SOCIAL SECURITY - assets test - payments made at the single rate - whether a member of a couple - whether debt owing to the Commonwealth - whether debt should be waived or written off - decision affirmed

Social Security Act 1991 (Cth) ss 4(2), 4(3), 4(3A), 1223, 1236, 1237A, 1237AAD

Cullinane v Secretary, Department of Family and Community Services [2004] AATA 789

Pelka v Secretary, Department of Family and Community Services [2006] FCA 735; (2006) 151 FCR 546

1. Mr Boskoski received payments from Centrelink for Newstart Allowance, Mature Age Allowance and Age Pension at various times between 31 May 1995 and 26 January 2011. All of these payments were made at the single rate on the basis that Mr Boskoski was not a member of a couple during that time and that the only relevant assets were those held by him.
2. On 12 December 2013, the Social Security Appeals Tribunal affirmed a decision that Mr Boskoski was indebted to the Commonwealth in the sum of $143,924.89 arising from overpayment of the various benefits. The Tribunal decided also that Mr Boskoski was liable to pay this amount to the Commonwealth.
3. Mr Boskoski has applied for a review of the decision of the Social Security Appeals Tribunal. For the reasons which follow the decision under review will be affirmed.

1. The following issues arise for determination.
   • (a) Was Mr Boskoski a member of a couple with Mrs Lenart at any time between 31 May 1995 and 26 January 2011?
   • (b) Does Mr Boskoski owe a debt of $143,924.89 to Centrelink, being the amount of benefits he has received and to which he was not entitled?
   • (c) If so, is he liable to pay that debt to the Commonwealth?

1. The Secretary alleges that during the whole of the period between 31 May 1995 and 26 January 2011 Mr Boskoski was a member of a couple with Mrs Lenart.
2. I accept the following evidence given by Mr Boskoski to the Social Security Appeals Tribunal:

Mr Boskoski told the Tribunal that he and Mrs Lenart first met in 1989 at the Hungarian Club. He said that at that time, Mrs Lenart was a widow living on her assets who was always asking him for help and protection. He would drive her around because although she had her own car she did not like to drive. He would also take her to social events. She asked him to take her to Hungary, which he did in 1991. They would visit each other's families but this was infrequent.

Mr Boskoski said that their relationship was based on friendship and then later he became her carer. Their relationship continued until Mrs Lenart's death in 2011. Mr Boskoski confirmed that throughout that period they spent their time together and attended social activities together.

Mr Boskoski said that he and Mrs Lenart did not think of themselves as members of a couple.[1]

1. Mr Boskoski told me that his relationship with Mrs Lenart was based on friendship. They did not have a sexual relationship and did not combine their individual financial resources. He said that they each lived in their own home and paid their own bills.
2. Mr Boskoski is 74 years old. He owned a residential property in Heckenberg, New South Wales from February 1997 until July 2006. Between September 2006 and August 2011 he owned a residential property in Eagle Vale, New South Wales.
3. Mrs Lenart was born in 1925. Her husband died in 1986.
4. In 1995 Mrs Lenart purchased a house in St Andrews, New South Wales. She retained ownership of this property until her death. She also owned a residential unit in Homebush, New South Wales until June 2000.
5. Mrs Lenart died on 26 January 2011.

Documents provided by the Secretary[2]

1. Counsel for the Secretary referred Mr Boskoski to many documents during cross-examination. A summary of those documents and Mr Boskoski's evidence in relation to them follows.
2. On 1 March 1996, Mrs Lenart completed an Income and Investments form for Centrelink. On that form she indicated that Mr Boskoski had helped her to complete the form and listed his contact telephone number as being the same as hers.[3] Mr Boskoski said that this was done so he could be contacted on Mrs Lenart's number. He denied that they had lived together since 1995.
3. Also on that date, Mrs Lenart completed a pension claim form. She listed Mr Boskoski as regularly staying at her St Andrews address, having first stayed in May 1995.[4]
4. In December 1996 Mr Boskoski lodged a Personal Finance Enquiry form with Westpac. He stated his current address to be the St Andrews address and that he had lived there for 18 months from 31 May 1995.[5] He said that he gave this address as the property had a locked letterbox and would provide greater security for bank documents. He did not remember if he had lived at this address from May 1995.
5. Mr Boskoski's driver licence which was due to expire in 1999 showed a Riverwood address and the St Andrew's address.[6] Mr Boskoski said that the St Andrew's address was his "carer's" address.
6. In January 1997, Mr Boskoski lodged a further Personal Finance Enquiry with Westpac. Again he gave his "current home address" as being the St Andrews address and stated that he had lived there from 31 May 1995.[7] When asked if this was true he said that he had given a postal address. When questioned as to his statement that he had lived at the address since 31 May 1995 he replied that he could not recall and that it was "confusing." A letter dated 1 February 1997 from Westpac to Mr Boskoski was addressed to the St Andrew's address.[8]
7. On 4 February 1997, Mr Boskoski's solicitor wrote to him providing details of the purchase of the Heckenberg property.[9] The letter was addressed to the St Andrews address. Mr Boskoski said that he provided this address to his solicitor as a postal address.
8. In December 1997 Mr Boskoski lodged a claim for Newstart allowance.[10] He gave his home address as the St Andrews address. He stated his postal address was "as above". Mr Boskoski said this was related to his purchase of the Heckenberg property. Mr Boskoski also stated on the claim form that he had lived at the St Andrews address for three years. He said that he made this statement in the application as he was taking care of Mrs Lenart and that the accommodation at her address was "temporary".
9. In May 1998 Mr Boskoski received correspondence from the Department of Social Security concerning his Newstart allowance, addressed to the St Andrews address.[11] Mr Boskoski said that at that time he was living at his Heckenberg address and he suggested that the Department had made an error. He acknowledged that he had read that part of the correspondence which advised him that he must advise the Department if he started living with someone as his partner. He said that he was not living with Mrs Lenart as his partner at the time.
10. In March 1999 Mr Boskoski lodged a further claim for Newstart allowance. In his application form he stated that his permanent home address was the Heckenberg address and that he had lived at that address for a period of two years.[12]
11. In April 1999 Mr Boskoski and Ms Lenart applied for Australian passports. They were issued the passports bearing consecutive numbers. Mr Boskoski said that he travelled with Mrs Lenart to Hungary at her request.
12. On 16 November 2000 Mrs Lenart executed a will in which she described Mr Boskoski as her "de facto husband". She bequeathed three quarters of her estate to him.[13] If the gift to Mr Boskoski did not take effect, his share in her estate was shared among Mr Boskoski's two sons. She also requested that her body be buried with her late husband. Mr Boskoski described the use of the words "my de facto husband" as being "metaphorically, a play of words."
13. Mrs Lenart completed another claim for age pension with the assistance of Mr Boskoski in August 2001.[14] In that document she indicated that she was a widow, although did not provide details of any present partner. She noted Mr Boskoski's address as the Heckenberg address. Mr Boskoski agreed that he had completed these details on her behalf.
14. In July 2005 Mr Boskoski applied for an age pension. The form requesting information from Mr Boskoski was addressed to him at the Heckenberg address.[15]
15. Mrs Lenart was treated in hospital in October 2005. Hospital notes relating to that treatment refer to "Chris" providing some supervision with her medication. The notes also recorded that she was living with "Chris (carer)".[16] Mr Boskoski agreed that he was the person referred to as "Chris". He stated that at the time Mrs Lenart did live with him as she was disabled. He did the housework including the cooking and washing. He also helped Mrs Lenart with her meals. He lived at Mrs Lenart's home Monday to Thursday each week. He cared for Mrs Lenart in his own home during the remainder of the week. At this time he was taking care of both properties.
16. By reason of his caring for Mrs Lenart Mr Boskoski made an application for a carer payment in December 2005. In his application Mr Boskoski referred to Mrs Lenart as a "family friend". He stated that he began to care for her on 31 August 2003 and that he would be caring for Mrs Lenart "forever".[17] Mr Boskoski said that he used the word "forever" as Mrs Lenart was gravely ill.
17. Mr Boskoski provided details of his accommodation to Centrelink in July 2006.[18] He informed Centrelink that his new home address was the St Andrews address and that had he had moved to that address on 12 July 2006. He stated that he would return to his usual address on 18 August 2006. He gave his new postal address as the address of his property at Eagle Vale. Mr Boskoski also stated that he did not have a partner but that he shared his accommodation with a "friend I take care for". When he gave evidence Mr Boskoski stated that at that time he was in the process of moving from his Heckenberg property (which he had recently sold) to his Eagle Vale property.
18. In another Living Arrangements form signed on 18 July 2006 Mr Boskoski advised Centrelink that Mrs Lenart had stayed with him since May 1995 and that she never stayed away.[19] Mr Boskoski told me that he and Mrs Lenart had not been living together since May 1995 and had not continuously stayed together. He described the arrangement as "visitation".
19. Mrs Lenart was treated in hospital in August 2006.[20] In the hospital notes Mr Boskoski is recorded as her next of kin and "partner". Mr Boskoski said that he probably did tell the person making the notes that he was Mrs Lenart's partner and that he gave Mrs Lenart's telephone number as his telephone number as he had to take care of her house and her dog. He denied that he was living at St Andrews address at the time. He also said that he gave the person completing the form his telephone number, but it was not included on the form.
20. In July 2008, Mr Boskoski applied to renew his Australian passport.[21] He said that he did this as he wished to travel overseas with Mrs Lenart as she was well enough to travel with his support. In the application form Mr Boskoski's address was shown as the St Andrews address. He said that he wished both his and Mrs Lenart's passports to arrive at her address. The application form specified that the address given "must be a residential address"; Mr Boskoski said that he probably did not read the fine print. He said that he was not living at this address, but was using it as a postal address.
21. In October 2008, Mr Boskoski signed a Commonwealth Bank Authority to Operate Mrs Lenart's account at that bank.[22] Above his signature his residential address was recorded as the St Andrews address. Mr Boskoski stated at the hearing that this was not in fact his residential address and that he had used the wrong expression. When asked why Mrs Lenart gave him the authority to operate her account he said that she was not able to help herself and that he was "her mind too". He said that he had nothing to do with Mrs Lenart's money in the account although he did operate the account on some occasions, but only when she was present.
22. Mr Boskoski applied to the Guardianship Tribunal of New South Wales to be appointed as Mrs Lenart's guardian in April 2009. The application was heard on 2 June 2009 and the Tribunal gave reasons dated 9 July 2009.[23] The Tribunal stated:

... Ms Lenart has no current need for the appointment of a guardian. The issue raised by Mr Boskoski was specific to being recognised as the person who can make decisions for Ms Lenart about her medical treatment, and oversee her health care.

He stated that he had been her partner and carer for many years. Ms Lenart confirmed this relationship and indicated that she has no regular contact with any family members.

......

The Tribunal is satisfied that Mr Boskoski has a genuine and long-standing relationship with Ms Lenart and is her carer and partner. He therefore falls into the second and third of the above categories, and is thereby able to make the important medical decisions on Ms Lenart's behalf without being appointed as guardian.[24]

Mr Boskoski agreed that he told the Tribunal that he was Mrs Lenart's partner and carer.

1. In October 2009, Mr Boskoski completed a Centrelink Carer Allowance Questionnaire.[25] In that form he stated at he provided personal care to Mrs Lenart seven days per week. In evidence Mr Boskoski said that he provided the care partly in Mrs Lenart's home and partly in his own home and that they continued to spend part of each week in each of the houses.
2. Mrs Lenart was again in hospital in October 2010. Mr Boskoski agrees that he told the person completing the form that he was Mrs Lenart's "partner", but says that to him this meant "friend".[26]
3. Mr Boskoski agrees that he was the informant of particulars used to complete Mrs Lenart's Death Certificate,[27] following her death on 26 January 2011. Mrs Lenart's marital status at the date of her death is recorded in that certificate as de facto and Mr Boskoski (incorrectly described as "Hristo Lenart") is recorded as her spouse. Mr Boskoski said that he described himself as Mrs Lenart's de facto "metaphorically". He said that he recorded his address as the St Andrews address on the death certificate as it was not important to him.
4. Following Mrs Lenart's death, a dispute arose as to which of two documents was her last will. On 15 August 2011 solicitors acting on behalf of Mr Boskoski lodged a Caveat in the Supreme Court of New South Wales.[28] The caveat stated in part:

the Plaintiff's interest is as the deceased's de facto husband who would be entitled to share in the Estate of the deceased either under the rules of intestacy if the will were to be set aside under a prior will dated 16 November 2000.

At the time Mr Boskoski was living in Mrs Lenart's house which he then considered was his own. He sold the Eagle Vale property in August 2011.

1. In subsequent proceedings in the Supreme Court of New South Wales Mr Boskoski swore an affidavit on 1 June 2012.[29] In that affidavit he stated, in part:
   1. I believe that the information contained in this Affidavit is true;

1. ... I am the de facto partner of the deceased and saw her sign her name on many occasions ...

1. To the best of my knowledge and belief, as at the date of her death I was the deceased's de facto husband. ...

Mr Boskoski told me that these statements were untrue. He said that these words were "metaphorical" and were used "just to obtain the rights she allocated to me - it is my strategy to fight a forgerer."

1. On 4 February 2013 the Supreme Court of New South Wales ordered that "Letters of Administration with the will dated 16 November 2000 in common form attached be granted to Hristo Boskoski (Chris) the principal beneficiary named therein".[30] Mr Boskoski denied any knowledge of the finalisation of the Supreme Court proceedings.
2. On 24 May 2013, a Centrelink officer spoke to Mr Boskoski by telephone. The officer's record of that conversation includes that Mr Boskoski "agreed he had lived as a MOC [member of a couple] with Lenart until 2000 when she became ill he then became her partner/carer".[31] When he gave evidence Mr Boskoski denied that he made this statement.
3. The record of the conversation goes on to state that Mr Boskoski said

Yes, I was her partner/carer. She loved me I loved her, I drove her everywhere, took her to the Doctors, to Hospital when needed, we swore to one another that we would be together until we died.

1. A further note in the records of Centrelink indicates that Mr Boskoski was contacted by a Centrelink officer on 17 June 2013.[32] The officer recorded that Mr Boskoski "denied that he and Mrs Lenart were living as members of a couple from the year 2000 and he was simply living with her in the role of her carer, he claims prior to the year 2000 he and Margaret Lenart were living as a de facto couple." When Mr Boskoski was questioned as to this record in cross-examination he stated that it "must have happened".
2. In October 2011, Mr Boskoski agreed to his address being changed on each of the Federal and State electoral rolls to Mrs Lenart's St Andrews address.[33]

1. A letter dated 1 March 2011 from Westpac to Mr Boskoski,[34] and a bank statement from 10 December 2010 to 9 March 2011,[35] both show his address as the Eagle Vale address.

1. A rate notice dated 8 July 2011[36] was addressed to Mr Boskoski at the Eagle Vale address.

1. This card[37] shows Mr Boskoski's address as the Eagle Vale address. It shows a start date of 5 September 2000.

1. Driver licences issued to Mr Boskoski for the period September 2000 to 12 November 2014[38] show Mr Boskoski's address as the Eagle Vale address.

1. On 19 August 2014 this application was adjourned part-heard to allow Mr Boskoski the opportunity to call additional witnesses. The hearing was resumed on 10 October 2014.

1. Ms Oehlers was a neighbour of Mrs Lenart from May 1995 to January 2011. She provided a statement dated 10 October 2014[39] and gave evidence at the hearing.
2. In her statement Ms Oehlers said that Mrs Lenart was cared for by Mr Boskoski, but when he was not available she would care for her. She said that Mr Boskoski was residing at the Eagle Vale address.
3. When questioned as to her statement Ms Oehlers said that Mr Boskoski had assisted her to prepare it. She agreed that Mrs Lenart and Mr Boskoski were in a "close relationship" and probably were in de facto relationship. She was unaware of many aspects of their relationship which are disclosed by the various documents to which I have referred above. Ms Oehlers' evidence that she cared for Mrs Lenart was inconsistent with the care arrangements described by Mr Boskoski.

1. Mr Pervan is a long-standing friend of Mr Boskoski, they having known each other for 45 years. He provided a statement dated 10 October 2014[40] and gave evidence. His statement was prepared by Mr Boskoski.
2. Mr Pervan stated that he knew Mrs Lenart resided at the St Andrew address "as a single widow" and that Mr Boskoski lived at the Heckenberg address from 1996 to 2006 "as a single person." Mr Pervan was unaware of the contents of the documents in evidence. When informed of what many of these documents contained he said that his opinion that Mr Boskoski was living as a single man was unchanged.

1. Mr Nuttal stated that he was a neighbour of Mr Boskoski in Heckenberg and that Mr Boskoski resided as a single person at the Heckenberg address from 1996 to 2006.

1. Mr MacDonald stated that he was a neighbour of Mr Boskoski in Eagle Vale and that Mr Boskoski resided as a single person at the Eagle Vale address from July 2006 to August 2011. Mr MacDonald did not give evidence.

1. Newstart Allowance, Mature Age Allowance and the Age Pension are all means tested. In general terms, where a person is a member of a couple, a proportion of the value of the assets owned by that person's partner is to be attributed to that person for the purposes of calculating his or her assets.
2. Subsection 4(2) of the Social Security Act 1991 (Cth) provides, in part:

(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;...

(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;

(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.

1. Subsections 4(3) and 4(3A) provide:

(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;

(i) any joint responsibility for providing care or support of children; 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;

(e) the nature of the people's commitment to each other, including:

(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.

(3A) The Secretary must not form the opinion that the relationship between a person and his or her partner is a de facto relationship if the person is living separately and apart from the partner on a permanent or indefinite basis.

Issue 1: Was Mr Boskoski a member of a couple with Mrs Lenart at any time between 31 May 1995 and 26 January 2012?

1. There is no dispute that Mr Boskoski meets the conditions set out in subsection 4(2)(b)(i), (ii), (iv) and (v). The only question is whether I am of the opinion that Mr Boskoski's relationship with Mrs Lenart was a de facto relationship as referred to in subparagraph 4(2)(b)(iii). My opinion is to be formed in accordance with subsection 4(3). Subsection 4(3A) does not apply in this case.
2. The representative for the Secretary referred me to a number of judgements of the Federal Court and decisions of this Tribunal which set out the applicable principles in determining this issue.
3. In Pelka v Secretary, Department of Family and Community Services[41], French J. applied the principle that "all facets of the interpersonal relationship of the two persons had to be taken into account."
4. However, whilst all aspects of the relationship must be considered, differently structured relationships may satisfy different criteria set out in subsection 4(3). As the Tribunal observed in Cullinane v Secretary, Department of Family and Community Services: [42]

People must be free to structure their domestic relationships as they please. But it is still necessary to attempt to characterise the relationship where the decision whether or not to take into account the other person's income depends on whether they are members of a couple, or merely share a common address. The criteria offer common-sense indicators. One need not satisfy them all; indeed, one may satisfy few of them but still be considered to be a member of a couple if the decision-maker forms the view that the applicant is in fact a member of a couple.

1. In considering the various criteria set out in subsection 4(3) it is necessary to take an objective view of the facts. However the subjective views of the parties may be relevant in considering aspects of the relationship, such as the commitment of each party to the other.[43]
2. I am satisfied that Mr Boskoski and Mrs Lenart met in about 1989 and that a friendship developed to the point that they travelled overseas together in 1991.[44] Taking an overall view of the evidence, and in particular the various references in the documents to which I have referred, I am satisfied that, at the latest, from the end of May 1995 Mr Boskoski lived in Mrs Lenart's home in St Andrews and regarded it as his principal place of residence.
3. I accept that from time to time Mr Boskoski and Mrs Lenart would stay in Mr Boskoski's property at Eagle Vale, but the frequency at which Mr Boskoski nominated Mrs Lenarts' St Andrews address as his address and the telephone number of that property as his telephone number, causes me to conclude that the St Andrews address was his principal place of residence. I do not accept Mr Boskoski's evidence that at times he nominated the St Andrews address simply as a postal address.
4. In this regard I have particularly taken into account that in 1996 and 1997 Mr Boskoski advised his bank that his home address was the St Andrews address and that he had lived there from May 1995. Mrs Lenart provided similar information on a pension application made in March 1996.
5. There is evidence that Mr Boskoski did show his Heckenberg address on documents in the late 1990's and in the early 2000's. However, in later years Mr Boskoski again gave the St Andrews address as his residential address. For instance, on both his application for a renewal of his passport and the authority to operate Mrs Lenart's bank account in 2008, Mr Boskoski gave signed declarations that information which listed his address as the St Andrews address was true and correct.[45]
6. Mr Boskoski argues that his relationship with Mrs Lenart was always that of carer. However Mr Boskoski did not apply for a carer's allowance in respect of Mrs Lenart until December 2005. At that time he stated that his care for her commenced in August 2003. Clearly there was a relationship between them which involved a high level of mutual commitment prior to the need for Mr Boskoski to provide care for Mrs Lenart.
7. In 2000, Mrs Lenart executed a will in which she left three quarters of her estate to Mr Boskoski with the proviso that if he did not survive her the share he would otherwise have received would be shared between his two sons. This was proved to be her last will.
8. In December 2005, Mr Boskoski advised Centrelink that he would be living with Mrs Lenart "forever".[46]
9. Mrs Lenart demonstrated a high level of trust of Mr Boskoski and nothing suggests that this trust was not well-placed. In October 2008 she authorized Mr Boskoski to operate her account at the Commonwealth Bank. However it is relevant that there is no evidence that they pooled their financial resources or that household bills were paid jointly. I am unable to find how such accounts were dealt with.
10. On different occasions both Mrs Lenart and Mr Boskoski separately described their relationship as being de facto. In her will Mrs Lenart referred to Mr Boskoski as her de facto husband. In Mrs Lenart's death certificate, for which Mr Boskoski provided the information, he was recorded as her de facto. In 2013 Mr Boskoski told a Centrelink officer that prior to 2000 they lived as a de facto couple.
11. Apart from the statements referred to in the preceding paragraph, there is no evidence that Mrs Lenart and Mr Boskoski shared a sexual relationship. Mr Boskoski denies that such a relationship existed. However taking into account the evidence as to other aspects of the relationship I do not regard the absence of a sexual relationship (if such was the case) of particular relevance in this application.
12. I have taken into account that in important legal documents both parties described their relationship as one of a de facto couple. I have already mentioned Mrs Lenart's will and her death certificate.
13. When Mr Boskoski applied to the Guardianship Tribunal in 2009 he told the Tribunal that he was Mrs Lenart's partner as well as her carer and had been so for many years. The Tribunal found accordingly.
14. Even after Mrs Lenart's death, Mr Boskoski continued to describe himself as her de facto husband. He swore an affidavit in which he made this statement on 1 June 2011.
15. I do not accept Mr Boskoski's evidence that such statements were merely metaphorical.

1. Having considered all the circumstances of the relationship, including the matters set out in subsection 4(3) of the Act, I have formed the opinion that Mr Boskoski and Mrs Lenart were in a de facto relationship from the end of May 1995 until Mrs Lenart's death on 26 January 2011. The factors which show that Mr Boskoski and Mrs Lenart lived in a de facto relationship are:
   • their living in the same house, even though this involved moving between two houses;
   • their commitment to each other, including Mrs Lenart's leaving two thirds of her estate to Mr Boskoski with alternative gifts to his sons, and Mr Boskoski's commitment to caring for Mrs Lenart;
   • their travelling together;
   • Mr Boskoski's attending to household tasks;
   • the description of their relationship given in significant legal documents;
   • Mr Boskoski's evidence to the Guardianship Tribunal.
2. I have formed the opinion that Mr Boskoski and Mrs Lenart were in a de facto relationship notwithstanding that I cannot be satisfied that they pooled their financial resources or that they had a sexual relationship. The nature of their household was such that other factors to which I have referred establish that their relationship was in fact a de facto relationship.

Issue 2: Does Mr Boskoski owe a debt of $143,924.89 to the Commonwealth, being the amount of benefits he has received and to which he was not entitled?

1. Section 1223 of the Act provides that when a person obtains the benefit of a payment that the person was not entitled to for any reason, the amount of the overpayment is a debt due to the Commonwealth.
2. Mr Boskoski did not agree with the calculations of the debt made by Centrelink on the basis that he was a member of a couple during the relevant period. However he did not present any reason as to why these calculations were incorrect.
3. Based on the calculations included in exhibit R1 and the finding of the Social Security Appeals Tribunal I am satisfied that the amount of the overpayment received by Mr Boskoski in respect of the period 31 May 1995 to 26 January 2011 was $143,924.89. He owes this amount to the Commonwealth.

Issue 3: Is Mr Boskoski liable to pay the debt to the Commonwealth?

1. Section 1236 provides a debt may be written off in certain circumstances:

(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.

(1A) The Secretary may decide to write off a debt under subsection (1) if, and only if:

(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.

1. The section is clear that the debt may be written off only if one or more of the stated circumstances are made out. Mr Boskoski told the Tribunal that he was unaware that the Supreme Court had decided that the will leaving a substantial share of Mrs Lenart's estate to him was her last will. He said this notwithstanding that the Social Security Appeals Tribunal referred to the Supreme Court's decision in the reasons for decision sent to Mr Boskoski on 17 January 2014.
2. On this basis, I am not satisfied that any of the requirements for writing off the debt have been established.
3. Section 1237A provides that a debt may be waived if the debt is solely attributable to administrative error. There is no evidence to suggest that any such error occurred.
4. Section 1237AAD provides that the right to recover all or part of the debt may be waived in certain circumstances.

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 this Act, the Administration Act or the 1947 Act; 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.

It is to be noted that that each of the provisions of subparagraphs (a), (b) and (c) must be established.

1. I accept the argument put on behalf of the Secretary that Mr Boskoski knowingly failed to comply with his obligations under the Act to inform Centrelink from time to time of his changing circumstances and that he was living in a de facto relationship with Mrs Lenart. Further I am not satisfied that there are any special circumstances that make it desirable to waive the debt.

1. The decision under review, being the decision of the Social Security Appeals Tribunal made 12 December 2013 will be affirmed.

I certify that the preceding 89 (eighty-nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance

.......................[sgd].................................................

[2] The documents filed by the Secretary in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (Cth) were extensive. They are exhibit R1 in these proceedings.

[24] The categories to which the Tribunal referred were " the person's spouse" and "the person who has the care of the person (not a paid carer)" (p.820).

[41] [2006] FCA 735; (2006) 151 FCR 546 at paras 36-38.

[42] [2004] AATA 789.

[43] See Hartley and Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 470 at paras 40-41.