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

Lyons and Secretary, Department of Social Services (Social services second review) [2018] AATA 3644 (27 September 2018)
Division:GENERAL DIVISION
File Number: 2018/1286
Re:Maria Lyons
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member D K Grigg
Date:27 September 2018
Place:Brisbane

The Tribunal affirms the decision under review.
.......................[Sgd].................................................
Member D K Grigg
CATCHWORDS
SOCIAL SECURITY – parenting payment – whether member of a couple – whether any special reason to not treat applicant as member of a couple - decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth)

CASES
Boscolo v Secretary, Department of Social Security (1999) 90 FCR 531; 53 ALD 277
Cocks v Centrelink [2000] FCA 1248
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Kazmierczak v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] FCA 1084
Purdie and Secretary, Department of Social Services [2013] AATA 743
Secretary, Department of Families, Housing, Community Services & Indigenous Affairs and Nicolaas [2009] AATA 416
SECONDARY MATERIALS
Guide to Social Security Law (2018)

REASONS FOR DECISION
Member D K Grigg
27 September 2018

Ms Lyons was in receipt of parenting payments (PP) calculated at the single rate from 26 March 2010. The rates at which people are paid PP are determined using the Pension Rate Calculator A at the end of section 1068A of the Social Security Act 1991 (Cth) (“the Act”).[1] The maximum basic rate payable varies depending upon a person’s family situation and varies depending on any income earned.[2]
[1] The Act, Section 1068A.
[2] The Act, Section 1068A-B1.
On 16 March 2017, Ms Lyons informed the Department of Human Services (“Centrelink”) that she had separated from her partner, Mr Trent Lister, in December 2012 and that until now they had lived in different states. In order to help and spend time with her son, she intended to live with Mr Lister for 12 months from 10 February 2017 but there was no possibility that they would get back together again.[3] Ms Lyons provided the following information in her Separated under One Roof Form:[4]
[3]Exhibit 1, T Documents, T4, pages 41 – 55, Separated under One Roof Form completed by Ms Lyons on 16 March 2017.
[4]Exhibit 1, T Documents, T4, pages 41 – 55, Separated under One Roof Form completed by Ms Lyons on 16 March 2017.
·she would be living in a separate room attached to the house;
·she occasionally shares meals with Mr Lister when big meals are made or with her son;
·they wash their clothes at separate times and have different times for bathing;
·she lives in the main house with a separate living lounge area and Mr Lister lives separate to the house;
·she does not have a sexual relationship with Mr Lister but wrote in handwriting on the form ‘have slipped up’;
·she has taken her son on a holiday together with Mr Lister and family members;
·family and friends do not consider her to be in a relationship with Mr Lister and they are not invited out as a couple and do not share social or leisure activities;
·she does not have a joint bank account with Mr Lister and he has no access to any of her accounts nor she to his;
·they have no outstanding debts;
·each pay their own phone and Internet bills and split the electricity bill;
·they do not share a vehicle;
·Mr Lister puts in for shopping;
·she cleans the main house and shed areas while Mr Lister mows the lawn when needed;
·they do not have any jointly owned household goods;
·they do not share joint insurance policies;
·she does not have a will;
·the child of the relationship is under her care two thirds of the time and Mr Lister assists as required;
·they both decide matters about education and development of the child;
·the child’s school has been made aware of the separation.
Ms Lyons also provided Centrelink with a copy of the tenancy agreement for the home that she shared with Mr Lister which notes her and Mr Lister as co-tenants.[5]
[5] Exhibit 1, T Documents, T4, pages 52 – 53, General tenancy agreement.
As a result of the information provided by Ms Lyons, Centrelink determined that she was in a de facto relationship, and that her rate of pay should be calculated on the basis that she was a member of a couple.
On 30 March 2017, Ms Lyons ceased working and, on 18 April 2017, her PP was cancelled on the basis that her eldest son had turned eight years old.
On 20 April 2017, Ms Lyons made a claim for Newstart Allowance.[6]
[6] Exhibit 1, T Documents, T5, page 56, Online claim for parenting payment dated 20 April 2017.
Ms Lyons lodged a further Separated under One Roof Form with Centrelink on 30 April 2017 which provided that:[7]
(a)she was uncertain how long she would be living at the same address as Mr Lister because they were trialling living together in order for them both to spend time with their son;
(b)they continue to do things separately;
(c)they did not have sex regularly but had had a couple of “slip-ups”;
(d)the child of the relationship was mainly under her care; and
(e)the remaining details were the same as per the previous Separated under One Roof Form.
[7]Exhibit 1, T Documents, T6, pages 61 – 67, Separated under One Roof Form completed by Ms Lyons on 30 April 2017.
Ms Lyons gave birth to a daughter on 26 May 2017. Mr Lister is the father of the child.[8]
[8] Exhibit 1, T Documents, T9, page 80, Online claim for parenting payment dated 1 June 2017.
On 1 June 2017, Ms Lyons lodged an application for the Family Tax Benefit and Parental Leave which was granted. Ms Lyons also lodged a further online claim for the PP on 1 June 2017.[9]
[9] Exhibit 1, T Documents, T8, pages 73-77, Online claim for parenting payment dated 1 June 2017.
On 16 June 2017, Centrelink wrote to Ms Lyons and advised her that, under the Act, a member of a couple must have their payments calculated differently to that of a single person. Centrelink had determined that she was living as a member of a couple with Mr Lister and therefore his income had to be taken into account in assessing the rate of PP.[10]
[10] Exhibit 1, T Documents, T10, pages 84 – 85, Letter from Centrelink to Ms Lyons dated 16 June 2017.
As a result of Centrelink’s determination, Centrelink calculated that Ms Lyons had been overpaid Family Tax Benefit for the period 20 May 2017 to 8 June 2017 and raised a debt of $296.80.[11]
[11] Exhibit 1, T Documents, T11, pages 86 – 87, Letter from Centrelink to Ms Lyons dated 11 August 2017.
On 21 August 2017, Ms Lyons provided Centrelink with a copy of a joint loan account she holds with Mr Lister and another person.[12]
[12] Exhibit 1, T Documents, T12, page 89, Joint loan account statement.
Ms Lyons lodged a further Separated Under One Roof Form with Centrelink on 26 September 2017 which provided that:[13]
(a)she was trialling living with Mr Lister for one year in order to be able to spend time with the children;
(b)she does not spend time with Mr Lister and they live separately as individuals;
(c)she was not in a sexual relationship with Mr Lister;
(d)they pay their bills separately and shop separately;
(e)she cleans her own area of the house and does her own washing;
(f)the rest of the information is as per previous Separated under One Roof forms that she has provided.
[13] Exhibit 1, T Documents, T13, pages 90 – 107, Separated under one roof form completed by Ms Lyons on 26
September 2017.
On 3 October 2017, Centrelink advised Ms Lyons that it had rejected her claim to the PP because they had not received a reply to letters that they had sent. Centrelink advised that the basis upon which they had assessed her claim was on total combined assets of $25,092.[14]
[14] Exhibit 1, T Documents, T14, pages 108 – 109, Letter from Centrelink to Ms Lyons dated 3 October 2017.
Ms Lyons commenced receiving PP on 5 October 2017, the week after her parental leave payments ceased, on the basis that she was a member of a couple.
Ms Lyons lodged a further Separated under One Roof Form with Centrelink on 7 October 2017 which provided that:[15]
(a)she was trialling living with Mr Lister in order to allow him to spend time with their children;
(b)she does not spend time with Mr Lister and they live separately as individuals;
(c)they are not having a sexual relationship;
(d)they pay their bills separately and shop separately;
(e)she cleans her own area and does her own washing; and
(f)the rest of the information is as per previous separated under one roof forms that she has provided.
[15]Exhibit 1, T Documents, T15, pages 110 – 124, Separated under One Roof Form completed by Ms Lyons on 7 October 2017.
Ms Lyons resided with Mr Lister until he moved out on 29 January 2018.[16]
[16] Exhibit 1, T Documents, T18, page 134, letter from Ms Lyons dated 2 April 2018, A copy of the tenancy
agreement executed by Mr Lister was annexed to Ms Lyons letter.
On 2 April 2018, Ms Lyons advised that:[17]
(a)she was applying again for the parenting payment as her situation will be changing, Mr Lister would no longer be under her roof and they would be living completely separately;
(b)Mr Lister had signed a new rental agreement for his own place which would commence on 29 January 2018;[18] and
(c)she thought she was doing the right thing by her children having the father living under the same roof in a separate area under the house but that she has been under an extreme amount of stress and unable to support herself.
[17] Exhibit 1, T Documents, T18, page 134, letter from Ms Lyons dated 2 April 2018.
[18] Exhibit 1, T Documents, T18, page 134, letter from Ms Lyons dated 2 April 2018, A copy of the tenancy
agreement executed by Mr Lister was annexed to Ms Lyons letter.
Based on the updated information provided by Ms Lyons, Centrelink determined that from 29 January 2018 she should be paid PP calculated at the single rate.
Ms Lyons argues that she should have been paid PP at the single rate during the period she resided with Mr Lister as she was not a member of a couple.
Claim History
As a result of Centrelink’s decision, Ms Lyons sought a review by an Authorised Review Officer (“ARO”). The appeal to the ARO was unsuccessful.[19]
[19] Exhibit 1, T Documents, T16, pages 125 – 130, Authorised Review Officer’s Decision and Notes dated
24 October 2017.
On 7 December 2017, Ms Lyons then lodged an application for review with the Social Services and Child Support Division of this Tribunal (“SSCSD”).[20] The SSCSD rejected Ms Lyons’ claim and affirmed the ARO’s decision on 5 February 2018.[21]
[20] Exhibit 1, T Documents, T17, pages 131 – 132, Letter from AAT dated 7 December 2017.
[21] Exhibit 1, T Documents, T2, pages 6 – 14, SSCSD’s Decision and Reasons for Decision dated 5 February 2018.
Ms Lyons has sought a review of the SSCSD’s decision by this Tribunal.[22]
[22] Exhibit 1, T Documents, T1, pages 1 – 5, Application for Second Review of a Decision dated 12 March 2018.
ISSUES FOR DETERMINATION
In order to decide whether Ms Lyons’ PP should be calculated at the single rate, the following issues have to be determined:-
(a) whether Ms Lyons was a member of a couple; and, if yes
(b)whether Ms Lyons should, for a special reason, not be treated as a member of a couple (s 24(2)(d));
and then,
(c)whether or not to exercise the discretion to determine that Ms Lyons is not to be treated as a member of a couple for the purpose of calculating her PP.
WAS MS LYONS A MEMBER OF COUPLE?
Section 4(2)(b) of the Act relevantly defines a person as a “member of a couple” if:
(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;
(iv)both the person and the partner are over the age of consent applicable in the State or Territory in which they live;
(v)the person and the partner are not within a prohibited relationship.
The only issue in dispute here is whether Ms Lyons was in a de facto relationship with Mr Lister.
In order to form an opinion about whether or not Ms Lyons and Mr Lister were living as a couple, section 4(3) of the Act must be considered.
Section 4(3) provides:
(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.
It was agreed by the parties at the hearing that the time period under consideration is the period between 1 June 2017, the date that Ms Lyons applied for the parenting payment, and 29 January 2018, the date that she was assessed as no longer being a member of a couple. This period reflects the time during which Centrelink assessed that Ms Lyons was a member of a couple and should be paid at a couple rate. The PP calculated at that couple rate did not commence until 5 October 2017, but the decision to pay Ms Lyons PP calculated at the couple rate was made on 16 June 2017 in response to the 1 June 2017 claim. The reason the parenting payment for the period did not commence until 5 October 2017 is because, until that time, Ms Lyons was still in receipt of parental leave and family tax benefit part A payments.[23] Ms Lyons was paid parental leave from 26 May 2017 to 28 September 2017 with the last payment due on 2 October 2017.[24]
[23] Exhibit 1, T Documents, T19, page 154, Pension status history record.
[24] Exhibit 1, T Documents, T21, pages 195-196, Letter from Centrelink to Ms Lyons dated 22 June 2017.
Consideration of Ms Lyons’ Relationship
At the hearing, Ms Lyons told the Tribunal that she had started a relationship with Mr Lister in early 2009. She also clarified that although she had indicated in her Separated under One Roof Form that she had separated from Mr Lister in December 2012, she had determined, after some research, that it was in January 2013 that she had separated. Mr Lister, in his Separated under One Roof Form, also indicated that they had separated in December 2012.[25] However, at the hearing, Ms Lyons told the Tribunal that she had completed the form for Mr Lister but it was his signature. On 12 January 2013, Ms Lyons moved in with her mother in Queensland.[26] Ms Lyons accepts that this is the appropriate date for the date of separation.
[25]Exhibit 1, T Documents, T13, page 90, Separated under One Roof Form signed by Mr Lister dated 26 September 2017.
[26] Exhibit 1, T Documents, T19, page 151, Address history record.
On 30 August 2013, Ms Lyons moved into a property in Minyama. Ms Lyons told the Tribunal that Mr Lister visited only intermittently because he worked on a ship at the time. She said he would visit sometimes after a couple of weeks and sometimes after a month in order to see his son. Mr Lister had advised Centrelink that he was living at the Minyama property. Ms Lyons says she does not understand why he did that.
On 28 September 2015, Ms Lyons moved into a property in Buddina. At that time, Mr Lister obtained a different job and would keep up his visits with his son when he could.
In her claim for Newstart Allowance, Ms Lyons indicated that she had never lived with Mr Lister as a couple.[27] However, in her application for the parenting payment on 1 June 2017, Ms Lyons indicated that she had previously lived with Mr Lister as a member of a couple.[28] Ms Lyons explained to the Tribunal that this inconsistency occurred because “she got confused”.
[27] Exhibit 1, T Documents, T5, page 58, Online claim for Newstart Allowance completed by Ms Lyons on 20 April
2017.
[28] Exhibit 1, T Documents, T7, page 70, Online claim for parenting payment completed by Ms Lyons on 1 May 2017.
In or around August 2016, Ms Lyons conceived her second child with Mr Lister.
Ms Lyons lived in the Buddina property for approximately 15 months until February 2017.[29]
[29] Exhibit 1, T Documents, T19, page 151, Address history record.
In February 2017, Ms Lyons and Mr Lister leased the house that they lived in together in Buderim.[30] Ms Lyons informed the Tribunal that her son has a learning disability and that she thought that moving back in with Mr Lister would be of benefit to him.
[30] Exhibit 1, T Documents, T19, page 151, Address history record.
The financial aspects of the relationship: section 4(3)(a)
Shortly before separating in January 2013, Ms Lyons and Mr Lister invested in an investment property with Mr Lister’s mother, Ms Ronnie Mitchell. Ms Lyons, Mr Lister and Ms Mitchell contributed equally to the costs of the property until such time as significant repair work was required. Ms Ronnie Mitchell, Mr Lister’s mother, provided a statutory declaration confirming that in December 2012, prior to Ms Lyon’s and Mr Lister’s separation in January 2013, they purchased an investment property with Ms Lyons and Mr Lister owning a half share. The investment property settled in February 2013,[31] which is after the date that Ms Lyons says she separated from Mr Lister. Ms Lyons told the Tribunal that she continued with the settlement of the investment property even though she had separated from Mr Lister because, at the time, she was going through a lot and she struggled to make the right decisions. She says she did not think about how big a commitment it was. Ms Lyons said that they shared the rental income from the investment property but it was used solely to pay off the mortgage. Mr Lister informed Centrelink that he and Ms Lyons have a joint mortgage with his mother for the investment property they have together. Due to issues they had with tenants damaging the property, they all decided to put the house on the market for sale.[32]
[31] Exhibit 3, Annexure, Particulars of Sale.
[32] Exhibit 5, Statutory declaration of Ms Ronnie Mitchell dated 27 June 2018.

Ms Mitchell declares that the house was put on the market in June 2017 and sold in October 2017, allowing for the release of the obligation of owning the property together.[33]
[33]Exhibit 5, Statutory declaration of Ms Ronnie Mitchell dated 27 June 2018. See also Exhibit 3, Annexure, particulars of sale.
In February 2017, Ms Lyons and Mr Lister entered into a 12 month lease as co-tenants for a residential property at Buderim which commenced on 10 February 2017.[34] Initially, Ms Lyons paid $350 per week and Mr Lister paid $150 per week for rent, but later they shared the rent equally.[35]
[34] Exhibit 1, T Documents, T4, page 52, Tenancy Agreement.
[35] Exhibit 3, Ms Lyons’ Chronology.
In her claim form, submitted a month after they commenced living together, Ms Lyons stated that she and Mr Lister shared the rent, phone and electricity expenses during the relevant period.[36]
[36]Exhibit 1, T Documents, T4, pages 41 – 55, Separated under One Roof Form completed by Ms Lyons on 16 March 2017.
At the hearing, Ms Lyons said that Mr Lister did not pay anything towards electricity until the end of the lease. She was unable to explain exactly how much Mr Lister paid or why he had not contributed during the period. This oral evidence is contrary to both Mr Lister’s reporting to Centrelink and Ms Lyons’ own reporting in the various forms filed with Centrelink in the past. Ms Lyons provided a copy of her bank accounts to show the regular instalments that she made towards the electricity bill of $118 per month.[37] However, there is no automatic transfer in the months of September and December 2017. When asked what happened to the automatic payments in September and December 2017, Ms Lyons said that Mr Lister did not pay the electricity bill for those months but she was unable to explain what did happen. Ms Lyons also acknowledged that the bank account statement she provided was not a complete record of all transactions within the account. Ms Lyons was asked why she stated in her claim forms that electricity expenses were shared and she said that was because that was the original intention but it did not happen. There is no evidence to corroborate this.
[37] Exhibit 3, Annexure, Commonwealth Bank statements of Ms Lyons.
At the hearing, Ms Lyons said there was no regular payment from Mr Lister for groceries. This is inconsistent with Mr Lister’s report to Centrelink and Ms Lyons’ reporting during the period. Ms Lyons accepted that this arrangement was in lieu of child support. Ms Lyons has never arranged for a child support assessment and has remained on a private collection arrangement.
The sharing of household expenses and joint financial commitments in relation to an investment property point to the likelihood of Ms Lyons being a member of a couple.
The nature of the household: section 4(3)(b)
During the relevant period, Ms Lyons and Mr Lister lived under the same roof with their two children for whom they jointly care and support. Ms Lyons advised in her claim forms that they sometimes eat their meals together. At the hearing, Ms Lyons said they never sat down and ate together.
Ms Lyons and Mr Lister shared the use of the bathroom, kitchen and laundry but had separate bedrooms. Ms Lyons and Mr Lister jointly take care of cleaning, washing gardening and general maintenance.[38]
[38] Exhibit 1, T Documents, T20, page 168, Centrelink record.
During the relevant period, there is no evidence of any arrangement regarding how assets were to be split in the event that one or the other moved out of the home.
Ms Lyons says:[39]
(a)Mr Lister slept in a separate room attached to the main house and had his own fridge outside the house where he kept his food and drinks;
(b)she was the main user and cleaner of the kitchen and prepared the meals for the children, herself and occasionally Mr Lister;
(c)the more accurate date of their separation was January 2013 when she moved to Queensland where her family resided;
(d)she moved in with Mr Lister on 10 February 2017 and says that she paid for the entire bond and one month rent in advance without any contribution from Mr Lister;
(e)other than rent, electricity and Internet, all other living expenses are paid for independently.
[39] Exhibit 3, Document entitled Nirvana Crescent – house set up prepared by Ms Lyons.
Ms Lyons said that Mr Lister would normally leave the house before she was up. Otherwise, he would come into the house at night in order to use the bathroom and laundry.
Mr Lister spoke with a Centrelink officer on 16 June 2017 and told them that he shares the shopping costs with Ms Lyons as well as the rent, phone and electricity expenses. Mr Lister also said that they eat meals together on occasion and take turns to shop for the household. According to Mr Lister, both he and Ms Lyons jointly take care of the cleaning, washing, gardening and general maintenance. Mr Lister also advised that he had holidayed with Ms Lyons but that relatives, friends and regular associates did not consider that they were a couple and do not invite them out socially as a couple. The Centrelink officer recorded that Mr Lister said that he and Ms Lyons were seen to be reconciling the relationship when they moved in together. At that time, Mr Lister told the Centrelink officer that there were no intentions at that stage for them to live separately and apart from one another but that he did not feel they had reconciled the relationship. He said that Ms Lyons’ family perceived that they were reconciled. Mr Lister said he had moved back and given up his employment to come back to Queensland and to live with Ms Lyons and had been looking for work. He said he intends to continue to live with Ms Lyons under the same roof and raise the children together and that they moved back in with one another to support one another in raising their two children.[40]
[40] Exhibit 1, T Documents, T20, pages 168 – 169, Centrelink record.
Ms Lyons said she did not understand why Mr Lister said what he said to the Centrelink officer and that what he said was largely untrue. Ms Lyons says her family were fully aware that they were not reconciled. Ms Lyons did not call any friends or family to give evidence of their knowledge of the relationship during the relevant period. When it was put to Ms Lyons that Mr Lister had given up employment in order to move back to Queensland to live with her, she said “you know what, I don’t know”. She then said he did not quit his job and move back for her. Ms Lyons’ earlier evidence was that the purpose of his moving in with her was so that they could jointly support and care for the children. At the hearing, however, she said that Mr Lister rarely assisted with the care of the children during the period they lived together.[41]
[41] Exhibit 3, Ms Lyons’ Chronology.
At the hearing, Ms Lyons said that Mr Lister eventually moved out in January 2018 because of the difficulty she had been having with Centrelink. Ms Lyons explained that Centrelink were not going to believe she was not a member of a couple while he remained in the house.
The social aspects of the relationship: section 4(3)(c)
Ms Lyons and Mr Lister went on a two week holiday to Thailand together with Mr Lister’s mother in September 2016 which was paid for by Mr Lister’s mother.[42] Ms Mitchell confirmed in a statutory declaration that she had organised and paid for the holiday. Ms Mitchell states that although Ms Lyons and her son had separated, she had continued to keep a close connection with her and still considered her part of her family and the mother of her grandchildren.[43]
[42] Exhibit 4, Statutory Declaration of Ms Ronnie Mitchell dated 27 June 2018.
[43] Exhibit 4, Statutory Declaration of Ms Ronnie Mitchell dated 27 June 2018.
Mr Lister advised Centrelink that they were seen by others to be reconciling the relationship with one another when they moved back in together.[44]
[44] Exhibit 1, T Documents, T20, page 169, Centrelink record.
No evidence was given by friends and associates about their assessment of the nature of the relationship.
Any sexual relationship: section 4(3)(d)
Centrelink recorded that Ms Lyons and Mr Lister were currently in a sexual relationship with each other.[45]
[45] Exhibit 1, T Documents, T20, page 169, Centrelink record.
Ms Lyons reported during the period that they had “slipped up” a few times.
Ms Lyons told the Tribunal that although she had slipped up in August 2016, at no time did she think that she would reconcile with Mr Lister and she had not had a sexual relationship with him since that time.
On 30 April 2017, in her Separated under One Roof form, Ms Lyons ticked both the “yes” and “no” boxes in answer to whether she was in a sexual relationship with Mr Lister. She says that she was referring to the past not present.[46] She says she was not sure whether the form was referring back to August 2016 or not.
[46]Exhibit 1, T Documents, T6, page 64, Separated under One Roof form completed by Ms Lyons on 30 April 2017.
The nature of Ms Lyons’ and Mr Lister’s commitment to each other: section 4(3)(e)
During the relevant period, Ms Lyons represented that living under one roof with Mr Lister was a trial but was for an indefinite period.
Mr Lister told Centrelink that Ms Lyons’ family perceived them to be reconciled with one another but that he did not feel that they had reconciled. Mr Lister confirmed that he intended to continue to live with Ms Lyons under the same roof so they could raise the children together.[47]
[47] Exhibit 1, T Documents, T20, page 169, Centrelink record.
Ms Lyons says it was never her intention to reconcile with Mr Lister.
Conclusion – Section 4(3)
Their reasons for moving in together, the fact that they moved in together 3 months before the birth of their second child, the shared care of the children and the sharing of the primary living expenses are consistent with actions taken by those who are members of a couple.
The evidence of Ms Lyons at the hearing was somewhat inconsistent with evidence given by her during the period being considered. It appeared to the Tribunal that Ms Lyons was attempting to downplay her relationship with Mr Lister.
Considering all of the circumstances, the Tribunal finds that Ms Lyons was a member of a couple during the relevant period.
IS THERE A SPECIAL REASON THAT MS LYONS SHOULD NOT BE TREATED AS A MEMBER OF A COUPLE PURSUANT TO SECTION 24?
As the Tribunal has found that Ms Lyons was a member of a couple, the Tribunal must now consider whether there is, for the purposes of s 24(2) of the Act, a special reason why Ms Lyons should not be treated as a member of a couple.
What must be considered is the position of Ms Lyons, not the position of the couple of which she is a member: Boscolo v Secretary, Department of Social Security (1999) 90 FCR 531 at 536; 53 ALD 277 at 282 per French J (“Boscolo”).
The Secretary referred the Tribunal to the Guide to Social Security Law (“the Guide”) which is used by the Department. Section 2.2.5.50 of the Guide sets out how section 24 is to be applied. The Tribunal is not bound to apply the Guide but it may, and it should, apply it in exercising its discretion unless it is unlawful or “tends to produce an unjust decision”.[48]
[48] Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, at 645.
Section 2.2.5.50 provides that the questions to be considered are whether there is:
(a) A special reason in this couple’s circumstances;
(b) A lack of being able to pool resources as a result of the couple’s circumstances;
(c) Financial difficulty as a result of the couple’s circumstances.
I note there is some debate as to whether section 24 of the Act poses 3 questions or fewer.[49] While financial difficulty and an ability, or lack thereof, to pool resources may be relevant in the circumstances to an exercise of the discretion, they are only relevant if they constitute a “special reason” which is all the section prescribes.
[49] See Purdie and Secretary, Department of Social Services [2013] AATA 743, at [14].
In order for Ms Lyons to not be treated as a member of a couple, the Secretary needs to be satisfied that there is a special reason why she should not be so treated. In the event that there is such a special reason, the Secretary may then determine that the person is not to be treated as a member of a couple.[50] Under section 24, even if a special reason exists, the Secretary may still decide not to exercise the discretion.
[50] Boscolo v Secretary, Department of Social Security (1999) 90 FCR 531, at [19].
The core requirement for “special reasons” is that there be something “unusual or different”: French J in Boscolo, at [18]; Kazmierczak v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] FCA 1084, Barker J, at [37].
In Cocks v Centrelink [2000] FCA 1248, O’Loughlin J said that it may be appropriate to exercise the discretion where a couple could not pool resources. In that case, Mrs Cocks had nothing to contribute to the pool of resources. However, in Secretary, Department of Families, Housing, Community Services & Indigenous Affairs and Nicolaas [2009] AATA 416, it was found that although the applicant’s partner was unable to contribute to the pooling of resources, it did not weigh in favour of exercising the discretion. Each situation has to be considered on its own circumstances.
Those decisions concerning whether or not a member of a couple should be treated as being single seem to relate to an applicant’s financial position and whether they would be subjected to significant financial hardship in the event that the discretion was not exercised in their favour.[51] The Federal Court has referred to the fact that there is a particular focus under the Act on the practical ability of the resources of the partner being available for pooling with the resources of the person holding pension. Barker J in Kazmierczak v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs[2010] FCA 1084 said that:
[42] It stands to reason that if for some legal or other practical reason the partner member of the couple cannot be treated as sharing income and assets that there is a ground for exercising the discretion under section 24 so as not to treat the holder of the pension as a member of a couple who are capable of sharing resources.
[51] See for example, Secretary, Department of Social Security v Le-Huray, Cheryl [1996] FCA 477.
The Tribunal is not satisfied here that there is any special reason which warrants treating Ms Lyons as if she was not a member of a couple. There is evidence that Ms Lyons and Mr Lister pooled some resources and in particular those related to the primary day-to-day expenses of rent and electricity. There is no evidence that satisfies the Tribunal that Ms Lyons was suffering financial hardship as a result of being treated as a member of a couple.
In these circumstances, I find that no “special reason” exists to enliven the discretion in section 24.
Ms Lyons raised no “special reason” which may exist to enliven the discretion in section 24 of the Act.
CONCLUSION
Ms Lyons’s appeal fails. The Tribunal finds that Ms Lyons was a “member of a couple” for the purposes of the Act between 1 June 2017 and 29 January 2018 and no special reason exists to treat her differently.
The decision under review is affirmed.

I certify that the preceding 78 (seventy - eight) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg

.........................[Sgd]...............................................
Associate
Dated: 27 September 2018

Date of hearing: 10 September 2018

Applicant: In person

Advocate for the Respondent: Jacky Vetter, Seconded Lawyer

Solicitors for the Respondent: Department of Human Services

[2018] AATA 3644

27 September 2018

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Standing

Date of hearing:	10 September 2018
Applicant:	In person
Advocate for the Respondent:	Jacky Vetter, Seconded Lawyer
Solicitors for the Respondent:	Department of Human Services