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

This matter concerned a review of a decision regarding the rate of age pension payable to Mr Crem, a member of a couple. The Secretary of the Department of Social Services sought a further review by the Tribunal of a decision made by the Social Services and Child Support Division (SSCSD). The core of the dispute revolved around the application of section 24 of the relevant legislation, which allows for a discretion to be exercised in certain circumstances concerning the pooling of assets and the rate of pension payable to members of a couple.

The legal issues before the Tribunal were whether the SSCSD had erred in its interpretation and application of section 24 of the Social Security Act 1991 (Cth) and the associated departmental Guides. Specifically, the Tribunal was required to determine whether the Guides imposed an unlawful requirement that financial difficulty must be demonstrated before the discretion under section 24 could be exercised, and whether the circumstances of Mr Crem's case warranted the exercise of that discretion.

The Tribunal reasoned that the departmental Guides, while referring to financial difficulty, did not impose it as a mandatory pre-condition for exercising the discretion under section 24. Instead, the Guides identified considerations relevant to the exercise of discretion, including the ability to provide for basic necessities and the availability of funds from all sources. The Tribunal found that the SSCSD had erred in concluding that the Guides overreached the legislation by seeking to impose a requirement of financial difficulty. The Tribunal clarified that while an inability to pool resources is a significant factor that triggers the availability of the discretion, it is not solely determinative. The overall circumstances of the case must be considered to determine if there are "special reasons" for exercising the discretion, and these circumstances do not need to be markedly different or unique, but rather unusual, uncommon, or exceptional.