Fuller and Secretary, Department of Social Services (Social security) - [2025] ARTA 2051

Fuller and Secretary, Department of Social Services (Social security) [2025] ARTA 2051 (28 August 2025)

Applicant: Mrs Fuller

Respondent: Secretary, Department of Social Services

Chief Executive Centrelink

Tribunal Number: 2025/S194477

Tribunal: General Member A Shelley

Place: Canberra

Date: 28 August 2025

Decision:

The Tribunal sets aside the decision under review and remits the matter for reconsideration in accordance with the order that the applicant was not a member of a couple in the period 1 January 2015 to 23 September 2019.

CATCHWORDS

SOCIAL SECURITY – age pension – separated husband lived in applicant’s home after redundancy and declining health – decision that applicant partnered from then until husband moved into residential aged care, and debt raised – occasional, informal financial contributions and shared interest but no joint activities – inconsistent information of no separation or reconciliation given by applicant to Centrelink – developing but undiagnosed dementia at the time – straightforward evidence given by daughter with power of attorney – delay in applying for review does not preclude favourable decision – decision under review remitted

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been omitted from this decision and replaced with generic information pursuant to subsection 201(1A) of the Social Security (Administration) Act 1999.

Statement of Reasons

BACKGROUND

This is an application by Mrs Fuller, brought on her behalf by her daughter, [Mrs B], for the review of a decision made by Services Australia (Centrelink) to raise and recover a debt relating to age pension payments.
Mrs Fuller, now [Age] years old, has received age pension since 1996 on the basis that she has no partner.
On 1 January 2015, her husband ([Mr A]) – from whom she had separated many years earlier – moved into Mrs Fuller’s home.
That did not come to Centrelink’s attention, it seems, until 31 October 2019 (and Centrelink did not raise debts for much of 2020 due to the pandemic).
Centrelink’s internal records indicate that on 2 July 2021 an officer decided that Mrs Fuller had been partnered from 1 January 2015 until [Mr A] moved into residential aged care on 24 September 2019.
On 6 July 2021, Centrelink wrote to Mrs Fuller raising a debt of $26,989.38, representing the difference in age pension between what Mrs Fuller received and what she would have received had Centrelink treated her as partnered for the period 1 January 2015 to 23 September 2019.
On 9 September 2021, Mrs Fuller sought review of the decision to raise the debt.
On 14 December 2021, Centrelink’s authorised review officer (ARO) affirmed the decision to raise the debt, finding that the debt was correctly raised and that circumstances justifying waiver of the debt did not exist.
On 5 May 2025, [Mrs B], who has held an enduring power of attorney for Mrs Fuller since 2021, sought review by the Tribunal.
The matter proceeded to a hearing on 19 August 2025. [Mrs B] attended by phone and gave evidence.
Mrs Fuller, I was told, now experiences advanced dementia and is unable to participate in proceedings.
I had before me the hearing papers numbered 1 to 236. Following the hearing, I received a recording of a call between the ARO and Mrs Fuller on 13 December 2021, which Centrelink had intended to include with the hearing papers.

ISSUES

The issues in the application are:
· whether Mrs Fuller has a debt in the amount raised by Centrelink and, if so,
· whether the debt is recoverable, or whether there can be any write off (deferral) or waiver (cancellation).

CONSIDERATION

Does Mrs Fuller have a debt in the amount raised by Centrelink?

The rate of age pension is worked out using the Pension Rate Calculator A in section 1064 of the Social Security Act 1991 (the Act). In general terms, the rate of payment will be calculated by reference to a person’s income and by reference to their assets, and the lower amount will apply.
Under clause 1064-E2 of the rate calculator, a person’s income includes their partner’s income.
The rate of payment to a single person is also higher than the rate of payment to a member of a couple (see clause 1064-B1).
Subsection 4(2) of the Act provides for when a person is a member of a couple for the purposes of the Act. Under paragraph 4(2)(a), people who are legally married are members of a couple unless they are living separately and apart on a permanent or indefinite basis.
There is no legislative definition of ‘living separately and apart’,[1] but the Tribunal and its predecessor, the Administrative Appeals Tribunal (AAT), have consistently found that there are circumstances in which people who are married and who share a house are nonetheless living separately and apart. In Holmes and Secretary, Department of Social Security [1987] AATA 896 the AAT said:
The living situations of different people that could constitute separation "under the one roof" are too numerous to detail. At the least the evidence must satisfy the decision maker that a couple's lives are led separately, not only in the personal but also in the social and economic sense and that joint activity is not because of the existence of an exclusively binding relationship but for some material advantage. Commonly, in the quite numerous similar cases coming before this Tribunal, the reason for remaining under the one roof is the fact that the property is jointly owned and that division would be economically disastrous.
[1] In contrast to section 49 of the Family Law Act 1975, which makes it explicit that parties may be held to live separately and apart if they continue to reside in the same residence.
Subsection 4(3) provides that in forming an opinion about the relationship between 2 people for the purposes of paragraph 4(2)(a), the Secretary (whose powers are exercised by Centrelink officers) is to have regard to all the circumstances of the relationship, including, in particular:
(a) the financial aspects of the relationship, including:
(i) any joint ownership of real estate or other major assets and any joint liabilities; and
(ii) any significant pooling of financial resources especially in relation to major financial commitments; and
(iii) any legal obligations owed by one person in respect of the other person; and
(iv) the basis of any sharing of day-to-day household expenses;
(b) the nature of the household, including:
(i) any joint responsibility for providing care or support of children; and
(ii) the living arrangements of the people; and
(iii) the basis on which responsibility for housework is distributed;
(c) the social aspects of the relationship, including:
(i) whether the people hold themselves out as married to, or in a de facto relationship with, each other; and
(ii) the assessment of friends and regular associates of the people about the nature of their relationship; and
(iii) the basis on which the people make plans for, or engage in, joint social activities;
(d) any sexual relationship between the people;
(e) the nature of the people's commitment to each other, including:
(i) the length of the relationship; and
(ii) the nature of any companionship and emotional support that the people provide to each other; and
(iii) whether the people consider that the relationship is likely to continue indefinitely; and
(iv) whether the people see their relationship as a marriage-like relationship or a de facto relationship.
I come, then, to the facts of the case. [Mr A] passed away in 2022 and Mrs Fuller, as I have observed, has been unable to participate in the review due to dementia. She did, though, speak to the ARO (a matter I will return to).
[Mrs B], who is the youngest of [Mr A] and Mrs Fuller’s [children], was able to speak to the series of events and most, but not all, aspects of the relationship. She lived nearby and visited her parents frequently in the relevant period, 1 January 2015 to 23 September 2019, and her children – then teenagers – would sometimes stay over.
According to [Mrs B], the chronology of events is this:
·      [Mr A] and Mrs Fuller married in 1957, when Mrs Fuller was [Age] years old.
·      Their first house was in [Town 1] NSW, but at some stage [Mr A] took up work in [Town 2] NSW, about an hour’s drive away. The family lived in a worker’s cottage attached to the [workplace]. [Mr A] retained the house in [Town 1] and often stayed there instead of in [Town 2].
·      In 1992, [Mr A] was made redundant. On [Mrs B]’s account (and she was about 20 years old at that time), the relationship between her parents had been disharmonious and abusive. Having to leave the company accommodation and with no reason to stay in [Town 2], [Mr A] moved back to [Town 1] on an indefinite basis. By way of a property settlement, a house at [Address 1, Town 2], was purchased in Mrs Fuller’s name. [Mr A] lived there only briefly, if at all. [Mr A] and Mrs Fuller did not divorce.
·      [Mrs B] and most of her siblings stayed around the [Town 2] area. [Mr A] would visit from time to time. None of them ever lived at [Address 1]. [Mrs B] recalled that Mrs Fuller would stay with her quite often, when she had young children.
·      From about 2014, Mrs Fuller showed signs of the onset of dementia, though was not formally diagnosed for many years.
·      In 2015, [Mr A] had a heart attack. In the view of his children, he was not safe remaining in [Town 1] while he recovered. [Mrs B] and her siblings decided he was best off living at [Address 1], where he could be cared for by the family along with Mrs Fuller. He moved in there, despite Mrs Fuller’s objections – she had initially threatened to move out of her own home. [Mrs B] said that none of the sibship was prepared to have him in their own homes (in the context of significantly strained relationships, in some instances), despite the general agreement that he needed to be in [Town 2].
·      [Mrs B] said that the arrangement was to have been temporary. At times, [Mr A] temporarily returned to [Town 1]. However, [Mr A] lost his driver’s licence in 2016 and a few weeks later had a significant cerebrovascular accident. Unable to walk or drive, he stayed at [Address 1].
·      In 2019, [Mr A] suffered a bleed on the brain and did not fully recover. He was moved into residential aged care, expected to live only a few more months. (In fact, he lived until 2022.[2])
·      In about 2021, a geriatrician advised that Mrs Fuller was, in [Mrs B]’s words, ‘going downhill fast’ and needed to move into residential aged care. That happened soon after. [Address 1] was sold, and the proceeds used for an aged care bond. [Mrs B] said that Mrs Fuller no longer recognises family members.
[2] Page 162 of the hearing papers.
As noted by way of background, the debt has been raised because of the treatment of Mrs Fuller as a member of a couple from the date [Mr A] moved into [Address 1] to the date he moved into residential aged care.
At all times, and despite their apparent separation from 1992 to 2015, [Mr A] and Mrs Fuller remained legally married. That means that they were members of a couple unless, having regard to the factors set out in subsection 4(3) of the Act, they were ‘living separately and apart’.
[Mrs B] told me that Mrs Fuller has always owned the house outright. It had been purchased for something in the order of $130,000 to $170,000 out of [Mr A]’s redundancy monies. There was no sharing of financial resources, although [Mrs B] did not think there had been a shared bank account even before 1992. [Mrs B] could not identify any major purchases in the relevant period, 2015 to 2019. There had been bathroom renovations, but the family had done the work.
[Mrs B] said that the house had 3 bedrooms. Mrs Fuller had her own room. [Mr A] was moved into one of the other 2 rooms, and the remaining room was kept as a spare room. Grandchildren, including [Mrs B]’s children, might use it if they stayed over. Sometimes other relatives visited.
Household expenses were shared to some extent. If Mrs Fuller was shopping for food, which [Mr A] would eat, he was asked to contribute some money. There was no formal arrangement. To [Mrs B]’s knowledge, [Mr A] would otherwise pay only for support workers from [Service provider], who came to assist him with showering after the stroke.
[Mr A] did not contribute to housework. Mrs Fuller would do light cleaning including vacuuming. [Mrs B] and her sister would take on heavier work like mopping, and her brother would mow the lawns. [Service provider] workers could usually clean the bathroom.
Mrs Fuller would cook (though [Mrs B] said that it became dangerous for her to do so), and often cooked for [Mr A].
[Mrs B] said that there was no social side to the relationship, though she did not think there had been much of one before 1992. Sometimes [Mr A] and Mrs Fuller watched horse racing together on television which was a shared interest. They never went out together.
[Mrs B] said that Mrs Fuller had one close friend. Mrs Fuller’s friend frequently visited the house (and still visits Mrs Fuller in aged care) and understood the nature of the relationship. [Mr A] did not have any friends.
There are several documents in evidence that bear on [Mrs B]’s version of events:
·      On 15 January 2018, [Mr A] appointed Mrs Fuller as his enduring guardian, and [Mr C] ([Mrs B]’s brother) in the alternative.[3]
[3] Page 51 of the hearing papers.
·      On 26 October 2019, a MOD P (partner details) form was completed and signed by [Mr C] and co-signed by Mrs Fuller, which identifies Mrs Fuller as [Mr A]’s partner. The form says that [Mr A] and Mrs Fuller were not living together from 1992 to 2015.[4]
·      On 19 July 2021, Mrs Fuller signed (but likely did not complete) a request for review document.[5] That says:
I, Mrs Fuller, have not been living with or had any relationship with my husband, [Mr A], for well over twenty years. He left my residence at [Address 1, Town 2] and was never coming back. In January 2015 he was brought back here by my son as [Mr A] had a stroke also heart failure. When he was not in hospital he was cared for at my home by family and we had [Service provider] come and shower and dress him everyday. [Mr A] could do nothing for himself and I am too old to care for him by myself. He eventually left [Hospital] and was placed at [Aged Care] in [Town 2] as a permanent resident and has been there for almost two years. The only reason [Mr A] spent time back at my home was for care and compassionate reasons for my family.
- On 3 September 2021, a power of attorney for [Mr A] (which [Mrs B] said would have been [Mr C]) spoke to Centrelink.[6] [Mr C] indicated he had completed certain forms (presumably including the MOD P form) and done so incorrectly. Centrelink’s file note says (unedited):
Both customers are elderly and the son POA does all of the paper work. When customer first had his stroke the family the POA and the rest of the siblings decided to move their father (customer) to their mothers house so he can be looked after by them because he was incapacitated. This was decided as they could all take care of their mother and father at the same time so they moved them into the same house. Customer and ex wife have been separated for for well over 20 years. When son completed the forms for his mother to sign she just signed and was not aware of what she was signing, POA just completed forms becuase he did not read them correctly and becuase at the time when his father became ill they moved father to the same house as mother so he could care for them both, he completed them because they never really got a divorce and thought that becuase they were still leagally married that they were partnered.
- On 13 December 2021, the ARO spoke twice to Mrs Fuller (the first call was apparently about a concurrent debt owed by [Mr A], which is not before me).[7] I have listened to the recording of the second call. Mrs Fuller told the ARO that the contents of the July 2021 document were untrue and that she ‘had never heard so much rubbish’. She was not sure who had authored the document. She and [Mr A] had never separated. They had moved to [Town 2] after the [workplace] had closed down in [Town 3] (which is near [Town 1]). The ARO’s notes of the first call indicate that Mrs Fuller advised that [Mr A] lived separately sometimes but it was for work purposes, and not because the relationship was ‘broken’. The notes also say that [Mr A] sometimes stayed away to look after the house in [Town 1].
[Mrs B] said she was aware of the enduring guardian appointment. I put to her that it seemed incongruent with her evidence as to Mrs Fuller’s capacity at that time, let alone the nature of the relationship, that she would be appointed [Mr A]’s guardian. [Mrs B] agreed but could not shed light on [Mr A]’s decision-making. Ultimately, the document is of little probative value compared to more direct evidence of the nature of the relationship.
The MOD P form is also of limited value, noting its apparent author, [Mr C], sought to provide a more detailed explanation in the request for review form and in his call with Centrelink on 3 September 2021.
Inescapably, determination of the key facts comes down to whether [Mrs B]’s evidence to the Tribunal should be preferred over what Mrs Fuller told the ARO, in circumstances where I am unable to speak to Mrs Fuller and Mrs Fuller’s dementia was not yet formally diagnosed at the time of the call.
I find that [Mrs B]’s evidence is to be accepted. My main reason for that finding is that Mrs Fuller’s comments to the ARO make little sense. Centrelink accepts, based on the timeframe in respect of which the debt has been raised, that [Mr A] did not live at [Address 1] until 2015. Its records reportedly show that he lived at [Town 1] from at least 1999. The original decision to raise the debt was predicated on a finding that [Mr A] and Mrs Fuller must have reconciled (based largely on the MOD P form, the contents of which had not yet been clarified), not that they had made numerous false declarations about their marital status over a nearly 20-year period. Centrelink’s notes in connection with raising the debt refer to the historical evidence of [Mr A]’s address and their respective declarations as to marital status, none of which raises any suspicion that they were partnered from 1992 to 2015.[8]
[8] Page 152 of the hearing papers.
Mrs Fuller, though, told the ARO that there had never been a separation, not that there had been some reunification in 2015. That is out of step with the weight of evidence. It is also difficult to understand why [Mr A] would have travelled for work, when the [workplace] near [Town 1] had already closed down. There is an explanation for Mrs Fuller’s comments, which is that she was suffering from dementia, even though there is no medical evidence to that effect (where her dementia was not yet diagnosed).
[Mrs B]’s evidence was straightforward, not embellished and was plainly not preprepared. Her evidence was more or less consistent with what [Mr C] told Centrelink in 2021. I accept [Mrs B]’s evidence in relation to those matters where she was a witness to events.
Accepting [Mrs B]’s evidence, I readily find that [Mr A] and Mrs Fuller, while legally married, were living separately and apart at the relevant time. Having regard to the factors in subsection 4(3), there was not a marriage-like relationship in relation to finances, shared responsibility or socialisation. Most significantly, when looking at the nature of the relationship, the picture is one of convenience for the family, who had to work out how best to care for 2 ageing parents, and little else. Clearly, [Mr A] and Mrs Fuller, while legally married, were living separately and apart from 1992 to 2015. A rekindling of the relationship in 2015 would have required some consent or intention on their part. On the contrary, Mrs Fuller had, on [Mrs B]’s account, objected to [Mr A] moving in in the first place, and it was not intended or expected that the arrangement would last as long as it did. Those few factors pointing in the other direction (particularly that that Mrs Fuller sometimes cooked for [Mr A] and that they sometimes watched television together) are consistent with any sort of relationship where there is cohabitation.

The consequence of finding that [Mr A] and Mrs Fuller were living separately and apart is that Mrs Fuller was not a member of a couple. Where the debt was raised on the basis that she was, the decision under review must be set aside.
It is worth noting the 3.5 year delay between the ARO’s decision and [Mrs B] approaching the Tribunal for review of the decision. Section 147 of the Social Security (Administration) Act 1999 provides that there is no time limit to seek review (row 1 of the table in subsection (1)), but for some sorts of decisions an application for review after 13 weeks will mean that a person cannot derive a practical benefit from a favourable decision (row 8 of the table). [Mrs B] explained that the family had been unaware of the ARO’s decision, which appears to have been posted to Mrs Fuller (who, again, may have been experiencing dementia). In fact, the debt had been thought to have been resolved by [Mr C]’s contact with Centrelink in September 2021. Whatever the reason for the delay, it does not preclude a favourable decision being made for Mrs Fuller, because it is not a category of matter identified in row 8 of the table in subsection 147(1).

Is the debt recoverable?

In view of my finding that the debt should not have been raised, it is unnecessary to answer this question.

DECISION

Date(s) of hearing:	Tuesday, 19 August 2025
Representative for the Applicant:	[Mrs B]