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

This matter concerned appeals by Ms Brzozek and Mr Shaw against decisions by the Secretary, Department of Social Services, regarding their status as members of a couple for social security purposes. Ms Brzozek receives an age pension and carer allowance, while Mr Shaw receives an age pension. Both had previously lodged forms with the Department indicating they were separated but living under the same roof, providing reasons why they should not be considered a couple. The Department had initially made a determination that they were not members of a couple, but later reviewed this, and the appeals concerned the period around September 2017. The Administrative Appeals Tribunal (AAT) was required to determine whether Ms Brzozek and Mr Shaw were members of a couple for the purposes of the relevant social security legislation, and if so, whether the Secretary's discretion to determine they were not members of a couple was enlivened.

The Tribunal considered the provisions of section 4(6) and section 24 of the Social Security Act 1991 (Cth), which address when a person is not a member of a couple and the Secretary's power to make a determination to that effect. The legal issue involved assessing the circumstances of Ms Brzozek and Mr Shaw's relationship to determine if they were a couple, taking into account the criteria outlined in the Act and relevant case law. The Tribunal was required to form an objective opinion about their relationship, considering all the circumstances, not solely based on their own views but informed by them.

The Tribunal applied principles from cases such as *Re Cullinane* and *Re Sperring*, which emphasise that determining membership of a couple involves more than just sharing a common address and requires consideration of all circumstances, even if not all statutory criteria are met. The Tribunal noted that relationships can take many forms and that people are free to structure their domestic arrangements as they please. In this instance, the Tribunal found that the medical situation of Mr Shaw and independent evidence from his financial adviser were pivotal in its conclusion. The Tribunal set aside the reviewable decisions and substituted them with decisions that neither Ms Brzozek nor Mr Shaw were members of a couple on 18 September 2017.