Bota and Secretary, Department of Social Services (Social services second review)

This matter concerned an appeal by Mr Aurel Bota against a decision by the Secretary of the Department of Social Services to pay his Disability Support Pension (DSP) at the married rate rather than the single rate. Mr Bota had been receiving the DSP at the single rate since 2008. He married Elena Oli Bota in June 2015. Although they lived together initially, Mrs Bota relocated to Tweed Heads in November 2015 due to threats from neighbours, and they lived separately thereafter. Mr Bota notified the Department of his marriage in July 2015, and the Department initially exercised its discretion under section 24(1) of the *Social Security Act 1991* (Cth) to continue paying him at the single rate, citing potential financial hardship for Mr Bota given Mrs Bota's lack of independent means. However, the Department later reviewed this decision and changed his payments to the married rate from July 2016, on the basis that Mrs Bota had commenced employment and was therefore no longer considered to be without means, removing the basis for the section 24(1) discretion.

The Administrative Appeals Tribunal was required to determine whether Mr Bota should be treated as a member of a couple for the purposes of his DSP payments during the period from 18 July 2016 to 27 May 2018. This involved considering the definition of "member of a couple" under the Act and whether there were any special reasons to exercise the discretion under section 24(1) not to treat Mr Bota as such.

The Tribunal found that despite living separately for most of their married life, Mr and Mrs Bota maintained a mutual bond of companionship and emotional attachment, and their marital bond endured. Crucially, they pooled their financial resources, which the Tribunal considered to be a common practice among couples. Therefore, the Tribunal concluded that Mr Bota was a member of a couple for the relevant period. The Tribunal further held that there were no compelling circumstances to suggest otherwise or to enliven the discretion under section 24(1) of the Act.

Consequently, the Tribunal affirmed the decision under review, meaning Mr Bota's DSP would continue to be paid at the married rate.