In forming an opinion about the relationship between 2 people for the purposes of paragraph (2)(a) 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."
EVIDENCE OF THE APPLICANT AND MR RUSE
9. Most of the background factual material in this case is not disputed. The applicant has significant health problems associated with chronic airways disease with impaired lung function and it is mainly this condition which has been responsible for her receiving the disability support pension.
10. The applicant has had an association with Mr Maxwell Ruse since 1994 when they met in New South Wales through one of his relatives. They purchased a home as tenants-in-common in Barrack Heights in August 1994 where they lived for approximately one year until it was sold in September 1995. The deposit monies of $25,000 were supplied by Mr Ruse and an amount in the order of $6,000 was provided by the applicant for associated legal expenses. Mr Ruse's capital sum had come from a settlement he had received in relation to an injury. The applicant said that she entered into the arrangement to assist Mr Ruse in order to overcome his alcohol consumption problems and also to assist him to preserve his capital, and that it was also an arrangement of convenience because, at that stage, she needed care and Mr Ruse was able to provide it by keeping an eye on her and by providing assistance when it was needed. Mr Ruse, who gave evidence by telephone, said that it was, in part, to preserve his capital and also to provide care for the applicant that he decided to purchase a property. He said that he was "something of a softie" in that he cared for people and that, because she was ill and needed help, he provided it. He said that he made the mortgage payments and paid the rates although he said that the applicant would help out at times if she were able to with items such as electricity bills. Mr Ruse said that he lost almost all of his money in owning the Barrack Heights house because, after it was sold, they recovered only about $1,500. In relation to the manner of purchase as tenants-in-common, he said that he had spoken to a solicitor and had taken legal advice on the basis that that was the best way to protect his financial interest. He said that he had children and that, if anything happened to him, he wanted to ensure that his children would benefit from any monies that he had.
11. In 1994, the applicant had acquired a vacant block of land at South Kolan near Bundaberg and wanted to move there after selling the Barrack Heights house. First, she and Mr Ruse moved to a caravan park at Park Ridge in Queensland where the applicant stayed in her own van and Mr Ruse stayed in the van of friends. In relation to the move to Park Ridge, the applicant said that she and Mr Ruse had moved together to the caravan park whereas Mr Ruse said in his evidence that he had stayed behind to finalise the sale of the property and moved to Park Ridge after the applicant. Each of them gave evidence that they had separate accommodation at the caravan park and that, once again, he provided care for her including the cooking of some meals. He described her as being very forgetful in relation to cooking in that she frequently leaves appliances switched on.
12. They stayed at Park Ridge for 8 or 9 months and then moved towards Bundaberg. On route, they stayed for some 3 or 4 months at the property of the brother-in-law of Mr Ruse at Tewantin where Mr Ruse lived in the house and the applicant stayed on the property in her campervan. They then moved to South Kolan in November 1996 where the applicant resided in her campervan and Mr Ruse lived in a caravan. Mr Ruse said that it was probably a joint decision between them to move to South Kolan to live.
13. They stayed at South Kolan for approximately 2 years during which time Mr Ruse erected a kit home with monies they had borrowed, jointly, from Credit Union Australia. The applicant lived in the home once it had been completed but Mr Ruse remained living in the caravan though there was a time when Mr Ruse stayed in the home after the applicant had been in hospital and was recuperating. While at South Kolan, Mr Ruse was assessed as being eligible for the carer pension in relation to his obligations to the applicant and these payments continued until he took up employment in August 1998 after moving to Grantham. In her evidence, the applicant said that she had cleared the block at South Kolan by using her vehicle to push trees over. Mr Ruse said that they had utilised a "tractor with a bucket" to do the clearing and that the applicant did no work because she was not fit enough to do so. He said that she might have been driving the truck around with a load of trees in the back.
14. Both the applicant and Mr Ruse said that all of the expenses associated with the South Kolan property were borne by the applicant but that, by the end of 1998, she was unable to meet her mortgage payments and so they decided to rent the property, leave South Kolan and move south in the hope that Mr Ruse would find work. The applicant said that she had managed to sell the South Kolan property a few months prior to the hearing for $62,000 and that, after all debts had been discharged, she was left with the sum of between $8,000 to $10,000 which she had used to purchase a small car for herself.
15. After leaving South Kolan in 1998, they travelled to Grantham where Mr Ruse met up with a friend and they stayed at the friend's property for almost 2 years during which time Mr Ruse obtained employment, which commenced on 9 November 1998, at a chicken farm owned by Golden Egg Producers Pty Ltd. During that period, the applicant lived in a caravan on the friend's property whilst Mr Ruse was able to occupy a granny flat or shed on that property. Mr Ruse was then offered a managerial position with the chicken farm at Gatton and they moved there together and occupied the manager's house at 709 Gatton Esk Road from August 2000 to November 2001. His employer then acquired a further chicken farm at Laidley and Mr Ruse moved there to become the manager and, again, they both moved into the manager's house where they continue to reside.
16. In relation to the loan from Credit Union Australia to finance the kit home at South Kolan, each of them gave evidence that they believed that Mr Ruse was only a guarantor but conceded that the documentation showed that they were joint borrowers. Mr Ruse said that he had become involved because it would not have been possible for the applicant to obtain the loan on her own. Mr Ruse was asked about the loan application that had been completed by him and the applicant where he had described himself as being a roof plumber employed by Andy Bergmanis and as having previously worked as a roof plumber for Aussie Garages. He conceded that he had never been employed by Andy Bergmanis but said that he and that person had done work for each other on a barter basis and without the exchange of monies. He said that he had not worked for Aussie Garages and he described the filling out of the form as comprising "a few fibs". Mr Ruse said that he had been "shocked" to learn that he had been a co-borrower and yet he conceded that he had, subsequently, again jointly borrowed funds from the Credit Union in 2001 to purchase an electric scooter for the applicant. The amount of the loan was $2,800. He said that he did this because she needed the vehicle to assist her in moving around.
17. In relation to their living arrangements at South Kolan and Grantham, their evidence was that they were living separately but with a communication device connecting their living areas so that the applicant was able to call upon Mr Ruse in the event that she experienced difficulties.
18. Each of the parties indicated that all costs associated with living in the houses at Gatton and Laidley have been taken care of by Mr Ruse's employer as part of his salary package so the issue of financial contribution by them did not arise. Their evidence was that he is responsible for undertaking household duties because the applicant is not well enough to do this. Each of them said there had never been a sexual relationship between them and that they had always lived in separate rooms in the same house or in separate accommodation on the same block. They said that they share the responsibilities of grocery shopping and that the applicant would do this on her scooter whilst Mr Ruse pushed the shopping trolley. The applicant said that, on these trips, Mr Ruse always paid and she subsequently reimbursed him; whilst Mr Ruse said that they often shared the costs at the check-out on a 50/50 basis and without any reconciliation of which items purchased were associated with either of them.
19. The applicant was adamant that there had never been a joint account held by her and Mr Ruse and that the only joint arrangements were in respect of the borrowing of monies. Mr Ruse said that all of his wages are paid into his own Westpac Account and that he now owns a Hyundai Trajet vehicle which he pays for himself but he allows the applicant to use it and, in that situation, she pays the insurance on the vehicle. The applicant said that, in the past, she had been required to make arrangements for travelling when Mr Ruse was able to go with her to assist her in loading and unloading the scooter. She said that she would structure her appointments around the times when he was available although she said that this was facilitated by the fact that the sheds where Mr Ruse worked at the chicken farm were no more than a hundred metres from their home. She said that, sometimes, she would travel on her own and rely upon someone at the destination to assist her in unloading the scooter. She also said that she had recently, with the money from the sale of the South Kolan property, purchased an Hyundai Handivan, fitted it with an electric lifter at the cost of $800 and now had independence to move with scooter access and without the need to rely upon borrowing Mr Ruse's car. However, she said that she had travelled to the hearing in his car. Mr Ruse said that he was unaware that the applicant had purchased a car recently with an electric device for loading the scooter.
20. In relation to the living arrangements at Gatton and Laidley, the applicant said that each of them had their own television set in their separate bedrooms and that there was a communal one in the lounge room where there was also a computer and a Play Station. She described the computer as belonging to Mr Ruse and said that, during the weekends and in the evenings, they did their own thing and that Mr Ruse would occupy himself with the computer or at the Play Station in the lounge room or play darts. She said they watched television separately although she sometimes watched the lounge room television during the daytime. The applicant said that she had developed an interest in making porcelain dolls and that, frequently on Wednesdays, she would host a group of local ladies who would meet for the purposes of working in that medium. Mr Ruse described the computer as being that of the applicant and said that he uses the Play Station rather than the computer. He also said that they eat together in the evenings and that they sometimes watch television together.
21. In response to questioning about whether they had taken holidays together, the applicant said that there was one occasion when Mr Ruse was attending a family wedding in Wollongong and they drove down together to Canberra where she stayed with family and then he moved on to Wollongong, returning via Canberra to pick her up and then come back to Queensland. She said that, on the way to and from Canberra, they had stayed at a motel where she and Mr Ruse stayed in the same room in separate beds but she could not recall the details of where they stayed or about who was responsible for checking them in. However, Mr Ruse said that there had been only one occasion when he had gone to a wedding in Wollongong but that he had not taken the applicant any further than to a relative's place in Brisbane and that he had not taken her to Canberra.
22. Mr Ruse said that he does not use the showering facilities at his home because of the full quarantine requirements of the chicken farm which means that he needs to shower and change his clothes there on entering and leaving the area.
23. In relation to social outings, Mr Ruse said that they rarely went out socially apart from shopping but that, on occasions, they would go to dinner at the Plainlands Hotel when there was the prospect of obtaining a two-for-one-price meal. In relation to going out for dinner, Mr Ruse said that it would be at the invitation of their friends and work associates, Lyn Walters and her partner, and that the conversation centred around chicken farming and other hobby interests such as aeroplanes. He said that there would be occasions when friends would come to their home for a barbeque but he said that everyone that he meets and is associated with realises that he is a carer only for the applicant and not a partner.
24. Both the applicant and Mr Ruse said that they did not have a will and that they owned no assets jointly.
25. Mr Ruse was asked what would happen if the applicant got to a stage where she needed assistance with such things as showering and toiletry. He said that he would either have to help her or get the Blue Nurses to do so.
26. In relation to the long-term nature of their arrangements, the applicant said that it had simply happened on the basis of a week at a time without really being planned and that "they simply rolled along together". She said that it was a matter of convenience and, in particular, that was the case when Mr Ruse was able to occupy a manager's home and that he had invited her to live there and she had accepted that invitation. Each of them stated that they could see no reason why the arrangements between them should not continue into the future. Mr Ruse said that they sometimes discussed the future but that, in the end, he would always look after her as she is not able to live on her own and that he was simply her carer.
EVIDENCE OF LYN WALTERS
27. Lyn Walters said that she is also known by her married name, Roslyn Francis. She said that she lived at Laidley and had met the applicant through people in town about July 2002 and had been working at the chicken farm for Mr Ruse since September 2002. She said that her husband was also working there and that they worked at several chicken farms on a part-time basis. She said that she was also involved in porcelain craft work and she had been for about 2 to 3 months. Before that, she had been involved in ceramics for some 5 to 6 months. She said that, at times, she and others would go to the applicant's house where they would work on their porcelain projects together.
28. Ms Walters also said that she had gone to the applicant's premises on one occasion when the applicant had come out of hospital so that she could give her some assistance. She had great difficulty in remembering when this was. Eventually, she settled on it being early in 2003 that this occurred. She described the applicant as being not a very affectionate person and had thought that the relationship between her and Mr Ruse was unusual. She noted that there was no affection displayed between them and she formed the impression during her visit that each of them had their own separate bedrooms and that they were not in a marriage-like relationship. She said that, until she had gone to the house to give assistance after the applicant came out of hospital, she had assumed that they were a couple but she came away with a different point of view, having spoken to the applicant in the house and seeing the household..
29. Ms Walters said that, on three or four occasions, she, her partner, the applicant and Mr Ruse had gone to the local tavern for a meal. She said that this was usually instigated by Mr Ruse and that the main topic of conversation was chicken farms. She said that she believed that the main purpose of the social evenings was for Mr Ruse to learn about the way in which other chicken farms are operated so that he can utilise that information in making his own more efficient. She also said that she believed that the applicant and Mr Ruse go out together on a regular basis.
APPLICANT'S SUBMISSIONS
30. Mr Mumford submitted that, when regard is had to the criteria listed in subsection 4(3) of the Act, the evidence demonstrates that the applicant and Mr Ruse were not members of a couple.
31. In relation to the financial aspects of their dealings, he said that these were characterised by an absence of commitment by each to the other. He submitted that this was demonstrated by the fact that they purchased the property at Barrack Heights as tenants-in-common and because, with other property dealings, there was no joint ownership. He referred to South Kolan where everything was in the applicant's name and the process of borrowing monies was merely for the purpose of enabling the applicant to satisfy the requirements of the lender. He submitted that it was the applicant who serviced the obligations under the loan and not Mr Ruse.
32. Mr Mumford submitted that this financial independence was also demonstrated by the nature of the ownership of the vehicle that Mr Ruse currently owns. It was purchased in his name and he pays for all the costs associated with it but he allows the applicant the use of it provided she makes contribution by paying the insurance premiums. There was also a separation of assets in the other vehicles and caravans that they owned.
33. Mr Mumford conceded that a Credit Union Australia account was in joint names but submitted that it had never been utilised as an account by Mr Ruse who had his own account at Westpac. He submitted that there was never any pooling of finances by the parties and that the joint account was simply a follow-on from the loan arrangement that had been made with the Credit Union. He submitted that, again, the absence of any wills with a nomination of the other as a beneficiary demonstrated a separation of their financial circumstances.
34. In relation to the nature of the household, Mr Mumford conceded that the parties had either lived in the same premises or in close proximity since 1994 at various addresses. However, he submitted that, throughout that period, there was never a household but, rather, a relationship which enabled Mr Ruse to carry out the functions of the carer that he had been over that time.
35. In relation to the social matters, Mr Mumford submitted that they did not hold themselves out as being members of a couple and referred to the evidence of Mr Ruse that, whenever he could, he made sure that associates were aware that he was only the carer of the applicant. He submitted that no weight should be attached to the fact that the parties went out from time to time to a tavern for a meal with others because the main focus of those outings was discussion about chicken farms and it also relieved Mr Ruse of the obligation of having to cook a meal. He noted that it was also to enjoy the benefits of a meal at a reduced cost that the parties went out on these occasions. Again, in relation to activities such as grocery shopping, he submitted that there was no significance in the fact that they went together as each had different requirements and it was no more than Mr Ruse carrying out his obligations as a carer in assisting the applicant in that regard.
36. Mr Mumford submitted that the parties had never been in a sexual relationship and that this was significant in determining whether or not they were members of a couple.
37. In relation to the nature of the commitment between the parties, Mr Mumford referred to the evidence of Mr Ruse that he considered himself to be a "softie" and that this was the reason for his decision to involve himself as a carer with the applicant. He submitted that he purchased a house at Barrack Heights with the monies he had received as a compensation settlement and that the purpose of this was to preserve the fund as well as to enable him to provide assistance to the applicant.
38. Mr Mumford submitted that the circumstances involved in the parties moving from Grantham to Gatton and then to Laidley were entirely understandable on the basis of the convenience of the parties. It was a requirement of Mr Ruse's work that he live in the manager's residence and it was also financially advantageous for him to do so and entirely reasonable for the applicant to follow him into these properties where they lived independent lives under the one roof.
39. He referred to the evidence of Lyn Walters as supporting the independent nature of the living arrangements as between the applicant and Mr Ruse in the Laidley home.
40. Mr Mumford referred to some minor inconsistencies in the evidence as led by the parties in relation to the manner of land clearing at South Kolan, as to who owned the computer in the Laidley home, whether the applicant owned her own vehicle, who was responsible for issuing invitations to dinner and in relation to holiday arrangements.. However, he submitted that these demonstrated the reality of memory over many years and he submitted that it indicated that the parties had not attempted to structure their evidence in an untruthful manner. Mr Mumford also submitted that the lack of knowledge by Mr Ruse of the fact that the applicant had recently purchased a car also demonstrated behaviour which was not typical of those who were members of a couple.
RESPONDENT'S SUBMISSION
41. Ms Wallis-Dunn submitted that the applicant and Mr Ruse had been members of a couple in accordance with the criteria in subsection 4(3) of the Act since the time that they shared premises at Barrack Heights in 1994.
42. In relation to the financial circumstances of the parties, she submitted that the purchase of that property marked the beginning of those joint financial arrangements because they shared the premises as tenants-in-common. She submitted that no significance should be placed on the fact that the parties held title in that manner because it was not unusual for individuals who had previously been married to have an interest in protecting their individual interests in a property. She submitted that, whilst living there, the main financial responsibility was borne by Mr Ruse thereby demonstrating a willingness by him to allow the applicant to share in his financial expenditures. At South Kolan, she submitted that this was also demonstrated in reverse where the applicant owned the property and was responsible for all the financial outgoings in relation to the land and home but was willing to allow Mr Ruse to share these.
43. Ms Wallis-Dunn noted the evidence of Mr Ruse that he had been shocked when he learned that he was not merely a guarantor of the loan but a joint borrower. She submitted that this had to be measured against his subsequent willingness to enter into a loan to enable the applicant to purchase a scooter. She also referred to a loan application that the parties made but which they did not proceed with whereby they intended borrowing $60,000 to purchase a motor home in 1997.
44. Ms Wallis-Dunn submitted that, throughout the time that they have been living together or in close proximity, there has been a pooling of their financial resources. She referred to the arrangement in respect of vehicle usage at Laidley where Mr Ruse purchased and paid the outgoings on a car that enabled the applicant to use it provided she had made contribution by accepting responsibility for insurance payments.
45. She referred to the manner in which the parties went grocery shopping and to the inconsistencies in the evidence as to the manner in which payment was made. The applicant had said that reconciliation took place after shopping was completed and Mr Ruse said that it was often done at the check-out counter and that the division was purely on a 50/50 basis without regard being had for the nature of actual purchases.
46. In relation to the nature of the household, she accepted that the applicant had significant disabilities and that this cast a responsibility on Mr Ruse to carry out a greater range of household tasks. Nevertheless, she submitted that there was a sufficient sharing of activities to indicate that there was a household in a family sense in that the evidence showed that they ate meals together. She referred to the inconsistencies in the evidence in the manner in which the parties relaxed in the evening after meals where the applicant referred to the parties going to their separate rooms to watch television but with Mr Ruse indicating that there was some shared television viewing in the common area and the utilisation of the computer and the Play Station.
47. Mr Wallis-Dunn referred to the evidence of Ms Walters in relation to the nature of the household and submitted that little weight should be attached to it. In part, this was on the basis of the confusing evidence that she gave concerning dates and to the likelihood that her visitation to the applicant's home was after the applicant became aware that she had been advised of the current overpayment.
48. In relation to the social aspects of the relationship, Ms Wallis-Dunn referred to the evidence that the parties enjoyed each other's company on social occasions by having dinner at a local tavern, albeit on value nights. She noted the evidence that the parties had separate bedrooms and were not involved in a sexual relationship but she submitted that this was a feature of many marriages.
49. Ms Wallis-Dunn submitted that the evidence demonstrated that the parties were committed to each other and this was shown by their willingness to move from residence to residence and from State to State over several years and that this indicated a high degree of emotional support for each other and companionship to each other. She noted the reference by Mr Ruse in his evidence to the fact that, if it were necessary for the applicant to require assistance with showering and toiletry, he might engage the services of a nursing organisation but he also said that, if necessary, he would do it himself.
50. Ms Wallis-Dunn noted that Mr Ruse has been in receipt of a carer pension in respect of the applicant but submitted that being a carer was not inconsistent with being in a marriage-like relationship with the caree. She submitted that the two concepts were not mutually exclusive.
51. Ms Wallis-Dunn submitted that the willingness of the parties to engage in the borrowing of substantial sums of money, jointly, demonstrated a high level of trust and commitment as between the two of them.
52. Ms Wallis-Dunn also submitted that there were issues of credit associated with the evidence that was given by the applicant and by Mr Ruse. She referred to the varying versions relating to the visitation by Mr Ruse to his daughter's wedding in Wollongong and whether or not the applicant accompanied him. She also noted that Mr Ruse had admitted to telling "fibs" in circumstances where he would be advantaged in relation to his loan application to the Credit Union where he clearly gave the impression that he had been employed as a roof plumber when that was not the case.
53. She also referred to the contradictory evidence that was given by the applicant and Mr Ruse in respect of recent events concerning the purchase of a car and the fitting of it with an electrical device to enable the applicant's scooter to be loaded.
54. She also submitted that the debt had been correctly calculated and that no challenge had been made to those calculations and that no special circumstances had been advanced which would justify the waiver of any component of the debt.
CONSIDERATION
55. The period potentially in issue in this matter is from the date initially set as the commencement of the overpayment period in the original decision. This was 6 November 1996. It is not disputed by the applicant that, since then, she was paid disability support pension without regard being had to the income levels of Mr Ruse or that she was overpaid the amounts variously determined by the initial delegate or by the authorised review officer provided she was a member of a couple at the time.
56. The applicant will be a member of a couple if the requirements of paragraph (4)(2)(b) of the Act are met. No issues arise in relation to sub-paragraphs 4(2)(b)(i), (ii), (iv) or (v) and I am satisfied that those requirements are met in this case. The remaining component is that provided for in paragraph 4(2)(b)(iii) of the Act and this requires an analysis of the factors in subsection 4(3) of the Act. The provision is set out above and consideration must be given to:
§ the financial aspects of the relationship;
§ the nature of the household;
§ the social aspects of the relationship;
§ any sexual relationship between the people; and
§ the nature of the people's commitment to each other.
57. As the Tribunal stated in Re Kajzer and Secretary, Department of Family and Community Services [1999] AATA 362, "there is no formula that determines whether or not people are living in a marriage and when they are living separately and apart" (at 33); see also Kajzer v Secretary, Department of Family and Community Services [2000] FCA 259. Also, all of the circumstances of the parties' arrangements must be taken into account when consideration is given to sub-section 4(3) of the Act: see Re Secretary, Department of Family and Community Services and Bell [2000] AATA 252.
58. Before dealing with the relevant factors in sub-section 4(3) if the Act, I make the following observations in relation to the applicant's evidence which was characterised by inconsistencies not all of which are able to be explained only on the basis that they reflect the vagaries of memory recall. That may explain relatively insignificant differences such as the manner of land clearing at South Kolan, who owned the computer in the Laidley home and who was responsible for issuing invitations to dinner. However, it does not explain more significant differences including the means adopted by them for the payment of household goods such as grocery items or whether or not the applicant travelled by vehicle to Canberra with Mr Ruse on the occasion of his daughter's wedding. Neither does it explain the difference in the evidence in relation to whether or not the applicant has recently purchased her own vehicle. Mr Ruse said that he was not aware of this and the applicant gave evidence that she drove his car to Brisbane for the hearing rather than her own with its specially fitted apparatus for manoeuvring her scooter.
THE FINANCIAL ASPECTS OF THE RELATIONSHIP
59. In this case, there is no dispute about the places in which the applicant and Mr Ruse have lived since 1994, about the nature of the ownership of those respective places or about the means adopted by them to discharge their financial obligations in relation to those places. They purchased the Barrack Heights house as tenants in common and, thereafter, have lived in caravans or campervans that they have separately owned at Park Ridge, Tewantin and, for some time, at South Kolan. Also, at South Kolan, the applicant lived in the kit home that was erected there while Mr Ruse lived on the block in a caravan. At Grantham, Mr Ruse had a form of granny flat while the applicant lived in a caravan and, since Mr Ruse took up a manager's position, both have lived in a manager's house, first at Gatton and then at Laidley. Mr Ruse met the main costs associated with the Barrack Heights house and the applicant did so at South Kolan.
60. During the period of overpayment, the applicant and Mr Ruse have not jointly owned real estate. The Barrack Heights property was bought and sold before November 1996. Nevertheless, their purchase of that property points to a significant pooling of their financial resources at that time and, while that has not been continued in the further purchase of property, it is reflected in the willingness of them to enter into financial obligations jointly. This is demonstrated with the loan taken with Credit Union Australia to purchase the kit home at South Kolan. The relevant documents relating to that loan clearly identify both the applicant and Mr Ruse as borrowers and I do not accept their evidence that they believed that Mr Ruse was only a guarantor for the loan. Even if it were the case that this was his correct status in relation to the loan, he was still demonstrating a willingness to accept potential liability in the event that the applicant breached her own commitments. That Mr Ruse experienced a sense of shock on learning that he was a co-borrower is not supported by his subsequent joint borrowing of monies for the applicant's scooter or for the lodgement of a loan application by them for a further loan of $60,000 to purchase a motor home on 8 December 1997. The relevant loan application was in evidence in the T documents although the evidence is that the parties did not proceed with this loan. These continuing examples of willingness to undertake joint responsibility reveal a deep sense of mutual trust and accountability between them.
61. Since the applicant and Mr Ruse have been living in a manager's house, there has been no need for them to pool resources to cover the running costs of the house because these are met by Mr Ruse's employer. However, as this is part of his salary package, this amounts to an extension to the applicant by Mr Ruse of free accommodation and free access to utilities. There also continues to be pooling of finances in relation to such items as household expenditure. The evidence of Mr Ruse was that they shared the costs of shopping expenses on a 50/50 basis and without any reconciliation to take account of what items and on whose behalf those items were purchased.
62. During the period in question, the parties had a joint Credit Union account although this has not been utilised by Mr Ruse and there has also been a willingness by Mr Ruse to share his vehicle with the applicant although she has made some contribution to this by making insurance payments. This included her use of the vehicle to travel to Brisbane for the hearing.
THE NATURE OF THE HOUSEHOLD
63. The evidence in relation to the nature of the household is that the applicant is limited in the extent that she is able to undertake household responsibilities because of her health. These are largely undertaken by Mr Ruse. Clearly, these are responsibilities that a carer would undertake but I accept the submission of Ms Wallis-Dunn that being a carer is not necessarily inconsistent with being in a marriage-like relationship. The evidence is that Mr Ruse is no longer a carer in a formal sense for the applicant yet he continues that role and the extent to which he was willing to do so was seen in his evidence that, if the applicant got to a stage where she needed assistance with such things as showering and toiletry, he would be willing to do that although he also said that he might enlist the assistance of a nursing organisation.
64. There were inconsistencies in the evidence about the extent to which the parties spend time together in the household. The applicant said they each do their own thing but Mr Ruse described them as taking meals together and spending evenings watching television in the lounge room. I accept his evidence in that regard although I also accept that the parties often carry out their own computer based or Play Station based activities in the common part of the house as well.
65. The applicant's evidence was that she and Mr Ruse occupy separate bedrooms. That was also the evidence Ms Walters who was quite vague in many of her recollections except that she was clear that she believed that the applicant and Mr Ruse were members of a couple from her observations of them up to the time that she visited the house to provide some help to the applicant. She finally agreed that this was early in 2003 and her opinion of the nature of the relationship changed when she noted that they occupied separate bedrooms. Ms Walters said that she had met the applicant in July 2002 and had started working at the chicken farm in September 2002. This means that she believed for several months that the applicant and Mr Ruse were members of a couple.
SOCIAL ASPECTS OF THE RELATIONSHIP
66. The applicant and Mr Ruse engage in social outings and, periodically, go together to a local hotel for a meal in a social setting with Ms Walters and her partner. The evidence of Ms Walters was that they mainly discuss chicken farming although the evidence of Mr Ruse was that, in addition, they discuss the hobby interests of Ms Walters' partner as well. I reject the suggestion that these evenings are only a means for Mr Ruse to glean information about other farms and am satisfied that they are genuine social outings for the applicant and Mr Ruse.
SEXUAL RELATIONSHIP
67. The evidence is that the parties do not have a sexual relationship but, again, I accept the submission of Ms Wallis-Dunn that this is not a feature which necessarily precludes the existence of a marriage-like relationship.
THE NATURE OF THE PEOPLE'S COMMITMENT TO EACH OTHER
68. The parties have demonstrated a significant commitment to each other over a long period of time. They have made decisions to travel from town to town and to share premises over many years, all through which Mr Ruse has continued to provide a high level of care to the applicant because of her needs. This was one of the reasons for their relationship commencing; another was for the applicant to provide support for Mr Ruse in relation to an alcohol consumption problem. Each has been the beneficiary of this joint commitment over several years and the high level of that commitment in the past is reflected in the evidence of the parties about their future circumstances. The applicant is willing for them to continue to "roll along together" and Mr Ruse said that, in the end, he would always look after her.
MEMBERS OF A COUPLE
69. Having regard to the factors in subsection 4(3) of the Act, I am satisfied that the relationship between the applicant and Mr Ruse has been one which characterises them as being not merely in a carer-caree relationship but as being members of a couple. It was on that basis that the initial decision, the decision of the authorised review officer and the SSAT decision were each made. Those decisions differed in relation to the timing of the commencement of the marriage-like relationship. The evidence is that, after leaving the Barrack Heights house, the applicant and Mr Ruse have occupied separate mobile or permanent homes, albeit at times on the same property, but that this changed when Mr Ruse moved into the manager's house at 709 Gatton Esk Road, Gatton, in August 2000. The evidence does not indicate the date of moving to that address but, on 15 October 2001, the applicant completed an Assessment of Living Arrangements in which she stated that she commenced living at that address in July 2000 and I am satisfied that they were living at 709 Gatton Esk Road, Gatton, from 1 August 2000.
70. While many of the features of a marriage-like relationship were present as between the applicant and Mr Ruse prior to their moving into the same premises in Gatton, I am satisfied that this move marked a material change as the parties have constituted a distinct and separate household since that time and have continued to do so to the date of the hearing. I am satisfied that the parties were members of a couple throughout the period from 1 August 2000 and that the applicant should have been assessed on that basis for the purposes of calculating the level of disability support pension payable to her since that time.
71. The date that I have determined for the commencement of the applicant's marriage-like relationship is later than that set in the decision under review and, therefore, in that sense, the applicant has been partly successful as this will mean there is a reduction in the length of the overpayment period.
72. No submissions were made in relation to waiver of the debt or any part of it in accordance with the non-recovery provisions of the Act and I am satisfied that these are not applicable.
DECISION
73. The Tribunal varies the decision under review by determining that the applicant was a member of a couple throughout the period from 1 August 2000 and the matter is remitted to the respondent to determine the amount of the overpayment of disability support pension paid to her.
I certify that the 73 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Member
Signed: Sarah Oliver
Associate
Dates of Hearing 29 September 2003
Date of Decision 31 October 2003
Counsel for the Applicant Mr B Mumford
Solicitor for the Applicant Welfare Rights Centre
For the Respondent Ms Wallis-Dunn, Departmental Advocate
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