Sutalo and Secretary, Department of Social Services (Social services second review) - [2023] AATA 143

Sutalo and Secretary, Department of Social Services (Social services second review) [2023] AATA 143 (14 February 2023)
Division:GENERAL DIVISION
File Numbers: 2022/3833; 2022/3945
Re:Lora Sutalo
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

Decision
Tribunal:Member S Barton
Date:14 February 2023
Place:Perth

The Reviewable Decision, being the decision made by the Social Services and Child Support Division of the Administrative Appeals Tribunal on 4 May 2022, is affirmed.
.........[Sgd]...............................................................
Member S Barton
Catchwords
SOCIAL SECURITY – whether the Applicant has been a member of a couple – financial aspects of the relationship – nature of the household – social aspects of the relationship – sexual relationship – nature of people’s commitment to each other – whether the Applicant’s parenting payment (single rate) should have been cancelled – rejection of a further claim for parenting payment (single rate) – debt waived – special reason – Tribunal satisfied that the Applicant is a member of a couple – Reviewable Decision affirmed
Legislation
A New Tax System (Family Assistance) Act 1999 (Cth)
A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) – ss 25, 25A
Social Security Act 1999 (Cth) – ss 4(3), 4(3)(a), 4(3)(b), 4(3)(c), 4(3)(d). 4(3)(e), 4(3A), 24, 24(1)(c), 24(2), 1068A(1)
Cases
Holt and the Secretary, Department of Education, Employment & Workplace Relations [2010] AATA 143
Kazmierczak and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] FCA 1084
Melvin v Secretary, Department of Social Security [2016] FCA 375
Purdie and Secretary, Department of Social Services [2013] AATA 743
Re Cullinane and Secretary, Department of Family and Community Services [2004] AATA 789
SZOXP v Minister for Immigration and Border Protection (2015) 231 FCR 1
Secondary Materials
Guides to Social Policy Law, Social Security Guide, version 1.303 – [2.2.5.10], [2.2.5.20], [2.2.5.50]
REASONS FOR DECISION
Member S Barton
14 February 2023
BACKGROUND

This is a review of a decision made by the Administrative Appeals Tribunal,

Social Services and Child Support Division (the AAT1) dated 4 May 2022

(the Reviewable Decision).
The AAT1 found that the Applicant had been a member of a couple since 14 February 2016 for the purposes of receiving social security benefits, the Applicant had numerous debts to be paid totalling to a balance of $122,357.95 and the AAT1 made a decision to cancel the Applicant’s parenting payment (single rate) and also rejected a further claim for a parenting payment (single rate).
At the hearing, the Respondent notified the Tribunal that it consented to the entirety of the debts that are the subject of this application raised against the Applicant, being waived on the basis of the Applicant’s special circumstances (transcript/5).
FACTS
The Applicant has been the recipient of various family assistance and social security payments administered under the A New Tax System (Family Assistance) Act 1999 (Cth) and the Social Security Act 1991 (Cth) (the Social Security Act) between July 2015 and June 2021 at the single rate (T66/884–887; R2/2).
Services Australia (the Agency) issued notices to the Applicant pursuant to sections 25 and 25A of A New Tax System (Family Assistance) (Administration) Act 1999 (Cth), notifying the Applicant that she would need to update the Agency if she commenced a de facto relationship and of her partner’s income multiple times between 2015 and 2021 (T67).
On 21 October 2021, the Agency decided that the Applicant was to be treated as a member of a couple with Mr Corey Weko from 14 February 2016 (T66/1128-1133).
On 25 October 2021, the Applicant requested an internal review of the decision to treat her as a member of a couple (T66/1248). The Tribunal also has a letter from the Applicant dated 24 October 2021 requesting this internal review (T45/551-553).
On 25 October 2021, the Agency made a decision to cancel the Applicant’s parenting payment (single rate) (T66/1237).
On the same day, the Applicant made a further claim for parenting payment (single rate) (T47/555–563).
On 12 November 2021, the claim for parenting payment (single rate) was rejected (T66/1150).
On 15 November 2021, the Applicant sought review of the decision to reject the payment (T66/1246).
On 7 December 2021, an Authorised Review Officer (ARO) affirmed the decision to cancel the Applicant’s parenting payment (single rate) and to reject her further claim for parenting payment (single rate) (T60/615–619).
The Applicant sought review of the AROs' decisions of 6 and 7 December 2021 and 17 January 2022 in the AAT1 and, on 4 May 2022, the AAT1 affirmed the AROs' decisions (T2/5-19).
On 12 May 2022, the Applicant lodged an application for review of the Reviewable Decision in the Administrative Appeals Tribunal (General Division) (the Tribunal) (T1/1–4).
MATERIAL BEFORE THE TRIBUNAL
The hearing took place on Wednesday 30 November 2022. The Applicant appeared by videoconference and was self-represented. The Respondent was represented by Mr A Gardner of Minter Ellison who also appeared by videoconference.
The Applicant gave oral evidence and was cross-examined. The Applicant called one witness, Ms Bozica Baric, who appeared by telephone.
The Tribunal admitted the following documents into evidence at the hearing:
(a)Applicant's email detailing personal circumstances, dated 13 July 2022 (Exhibit A1);
(b)Applicant's statement, dated 11 July 2022 (Exhibit A2);
(c)Statement of Zina Fox, dated 1 July 2022 (Exhibit A3);
(d)Letter of Louvaine Maihi – Taniora, dated 11 July 2022 (Exhibit A4);
(e)Letter of Marina Korica, Manager of Health and Well-being Services at Multicultural Futures, dated 11 July 2022 (Exhibit A5);
(f)Letter from the Department of Communities, undated (Exhibit A6);
(g)Applicant's email to the Respondent regarding debt, dated 19 August 2022 (Exhibit A7);
(h)Applicant's bundle of evidence, filed 6 September 2022 (Exhibit A8);
(i)Applicant's email regarding the Coroner’s Report, dated 6 September 2022 (Exhibit A9):
(j)Email from Bozica Baric including a witness statement, dated 28 November 2022 (Exhibit A10);
(k)Witness statement of Ashleigh Wharmate, dated 28 November 2022 (Exhibit A11);
(l)Section 37 T-Documents, labelled T1-T69, comprising pages 1-1859, filed 10 June 2022 (Exhibit R1); and
(m)Respondent’s Statement of Facts, Issues and Contentions, dated 2 September 2022 (Exhibit R2).
ISSUES
The issue before the Tribunal is whether the Applicant is a member of a couple with Mr Weko since 14 February 2016 and if so, whether the Applicant’s parenting payment (single rate) should have been cancelled.
Additionally, the Tribunal needs to determine whether her further claim for parenting payment (single rate), submitted on 25 October 2021, should have been rejected.
It should be noted that the debts to the Commonwealth relating to this application have been waived by the Respondent in their entirety based on special circumstances, as outlined above at paragraph [3].
LEGISLATIVE FRAMEWORK
Subsection 4(3) of the Social Security Act provides that in forming an opinion about the relationship between two people, the Secretary is to have regard to all the circumstances of the relationship including:
(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.
The Social Security Guide (the Guide) at Instruction 2.2.5.10 provides that:
After collecting evidence for all of the 5 factors the decision maker must form an opinion about whether the claimant/recipient is living in a de facto relationship. Making a determination that a person is a member of a couple requires that the indicators for a de facto relationship outweigh the indicators that the person is not in a de facto relationship.
All 5 factors must be considered. No single factor should be seen as conclusive and not all factors need to be present. For instance, the presence or absence of a sexual relationship is considered but does not, by itself, indicate whether or not a person is a member of a couple.
A claimant/recipient's opinion about whether or not their relationship is similar to a married couple or registered relationship couple should be considered but is not sufficient to make a decision.
The Guide at Instruction 2.2.5.20 sets out the definition of a separated couple:
A legally married couple or a couple in a registered relationship or a de facto couple are determined to be separated if they are living separately and apart on a permanent or indefinite basis.
…
If a couple claim to be separated they must establish that:
• they are living apart either permanently or indefinitely, and
• there has been an estrangement or breakdown in their relationship.
Generally, a physical separation as well as an emotional separation between the couple is required.
In Re Cullinane and Secretary, Department of Family and Community Services [2004] AATA 789, Senior Member McCabe (now Deputy President) observed that (at [16]):
Application of the criteria [set out in section 4(3) of the Social Security Act] will often be difficult because relationships come in many forms. Not all relationships are happy, and they do not always conform to the stereotypes of family life. And why should they? People must be free to structure their domestic arrangements as they please. But it is still necessary to attempt to characterise the relationship where the decision whether or not to take into account the other person’s income depends on whether they are members of a couple, or merely share a common address. The criteria offer common-sense indicators. One need not satisfy them all; indeed, one may satisfy few of them but still be considered to be a member of a couple if the decision-maker forms the view the applicant is in fact a member of a couple. The matters referred to in s 4(3) inform the exercise of the discretion, but they are not the end of the story. The decision-maker must consider all of the circumstances.
The Tribunal must consider both the physical and mental elements when it comes to assessing whether a couple have lived separately and apart. The Federal Court in Melvin v Secretary, Department of Social Security [2016] FCA 375 said at [83]–[84]:
It was open to the Tribunal on the evidence to find that the appellant lived at Pawlett Way from time to time during the first period. They lived neither separately nor apart on a permanent or indefinite basis. They physically lived together from time to time. That of itself is not determinative. The meaning of the expression "living separately and apart" was considered at length by the Full Court of the Federal Court in SZOXP v Minister for Immigration and Border Protection (2015) 231 FCR 1 at [43]-[58] albeit in the context of provisions of the Migration Act 1958 (Cth). There is both a physical and mental element involved and the mental element is independent of whether the parties lived in the same house. This cuts both ways. Characterisation of a relationship as not marriage-like may be reached even where the persons live in the same house.
Moreover, the mental element supporting the existence of a marriage-like relationship may be inferred, despite the persons' subjective evidence to the contrary, as here, from objective circumstances including those set out in s 4(3)(a)-(e). The Tribunal by reference to all the circumstances of their relationship found that they were living during the first period in a marriage-like relationship. This being so, s 4(3A) was not engaged.
CONSIDERATION
Financial aspects of the relationship
As detailed above, the financial aspect of a relationship includes such things as joint ownership of real estate or major assets, the pooling of financial resources, legal obligations and the sharing of day-to-day household expenses.
In the period 4 September 2015 to 4 September 2016, the Applicant was listed as an additional declared driver on Mr Weko’s car insurance policy (T5/315). In correspondence to the insurer in April 2016, in relation to an insurance claim, the Applicant wrote (T13/347):
From the very start when we insured [Mr Weko’s] Nissan with Real Insurance it was dealt with very very unprofessionally, saying to me that our car was not insured…
The Tribunal notes, in particular, the use of terms that indicate joint ownership, such as ‘we’ and ‘our car’. The Applicant stated that she was unsure why she had used those terms (transcript/8):
And because I had a child to him, he thought it would be easier to have me listed as his - because I had an unreliable car, and because I had one of his children, he said that he would prefer the kids, including my two, safe in a car, in his car, and obviously, I didn’t want to drive a car without insurance, so I was listed as a policyholder.
It is also noted the policy lists Mr Weko’s address as the Applicant’s then residence in Fremantle. However, the Applicant stated that Mr Weko did not live at that address, it was only listed as a convenience because (transcript/8):
…he had everything listed as that address as he didn’t have - or he doesn’t have any family members here in Australia. He is from New Zealand.
The Applicant also told the Tribunal she was not sure where the Applicant lived at that time (transcript/8):
…I think at the time he was in - living with, I think - I don’t know if it was friends or a family member, in Canning Vale or Cannington.
The Applicant’s explanation has some unusual aspects, for example, not knowing where Mr Weko actually lived, despite him being the father of one of her children (at that stage) and her being listed as a declared driver in the policy. The documentary evidence is consistent with both parties sharing a sense of ownership and the use of a major household asset, in this case, Mr Weko’s vehicle. This insurance policy must be also examined in the context of other financial aspects to the relationship.
The Applicant is listed on the certificate of title for a property in Two Rocks, registered on 17 October 2016 (T25/409). It notes Mr Weko and the Applicant, listing the Fremantle address referred to above, as the joint tenants. There is also a joint home loan with ANZ bank for the pair, opened on 12 October 2016 (T33/436). Moreover, Mr Weko is listed as the Applicant’s next of kin (T33/437). The Applicant advised AAT1 that she would contribute to the mortgage from time to time (T2/9).
The pair also are listed as joint policy holders for building and contents insurance with RAC for the period 22 April 2021 to 22 April 2022 (T34/442). Additionally, council rates for the Two Rocks property are addressed to both Mr Weko and the Applicant (T27/414).
The Applicant told the Tribunal that her and Mr Weko had tried on a number of occasions to live together, but it was ‘too toxic to be together’, however with her feeling unsafe in Fremantle they (transcript/12):
…both agreed to look at getting a property together, or like in both our names, in case anything happened to him, having a high risk job, and that’s just how it worked.
The Applicant also told the Tribunal that (transcript/13):
I did try to get my name off the title many times. So ANZ have advised me that I can’t do that without him reapplying for the loan and he is not wanting to do that.
There is also evidence, from a joint account, of regular transfers being made by Mr Weko to the Applicant (T37). Additionally, there is an application for a private health insurance policy, dated 28 June 2017, with the box for ‘Couples/Families’ ticked, which has listed Mr Weko, the Applicant and her children and the Fremantle address (T15/359). The Applicant stated that Mr Weko was paying the health insurance as part of a private child support arrangement (transcript/9).
It is evident that during the period in question, there has been the joint ownership of both major assets and liabilities. Additionally, there is the pooling of financial resources. In this regard, the financial aspects of the Applicant’s relationship are consistent with those of a couple.
Nature of the household
When examining the nature of the household, consideration is given to factors such as joint responsibility for the care of the children, living arrangements and the distribution of responsibility for housework.
The Applicant has two children with Mr Weko. It is noted that the Applicant and Mr Weko currently reside at the Two Rocks property. In a claim for child care benefits, the Applicant stated she commenced living in the property in December 2017 (T18/377).
The Applicant told the Tribunal that she and Mr Weko made the decision to co-parent (transcript/15). The Applicant stated that, despite her toxic relationship with Mr Weko, he is a good father and supports his children, but that they were ‘not together’ (transcript/6). They would both, for example, take an interest in events at the children’s school (transcript/14).
They were, however, the Applicant states, not in a relationship, stating that Mr Weko would stay in a separate room. Mr Weko had previously moved out of the house, but had only returned following the death of her eldest child.
The Applicant stated (transcript/7):
…we don’t share a room, we don’t share food, we don’t share - the only thing we share is our children, and I give him time with the children.
The Applicant has provided several letters from neighbours and support workers stating that, to their knowledge, the Applicant and Mr Weko, live together and co-parent, but are not in a relationship (A3, A4, A5, A10 andA11).
A neighbour, Ms Fox, stated in a letter (A3):
I have known [the Applicant] and her family since they moved up to Two Rocks. Since I have known [the Applicant, the Applicant and Mr Weko] have always worked together for the kids, by staying in the same property, and sleeping in separate beds which I think is truly amazing to keep the kids as a family, but parents not together.
Another neighbour, Ms Maihi-Taniora, stated in a letter (A4):
I am [the Applicant’s] Neighbour, (live 2 doors down) I have known [the Applicant] & her Children since they moved December of 2017.
How [the Applicant’s] house is positioned we see each other’s driveways & front door quite clearly. I know [the Applicant] constantly has 100% care for her children, however when [Mr Weko] is with the Children [the Applicant] is not around to give him time with the children.
I have been a shoulder for [the Applicant] to cry on many times as she has not much family support up these ways. She is experience severe financial hardship over the last year.
I know [the Applicant and Mr Weko] are not together however Co-parent for the children’s sake.

Ms Korica, Manager of Health and Well-being Services at Multicultural Futures, wrote that [A5]:
Since the initial referral I have been in close contact with [the Applicant] on various occasions. In 2015 she met [Mr Weko] with whom she had two children. She shared that the relationship with [Mr Weko] was not working and they decided to co-parent but not to live together as partners.
A friend of the Applicant, Ms Wharemate and mental health case manager, provided a letter stating (A11):
[The Applicant and Mr Weko] both agreed to remain living under the same roof and co-parent together…
Given [the Applicant’s] extensive history of mental health and traumatic events that she has endured in her lifetime, [Mr Weko] is simply there to support his children…
To my knowledge [Mr Weko] doesn’t support [the Applicant] financially and in order to provide for her children as well as herself requires assistances from Centrelink.
The Tribunal also heard from Ms Baric, who stated that she had been friends with the Applicant for ‘over a decade’ (transcript/19). Further, she stated that the Applicant and Mr Weko were (transcript/20):
In the same house, just purely co-parenting. She doesn’t really get much support from him for herself and the older daughter - the older one from a different, like, previous relationship - and he’s more just there for the other two, just to get them necessities.
The Respondent contends that there is insufficient evidence to support the Applicant’s claim that the relationship was one of living separately under one roof and that, notwithstanding the letters from friends and neighbours, there is no evidence to support this contention (R2/11).
It is also noted, that Ms Baric was not aware that the Applicant was co-owner of the Two Rocks property, nor that the Applicant and Mr Weko bought an engagement ring in 2019, which is discussed below (transcript/20). This underscores the extent to which a relationship between two people, such as the Applicant and Mr Weko, can be complex, and perhaps only truly understood by the two parties.
What is clear is that the Applicant and Mr Weko lived at various points under the same roof, and both provided care for their two children. It is likely that there was considerable sharing of responsibility for providing care. The relationship between the Applicant and Mr Weko may indeed be ‘toxic’ or dysfunctional, however they both care for their children in the same property. There is, in a real sense, the provision of a family home for the children. This is consistent with being a couple and should be given some weight.
Social Aspects of the Relationship
As articulated previously, the social aspects of the relationship include whether the couple hold themselves out to be married or in a de facto relationship, the assessment of friends and associates and the extent to which joint social activities are planned or undertaken.
It is clear from the evidence that the Applicant and Mr Weko held themselves out to be de facto partners in some areas. There is the joint home loan, bank facilities, certificate of title and insurance policies referred to under the financial aspects of the relationship. These are consistent with a couple presenting to others that they are in a relationship. Additionally, Mr Weko advised an employer that the Applicant was his de facto and next of kin during periods of in 2017 and 2021 (T43/513). Mr Weko also advised another employer, with whom he worked for periods in 2018 and 2020 to 2021, that the Applicant was his de facto and next of kin.
Additionally, the pair travelled overseas in November 2015 and April 2017 (T2/9). The Applicant told the Tribunal that they were not together during these periods, and that he had followed her overseas (transcript/15).
In mid-2019, the Applicant and Mr Weko purchased an engagement ring to the value of $10,500.00. The Applicant conceded that they were engaged for a period, which she said was not long and that she threw the ring back at him (transcript/16-17).
It is noted that the Applicant provided several letters from friends and neighbours, discussed above, that state the two were not in a relationship. The Secretary has contended that such evidence should be given less weight because they are not in the form of sworn statements (R2/13). This is certainly true, but the number of people who have stated that the Applicant are ‘not together’ cannot be dismissed out of hand.
Between 14 February 2016 and December 2021, it is likely that the Applicant and Mr Weko’s relationship went through several cycles, or ‘off and on’ as the Applicant told the Tribunal, indeed it is noted that a violence restraining order was taken out on Mr Weko in December 2016 (transcript/15). Friends and neighbours, as demonstrated by Ms Baric being unaware of the engagement ring, may not have been fully aware of aspects of the relationship between the Applicant and Mr Weko. In these circumstances, slightly more weight should be placed on the documentary evidence that holds the two of them as a couple.
Sexual Relationships
The fact that the Applicant had two children, one born in 2016 and the other child in 2018, is evidence of a sexual aspect to their relationship. The Applicant told AAT1 that the second child was the result of one-night stands with Mr Weko - this does not seem consistent with her own evidence that their relationship was ‘off and on’ again.
The Applicant told the Tribunal that she had not had any other partners during the period (transcript/17).
It is clear that there was a sexual aspect to the relationship at some point and some weight should be given to it.
Nature of the Commitment
The nature of the commitment includes the length of the relationship, the nature of the companionship and emotional support, whether the relationship will continue indefinitely and whether they see the relationship as marriage like or de facto.
The relationship commenced in 2015, it was not until 21 October 2021 that the Applicant reported they were separated under one roof (T41). It is noted however, that Mr Weko and the Applicant still reside at the same address.
The length of the relationship, and the fact that they share two children must be given some weight.
In terms of companionship and emotional support, according to the Applicant they share the same house and co-parent, but otherwise are not romantically involved.
This description of a toxic and abusive relationship, with limited emotional support (transcript/26), sits alongside a commitment to parent the children and the Applicant’s description of him as a ‘good father’ (transcript/6). There is also the presentation of the couple to various authorities and bodies, as detailed above, as a de facto couple.
The Applicant expressed a desire to be independent from Mr Weko (transcript/24):
Just to eventually move along. Like, move - move away, and kind of, not have that over my head. And just not to say to be trapped, but like, just, yes, kind of, be more independent on my own.
But the Applicant has made no efforts to do so. She told the Tribunal of her financial struggles and claimed she could not afford the rent required to house her family (transcript/7). This may be the case, however there is no evidence that the Applicant was considering these options previously.
There is evidence of some measure of commitment to each other between 2015 and 2021, this should be given some weight.
Member of a couple
It is probable that the Applicant and Mr Weko had an unsettled difficult relationship. There were periods where they tried to repair or make good their relationship, as evidenced by the purchase of the engagement ring and equally, there may have been periods where they were estranged. Throughout this period there was a pooling of financial resources, the sharing of assets and a commitment to provide a home to the children and documentary evidence that they presented themselves as de facto partners.
Notwithstanding the description of their relationships by friends and neighbours, on weighing up the material before the Tribunal, the Tribunal is satisfied the Applicant and Mr Weko were members of a couple.
Should the Applicant’s parenting payment (single rate) have been cancelled and her further claim for parenting payment (single rate) rejected?
Subsection 1068A(1) of the Social Security Act states that “[I]f a person is not a member of a couple, the person’s rate of parenting payment is the pension PP (single) rate.”
As the Tribunal has found that the Applicant and Mr Weko have been members of a couple since 14 February 2016, it follows that the decisions to cancel the Applicant’s parenting payment (single rate) and reject her further claim for parenting payment (single rate) were correct.
It was noted that the further application for the parenting payment (single rate) was made on 25 October 2021. It may be that since that time, or indeed more recently, the nature of the Applicant’s relationship with Mr Weko has changed. It is open for the Applicant to notify the Agency of any changed circumstances.
Is there a special reason not to treat the Applicant as a member of a couple under s 24 of the Social Security Act?
Section 24 of the Social Security Act provides discretion to the Secretary to determine that a person who is legally married to another person and who is not living separately and apart on an indefinite basis from the other person, is not to be treated as a member of a couple, if the Secretary is satisfied that some special reason exists in that particular case.
Section 24(2) of the Act provides that a person may be treated as not being a member of a couple, where the person is in a de facto relationship if the Secretary is satisfied that the person should, for special reasons, not be treated as a member of a couple. If enlivened, the effect of this provision would be to treat the person as if they were single.
The Guide at 2.2.5.50 posits three considerations when assessing such circumstances:
·     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?
The Tribunal notes that Deputy President Hack addressed this policy advice in Purdie and Secretary, Department of Social Services [2013] AATA 743 at [14]:
I turn then to the question of whether there is a special reason in the circumstances of this case to treat Mr Purdie as not being a member of a couple. The Secretary’s submissions point to the departmental policy guide for the application of this discretion. That guide suggests that three questions need to be considered as part of an assessment of the application of s 24. Those questions are – 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? 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.
Deputy President Hack’s approach has been adopted by the Tribunal in other comparable matters when considering the notion of special reasons, an interpretation which will be followed here.
To that end, the question before the Tribunal is as follows: is there a special reason to treat the Applicant in the present case as not being a member of a couple? However, what constitutes a special reason?
The Respondent has drawn the Tribunal’s attention to Holt and Secretary, Department of Education, Employment & Workplace Relations [2010] AATA 143. In this matter, distinction was drawn between the meaning of ‘special circumstances’ and ‘special reasons’ [29]-[30]:
There has been a tendency in the cases to treat the expression 'for a special reason in the particular case' in section 24(1)(c) as being equivalent to the expression 'special circumstances' used elsewhere in the Act. Undoubtedly, both expressions - 'special circumstances' and the 'special reason in the particular case' - do grant a wide discretion to the decision-maker. Nonetheless, choice of a different expression when it could have been expected that another, well used expression of similar import would suffice, indicates a legislative intention to differentiate between the two. On that basis, some caution should be exercised about relying on the cases which deal with the meaning of 'special circumstances'. The Tribunal notes that there appears to be a division of opinion in the cases as to whether the two expressions are equivalent, as is indicated in the Guide to Social Security Law at [24.05].
The Tribunal's concern about eliding the two expressions is that a number of the cases and the Guide import a requirement that whatever the 'special reason', it must be 'outside the couple's or individual's control and cannot be changed'. The quotation is taken from the Guide to Social Security Law (Guide) at 2.2.5.50, which relates to the discretion in section 24 to treat a person as not being a member of a couple for a special reason. This additional criterion would appear to have originated from the tests for 'special circumstances' which in two of the 'special circumstances' provisions in the Act contain a requirement that not only must there be 'special circumstances' but they must be 'beyond the person's control'. No such criterion is written into the 'special reason in the particular case' provisions in the Act. For that reason, caution should be exercised about importing any such requirement.
(Footnotes omitted.)
The Tribunal notes that the matter was further addressed by the Federal Court in Kazmierczak and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] FCA 1084, which identified the essential issue as being whether or not there was some legal or practical reason why the partner of a couple could not be treated as sharing financial resources.
The Applicant’s relationship with Mr Weko is far from functional and her financial means appear to be limited. However, both she and Mr Weko pool their resources for their mutual benefit and that of their children. On this basis, there are no special reasons before the Tribunal which give rise to a special reason to justify why the Applicant should not be treated as a member of a couple.
DECISION
The Reviewable Decision, being the decision made by the Social Services and Child Support Division of the Administrative Appeals Tribunal on 4 May 2022, is affirmed.

I certify that the preceding 83 (eighty-three) paragraphs are a true copy of the reasons for the decision herein of Member S Barton

..............[Sgd]..........................................................
Associate
Dated: 14 February 2023

Date of hearing: 30 November 2022

Applicant: Self-represented

Solicitors for the Respondent: Mr A Gardner of Minter Ellison

Date of hearing:	30 November 2022
Applicant:	Self-represented
Solicitors for the Respondent:	Mr A Gardner of Minter Ellison