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Ingram and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 12 (9 January 2009)

Last Updated: 9 January 2009

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 12

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2008/2046

GENERAL ADMINISTRATIVE DIVISION
)

Re
VINCENT INGRAM

Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal
Ms N Isenberg, Senior Member

Date 9 January 2009

Place Sydney

Decision
The decision under review is affirmed.

....................[sgd]...................
Ms N Isenberg
Senior Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – member of a couple – marriage-like relationship – specified criteria for forming an opinion about relationship – decision under review affirmed


Social Security Act 1991 – Section 4


Re SRWW and Secretary, Department of Family and Community Services [2001] AATA 495

Cullinane and Secretary, Department of Family and Community Services [2004] AATA 789

Re Secretary, Department of Family and Community Services and WAP [2000] AATA 7

Pelka v Secretary, Department of Family and Community Services [2006] FCA 735; (2006) 151 FCR 546

Re Secretary, Department of Employment and Workplace Relations and Sperring [2007] AATA 1050

Mould and Department of Family and Community Services [2001] AATA 388


REASONS FOR DECISION


9 January 2009
Ms N Isenberg, Senior Member

BACKGROUND

  1. Vincent Ingram married Beverley Ingram in 1966. Since 2002 both he and Mrs Ingram were paid disability support pension (“DSP”) on the basis that they were a married couple.
  2. In May 2004 Mr Ingram lodged with Centrelink a separation details form, declaring that he had separated from Mrs Ingram on 9 January 2004. Centrelink then commenced paying Mr Ingram the single rate of pension. On the form he also indicated that his address was 28 Mitumba Road, Seven Hills, while his wife lived at 313 Blacktown Road, Prospect. In fact, the two addresses were for the same corner property. When Centrelink became aware that the 2 properties were identical, it decided that Mr Ingram should be treated as a member of a couple and therefore paid at the married rate. Mr and Mrs Ingram divorced on 26 July 2007.

ISSUE

  1. Is Mr Ingram a “member of a couple” as defined in section 4 of the Social Security Act 1991 (“the Act”) for the purpose of calculating his entitlement to DSP?

LEGISLATION

  1. The term “member of a couple” is defined in s 4(2) of the Act as including someone who is in a “marriage-like relationship” with a person of the opposite sex. In order to determine whether someone’s relationship is “marriage-like” s 4(3) of the Act states that all of the circumstances of a relationship must be considered, including the following:

THE EVIDENCE

  1. Mr Ingram gave evidence, as did Mrs Ingram, Mr Colin Ingram (their son), and Dr J Watts (their GP).
  2. Documents were tendered – see Annexure A.

CONSIDERATION

  1. The concept of a "marriage-like relationship" under the Act was discussed in Re SRWW and Secretary, Department of Family and Community Services [2001] AATA 495, where the Tribunal noted that each matter is to be considered on its merits and that the Tribunal should remain flexible in its approach. The ‘list’ in s 4 is not exhaustive and no guidance is given as to the weight of any factor. They are common-sense indicators: Cullinane and Secretary, Department of Family and Community Services [2004] AATA 789. The total picture of the relationship that emerges from the factors must be weighed: Re Secretary, Department of Family and Community Services and WAP [2000] AATA 7 (“WAP”). One factor alone will not be determinative of a marriage like relationship: Pelka v Secretary, Department of Family and Community Services [2006] FCA 735; (2006) 151 FCR 546.
  2. The issue of how two cohabitating persons view their relationship, based on their mutual or individual perceptions of what constitutes a “marriage-like relationship”, is also not determinative. The test is an objective one: WAP.
  3. As to the indicia of a “marriage like relationship” in s 4(3) of the Act, there is no one feature in Mr and Mrs Ingram’s relationship that stands out as dictating a conclusion. I have reached my conclusion from the totality of the evidence.
  4. Those statutory criteria are considered below, having regard to the evidence before me.

FINANCIAL ASPECTS OF THE RELATIONSHIP

  1. The property at 313 Blacktown Rd, Prospect had previously been owned by Mr Ingram’s family for many years. It was then jointly owned by Mr and Mrs Ingram before being transferred to their family trust in 1997. It was managed by the family company, Irarpac Pty Ltd, of which Mr and Mrs Ingram are the sole shareholders. I note that In 2002 Mr Ingram told Centrelink that he did not own shares in any private company.
  2. In 2001 Mrs Ingram purchased the property from the trust, according to Mrs Ingram, because she “wanted it”. Mr Ingram said that the house was transferred to Mrs Ingram due to his wish to arrange his affairs because of his illness and belief in his reduced life expectancy. He acknowledged that if they had been joint tenants Mrs Ingram would acquire the property on his death in any event. He said that would have caused her too much stress.
  3. Notwithstanding that he had no interest in the property, in 2002 in his claim for DSP, Mr Ingram described himself as a homeowner. In the form there was an option to indicate that he had the right to use part of someone else’s house.
  4. Money to build the house had come from Mrs Ingram’s share of the proceeds of sale of their former jointly-owned home at Menai. Mr Ingram used his share to buy a car, he spent $60K on a trip overseas and he invested $20 - $30K in superannuation.
  5. Both Mr and Mrs Ingram denied that they had wanted to subdivide the property so as to sell part of it; rather, because "things were not good [between them]”, they wanted to build a house for each of them. However, there were problems with the council and although plans were approved, the cost was going to be too high, especially as the council would not actually let them subdivide. Mr Ingram said they decided instead to build only one house which was “really 2 houses put together”, with each of them having input into their respective areas. However, as was pointed out, one of the "houses" would have no bathroom or kitchen. Mrs Ingram said there was no real discussion about the design because it was “[her] house”.
  6. The family trust also owns a unit at Turtle Beach from which it receives income. Mr Ingram said he decides how the income from the trust is to be distributed and he said it generally goes to the grandchildren for sporting fees and holidays. He said that if Mrs Ingram wanted any money from the trust to buy, for example, a television, he would make a distribution to her. Only one signatory is required for the trust's accounts and he doubts if Mrs Ingram is a signatory. He said he manages all payments associated with the trust. Mrs Ingram, on the other hand, said that all decisions relating to the trust are taken together, although she agreed Mr Ingram mainly does the banking associated with the trust. In 2002 Mr Ingram had told Centrelink that he had no interest in a family trust.
  7. Mr Ingram had told Centrelink on 4 April 2007 that he and Mrs Ingram had no joint bank accounts. In fact, at least as at 21 April 2007, there was a joint St George bank account, into which Mrs Ingram’s DSP was being paid. Mrs Ingram thought they may have had joint accounts “many years ago”.
  8. Mr Ingram has his own card on Mrs Ingram’s credit card account. He (physically) pays the household bills by phone, using her credit card. In April 2007 he told Centrelink that he only accessed Mrs Ingram’s account in emergencies. He described Mrs Ingram as being “very good with money”, but forgetful and not very good with forms.
  9. Mr Ingram told the Social Security Appeals Tribunal (“SSAT”) that he and Mrs Ingram are beneficiaries in each others’ wills and that he is named as the beneficiary in Mrs Ingram’s superannuation. Mrs Ingram said she does not have any superannuation, and Mr Ingram told me that Mrs Ingram is the beneficiary of his superannuation. In April 2007 he told Centrelink that he and Mrs Ingram were not each other’s superannuation beneficiaries.
  10. Mr Ingram told me he did not see any point in changing his will as all that he owns is a motor vehicle and his clothes. He said that he did not care if Mrs Ingram changed her will. Contrary to the terms of her will, Mrs Ingram said that on her death Mr Ingram would have to leave the house. Mr Ingram assumes that the children will let him stay in the house, but he is convinced he will die before Mrs Ingram anyway, which is somewhat at odds with the high level of care each of them said she requires. He said that if he could find a suitable place he would move “tomorrow”. However, he needs to be close by as he is Mrs Ingram’s carer, and also to provide assistance to the grandchildren: “if I don’t look after [Mrs Ingram] and the grandchildren, who will?” He denied that he had told the SSAT that he and Mrs Ingram stay together for the sake of the grandchildren.

NATURE OF THE HOUSEHOLD

  1. Mr Ingram provided a diagram of the house indicating his and Mrs Ingram’s separate areas. While they do not share a bedroom or bathroom, the kitchen and family room are shared. Their son, Colin, also lives at the house. Mr Ingram stressed that there are separate entrances to the house. However one of these appears, from the diagram, to be through the laundry.
  2. Photographs of the house show that there are 2 separate letter boxes, which have been there, according to Mrs Ingram, for “a few years” so that she did not have to be bothered with Mr Ingram’s mail. Copies of correspondence sent to Mr Ingram as late as 2002 record his address as 313 Blacktown Road, Prospect, and this is the “address” from which Mr Ingram told Centrelink in 2004 that he had moved.
  3. In providing details of his separation to Centrelink in May 2004, Mr Ingram noted the change of address and provided his daughter’s telephone number. He told Centrelink that his previous address was 313 Blacktown Road, Prospect. In fact he was living at the same premises. He claimed to have told Centrelink at that time that he was separated and living under the same roof, but there was no evidence of that.
  4. Mr Ingram resides in the house rent free. Mrs Ingram said he has a right to live there because he is helping her and if that were not the case she would “turf him out”. Because Mr Ingram cares for her she considered it a fair division that he lives there rent free and she pays all the bills.
  5. Mr Ingram does not contribute to the property’s upkeep, other than the gardening. He told Centrelink in April 2007 that sometimes Mrs Ingram mowed the lawn. He purchases his own food and clothing. He said that if Mrs Ingram wanted money from him she could ask for it. There is no household “kitty” and neither he nor Colin make any contribution for communal expenses. He said that Mrs Ingram “wants to pay for everything”.
  6. At the house they each have their own car, fridge and TV. Mr Ingram said that Mrs Ingram has recently purchased a new fridge. He was able to detail where she had bought it and how much she paid for it and the size of the fridge. She said he had helped her pick it out. He, on the other hand, said he had taken her to the shop to buy it but “just went for the free coffee".
  7. There is only one landline to the house and all three residents take messages for each other. They all also have mobile phones.
  8. Colin and his father keep their food in the fridge in the garage. Mr Ingram cooks for himself. Mrs Ingram said Mr Ingram cooks for her if she is really sick. She would only cook for him if all the family was together. Mr Ingram might buy Mrs Ingram a bread roll and he might make a meal for her, although he could not remember when this last occurred. Mrs Ingram cooks very little whereas he will cook steak and the like for himself, but Mrs Ingram does not like his food. Mrs Ingram thought they last ate together, other than on family occasions, about 10 years ago. Colin said they each prepare their own meals and never eat together.
  9. Mr Ingram said that Mrs Ingram performs most of the household chores. In his evidence he said that if Mrs Ingram "gets in a cleaning mood" then she might clean everything. In April 2007 he told Centrelink that Mrs Ingram did “everything” and that he only helped in emergencies. In contrast, Colin said that Mr Ingram did nearly all the cleaning, whereas Mrs Ingram said that each of them cleans their own area, and, as to the kitchen, each cleans up after their use.
  10. Mr Ingram said he washes his own clothes. He told the SSAT that Mrs Ingram washes larger items for him such as towels and sheets.
  11. Mr Ingram also provides some ongoing assistance to his mother-in-law, eg gardening, battery changes and minor electrical work. She has been told nothing about Mr and Mr Ingram’s relationship as she is 85, and she herself experienced a broken marriage.

SOCIAL ASPECTS OF THE RELATIONSHIP

  1. Mr Ingram said he and Mrs Ingram do not socialise together. He said they have no mutual friends; in fact his only friend is Mr Chessell. He is unaware who Mrs Ingram's friends might be. She is a "loner". She may tell him if she is going out or he might notice that her car was gone. Sometimes he might drive her. Mrs Ingram said the only places they go to together are the doctor or the bank.
  2. Mr Ingram told Centrelink in April 2007 that while their children were aware of their separation, the grandchildren were not. Both Mrs Ingram and Colin said the grandchildren did know.
  3. Mr Ingram said that while he is involved in the soccer club, he has no idea if he is regarded as married or single by the people there. He will go to presentations on his own.
  4. They never send or receive Christmas cards together. Mr Ingram said that in their family, presents are just provided and the source of the gift is not acknowledged. This was contrary to what he told Centrelink in April 2007, namely that he buys presents “from the both of [Mr and Mrs Ingram] – Nan and GrandDad”. Mrs Ingram said she buys presents.
  5. Mr Ingram went overseas with his daughter Michelle and her two children in 2000 or 2001, and Mrs Ingram went as well to help with the children, and allegedly paid for herself. Mrs Ingram said she could not remember the trip but agreed they had been away for a few weeks, travelling together by car or bus and eating their meals together, taking it in turns to meet expenses.
  6. In November 2004 Mr and Mrs Ingram again travelled overseas on holidays together. Mrs Ingram had intended to go overseas with Michelle, and Mr Ingram was going to stay home and mind Michelle’s children. At the last minute Michelle was unable to go and, as he thought Mrs Ingram needed a holiday, he went with her. He held out some hope for reconciliation, but that did not occur. Mrs Ingram said that Mr Ingram had gone to “help [her] around” and that they had spent little time together.
  7. Much of their daily lives appear to revolve around the care of their grandchildren who visit frequently. Mr Ingram said that the grandchildren have "taken over” his life and his time revolves around transporting them to activities, collecting them from school or minding them if they are sick. He might take them out of the house. He took several to Sussex Inlet last January during the holidays. Mrs Ingram did not attend. He said the grandchildren are "too much" for Mrs Ingram. If she has them for more than a few minutes she "stresses out". He is the one who helps them with their homework and Mrs Ingram has little involvement with them. Mrs Ingram gave no indication of this in her evidence.

SEXUAL RELATIONSHIP BETWEEN THE PEOPLE

  1. Mr Ingram said that he and Mrs Ingram have not had a sexual relationship for some years. Mrs Ingram, he said, does not like anyone touching her.
  2. There is no evidence and no claim that either one of the parties is involved in any other relationship.

NATURE OF THE PEOPLE’S COMMITMENT TO EACH OTHER

  1. Mr and Mrs Ingram were not divorced until mid 2007, after Centrelink’s investigation into the relationship commenced. He said he started divorce proceedings when he finally gave up all hope of reconciliation. Mrs Ingram explained their having moved in together was on the basis that “he wanted to look after [me]”, but she does not know “what he gets out of it”. There had been no “cataclysmic” event that led to separation, just a slow drifting apart. Mr Ingram said he thought his relationship with his wife was “finally over” at the end of 2003, although this is at odds with his professed hope for reconciliation in November 2004 and his decision to commence divorce proceedings in 2007.
  2. Colin was not surprised by his parents’ decision to divorce; it just “made it official”. Colin thought his parents were “friends”. Mrs Ingram, on the other hand said she wanted nothing to do with Mr Ingram and that she had no love or affection for him.
  3. Colin regards his mother as “temperamental” and he has seen his parents argue, but his father just walks away. He had never observed any violence. He thought they were “in the process” of separating before they moved into the house. Mrs Ingram also said this was the case. When they moved in they drifted further apart.
  4. Mrs Ingram said that after the divorce they “can’t” do anything together.
  5. Mr Ingram said they may argue over things such as his thinking that she needs to see a doctor or that she is going out when he does not think she is well enough to go. He described these as “a carer’s concern”.
  6. Dr Watts gave evidence that Mr and Mrs Ingram are both his patients. Although he had not seen them in their home, he knew them to have been separated “for some years”. He thought Mrs Ingram had become a little more dependent on Mr Ingram since her brain surgery in March 2004 and, although Mr Ingram had previously mentioned moving away, when Mrs Ingram needed a significant level of care Mr Ingram did not discuss it again. He does not now know what level of care Mrs Ingram may now require, although he is her GP. He could not recall, for example, if Mrs Ingram has a disabled parking permit.
  7. Mr Ingram agreed he had told Centrelink in 2002 in a partners’ details form, that he was married to, as distinct from separated from, Mrs Ingram. He said that “carer” was actually a more apt description. He said he had provided care to her for years, but had applied for and received carer’s pension from 16 August 2007, shortly after their divorce (which took effect on 26 July 2007). He said he had told Mrs Ingram that he would not abandon her.
  8. As Mrs Ingram’s carer he said he provides close personal care to her on a daily basis, including intimate tasks such as assisting her with showering and dressing if necessary. From his statement to Centrelink in April 2007, this role commenced following Mrs Ingram’s foot operation that month. By the end of July 2007 she still had limited mobility. Nowadays she does not require a walking stick. He takes her to the doctor. He runs errands for her and occasionally cooks for her. He rarely needs to help her at night. Colin also said that his father is his mother’s carer.
  9. It was noted in the separation details form dated 10 January 2004 (but lodged with Centrelink on 24 May 2004) that they had separated on 9 January 2004. The circumstances leading to the separation were written as “AVO”. When asked about it Mr Ingram said that Mrs Ingram had “cut herself”, he had taken her to the hospital, and because stitches were required the police were called. She was heavily medicated, he said, and blamed him. In fact they had argued, Mr Ingram had waved a knife around and Mrs Ingram was, as a result, cut. He was charged with assault and, although Mrs Ingram gave evidence, the matter was dismissed. Mr Ingram said it was an accident. He apologised and Mrs Ingram said she was still prepared to have him in the home afterwards because she needed his help.
  10. Mrs Ingram said that Mr Ingram does what she wants him to do. She, on the other hand, will do “hardly anything” for him. In February 2002 Mr Ingram told Centrelink that he would only assist Mrs Ingram in an emergency and considered that she would probably provide little or no assistance to Mr Ingram if he were ill. Colin’s evidence was that when Mr Ingram had a skin problem it was he, and not his mother, who arranged a nurse to change the dressing.
  11. Mr Ingram also wrote that Mrs Ingram would provide no assistance to Mr Ingram in the event of a personal crisis in family disputes or in money matters. In fact though, Mrs Ingram provides accommodation to him rent free.

CONCLUSION

  1. Determining whether a relationship is “marriage-like” is a difficult task. As I said in Re Secretary, Department of Employment and Workplace Relations and Sperring [2007] AATA 1050 at [70], each matter is different. No two relationships, however described, will be the same. The assessment is made somewhat easier by the commonsense criteria identified in the legislation, as addressed above.
  2. There are a number of factors, looking at the material objectively, that point to Mr and Mrs Ingram being a couple. At the same time there are a number of factors that suggest they are not. I must weigh these factors.
  3. Having said that, I found the evidence of their financial arrangements to be particularly persuasive. Together Mr and Mrs Ingram control a trust which owns an unencumbered property, and they are the beneficiaries of each other’s wills and possibly superannuation. They have structured their finances so that Mrs Ingram owns the home, although arguably Mr Ingram has a life interest in it. Up until relatively recently they had a joint bank account. They have taken few steps to disentangle their financial affairs. Mr Ingram made some effort to explain their financial arrangement on the basis that he did not expect to live long. I do not accept this to be the case. While he gave some evidence of having some reduced hearing capacity, spurs on his feet, some neck and back problems, some intestinal and liver problems and diabetes mellitus, there was no evidence whatever of reduced life expectancy. Indeed, the focus in health matters was as to Mrs Ingram’s condition, and Mr Ingram’s perceived obligations in caring for her.
  4. The evidence was that Mr and Mrs Ingram’s relationship had deteriorated over the years and that from the time they moved into the new house they lived separate lives. There may have been some domestic violence.
  5. It is therefore difficult to see why it was not until May 2004 that Mr Ingram notified Centrelink that he and Mrs Ingram had separated. I note too that in that advice Mr Ingram had set out the information about his new address in a manner that was likely to, and did in fact, lead Centrelink to believe that he had moved out of the matrimonial home. It was only much later – in April 2007 – that it was clarified that it was the same property. I also observe that in the notification of separation Mr Ingram provided his daughter’s telephone number as his contact, in circumstances where he had a mobile phone, as did Colin, who lived in the house at least some of the time, and, most significantly, there was a landline at the home and that everyone takes messages for each other. To me this suggests some contrivance in the information provided to Centrelink.
  6. Mr and Mrs Ingram live in the same house, with limited common areas. They have separate entrances, although from the diagram provided, this does not seem particularly convenient, and there is some artificiality about this. Also, I do not accept the reason given for the peculiar arrangement of 2 letterboxes. Again this seems somewhat artificial.
  7. As to household expenses, Mrs Ingram pays all the household expenses. In return, accommodation is provided to Mr Ingram and he cares for Mrs Ingram. They each mostly pay for their own food. It was unclear who actually does the housework, with Mr Ingram, Mrs Ingram and Colin all giving differing accounts.
  8. Mr and Mrs Ingram provide a lot of support to their adult children, through assisting several times a week in caring for the grandchildren. Mr Ingram attends to their sporting and more boisterous activities, while Mrs Ingram provides more care in the home. They provide financial support through the trust, which I find they manage jointly.
  9. They have no mutual friends, and according to Mr Ingram his only friend is Mr Chessell. Mrs Ingram apparently prefers to keep largely to herself. I accept that they make no secret of their separation, but there is little opportunity to make the details of their relationship known to others outside the family.
  10. The evidence was that, although it had not been their initial intention, Mr and Mrs Ingram holidayed together in 2000 or 2001 (extensively) and again in November 2004. Mr Ingram’s evidence was that he held out some hope of reconciliation up till the latter trip.
  11. Again, it is unclear in these circumstances why no action was taken to commence divorce proceedings at that time. I note with concern the record that Mr Ingram told the SSAT that he and Mrs Ingram had divorced in 2007 “for your [i.e. Centrelink’s] purposes mainly”.
  12. Mr and Mrs Ingram were married for 40 years and divorced in 2007. Divorce is not necessarily indicative that a couple is not living in a marriage-like relationship: Mould and Department of Family and Community Services [2001] AATA 388. There, as here, the couple continued to live together in a similar manner as they did when they were married.
  13. The most problematic aspect of the evidence was as to Mr Ingram’s role as Mrs Ingram’s carer. Mrs Ingram was diagnosed with trigeminal neuralgia in 2000. She underwent surgery in April 2004 which was partially successful. She also has some unspecified foot condition. Details of the extent to which her conditions are in fact debilitating were scarce. That she is able to cook for herself, clean (sometimes the whole house), do the washing and drive her own car – probably without a disabled parking permit – suggests that her condition was not as debilitating as might be suggested.
  14. The relationship between them, however described, is neither happy nor conventional, but the arrangement, particularly with regard to the financial and residential aspects, is apparently satisfactory to both of them. There is a high level of emotional support at least by Mr Ingram to Mrs Ingram, which, in my view, goes beyond his role of carer; in particular, that he told her he would never abandon her, and he stressed that he needed to look after her. There is no indication that the arrangement will not continue indefinitely, and I do not accept that Mr Ingram is actively looking for alternative accommodation, given his concerns about needing to be near Mrs Ingram and the grandchildren.
  15. On balance, weighing up the objective evidence in respect of each factor, I have come to the view that Mr Ingram should be regarded as a member of a couple for the entire relevant period.

DECISION

  1. The Administrative Appeals Tribunal affirms the decision under review.

I certify that the 67 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member.


Signed: .............[sgd]...................................................................

Associate


Dates of Hearing 11 November 2008 and 11 December 2008

Date of Decision 9 January 2009

Advocate for the Applicant Self-represented

Solicitor for the Respondent Ms H Schuster, Centrelink Legal Services

Annexure A


Exhibit List


A1 – Photos, maps and deposited plan of the house in which the Applicant resides.

A2 – Undated letter from Michelle Boyd.

A3 – Letter from Colin Ingram dated 1.9.08.

A4 – Letter dated “4th day 2003” signed “Mum”.

A5 – Letter from Gordon Chessell dated 30.8.08.

A6 – Medical certificate by Dr Watts dated 28.7.08.

A7 – Leaflets and a Wikipedia printout regarding “Tegretol®”, “Neurontin” and “Trigeminal Neuralgia”.

A8 – List of Applicant’s activities with his grandchildren.

A9 – Bank account details.


Section 37 Documents – T1-T34

Supplementary Section 37 Documents – T35-T66


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