Mr HSTJ and Secretary, Department of Social Services (Social security second review) - [2025] ARTA 1693

Mr HSTJ and Secretary, Department of Social Services (Social security second review) [2025] ARTA 1693 (29 August 2025)
Applicant/s:  Mr HSTJ
Respondent:  Secretary, Department of Social Services
Tribunal Number:                2024/7287

Tribunal:Senior Member J Longo (second review)
Place:Melbourne
Date:29 August 2025

Decision:The Tribunal affirms the decision under review.

Statement made on 29 August 2025 at 9:23am
Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 201(1A) - 201(1B) of the Social Security (Administration) Act 1999.
Catchwords
SOCIAL SECURITY – age pension – claim - payability – rejection of age pension claim – member of a couple – section 63 notice – whether there was reasonable excuse for not complying with s.63 notice – rejection of age pension claim – whether applicant was a member of a couple at the time of the claim – whether there are any special reasons to treat the applicant as not being a member of a couple – reviewable decision affirmed.
Legislation
Administrative Review Tribunal Act 2024 (Cth)
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Family Law Act 1975 (Cth)
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Cases
Adkins and Department of Education, Employment and Workplace Relations [2008] AATA 817
Blatch v Archer (1774) 63 ER 969
Bilanovic and Secretary, Department of Social Services [2019] AATA 3250
Boscolo v Secretary, Department of Social Security [1999] FCA 106
Coshott v Prentice [2014] FCAFC 88
G v Minister for Immigration and Border Protection [2018] FCA 1229
Hartley and Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 470
In the Marriage of Todd (No. 2) (1976) 9 ALR 401
Ibarcena and Department of Family and Community Services [2000] AATA 1141
Kazmierczak and Secretary, Department of Families, Housing and Community Services [2010] FCA 1084
Mears and Secretary, Department of Social Services [2024] AATA 53
Minister for Immigration and Ethnic Affairs v Pochi (1980) 31 ALR 666
Pelka v Secretary, Department of Family & Community Services [2006] FCA 735
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Re Lynn Janet Staunton-Smith v Secretary, Department of Social Security (1991) 32
Samachetty and Secretary, Department of Social Services [2020] AATA 3730
Shiel v Department of Social Security [1999] FCA 1237
Secondary Materials
Social Security Guide
Statement of Reasons
BACKGROUND

The application before me relates to whether the Respondent correctly rejected a claim for age pension on the basis that the claimant did not comply with a notice to provide information relating to the applicant being considered a member of a couple at the time of their claim.
The Applicant, Mr HSTJ, is 82 years of age and lodged a claim for age pension on 1 May 2023. In support of the claim, Mr HSTJ completed a ‘Separated Under One Roof’ form dated 27 April 2023 which he provided to Services Australia – Centrelink (Centrelink) and stated that he had been separated from Mrs HSTJ since 1 May 2022. On 29 May 2023 Centrelink determined that Mr HSTJ was a member of a couple and as a consequence, sent a notice on 30 May 2023 requesting that Mr HSTJ complete and return a MOD P – Partner Details form.
On 2 June 2023, Mr HSTJ submitted a blank MOD P form with the words ‘I don’t have a partner as we are separated, hence, partner form cannot be submitted.’ Mr HSTJ also resubmitted the completed ‘Separated Under One Roof’ form dated 27 April 2023. On 5 June 2023 Centrelink sent a further notice requesting that he provide the following information:
·your mortgage or loan agreement for your property at [the investment property] and evidence of any security used against the loan.
·your partner's mortgage or loan agreement for their property at [the investment property] and evidence of any security used against the loan.
·we received your latest personal tax return, however we need the full tax return including a rental property schedule.
On 22 June 2023 Mr HSTJ provided a copy of the loan documents together with a letter regarding the property. On 4 July 2023 Centrelink sent a further notice requesting Mr HSTJ provide a MOD PT – Private Trust form and a MOD P – Partner Details form. On 21 July 2023, Mr HSTJ provided a blank MOD P form with a handwritten message stating that he did not have a partner and an incomplete ‘Private Trust’ form stating that he did not have a private trust and that, while there used to be a trust ‘some years ago for son [name]’ this was no longer active.
On 24 July 2023 Centrelink sent a further notice requesting Mr HSTJ provide evidence that a sole trader business ‘HOSPITALITY LINEN SERVICES’ had ceased trading. On 2 August 2023, Mr HSTJ provided a statutory declaration confirming that Hospitality Linen Services was sold in 2004.
On 2 August 2023 Centrelink rejected Mr HSTJ’s claim for age pension on the basis that he failed to provide the following information:
·     Partner Details form.
·     Bank statements to all accounts held by himself and Mrs HSTJ.
·     Loan statements for Commonwealth Bank account numbers ending in 3139 and 0399.
·     Mortgage statement for the Glenroy property.
·     2022 income tax returns for himself and Mrs HSTJ including the rental schedule for the Broadmeadows property.
On 27 October 2023, Mr HSTJ sought review of the decision. On 27 February 2024, an authorised review officer affirmed the decision to reject Mr HSTJ’s age pension claim on the basis that he was a member of the couple with Mrs HSTJ and had not provided requested information in respect of his partner. On 26 May 2024 Mr HSTJ lodged an application with the Administrative Appeals Tribunal (AAT) for review of the decision.
On 27 August 2024, the Social Security and Child Support Division of the AAT affirmed the decision. On 17 September 2024 Mr HSTJ applied to the AAT seeking second review of the decision. The AAT became the Administrative Review Tribunal (‘the Tribunal’) from 14 October 2024. Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (‘the Transitional Act’), applications for review to the AAT that were not finalised before the commencement of the Tribunal are taken to be applications for review to the Tribunal.
In summary, The Mr HSTJ’s position is that he is not a member of a couple for the purpose of his claim for age pension and has not been since 1 May 2022 and consequently, the income and assets of Mrs HSTJ should not be considered.
In summary, the Respondent’s position is that Mr HSTJ is a member of a couple and that there is no reason for Mr HSTJ to not be treated as a member of a couple. The Respondent further submitted that the requirements in the notices were reasonable and that he failed to comply. Accordingly, his claim was correctly rejected.
For the reasons that follow, the decision under review is affirmed.
I heard oral evidence from Mr HSTJ on 22 July 2025. Mrs HSTJ also gave evidence at the hearing. I had before me, the following documents:
·Mr HSTJ’s documents, (Exhibit A1 - 49 pages).
·Mr HSTJ’s documents, (Exhibit A2 - 10 pages).
·Joint hearing bundle prepared by the Respondent, comprising of the following (Exhibit R1):
o‘T’ documents initially submitted by the Registrar to the AAT numbered 1 to 257.
oSupplementary documents numbered 1 to 667.
In addition, the Respondent’s legal representative made detailed written submissions, a copy of which was provided to Mr HSTJ.

CONSIDERATION

The statutory provisions relevant to this application are found within the social security law, in particular the Social Security Act 1991 (the Act) and the Social Security (Administration) Act 1999 (the Administration Act). Entitlement to age pension is affected by whether a person is partnered, as the rate is dependent on the combined income and assets.
I am required to reach conclusions based on ‘rationally probative evidence’ rather than mere ‘suspicion or speculation’.[1] The evidence produced by the parties ‘is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted’.[2] I have had regard to the Social Security Guide (the Guide) where relevant, so long as what it contains is lawful. However, I am not bound to follow it.[3]
Issue 1: Was Mr HSTJ a member of a couple at the time of his claim for age pension?
Relevant legal considerations
[1] Minister for Immigration and Ethnic Affairs v Pochi (1980) 31 ALR 666 at 685.
[2] Coshott v Prentice [2014] FCAFC 88; (2014) 221 FCR 450 at [80], quoting Blatch v Archer (1774) 1 Cowp 63 at 65; 98 ER 969 at 970.
[3] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634; G v Minister for Immigration and Border Protection [2018] FCA 1229.
Paragraph 4(2)(a) of the Act provides that a person is a “member of a couple” if:
(a) the person is legally married to another person and is not, in the Secretary's opinion (formed as mentioned in subsection (3)), living separately and apart from the other person on a permanent or indefinite basis;
Subsection 4(3) of the Act sets out the factors that must be considered when forming an opinion as to whether or not a married couple are to be determined as living separately and apart on a permanent or indefinite basis:
(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.
In determining whether a person is a “member of a couple” it is well established that decision makers must consider all the criteria set out in subsection 4(3) (see above). I am required to reach an objective assessment of the relationship. Therefore, even in cases where the person or persons consider themselves as not being a member of a couple, in making my own assessment of the evidence, I may conclude differently.
The courts have considered the term ‘separation’ in a number of different contexts, including under the Family Law Act 1975. Addressing the issue of the meaning of the term ‘separation’ Watson J said In the Marriage of Todd (No. 2) (1976) 9 ALR 401:
Three concepts require examination: (a) separation, (b) living separately and apart, and (c) resumption of cohabitation. In my view “separation” means more than physical separation — it involves the destruction of the marital relationship (the consortium vitae). Separation can only occur in the sense used by the Act where one or both of the spouses form the intention to sever or not to resume the marital relationship and act on that intention; or, alternatively, act as if the marital relationship has been severed. What comprises the marital relationship for each couple will vary. Marriage involves many elements, some or all of which may be present in a particular marriage — elements such as dwelling under the same roof, sexual intercourse, mutual society and protection, recognition of the existence of the marriage by both spouses in public and private relationships.
When it is asserted that a separation has taken place it may be necessary to examine and contrast the state of the marital relationship before and after the alleged separation. Whether there has been a separation will be a question of fact to be determined in each case.[4]
[4] At page 403.
In Re Lynn Janet Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164, the Federal Court discussed the appropriate approach to making an overall assessment of a relationship:
The responsibility of the fact-finding Tribunal is to have regard to all the material facts of each case, treating the matters listed above only as indicators. The Tribunal will make its determination whether a particular man and woman are or are not living separately and apart only after assessing the totality of the evidence and other material that is before it.
It should, of course, be clearly understood that no Tribunal is required, in every case, to compile something in the nature of a checklist and then to proceed slavishly to comment on each item in the list. The personal circumstances of people vary substantially. The responsibility of the Tribunal is to extract from the evidence and other material that is before it those items of information that are properly classified as material to its deliberations. If the Tribunal performs that task it will only address those issues that are personal to the decision that is under review; it will then be able to state its findings on material questions of fact with appropriate references to the evidence or other material on which those findings were based.[5]
[5] At page 170.
The Guide at 2.2.5.30 discusses in essence, that in cases when considering the nature of a relationship, there is a requirement that a decision maker is satisfied that ‘the relationship has broken down and there is a level of physical and/or emotional estrangement, resulting in one or more parties having no intention to reconcile. An emotional estrangement can occur independently of whether the parties live in the same house or not.’ However, the Guide also requires the consideration of the factors, as prescribed in subsection 4(3) of the Act to determine whether a person is the member of a couple.
Mr HSTJ and Mrs HSTJ’s Evidence
Mr HSTJ confirmed that he lodged an application for age pension on 1 May 2023. He also confirmed that he received the letters sent to him on 30 May 2023 and 4 July 2023. Mr HSTJ confirmed that he wrote a message on the form to indicate that he was not in a relationship with Mrs HSTJ.[6] Mr HSTJ also confirmed that he hand wrote on the form that he did not have a partner and that he had already explained this to Centrelink. He stated that he didn’t complete the forms because he considered he was separated since May 2022.
[6] [T-7].
Mr HSTJ confirmed that he was married on 17 April 2010. He stated that he is still legally married to Mrs HSTJ and has been married for approximately 15 years. He confirmed that they commenced divorce proceedings and he signed an application for divorce on 7 February 2025. a copy of the unsigned application for divorce was provided in these proceedings.[7] Mr HSTJ stated that they did not apply for divorce sooner because of the vulnerability of their youngest child. He also stated that the application wasn’t made sooner due to the financial complexity of their relationship which are yet to be resolved. Mr HSTJ confirmed that his youngest child was born in 2010.
[7] A1 at pages 7 to 13.
Mr HSTJ confirmed that the property where he resides was purchased as joint tenants by himself and Mrs HSTJ on 26 November 2013. They have a mortgage with CBA in both names and the mortgage is still outstanding. On 13 January 2020 they purchased an investment property as joint tenants. The mortgage, however, was in Mrs HSTJ’s name. At the time they took advice from CBA to put the property in joint names even though the loan was in Mrs HSTJ’s name. Mr HSTJ stated that Mrs HSTJ is paying this loan and all outgoings. They realised later that this was incorrect to purchase the property in joint names the costs were not fully deductible from Mrs HSTJ’s income. He stated that he was listed as a guarantor for this mortgage and that this was the only option in order to get the loan. Mr HSTJ stated that this property was purchased for the benefit of Mr HSTJ’s eldest son from his previous relationship. He confirmed that he has not received any rental income from this property and that Mrs HSTJ handles the financials in relation to this property. The rental income for the property was included in his income tax return for 2021-22.[8]
[8] [S10] at page 464.
Mr HSTJ confirmed that Mrs HSTJ purchased another property in her own name and that he is listed as guarantor for the loan for this property. Mr HSTJ was asked why he was a guarantor for this property and he stated that he had nothing to lose if he was guarantor and didn’t see any negatives as the property would benefit the children. This was the same for both of the other properties. He stated that the income from the property was paid into an offset account. He stated that he didn’t know where Mrs HSTJ’s income was paid and that he has his own account which he uses.[9] Mr HSTJ stated that the $13,550 transferred to Mrs HSTJ was by her request, to be placed into their youngest son’s name.[10] Mr HSTJ stated that the credits to this account were being made from Mrs HSTJ’s salary.
[9] [S7].
[10] [S7] at page 94.
Mr HSTJ stated that he had a credit card which he used for purchases and that Mrs HSTJ was making the repayments towards this card. Mr HSTJ confirmed that school fees for their youngest child were paid from the card. Mr HSTJ stated that until his recent grant of age pension, Mrs HSTJ was lending him $45 per day so that he could purchase medication and other household items. He stated that Mrs HSTJ has been keeping records of the amounts for the period from 1 May 2022 until 26 February 2025 when he started receiving age pension. Mr HSTJ stated that he has not started repayments as he was awaiting the outcome of this application. He confirmed that there was no formal agreement and there has been no discussion as to when and how the money should be repaid, stating that the arrangement was based on trust. Mr HSTJ confirmed that Mrs HSTJ was paid for all expenses. Their health insurance was combined as it would be more expensive if they had separate policies. Mr HSTJ confirmed that Mrs HSTJ was the beneficiary of his will.
In respect of the living arrangements Mr HSTJ stated that they were living at the same address but in separate bedrooms. He stated that Mrs HSTJ did the majority of the household cleaning and he was responsible for the cleaning of his own area. He stated that he is limited in what he is able to do but would clean and cook for himself. Mr HSTJ stated that he was taking his youngest child to the bus stop and would take him to Tae Kwon Do lessons. He stated that he sometimes did things together with Mrs HSTJ such as attend the youngest child’s school concerts and attend church. He stated that they did these activities for the child’s sake. He stated that they celebrated his 80^th birthday and had a dinner and also travelled to Europe in August 2022, because it was too difficult to cancel. He stated that at the time that they had not told either of their children that they were separated, including his eldest child. They did not tell the eldest child because he was close to the youngest child and he would most likely say something to him and they did not want this to occur. He confirmed that his doctor was not aware of his separation, or anyone else, as he didn’t think it was appropriate to discuss these matters.

Mr HSTJ stated that he has received some care from Mrs HSTJ because he has physical disabilities and she would help him with tasks that he couldn’t do, such as taking the rubbish bin to the curb and help him carrying shopping bags because he could not manage these things. Mr HSTJ confirmed that he and Mrs HSTJ have their own vehicles.
Mrs HSTJ confirmed that they have been married for 15 years and that an application for divorce was made on 7 February 2025. She stated that they had been separated since 1 May 2022. Mrs HSTJ stated that they did not apply for divorce until this year because Mr HSTJ took the separation hard. They also did not apply for divorce because of their son and wanted to make sure that there was a stable environment before telling the children. She stated that their financial circumstances were complex.
Mrs HSTJ confirmed that they owned the home jointly and had a joint home loan and offset account for this property. She had made enquiries regarding the insurance for this property and had been told that it could stay the same and as it was not a priority, this was not changed. In regard to the investment property, Mrs HSTJ said that the property was purchased as joint tenants on the basis of the advice from the bank. She stated that she has been advised that it would cost between $30,000-$45,000 to transfer the property into her name. Mrs HSTJ confirmed that she was paying $200 per month for the benefit of the eldest child and that this has continued for the youngest child.
Mrs HSTJ said that she had transferred funds to Mr HSTJ to purchase his own medication and other expenses. She stated that they have not discussed repayment of this money. Mrs HSTJ confirmed that Mr HSTJ had paid for bills and household expenses.
Mrs HSTJ confirmed that they were living under one roof with their youngest child but they were in separate bedrooms. She stated that she looked after the household chores for herself and the child and that they had a common shared area but staggered the use so it was separate. She confirmed that she attended to the child’s educational needs while Mr HSTJ took him to school and to his extracurricular activities and that they attended events together such as church, school concerts and occasional sporting events. Mrs HSTJ confirmed that they celebrated Mr HSTJ’s 80^th birthday and also went on holiday to Europe as a family in 2022. She stated that they were intending to stay with friends but changed this to hotels with separate bedrooms. She stated that her brother who lives in Europe provided evidence that they were separated and has been aware since they separated. She confirmed that they told Mr HSTJ’s eldest child only recently. Mr HSTJ stated while they have not told the youngest child, the child has observed that they are doing things separately. She stated that her colleagues are unaware of her circumstances as they are not here and she doesn’t go to the office and does not have a social circle with which to communicate this information. Mrs HSTJ confirmed that the health insurance included Mr HSTJ and that their wills were drafted prior to the separation and had not been changed. She stated that she didn’t think it was necessary to change these arrangements because she was more concerned about other issues. While she didn’t provide care to Mr HSTJ, she did assist things he was unable to do such as carrying items.
The Respondent submits that there is objective evidence with reference to the criteria under subsection 4(3) of the Act and the totality of this evidence establishes that the Applicant was a member of a couple. It was submitted that while the subjective views are relevant, the decision must be made on objective basis.
The Respondent submits that there is evidence of joint liabilities, which includes joint bank accounts and loan accounts, in the supplementary documents provided by the Respondent.[11] The Respondent submits that Mr HSTJ had not taken any meaningful steps in relation to their financial, living and legal arrangements in the period since he claimed that he was separated from Mrs HSTJ. The Respondent further submitted that they had not told the children at the time and had jointly participated in activities as a family, such as attending church, school events, concerts and holidays. It was submitted that divorce proceedings were only commenced in February 2025. They remained beneficiaries of each other’s wills and Mrs HSTJ had nominated Mr HSTJ as beneficiary of her superannuation[12] and were listed as emergency contacts with the medical clinic.[13]
[11] [S7].
[12] [S14].
[13] [S12].
The Respondent submitted that Mrs HSTJ was transferring funds to Mr HSTJ during this period and Mr HSTJ was able to use the credit card for purchases, which Mrs HSTJ was repaying. The respondent submitted that while it was claimed that this was a loan, there were no formal arrangements in place. Mr HSTJ was joint owner of two properties with Mrs HSTJ, being jointly liable for their home and guarantor for the other two properties, including the property held solely by Mrs HSTJ.
Assessment of Mr HSTJ’s circumstances
In coming to an overall assessment of Mr HSTJ’s and Mrs HSTJ’s circumstances, I had regard to the case of Pelka v Secretary, Department of Family & Community Services [2006] FCA 735 (Pelka) where French J (as he then was) was considering whether an unmarried person was in a “marriage-like relationship” for the purposes of subsection 4(2) which also required consideration of the matters in subsection 4(3). In that case His Honour stated that the decision maker:
1.Must have regard to their interpersonal relationship as a whole not limited by the factors listed in s 4(3).
2.Must have regard to each of:
(a)    the financial aspects of the relationship;
(b)   the nature of the household;
(c)    the social aspects of the relationship;
(d)   any sexual relationship between the people;
(e)    the nature of the people’s commitment to each other.
3.In having regard to the preceding five matters, must have regard to all factors relevant to each and, in particular, must have regard to the factors listed under each heading in s 4(3).
4.Must specifically consider the total picture of the relationship created by all of these factors bearing in mind that consideration must be given to those which weigh against a marriage-like relationship and those which weigh in favour of it.
5.Must undertake the preceding consideration bearing in mind that a marriage-like relationship is not disclosed solely by any one of the following matters:
(a)    financial cooperation;
(b)   cohabitation;
(c)    a sexual relationship;
(d)   cooperative household arrangements;
(e)    mutual commitment.[14]
[14] At [46].
This is an area of social security law where consideration must be given to matters of a personal and often complex nature. In this matter I must determine whether, having regard to all the relevant factors, Mr HSTJ and Mrs HSTJ were members of a couple from 1 May 2023 when Mr HSTJ lodged a claim for age pension. It is clear Mr HSTJ does not characterise the relationship as being that of a member of a couple based on his evidence.
It is accepted that the living arrangements indicate a degree of separation. I accept that Mr HSTJ and Mrs HSTJ slept in separate rooms. I accept that they shared common facilities in the house such as the kitchen and laundry but used these at different times. The evidence was that they ate separately and did not share domestic chores, although they confirmed that some tasks were divided and that Mrs HSTJ assisted Mr HSTJ with some tasks that he was unable to do due to his physical limitations. I find that Mr HSTJ’s and Mrs HSTJ’s living arrangements, as described, is one of a number of factors to be considered.
I also accept Mr HSTJ’s evidence in the claim lodged with Centrelink that he does not have a sexual relationship with Mrs HSTJ.[15] There are cooperative household arrangements regarding the care of the child and the household chores. Mr HSTJ stated that he takes the child to school and to activities such Tae Kwon Do while Mrs HSTJ assists the child with their educational needs. While I accept that Mr HSTJ does some of his own household chores, Mrs HSTJ also contributes to these arrangements. I find that Mrs HSTJ assisted Mr HSTJ with his tasks, such as removing laundry from the washing machine for him, carrying shopping bags when the child is unavailable and some gardening, and conclude while they were Mr HSTJ’s responsibility, he was unable to undertake these without support due to his physical limitations.
[15] [T4] at page 66.
In respect of the social aspect of the relationship, I find that socially, there was evidence of their relationship being that of a member of a couple. While it is clear on their evidence that the shared activities of Mr HSTJ and Mrs HSTJ were infrequent, they did undertake activities as a family at the time of the claim and did present in those activities as in a relationship, such as attending school concerts, the child’s sporting events and music recitals as well as Mr HSTJ’s birthday celebration dinner. In addition, both Mr HSTJ and Mrs HSTJ confirmed that they did not tell their child or Mr HSTJ’s older child of the separation. Mr HSTJ also submitted that he had not told anyone of his circumstances. These circumstances infer that Mr HSTJ and Mrs HSTJ are still members of a couple.
However, Mr HSTJ provided a letter from Mrs HSTJ’s brother overseas, dated 26 February 2025, stating that he was aware that Mr HSTJ and his sister had separated and that he was informed of the separation in May 2022, which weighs against Mr HSTJ being a member of a couple.
In respect of Mr HSTJ’s and Mrs HSTJ’s financial matters, I have considered the evidence of their joint bank accounts and joint financial liabilities. While Mr HSTJ and Mrs HSTJ operate a separate bank account, they have joint liabilities and have joint accounts. Reciprocally, Mrs HSTJ provides accommodation through the payment of mortgage repayments to maintain accommodation for Mr HSTJ, Mrs HSTJ and the child’s benefit.
In respect of the joint assets, it is clear that Mr HSTJ and Mrs HSTJ jointly own the home in which they reside and another investment property (the first investment property). Mrs HSTJ is solely responsible for the first investment property and Mr HSTJ is a guarantor for the loan. Mrs HSTJ purchased a second investment property in her name in August 2024, and Mr HSTJ was guarantor for the loan secured by the second investment property.
Mr HSTJ stated that they were incorrectly advised by CBA that this property should be held in joint names. However, as confirmed by Mr HSTJ, Mrs HSTJ pays all the outgoings and loan repayments for the property and receives the rental for the first investment property. He stated that this property was purchased for the benefit of his child from his previous relationship and that it will be transferred to them at some stage. I find that this shows a level of commitment to Mr HSTJ and consequently his child, not from her relationship with Mr HSTJ, which I must weigh in favour of Mr HSTJ being a member of a couple. In Mr HSTJ’s written submissions,[16] he stated that his joint ownership and being the guarantor in respect of Mrs HSTJ’s second investment property is not a reflection of financial partnership as the first investment property and the principal home are intended for the benefit of their children.
[16] [A2] at page 3.
Mr HSTJ further submitted that the properties cannot be sold as they are intended in his will for the benefit of his children and underscores a parental obligation. I do not accept this submission. In oral evidence, Mr HSTJ stated that Mrs HSTJ is the beneficiary under his will and that only in circumstances where he and Mrs HSTJ are deceased would his children benefit. This does not accord with the written submissions. While ultimately, his children will benefit, Mrs HSTJ will benefit first.
Mr HSTJ has the benefit of joint private medical insurance and home insurance with Mrs HSTJ and the children. They are also listed together with Medicare. He stated that separate policies would be more expensive and that Mrs HSTJ’s enquiries indicated that there was no necessity for separate Medicare cards. Mrs HSTJ also provided Mr HSTJ with $45 per day from her income for his expenses. Mr HSTJ’s use of a joint credit card with Mrs HSTJ, which was fully paid by Mrs HSTJ was used for the payment of bills, food, clothing for the benefit of Mr HSTJ and Mrs HSTJ.
There are also payments from the joint offset account to an account controlled by Mr HSTJ, which was held on behalf of Mr HSTJ’s eldest son. The funds were then transferred to Mrs HSTJ for her use if required. The Respondent submits that while it may be argued by Mr HSTJ that this transaction demonstrates that the funds belonged to Mrs HSTJ, the funds originated from Mr HSTJ’s and Mrs HSTJ’s joint offset account and were transferred to a bank account in Mr HSTJ’s sole name, which he has complete control of. While the name of the account indicates that the funds were held on trust for his eldest child, there was no legal impediment to Mr HSTJ using the funds.
In Pelka[17] the court considered the meaning of ‘pooling’, finding that the ordinary meaning of ‘pool’ is the sense in which the noun ‘pooling’ is used under section 4(3)(a)(ii) of the Act and that it ‘plainly involves something more than financial cooperation or separate contributions to different elements of household expense.’ Based on the considerations in Pelka, I find the above circumstances indicative of the pooling of financial resources which weighs in favour of Mr HSTJ and Mrs HSTJ being members of a couple.
[17] [2006] FCA 735 at [52].
I have also had regard to the decisions in Hartley and Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 470 and Samachetty and Secretary, Department of Social Services [2020] AATA 3730, which deal with analogous circumstances to those of Mr HSTJ and Mrs HSTJ in this application.[18] Accordingly, I find that there is evidence of financial cooperation between Mr HSTJ and Mrs HSTJ. Mrs HSTJ pays for bills and accommodation expenses.
[18] See also Vo and Secretary, Department of Social Services (Social services second review) [2019] AATA 2341.
I also find that there is a level of mutual commitment, particularly towards the child of the relationship, but also towards the child of Mr HSTJ’s previous relationship and generally to each other. As referred to in the documents, Mr HSTJ and Mrs HSTJ have indicated in respective evidence that they share responsibility for the care of the children. They have also indicated that they provide some support to each other, particularly Mrs HSTJ towards Mr HSTJ, in helping him with routine tasks. In addition, Mr HSTJ was an emergency contact with Mrs HSTJ’s employer and concurrently Mrs HSTJ was an emergency contact for Mr HSTJ at his medical centre. In Haddara and Secretary, Department of Social Services [2023] AATA 2316,[19] the AAT stated as follows:
The fact that the parties experienced difficulties in their relationship at times does not preclude a finding that a couple relationship existed. The Tribunal is not required to be satisfied that the relationship was happy or socially conventional. It does not require that there was a total commitment to a couple relationship by both parties at all times. It does not require a finding that there was a romantic relationship. The task for the Tribunal is to assess the true nature and character of the relationship between the parties having regard to the matters and factors specified in s 4(3) of the Act by weighing up the factors which point in favour of a de facto relationship and those that point against it.
[19] at [58].
I must determine whether, having regard to all the relevant factors, Mr HSTJ and Mrs HSTJ were members of a couple from when Mr HSTJ claimed age pension. I am satisfied, based on the above considerations, that the evidence weighs in favour of a conclusion that Mr HSTJ and Mrs HSTJ provided a level of support to each other and that they were committed to a relationship, both in respect of the household, socially and from a general commitment to each other. There is also clear evidence of the pooling of financial resources. Based on this evidence, I find the relationship, as considered above, between Mr HSTJ and Mrs HSTJ as one which had elements of commitment, financial intermingling, social interaction such that I conclude that they were members of a couple at the time of the claim for age pension on 1 May 2023.
Issue 2 – Is there a special reason not to treat Mr HSTJ as not being a member of a couple?
Section 24 of the Act provides that, if there is a special reason in the particular case, the person may be treated as not being a member of a couple. Where this discretion is exercised a person is considered not to have a partner, and treated as if they were single, for the purposes of determining their rate of social security payment and consequently their partner’s income and assets are not taken into account.
Previous decisions of courts and tribunals have examined the exercise of the discretion under section 24 of the Act. As outlined in the Respondent’s submissions, the court in Boscolo v Secretary, Department of Social Security [1999] FCA 106 stated:
The word "special" conditioning "reasons" or "circumstances" guards the entrance to the exercise of many different statutory discretions. It is generally futile to search for its meaning in terms of other words. It is in essence instrumental, a direction to the decision-maker that the discretion it constrains is not lightly to be enlivened.[20]
[20] At [18].
The Respondent submitted[21] that the focus of the Act, as decided by the Federal Court in Kazmierczak and Secretary, Department of Families, Housing and Community Services [2010] FCA 1084, is on the practical ability of the resources of the partner being available for pooling and whether there was some legal or other practical reason the members of a couple cannot be treated as sharing income and assets. This approach is reflected in the Guide at Part 2.2.5.40 and has also been adopted in Bilanovic and Secretary, Department of Social Services [2019] AATA 3250[22] and Mears and Secretary, Department of Social Services [2024] AATA 53.[23]
[21] Respondent’s Statement of Facts, Issues and Contentions [6.45].
[22] at [38].
[23] at [53].
The Respondent submitted that Mr HSTJ and Mrs HSTJ pooled resources during the period, pointing to Mr HSTJ’s wife paying for his expenses from the joint offset account, making credit card repayments and mortgage repayments towards the property where Mr HSTJ and Mrs HSTJ were residing from the date of the claim for age pension. In addition, the Respondent submitted that there was further evidence of pooling in that Mr HSTJ’s wife was providing $45 per day for Mr HSTJ’s expenses and based on the evidence that the wife has paid for bills and utility costs.
In respect of considering whether the Applicant should be treated as not being a member of a couple, the Applicant submitted in written submissions that Mrs HSTJ bears the sole financial burden and receives no relational benefit. He submitted that their co-residence is driven by necessity, not partnership.
I am not satisfied that there are special reasons in relation to Mr HSTJ’s circumstances which would make it appropriate to exercise the discretion under section 24 of the Act in this matter. I find that Mr HSTJ and Mrs HSTJ have had the benefit of pooling financial resources, which is clearly demonstrated by their mutual sharing of housing, costs and Mrs HSTJ meeting the mortgage and credit card repayments. Furthermore, I find that Mr HSTJ and Mrs HSTJ chose not to pool their resources at the time of the claim and this was not due to them not being able to do so, for any legal or practical reason. Accordingly, I conclude that it there is no basis to exercise the discretion under section 24 of the Act and accordingly Mr HSTJ should be treated as a member of a couple for the purpose of calculating his rate of age pension.
Issue 3 – Was Mr HSTJ age pension correctly rejected?

In respect of the requirements to provide information in relation to a social security payment, these are contained in Division 6 of Part 3 of the Administration Act. In particular, section 63 of the Administration Act provides as follows:
Requirement to attend Department etc.
Secretary may require person to attend Department etc.
(1) Subsection (2) applies to a person if:
(a) the person is receiving, or has made a claim for, a social security payment; or
(b) the person is the holder of, or has made a claim for, a concession card; or
(c) the Department is contacted by or on behalf of the person in relation to a claim for:
(i) if the person is not undertaking full - time study and is not a new apprentice -- youth allowance; or
(ii) in any case -- jobseeker payment;
to be paid to the person.
(2) If the Secretary is of the opinion that a person to whom this subsection applies should:
(a) attend an office of the Department; or
(b) contact the Department; or
(c) attend a particular place for a particular purpose; or
(d) give information to the Secretary;
the Secretary may notify the person that he or she is required, within a specified time, to do that act or thing. However, the Secretary may not, under this subsection, notify a person that he or she is required to do an act or thing referred to in paragraph (4)(a) or (b).
Subsection 64(1) of the Administration Act describes the effect of non-compliance with the notice requirements under section 63 as follows:
(1) If:
(a) a person is receiving, or has made a claim for, a social security payment; and
(b) the Secretary notifies the person under subsection 63(2), (2AB) or (4); and
(c) the requirement in the notice is reasonable; and
(d) the person does not comply with the requirement; and
(e) except if the person is receiving, or has made a claim for, a participation payment -- the Secretary is not satisfied that the person had a reasonable excuse for not complying with the requirement; and
(f) the Secretary is satisfied that it is reasonable for this subsection to apply to the person;
the payment that the person is receiving or has claimed is not payable.
On 30 May 2023 Centrelink sent a letter to Mr HSTJ, a MOD P – Partner Details form which stated as follows:[24]

Request for information

[24] [S4].

We are writing to ask for more information to help us make the right decision about your claim for Age Pension.
What you need to do
You need to provide the following information by 20 June 2023:
· a completed Partner Details form (MODP) and all supporting documents

At the hearing, Mr HSTJ confirmed that he wrote on the MOD P form sent to him on 20 May 2023 by Centrelink the words, ‘I don’t have a partner as we are separated, hence, partner form cannot be submitted’. In addition, he resubmitted the ‘Separated Under One Roof’ form dated 27 April 2023.
On 5 June 2023, Centrelink sent Mr HSTJ a letter requesting that he provide the following information:[25]
Request for information
[25] [S5].
We are writing to ask for more information to help us make the right decision about your claim for Age Pension.
The previously requested information you provided was not sufficient. For us to make a final assessment we need you to provide additional information.
What you need to do
You need to provide the following information by 24 June 2023:
·     your mortgage or loan agreement for your property at [investment property] and evidence of any security used against the loan
·     your partner's mortgage or loan agreement for their property at [investment property] and evidence of any security used against the loan
·     we received Your latest personal tax return, however we need the full tax return including a rental property schedule.
Mr HSTJ provided Centrelink with a copy of the loan documents for the investment property[26] as well as a letter.[27] On 4 July 2023 Centrelink sent Mr HSTJ another letter requesting a ‘MOD PT – Private Trust’ form and a ‘MOD P – Partner Details’ form as follows:[28]
Request for information
[26] [S2].
[27] [T9].
[28] [S3].
We are writing to ask for more information to help us make the right decision about your claim for Age Pension.
What you need to do
You need to provide the following information by 25 July 2023:
· a completed Private Trust form (MODPT) and all supporting documents
· a completed Partner Details form (MODP) and all supporting documents
On 21 July 2023 Mr HSTJ submitted blank ‘MOD P – Partner Details’ form with a hand-written message that he did not have a partner,[29] and an incomplete ‘MOD PT - Private Trust’ form which stated that he did not have a private trust and that, while there used to be a trust “some years ago for son [name]” this was no longer active.[30] On 24 July 2023 Centrelink sent another letter requesting further information:[31]
[29] [T10].
[30] [T11].
[31] [S17].
Request for information
We are writing to ask for more information to help us make the right decision about your claim for Age Pension.
What you need to do
You need to provide the following information by 12 August 2023:
·documents showing details of your investment/s with regards to your claim for Age Pension, you have indicated that you did have a sole trader business "HOSPITALITY LINEN SERVICES", are you able to provide proof that this business has ceased operating? We understand that this business may have ceased trading many years ago and proof may be difficult to provide so, in this instance a statutory declaration can be supplied confirming closure.
Mr HSTJ provided a statutory declaration which confirmed that Hospitality Linen Services was sold in 2004.[32]
[32] [S18].
The letters sent to Mr HSTJ on 30 May 2023, 5 June 2023, 4 July 2023 and 24 July 2023 outlined, among other things, Mr HSTJ requirements to provide the requested information and stated that if the information was not provided by the date specified in the letters Mr HSTJ claim for age pension may be rejected. I note that Mr HSTJ does not dispute the contents of the letters sent to him and confirmed receipt of the letters and that they were addressed correctly.
The Respondent’s submission, which was not disputed by Mr HSTJ, was that he did not provide the completed ‘MOD P - Partner Details’ form and his income tax return for 2022. In addition, the Respondent submits that Mr HSTJ did not provide other documents, although they were not the subject of notices issued to him under section 63 of the Administration Act.
In the written submissions, the Respondent submits that Mr HSTJ’s claim for age pension was correctly rejected because it was not payable pursuant to subsection 64(1) of the Administration Act on the basis that he failed to comply with the request for the provision of information and did not have a reasonable excuse for not complying with the section 63(2) notices issued, in particular the notices on 30 May 2023 and 4 July 2023 requesting a completed ‘MOD P - Partner Details’ form.
The Respondent submitted that the request to provide the ‘MOD P - Partner Details’ form was reasonable because the determination of the rate of age pension is affected by whether a person is single or partnered and that based on the information contained in Mr HSTJ’s and Mrs HSTJ’s ‘Separated Under One Roof’ forms, it was reasonable for Centrelink to determine that Mr HSTJ was a member of a couple with Mrs HSTJ as at 1 May 2023 such that the requested information was necessary to determine the payability of Mr HSTJ’s age pension. It was further submitted that Mr HSTJ did not provide a reasonable excuse for not complying with the notices under subsection 63(1) of the Administration Act.
It was submitted by the Respondent that the decision of Shiel v Department of Social Security [1999] FCA 1237, where the Federal Court considered equivalent provisions to sections 63 and 64 of the Administration Act (as they were then) and stated the following:
First, it is apparent from the context in which par 1304(1)(c) of the Act appeared that the Parliament's purpose in including the provision was to confer a power capable of being used in aid of the prevention or recovery of unjustified payments of social security benefits.[33]
[33] At [39].
This capacity, as submitted by the Respondent and which I accept, was observed in the decisions of Ibarcena and Department of Family and Community Services [2000] AATA 1141[34] and Adkins and Department of Education, Employment and Workplace Relations [2008] AATA 817.[35]
[34] At [18]-[20].
[35] At [45].
As discussed in the above cases and relevant to my considerations, the function of Centrelink is to ensure the appropriate allocation of public funds and the establishment of processes to ensure recipients do not take advantage of the social security system and any such occurrence is minimised. To assist in these functions, the calculation of a recipient’s entitlement needs to be accurate and the information requested of Mr HSTJ was needed to accurately calculate his entitlement. It was therefore reasonable in the circumstances for Centrelink to require Mr HSTJ to complete the ‘MOD P - Partner Details’ form to ensure Mr HSTJ’s entitlement to age pension was correctly calculated based on his and Mrs HSTJ’s income and other details. Mr HSTJ’s action of not complying with the notices meant that Centrelink could not calculate his entitlement to age pension. Accordingly, I accept that these circumstances did not provide a reasonable excuse for Mr HSTJ’s non-compliance with the notices, in accordance with paragraph 64(1)(e) of the Administration Act and therefore his age pension claim was correctly rejected.
There being no other relevant legislative provisions, I conclude that the claim for age pension must be rejected.
DECISION
The decision under review is affirmed.

Date of hearing: 22 July 2025

Applicant: Ms Zerbst

Solicitors for the Respondent: Ms Michelle Chiu, Services Australia

Date of hearing:	22 July 2025
Applicant:	Ms Zerbst
Solicitors for the Respondent:	Ms Michelle Chiu, Services Australia