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

This matter concerned an appeal by Mr Moustakas against a decision of the Secretary of the Department of Social Services. Mr Moustakas had been receiving the age pension (AP) at the single rate since 2011. In 2015, he invited his long-time friend, Ms Drosou, to migrate to Australia and live with him. They became partners in December 2015, and Mr Moustakas registered their relationship with the Department, resulting in his AP being paid at the partnered rate from March 2019. Ms Drosou was diagnosed with Stargardt Disease in October 2019, a progressive condition causing significant vision impairment. In November 2022, Mr Moustakas requested that his AP be paid at the single rate, arguing that he had not shown financial difficulty nor demonstrated special reasons for this. The Agency initially affirmed this decision, as did an Authorised Review Officer. However, the Social Services and Child Support Division of the Tribunal set aside the Agency's decision, finding that Mr Moustakas's circumstances were unusual and provided a special reason not to treat him as a member of a couple. The Tribunal concluded that Ms Drosou's impairment prevented her from earning an income, added to Mr Moustakas's costs, and that he did not benefit from the pooling of resources.

The legal issue before the Tribunal was whether there existed a "special reason" to determine that Mr Moustakas should not be treated as a member of a couple for the purposes of his age pension entitlement, pursuant to section 24 of the relevant Act. This required an assessment of whether the circumstances of the couple warranted such an exception, specifically considering any inability to pool resources and any resulting financial difficulty. The Tribunal was required to interpret this discretion in line with the Act's purpose, which is to provide a higher rate of pension to un-partnered individuals who do not benefit from the economies of shared living costs.

The Tribunal reasoned that the discretion under section 24 is not lightly enlivened and involves a two-stage process: first, assessing if a special reason exists, and second, exercising discretion to not treat the person as a member of a couple. The Tribunal found that Ms Drosou was ineligible for income support until March 2029 and had no assets or income of her own. While Mr Moustakas did not expect her to be entitled to social security benefits, and he was aware of this when they became partners, the Tribunal was satisfied that there was an inability to pool resources because Ms Drosou had no independent financial means. The Tribunal noted that Mr Moustakas's age pension and carer allowance were their sole source of income, and he had accumulated debt and needed to use his savings to meet their living costs.

Ultimately, the Tribunal was not satisfied that the financial or other circumstances identified by Mr Moustakas warranted exercising the discretion under subsection 24(2). Consequently, the reviewable decision was set aside, and in substitution, it was decided that Mr Moustakas had been entitled to be paid the age pension at the partnered rate since 29 November 2022.