Sleep, Lyndal; Tranter, Keiran; Stannard, John --- "Administration of Marriage-Like Relationship Rule" [2006] SocSecRpr 24; (2006) 8(3) Social Security Reporter, Article 1

• Administration of Marriage-Like Relationship Rule

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Administration of Marriage-Like Relationship Rule

A recent study entitled The Cohabitation Rule in Social Security Law: The More Things Change the More Things Stay the Same¹ highlights current concerns regarding the administration of the marriage-like relationship rule in s.4 of the Social Security Act 1991 (Cth). This section provides the mechanics for the provision of different payment rates for ‘single’ and ‘partnered’ social security claimants and recipients. Section 4(3) authorises the Secretary to determine, from consideration of all the circumstances of the relationship of two people of the opposite sex, whether they are in a ‘marriage-like relationship’ and should be treated as a ‘member of a couple’ for the purposes of determining eligibility and payment rates.

The research examined 29 AAT decisions from 2005. The focus of the research was on the written descriptions by AAT members of the evidence gathered and processes used by Centrelink when making its primary decision.2

Within those 29 cases, 20 of the social security recipients affected were female and 9 male; while 12 received parenting payment (single) or parenting payment (partnered), 7 disability support pension, 4 age pension, 2 carerpayment, 2 newstart allowance, 1 sickness allowance, and 1 youth allowance. It was noted that while the cohabitation rule applied across all payments, it was still women with children that were most affected.

The researchers noted that the legal interpretation ofs.4(3) is well established. Following the Federal Court decisions inLambe v Director-General of Social Services [1981] FCA 171; (1981) 4 ALD 362; Lynam v Director-General of Social Security (1984) 52 ALR 128; Staunton-Smith v Secretary, Department of Social Security [1991] FCA 513; (1991) 25 ALD 27, the rule does not limit the Secretary. All aspects of a relationship, and any evidence that might be pertinent, should be considered. A client’s subjective opinion concerning their relationship and the fact that the alleged partner provides no financial support are merely factors among many others to be considered.

The researchers concluded that this broad legal understanding ofs.4(3) has lead to a process of invasive evidence gathering and ongoing surveillance of clients. The AAT decisions examined in the research documented the breadth of material that Centrelink gathers concerning clients and alleged partners: including pay slips, tax returns, superannuation applications, child care and school enrolments, and hospital admission details. The decisions also revealed that many from the wider community, friends, neighbours, doctors, religious leaders and school teachers are requested specifically to pass information to Centrelink concerning a client’s relationship. Such an investigation process can damage a client’s relationship with these people.

In particular the research found that:

· In 6 of the 29 decisions an investigation of the client’s relationship status was triggered after an anonymous ‘public denunciation’.

· The AAT decisions revealed that the involvement of real estate agents in Centrelink’s investigative procedures was prominent. In Pill and Secretary, Department of Family and Community Services (2005) 81 ALD 266, Secretary, Department of Family and Community Services and Webb [2005] AATA 668 and Ah-See and Secretary, Department of Family and Community Services [2004] AATA 783; (2005) 84 ALD 209, Centrelink sought the opinion of real estate agents and landlords as to whether the client and the alleged partner were in a relationship. The question needs to be asked whether real estate agents are appropriate and reliable sources for such evidence.

· The commissioning of private investigators to track and video the movements of the client and the alleged partner was documented in Ah-See and Secretary, Department of Family and Community Services [2004] AATA 783; (2005) 84 ALD 209 at 217 [68-69].

· Greater weight was given to an alleged partner’s opinion about whether there was a marriage-like relationship than was awarded to the client’s opinion. The unilateral action of alleged partners in nominating the client as a beneficiary of their superannuation was held in Pelka and Secretary, Department of Family and Community Services [2005] AATA 120 andSecretary, Department of Family and Community Services and Glachan [2005] AATA 899 to be highly indicative of a marriage-like relationship.

Disagreements between clients and Centrelink concerning the client’s relationship can lead to negative consequences for a client, including large debts and criminal prosecution. In Cahill and Secretary, Department of Family and Community Services [2005] AATA 1147 a debt of $127,343.10 was initially raised against a client. In 2003-2004 Centrelink, in relation to ‘member of a couple’ decisions, raised 2673 debts of less then $5000, 177 debts between $5000-30,000 and 124 debts greater than $30,000.3 In 2003-2004 Centrelink assessed 833 clients with debts relating to membership of a couple for criminal prosecution, referring 176 to the Commonwealth Director of Public Prosecutions.

Further, the effect of Centrelink determining that a client was in a relationship lead some clients to homelessness, foreclosure of mortgages, accumulation of large debts, relocation away from children and the end of care-based relationships.

In conclusion, the researchers suggested that the cohabitation rule requires reform. Two avenues were proposed:

· That the purpose of the Act in providing income support be recognised and the rule be rearticulated as requiring financial interdependence. This would have prevented most of the clients in the 29 decisions from being considered a ‘member of a couple’.

· That the investigation and surveillance procedures be tightened so that clear guidelines are established for the conduct of marriage-like relationship investigations, and protocols are in place regarding the solicitation of opinion concern a client’s relationship status from third parties. Such changes would help to ensure that only relevant and cogent evidence from reliable sources is utilised in decision-making.

Lyndal Sleep, Kieran Tranter, John Stannard

(Footnotes)

1 Lyndal Sleep, Kieran Tranter and John Stannard ‘The Cohabitation Rule in Social Security Law: The More Things Change the More Things Stay the Same (publication pending in Australian Journal of Administrative Law’ (2006) 13(3) Australian Journal of Administrative Law 135-146.

2 This approach was taken because it was found that Centrelink does not keep records of first instance marriage-like relationship decisions.

3 Department of Human Services, Answers to Questions on Notice HS44: Impact of ‘marriage-like’ relationships on payment recipients (Senate Finance and Public Administration Committee, 2005), [4],

http://www.aph.gov.au/senate/committee/fapa_ctte/estimates/add_0405/human_services/hs44.pdf viewed 30 November 2005.