Lewis-Taylor and Secretary, Department of Social Services (Social services second review)

Lewis-Taylor and Secretary, Department of Social Services (Social services second review) [2021] AATA 3054 (26 August 2021)
Division:GENERAL DIVISION
File Number(s): 2021/1011
Re:Benjamin Lewis-Taylor
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:26 August 2021
Place:Sydney

The decision under review is set aside and substituted with a decision that the Applicant was entitled to be paid the Disability Support Pension at the partnered rate from 18 October 2014 to 8 November 2019 and at the single rate from 9 November 2019.
.................................[sgd]......................................
Chris Puplick AM, Senior Member
CATCHWORDS
SOCIAL SECURITY – Disability Support Pension – whether the applicant should have been paid DSP at the single or partnered rate – when was the applicant considered a “member of a couple” for the purposes of the Act – whether the applicant is living separately and apart on a permanent and indefinite basis – decision set aside and substituted
LEGISLATION
Social Security Act 1991 (Cth) ss 4 and 24
CASES
Boskoski and Secretary, Department of Social Services [2014] AATA 915
Hawkins and Secretary, Department of Social Security [1996] 44 ALD 651
Lambe v Director-General of Social Services [1981] 4 ALD 362
Pelka v Secretary, Department of Family and Community Services [2006] FCA 735
Staunton-Smith v Secretary, Department of Social Security (1991) 25 ALD 27
SECONDARY MATERIALS
Explanatory Memorandum, Social Security Legislation Amendment Bill (No 4) 1991 (Cth)
REASONS FOR DECISION
Chris Puplick AM, Senior Member
26 August 2021

The matter before the Tribunal requires a determination as to whether Mr Benjamin Lewis-Taylor (the Applicant) is entitled to be paid the Disability Support Pension (DSP) at either the single or the partnered rate. The issue of the Applicant’s eligibility for the DSP itself is not in issue.
The Applicant was granted the DSP on 29 February 2012 and has been in receipt of it since that date. On 13 October 2020 the Secretary, Department of Social Services (the Respondent) made a determination, following a review of the Applicant’s position that he should be paid at the partnered rate rather than the single rate as had been the case to that date.
The Applicant sought a review of that decision which was then confirmed by an Authorised Review Officer (ARO) of the Department on 10 November 2020. On 19 November 2020 the Applicant sought a further review of the determination by the Social Services and Child Support Division of this Tribunal (AAT1) which, on 3 February 2021 affirmed the ARO’s decision.
On 19 February 2021 the Applicant sought a review of the AAT1’s decision in this Tribunal where the matter was heard on 30 July 2021. The hearing took place using the Microsoft Teams Platform in accordance with the Tribunal’s COVID-19 protocols.
CRITICAL RELATIONSHIP DATES
·On 29 February 2012, the Applicant, then known as Mr Benjamin Lewis, was granted the DSP.
·On 30 July 2013 the Applicant commenced living at an address in Gillieston Heights, NSW.
·On 11 November 2013 the Applicant provided information (via a Rent Certificate) to the Department[1] to the effect that a person described as a “friend” of his had commenced living at the same home as himself and had moved in together with him in September 2013. In that correspondence the Applicant advised that his friend, Mr Rohan Taylor and he were sharing the rent costs of their home on a 50/50 basis, each paying $395.00 per fortnight.
·On 19 September 2018 the Applicant lodged a Rent Certificate with the Department which notified that he and Mr Taylor had moved to a different property in Gillieston Heights which they occupied as “shared accommodation”. The Certificate[2] also indicated that the Applicant was the tenant of the property and that he was paying $395.00 per fortnight to Mr Taylor who was the owner/landlord of the property.
·On three occasions (October-November 2014; February-March 2016 and January 2019) both Mr Lewis and Mr Taylor travelled overseas together leaving and arriving back on the same dates. In evidence the Applicant confirmed that the parties travelled together, shared a room together and shared expenses for the trips. The January 2019 trip was described as their “honeymoon” and they went to Thailand to get suits made for their wedding.
·On 14 February 2019 the Applicant and Mr Taylor formally married each other in Australia and on 12 April 2019 the Applicant changed his surname to Lewis-Taylor.
·On 8 November 2019 the Applicant and Mr Taylor separated, and the Applicant advised the Department of this on 18 November 2019. The Applicant also advised that he and Mr Taylor were continuing to live under the same roof.
·There was a brief period from around November 2020 when the Applicant purchased a caravan in which he lived on the shared property (and briefly away from it to his uncle’s property) before moving back into that shared accommodation.[3]
[1] Tribunal documents (T-documents) at 59.
[2] Ibid at 62.
[3] Ibid at 6, AAT1 decision at [13], and 191.
APPLICANT’S CORRESPONDENCE WITH THE DEPARTMENT
Apart from the details provided in the two Rent Certificates of 11 November 2013 and 19 September 2018 (supra) the Applicant provided Centrelink with a number of “Relationship details” statements.
On 18 November 2019 the Applicant advised that he and Mr Taylor had been married to, or in a de facto relationship with each other but they had separated on 8 November 2019. He advised that he was paying Mr Taylor $250 a week for rent. He further advised that they were sharing household expenses 50/50 and that Mr Taylor was a beneficiary in the Applicant’s superannuation arrangements. There is some confusion about this document which appears to have been completed by both the Applicant and Mr Taylor and it appears that the reference which it contains to the Applicant proposing to live for “6 months” in the shared accommodation was inserted by Mr Taylor without the agreement of the Applicant.
On 6 January 2020 Mr Taylor submitted a similar form to Centrelink in which he confirmed the details given by the Applicant on 18 November 2019 and also advised that the Applicant was nominated as a beneficiary in his (Mr Taylor’s) superannuation arrangements.[4]
[4] Ibid at 151.
On 27 October 2020 the Applicant advised Centrelink that while he continued to share accommodation with Mr Taylor and had done so since 24 November 2016 (paying rent at $250 per week since 5 October 2019) he no longer had a relationship with Mr Taylor and did not consider himself to be partnered.
The Applicant provided various other statements to Centrelink, including a “separation details” form lodged on 27 October 2020 in which he indicated his separation from Mr Taylor on 8 November 2019, although confirming that they continued to reside in the same accommodation.
MR TAYLOR’S CORRESPONDENCE WITH THE DEPARTMENT
Apart from the letter of 6 January 2020 (supra) Mr Taylor provided some correspondence to the Department. Relevantly on 30 May 2019 he advised the Department:
·of his marriage to the Applicant;[5]
·that he and the Applicant had been living in the same accommodation since 30 May 2019; and
·that he provided care for 33% of the time for a child (born September 2011) who is the child of the Applicant.
[5] Ibid at 66; Respondent’s Statement of Facts, Issues and Contentions (SFIC) at footnote 32.
ESTABLISHED FACTS IN THE RELATIONSHIP
The Applicant and Mr Taylor:
(a)from at least 11 November 2013 have been living together in that they shared the same house together at both the first and second addresses in Gillieston Heights;
(b)both remain living in the same accommodation;
(c)travelled overseas together on at least three occasions;
(d)married each other on 14 February 2019; and
(e)separated on 8 November 2019.
THE BREAKDOWN OF THE MARRIAGE
The Tribunal notes the version of this process as outlined in the AAT1 decision as follows:
Mr Lewis-Taylor stated that his relationship broke down in October 2019. He stated that Mr Taylor and he had alcohol abuse problems. By 2019 his deteriorating health caused him to have to give up alcohol. He expected Mr Taylor to make an effort to reduce his drinking and also make some lifestyle changes. Mr Lewis-Taylor underwent what he described as “massive lifestyle changes” but Mr Taylor refused to make any changes to his lifestyle. Mr Lewis-Taylor had difficulties living with a person who used alcohol to excess while trying to remain sober. As a result they separated and moved into separate bedrooms. In November 2020, Mr Lewis-Taylor purchased a caravan, initially parking it on the Orchard Close property and then on his uncle’s property. When Services Australia would not recognise the end of his relationship with Mr Taylor, he moved back into Orchard Close because it was easier to accommodate his daughter on his fortnightly contact weekends with her.
Since the decision of the AAT1 the Applicant has also raised the claim that he had been subjected to acts of physical violence by Mr Taylor.
·On 14 May 2021 the Applicant sent an email to the Tribunal in which he advised that he was seeking alternative housing from Hume Housing and was being assisted by people at Hunter Valley Project and Disability Advocacy (NSW) both of whom were “aware of my home circumstances and also the domestic violence associated”;
·A Housing Pathways Medical Assessment letter from Dr Samarasinghe dated 22 May 2021 supporting the Applicant’s claim for housing assistance was filed with the Tribunal but it contains no details of any acts of domestic violence being reported to him.
·In a letter from Mr John Grainger dated 12 July 2021 in which Mr Grainger identifies himself as the Applicant’s “treating Clinical Psychologist” he reports that the Applicant’s “husband had physically assaulted him. Mr Lewis is fearful of ongoing harm whilst living in the same house as his husband.” At the hearing the Applicant submitted details of an admission to a local hospital in May 2021 which he claimed resulted from being assaulted by Mr Taylor, specifically being punched in the abdomen and kidneys. The hospital discharge summary indicates that the Applicant was treated for various matters arising primarily from a history of “known recurrent pancreatitis” and notes an already scheduled cholecystectomy. There is no reference in the discharge summary to any immediate trauma or damage caused unexpectedly.
·There is some evidence that at least one incident of some sort came to the attention of the Police and that a subpoena was issued for Mr Taylor to appear in Court.[6] It was the Applicant’s evidence that an AVO was taken out by the Police but that it was against him.
[6] T-documents at 178-179.
The Tribunal accepts the admonition of the Respondent that it should take great care to make any findings regarding matters as serious as accusations of domestic violence when the accused party has been given no opportunity to respond.[7] It does however accept that the Applicant is genuinely apprehensive about his physical safety while continuing to reside in the same accommodation as Mr Taylor.
[7] Respondent’s SFIC at [83].
THE ISSUE BEFORE THE TRIBUNAL
As noted, the Department made a decision on 13 October 2020 that the Applicant should be paid the DSP at the rate set for a member of a couple. The Centrelink letter of that date states:
“After careful consideration of your domestic circumstances it has been decided that you and Rohan Taylor are living as a member of a couple. Your partner’s income must be taken into account in assessing your rate of Disability Support Pension.”[8]
[8] T-documents at 176.
That decision was affirmed by the ARO on 10 November 2020. The ARO determination found:
“You and Rohan were married on 14 February 2019. The evidence indicates you were partnered for a significant period prior to your marriage and that you were living together from at least 2013.”
It concluded:
“Based on the limited and conflicting evidence available, I have found determined (sic) you and Rohan Taylor are members of a couple and you are entitled to receive the rate of Disability Support Pension for a partnered person.”[9]
[9] Ibid at 204.
On 3 February 2021 the AAT1 concluded:
On the basis of Mr Lewis-Taylor’s current financial dependence on Mr Taylor and his recent return to live in the home, the tribunal is satisfied that Mr Lewis-Taylor and Mr Rohan Taylor are not living separately and apart under the one roof. The payment of disability support pension at the partnered rate is correct.[10]
[10] Ibid at 9.
A CONUNDRUM TO BE RESOLVED
What is of particular note is that the Applicant was being paid the DSP at the single (higher) rate from 29 February 2012 until the Department made its determination of 13 October 2020. It appears that the Applicant’s pension rate was actually reduced as from 21 September 2019 and set back at the partnered rate.[11]
[11] Screenshot attachments to the Respondent’s SFIC; Confirmatory email from the Respondent dated 2 August 2021.
This however gives rise to the question of why the Department did not seek to recover from the Applicant the overpayment (the difference between the higher single rate and the lower partnered rate) paid between 14 February 2019 and 21 September 2019. The Department had known that the couple were married since Mr Taylor notified then of this fact on 30 May 2019.[12]
[12] T-documents at 67.
While the ARO decision references the marriage date of 14 February 2019 it appears to avert its attention from the possibility of the Applicant being partnered, perhaps as far back as 2013.
The AAT1 concludes that the decision to pay the Applicant at the partnered rate is correct but attaches no specific commencement date to that.
The Respondent’s SFIC confirms that the ARO decision was that the Applicant became partnered on 14 February 2019.[13] It then goes on to seek two contradictory things:
(a)it seeks an order from the Tribunal that “the decision of the Tribunal (AAT1) made on 3 February 2021 be affirmed”,[14] and
(b)it invites consideration as to “whether Mr Lewis-Taylor and Mr Taylor have been members of a couple with each other from 14 February 2019, or another date …”[15]
[13] Respondent’s SFIC at [28].
[14] Ibid at [106].
[15] Ibid at [33(a)], emphasis added.
This presents this Tribunal with (at least) the following options:
(a)to affirm the decision of the AAT1 meaning that that the Applicant’s conversion from single to partnered rate of DSP properly commenced as from 14 February 2019 and take matters no further;
(b)to decide that the Applicant was a member of a couple prior to that date, being any date from:
(i)the date of their cohabitation in the first Gillieston property in November 2013;
(ii)the date that the Applicant and Mr Taylor first took an overseas trip together, 18 October 2014;
(iii)the date of the marriage, 14 February 2019;
(iv)any other date consistent with the Applicant’s testimony that he had been in a relationship with Mr Taylor for either:
I.“6 or 7 years”[16] (prior to November 2020) as explained to the ARO; or
II.“by 2017 he (the Applicant) considered they were partners” as told to the AAT1[17]; or
III.“four or five years” (prior to 2021) as stated in oral testimony to this Tribunal;
(c)to find that whatever the starting date of the partnered status was, it concluded in about October/November 2019 whereupon the Applicant commenced to live separately and apart (on a permanent or indefinite basis); or
(d)to find that whatever the starting date of the partnered status, that status remains in place at the date of the Tribunal’s determination.
[16] T-documents at 192.
[17] Ibid at 6, AAT1 decision at [12].
These decision options have a variety of potential outcomes for the Applicant. It may mean:
·his current status and rate of payment remains unaltered but may change should he move out of the shared accommodation as he is intending to do and/or gets divorced as he is intending to do and moves out;
·he may be found to be eligible for the single rate of DSP as from the time of his claimed separation, in which his DSP income will increase; or
·he may be found to have been in a de facto relationship prior to his marriage, in which case, as the Respondent’s representative pointed out to the Tribunal, the Applicant might be faced with a potentially significant debt to the Commonwealth.
It is unfortunate that the Tribunal cannot be conclusively satisfied of various important dates. This arises from both the Applicant failing to respond to several Notices sent to him by the Department requiring the provision of information;[18] the failure of the Applicant to notify the Department of the fact of his marriage; and the failure of the Applicant to remember certain details when giving evidence to the Tribunal.
[18] Notices sent on 22 June 2012 and 13 August 2014, T-documents at 238.
THE LEGISLATIVE TEST
Matters of definition about what constitutes “a couple” are set out in section 4 of the Social Security Act 1991 (Cth) (the Act), relevantly:
(2) Subject to subsection (3), a person is a member of a couple for the purposes of this Act if:
…
(a)all of the following conditions are met:
(i)     the person has a relationship with another person, whether of the same sex or a different sex (in this paragraph called the partner);
(ii)    the person is not legally married to the partner;
(iii)   the relationship between the person and the partner is, in the Secretary's opinion (formed as mentioned in subsections (3) and (3A)), a de facto relationship;
Subsection 4(3) of the Act then sets out the criteria which a decision-maker must consider in determining whether or not a state of being a couple exists:
Member of a couple--criteria for forming opinion about relationship
(3) In forming an opinion about the relationship between 2 people for the purposes of paragraph (2)(a), subparagraph (2)(aa)(ii) or subparagraph (2)(b)(iii), the Secretary is to have regard to all the circumstances of the relationship including, in particular, the following matters:
(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.
(3A) The Secretary must not form the opinion that the relationship between a person and his or her partner is a de facto relationship if the person is living separately and apart from the partner on a permanent or indefinite basis.

It is perhaps most useful to determine the question of the nature of the relationship first – whether the Applicant and Mr Taylor a couple – before turning to the subsequent issue of living separately and apart or on a permanent or indefinite basis.
Financial matters
The evidence clearly establishes that at various times both parties were pooling their financial resources. This is important because the underlying public policy related to single/partnered payments is that “two can live more cheaply than one” and that where savings are made by pooling resources this should be recognised as a basis for the calculation of entitlements.[19]
[19] Pelka v Secretary, Department of Family and Community Services [2006] FCA 735 at [52]; Re Hawkins and Secretary, Department of Social Security [1996] 44 ALD 651 at [652].
At all material times both parties were contributing to rent/mortgage payments, albeit not always in equal measure. There was evidence that the overseas holidays were contributed to on a shared basis.
Each appears to have some interest in the superannuation arrangements of the other. The Applicant certainly asserts this with some vigour in relation to Mr Taylor’s superannuation and also claims that, as a member of a couple (under Family Law principles) he has some equity (equitable estate) in their current home.
More recently, the Applicant has been in a position where he is less able to contribute to the pooling or resources and the evidence is to the effect that the parties do not have any joint bank accounts, debts or loans and that they do not have access to each other’s separate accounts. The Applicant told the Tribunal that while he does some general cleaning of the house, the parties now shop, cook, eat, do the washing and sleep separately.
Thus, there has been a past degree of shared financial responsibilities and there are ongoing financial matters shared between the parties. It is clear that the Applicant is now dependent upon Mr Taylor in a financial sense while he continues to live in their shared house and makes minimal contribution to matters of rent or mortgage payments. The Applicant has however, from time to time, paid utility bills from his own personal account.[20]
[20] T-documents at 202.
Both the AAT1 and judicial authority make it clear that considerable weight should be given to finding that substantial sharing (although not necessarily on an equal basis) of financial resources and shared interests in matters such as superannuation or property, is a matter of great weight in determining the status of applicants as members of a couple.[21]
[21] T-documents at 6, AAT1 decision at [15]; Lambe v Director-General of Social Services [1981] 4 ALD 362 at 369.
The financial affairs of the Applicant support a finding that he was a member of a couple from at least 18 October 2014 (if not earlier).
Nature of the household
The Tribunal starts with the claim that Mr Taylor made to the effect that he provided 33% care for the child of the Applicant. The Tribunal does not accept this proposition. At best it can be said that Mr Taylor was present during the periods when the Applicant had care of the child. There is no evidence that Mr Taylor in any way had joint responsibility for providing care or support of the child.
Until the separation in October/November 2019 the parties lived together in the sense that they shared a bedroom and responsibility for the management of the household. They both undertook housework and both contributed to the upkeep of the shared home.
The nature of the household arrangements of the parties support a finding of their being jointly members of a couple.
Social aspects of the relationship
Clearly prior to their marriage the parties were seen together as a couple and presented themselves as such, for example during their overseas holidays. Once married, their status as a couple was a matter of public record.
The ARO, in making her determination, interviewed a number of people nominated as friends or acquaintances of the parties. Their evidence, as reported, is somewhat sketchy and ambiguous but it tends to support a finding that while the parties were known in the community as a couple, this relationship was a somewhat fraught one and that in recent times there was a degree of public perception that it had broken down and effectively ceased to exist.[22]
[22] T-documents at 7, AAT1 decision at [21], 132 and 196-197.
The social aspects of the relationship would support a finding that while the parties had been recognised as a couple at least from October 2014, that relationship has deteriorated to the point that it would not support a finding of the parties as a couple since October/November 2019.
Sexual relationship between the parties
The Applicant gave evidence that the parties were in a sexual relationship from sometime in 2013 until the breakdown of their relationship in October/November 2019. There is no reason to do other than accept this evidence.
The sexual relationship between the parties establishes them as a couple (under this criteria) from sometime in 2013 to sometime in October/November 2019.
The commitments to each other
It is always problematic for the Tribunal to be able to assess the commitment of parties to each other when there is evidence from only one of them before it and when whatever the relationship and commitment might have been at an earlier time, it is now one of conflict or hostility.
While the relationship may have lasted some years the marriage was certainly for only a period of less than nine months. It appears that disputes over alcohol and social behaviour, allegations of domestic violence and a repeated desire by the Applicant to “get away”, “get free”, “get out” of the relationship were a feature of his testimony to the Tribunal.
The Respondent makes an issue of the fact that the Applicant has not sought a divorce[23] and dismissed (in submissions) his claim that this was for financial reasons. However, given the Applicant’s state of mind as presented in evidence, the Tribunal places little weight on this.
[23] Respondent’s SFIC at [91].
There is however considerable evidence before the Tribunal that the Applicant has been active in seeking alternative accommodation and taking steps to be able to move out of the current home. He has been in touch with both financial and housing support organisations and working with Housing Pathways and Hume Housing to get access to supported accommodation[24] and has sought letters of support from his Doctor (Dr Samarasinghe) and the psychologist (Mr Grainger) to assist his application. Although the precise dates of the initial contact with the housing authorities is not clear, the Tribunal accepts that it dates back to at least the early part of 2021.
[24] Email from Applicant to Tribunal dated 17 May 2021.
Consideration of the full gamut of the parties’ commitment to each other would suggest that while they were a member of a couple, this relationship was terminated by the time of their separation.
Overall, the consideration of the factors set out in subsection 4(3) of the Act support a finding that the Applicant and Mr Taylor were members of a couple from at least 18 October 2014 to October/November 2019.
LIVING SEPARATELY AND APART
There are a number of elements which must be considered in determining whether parties are living separately and apart. Primarily, this is a matter of objective fact. However, there are both physical and mental elements in play, that is not only what the actual physical condition of the parties (their living arrangements) is but also how they perceive and understand that situation – what they think is the status of their relationship.[25] In this sense, the question is – whether the applicant believes that their relationship is no longer a de facto or married one and that what is called the consortium vitae (the essence of marriage) is no longer present.[26]
[25] Boskoski and Secretary, Department of Social Services [2014] AATA 915 at [63].
[26] Staunton-Smith v Secretary, Department of Social Security (1991) 25 ALD 27 at 37-38.
Objectively it is clear that from November 2013 until the present date the Applicant and Mr Taylor have resided in the same house and they have shared a domestic life together. It has not always been a happy life and that is unfortunate. However, happiness is not a relevant consideration as far as the Act is concerned.
From at least 2013 until October/November 2019 the Applicant and Mr Taylor shared a sexual relationship. From at least October 2014 until October/November 2019 the Applicant and Mr Taylor presented themselves and were generally recognised as a couple.
The Tribunal accepts the evidence of the Applicant that, as of sometime in October/November 2019 the relationship ceased to have those elements of a marriage-like relationship about it and that while the Applicant, primarily for financial reasons, remained living in the same house as Mr Taylor, he did so as a separate person and not as a member of a couple in the sense of not being party to any sense of consortium vitae.
PERMANENT OR INDEFINITE BASIS
This requirement of living separately and apart is attended in the legislation by a qualification, namely that it must be “on a permanent or indefinite basis.” The evidence supports this qualification being fulfilled in that the Applicant is actively seeking alternative accommodation so that the separation will be completely physical and has made claims that as a victim of domestic violence he fears sharing space with Mr Taylor. There is no suggestion that this separation is merely a temporary arrangement until matters improve or situations change. There appears no prospect of a reconciliation in their relationship.
FINDING ON SUBSECTION 4(3)
Consideration of the various elements of subsection 4(3) of the Act lead to a conclusion that each of the elements supports a finding that at least from 18 October 2014 to 8 November 2019 the Applicant and Mr Taylor were members of a couple.
The Tribunal adopts 18 October 2014 as it is the first objective date establishing the presence of a state of being a couple between the parties. It adopts the date of 8 November 2019 as being the date of separation formally advised to the Department by the Applicant, although the separation may have commenced a few weeks earlier.
The Tribunal finds that as from 8 November 2019 the Applicant and Mr Taylor were living separately and apart on a permanent or indefinite basis. They did not share a “marriage-like” relationship; there was no consortium vitae; the Applicant remained resident with Mr Taylor for purely financial reasons; there was no significant level of mutual commitment and support apart from some limited degree of shared finances; there was no sexual relationship; there was no meaningful sharing of domestic chores (such as cooking, cleaning or clothes washing) and they did not present (and were not understood) to be a couple. They lived, in effect, separate lives.
SPECIAL REASON EXCEPTION
Subsection 24(2) of the Act provides that there may be a “special reason” why an individual may be found not to be a member of a couple, all other things being equal:
(2) Where:
(a)a person has a relationship with another person, whether of the same sex or a different sex (the partner); and
(b)the person is not legally married to the partner; and
(c)the relationship between the person and the partner is a de facto relationship; and
(d)the Secretary is satisfied that the person should, for a special reason in the particular case, not be treated as a member of a couple;
the Secretary may determine, in writing, that the person is not to be treated as a member of a couple for the purposes of this Act.
For the Applicant to establish that there is a “special reason” for his situation to be treated as materially different from any other, he would need to show something in his situation demonstrating that he was unable to take advantage of the status of being a member of a couple by pooling or sharing resources.
This provision was inserted in legislation to cover situations where one party in a couple was prevented by illness or by other circumstances (such as imprisonment)[27] from participating fully in the “economies of shared living costs”[28] available to members of a couple.
[27] Hawkins and Secretary, Department of Social Security [1996] 44 ALD 651 at 652.
[28] Explanatory Memorandum, Social Security Legislation Amendment Bill (No 4) 1991 (Cth) at 17.
There is no special reason that this Applicant has established which would enliven the operations of this section of the Act.
CONCLUSION
The Tribunal is satisfied that the Applicant was a member of a couple with Mr Taylor from 18 October 2014 to 8 November 2019.
The Tribunal is satisfied that the Applicant has been living separately and apart from Mr Taylor on a permanent or indefinite basis since 8 November 2019.
DECISION
The decision under review is set aside and substituted with a decision that the Applicant was entitled to be paid the Disability Support Pension at the partnered rate from 18 October 2014 to 8 November 2019 and at the single rate from 9 November 2019.

I certify that the preceding 65 (sixty -five) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

.................................[sgd].......................................
Associate
Dated: 26 August 2021

Date(s) of hearing: 30 July 2021

Date final submissions received: 2 August 2021

Applicant: In person

Solicitors for the Respondent: Dr S Thompson, Sparke Helmore

[2021] AATA 3054

26 August 2021

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Appeal

Jurisdiction

Date(s) of hearing:	30 July 2021
Date final submissions received:	2 August 2021
Applicant:	In person
Solicitors for the Respondent:	Dr S Thompson, Sparke Helmore