An investigation can be carried out as a result of a complaint or on the initiative (or own initiative) of the Ombudsman. A report can be drawn up if the ombudsman is of the opinion that the administrative action being investigated was illegal, unreasonable, unfair. The Social Security Act 1991 sets out two key classes of people who can be said to be members of a couple: those who are legally married and not separated, and those who are considered to be in a 'marriage-like relationship'.
Based on the difficulties that decision-makers apparently had in applying this aspect of social security law, the Office of the Ombudsman decided to conduct an ex officio investigation under Article 5(1)(b) of the Ombudsman Act of in 1976, into policy guidelines for the evaluation of marriages under the law. The inquiry was not intended to provide a comprehensive analysis of the policy of marriage-like relationships across the range of Commonwealth laws. The Ombudsman made the following recommendations to improve policy orientations in relation to marriage.
That the policy guidelines be amended so that the discretion under s 24 of the Social Security Act 1991 is not unduly hindered. Appendix A provides examples of the current Social Security payment rates and income and assets test limits for comparative purposes. In addition, whether a person is in a marital relationship or not affects the availability of the lake.
The submission noted the similarity between the definition of marriage-like relationship under the Social Security Act and the criteria used to assess a married couple or de facto couple under migration law.
P ART 2—T HE LEGAL AND POLICY FRAMEWORK
It seems pointless to deny that subjective conceptions of what is involved, as basic attributes of the marital relationship, will play a role in the required assessment. However, I do think it is important that the civil service or tribunals charged with the task at least take into account what the norm is for the applicant's peer group. Only in this way can legislation be fairly and equitably adapted to a multiracial and otherwise diverse society.8.
A decision as to whether a person is a member of a couple necessarily involves the exercise of the decision maker's judgement. The criteria to be considered in determining whether someone is in a marital relationship are rather complex, requiring the decision maker to use his or her judgment. In this way, the policy can be seen as an administrative mirror that reflects society's views.
Although the policy is not legally binding, it is a relevant consideration for the decision maker to determine whether a person is a member of a couple.9. It correctly states that there is no legislative definition of 'married and not divorced', or of 'marriage-like relationship'. Consequently, all the circumstances of the relationship, according to the five s 4(3) criteria, must be considered.
P ART 3—P ROBLEM AREAS
Due to the complexity of the issues involved and the wide discretion that decision-makers have in forming an opinion, the Office of the Ombudsman believes that good policy guidance for staff and adequate oversight of decision-making is necessary. In these cases, the focus is on the breakdown of the relationship rather than the physical separation. This illustrates that all the criteria in 4(3) are still relevant in considering the nature of the relationship.
He also points out the importance of considering all aspects of the relationship, including the influence of different cultural and religious backgrounds. Schools, kindergartens, sports organizations, etc. under no circumstances may contact be made as part of an investigation into a marriage-like relationship. Initially, the list of circumstances that would generally trigger further investigation into the nature of the relationship was removed.
Many of the cases involve situations where one member of the couple resides overseas or has recently arrived in Australia with no income. The format and application of new headings in the revised policy more clearly explains the special discretion provided in section 24 of the Social Security Act. The insurer's legal obligations make it inappropriate to exercise the discretion contained in § 24.
Consequently, a blanket prohibition on exercising discretion inappropriately (ie, illegally) limits the decision maker's freedom. Current policy guidance can specifically inform decision makers of the importance of this approach. That policy guidance be clarified to convey the importance, in making decisions under s 24, of having regard to the individual position of the person seeking the discretion as well as the position of the couple.
The guidance also states that as part of the review process, both parties may be interviewed and asked to provide additional information about their living arrangements. Although the evidence of the other party would generally be relevant, it is not necessary to make a decision whether a person is a member of a couple or not. The experience of the Ombudsman's office is that granting payment pending review is rare.
That the policies be changed so that when an individual seeks a review of a decision that he or she is a member of a couple, the delegate must consider the need for payment pending the outcome of the review. Due to the potential tensions in how the policy is applied across programs, the Ombudsman's office believes there is a role to play in ensuring consistency in how it is applied.
P ART 4—A GENCY COMMENTS ON RECOMMENDATIONS
Given that the Office is aware of several cases where the procedural guidelines do not appear to have been followed, it believes that the recommendations should apply and be reflected in the policy guidelines and procedural guidelines. Centrelink further suggested that the recommendation would add a new unnecessary level of review to the existing extensive review and complaints process already in place. In our experience, the individual first learns that his circumstances are being investigated during the above-mentioned personal or telephone interview.
The person may then be presented with a range of historical evidence that they have never seen or had the opportunity to examine closely, and are expected to respond to any allegations made during the interview. Centrelink said it would ensure that relevant references within existing procedures are sufficiently clear that a further investigation will only be launched if new evidence becomes available indicating a change in circumstances. DEWR also noted that Recommendation 7 referred to the receipt of 'new factual evidence' and that it considered that Centrelink should take appropriate action if the evidence was 'new' and 'factual'.
The office also agreed to its earlier suggestion that it consider setting up a panel of senior officers with a view to further approval. However, since the frequency of review of some marital relationships has been a continuing source of complaint, this office has considered some intervention by an independent, more senior officer who can address the costs to the agency caused by officers whose objectivity can be compromised, as well as to prevent unnecessary disruption for the individual. DEWR further noted that according to the Guide, the decision maker should not form an opinion that a person is a member of a couple unless sufficient evidence is available.
However, the recommendation was left unchanged because it requires decision-makers to consider approving the payment pending review.
A TTACHMENT A
Note: For Youth Allowance, Austudy and ABSTUDY, personal as well as parent income test limits may apply.
A TTACHMENT B
4(3A) The Registrar must not create the opinion that the relationship between a person and his partner is a relationship similar to marriage if the person lives separate and apart from the partner on a permanent or indefinite basis.
A TTACHMENT C