Moustakas; Secretary, Department of Social Services and (Social services second review)
[2024] AATA 2160
•27 June 2024
Moustakas; Secretary, Department of Social Services and (Social services second review) [2024] AATA 2160 (27 June 2024)
Division:GENERAL DIVISION
File Number(s): 2023/7037
Re:Secretary, Department of Social Services
APPLICANT
AndJohn Moustakas
RESPONDENT
DECISION
Tribunal:Mr S Evans, Member
Date:27 June 2024
Place:Sydney
The reviewable decision dated 22 August 2023 is set aside and in substitution it is decided that Mr Moustakas has been entitled to be paid AP at the partnered rate since 29 November 2022.
.............................[sgd]........................................
Mr S Evans, Member
Catchwords
SOCIAL SECURITY – age pension – member of a member of a couple - whether ‘special reason’ to determine respondent as not a member of a couple - inability to pool resources - couple have other reasonable means of support available to them – applicant owns home and has savings – Tribunal not satisfied there exist either financial or other circumstances which warrant exercising the discretion - the reviewable decision is set aside and substituted.
Legislation
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Cases
Re Drake and Minister for Immigration, and Ethnic Affairs (No. 2) (1979) 2 ALD 634
Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 33 ALD 13
Boscolo v Secretary, Department of Social Security [1999] FCA 106
Ahamed v Secretary, Department of Social Services [2020] FCCA 1245
Sorrenti and Secretary, Department of Social Services (Social services second review) [2018] AATA 4301
Purdie and Secretary Department of Social Services [2013] AATA 743
Mohammad and Secretary, Department of Social Services (Social services second review) [2020] AATA 4911Secondary Materials
Guide to Social Security Law
Social Security Legislation Amendment Bill (No 45) 1991 (Cth)
REASONS FOR DECISION
Mr S Evans, Member
27 June 2024
The Secretary of the Department of Social Services (the Secretary) seeks review of a decision of the Social Services and Child Support Division (AAT1) which determined that John Moustakas (the Respondent) should be paid Age Pension (AP) at the single rate from 3 December 2022. [1]
[1] T-Documents, T2, p.3-8.
For the reasons that follow, the reviewable decision will be set aside.
BACKGROUND
Mr Moustakas has been in receipt of AP since being granted AP at the single rate on 31 January 2011.[2] In 2015, Mr Moustakas invited his long-time family friend Paraskevi Drosou to migrate from Greece and live with him in Australia.[3]
[2] T9, p.74.
[3] T11, p.105.
Mr Moustakas and Ms Drosou became partners in December 2015 and Mr Moustakas registered their relationship with the Department of Social Services (the Agency) on 26 March 2019.[4] The Agency began paying Mr Moustakas AP at the partnered rate from that date.[5] Ms Drosou was granted a permanent partner visa on 26 March 2019 and on 24 February 2021 she became an Australian citizen.[6]
[4] Ibid; Secretary’s Statement of Facts, Issues and Contentions dated 15 February 2024 at [4]-[8] (‘A SOFIC’).
[5] A SOFIC [4]-[8].
[6] Ibid; T4, p.33; T6, p.54.
On 24 October 2019, Ms Drosou was diagnosed with Stargardt Disease, a progressive condition where she has significantly poor vision in both eyes.[7]
[7] Optometrist report by Dr George Pagonis dated 6 December 2022; T11, p.87, p.106.
On 29 November 2022, Mr Moustakas lodged a request that his AP be paid at the single rate despite his relationship with Ms Drosou.[8] The Agency decided not to pay AP at the single rate and notified him of its decision on 3 December 2022. The decision letter stated that Mr Moustakas had not shown he was in financial difficulty nor demonstrated there were special reasons for him to be paid as a single person.[9] Mr Moustakas lodged an application for review and an Authorised Review Officer (ARO) at the Agency affirmed the decision on 27 March 2023.[10] Mr Moustakas sought review of the ARO decision at the Social Services and Child Support Division of the Tribunal, which set the decision aside on 22 August 2023 (the reviewable decision).[11]
[8] T6, p.48-50.
[9] T7, p.70.
[10] T8, p.72-73.
[11] T1, p.1-2; T2, p.3-8.
The AAT1 found that Mr Moustakas’s circumstances were unusual and provided a special reason not to treat him as a member of a couple. The Tribunal found that Ms Drosou’s impairment prevented her from earning an income or otherwise contributing to her household and had added to Mr Moustakas’s costs. The Tribunal concluded Mr Moustakas did not benefit from the pooling of resources. The Tribunal noted:
Ms Drosou is not entitled to disability support pension or age pension because she does not have 10 years of qualifying Australian residence. The earliest this could occur is 26 March 2029. On 3 December 2022 Centrelink decided that she was also not eligible for special benefit because she and Mr Moustakas had reserves of more than $5,000.
On 14 November 2019 Mr Moustakas wrote to Centrelink to ask to be treated as single for social security purposes, pursuant to section 24 of the Act. He explained that Ms Drosou had no assets, and given her impairments, had no prospect of earnings and was financially dependent on him. He observed that it was very difficult for them both to live on $698 per fortnight.
…
The Tribunal notes that Mr Moustakas is paid approximately $935 per fortnight, which is a combination of age pension ($790) and carer allowance ($144.80). However, this is less than the single rate of age pension and does not account for the fact that he is providing for himself and Ms Drosou. Mr Moustakas states, and the tribunal accepts, that he has needed to borrow money from his son to meet his basic costs of living, accumulating a debt of $12,820.[12]
[12] T2, p.5-6 at [12]-[13], [17].
In setting aside the decision, the Tribunal acknowledged Mr Moustakas had liquid assets around $150,000 and had no other significant assets or superannuation apart from his family home. The Tribunal found the savings were a modest provision for his retirement, upon which he would need to draw for irregular costs, unexpected medical expenses and funeral expenses.[13]
[13] T2, p.8; T6, p.65.
The Tribunal was satisfied that Mr Moustakas was experiencing financial difficulties and accepted he was required to go without necessities and ‘choose between buying food, clothing or paying household bills’. The Tribunal found Mr Moustakas should be paid AP at the single rate as of 3 December 2022 pursuant to section 24 of the Social Security Act 1991 (Cth) (the Act).[14]
[14] T2, p.8.
ISSUE
The issue to be determined is whether, for a special reason, a determination should be made to treat Mr Moustakas as not being a member of a couple from 29 November 2022 for the purposes of his rate of AP.
LEGISLATION AND POLICY
Section 1064 of the Act contains the rate calculator to be used for the purposes of calculating the rate of age pension payable to a person. The Act provides that the rate is affected by whether a person is single or a member of a couple. The partnered rate of age pension is less than the single rate because where a person is a member of a couple, it is expected they will pool their resources and share their expenses.
Subsection 4(6) of the Act states that ‘a person is not a member of a couple if a determination is made under section 24 is in force in relation to the person’. Subsection 24(2) provides:
(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.
The Social Security Guide (the Guide) provides relevant departmental policy guidance.[15] It is well established that the Tribunal is not bound by government policy, but it will generally be taken into consideration unless there is good reason not to do so.[16]
[15] Guide to Social Security Law.
[16] See Re Drake and Minister for Immigration, and Ethnic Affairs (No. 2) (1979) 2 ALD 634, 645 per Brennan J, which was cited with approval in Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 33 ALD 13, 30 per French and Drummond JJ.
The Guide provides at Instruction 2.2.5.40:
Section 24 of the SSAct provides discretion to enable a delegate to decide if there is a 'special reason' NOT to treat a person as a member of a couple (1.1.M.120).
It deals with inequitable and/or unjust situations and only applies in very limited cases when all other reasonable avenues have been explored and exhausted.
Where the delegate decides there is a special reason, which would make it unfair to administer the partnered rate of payment and/or the partner income and assets test in relation to a person, the person will be treated as not being a member of a couple. They will be paid the single rate of payment and, only the person’s individual income and assets are to be used in assessing their rate.
Instruction 2.2.5.40 of the Guide states that three questions need to be considered as part of an assessment (while looking at the full circumstances) of the application of section 24, namely:
• Is there a special reason to be considered in this couple’s circumstances?
• Is there a lack of being able to pool resources for the couple as a result of the
circumstances?
▪ Is there financial difficulty as a result of the couple’s circumstances?
EVIDENCE
Mr Moustakas gave evidence at the hearing and made a submission and statement in support of his application to the AAT1 in August of 2023.[17] He made a submission in response to the Secretary’s Statement of Facts, Issues and Contentions on 28 February 2024.[18]
[17] T11, p.84-109.
[18] Response to the Secretary’s Statement of Facts, Issues and Contentions, and Further Supporting Evidence dated 28 February 2024 (‘R SOFIC’).
Mr Moustakas writes that he has known Ms Drosou for 50 years and they share a deep bond. She came to live with him in a ‘mature companionship relationship’ with the intention of looking after him as he aged. He has a variety of health conditions, and he says she wanted to make sure he had someone to look after him as he got older.[19] Mr Moustakas’ health conditions include type 2 diabetes, hypertension, allergies, asthma, hyperlipidaemia, and multinodular goitre which require medication.[20]
[19] R SOFIC at [15].
[20] T11, p.96; p.125.
Mr Moustakas has cared for Ms Drosou since the onset of her condition in 2019. When she became ill, he applied for and was granted carer allowance which he continues to receive.
Mr Moustakas said that Ms Drosou’s condition is ‘…rare…unpredictable and untreatable and severely debilitating’.[21] She is 71 years of age, faces a language barrier as she does not speak English and is legally blind. She cannot leave the house without him and is unable to work.[22] He writes:
Caring for [Ms Drosou] and myself is more challenging than just caring for myself would be at this age. I am home all day with her. I can't go anywhere. The only time I leave is to go shopping and take her to church. She cannot be home for long periods or leave the house without me.[23]
[21] R SOFIC at [31].
[22] R SOFIC at [4]-[5]; T11, p.95
[23] R SOFIC at [31].
As noted in the reviewable decision, Ms Drosou is subject to a Newly Arrived Resident’s Waiting Period (NARWP) and not entitled to social security benefits until 26 March 2029.[24] Mr Moustakas supports both he and Ms Drosou and says his AP is their sole source of income. Mr Moustakas writes that he and Ms Drosou’s ‘pooled resources’ are the same as his resources.[25]
[24] T2, p.5 at [12].
[25] R SOFIC at [31].
Mr Moustakas’ AP provides $826.70 per fortnight and his total social security payment is $980.20 per fortnight when carer allowance is included.[26] The single rate equivalent per fortnight with supplements is $1,096.70, a difference of $270.00 per fortnight or $7,020.00 per year based on current payment rates.[27]
[26] A SOFIC at [57].
[27] A SOFIC at [60].
Mr Moustakas holds a Pensioner Concession Card which entitles him to concessions funded by the Commonwealth, State and Local governments, and some private organisations. [28]
[28] A SOFIC at [57].
Ms Drosou has been treated for her condition at Prince of Wales Hospital, a Low Vision Clinic ‘to try some low vision aids’ and referred to Vision Australia for further assistance. [29] In his statement of August 2023 Mr Moustakas expected Ms Drosou would require visual aids to ‘improve her quality of life’, including the installation of touch points throughout their house, and ‘magnifying devices’.[30] At that time Mr Moustakas was unsure what the cost of these supports for Ms Drosou would be, with the exception of a March 2023 UNSW Optometry Clinic quote of $246 for spectacles.[31]
[29] T11, p.121-124.
[30] T11, p.108; p.118.
[31] T11, p.121.
Mr Moustakas said the bathroom in the house he shares with Ms Drosou is old and difficult for Ms Drosou to use. The shower is in the bathtub it is difficult for her to step in and out of. Mr Moustakas plans to remove the bath so there is easy wheelchair access to the shower. The bathroom upgrade has been under consideration since 2019 but has not commenced. He said that he does not know if he will be able to afford to complete the work.
In his 8 August 2023 statement, Mr Moustakas stated that the bathroom renovation would be beneficial for both he and Ms Drosou. He confirmed having received a quote of $18,700 to perform the work, which he said was ‘well above’ what he could afford.[32]
[32] T11, p.108.
In evidence are more recent estimates to perform the bathroom renovation. Home Builders provided a quote of $25,400 in February 2024, which Mr Moustakas said would amount to $38,240 after he paid for fittings and other essentials. In March 2024, Crystal Bathrooms quoted Mr Moustakas $44,950 to complete the work.[33] Mr Moustakas confirmed at the hearing that the renovations had not started.
[33] R SOFIC, p.10-11.
Mr Moustakas owns the home he shares with Ms Drosou. He had a mortgage which he paid many years ago. Mr Moustakas told the AAT1 he had $150,000 in savings, which he confirmed in his February 2024 submission.[34] A St George transaction listing statement dated 13 February 2023 confirms the term deposit investment had not been drawn down and had a current value of $151,975.47.[35] Mr Moustakas would like to keep his savings ‘untouched as security’ for Ms Drosou if something were to happen to him.[36]
[34] T2, p.8; T6, p.65; T11, p.88; R SOFIC at [10].
[35] T11, p.126.
[36] T11, p.108.
In evidence is a breakdown of total weekly expenses prepared by Mr Moustakas which includes food; medical expenses; gas and electricity; car maintenance; and house and car insurance submitted in August 2023 totalling $672.21.[37] In February 2024, he provided an updated breakdown of his weekly expenses totalling $771.16. He attributed the increased outgoings to a significant increase in costs. His updated estimate also includes a modest amount for supplementary medications not provided by Medicare and substantial increases in energy and insurance outgoings.[38]
[37] T11, p.120.
[38] R SOFIC, p.7
Mr Moustakas has had to borrow money from his son on ‘numerous occasions’. In August 2023 he submitted he owed $12,820 to his son. He wrote his son was experiencing financial hardship and required Mr Moustakas to repay the loan. He said he was doing so at a rate of $82.17 each week over three years.[39] In his February 2024 submission, Mr Moustakas states the debt to his son had increased to $24,320, which will need to be repaid.[40] When needed, Mr Moustakas borrows money from his son so he can leave his savings in the high interest term deposit. He confirmed at the hearing he was yet to begin repaying his son as his son’s financial circumstances improved.
[39] T11, p.108; p.118.
[40] R SOFIC at [13].
In addition to repaying the money he has borrowed from his son, Mr Moustakas says he will need $43,950 of his savings to renovate his bathroom and $78,000 to cover funeral and burial expenses.[41]
[41] R SOFIC, p.7.
CONSIDERATION
There is no dispute that Mr Moustakas and Ms Drosou are members of a couple and that he would ordinarily be expected to receive AP on that basis. The only issue to be determined is whether for a ‘special reason’ a determination should be made to treat Mr Moustakas as not a member of a couple from 29 November 2022.
Whether there is a special reason must be interpreted in the context and consistent with the scope and purpose of the Act. That context and purpose was explained in the Explanatory Memorandum to the Social Security Legislation Amendment Bill (No 45) 1991 (Cth) which provided at 17:
…there is justification in paying a higher rate to an un-partnered person than to a member of a couple if both members of the couple are living together. This justification is based on the premise that the un-partnered person does not enjoy the economies of shared living costs as does the member of a couple in those circumstances. If the economies of scale are not available to the member of the couple because, for example, of the illness of one or both members of the couple, then each would face similar living costs as an un-partnered person.
When considering the exercise of section 24, French J in Boscolo v Secretary, Department of Social Security (Boscolo) held that the discretion is ‘not lightly enlivened’ and that:
The decision-making process under s 24 is notionally in two stages. First, is the assessment whether there is a special reason in the particular case for which the Secretary is satisfied that the person the subject of his discretion should not be treated as a member of a couple. There follows the determination that the person is not to be treated as a member of a couple. The latter determination involves the exercise of discretion although as a practical matter assessment and determination will tend to be rolled up as one decision.[42]
[42] Boscolo v Secretary, Department of Social Security [1999] FCA 106 at [19].
Ms Drosou is ineligible to receive income support until 26 March 2029 and had no assets of her own when she and Mr Moustakas became a couple.[43] Mr Moustakas does not contend that Ms Drosou intended to obtain paid employment and indicates in his written submissions he did not expect she would be entitled to social security benefits initially. I note Mr Moustakas submits he was told by an officer at the Agency that, shortly before Ms Drosou arrived in Australia a change to the law restricted access to benefits for people in her position. In any event, the circumstances were known to Mr Moustakas when he and Ms Drosou became partners.[44]
[43] R SOFIC at [25]; T2, p.5.
[44] T11, p.106.
Based on the evidence I am satisfied that there is an inability to pool resources in so much as Ms Drosou does not have any assets or income of her own, and this situation is not expected to change until 2029.
The Guide provides that the discretion in section 24 may be considered where there is an inability to pool resources and there are financial difficulties, and one member of a couple is subject to a NARWP and unable to work.[45]
[45] Guide to Social Security Law at Instruction 2.2.5.40.
There are a series of cases considering section 24, what may constitute special reasons and the inability of parties to pool resources. After considering a number of these, Riethmuller J in Ahamed v Secretary, Dept of Social Services (‘Ahamed’) concluded:
What emerges from these cases is that couples are expected to pool resources. In the ordinary run of cases this presents few difficulties for decision makers, as a spouse will be entitled to half of a couple's pension unless they have other resources or income (whatever category of benefit or pension one considers). That a couple in this situation have expenses greater than income, or choose lifestyle arrangements that cost more than their income amount, is not generally a special circumstance. Where, however, one member of the couple has no work rights and no assets or pension, the section is usually satisfied. The difficulty arises where the lack of pension or employment is not simply a legal impediment (such as a visa condition) but rather a practical one. In these circumstances careful consideration of the specific circumstances of the couple is required. [46]
[46] [2020] FCCA 1245 at [16].
Mr Moustakas contends that Mrs Drosou’s condition constitutes a ‘special reason’ to exercise the discretion in section 24 because its onset was outside of their control, as was the imposition of a NARWP.
There is no question regarding Mrs Drosou’s diagnosis, the deterioration of her eyesight or that she has receiving treatment for her condition. Mr Moustakas estimated the cost of vision assistance to be $5000. Mr Moustakas has received estimates to complete the bathroom renovation starting at $18,720.[47] The more recent estimates are significantly higher and indicate that the cost of the work has increased exponentially over time. Mr Moustakas has yet to proceed with the work, and the increasing cost of the work leads me to conclude he is unlikely to do so in the foreseeable future.
[47] T11, p.120.
Mr Moustakas confirmed he had not purchased the spectacles for Ms Drosou for which he was quoted $245, as he could not afford to do so. There is no evidence to support Mr Moustakas having incurred significant additional expenses on account of Ms Drosou’s condition or of having ‘spent significant sums of money adapting his home to accommodate her sight impairment’ as he claims.[48]
[48] T2, p.5.
Mr Moustakas acknowledges that his own health conditions are not unusual or out of the ordinary for people of his age but, submits they add context to the difficulties of his caring role and cost of his own medication and specialist review.[49] When considering Mr Moustakas’ health as it relates to there being a special reason, I take into account the observation of the Tribunal in the matter of Sorrenti and Secretary, Department of Social Services (Social services second review), where the Tribunal found that section 24 was not satisfied and held at [29-30]:
The Tribunal considers that the deliberate use by the Parliament of the term “special reason” in section 24 is particularly instructive, in the sense that decision-makers are directed to look at the entirety of the circumstances of a particular applicant to ascertain whether there are “special” - that is, unusual or out of the ordinary - characteristics that apply to him or her which might provide a reason to enliven the discretion. Logically, it follows that the special characteristics relating to a person must be sufficiently different from characteristics that might be broadly applicable to other persons in the same broad category as the applicant so as to make his or her situation “special”.
Mr Sorrenti has provided medical evidence of the range of health conditions he has, and the fact that, prior to transferring to the age pension, he had been granted a disability support pension because of his inability to work. However, the Tribunal is not persuaded that, on the evidence, this suite of medical conditions is sufficiently distinguishable from the range of health conditions that other persons on the age pension might be typically expected to have, or to acquire.[50]
[49] T11, p.96.
[50] [2018] AATA 4301.
The Guide provides that where a couple’s situation in and of itself could be considered special, but the couple have other reasonable means of support available to them, the application of section 24 would not be appropriate.
I am mindful of DP Hack’s observation in Purdie and Secretary Department of Social Services in relation to the department policy that three questions set out in paragraph [15] of these reasons need to be considered as part of an assessment of the application of section 24:
For my part I remain unpersuaded that the section poses three questions. It seems to me the section poses only one question – is there a special reason to treat Mr Purdie in the present case as not being a member of a couple. It may well be that the inability to pool resources informs the policy reason for the insertion of s 24 in the Act but the requirement to consider financial difficulty, whilst no doubt relevant in many cases, is not something that I see dictated by the plain words of the statute.[51]
[51] [2013] AATA 743 at [14].
Mr Moustakas submits that he and Ms Drosou calculated that they could live comfortably together on his pension and savings when they moved in together.[52] Mr Moustakas’ living expenses and benefits are detailed in paragraph [28] of these reasons. His reported expenses are not able to be verified, but as submitted they significantly exceed the full rate of AP, even if carer allowance were maintained. Because he receives AP at the partnered rate, Mr Moustakas claims that he and Ms Drosou are required to go without necessities including food, and that he has been required to borrow money from his son in order to meet his expenses.[53]
[52] R SOFIC at [17].
[53] R SOFIC at [13]-[14].
In considering financial difficulty, I take into consideration that Mr Moustakas owns his home and is not required to pay rent or for accommodation. Mr Moustakas has more than $150,000 in savings which he wishes to maintain so that he can afford for Ms Drosou to return to Greece for holidays, which he says was part of the arrangement they made when she agreed to come to Australia. He also wishes to have funds in reserve for unexpected expenses, medical costs and to pay for he and Ms Drosou’s funerals, which he submits will become increasingly expensive.
Should he choose, Mr Moustakas’ savings would provide him $25,000 for each year until Ms Drosou is eligible to receive social security benefits in 2029.[54] This amount is greater than he submits he has been required to borrow from his son, and far exceeds the $7,200 per year difference between the full and partnered rate of AP. I am required to consider the totality of Mr Moustakas’ circumstances, and the financial difficulties he has described are not independent of his decision to reserve his savings for another purpose.
[54] A SOFIC at [59].
Mr Moustakas chooses to live frugally and believes he is being disadvantaged for having worked hard and made sacrifices to ensure he had the resources to provide for himself in his retirement. This sentiment is understandable, but I agree with the Tribunal’s observation in Department of Social Services v Dobbie “...that the purpose of the Age Pension is to assist those who require the assistance and are entitled to it according to their personal and financial circumstances” and “…not a right or return on one’s taxes upon reaching a particular age”.[55]
[55] [2022] AATA 324 at [46].
In Mohammad and Secretary, Department of Social Services (Social services second review) (Mohammad), the applicant was receiving age pension and suffered from end stage renal failure which required dialysis three times a week for five hours which the Tribunal found was ‘not the run of the mill health issues experienced by the majority of aged pensioners’.[56] In setting aside the decision, the Tribunal found at [44]:
The Tribunal finds that Mr Mohammad and Mrs Nazmun do not have any assets or savings and that they have significant debt and are in financial difficulty. The Tribunal also finds that Mr Mohammad is not experiencing the economies of scale when two people are living together; there is no ability to pool resources, and he is financially worse off because his income has diminished whilst his out goings has increased.
[56] [2020] AATA 4911 at [40] and [44].
Mr Moustakas argues that he and Ms Drosou’s circumstances are comparable to those of the applicant and his wife in Mohammad.[57] I accept similarities exist, but the circumstances are significantly different in determinative ways, most obviously their relative financial circumstances. Mr Moustakas owns his own home and has savings he can access, where the Tribunal found in Mohammad that the applicant and his partner did not have any assets or savings and had significant debt.[58]
[57] R SOFIC at [32].
[58] Mohammad and Secretary, Department of Social Services (Social services second review) [2020] AATA 4911 at [44].
CONCLUSION
The justification for paying a higher rate of pension to an unpartnered person than to a member of a couple is that a single person does not enjoy the same economies of shared living costs as a member of a couple. I accept that Mr Moustakas is unable to pool resources with Ms Drosou as she has no assets of her own and will not be eligible for social security benefits until 2029.
The only question posed in section 24 of the Act is whether there is a special reason to treat the person as not being a member of a couple. Case law and the Guide have established that an inability to pool resources is not in and of itself a reason to exercise the discretion.
Mr Moustakas and Ms Drosou decided to live together on the understanding that his AP would be the sole source of income for them both. They calculated that they could live comfortably together on this understanding. It could not reasonably have been anticipated that they would enjoy the economies of shared living costs. Ms Drosou’s medical condition does not alter that expectation or appear to have had a significant quantifiable effect on their financial and other circumstances at this time.
Having considered the evidence, I am not satisfied that there are either financial or other circumstances identified by Mr Moustakas which warrant exercising the discretion in subsection 24(2) and the reviewable decision will be set aside.
DECISION
For the reasons outlined above, the reviewable decision dated 22 August 2023 is set aside and in substitution it is decided that Mr Moustakas has been entitled to be paid AP at the partnered rate since 29 November 2022.
I certify that the preceding 54 (fifty - four) paragraphs are a true copy of the reasons for the decision herein of
................................[sgd]........................................
Associate
Dated: 27 June 2024
Date(s) of hearing: 4 April 2024 Applicant: In-person Solicitors for the Respondent: Mr B. Hearnden, Hunt & Hunt Lawyers
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