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

This matter concerned an appeal by Mr Davis regarding the commencement date of his Age Pension (AP) and the rate at which his Pension Bonus (PB) was paid. Mr Davis contended that he and his wife had separated in March 2003, despite continuing to reside together, and that his AP should have commenced earlier. The decisions under review affirmed the Department's decision to grant AP from 22 April 2015 and to pay PB as a member of a couple until 9 January 2014, and as a single person thereafter.

The legal issues before the Tribunal were to determine the effective date of Mr Davis's AP and whether he had been a "member of a couple" for the purposes of the Social Security Act 1991 (Cth) at any time since 2003. The definition of "member of a couple" under section 4(2) of the Act, and the criteria for forming an opinion on such a relationship under section 4(3), which requires consideration of financial, household, social aspects, sexual relationship, and the nature of commitment, were central to the determination. Section 4(3A) also stipulated that a de facto relationship could not be formed if the individuals were living separately and apart on a permanent or indefinite basis.

The Tribunal considered various pieces of evidence, including statutory declarations, departmental records, and the applicant's own statements. While Mr Davis claimed separation from 2003 and asserted a lack of physical contact or sexual relations with his wife, his earlier statements to the Department, particularly in 2011 and 2015, indicated he was married or living with his partner as a member of a couple. The Tribunal noted that the applicant had lodged an application for divorce in June 2016, which was granted in August 2016. Applying the criteria in section 4(3) of the Act, the Tribunal found that the evidence did not support Mr Davis's claim of separation in 2003 for the purposes of social security law.

The Tribunal affirmed the decision regarding the payment of Age Pension at the couple rate. However, it varied the decision concerning the Pension Bonus Scheme, finding that Mr Davis should be paid at the member of a couple rate from 10 January 2014, aligning with the date his marital status was considered to have changed for that specific scheme.