Editors --- "Age pension: whether a member of a couple" [2011] SocSecRpr 9; (2011) 13(1) Social Security Reporter, Article 9

• WHNV and SECRETARY TO THE DFHCSIA
• Background
• The law
• Consideration of the issues
• Discussion of the legal requirements
• Formal decision

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Age pension: whether a member of a couple

WHNV and SECRETARY TO THE DFHCSIA

(2010/885)

Decided: 11th November 2010 by K. Bean

Background

In 1995 WHNV began dating the woman with whom he continued to live at the time of the hearing. The two acknowledged that their relationship was intimate, especially in its early stages. In 2003 they purchased a home in South Australia, as tenants in common, and since then had principally occupied different levels of the split-level house. Although there continued to be some intimacy in their relationship, and they still lived in the one house, they contended that they were not a ‘couple’.

WHNV applied for age pension (AP) in July 2009, but his eligibility was not fully tested as he did not return to Centrelink the relevant financial details for the woman with whom he shared accommodation. In December 2009, because these details had not been returned, Centrelink rejected his AP claim, a decision affirmed later that month by an Authorised Review Officer. WHN appealed to the SSAT which in February 2010 found that WHNV was a member of a couple but set aside the decision and remitted it back to the Department for reconsideration on other grounds.

The law

The criteria to be considered in determining whether a person is a ‘member of a couple’ are contained in s.4(2) and (3) of the Social Security Act 1991 (the Act) which provides –

Member of a couple—general

(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 has a relationship with another person, whether of the same sex or a different 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 subsections (3) and (3A)), a de facto relationship;...

Member of a couple—criteria for forming opinion about relationship

(3) In forming an opinion about the relationship between 2 people for the purposes of paragraph (2)(a), subparagraph (2)(aa)(ii) or subparagraph

(2)(b)(iii), 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, or in a de facto relationship with, 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 or a de facto relationship.

Consideration of the issues

The Tribunal considered in turn the several criteria set out in s.4(3) of the Act.

As to financial matters and nature of the household, the Tribunal noted some joint ownership of assets (a house and boat) but accepted that these were purchased on the basis of clearly designated separate interests and with equal contributions. Some very limited pooling of financial resources was noted, but household expenses were divided according to liability for those expenses, whilst the cohabitation agreement the two had signed had been entered into on the basis of legal advice with the intended purpose being to keep their interests as separate as possible.

As to social aspects of the relationship, it was noted that the two did not hold themselves out as being ‘married’ nor as being an exclusive couple. The activities they shared reflected their common recreational interests. WHNV’s family did not see the woman as WHNV’s ‘partner’ but rather as his friend, and she had limited interaction with his children and grandchildren.

As to the sexual relationship between the two, the Tribunal noted that whilst this was continuing it was a less significant part of the relationship than it had been in the past.

As to their commitment to one another, it was accepted that the two had had a meaningful and close relationship for over 15 years, and valued each other’s companionship. However, they did not see themselves as in a ‘marriage-like’ relationship, did not hold themselves out in this way to others, and would not financially support the other in the future. The evidence was that if found to be a ‘couple’ the woman would move from the existing home that she shared with WHNV, and she had already purchased land on which to build a separate home should this be necessary.

The Tribunal concluded that the evidence regarding financial matters and nature of the household was equivocal – that is, pointing strongly neither toward nor away from the two being members of a couple. The evidence regarding their sexual relationship did not point strongly towards them being a couple for the purposes of the Act, but the Tribunal concluded that the evidence regarding the social aspects of the relationship and the nature of their commitment to one another supported the view that they were not a couple.

Discussion of the legal requirements

Noting these conclusions, the Tribunal considered that the determination of couple status was ‘...not to be approached as a mathematical exercise. It is necessary ... to have regard to all aspects of the relationship and the “total picture” as disclosed by the evidence’ (Reasons, para. 37). In WHNV’s situation the Tribunal concluded that, having regard to the whole picture, their relationship was ‘more in the nature of a close and enduring friendship than a de facto couple’ (Reasons, para. 38). The fact of a continuing sexual component to their relationship was not - in the context of the overall evidence - sufficient to conclude that the relationship was ‘marriage-like’.

Formal decision

The Tribunal determined that WHNV was not a member of a couple at the time of lodging his application for AP, nor since then, and that therefore the other person’s financial information was not relevant to a determination of the rate of AP to be paid to WHNV.

[P.A.S.]