The Commonwealth Ombudsman, Prof. John McMillan, today released a report on policy guidelines for assessing marriage-like relationships under the social security law.

‘Whether a person is a “member of a couple” can be an important factor in determining both their qualification for a social security payment and the rate of that payment’, said Prof. McMillan. ‘Centrelink decisions about whether or not a person is in a marriage-like relationship have been a consistent source of complaints to my office over a number of years.’

Prof. McMillan said that he initiated an investigation into the policy guidelines for assessing marriage-like relationships because of the difficulty faced by decision makers in applying this phrase in the social security law.

The law 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’.

In response to the commencement of the Ombudsman’s investigation, the Department of Families, Community Services and Indigenous Affairs (FaCSIA) conducted reviews of its guidelines relating to marriage-like relationship decisions. This resulted in significant changes to the information available to Centrelink assessors to support them in making decisions, greatly improving the potential for more consistent decision making.

‘As a result of FaCSIA’s amendments, our investigation focused on additional improvements we considered could be made to address the issues raised by complaints’, said Prof. McMillan. ‘The investigation was not intended to be an exhaustive analysis of marriage-like relationship policy across the range of Commonwealth laws.’

The Ombudsman made nine recommendations for improvements to the policy guidelines, including amendments to:

• convey the importance of individually considering both the person and the couple, and to ensure that decisions are not improperly fettered by rigid policy guidelines
• address procedural fairness—advise customers in writing of a proposed decision (including detailed reasons) and provide an opportunity to respond
• clarify that while it would be generally relevant to seek evidence from an alleged partner, there may be circumstances—such as domestic violence—where it is not appropriate to do so
• clarify that it is not mandatory to obtain evidence from independent professionals to reach a decision that a person is not a member of a couple
• ensure that consideration is given to continuing a payment pending the outcome of any review of a person’s circumstances.

The Ombudsman’s investigation involved:

• examining complaints received about marriage-like relationship decisions to identify areas causing administrative difficulties
• analysing the relevant legislative provisions in the social security law and case law interpreting those provisions
• reviewing current and revised FaCSIA policy guidelines for assessing marriage-like relationships. These policy guidelines were then examined in light of the legislation and case law.

Agencies with policy or administrative responsibilities relating to the application of marriage-like relationship concepts for social security related purposes were invited to comment on a draft version of the report. The agencies are Centrelink, the Department of Education, Science and Training, the Department of Employment and Workplace Relations, the Department of Human Services, the Department of Veterans’ Affairs, and FaCSIA.

All agencies are members of a Marriage-Like Relationship Working Group, which convened a meeting to discuss the contents of the Ombudsman’s report. The Ombudsman’s office recognises the important role this group has in ensuring consistent decisions across programs and noted a high level of consistency in the responses to the report.

The full report is available online().

Date of release: 18 October 2007