Editors --- "Disability support pension: member of a couple" [2011] SocSecRpr 33; (2011) 13(4) Social Security Reporter, Article 6

• O’CONNOR and SECRETARY TO THE DFHCSIA
• Background
• The Law
• Discussion
• Formal Decision

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Disability support pension: member of a couple

O’CONNOR and SECRETARY TO THE DFHCSIA

(2010/0587)

Decided: 31st October 2011 by J.Toohey

Background

Ms O’Connor married her husband in 1977 and they had two children together. She separated from her husband sometime in 1991 and started receiving social security payments at the single rate. She initially received the sole parent pension until March 1997 and later disability support pension.

In 2007, Centrelink received a tip off that Ms O’Connor who was still legally married, had not separated from her husband in 1991, as she had claimed. In January 2009, after extensive investigations, Centrelink decided that Ms O’Connor had not separated from her husband and had therefore been overpaid benefits since that date.

The alleged overpayment comprised of approximately $43,500 of sole parent pension and $113,000 of disability support pension. Ms O’Connor was unsuccessful at the SSAT she sought further review at the AAT.

The Law

Section 4(2) of the Social Security Act 1991 (‘the Act’) provides for the various conditions in which a person is considered a member of a couple with another person (whether of the same sex or of a different sex) for the purposes of the Act.

Section 4(3) of the Act provides that, in forming an opinion about the relationship between two people, the Secretary must have regard to all the circumstances of the relationship including, in particular: (a) financial aspects of the relationship; (b) the nature of the household; (c) the social aspects of the relationship; (d) any sexual relationship between the people; (e) the nature of the people’s commitment to each other.

Discussion

The AAT was provided with written statements from eight witnesses, mostly family members, a psychologist and a friend of Ms O’Connor. The AAT also heard oral evidence from them in person. In evidence were also copies of documents seized from Ms O’Connor’s property in October 2008 through a raid involving the Federal Police. The Secretary relied heavily on Mr O’Connor’s diary extracts to suggest that the separation was fabricated.

The AAT considered Ms O’Connor’s deteriorating health and medical conditions which she suffered from a very young age and their impact on the relationship as a whole. The AAT noted that her illness which affected her ability to care for her children as well as herself had blurred their separation. It also noted the fact that Mr O’Connor’s job which required him to travel around made it more complex. Although there was a considerable degree of intertwining of financial affairs, particularly their joint interest in three different properties before and after their claimed separation, this was considered in the context of Ms O’Connor’s illness and the children’s ages at the time. Other than the property interests however, the AAT found little evidence of actual financial dependence on each other.

The AAT was satisfied that the continuing commitment on Mr O’Connor’s part throughout the relevant period, such as helping around outside the maintenance of the house and some occasional purchase of groceries, stemmed from his concern for his children’s welfare given Ms O’Connor’s illness and a similar illness suffered by their son Gregory. Indeed it was noted, this commitment had declined since the children left home.

The AAT accepted that taking into account all their circumstances they were living separately and apart on a permanent or indefinite basis throughout the period.

Formal Decision

The AAT set aside the decision under review and substituted the decision that Ms O’Connor was not a member of a couple through the relevant period.

C.W.