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

This matter concerned an appeal by Mrs Mears against a decision by the Secretary, Department of Social Services, regarding her eligibility for the age pension. Mrs Mears was treated as a member of a couple for the purposes of the *Social Security Act 1991* (Cth), which resulted in her ineligibility due to her husband's assets. The central dispute was whether Mrs Mears should be treated as not a member of a couple, thereby potentially qualifying her for the pension.

The Administrative Appeals Tribunal was required to determine whether there were sufficient grounds to treat Mrs Mears as not a member of a couple, specifically considering the application of section 24 of the *Social Security Act 1991* (Cth). This involved assessing whether there were "special reasons" to depart from the general rule of treating married individuals as a couple. The Tribunal also had to consider the status and application of the Department of Social Services' "Guide to Social Policy" in making its determination, particularly in light of a disclaimer accompanying the online version of the Guide.

The Tribunal, presided over by O'Donovan SM, reasoned that the principle underlying the Social Security Guide, which suggests that couples who limit access to financial resources should not be treated as single by that device, should be applied to Mrs Mears' case. While acknowledging the disclaimer on the Guide, the Tribunal found that it was, in practice, used by decision-makers as a basis for policy decisions. The Tribunal was persuaded that Mrs Mears ought to be treated as single, finding that there were practical or legal reasons preventing the couple from pooling their resources, which aligned with the conditions under which the discretion in section 24 could be exercised.

The Tribunal concluded that it should exercise its power under section 24 to treat Mrs Mears as not a member of a couple. The matter was remitted to the parties to propose a decision regarding the correct pension entitlement and its date of effect, consistent with the finding that Mrs Mears should be treated as if she were not a member of a couple. The Tribunal noted that the parties should also consider the implications of section 43(6) of the *Administrative Appeals Tribunal Act 1975* (Cth) and section 147 of the *Social Security (Administration) Act 1999* (Cth) on the date of effect of its decision.