Lockrey and Secretary, Department of Education, Employment and Workplace Relations [2010] AATA 28 (18 January 2010)

Last Updated: 27 January 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 28

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2008/3954

GENERAL ADMINISTRATIVE DIVISION		)
	Re		LORRAINE LOCKREY

Applicant

And

SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal

Mr RG Kenny, Senior Member

Date 18 January 2010

Place Brisbane

Decision

The Tribunal affirms the decision under review.

...................[Sgd].................
Senior Member

CATCHWORDS

SOCIAL SECURITY – benefits and entitlements – sole parent payment, parenting payment and family tax benefit – applicant married and not living separately and apart from husband on a permanent or indefinite basis – applicant a member of a couple at relevant time – no special reason for treating failure properly to advise Centrelink of living arrangements – decision affirmed.

A New Tax System (Family Assistance) Act 1999 (Cth)
A New Tax System (Family Assistance) (Administration) Act 1999 (Cth), ss 71(1), 95, 96, 97 101, 113, 142
Social Security Act 1991 (Cth), ss 4, 24(1), 1223(1), 1236, 1237, 1237A, 1237AAD
Social Security (Administration) Act 1999 (Cth), ss 149, 179

REASONS FOR DECISION

18 January 2010

Mr RG Kenny, Senior Member

BACKGROUND

1. Lorraine and Allan Lockrey were married in 1992. Since before 1990, Mrs Lockrey has received income support payments. These were in accordance with the terms of the Social Security Act 1991 (“the Act”)[1] and the A New Tax System (Family Assistance) Act 1999 (“the FA Act”). They included sole parent pension payments, parenting payments and family tax benefits which were paid on the basis that she was not a member of a couple. On 8 August 2007, Centrelink determined that Mrs Lockrey was living as a member of a couple with her husband and had been in that situation since 26 August 1997. That decision was affirmed by an authorised review officer on 19 September 2007. On 8 August 2007, Centrelink also determined that Mrs Lockrey had been overpaid in the period from 4 September 1997 until 7 August 2007. Centrelink determined that the overpayments comprised sole parent pension ($5,329.20), parenting payment ($59,198.14) and family tax benefit ($1,550.76) in the total amount of $66,078.10 which was a debt due by her to the Commonwealth. This was affirmed by an authorised review officer on 26 November 2007.
2. On 23 July 2008, the Social Security Appeals Tribunal (“the SSAT”) purported to vary the authorised review officer’s decisions. It determined that Mrs Lockrey was a member of a couple with Mr Lockrey from 8 October 1990 and remitted that matter to Centrelink for recalculation of the debt owed by Mrs Lockrey to the Commonwealth. The effect of that decision was to include an additional overpayment period from 8 October 1990 until 3 September 1997. A decision by Centrelink to raise an overpayment against Mr Lockrey based on his cohabitation with Mrs Lockrey was also reviewed by the SSAT on the same day and with the same outcome as the decision relating to Mrs Lockrey. Mr Lockrey has not sought review of that decision.
3. The review powers of the SSAT are set out in s 149 of the Social Security (Administration) Act 1999 (“the Administration Act”) which reads:

149 SSAT review powers
(1) If a person applies to the SSAT for review of a decision (other than a decision referred to in subsection (5)), the SSAT must:
(a) affirm the decision; or
(b) vary the decision; or
(c) set the decision aside and:
(i) substitute a new decision; or
(ii) send the matter back to the Secretary or the CEO, as the case requires, for reconsideration in accordance with any directions or recommendations of the SSAT.[2]

4. As I read that provision, it does not extend to varying the decision and remitting a matter for further determination. As I understand the reasons published by the SSAT for its decision, I am satisfied that it affirmed the authorised review officer’s decision in relation to the overpayment of $66,078.10 in the period from 4 September 1997 until 7 August 2007 (“the overpayment period”) which was a debt due to the Commonwealth; set aside the decision of the authorised review officer in relation to the length of the overpayment period and substituted its decision that the overpayment period be extended by adding the period from 8 October 1990 to 3 September 1997 (“the additional overpayment period”); and remitted the matter to Centrelink for calculation of the overpayment which arose during the additional overpayment period and which is a debt due to the Commonwealth.
5. The review powers of the Administrative Appeals Tribunal (“the AAT”) are set out in s 179 of the Administration Act which reads:

179 Review of decisions by AAT
(1) If:
(a) a decision has been reviewed by the SSAT; and
(b) the decision has been affirmed, varied or set aside by the SSAT;
application may be made to the AAT for review of the decision of the SSAT.
(2) For the purposes of subsection (1), the decision made by the SSAT is taken to be:
(a) where the SSAT affirms a decision—that decision as affirmed; and
(b) where the SSAT varies a decision—that decision as varied; and
(c) where the SSAT sets a decision aside and substitutes a new decision—the new decision; and
(d) where the SSAT sets a decision aside and sends the matter back to the Secretary for reconsideration in accordance with any directions or recommendations of the SSAT—the directions or recommendations of the SSAT[3].

6. Accordingly, the task of the AAT in this matter is to review the decision in relation to the overpayment of $66,078.10 in the overpayment period; the decision whether the overpayment period should be extended by adding the additional overpayment period; and the decision to remit to Centrelink the matter of calculation of any overpayment during the additional overpayment period.
7. It is not disputed that Mrs Lockrey met the criteria for payment of the various forms of income support payments she received from 1990 until 2007. The rate of those payments is worked out in accordance with whether or not she was a member of a couple. Mrs Lockrey was paid on the basis that she was living separately and apart from Mr Lockrey and, therefore, received higher rates of payment than she would have received if she had been paid as a member of a couple. The issue for the Tribunal is whether Mrs Lockrey was a member of a couple during the overpayment period and the additional overpayment period.
8. Relevant to the determination are the following provisions of the Act:

Member of a couple—general
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) ...
Member of a couple—criteria for forming opinion about relationship
4(3) In forming an opinion about the relationship between 2 people for the purposes of paragraph (2)(a) ... 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.

CONTENTIONS

9. Mrs Lockrey contended that she lived with Mr Lockrey from September or October 1990 until September 1992, a few weeks after their marriage; and that she then lived separately and apart from Mr Lockrey until he moved into her premises after she injured her back in March 2004. Mr Hamilton submitted that Mr and Mrs Lockrey have lived together as members of a couple since September or October 1990 until the present time at three successive residences: Albury Street Deagon (Albury Street), Gympie Road Kedron (Gympie Road) and Boondall Street Boondall (Boondall Street).

RESIDENCE OF MR LOCKREY

10. The following matters are not in dispute. Mrs Lockrey met Mr Lockrey in 1986 and associated with him socially until September or October 1990. They then lived together in a marriage-like relationship at Albury Street. There, they shared household duties, facilities, utilities and expenses, stored their personal items and slept together in a sexual relationship with Mr Lockrey assisting in caring for Mrs Lockrey’s children from a previous relationship. Their first child, Tyrone, was born on 8 June 1991. They were married on 22 August 1992. On 17 February 1993, Mrs Lockrey moved to Gympie Road.[4] She resided there until August 1996[5] when she moved to Boondall Street where she still resides. During the time at Gympie Road, three more children were born to Mr and Mrs Lockrey: Jai on 28 September 1993, Guy on 20 June 1995 and Kenneth on 13 June 1996. Mr Lockrey currently resides at Boondall Street and has done so since Mrs Lockrey injured her back in 2004. Those matters were confirmed by Mr Lockrey in his evidence and by Mrs Lockrey in her evidence and again when she was making her final submission.
11. There are many inconsistencies in the evidence of Mr Lockrey and of Mrs Lockrey concerning Mr Lockrey’s period of residence at Gympie Road and when he commenced to reside at Boondall Street. Some of those inconsistencies arise through differences between aspects of Mrs Lockrey’s evidence and the information she provided to Centrelink about her living arrangements with Mr Lockrey. She was investigated in 1990. In Centrelink documents completed by her from June to November 1990, in January 1991 and in February 1992, she declared that she was not living in a relationship with anyone at those times. She identified various persons with whom she had some involvement at the time but omitted any reference to Mr Lockrey. In a summary of a field officer’s visit with Mrs Lockrey on 10 October 1991, Mrs Lockrey is recorded as advising that her male associate was Malcolm Mead with whom she socialised, who sometimes stayed over at her house and who she “may commence living with in about two months time”. On 23 September 1991, Mrs Lockrey signed another statement, declaring that it was “true and correct in every particular”. There, she denied that she had ever lived with Mr Lockrey and stated that Tyrone’s birth was the result of a “one night stand”. After further investigation in August 1992, Mrs Lockrey completed a statement on 3 September 1992, declaring its contents to be complete and correct. There, she advised that she had married Mr Lockrey on 22 August 1992 but denied living with him prior to her marriage. As noted above, her evidence at the hearing was that she was living, from at least October 1990, in a marriage-like relationship with Mr Lockrey at Albury Street until she moved to Gympie Road in July 1993. I am satisfied that the information that Mrs Lockrey provided to Centrelink about Mr Lockrey was false and given for the purpose of disguising the true nature of the relationship she had with him.
12. When Mr Hamilton made his final submissions, Mrs Lockrey agreed that Mr Lockrey had moved to Gympie Road at the same time as she did and that they lived there in the same manner as they had done at Albury Street. She also gave evidence to that effect, adding that, at that time, he was employed as a truck driver and would sometimes be away at night and sometimes was at home only on weekends because of his driving duties. She also agreed that this situation continued until she moved to Boondall Street in August 1996. On that evidence, Mr Lockrey lived with Mrs Lockrey continually while at Albury Street and Gympie Road. That evidence is not consistent with other aspects of her evidence.
13. Mrs Lockrey claimed that she had “kicked” Mr Lockrey out of the house in September 1992. She consistently described the relevant house at the time to be Gympie Road. She gave differing dates for this event. In evidence, Mrs Lockrey said it was on 26 September 1992. On 18 September 1992, she made a formal declaration that she had separated from Mr Lockrey. In a document completed by her on 13 May 1993 in relation to child support payments, she was asked the date of separation and wrote: “13 September 1992”.[6] The one consistent time reference for the separation was that it was within a few weeks of her marriage to Mr Lockrey. As noted above, this was on 22 August 1992. At that stage and in September 1992, she was not living at Gympie Road Kedron but at Albury Street where she remained until February 1993.
14. Mrs Lockrey has also given differing reasons for the separation. Her evidence was that she requested Mr Lockrey to leave Gympie Road because she had learned of a sexual relationship he had at Gympie Road with another woman. In the documents completed on 18 September 1992, she said it was “because he drinks and abuses me too much and doesn’t support me or my children”. In a statement, dated 24 September 1992, Mrs Lockrey gave the reasons as Mr Lockrey’s drinking and abusiveness as well as his hostility towards her son Dwayne.
15. Mrs Lockrey’s case would have Mr Lockrey living at addresses different from her own from September 1992 until 2004. Centrelink’s address history for Mr Lockrey during that period lists him as living successively at three other addresses at Deagon, Redcliffe and Ascot before Boondall Street on 26 August 1997 and then seven other addresses at Bald Hills, Shorncliffe, Deagon and Boondall up to June 2003.[7] In his evidence, Mr Lockrey identified those other premises as being those of a friend or of a relative of himself or of Mrs Lockrey with whom he shared for a period.
16. Of the various people with whom Mr Lockrey claimed to have resided from 1992 to 2004, the only evidence is a statement to Centrelink by Dianne Jackson and one by Jim Guilford. Ms Jackson wrote, in an undated note which was received by Centrelink on 15 June 1993, that Mr Lockrey resided with her at Bald Hills and paid $100 per week in rent. Ms Jackson is Mrs Lockrey’s sister. I note that the handwriting of the letter, unlike the signature of Mrs Jackson, is backward slanting. Also in evidence was another letter, undated but received by Centrelink on 29 September 1998. It bears a “signature” of Jim Guildford. It declares that Mr Lockrey was living with him at Shorncliffe and paying $100 per week in rent. The letter also appears to be in the rather distinctive handwriting (backward slanting) of Mrs Lockrey. At the hearing, Mrs Lockrey denied that she had written the letter. I do not accept her evidence in that regard. Centrelink investigation officers conducted an interview with Mrs Lockrey on 6 August 2007.[8] She was cautioned that her answers to questions would be recorded and could later be used in evidence in court proceedings. Mrs Lockrey was asked about the letter bearing Mr Guildford’s signature. She advised the investigator that it was her handwriting and that she could provide no reason for signing it in Mr Guilford’s name.
17. My rejection of Mrs Lockrey’s denial that she wrote that letter is based not only on the record of the Centrelink investigation, but also on her responses as a witness. She had previously been shown another letter. This was identified as her own with its characteristic backward slanting letters. She experienced no difficulty in reading it and explained that this was because it was her own handwriting. On being shown the Guildford letter, she again read it without difficulty but denied it was her own, declaring that it did not have “the slant”. Mr Hamilton submitted that the writing in the Guildford letter appeared to be the same as that in the letter which Mrs Lockrey admitted to writing. Having seen the document, I accept that submission and am satisfied that the Guilford letter was written by Mrs Lockrey for the purpose of demonstrating to Centrelink that Mr Lockrey was not living with her.
18. Mrs Jackson was not called to give evidence and provided no statement to verify the living arrangement she referred to in her letter. In his evidence, Mr Lockrey said that Mr Guilford has since died. Accordingly there is no independent material before me to support the contention that Mr Lockrey lived in a different residence from that of Mrs Lockrey from 1992 until mid 2004.
19. Despite claiming to live elsewhere than Gympie Road or Boondall Street from September 1992 until 2004, Mr Lockrey made use of those addresses for his driving licence, in applying for loans, in receiving mail and in giving residential information to employers.
20. In evidence was a response from Queensland Transport to a request from Centrelink, dated 14 May 2007, concerning Mr Lockrey’s driving licence address history since 1 January 1998.[9] It revealed that Boondall Street was the only address provided by him from 26 August 1997. A copy of Mr Lockrey’s licence lists a Redcliffe address for Mr Lockrey but a copy of the back of the licence, received by Centrelink on 18 May 1998, gives “Boondall Street” as the address.[10]
21. Documentation relating to various loan applications made by Mrs Lockrey and/or Mr Lockrey was also in evidence. This included the following:
    • In January 2005, Mr Lockrey applied for a loan from GE Money and gave his address, since 4 January 1997, as being Boondall Street.[11]
    • On 25 May 2005, Mr and Mrs Lockrey made a joint application for a loan from Local Lenders in the amount of $3,000 to enable Mrs Lockrey to replace a damaged motor in her car.[12] They each gave their then address as Boondall Street and, while that is not disputed at that time, they also declared that they had lived there for “7 years”. In that application, Mr Lockrey gave his previous address as Gympie Road. In her evidence, Mrs Lockrey said that Mr Lockrey was lying in completing the application in that way and agreed that she, too, had lied by signing the document with that incorrect information in it.
    • In an application similar to the above, on 3 May 2005, Mr and Mrs Lockrey again declared that they had lived at Boondall Street for “11 years”.[13]
    • In October 2006, Mr Lockrey made application for a loan from St George Bank, giving his address as Boondall Street for the previous “11 years and 5 months.[14]
    • In May 2007, Mr Lockrey applied to ESANDA for a loan declaring he had lived at Boondall Street for 11 years.[15]
22. Centrelink file notes refer to Mr Lockrey’s employment with Readymix in October 1991, Harris Pty Ltd in October 1997, Rowdy’s Car Carriers in October 2003 and Container Swinglift Services in October 2004. In each case, the address he provided was other than Albury Street, Gympie Road or Boondall Street. On the first of those occasions, Mrs Lockrey has conceded that he was living with her as a member of a couple at Albury Street. On the last occasion, it is not in dispute that he was living at Boondall Street. Accordingly, two of the four addresses given by Mr Lockrey were not correct. Mr Lockrey’s evidence was that he used Gympie Road and Boondall Street as his mailing address and did so because he moved around a lot and was able to collect his mail when he attended those premises on weekends visit his children. In Centrelink documents completed by Mr Lockrey from 1996 until 1998, he gave his postal address as the same as his claimed residential address at Sandgate, Redcliffe and Bald Hills. From February 2000, he provided a post-office box at Sandgate as his postal address. Information from Australia Post revealed that the post-office box was reallocated to another person in October 2006. By then, it is not disputed that Mr Lockrey was living at Boondall Street.
23. Like Mrs Lockrey, Mr Lockrey was also an unconvincing witness. This was especially the case when he was asked about his living arrangements from 1992 until 2004. He said that he could not recall whether he assisted Mrs Lockrey in moving from Albury Street to Gympie Road. He said that he was unsure whether he first moved to Boondall Street in 1996 or 2004. While accepting that the address on his driving licence from 1997 onwards was Boondall Street, he was unable to recall whether or not he lived there in 1996 or 1997. He referred to “moving back” to Boondall Street in 2004 but could not explain what he meant by that reference.
24. Mrs Lockrey’s contention is that Mr Lockrey moved to Boondall Street in 2004 after she had injured her back and required assistance with household duties and in looking after the children. These are rented premises for which Mrs Lockrey receives rental assistance from Centrelink. Despite her contention that Mr Lockrey moved there in 2004, she did not advise Centrelink that he was residing there at that time. Indeed, she was required to complete a declaration to the Queensland Department of Housing and the form, dated 2 August 2007, was in evidence.[16] There, she identified herself and her four children as residing there at that time. No reference was made to Mr Lockrey.
25. I do not accept the contention of Mrs Lockrey that Mr Lockrey lived in different premises than she did from September 1992 until mid 2004. As recently as August 2007, she attempted to hide his presence at Boondall Street.[17] I am satisfied that Mr Lockrey continued to reside at the same address as did Mrs Lockrey at Albury Street, Gympie Road and Boondall Street from October 1990 until August 2007.

MEMBERS OF A COUPLE

26. As Mr and Mrs Lockrey are married to each other, they will not be members of a couple at any time in the overpayment period and the additional overpayment period when they have been living separately and apart from each other on a permanent or indefinite basis. The factors relevant to that determination are set out, above, in s 4(3) of the Act. An analysis of those factors in this matter is impacted upon by my finding that Mr and Mrs Lockrey resided in the same premises throughout those periods as well as by the concession by Mrs Lockrey that she and Mr Lockrey were living as members of a couple at Albury Street and at Gympie Road. Clearly, neither gave evidence about their living arrangements from September 1992 until mid 2004 because they contended that they were not together during that period.

The financial aspects of the relationship

27. Mrs Lockrey’s evidence was that, at Albury Street and Gympie Road, she and Mr Lockrey shared household duties, facilities, utilities and expenses. This was during the additional overpayment period and I am satisfied that this continued throughout the overpayment period. Both gave evidence that Mr Lockrey assumed responsibility, especially since Mrs Lockrey was injured in 2004, for weekly shopping excursions for which Mrs Lockrey entrusted him with her keycard and PIN number. As noted above, Mr and Mrs Lockrey made joint applications for loans in May 2005 and Mrs Lockrey was prepared to list her vehicle as security for one of those loans. Her evidence was that she did this to enable Mr Lockrey to improve his unsatisfactory credit record. In the loan application dated 25 May 2005, a joint budget declaration was made by Mr and Mrs Lockrey indicating a merger of their household income and expenditure.[18]
28. Merger in financial matters is also demonstrated in other ways. Mrs Lockrey’s vehicle was purchased in 2005. In her evidence, Mrs Lockrey said that Mr Lockrey would mainly be responsible for driving of the vehicle. For that reason, she said, the comprehensive insurance policy with Suncorp was taken out jointly by herself[19] and Mr Lockrey. This made him jointly responsible for premiums which would not have been the case if he were listed as a driver only. Also, in the information provided by Mr Lockrey to his employer Container Swinglift Services, he nominated Mrs Lockrey as his wife and next-of-kin as well as the sole beneficiary of his superannuation.[20] While Mr Lockrey’s evidence was that she would ensure that any such monies would be passed on to their four children, it remains the case that she was the initial beneficiary. In addition, Mr Lockrey was nominated as the beneficiary in Mrs Lockrey’s will until she changed it in June 2009, after the end of the overpayment period.
29. Mr and Mrs Lockrey maintained that Mr Lockrey resided at Boondall Street from mid 2004. I have found that he did so from 1996, that Centrelink only learned of his presence there in 2007 and that this resulted in an increase in the rent payments for the premises. An absence of delineation in financial matters is also demonstrated by their evidence that Mr Lockrey lived at Boondall Street on a rent-free basis.[21]

The nature of the household

30. Mrs Lockrey agreed to the shared nature of the households at Albury Street and Gympie Road. Though Mr Lockrey occupies the “downstairs” part of Boondall Street, his daily life has not been conducted independently of the rest of the premises. There are shared kitchen, bathroom and toilet facilities which Mr Lockrey uses. Since Mrs Lockrey’s accident in 2004, Mr Lockrey has assumed responsibility for the shopping, preparation of meals, cleaning, doing laundry, caring for the grounds and transporting the children to school and to other social activities on Friday evenings and on weekends.[22] Mr Lockrey prepares and takes meals to Mrs Lockrey in her bedroom where she spends most of her time. Mr Lockrey typically dines with the children. Television viewing is available both upstairs and downstairs and, at times, Mr Lockrey watches programmes upstairs with the children.[23] Mrs Lockrey has her own television set in her bedroom. Mr Lockrey assumes responsibility for taking Mrs Lockrey to medical appointments and for collecting prescription medication for her. He was able to list her current medication. His evidence was that Mrs Lockrey sometimes gets sick from medication and that there have been times when he has called an ambulance for her.
31. Neither Mr or Mrs Lockrey has a vehicle at present. Recently, Mrs Lockrey’s vehicle was destroyed by fire but, until then, Mr Lockrey used it to transport the children to various activities and Mrs Lockrey agreed that he was able to use it when he wanted to.[24] Their son, Tyrone, now has a vehicle and he allows Mr Lockrey to use it and did so to enable Mr Lockrey to drive Mrs Lockrey to the hearing.

The social aspects of the relationship

32. Mr and Mrs Lockrey have a limited social life. Mrs Lockrey’s health problems impose limits on her activities with Mr Lockrey and the children although she has attended two of their football games with Mr Lockrey in recent times. Friends of Mrs Lockrey, including Stephanie Brightwell who stays with her on some weekends, provided statements to the SSAT in which they confirmed that Mr Lockrey was living downstairs at Boondall Street. They expressed the opinion that Mr and Mrs Lockrey were not living in a de-facto relationship. In her evidence, Mrs Lockrey revealed a rather narrow concept of marriage. She believed that, because she and Mr Lockrey did not “kiss, hug or make passionate love at night”, they were not in a marriage-like relationship.[25] It may well be that Mrs Lockrey’s friends based their opinions on a similar understanding. However, s 4 of the Act is based upon a much wider range of factors and all aspects of the relationship must be taken into account.

Any sexual relationship between the people

33. Mrs Lockrey has not been truthful about aspects of her sexual relationship with Mr Lockrey. She stated that she conceived their first child as a result of a “one-night stand” and denied being in an ongoing sexual relationship with him before they married in 1992. Yet, she had been living at Albury Street Deagon with him for many months before that. While claiming to be living in separate premises from September 1992 until mid 2004, they conceived three other children who were born in 1993, 1995 and 1996. I have determined that they shared the same premises during those years and I am satisfied that they had an ongoing sexual relationship at least until Mrs Lockrey injured her back in 2004. Both Mr and Mrs Lockrey claim that they are no longer in a sexual relationship. While that may well be the case, a sexual relationship is not necessarily a continuing component of a long-term marriage relationship.

The nature of the people's commitment to each other

34. Mr and Mrs Lockrey have known each other for some 24 years and have lived together for almost 20 years. During that time, they have shared three separate premises. The manner in which they inter-relate has changed over that time but that is not an unusual feature of such a long relationship. One major change is their occupation of separate sleeping areas of their current residence. In large part, this has been due to the impact of Mrs Lockrey’s health problems. Despite that, much has stayed the same in relation to the contribution by Mr Lockrey to the day-to-day operation of their household, particularly in relation to the children. The assistance he provides to Mrs Lockrey, especially since mid 2004, has relieved her of many family responsibilities and represents an enhanced level of commitment by Mr Lockrey to her. He looks after her medical needs and personally provides her with meals in her bedroom.
35. Neither Mr or Mrs Lockrey has indicated any interest in changing their present arrangements or formally ending their marriage by obtaining a divorce. Indeed, Mrs Lockrey stated that she was “happy to stay married” to Mr Lockrey until the day she dies.[26] They have represented themselves to others as being married for the purposes of obtaining loans and insuring a vehicle; Mr Lockrey has indentified Mrs Lockrey as his wife and next of kin with employers. They agreed that their neighbours at Boondall Street may well conclude that they were living as members of a couple and also that they did not care what such people thought. Each demonstrates a sense of trust in the other. For example, Mrs Lockrey accepts Mr Lockrey’s role with her medication and, in financial matters, she entrusts her husband with her keycard and PIN number and, until recently, nominated him as the beneficiary in her will. Mr Lockrey has entrusted his wife as the nominated beneficiary of his superannuation. Mrs Lockrey was provided support at the hearing by Mr Lockrey who assumed responsibility to drive her there in their son’s car.

Consideration under s 4(3) of the Act

36. Each marriage has its own characteristics and the factors which characterise a particular marriage relationship are bound to change over time. Having regard to all five of the matters listed in s 4(3) of the Act, I am satisfied that Mr and Mrs Lockrey have not been living separately and apart from each other on a permanent or indefinite basis through the additional overpayment period or the overpayment period. In particular, this is because of the financial aspects of their relationship as well as the nature of their household and of their commitment to each other, especially in recent times but also throughout the years from 1990. The significance of the social aspects of their relationship and of their sexual relationship has varied over those years with a lessening of their significance since mid 2004. This has largely resulted from Mrs Lockrey’s health problems. In any event, such variations in those aspects of any marriage frequently arise over time. I am satisfied that Mr and Mrs Lockrey were members of a couple, for the purposes of s 4(2) of the Act, during the additional overpayment period and the overpayment period.

Treatment as members of a couple

37. The Act makes provision for a married couple who have not been living separately and apart from each other on a permanent or indefinite basis not to be treated as members of a couple. This is where there is a special reason in their particular case for so determining.[27] Though no special reason for exercising that discretion was advanced by Mrs Lockrey, health concerns have the potential to meet that description. However, I am satisfied that, in this particular case, Mr Lockrey’s residence at Boondall Street with Mrs Lockrey is a situation which continued from 1996 and arose independently of Mrs Lockrey’s health concerns. I agree with the conclusion reached by the SSAT that there is no evidence in this matter which would justify a finding that, but for Mrs Lockrey’s health problems, Mr Lockrey would be living elsewhere than at Boondall Street. There is no special reason for not treating Mr and Mrs Lockrey as members of a couple.

THE DEBT

38. Mrs Lockrey was paid throughout the additional overpayment period and the overpayment period on the basis that she was not a member of a couple. These payments variously comprised sole parent pension, parenting payment and family tax benefit. As Mrs Lockrey was a member of a couple, those payments were in excess of what she was entitled to. In that situation, her overpayments constitute debts to the Commonwealth.[28] Centrelink assessed the total debt in the overpayment period at $66,078.10. This figure was not questioned by Mrs Lockrey and, on the basis of the Centrelink documents in evidence, I am satisfied that the debt calculation was properly made. The calculation of the debt in the additional overpayment period has yet to be undertaken by Centrelink. It will be seen below that the matter is to be remitted to Centrelink for that process to be completed.

Writing off the debt

39. Section 1236 of the Act,[29] in part, reads:

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.

40. The only component of that provision of potential relevance in this matter is that relating to lack of capacity to repay the debt. Mrs Lockrey is currently repaying the debt to the respondent through deductions from her parenting payments and I am reasonably satisfied that there is no lack of capacity for the debt to be repaid albeit over a long period. In that situation, the debt should not be written off.

Waiver: administrative error

41. Section 1237 of the Act[30] lists the circumstances in which a debt may be waived. This includes the waiver of a debt arising from error in accordance with s 1237A of the Act which, in so far as relevant, reads:[31]

1237A(1) 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.

42. I am satisfied that the debt in the additional overpayment period and the overpayment period did not arise solely through fault on the part of any Centrelink officer. Mrs Lockrey provided Centrelink with false information about her living arrangements and it was this which gave rise to the debt in each period. Accordingly, the debt did not arise solely due to error on the part of the Commonwealth and the debt can not be waived under s 1237A of the Act.

Waiver: special circumstances

43. A debt may also be waived under s 1237AAD of the Act[32] which reads:

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 a false representation; or
(ii) failing or omitting to comply with a provision of ... [the family assistance law]; 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.

44. Reference has been made to Mrs Lockrey’s health problems. She injured her back in 2004. In evidence, she said that she underwent surgery for breast cancer in 2005. A Job Capacity Assessment Report,[33] dated 29 August 2007, was in evidence. This details Mrs Lockrey’s health problems. It identifies her as suffering from depression and spondylosis and also records that Mr and Mrs Lockrey’s youngest child has Down syndrome. The report indicates that she has limited capacity for employment because of the entrenched nature of those conditions. It also describes limitations on activities of daily living. Despite the documented assistance provided to her by Mr Lockrey in those matters, no reference is made to his involvement. Rather, she refers to assistance in these matters from her children.
45. Mrs Lockrey’s evidence was that she receives in excess of $1,000 per week in social security payments. Mr Lockrey is employed as a truck driver. His wage varies depending on the number of hours worked. His evidence was that his average weekly wage is $900. Mr Lockrey has debts associated with the failure of a business that he operated using his own vehicle. He also has a debt to Centrelink.
46. Regardless of those health and financial circumstances, waiver of a debt under s 1237AAD[34] of the Act requires that the debt must not have arisen because the debtor knowingly failed to or omitted to comply with a provision of the Act. I am satisfied that Mrs Lockrey deliberately gave false information to Centrelink about her living arrangement and that she did this throughout the additional overpayment period and the overpayment period. This means that she knowingly omitted to comply with her obligation to notify Centrelink that she was living as a member of a couple with Mr Lockrey. Accordingly, I am satisfied that the debt cannot be waived under s 1237AAD of the Act.[35]

DECISION

47. In accordance with s 179 of the Administration Act and s 142 of the FAA Act, I would affirm the decision of the SSAT. The effect of this is to affirm the decision in relation to the overpayment of $66,078.10 in the period from 4 September 1997 until 7 August 2007 which is a debt due to the Commonwealth; to set aside the decision in relation to the length of the overpayment period and to substitute the decision that the overpayment period be extended by adding the period from 8 October 1990 to 3 September 1997; and to remit the matter to Centrelink for calculation of the debt, due to the Commonwealth, which arose during the period from 8 October 1990 to 3 September 1997.
    

I certify that the 47 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RG Kenny, Senior Member.

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

Mátyás Kochárdy, Research Associate

Date of Hearing 3 & 22 December 2009

Date of Decision 18 January 2010

The Applicant was self-represented

Solicitor for the Respondent Mr Robert Hamilton, Departmental Advocate

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[1] Initially, the relevant legislation was the Social Security Act 1947.
[2] For sole parent pension and parenting payment. For family tax benefit, see s 113(1) of the A New Tax (Family Assistance) (Administration) Act 1999 (“the FAA Act”) which is in identical terms.
[3] For sole parent pension and parenting payment. For family tax benefit, see s 142(2) of the FAA Act which is in identical terms.
[4] See Agreement for Tenancy: Residential Premises (T97/391) and change of address notification dated 5 March 1993 (T102/401).
[5] See Exhibit 4 (Centrelink records).
[6] See T109/422.
[7] Exhibit 3.
[8] The transcript of the interview was in evidence: see T169/801-847.
[9] See T179/1116 and 1348.
[10] See T158/670-671.
[11] See T179/1209-1214.
[12] See application form at T179/1337-1342.
[13] See T179/1328-1333.
[14] See T179/1223.
[15] See T179/1202-1207.
[16] See T178/1039.
[17] See also Exhibit 7 and paragraph 42 (below).
[18] See T179/1339.
[19] See T178/1086-1088.
[20] See T179/1128-1133.
[21] See T170/913.
[22] See T170/903.
[23] See T170/902.
[24] See transcript at p 80-81.
[25] See transcript at p 36.
[26] See transcript at p 91.
[27] See s 24(1) of the Act.
[28] For sole parent pension and parenting payment, see s 1223(1) of the Act. For family tax benefit, see s 71(1) of the FAA Act.
[29] For sole parent pension and parenting payment. For family tax benefit, see s 95 of the FAA Act.
[30] For sole parent pension and parenting payment. For family tax benefit, see s 96 of the FAA Act.
[31] For sole parent pension and parenting payment. For family tax benefit, see s 97 of the FAA Act.
[32] For sole parent pension and parenting payment. For family tax benefit, see s 101 of the FAA Act.
[33] See Exhibit 7.
[34] See also s 101 of the FAA Act.
[35] For sole parent pension and parenting payment. For family tax benefit, see s 101 of the FAA Act.