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

This matter concerned a review by the Administrative Appeals Tribunal of a decision by the Secretary of the Department of Social Services regarding the Age Pension entitlements of Mr Breen. The dispute centred on whether Mr Breen had been underpaid his Age Pension because he was not advised that his wife was also eligible and that he was receiving a "couple's pension" at a reduced rate.

The Tribunal was required to determine two primary issues: first, whether the Department had failed in its administrative obligations to provide adequate advice and information to Mr Breen regarding his wife's potential entitlement; and second, whether Mr Breen had been wrongly advised that he was receiving only 50% of a couple's pension, and whether the discretion under section 24 of the Social Security (Administration) Act 1999 could be exercised to treat him as not being a member of a couple.

The Tribunal found that while the Department had a general obligation to provide accessible information, this did not create entitlements. Crucially, the Age Pension system operates on individual claims, and a claim is a prerequisite for payment. Mr Breen's ticking of the "no" box in response to whether his partner was also claiming Age Pension meant that no claim was made by Mrs Breen, and therefore she was not entitled to payment. Mr Breen's pension was correctly assessed as an individual pension, calculated by reference to his circumstances as a member of a couple, using Pension Rate Calculator A under section 55 of the Social Security Act 1991. Consequently, he was paid the correct amount based on the claim he made. The Tribunal also considered the alternative submission that the discretion under section 24 of the Administration Act be exercised to treat Mr Breen as not being a member of a couple, which would have resulted in a higher single rate pension.

The Tribunal was satisfied that Mr Breen had been paid the correct amount of pension in response to his claim, and that Mrs Breen was not entitled to payment until she made her own claim. The application for the exercise of discretion under section 24 was not granted.