Taylor and Secretary, Department of Social Services (Social services second review) [2022] AATA 4378 (16 December 2022)

Last Updated: 20 December 2022

Taylor and Secretary, Department of Social Services (Social services second review) [2022] AATA 4378 (16 December 2022)

Division: GENERAL DIVISION

File Number(s): 2021/8494

Re: Andrew Taylor

APPLICANT

And Secretary, Department of Social Services

RESPONDENT

DECISION

Tribunal: Member Lee Benjamin

Date: 16 December 2022

Place: Brisbane

The Tribunal finds that the Applicant is a member of a couple for the purposes of the Social Security Act 1991 (Cth). The decision under review is affirmed.

............................[SGD].............................

Member Lee Benjamin

CATCHWORDS

SOCIAL SECURITY LAW — where the applicant maintains that he is not in a couple — meaning of “couple” — where the applicant provides no documentary evidence — decision affirmed

LEGISLATION

The Social Security Act 1991 (Cth)

The Social Security (Administration) Act 1999 (Cth)

CASES

Boscolo v Secretary, Department of Social Security (1999) 90 FCR 531; [1999] FCA 106

Boskoski and Secretary, Department of Social Services [2014] AATA 915

Crem and Secretary, Department of Social Services [2019] AATA 5520

Day and Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 415

Holt and the Secretary, Department of Education, Employment & Workplace Relations [2010] AATA 143

Kothe and Secretary, Department of Social Services [2020] AATA 3195

Lambe v Director-General of Social Services (1981) 4 ALD 362; [1981] FCA 200

Liang and Secretary, Department of Social Services [2015] AATA 275

McDonald v Director-General Social Security [1984] FCA 57

Melvin v Secretary, Department of Social Security [2016] FCA 375

Pelka v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2008) 102 ALD 22; [2008] FCAFC 92

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

Pencev and Secretary, Department of Families, Housing Community Services and Indigenous Affairs [2011] AATA 404

Purdie and Secretary, Department of Social Services (2013) 137 ALD 445; [2013] AATA 743

Kazmierczak and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] FCA 1084

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Re Hawkins and Secretary, Department of Social Security (1996) 44 ALD 651; [1996] AATA 927

Re Waterford and Director-General of Social Services (1980) 3 ALD 63

RFZX and Secretary, Department of Education, Employment and Workplace Relations and Anor [2010] AATA 35

Sperring and Secretary, Department of Employment and Workplace Relations [2007] AATA 1050

Stauton-Smith v Secretary, Department of Social Security [1991] FCA 513; (1991) 32 FCR 164

VBH and Secretary, Department of Family and Community Services [2006] AATA 1

Zablotsky and Secretary, Department of Social Services [2020] AATA 374

SECONDARY MATERIALS

Guide to Social Security Law

The Social Security (Administration) (class of Persons - Intent to Claim) Determination 2018

REASONS FOR DECISION

Member Lee Benjamin

16 December 2022

INTRODUCTION

1. The decision under review is the decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) dated 24 August 2021 (Exhibit 1, T2, p 10-29). On that date, the AAT1 affirmed the decision made on behalf of the Secretary, Department of Social Services, (the Respondent) on 14 July 2021 that Mr Andrew Taylor (the Applicant) was to be paid a disability support pension (DSP) rate in accordance with the partnered rate because he was a member of a couple with Ms Leigh Allan.

BACKGROUND

2. The Applicant has been in receipt of DSP since 4 June 2002 (Exhibit 2, T30, p 182).
3. On 15 June 2018, a decision maker found that the Applicant and Ms Allan were members of a couple from 20 May 2003. Before steps were taken to recalculate the Applicant's and Ms Allan's entitlement to their respective payments, they requested review of the member of a couple finding.
4. On 26 October 2018, an authorised review officer (ARO) affirmed the finding that the Applicant and Ms Allan were members of a couple from 20 May 2003.
5. On 1 February 2019 and 29 April 2019, the AAT1 found that it did not have jurisdiction to review the member of a couple findings as they were not decisions, but rather the findings were a "step along the way" to making rate decisions as to their past entitlement and subsequently raising debts for any overpayments.
6. On 20 February 2019, a decision maker decided that the Applicant:

   (a) had been overpaid DSP and Newstart Allowance in the amount of $80,649.24 for the period 20 May 2003 to 6 June 2018 (the overpaid amount);

   (b) the overpaid amount was a debt due to the Commonwealth (the debt); and

   (c) the debt was to be recovered (the 2019 debt decision).

7. A similar debt decision was made in respect of Ms Allan.
8. On 7 March 2019, a Separated Under One Roof (SUOR) form was lodged by Ms Allan (Exhibit 1, T14, p 70). In that form, she stated that she had been living "like housemates" with the Applicant since April 2012 (Exhibit 1, T14, p 73).
9. On 17 April 2019, an ARO affirmed the 2019 debt decision. The Applicant lodged an application for review of the 2019 debt decision in the AAT1.
10. On 9 June 2019, the Applicant lodged a "Relationship Details" form with Services Australia (the Agency) (T16). In that form, he declared that he had separated from Ms Allan since February 2013 and that he intended to live at the same property as Ms Allan "permanent possibly" (T16, 94). The Applicant declared that he was living in a caravan in the "garage area" and that he had a short-term loan with Ms Allan which occurred on October 2017; both made arrangements to repay the loan (Exhibit 1, T16, p 100).
11. On 13 December 2019, the AAT1 affirmed the 2019 debt decision (Exhibit 1, T21, p 116-140) (The 2019 AAT1 debt decision).
12. On 23 May 2020, a decision was made the Applicant's rate of DSP was to be calculated at the partnered rate on the basis that he was a member of a couple with Ms Allan (the 2020 rate decision). The decision maker noted this "SUOR assessment is in relation to the SS293 forms completed by both parties and uploaded in June 2019" and the assessment was conducted on the Applicant's "current circumstances" (Exhibit 1, T32, p 245).
13. On 22 October 2020, the Applicant lodged an application to extend time for the making of an application for second review of the 2019 AAT1 debt decision (the EOT application).
14. On 4 December 2020, this Tribunal refused the EOT application. Accordingly, the 2019 AAT1 debt decision remains the operative decision and that decision, including the period to which it relates, does not form part of this application.
15. On 28 June 2021, the Applicant requested a review of the 2020 rate decision, stating that he did not wish to provide any further material in support of his application (Exhibit 1, T29, p 165).
16. On 14 July 2021, an ARO affirmed the 2020 rate decision and found the Applicant was not separated under the one roof (Exhibit 1, T29, p 165-181).
17. On 19 July 2021, the Applicant lodged an application for review of the 2020 rate decision in the AAT1.
18. On 24 August 2021, the AAT1 affirmed the 2020 rate decision (Exhibit 1, T2, p 5-9). In its reasons for decision, the AAT1 found:

    (a) The 2019 AAT1 debt decision was not under review as part of this application (Exhibit 1, T2, p 6 at [2]);

    (b) The only matter before the AAT1 was "whether [the Applicant's] circumstances have changed such that he is no longer to be a member of a couple and therefore be paid his rate of disability support pension as a single person" (Exhibit 1, T2, p 6 at [3]); and

    (c) The Applicant "provided no evidence or information that his situation had changed since the previous AAT1 decision with the exception that he moved into a caravan at a friend's property some months ago. However, I do not find that this is sufficient to consider him no longer a [member of a couple]” (Exhibit 1, T2, p 8 at [16]).

19. On 7 September 2021, the Applicant lodged an application for further review of the 2020 rate decision in this Tribunal.
20. A Hearing was held by this Tribunal on 4 July 2022. At the Hearing, the Applicant was self-represented, appeared by telephone and gave evidence under affirmation. Separately, I note that the Applicant repeatedly told the Tribunal to “fuck off” during the hearing (for example, Transcript, p 25, lines 35-39). The Applicant also hung-up three or four times during the course of the hearing. The Tribunal reconnected the Applicant on each but the last occasion. The Respondent was represented by Ms Jasmine Forsyth of Mills Oakley, who appeared in person.
21. The materials before the Tribunal were voluminous, including a Tribunal Book numbering more than 2,500 pages.

ISSUES

22. The issues to be decided in this matter are whether:

    (a) The Applicant is a member of a couple with Ms Allan;

    (b) There is a special reason to treat the Applicant as not being a member of a couple with Ms Allan; and

    (c) The rate the Applicant's entitlement to DSP.

LAW

Legislative & Policy Framework

23. The relevant legislation in relation to these matters is found in the:

    (a) The Social Security Act 1991 (the Act);

    (b) The Social Security (Administration) Act 1999 (the Administration Act); and

    (c) The Social Security (Administration) (class of Persons - Intent to Claim) Determination 2018 (the Determination).

24. Policy advice contained in the Guide to Social Security Law (the Guide) is also relevant.^[1]

Rate of DSP

25. Section 117 of the Act provides that the rate of DSP is calculated in accordance with the Pension Rate Calculator found at s 1064 of the Act.
26. Section 1064-A1 provides a Method Statement for working out a person's maximum rate of payment and s 1064-A2 provides that where a person is a member of a couple, they will be treated as pooling their resources (income and assets) and sharing them on a 50/50 basis.
27. Step 5 to the Method Statement requires the income test found at Module E to be applied to determine the income reduction and step 9 requires the asset test found at Module G to be applied to determine the reduction for assets. Where a person is a member of a couple, Module E and Module G require the income and assets of the couple to be taken into account in order to calculate a person's rate of payment.

Member of a couple

28. Section 4(2) of the Act defines a "member of a couple" to include a de facto relationship.
29. Section 4(2)(b) of the Act provides:

    (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;

    (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.

30. As the Applicant and Ms Allan were not married during the relevant period, they can only be considered a member of a couple if they fulfil the criteria under subsection 4(2)(b) of the Act.
31. Section 4(3) sets out the criteria for forming an opinion as to whether a person is a member of a couple and provides:

    Member of a couple - criteria for forming opinion about relationship

    In forming an opinion about the relationship between two 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:

    (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, join 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.

Case law

32. According to the Respondent, the term “living separately and apart” requires the Tribunal to consider both physical and mental elements and the mental element is independent of whether the parties lived in the same house. The Federal Court in Melvin v Secretary, Department of Social Security [2016] FCA 375 said at [83]–[84]:

    It was open to the Tribunal on the evidence to find that the appellant lived at Pawlett Way from time to time during the first period. They lived neither separately nor apart on a permanent or indefinite basis. They physically lived together from time to time. That of itself is not determinative. The meaning of the expression "living separately and apart" was considered at length by the Full Court of the Federal Court in SZOXP v Minister for Immigration and Border Protection [2015] FCAFC 69; (2015) 231 FCR 1 at [43]- [58] albeit in the context of provisions of the Migration Act 1958 (Cth). There is both a physical and mental element involved and the mental element is independent of whether the parties lived in the same house. This cuts both ways. Characterisation of a relationship as not marriage-like may be reached even where the persons live in the same house.

    Moreover, the mental element supporting the existence of a marriage-like relationship may be inferred, despite the persons' subjective evidence to the contrary, as here, from objective circumstances including those set out ins 4(3)(a)-(e). The Tribunal by reference to all the circumstances of their relationship found that they were living during the first period in a marriage-like relationship. This being so, s 4(3A) was not engaged. (emphasis added)

33. In Kothe and Secretary, Department of Social Services [2020] AATA 3195 the Tribunal said:

    Fourth, the nature of a person's relationship with another is not determined by physical aspects of the relationship. Indeed, two people may comprise a couple despite a lack of ongoing physical proximity. In this regard, there is both a physical and mental element to the living separately and apart concept, with the mental element being independent of the physical one. Hence, for example, the maintenance of separate physical residences does not preclude a finding that the persons concerned are a couple. "What must be considered is not only whether the parties five separately, in physical terms, albeit under one roof, but also whether their de facto relationship (the consortium vitae) has broken down." (footnotes omitted)

34. The Tribunal in Zablotsky and Secretary, Department of Social Services [2020] AATA 374 applied RFD:

    In assessing any of these legislated criteria, a decision-maker must necessarily take into account the credibility of persons giving evidence, whether that be the parties themselves or those in a position to speak about them. As the Tribunal said in RFZX:

    In matters involving a determination of whether a person is a member of a couple or in a marriage-like relationship, an assessment of credibility is frequently of vital importance.

35. The Tribunal in Zablotsky (cited in paragraph 27 above) applied Day 'where objective evidence and subjective interpretation are not ad idem' at [79]
36. The Tribunal must consider all the circumstances of the case and make an objective assessment based on the evidence. In VBH and Secretary, Department of Family and Community Services [2006] AATA 1 the Tribunal stated (at [94]):

    The s 4(3) criteria does have some subjective components but it is overwhelmingly objective in nature and in construct. Additionally, the opinion formed about the relationship is not that of the parties to it, but the regard the Secretary is to have to its circumstances, including the criteria at (3). The opinion formed will be based on the whole of the circumstances of the relationship, viewed objectively.

37. The subjective views of the parties may also be relevant. In the matter of Boskoski and Secretary, Department of Social Services [2014] AATA 915, at [63], the Tribunal stated:

    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.

38. In Stauton-Smith v Secretary, Department of Social Security [1991] FCA 513; (1991) 32 FCR 164, O'Loughlin J stated (at [20]):

It is not suggested that this list is exhaustive nor will each of these subjects fall to be considered in every case. It must also be emphasised that a particular answer to a single subject will rarely, if ever, supply a final solution. The responsibility of the fact­ finding tribunal is to have regard to all the material facts of each case, treating the matters listed above only as indicators. The Tribunal will make its determination whether a particular man and woman are or are not living separately and apart only after assessing the totality of the evidence and other material that is before it.

39. In Sperring and Secretary, Department of Employment and Workplace Relations [2007] AATA 1050, the Tribunal stated (at [70]):

    ... being a member of a couple involves a lot more than sharing a common address. However, all the criteria need not be satisfied. In fact, one may satisfy few of them but still be considered to be a member of a couple. All of the circumstances need to be considered. Each matter is different.

40. The Tribunal observed in Day and Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 415, if the person's evidence is inconsistent with objective or independent evidence before the Tribunal, the Tribunal should generally place greater reliance on that objective/independent evidence.
41. Further, in RFZX and Secretary, Department of Education, Employment and Workplace Relations and Anor [2010] AATA 35, the Tribunal indicated that the assessment of a person's credibility is frequently of vital importance in determining whether a person is a member of a couple.

EVIDENCE AND CONTENTIONS

Applicant’s submissions and evidence

42. The Applicant’s application for review relevantly states (errors in original):

    Every where I have gone and lived in Australia I have lived on my own...

    I have had to put down on on the applications that I'm either married or single,because some companys will only take a single guy with no baggage,and others will only take a guy that has a family,pretty fucked hay [sic] (sorry),

    Or I had to put down I'm in a relationship because I don't want to be hit on by fellow female employees at where I worked at the present time,

    ...

    ...being in any relationship is just not my scine, [sic] I'm so sorry, I live in my caravan or shed and always have,

    ...

    If I was in a relationship with Leigh Allan my house would be in her name to [sic], BUT ITS NOT,it's just in my name only,it's got nothing to do with her what so ever, I've asked her to fuck off(sorry) and leave so many times,but she won't leave...

    ...

    There has never been a family day out from the day my kids where born, honestly,, because we are not a family,I can't handle being tied down at any stag [sic] of my life, I've tryed [sic] to have a girlfriend,but I just can't do it,

    I ASK THAT YOU READ THIS AND DON'T WAIST [sic] YOUR TIME AND MY TIME WITH A STUPID TRIAL WHEN ALL THE EVIDENCE YOU HAVE ABOUT ME DOSENT [sic] PROVE IN ANY SHAPE OR FORUM THAT I AM IN ANY RELATIONSHIP WITH ANYONE, IM TELLING YOU MYSELF THAT IM NOT IN ANY RELATIONSHIP,FOR FUCK SAKE, I ASK TO BE PUT BACK ON THE SINGLE RATE DISABILITY PENSION STRAIGHT AWAY AND TO BE FULLY REMBURSED [sic] ALL THE MONEYS IM [sic] OWED FROM 2018 TO 2021 FROM BEING ON A PARTNERD RATE AND I ALSO WANT COMPINSAITION [sic] FROM ALL THE LIES AMD BULLSHIT YOU ALL HAVE PUT ME THROUGH FOR NO REASON (Exhibit 1, T1, p 2-3)

43. The Applicant issued several emails to the Tribunal setting out his “evidence for the second level appeal.”
44. In the Applicant’s 7 December 2021 email to the Tribunal, he said (errors in original):

    ... for your fucking information, I've spent over 7 yrs in Melbourne Pentridge I would never be in any relationship with anyone including Leigh Allan, She is only the mother of my children...(Exhibit 2, A1, p 294)

    ...

    I'm a single guy and will always be a single guy,my house is in my name and my name only and not Leigh's...

    ...

    I don't want no stupid hearing as it's just waisting [sic] mine and everyone elses [sic] time, I've told Leigh to leave many times as we don't get on and never have and never will...

    ...

    You are the ones who are corrupt,not me,you are the ones who lied and not me, You have all discriminated me and put me down and call me a lier [sic],and yet none of you fucking no one thing about me or no me personally, apart from what's on ashitty pice [sic] of paper. (Exhibit 2, A1, p 294)

45. In the Applicant’s 5 January 2022 email to the Tribunal, he said (errors in original):

    !!!!My evidence of why I'm single!!!

    This is really none of your business,it is all privet [sic] and confidential to me only

    The thought of me being in any relationship with anyone makes me just sick,

    I just can't,

    How dare you tell me I'm in a relationship when I'm not and never have been and never could be, I injoy [sic] spending every day on my own in my caravan with my 2 dogs, like I did in jail Melbourne pentridge [sic] for 7 yrs,

    I've tryed [sic] to have a partner,but it just doesn't work,I'm just best being on my own......(Exhibit 2, A2, p 295-296)

46. In the Applicant’s 6 January 2022 email to the Tribunal, he said (errors in original):

    ...I am the victim here who has been wrongly accused of being in a shit relationship...

    ...

    I have no family, and my own 2 oldest daughters won't talk to me...(Exhibit 2, A3, p 301-302)

47. In the Applicant’s 7 January 2022 email to the Tribunal, he said (errors in original):

    Mate,I'm telling you now they are all dirty pigs and don't ever listen to me,I'm not in a relationship and that's final,I hope you red [sic] my last email, because this is how it is no matter what any of you think or say,ok

    There will be no hearing,there will be no trial ,there will be nothing , none of you are not going to be putting me through all your shit games anymore,it stops now,

    You can remburse [sic] me and compinsaite [sic] me for all the shit and drama you have all dragged me... (Exhibit 2, A4, p 304)

48. In the Applicant’s 28 Feburary 2022 email to the Tribunal, he said (errors in original):

    This fucking bitch has gone and put another Protection order against me again ...Leigh is not my partner, when will you idiots understand this,WHY are you all are trying to make me be in a relationship with someone when I'm happy being a single guy like I have been all my life... (Exhibit 2, A5, p 305)

49. At Hearing, the Applicant told me that the Tribunal has “got all my evidence there in emails, you’ve got my witness statement, you’ve got everything you need” (Transcript, p 9, lines 14–16) and that he relies on those submission (Transcript, p 13, lines 6–15).
50. In addition, the Applicant told the Tribunal that:
    • He had never been in a relationship, except having a few girlfriends.
    • He has never been in a relationship with Ms Allan.
    • He is not and has never otherwise been a member of a “couple” with Ms Allan.
    • He has four children with Ms Allan.
    • He and Ms Allan lived at the same address over the relevant period, at a property that the Applicant owns.
    • He accepted that he had taken out a loan with Ms Allan but claimed that it was “not as a partner” and that the loan application forms were wrong.
    • Ms Allan does not pay rent to him.
    • Ms Allan pays the electricity bill for the property. He pays the rates for the property.
    • He accepted that Ms Allan was caring for him in terms of helping with washing and cooking prior to the withdrawal of a carer payment.
    • Both he and Ms Allan have a join account at their child’s school.

Janet O’Farrell’s evidence

51. The Applicant called one witness, Janet O’Farrell, who had also provided a letter of support for the Applicant. Ms O’Farrell’s letter dated 8 March 2022 says (errors in original):

    I am writing in regards to Andrew Taylor and Leigh Allan to the best of my knowledge Andrew and Leigh [aren’t] living together as de facto they share the same children and are only co-habitating [sic] for the children sake. I do spent a lot of time at their hom [sic] and Andrew lives mostly in the caravan and have separate bedrooms. (Exhibit 2, A7, 313)

52. Ms O’Farrell told the Tribunal that the Applicant and Ms Allan are “not together as partners. That they are living singly and co-parenting their children.” Ms O’Farrell also said the Applicant and Ms Allan “have separate rooms and they don’t sleep together. They are single people.” When asked how she knows this, Ms O’Farrell conceded that her knowledge is based on what the Applicant and Ms Allan told Ms O’Farrell. (Transcript, p 43, lines 5–40)

Applicant’s closing submissions

53. The Applicant declined to make closing submissions. The Applicant disconnected from the hearing shortly after so doing.

Respondent’s submissions

54. The Respondent contends that, as found by the AAT1, the 2019 AAT1 debt decision is not under review in this application and the Respondent submits that the findings of fact made by that AAT1 should not be disturbed. The Respondent further contends that the only matter before this Tribunal is whether the Applicant's circumstances have changed following the period considered by the 2019 AAT1 debt decision such that he is no longer a member of a couple and, in turn, his entitlement to DSP should be calculated at the single rate. (Exhibit 2, R2, p 9 at [42])
55. The Respondent submits that the only evidence that the Applicant has provided since the 2019 AAT1 debt decision includes:

(a) A “Relationships Details” form lodged on 29 March 2021 which states that Ms Allan and the Applicant did not have a sexual relationship, jointly repaid the mortgage repayments of $1,200 per month, that they would continue to share meals together because the Applicant was unable to cook for himself due to his medical conditions, and that she would assist the Applicant to bathe; (Exhibit 1, T26, p 152-162)

(b) A handwritten letter by Janet O'Farrell dated 8 March 2022 stating that the Applicant was not living with Ms Allan as "de facto" and "...only co habitating for the children sake [sic]"; and

(c) A protection order dated 11 March 2022 which does not provide any information as to the Applicant's circumstances. (Exhibit 2, R2, p 9 at [43])

56. Accordingly, the Respondent contends that this Tribunal is in a comparable place to that faced by the AAT1 and there is insufficient evidence, and no objective evidence, that the Applicant's situation has changed. (Exhibit 2, R2, p 9 at [44])
57. The Respondent submits that the Tribunal should be approach the Applicant’s evidence with some caution if it is not supported by independent materials, particularly given his tendency to misrepresent his situation in a self-serving way. (Exhibit 2, R2, p 9 at [45])
58. The Respondent propounds that the position outlined by the Full Bench of the Federal Court in McDonald V Director-General Social Security [1984] FCA 57 is that (in the absence of statutory provisions to the contrary), there is no onus of proof in administrative law. However, a party asserting a claim (whilst addressing the requirements of a statutory provision) needs to ensure sufficient probative evidence is tabled to support the claim. Where the evidence tabled is insufficient for a decision maker to establish on balance if the claim is made out, the decision maker is to dismiss the claim. (Exhibit 2, R2, p 9-10 at [46])
59. The Respondent’s view is that the handwritten letter by Ms O'Farrell ought to be given no weight given that Ms O’Farrell’s admitted under cross-examination that her knowledge about the relevant matters was based on what the Applicant and Ms Allan told Ms O’Farrell about the same. (Exhibit 2, R2, p 10 at [47])
60. In summary, the Respondent’s position is that, on the weight of the evidence, the Applicant (1) remains a member of a couple with Ms Allan; and (2) his entitlement to DSP has been correctly calculated at the partnered rate in the period following the 2019 AAT1 debt decision. (Exhibit 2, R2, p 10 at [48])

Member of a couple

61. The Respondent’s submissions also address the relevant factors in making a finding as to whether the Applicant is a member of a couple and whether there is any special reason why the Applicant should not be treated as a member of a couple.

Financial aspects of the relationship

62. The Respondent concedes financial support from one party to another is not determinative but argues that it is nevertheless an important factor which can be assigned significant weight depending on the circumstances of the case.
63. In Re Waterford and Director-General of Social Services (1980) 3 ALD 63, the Tribunal discussed the significance of financial support when considering whether or not a person was a member of a couple at [16]:

    Finally, matrimonial law deals with the whole spectrum of relations within marriage. Here however, we are dealing with legislation the whole purpose of which is related to financial support, and while we are not inclined to agree, without the matter being fully argued, with those who contend that financial support is the sole determinative factor in these cases (see the very helpful article by M J Mossman "The Baxter Case: De Facto Marriage and Social Welfare Policy" (1977) 2 UNSW Law Jo 1) the answer to the question whether financial support is provided by the man with whom an applicant for a pension is alleged to be living on a bona fide domestic basis must be of very great significance. How can there be a real and genuine domestic basis to such a life unless such a basic feature of domestic life be present? (Exhibit 2, R2, p 10 at [51])

64. In Lambe v Director-General of Social Services (1981) 4 ALD 362; [1981] FCA 200 at [369], the Full Federal Court found that even though there was no support in the social security legislation that mutual financial support is the only or paramount consideration, "it is without doubt an important factor, the significance and weight of which will doubtless vary from case to case". (Exhibit 2, R2, p 11 at [52])
65. In Pelka v Secretary, Department of Family and Community Services (2006) 151 FCR 546; [2006] FCA 735 at [52], the Federal Court considered the meaning of the phrase "pooling of financial resources" in section 4(3)(a)(ii) of the Act:

    A relevant constructional question which arises under the first ground is the meaning of the term 'pooling of financial resources' in s 4(3)(a)(ii). The ordinary meaning of the word 'pool' in this context is set out in the New Shorter Oxford English Dictionary thus: 'Put resources into a common stock or fund; share in common, combine for the common benefit.' This, in my opinion, is the sense in which the noun 'pooling' is used in s 4(3)(a)(ii). It plainly involves something more than financial cooperation or separate contributions to different elements of household expense. (Exhibit 2, R2, p 11 at [53])

66. The Respondent asserts that no further objective evidence has been provided in respect of this criteria and the Applicant relies on the findings of the AAT1 in the decision dated 13 December 2019 that, "there are a range of financial factors which tie Ms Allan and Mr Taylor to each other and shows that they had the benefit of pooled financial resources" (Exhibit 1, T21, p 138). Of note, the Secretary refers to the Relationship Details form of both the Applicant and Ms Allan confirming that they each continue to repay the mortgage repayments on their property (Exhibit 1, T14, p 70-82; T19, p 110-113; and T26, p 152-162). (Exhibit 2, R2, p 11 at [55])
67. Overall, the Respondent contends that there is a financial relationship between the Applicant and Ms Allan and this circumstance is indicative of the Applicant being a member of a couple.

Nature of household

68. The Respondent identified that the Applicant continues to argue that he is not a member of a couple as he is living apart from Ms Allan in a caravan (at the same location as Ms Allan). In support of this argument, he provided a letter from his neighbour, Ms O'Farrell which stated that the Applicant was not "de facto" with Ms Allan. The Respondent contends, however, that this evidence alone is inadequate to properly determine the extent of the nature of the household. The Respondent relies on the findings as set out in the AAT1 decision on 13 December 2019. That is:

    Ms Allan and Mr Taylor have argued that they live separately, with her children in the house, and him living in a large shed outside with a camper van to provide facilities such as a fridge, stove and bed. However, this was contradicted by the record of what was found when the police executed a search warrant. (Exhibit 1, T21, p 138)

69. In circumstances where the Applicant maintains that he lives apart from Ms Allan, and that argument was proven to be inconsistent with his actual living circumstances, the Respondent contends the Tribunal should treat the Applicant's statements carefully and place greater weight on objective independent evidence (Day). (Exhibit 2, R2, p 12 at [57])
70. The Respondent contends that this circumstance is suggestive of the Applicant being a member of a couple.

Social Aspects of the relationship

71. The Respondent has identified that the Applicant has not provided any objective evidence in respect of this criteria and the Respondent relies on the findings as set out in the AAT1's decision dated 13 December 2019. That is,

    there is substantial evidence of both of them signing documents and representing each other as partner, or wife or de facto, not only to external parties but to each other and to their children" (Exhibit 1, T21, p 139). (Exhibit 2, R2, p 12 at [60])

72. The Respondent contends that this circumstance is suggestive of the Applicant being a member of a couple.

Sexual relationship

73. The Respondent submits there is no evidence of a current sexual relationship but that this factor alone is not indicative of the Applicant not being a member of a couple. (Exhibit 2, R2, p 12 at [62])

Nature of commitment to each other

74. The Respondent notes the Applicant has failed to offer any further objective evidence in respect of this criteria and in the circumstances. The Respondent relies on the findings as set out in the AAT1's decision dated 13 December 2019. That is, the Applicant and Ms Allan have a "long and continuing commitment to each other”. In this regard, the Respondent notes Ms Allan's "Relationship Details" form dated 29 March 2021 confirms that she continues to provide daily care to the Applicant and will provide support in times of "personal crisis" (Exhibit 1, T26, p 156). (Exhibit 2, R2, p 12 at [63])
75. In Pelka v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2008) 102 ALD 22; [2008] FCAFC 92 the Full Federal Court relevantly stated at [30]:

    ...The essential requirement of the provision, however, is that the decision maker must have regard to the nature of the commitment of two people to each other. It is clearly relevant to that matter to have regard to the fact that a commitment that each of those persons has to each other is different from the commitment that each person has to any other person. The fact that the commitment that Ms Pelka had to Mr Kuhl was qualitatively different from the commitment that Ms Pelka had to any other person is from the commitment that Ms Pelka had to any other person is clearly relevant to the nature of her commitment to Mr Kuhl. The same reasoning applies in relation to the commitment of Mr Kuhl to Ms Pelka... (Exhibit 2, R2, p 13 at [64])

76. The Tribunal in Pencev and Secretary, Department of Families, Housing Community Services and Indigenous Affairs [2011] AATA 404 stated that mutuality of commitment has to be mutual at [61]:

Overall, it is the absence of mutuality that most characterises the relationship. It is this absence of mutuality, in respect of financial contribution, effort contributed to the maintenance of the household and the support of the children, consistent presence and commitment to the household and to the relationship itself, that leads me to conclude that the relationship between Mr and Mrs Pencev was in essence one of living separately and apart under the same roof. (Exhibit 2, R2, p 13 at [65])

77. The Respondent contends this circumstance is suggestive of the Applicant being a member of a couple.

Summary

78. The Respondent submits that the documented objective evidence is inconsistent with the Applicant's statements that he is not a member of a couple with Ms Allan. Accordingly, the Respondent contends that in accordance with the principle in Day, the Tribunal can be reasonably satisfied the Applicant is a member of a couple with Ms Allan. (Exhibit 2, R2, p 13 at [67])
79. In addition, consistent with the principle in RFZX cited above, the assessment of the Applicant's credibility will be of vital importance in determining whether he was a member of a couple during the relevant period. (Exhibit 2, R2, p 13 at [68])
80. The Respondent contends that:
    • the Tribunal should be cautious of accepting the Applicant's evidence if it is not verified by independent evidence, especially given his propensity to misconstrue his situation in order to benefit himself. (Exhibit 2, R2, p 13 at [69]); and
    • the Tribunal, should on an objective view of the evidence before it, be satisfied that the Applicant is a member of a couple for the purposes of determining his entitlement to DSP. (Exhibit 2, R2, p 13 at [70])

Special reason

81. Section 24(1) of the Act confers a discretion on the Secretary to determine in writing that a person who is legally married to another person is not to be treated as a "member of a couple" for s 4(2) purposes, if the Secretary is satisfied that some "special reason" exists in that particular case. Section 24(1) relevantly provides:

    Person may be treated as not being a member of a couple (subsection 4(2))

2. Where:

   a) a person is legally married to another person; and

   b) the person is not living separately and apart from the other person on a permanent or indefinite basis; and

   c) the Secretary is satisfied that the person should, for a special reason in the particular case, not be treated as a member of a couple; and

   the Secretary may determine, in writing, that the person is not to be treated as a member of a couple for the purposes of this Act

82. The effect is that the person is treated as single, so he or she can receive the higher single rate of a pension or benefit and is unaffected by the income or assets of the partner. (Exhibit 2, R2, p 14 at [72])
83. The expression "special reason" is not defined in the Act. The Federal Court of Australia observed in Boscolo v Secretary, Department of Social Security (1999) 90 FCR 531; [1999] FCA 106 that although the s 24 discretion is "not lightly to be enlivened” that “does not require that the case be extremely unusual, uncommon or exceptional”. Instead, the test is whether the circumstances meet “the requirement.... that there be something unusual or different to take the matter the subject of the discretion out of the ordinary course”. In other words, s 24 is intended as a provision of last resort and should only be applied when all other reasonable means of support have been exhausted. (Exhibit 2, R2, p 14 at [73]–[74])
84. The expression "special reason" must be interpreted in the context and consistent with the scope and purpose of the Act. That context and purpose was explained in the Explanatory Memorandum to the Social Security Legislation Amendment Bill (No 4) 1991 (Cth), which relevantly provided (at 17):

    there is justification in paying a higher rate to an unpartnered person than to a member of a couple if both members of the couple are living together. This justification is based on the premise that the unpartnered person does not enjoy the economies of shared living costs as does the member of a couple in those circumstances. If the economies of scale are not available to the member of the couple because, for example, of the illness of one or both members of the couple, then each would face similar living costs as an unpartnered person. (Exhibit 2, R2, p 14 at [75])

85. This justification was expanded in Re Hawkins and Secretary, Department of Social Security (1996) 44 ALD 651; [1996] AATA 927 (at 652) as follows:

    The evident policy behind the relevant legislative provision is that ordinarily couples should be expected to pool their resources and practise economies of scale; that those expectations should not apply to couples who are separated by illness or imprisonment; but that there would have to be some special reason not to apply those expectations to members of other couples. (Exhibit 2, R2, p 14-15 at [76])

86. In Pelka v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2008) 102 ALD 22; [2008] FCAFC 92, the Full Federal Court commented at [30] on what regard the decision maker should have to the nature of two person's commitment to each other for the purposes of determining whether or not the persons were members of a couple. (Exhibit 2, R2, p 15 at [77])
87. In Holt and the Secretary, Department of Education, Employment & Workplace Relations [2010] AATA 143 at [29]- [30], the Tribunal found that caution should be exercised about reliance on cases which deal with the meaning of "special circumstances":

    There has been a tendency in the cases to treat the expression 'for a special reason in the particular case' in section 24(1)(c) as being equivalent to the expression 'special circumstances' used elsewhere in the Act. Undoubtedly, both expressions - 'special circumstances' and the 'special reason in the particular case' - do grant a wide discretion to the decision-maker. Nonetheless, choice of a different expression when it could have been expected that another, well used expression of similar import would suffice, indicates a legislative intention to differentiate between the two. On that basis, some caution should be exercised about relying on the cases which deal with the meaning of 'special circumstances. The Tribunal notes that there appears to be a division of opinion in the cases as to whether the two expressions are equivalent, as is indicated in the Guide to Social Security Law at (24.05).

    The Tribunal's concern about eliding the two expressions is that a number of the cases and the Guide import a requirement that whatever the 'special reason', it must be 'outside the couple's or individual's control and cannot be changed'. The quotation is taken from the Guide to Social Security Law (Guide) at 2.2.5.50, which relates to the discretion in section 24 to treat a person as not being a member of a couple for a special reason. This additional criterion would appear to have originated from the tests for 'special circumstances' which in two of the 'special circumstances' provisions in the Act contain a requirement that not only must there be 'special circumstances' but they must be 'beyond the person's control'. No such criterion is written into the 'special reason in the particular case' provisions in the Act. For that reason, caution should be exercised about importing any such requirement. (Exhibit 2, R2, p 15-16 at [78])

88. These observations in Holt's case were approved by the Federal Court in Kazmierczak and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] FCA 1084 at [39]- [42]. In these paragraphs, the Court found that there is a particular focus under the Act "on the practical ability of the resources of the partner being available for pooling with the resources of the person holding the pension". (Exhibit 2, R2, p 16 at [79])
89. In this case, there is evidence that the Applicant and Ms Allan were not prevented from pooling their resources and in fact, did so.

Application of the Guide

90. In chapter 2.2.5.50 of the Guide to Social Security Law (titled - "Discretion to Treat a Person as Not Being a Member of a Couple for a Special Reason") (the Guide), the discretion should only be exercised where a full consideration of all the circumstances relevant to the individual's case would make it "unjust or unreasonable" not to do so. (Exhibit 2, R2, p 16 at [81])
91. Deputy President Hack in Purdie and Secretary, Department of Social Services (2013) 137 ALD 445; [2013] AATA 743 was not persuaded that subsection 24(1) poses three questions:

    I turn then to the question of whether there is a special reason in the circumstances of this case to treat Mr Purdie as not being a member of a couple. The Secretary's submissions point to the departmental policy guide for the application of this discretion. That guide suggests that three questions need to be considered as part of an assessment of the application of s 24. Those questions are - is there a special reason to be considered in this couple's circumstances? Is there a lack of being able to pool resources for the couple as a result of the circumstances? Is there financial difficulty as a result of the couple's circumstances? For my part I remain unpersuaded that the section poses three questions. It seems to me the section poses only one question - is there a special reason to treat Mr Purdie in the present case as not being a member of a couple. It may well be that the inability to pool resources informs the policy reason for the insertion of s 24 in the Act but the requirement to consider financial difficulty, whilst no doubt relevant in many cases, is not something that I see dictated by the plain words of the statute. (Exhibit 2, R2, p 16-17 at [82])

92. Senior Member Taylor in Liang and Secretary, Department of Social Services [2015] AATA 275 at [29] essentially agreed with the above views of Deputy President Hack in Purdie. (Exhibit 2, R2, p 17 at [83])
93. The Tribunal in Crem and Secretary, Department of Social Services [2019] AATA 5520 (Crem) stated:

    The Guides then provide that all the circumstances of the recipient must be taken into account and three questions are to be considered. It is of significance, in my view, that the Guides merely identify considerations as part of the assessment of all the circumstances. One of the three questions is - "is there financial difficulty as a result of the couple's circumstances?"

    Expressed in the manner it is, the third question does not impose a mandatory pre­ condition of financial difficulty for exercise of the discretion. Instead, it identifies financial difficulty as a potentially relevant consideration of the overall circumstances to be taken into account. This is entirely consistent with the purpose of s 24 in the context of the system of social security provided for by the Act.

    Further, the Guides contain a section headed "Is there financial difficulty as a result of the couple's circumstances?" This section of the Guides refers to the financial situation as a consideration, as distinct from a pre-requisite, and in this context the notion of readily available funds from assets when compared to expenditure is mentioned. The terms of the Guides are entirely consistent with the object of the system of social security provided for under the Act.

    Availability of the exercise of the discretion exists in the context of the purpose of the social security system, where its recipients are subjected to relatively less favourable financial circumstances. Accordingly, the recipient's personal finances are relevant, as is the overall financial situation in which the recipient is in. Therefore, in my view, there is no excess of reach or power in the Guides when they refer to financial difficulty as a consideration involving:

    1. if there is inability to provide accommodation and the basic necessities of life;

    2. being left without adequate means of support; or

    3. that income and readily available funds from all sources should be taken into account.

    In my view, the terms of the Guides do not provide an absolute or mandatory requirement that financial difficulty must exist before the discretion pursuant to s 24 can be exercised. Rather, they identify questions that need to be considered. However, those questions are not expressed to be exhaustive or individually determinative, including the question concerning financial difficulty. (Exhibit 2, R2, p 17 at [84])

94. The Guide also provides that:

    There must be some degree to which circumstances are outside the couple's or individual's control and cannot be changed.

    Explanation: If it is reasonably within the individual or couple's control to improve their circumstances without section 24, generally this should be explored first. (Exhibit 2, R2, p 17-18 at [85])

95. In Liang (cited above) the Tribunal endorsed the questioning of the significance of characterising a decision as "voluntary"' in Holt. The Tribunal added that it was also important to identify the person actually responsible for such a decision: at [27] (Exhibit 2, R2, p 18 at [86]).
96. Overall, the Respondent submits that there is no special reason why the Applicant should not be treated as a member of a couple on his circumstances. There is no evidence that he was and is unable to pool resources with Ms Allan, or that he faced financial difficulties beyond that which is typical for many social security recipients in challenging conditions.

Rate of DSP

97. The Respondent submits the applicant's entitlement to DSP is to be calculated on the basis that he is a member of a couple and there is no special reason why he should not be treated as a member of a couple. (Exhibit 2, R2, p 18 at [88])
98. Accordingly, the Applicant's entitlement to DSP is to be calculated in accordance with the rate calculator found in s 1064 of the Act, at the partnered rate. The Applicant has not disputed any other aspect of the rate decisions made since the 2019 AAT1 debt decision and in those circumstances the Respondent, contends the Applicant's rate of DSP has been correctly calculated. (Exhibit 2, R2, p 18 at [89])

CONSIDERATION AND CONCLUSION

99. In considering the issues before this Tribunal, I have had regard to the evidence and submissions placed before it in writing and made at the hearing. Save for my comments below, the evidence before this Tribunal was practically identical to that which was available to the preceding decision-makers.
100. The Applicant gave evidence written and oral evidence before this Tribunal, and was cross-examined. In my view, the Applicant presented as a deeply unimpressive witness. His written and oral evidence largely consisted of repeating, frankly, unbelievable assertions that he had “never” been in a relationship with Ms Allan. Generally, I do not accept the Applicant’s written and oral evidence as credible. I further find the Applicant’s evidence to be completely inconsistent with the vast trove of documentary evidence tendered to this Tribunal and referenced in the Respondent’s submissions which, in my view, corroborates that the Applicant and Ms Allan were a member of a couple for the purposes of the Act.
101. Ms O’Farrell provided written and oral evidence before this Tribunal, and was cross-examined. I do not accept Ms O’Farrell’s evidence as to the relationship status of the Applicant and Ms Allan to be credible. I reach this conclusion because Ms O’Farrell admitted that her evidence was based on what the Applicant and Ms Allan had told her about their relationship, rather than on independent observation of the relationship.
102. Accordingly, this Tribunal is in a similar position to that faced by the AAT1. In my view, there is insufficient credible objective evidence that the Applicant's circumstances have changed since 2019 AAT1 debt decision. The Applicant continues to be a member of a couple and, in turn, his entitlement to DSP should be calculated at the couple rate.
103. Accordingly, I do not consider it necessary to work through each of the section 4(3) of the Act factors because, having considered the matter objectively as a whole, I can easily reach a conclusion to the fundamental issue in contention: the Applicant is a member of a couple with Ms Allan in the relevant period 2020 rate decision period. The Applicant’s entitlement to DSP is to be calculated on the basis that he is a member of a couple. I find there is no special reason why he should not be treated as a member of a couple.
104. As a final point, I wish to place on record my sincerely thanks to Respondent’s representative, Ms Jasmine Forsyth of Mills Oakley, for her professionalism, patience and determination in making submissions and assisting this Tribunal under very difficult circumstances at the hearing.

DECISION

105. For the reasons set out above, this Tribunal finds that the Applicant is a member of a couple with Ms Allan during the 2020 rate decision period, under section 4 of the Act. Consequently, this Tribunal finds that the Applicant’s correct rate of DSP is the couple rate.
106. This Tribunal affirms the decision under review.

I certify that the preceding 106 (one hundred and six) paragraphs are a true copy of the reasons for the decision herein of Member Lee Benjamin

.................[SGD].........................
Associate

Dated: 16 December 2022

Date of Hearing:	4 July 2022
Applicant:	By Microsoft Teams
Solicitors for the Respondent:	Mills Oakley Lawyers

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^[1] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.