Peeters and Secretary, Department of Families , Housing, Community Services and Indigenous Affairs [2009] AATA 99 (13 February 2009)

Last Updated: 16 February 2009

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 99

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2008/3823

GENERAL ADMINISTRATIVE DIVISION		) & 2008/4933
	Re		BRUCE PEETERS

Applicant

And

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

Respondent

DECISION

Tribunal

Dr M Denovan, Member

Date 13 February 2009

Place Brisbane

Decision

The Tribunal affirms the decisions under review.

................[Sgd]..............................
MEMBER

CATCHWORDS

SOCIAL SECURITY – benefits and entitlements – disability support pension – overpayment – debt raised – whether applicant living separately and apart from his wife – consideration of waiver – decisions under review affirmed

Social Security Act 1991 (Cth), ss 4, 1064, 1236, 1237A, 1237AAD

Social Security (Administration) Act 1991 (Cth)

In the marriage of Todd (No 2) (1976) 9 ALR 401

In the marriage of Pavey (1976) 10 ALR 259

Smith v Secretary, Department of Social Security [1991] FCA 513; (1991) 32 FCR 164

Re Feneley v Secretary, Department of Family and Community Services [2003] AATA 496; (2003) 74 ALD 585

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

Dranichnikov v Centrelink [2003] FCAFC 133; (2003) 75 ALD 134

REASONS FOR DECISION

13 February 2009

Dr M Denovan, Member

INTRODUCTION

1. Mr Bruce Peeters was a recipient of disability support pension (DSP) at all relevant times. He seeks review of three decisions. The first of these, dated 16 June 2008, determined that Mr Peeters had a DSP debt for the period 22 January 2008 to 31 March 2008 of $1351.65, on the basis of undeclared income derived by Mr Peeters’ wife.
2. The second of these, dated 28 August 2008, determined that Mr Peeters has a DSP debt of $1509.66 for the period 1 April 2008 to 9 June 2008, on the basis that he was a member of a couple.
3. The third decision, made on 14 August 2008 and affirmed on 28 August 2008, decided to continue to calculate Mr Peeters’ ongoing rate of DSP on the basis that he is a member of a couple.

BACKGROUND

4. Mr Peeters, currently 45 years old, married his wife, Rosario, in the Philippines in November 2005.
5. As the result of a data match with the Australian Taxation Office performed on 25 March 2008, Mr Peeters was asked to provide details of Mrs Peeters’ income.
6. On 28 March 2008 Mr Peeters contacted Centrelink and confirmed that Mrs Peeters was working.
7. On 28 April 2008 Mr Peeters informed Centrelink that he was separated under one roof. He stated to Centrelink that he has not been declaring her earnings as she will not provide her pay slips and that he does not talk with his wife. Mr Peeters indicated that he separated on 1 April 2008.
8. On 13 May 2008 Centrelink decided to raise and recover a DSP debt of $1332.66 for the period 22 January 2008 to 31 March 2008. On 16 June 2008 an authorised review officer varied the debt amount to $1351.65.
9. Mrs Peeters was sent written requests to complete relationship details, however she did not respond. Mr Peeters was asked to provide two independent referees of professional standing that support his claim that he was separated. Centrelink was unable to make contact with one of those referees. The other referee Mr Les Weston said that as far as he was aware Mr and Mrs Peeters were still a couple.
10. On 17 June 2008 Centrelink decided to raise and recover a debt of disability support pension of $1542.30 for the period 1 April 2008 to 9 June 2008. On 28 August 2008 an authorised review officer varied the debt amount to $ 1509.66. Centrelink also decided to continue to calculate Mr Peeters’ ongoing rate of DSP on the basis that he is a member of a couple.
11. On 11 August 2008 the Social Security Appeals Tribunal (SSAT) affirmed the decision to raise and recover a DSP debt in the amount of $1351.65 for the period 22 January to 31 March 2008.
12. On 6 October 2008 the Social Security Appeals Tribunal (SSAT) affirmed the decision to treat Mr Peeters as a member of a couple, and also affirmed the decision to raise and recover a DSP debt in the amount of $1509.66 for the period 1 April to 9 June 2008.
13. On 21 October 2008 Mr Peeters applied to this Tribunal for a review of those decisions.

ISSUES

14. Under s 1064 of the Social Security Act 1991 (the Act), earnings of both members of a couple must be taken into account when calculating the rate of DSP payable.
15. I have to decide whether Mr and Mrs Peeters' were living separately and apart since 1 January 2008, or some time subsequently, and if not:
    • whether Mr Peeters has a DSP debt or debts; and,
    • if so, whether there are any reasons the debt or debts ought not be recovered.

EVIDENCE AND SUBMISSIONS OF APPLICANT

16. It is Mr Peeters position that he separated from his wife at the end of 2007, and that he has remained separated from her since that time.
17. Mr Peeters told me that he was aware that Mrs Peeters started working for Australia Post on a casual basis before Christmas 2007, and that she started full time work at Australia Post on 22 January 2008. Prior to this, Mrs Peeters had worked in the pre-Christmas season for Australia Post for three or four years.
18. Mr Peeters said that he had not been talking to his wife, and that he could not be bothered advising Centrelink that she was working. Mr Peeters does not know how much Mrs Peeters gets paid, or how many nights she works. He assumes, from his observations of her comings and goings, that she works from 11:00pm to 7.30am. Mr Peeters said that Mrs Peeters sits on a chair and puts things in pigeonholes when she is at work.
19. When asked why he told the SSAT that he separated from his wife in January 2008, Mr Peeters said that it was roughly January 2008 that they separated, that he gave up on the marriage about that time, and was 95% certain that it was over. However, he did not inform Centrelink until 28 April 2008 that he was separated because he initially had some hope that things might work out.
20. Mr Peeters claims he did not tell Centrelink that the date of separation was 1 April 2008. Rather he told the Centrelink officer that he separated in January 2008, however the Centrelink officer erred in recording the information Mr Peeters provided.
21. Mr and Mrs Peeters live with Mr Peeters’ mother in her home. Mr Peeters has never had a joint bank account with Mrs Peeters. He previously shared a bedroom with her, but since separating, he does not.
22. Mr Peeters said that he stays in the garage when his wife is home, and when she is at work he sleeps in the lounge room on a single mattress on the floor. When Mrs Peeters has a day off, Mr Peeters sleeps in the car. Mr Peeters showers at home if Mrs Peeters is not around, otherwise he showers at a friends place. Mr Peeters goes under the house to defecate if Mrs Peeters is home.
23. Mr Peeters lived with his mother prior to marrying Mrs Peeters. Mr Peeters said that his mother is “losing her marbles” and that he continues to stay at her home to assist her and because it is convenient for himself to stay there. Mr Peeters’ mother cannot drive. If she needs to go somewhere she will leave a note on the garage door. Mr Peeters drives his mother wherever she needs to go, such as the dentist or library.
24. Mrs Peeters does not cook or wash for Mr Peeters. Mr Peeters said they last had a sexual relationship in August 2008. This occurred because he decided to try one more time to make the marriage work.
25. Mr Peeters said that Mrs Peeters phones him and texts him all the time. The text messages include Mrs Peeters professions of love for her husband, and requests to “try one more time”. Mr Peeters is aware that Mrs Peeters considers that they are not separated; however Mr Peeters disagrees with her opinion.
26. Mr Peeters’ mother knows that he and Mrs Peeters are separated. Mr Peeters is uncertain why his mother does not ask Mrs Peeters to leave. He supposes that his mother appreciates the female company. Mr Peeters has no immediate plans to divorce his wife. He said that perhaps he would do so in the future.
27. Centrelink is currently recovering the debt from Mr Peeters by way of deductions from his Centrelink benefits. He does not pay for accommodation. Half of his Centrelink benefit goes to the Commonwealth Bank to repay a personal loan. He eats soup and crackers mostly.

CONSIDERATION OF ISSUES

Has Mr Peeters lived separately and apart from Mrs Peeters since 1 January 2008 or from some time subsequently?

28. Under section 4(2) of the Act, a person who is legally married to another person is a member of a couple unless they are “living separately and apart from the other person on a permanent or indefinite basis”.
29. When assessing whether two married people are living separately and apart, s 4(3) of the Act provides that the decision maker must have regard to all the circumstances of the relationship. In particular the decision maker must look to: the financial aspects of the relationship, the nature of the household, the social aspects of the relationship, the sexual relationship, and the nature of the commitment.
30. When considering the concept of “separately and apart”, the Family Court said[1]:

When it is asserted that a separation has taken place it may be necessary to examine and contrast the state of the marital relationship before and after the alleged separation.

31. In a case of alleged separation under one roof[2], the Full Family Court considered that there is an inherent unlikelihood that the marriage has broken down. An explanation as to why the parties live under the one roof, and evidence of change in the relationship was regarded as necessary to establish separation.
32. For a couple to be separated for the purposes of the Act, as well as physical separation, there must be destruction of the marriage like relationship.
33. A close look at Mr and Mrs Peeters’ financial situation is not of assistance in this case, as Mr and Mrs Peeters appear to have never shared financial dealings, either before or after the claimed separation.
34. The true nature of the household that Mr and Mrs Peeters reside is unclear. Mr Peeters’ evidence is in contradiction to the evidence Mrs Peeters reportedly provided to the SSAT[3]. At that time, Mrs Peeters stated that she and Mr Peeters were not separated in her opinion. She confirmed that Mr Peeters has slept on a bed on the lounge in the last few months; however, she said this was because she is a shift worker. Mrs Peeters said that the family use a common bathroom and that she cooks for Mr Peeters[4].
35. In relation to the social aspects of the relationship, the evidence is that during the relevant period, Mr and Mrs Peeters have continued to present themselves as a couple and that family and friends are not aware of a relationship breakdown. When contacted by Centrelink on 23 July 2008, Mr Weston, nominated by Mr Peeters as a referee, said that Mr and Mrs Peeters were still a couple as far as he was aware. The SSAT, in their decision dated 6 October 2008, noted that Mr Peeters confirmed that he had socialised with his wife, friend, and mother on the occasion of his birthday, one week prior.
36. Mrs Peeters claims that she has continued to have a sexual relationship with Mr Peeters. Mr Peeters claims to have last had sexual relations with his wife in August 2008, when he agreed to make an attempt to make the relationship work.
37. As far as commitment is concerned, the evidence is that Mrs Peeters continues to be committed to Mr Peeters. That she rings and texts him all the time suggests she still hopes for an ongoing relationship. She has denied being separated and the SSAT reports her as saying she would lend Mr Peeters money if necessary. Mr Peeters purports to have no interest in an ongoing relationship with his wife however his attempt at a reconciliation as recently as August 2008 points to him having some commitment to Mrs Peeters at that point in time.
38. Having regard to the all the circumstances of the relationship, I find that there has been no change in the relationship between Mr and Mrs Peeters that would constitute a separation. Whilst there are some aspects of their relationship that are unusual, Mr Peeters acknowledged that as recently as August 2008 Mr and Mrs Peeters continued to have a sexual relationship. And, as recently as October 2008 they continued to socialise together for the purposes of Mr Peeters’ birthday.
39. I considered the possibility that Mr Peeters is of the belief that his marriage with Mrs Peeters is over, however, Mrs Peeters wishes the marriage to continue and does not accept that they are separated.
40. If that were to be the case, I would still find that Mr and Mrs Peeters were members of a couple for the relevant periods of time, as Mr Peeters, by his own admission, attempted a reconciliation in August 2008, and socialised with his wife for his birthday some months later. These events indicate that he and his wife were not living apart on a permanent or indefinite basis, for the purposes of the Act.
41. I affirm the decision that Mr Peeters’ ongoing rate of DSP be assessed on the basis that he is a member of a couple.

Is there a debt and should it be recovered?

42. Mr Peeters acknowledged that should he be regarded a member of a couple then he had a DSP debt. Mr Peeters did not challenge the calculation of the amounts.
43. I have found that Mr Peeters has, at all times since his marriage to Mrs Peeters, been part of a couple, and has not been living separately and apart at any time. Accordingly, Mr Peeters has a debt due to the Commonwealth.
44. There are two mechanisms available under the Act that allow for properly raised overpayments of social security benefits not to be recovered, that is write off and waiver under Part 5.4 of the Act.
45. Mr Peeters is currently in receipt of DSP and is repaying the debt by way of periodic payments. Section 1236(1C) of the Act provides that a debtor is taken to have capacity to repay a debt unless these deductions would result in severe financial hardship.
46. The meaning of severe financial hardship has not been defined in the Social Security (Administration Act) 1999. However, it was addressed in Re Feneley v Secretary, Department of Family and Community Services[5] in which it was noted that the meaning of the phrase:

...while not implying destitution goes beyond straitened financial circumstances and imports a need for the particular circumstances of a person to include suffering of a severe or extreme nature.

47. Mr Peeters financial situation is certainly difficult. He does have the advantage however that he pays no rent, mortgage or accommodation. He is not contributing to the normal household expenses such as electricity and telephone. He could borrow money from his wife, though he states that he is reluctant to do so. I find that the deductions from Mr Peeters’ DSP payments have not resulted in and will not result in severe financial hardship, and so the debt cannot be written off.
48. For a debt to be waived pursuant to s 1237A of the Act, it must be due solely to administrative error. There is no suggestion that any part of the debt owed by Mr Peeters is attributable in any way to an administrative error. The debt is attributable to the fact that Mrs Peeters’ income was not taken into account when it should have been, because Mr Peeters did not declare Mrs Peeters’ income, and also claimed that he was separated.
49. As I am satisfied that no proportion of the debt is solely due to an administrative error made by the Commonwealth, I find that the discretion contained in s 1237A (1) Act cannot be exercised.
50. Section 1237AAD of the Act provides that recovery of all or part of a debt may be waived if the debt is not attributable to a person who knowingly fails to comply with the Act, and there are special circumstances appropriate to write off the debt.
51. Whilst special circumstances are not defined in the Act, the approach to be taken in the interpretation and application of the discretionary provisions has been dealt with by the Tribunal and the Federal Court in numerous circumstances.
52. In Re Beadle v Director-General of Social Security[6] it was said,

The qualifying adjective looks to circumstances that are unusual, uncommon or exceptional. Whether circumstances answer any of these descriptions must depend upon the context in which they occur. For it is the context, which allows one to say that the circumstances in one case are markedly different from the usual run of cases. This is not to say that the circumstances must be unique but they must have a particular quality of unusualness that permits them to be described as special.

53. In Dranichnikov v Centrelink[7] the Full Federal Court when considering the meaning of special circumstances observed:

...what is required will be circumstances which distinguish the case in consideration from the usual case. There will be a requirement that the circumstances are such that takes the case out of the ordinary.

54. The debts arose in this case because Mr Peeters did not declare Mrs Peeters’ income, and also claimed to be separated when, for the purposes of the legislation he was not. I am satisfied that there are no circumstances which are so unusual, uncommon or exceptional in this matter as to justify a finding of special circumstances in this case.
55. That being so I find that it is not possible to exercise the discretion to waive Mr Peeters’ debt. The debt due to the Commonwealth cannot be written off or waived under the discretionary provisions of the Act, and I affirm the decisions to recover the debts under review.

DECISION

56. The Tribunal affirms the decisions under review.
    

I certify that the 56 preceding paragraphs are a true copy of the reasons for the decision herein of Dr M Denovan, Member

Signed: .............[Sgd]................................................................

Joan Torbey, Associate

Date of Hearing 12 December 2008

Date of Decision 13 February 2009

The Applicant was self-represented

Advocate for the Respondent Mr B Hamilton, Centrelink

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[1] In the marriage of Todd (No 2) (1976) 9 ALR 401 at 403.
[2] In the marriage of Pavey (1976) 10 ALR 259, a similar approach was taken in Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164.
[3] Decision of the Social Security Appeals Tribunal dated 7 August 2008 (Appeal Number B36484).
[4] Mrs Peeters was summonsed to give evidence at the Administrative Appeals Tribunal hearing, however was not contactable on the day.
[5] [2003] AATA 496; (2003) 74 ALD 585 at 587.
[6] (1984) 6 ALD 1 at 3.
[7] [2003] FCAFC 133; (2003) 75 ALD 134 at 148.