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

This matter concerned appeals by Ms Kothe against two decisions of the Secretary of the Department of Social Services. The first decision, made on 27 July 2018, concerned an alleged debt of $86,779.23 for overpayment of the age pension between 21 February 2012 and 5 February 2018, on the basis that Ms Kothe was a member of a couple and had incorrectly received the single rate of pension, and had failed to declare earned income. The second decision, made on 12 February 2018, concerned an alleged debt of $198.03 for overpayment of family tax benefit between 1 July 2014 and 23 July 2014, on the basis that Ms Kothe was a member of a couple during that period. The court was also required to consider a third decision, made on 12 February 2018, which changed Ms Kothe's age pension payment to the partnered rate from 14 February 2018, and a subsequent purported variation of this decision on 23 March 2018.

The primary legal issues before the court were whether Ms Kothe was a member of a couple during the relevant periods for the purposes of receiving the age pension and family tax benefit, and whether any debt arising from overpayments should be written off or waived. Specifically, the court had to determine if Ms Kothe was living separately and apart under the one roof, and if there were any special reasons not to treat her as a member of a couple. The court also considered the validity of the family tax benefit payments and whether any debt had actually accrued to the Commonwealth.

The court found that Ms Kothe was not a member of a couple for the purposes of the age pension during the period from 21 February 2012 to 5 February 2018, and therefore was entitled to the single rate of pension. The court also determined that Ms Kothe was not a member of a couple for the period of 1 July 2014 to 23 July 2014, and that the family tax benefit payments made to her were not in excess of her entitlements, meaning no debt was owed to the Commonwealth. The court reasoned that the evidence did not establish that Ms Kothe was living as a member of a couple during these periods, and that the failure to disclose income was not a basis for treating her as a member of a couple.

Consequently, the court set aside the decision concerning the age pension debt and remitted the matter to the Secretary with a direction to determine that Ms Kothe was not a member of a couple during the relevant period and that no debt was owed. The court also set aside the decision concerning the family tax benefit debt and substituted a decision that no debt was owed to the Commonwealth.