Editors --- "Age pension: whether member of a couple" [2011] SocSecRpr 32; (2011) 13(4) Social Security Reporter, Article 5

• ALIREZAI and SECRETARYTO THE DFHCSIA
• Background
• The issues
• Legislation
• Consideration of the evidence
• Formal decision

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Age pension: whether member of a couple

ALIREZAI and SECRETARYTO THE DFHCSIA

(2011/1688)

Decided: 24th June 2011 by P. Wulf

Background

On 25 October 2010 Centrelink decided that Alirezai was a member of a couple with Mrs P. On 17 November 2010 Centrelink rejected Alirezai’s claim for age pension. These decisions were reviewed by the SSAT which decided on 31 March 2011 to affirm the decision that he was a member of a couple and therefore could not be paid age pension at the single rate. He sought a review of this decision.

The issues

The issues for the AAT to determine were:

• Whether Alirezai was a member of a couple with Mrs P.; and

• If so, should he be treated as not being a member of a couple for the purposes of the Social Security Act 1991 (Cth) (‘the Act’).

Legislation

Section 4(2)(b) of the Act sets out the criteria for determining when a person, who is not married, is a member of a couple. It states:

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

...

(b)all of the following conditions are met:

(i) the person is living with a person of the opposite sex (in this paragraph called the ‘partner’);

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

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

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

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

Pursuant to section 4(2)(b)(iii) of the Act, when forming an opinion the Secretary must have regard to all the circumstances of the relationship as defined in s.4(3). These include:

(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.

Section 24 of the Act provides that where the Secretary is satisfied that a person who is a member of a couple should for a special reason not be treated as a member of a couple he or she can make that determination in writing.

Consideration of the evidence

The AAT noted that Alirezai had lost his home and become bankrupt after a business for which he was the guarantor had failed. From sometime in 2002, Alirezai lived with Mrs H. She allowed him to live rent-free in return for undertaking house maintenance and other tasks. At no time was it considered by any person that Alirezai and Mrs H. were in a relationship.

In or about December 2006, Alirezai was no longer able to stay with Mrs H. and so he began living with Mrs P. The lease was on the same terms as those agreed upon when he resided with Mrs H.

The AAT accepted that Alirezai and Mrs P. were financially independent of one another. They had no joint assets. Mrs P. paid all financial obligations in respect of the house (rates, insurance etc). Alirezai paid for his car, which was his only asset, and a second phone line in the house. The AAT thought it important that Alirezai had no knowledge of the financial matters related to the property and had no access to Mrs P.’s bank accounts.

The AAT then considered the nature of the household and noted that there was no joint care of Mrs P.’s children.

The AAT noted that Alirezai slept with Mrs P. which was something that both Centrelink and the SSAT had placed considerable weight on when concluding that they were members of a couple. The AAT was of the view that the situation was ‘somewhat complex’ as Alirezai and Mrs P. were not in a relationship prior to Alirezai beginning to live with Mrs P. and he only slept in Mrs P.’s room as all other bedrooms were occupied.

The AAT accepted that Alirezai did most of the house maintenance in return for living rent-free. The AAT thought it important that this was the same arrangement that Alirezai had had with Mrs H. when he resided with her for numerous years although there was no evidence he had slept with her.

The AAT noted that there was conflicting evidence about the social aspects of the relationship. Alirezai wrote on his claim form for age pension that Mrs P. and he were considered a couple, although they were sometimes also considered to be more like a father and daughter. On the same form he stated that Mrs P. was a friend and caretaker, suggesting that they were not a couple. In the Centrelink relationship details form, he stated that he and Mrs P. were not in a de facto relationship. He also indicated that he was only intending to stay with Mrs P. until he could find his own place to live. The AAT was of the view this supported the conclusion that Mrs P. and Alirezai were not a couple as he planned to move out of Mrs P.’s property. The AAT noted that Alirezai could not afford the rent for the vast majority of properties in the area and accepted this had been an overriding consideration in him choosing to remain living with Mrs P.

In relation to s.4(3)(d) and whether there was a sexual relationship the AAT accepted that there was a form of sexual relationship. There was some discussion at the hearing as to whether the relationship was a genuine domestic relationship and it was described by the Secretary’s representative as ‘friends with benefits’, meaning that the parties were friends but occasionally had a physical relationship. In the AAT’s view the evidence was that Mrs P. and Alirezai at times had an intimate physical relationship (at most, about once a month) but this would not be considered a genuine domestic relationship.

The AAT concluded that Alirezai and Mrs P. were not in a marriage-like relationship. The weight of evidence suggested that the relationship was more akin to two people sharing a property: they were ‘friends with benefits’ and Alirezai was not a member of a couple under s.4(2) of the Act.

On behalf of the Secretary it was submitted that as there was not a prescriptive definition of a de facto relationship in the Act the AAT should assess whether Mrs P. and Alirezai could be considered a couple according to the definitions in the Property Law Act 1974 (Qld) and Acts Interpretation Act 1954 (Qld).

The AAT considered the definition of de facto partner in section 32DA of the Acts Interpretation Act 1954 (Qld) and concluded that Mrs P. and Alirezai were not a couple as defined under s.4(2) of the Act. The AAT was not required to consider s.24 of the Act.

Formal decision

The decision under review was set aside and the AAT substituted the decision that Alirezai was not a member of a couple with effect from 25 October 2010.

C.E.