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

This matter concerned an appeal to the Administrative Appeals Tribunal (AAT) regarding decisions made by the Secretary of the Department of Social Services concerning social security benefits. The primary dispute revolved around whether Ms. Wang and Mr. Lam were members of a couple, and consequently, whether they were living separately and apart on a permanent or indefinite basis. The Tribunal was required to determine the nature of their relationship for the purposes of social security legislation.

The legal issues before the Tribunal included whether Ms. Wang and Mr. Lam were a couple within the meaning of the relevant social security legislation, and if not, whether they had been living separately and apart on a permanent or indefinite basis since their stated date of separation. Additionally, the Tribunal considered the implications of its findings on Mr. Lam's Austudy entitlement and the recoverability of debts owed by Ms. Wang to the Commonwealth, including whether these debts should be waived or written off.

The Tribunal considered evidence from both Ms. Wang and Mr. Lam, noting their marriage in 2005 and separation in July 2009 due to relationship difficulties. Despite the separation, they continued to have a sexual relationship, resulting in the birth of three children after the separation date. However, Mr. Lam stated he did not wish to resume the marital relationship and was living in the Northern Territory, while Ms. Wang and her children resided in Narre Warren South. The Tribunal found that, objectively, Ms. Wang and Mr. Lam had been living separately on a permanent or indefinite basis since their separation in 2009, and therefore, each was to be considered a single person and not a member of a couple.

Consequently, the Tribunal affirmed the decision in favour of Mr. Lam regarding his Austudy, finding that the cancellation of his benefits was based on the incorrect premise that he was a member of a couple living with Ms. Wang. For Ms. Wang, the Tribunal set aside the decisions under review, remitting the matters concerning her entitlements to Family Tax Benefit (FTB) and Parenting Payment (PP), and the recoverability of her debts, for reconsideration. This reconsideration was to be based on her status as a single person, with further updated detail regarding any special circumstances she contended applied.