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

The Administrative Appeals Tribunal considered the case of RFGW and the Secretary, Department of Social Services concerning an application for a Disability Support Pension. The applicant, RFGW, was seeking the pension, but the Secretary had determined that RFGW was a member of a couple for the purposes of the social security legislation, which impacted the assessment of the pension. The core of the dispute revolved around whether RFGW and their partner were living separately and apart, despite continuing to co-reside in the same residential property due to circumstances of domestic violence.

The Tribunal was required to determine whether the applicant and their partner were living separately and apart for the purposes of the *Social Security Act 1991* (Cth), notwithstanding their continued co-residence. This involved assessing whether the circumstances of domestic violence meant that the relationship between the applicant and their partner had broken down to the extent that they were no longer a couple in the eyes of the law, even though they shared a home. The Tribunal also had to consider the implications of the parties being joint tenants of their residential property on this determination.

The Tribunal reasoned that the legislative test for determining if a person is a member of a couple requires an assessment of whether the parties are living together on a genuine domestic basis. While co-residence is a significant factor, it is not determinative. The Tribunal found that the evidence established that the domestic violence experienced by the applicant meant that the relationship had fundamentally broken down, and they were not living together on a genuine domestic basis. The continued co-residence was a consequence of the applicant's fear and inability to leave the property due to the domestic violence, rather than a choice to maintain a relationship. Therefore, the Tribunal concluded that the applicant was not a member of a couple for the purposes of the Act. The decision under review was affirmed.