Clark and Secretary to the Department of Family and Community Ser vices [2003] AATA 94 (3 February 2003)

Last Updated: 4 February 2003

DECISION AND REASONS FOR DECISION [2003] AATA 94

ADMINISTRATIVE APPEALS TRIBUNAL Nº V2002/448

GENERAL ADMINISTRATIVE DIVISION

Re: ANGELA LOUISE CLARK

Applicant

And: SECRETARY TO THE

DEPARTMENT OF FAMILY AND

COMMUNITY SERVICES

Respondent

DECISION

Tribunal: G.D. Friedman, Member

Date: 3 February 2003

Place: Melbourne

Decision: The Tribunal affirms the decision under review.

(sgd) G.D. Friedman

Member

1. SOCIAL SECURITY - whether member of a couple - recovery of debt - write off of debt - waiver - whether special circumstances exist - inferences from non-appearance

Social Security Act 1991 s4, 1224, 1236(1), 1236(1A), 1237A(1), 1237A(1A), 1237AAD

Re Beadle and Director-General of Social Security (1984) 6 ALD 1

Re Peck and Secretary, Department of Social Security (AAT 8357 2 November 1992)

REASONS FOR DECISION

3 February 2003 G.D. Friedman, Member

1. This is an application by Angela Louise Clark (the applicant) for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 29 January 2002. The SSAT affirmed a decision of an authorised review officer of Centrelink dated 6 August 2001 to raise and recover overpayments of family allowance, parenting payment, pensioner education supplement and sole parent pension totalling $45,561.35.

2. At the hearing of this matter on 28 November 2002 the applicant represented herself and Mr B. Sparkes, an advocate with Centrelink, represented the Secretary to the Department of Family and Community Services (the respondent).

3. The Tribunal received into evidence the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 (T1-T84), together with one exhibit (Exhibit A1) tendered by the applicant and one exhibit (Exhibit R1) tendered on behalf of the respondent.

4. On 3 December 2002 a person identifying herself as Ms Debbie Powe, the applicant's former partner, attended the Registry and made a written statement that the person who gave evidence at the hearing, purporting to be Ms Powe, was in fact Mr M. Kristenson, the applicant's current partner. On receipt of this information the Tribunal decided to re-open the proceedings, and a further hearing was listed for 17 January 2003. There was no appearance by the applicant or Ms Powe at this further hearing. The Tribunal was unable to serve a summons to attend on Mr Kristenson.

BACKGROUND

5. The applicant was granted sole parent pension in 1994 and parenting payment in 1998. She also received pensioner education supplement and family allowance. On 8 March 1997 Centrelink advised the applicant that she was required to notify Centrelink if there were any changes in a number of matters, including her marital status. On 29 March 1997 the applicant married Mr Kim Clark, and after the marriage they lived together in Devonport, Tasmania. On 21 April 1997 the applicant informed Centrelink that she and Mr Clark had separated on 2 April 1997.

6. In July 2001 Centrelink decided that the applicant had been a member of a couple since 29 March 1997, and decided to raise an recover overpayments in the amounts of $15,581.30 (family allowance), $2452.03 (pensioner education supplement), $20,580.92 (parenting payment) and $5974.70 (sole parent pension). On 6 August 2001 an authorised review officer affirmed the decision but increased the sole parent pension debt to $6947.10, with the total debt being $45,561.35. On 16 August 2001 the applicant sought review by the SSAT, which affirmed the decision. On 8 March 2002 the applicant lodged an application with the Tribunal for review of the decision by the SSAT.

EVIDENCE

7. Documents provided by Centrelink state that an extensive investigation carried out by Centrelink has revealed that:

* on 18 April 1997 the applicant and Mr Clark entered into a rental agreement for electrical goods and gave as their address the applicant's residence in Devonport;

* Mr Clark's employer had the Devonport address as Mr Clark's home address;

* on 11 November 1997 Mr Clark lodged a tax return claiming the applicant as a dependent spouse at the Devonport address;

* on 21 April 1998 the applicant completed an application for superannuation and named Mr Clark as the sole beneficiary;

* Mr Clark renewed his driver's licence in 1997, 1998 and 2001 listing the Devonport residence as his address;

* on 18 September 1997 Mr Clark registered a motor vehicle and listed the Devonport residence as his address;

* in September 1998 the applicant and Mr Clark held a joint bank account and listed the Devonport residence as their address;

* on 24 February 1999 the applicant completed a further application for superannuation and nominated Mr Clark as a 50% beneficiary;

* on 20 August 1999 the applicant's rehabilitation consultant stated that the applicant was relying on Mr Clark and others for domestic support;

* on 12 February 2000 Mr Clark applied to a finance company for a loan and listed the Devonport residence as his address;

* on many occasions the applicant paid Mr Clark's rent at a Caravan Park, and the landlord regarded the applicant and Mr Clark as a couple;

* in applications for employment the applicant described herself as married rather than single;

* the applicant was admitted to hospital on 17 April 2001 and 21 May 2001 and nominated Mr Clark as the emergency contact;

* surveillance indicated that Mr Clark was present overnight at the applicant's residence on a number of occasions in April and May 2001;

* Mr Clark has had an active and continuing involvement with the applicant's children.

8. The applicant gave oral evidence that she had been in a relationship with Ms Powe for a considerable time. She said that after an argument in February 1997 Ms Powe moved out of the home. In order to make Ms Powe jealous, she decided to marry Mr Clark, whom she had known as a friend for a number of years, and who wanted to marry her. She told the Tribunal that a marriage celebrant conducted the ceremony and a reception was held for 40-60 relatives and friends. The applicant said that the next day she realised that the marriage was a mistake, and she told Mr Clark that she believed that she had contracted hepatitis C. She stated that Mr Clark left after four days, but he returned to her home before she told him in May 1997 to leave and that the marriage was over from that date.

9. The applicant stated that Ms Powe moved into her home shortly afterwards, and she resumed that relationship. She explained that Ms Powe lived with her until she, Ms Powe, moved to Melbourne in June 2000. The applicant and her two children followed Ms Powe in January 2002. They said that they remain in a relationship.

10. In respect of the marriage to Mr Clark, the applicant stated that she has not obtained a divorce because of the cost, pressures relating to these proceedings, and the fact that she has lost her Certificate of Marriage. She said that Mr Clark has informed her that he will not spend money on a divorce application. She said that she preferred to use her married name on official documents because she has accrued a number of debts in her single name. She also said that applications for loans etc. are more likely to succeed if she describes herself as married, and she uses Mrs because she is still legally married.

11. The applicant stated that at no time after May 1997 has Mr Clark lived with her. She stated that he came to visit the children several times each week and was a father figure to them. She also said that he assisted with gardening and household requirements and he helped her with personal matters (such as washing her hair) when she was unable to perform these tasks. The applicant told the Tribunal that on various legal documents Mr Clark listed her address as his own because he did not have stable accommodation and preferred to collect his mail from her. She said that she nominated him as a beneficiary under superannuation policies and as an emergency contact when she was hospitalised because she had no close family members, and Ms Powe would not have been seen by some as being appropriate because she was a same-sex partner.

12. Under cross-examination the applicant said that she did not recall informing Centrelink in September 1997 that she and Mr Clark were living together. She was adamant that the separation occurred in May 1997, and disagreed with a written statement by a friend dated 16 October 1997 that the applicant and Mr Clark separated on 15 October 1997 and that Mr Clark was living at her address. The applicant agreed that she might have reconciled with Mr Clark in August or September 1997, and that she did not inform Centrelink. She also agreed that she and her children were forced to move to a women's refuge in about September 1997 following harassment and threats against her by Mr Clark. She described his conduct as mind games.

13. In relation to a document dated 27 November 1997, compiled by an officer of Housing Services, that listed Mr Clark as residing with the applicant and her children since 29 September 1997, the applicant stated that the information must be incorrect, otherwise she would have been charged a higher rate of rent. She had no explanation for the absence of Ms Powe's name as a resident.

14. The applicant said that Mr Clark still lives in Tasmania, and she last saw him in January 2002. She stated that she contacted him about two months ago, but has been unable to obtain from him any signed statement or other evidence that would support her claims. She added that contact with him might damage her application because on previous occasions Centrelink has invaded her privacy by conducting surveillance to strengthen its case against her.

15. Ms Powe gave oral evidence that she has known the applicant for 17 years and has been in a relationship with her off and on for 13 years. She confirmed that she was living with the applicant until an argument in February 1997, and that she moved back into the applicant's home in May 1997 when the applicant and Mr Clark separated. She stated that Mr Clark remained on friendly terms with the applicant and had a close relationship with the children. He used to visit about twice a week, although Ms Powe said that she saw him as a rival for the applicant's affections and did not like him.

16. Under cross-examination Ms Powe agreed that in a written statement dated 19 September 2001 (Exhibit R1) she said that she had been in a relationship with the applicant for approximately 7 to 8 years.. She denied that Mr Clark lived at the applicant's home at any time after May 1997. She told the Tribunal that the applicant and the children moved to a women's refuge in about September 1997 because Mr Clark harassed the applicant by coming to the house at night (whilst Ms Powe was at work) and acting in a threatening and intimidating manner. Ms Powe agreed that she had assisted the applicant with her application to the Tribunal but was unaware of Mr Clark's whereabouts or whether he was prepared to provide supporting evidence.

CONSIDERATION OF THE ISSUES

17. The relevant sections of the Social Security Act 1991 (the Act) are:

4.(1) In this Act, unless the contrary intention appears:

...

"member of a couple" has the meaning given by subsections (2), (3), (3A), (6) and (6A);

4.(2) Subject to subsection (3), a person is a member of a couple for the purposes of this Act if:

(a) the person is legally married to another person and is not, in the Secretary's opinion (formed as mentioned in subsection (3)), living separately and apart from the other person on a permanent or indefinite basis; or

(b) all of the following conditions are met:

(i) the person has a relationship with a person of the opposite sex (in this paragraph called the "partner");

(ii) the person is not legally married to the partner;

(iii) the relationship between the person and the partner is, in the Secretary's opinion (formed as mentioned in subsections (3) and (3A)), a marriage-like relationship;

(iv) both the person and the partner are over the age of consent applicable in the State or Territory in which they live;

(v) the person and the partner are not within a prohibited relationship for the purposes of section 23B of the Marriage Act 1961.

Note: ...

4.(3) In forming an opinion about the relationship between 2 people for the purposes of paragraph (2)(a) or subparagraph (2)(b)(iii), the Secretary is to have regard to all the circumstances of the relationship including, in particular, the following matters:

(a) the financial aspects of the relationship, including:

(i) any joint ownership of real estate or other major assets and any joint liabilities; and

(ii) any significant pooling of financial resources especially in relation to major financial commitments; and

(iii) any legal obligations owed by one person in respect of the other person; and

(iv) the basis of any sharing of day-to-day household expenses;

(b) the nature of the household, including:

(i) any joint responsibility for providing care or support of children; and

(ii) the living arrangements of the people; and

(iii) the basis on which responsibility for housework is distributed;

(c) the social aspects of the relationship, including:

(i) whether the people hold themselves out as married to each other; and

(ii) the assessment of friends and regular associates of the people about the nature of their relationship; and

(iii) the basis on which the people make plans for, or engage in, joint social activities;

(d) any sexual relationship between the people;

(e) the nature of the people's commitment to each other, including:

(i) the length of the relationship; and

(ii) the nature of any companionship and emotional support that the people provide to each other; and

(iii) whether the people consider that the relationship is likely to continue indefinitely; and

(iv) whether the people see their relationship as a marriage-like relationship.

...

1224.(1) If:

(a) an amount has been paid to a recipient by way of social security payment or fares allowance; and

(b) the amount was paid because the recipient or another person:

(i) made a false statement or a false representation; or

(ii) failed or omitted to comply with a provision of the social security law or this Act as in force immediately before 20 March 2000, the 1947 Act or the Social Security (Fares Allowance) Rules 1998;

the amount so paid is a debt due by the recipient to the Commonwealth.

...

1236.(1) Subject to subsection (1A), the Secretary may, on behalf of the Commonwealth, decide to write off a debt, for a stated period or otherwise.

1236.(1A) The Secretary may decide to write off a debt under subsection (1) if, and only if:

(a) the debt is irrecoverable at law; or

(b) the debtor has no capacity to repay the debt; or

(c) the debtor's whereabouts are unknown after all reasonable efforts have been made to locate the debtor; or

(d) it is not cost effective for the Commonwealth to take action to recover the debt.

1237A(1) Subject to subsection (1A), the Secretary must waive the right to recover the proportion of a debt that is attributable solely to an administrative error made by the Commonwealth if the debtor received in good faith the payment or payments that gave rise to that proportion of the debt.

1237A.(1A) Subsection (1) only applies if:

(a) the debt is not raised within a period of 6 weeks from the first payment that caused the debt; or

(b) if the debt arose because a person has complied with a notification obligation, the debt is not raised within a period of 6 weeks from the end of the notification period;

whichever is the later.

...

1237AAD The Secretary may waive the right to recover all or part of a debt if the Secretary is satisfied that:

(a) the debt did not result wholly or partly from the debtor or another person knowingly:

(i) making a false statement or false representation; or

(ii) failing or omitting to comply with a provision of this Act or the 1947 Act; and

(b) there are special circumstances (other than financial hardship alone) that make it desirable to waive; and

(c) it is more appropriate to waive than to write off the debt or part of the debt.

18. Mr Sparkes submitted that the applicant's statements to Centrelink, the SSAT and the Tribunal contained many inconsistencies and contradictions. He referred to the criteria contained in s4(3) of the Act and stated that the evidence pointed to a finding that at relevant times the applicant was married to Mr Clark and was not living separately and apart from him on a permanent or indefinite basis. He asked the Tribunal to draw an adverse inference from the lack of evidence from Mr Clark. Mr Sparkes submitted that the applicant was not entitled to parenting payment and pensioner education supplement, and the decision to cancel was correct. He stated that as the applicant received payments to which she was not entitled there was an overpayment under the Act, and the debt was raised correctly. He said that there was no administrative error attributable to the Commonwealth, no special circumstances to justify waiver of the debt and no grounds to write off the debt.

19. At the resumed hearing on 17 January 2003 Mr Sparkes submitted that the Tribunal should draw inferences adverse to the applicant because of her non-appearance, and should place little weight on the evidence given by herself and Ms Powe.

20. In reaching its decision the Tribunal takes into account the written material, the oral evidence and the submissions made at the hearing.

21. The Tribunal agrees with Mr Sparkes that the evidence from the applicant and Ms Powe contained a number of inconsistencies and contradictions, particularly regarding the date of separation between the applicant and Mr Clark and subsequent periods of reconciliation. In considering each of the factors contained in s4(3) of the Act the Tribunal takes into account that after May 1997 Mr Clark continued to use the applicant's address as his own for significant legal and other documents. In the absence of corroborating evidence the Tribunal does not accept the applicant's explanation that Mr Clark had no stable accommodation and this arrangement was convenient for his mail collection for a considerable period. The Tribunal also notes the joint existence of joint bank accounts, joint applications to financial institutions and the inclusion of the applicant as a dependent spouse on Mr Clark's tax return for 1997, and as a beneficiary under superannuation policies.

22. The applicant had no reasonable explanation for the inclusion of Mr Clark's name on the Housing Services document as a resident at her address in November 1997. The Tribunal takes into account that the applicant encouraged Mr Clark to visit her home regularly to perform household duties and to see the children, with whom Mr Clark must have spent considerable time for them to regard him as a father figure. The Tribunal views the applicant`s evidence that Mr Clark helped her out of bed and washed her hair as an indication of a close relationship, despite the lack of evidence about a sexual relationship. By including Mrs on various documents the applicant held herself out as, and was perceived to be, Mr Clark's wife. Given the nature of her long-term relationship with Ms Powe the Tribunal does not accept that the applicant's failure to seek a divorce was the result of a lack of time, money or the pressure of these proceedings.

23. The Tribunal takes into consideration the signed statement by the applicant's friend confirming the date of separation as 15 October 1997, which is consistent with the time that the applicant moved to a women's refuge. The Tribunal does not accept as plausible the evidence from the applicant that the reason she did not nominate Ms Powe as an emergency contact when she was admitted to hospital was to the effect that the hospital or the community might find this unacceptable. The Tribunal accepts Mr Sparkes's submission that the applicant has had ample opportunity to arrange for Mr Clark to provide written or oral evidence to the Tribunal, particularly as the applicant admitted that she has been in recent contact with him and that he was aware of the hearing. Consequently, the Tribunal draws an inference that his evidence would not assist the applicant.

24. In Re Peck and Secretary, Department of Social Security (AAT 8357 2 November 1992) the Tribunal stated:

...

The Tribunal would note at the outset that s.4(3) does not contain an exhaustive list of criteria to be addressed when determining whether a "marriage-like relationship" exists (Re Staunton-Smith and Secretary, Department of Social Security (1990) 21 ALD 456) and the weight to be given to each factor will vary depending on the circumstances involved, with the object of identifying the presence or absence of the essential character of a marriage-like relationship. ...

25. On the material presented, the Tribunal finds that the applicant was, at the relevant times, legally married to Mr Clark and was not living separately and apart from him on a permanent basis. Therefore, the applicant was a member of a couple for the purposes of s4 of the Act. The Tribunal finds that the applicant received payments of family allowance, parenting payment, pensioner education supplement, and sole parent pension to which she was not entitled totalling $45,561.35. The overpayments are a debt to the Commonwealth under s1224 of the Act.

26. The Tribunal accepts the submission by Mr Sparkes that there are no grounds to write off the debt under s1236(1A). With respect to waiver of the debt, the Tribunal finds that the debt was not attributable solely to an administrative error made by the Commonwealth, so the debt may not be waived under s1237A of the Act. In relation to s1237AAD of the Act, s1237AAD(b) requires special circumstances (other than financial hardship alone). In Re Beadle and Director-General of Social Security (1984) 6 ALD 1 the Tribunal held that special circumstances must be unusual, uncommon or exceptional, and there must be something to distinguish the case from others. On the available material, the Tribunal is not satisfied that any matters raised by the applicant constitute special circumstances that make it desirable to waive the debt. Therefore the Tribunal finds that the applicant does not satisfy s1237AAD(b) of the Act, and she is unable to satisfy s1237AAD, so the debt may not be waived.

27. In the absence of sworn evidence from the person who attended the Registry purporting to be Ms Powe, Mr Kristenson and further evidence from the applicant, the Tribunal does not take the allegations referred to in paragraph 4 any further.

DECISION

28. The Tribunal affirms the decision under review.

I certify that the twenty-seven [28] preceding paragraphs are a true copy of the reasons for the decision of:

G.D. Friedman, Member

(sgd) Catherine Thomas

Clerk

Date of hearing: 28 November 2002, 17 January 2003

Date of decision: 3 February 2003

Advocate for applicant: Self-represented (28 November 2002)

Advocate for respondent: Mr B. Sparkes, Centrelink