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

This matter concerned an appeal by Mr Thomson against a decision by the Secretary of the Department of Social Services (DSS) regarding a debt for overpayment of his Disability Support Pension and Age Pension. The central dispute revolved around whether Mr Thomson and Ms Dolma were members of a couple for the purposes of social security legislation during a specified debt period. The Administrative Appeals Tribunal (AAT) was required to determine this question.

The AAT was tasked with forming an opinion on whether Mr Thomson and Ms Dolma were in a de facto relationship, having regard to the criteria set out in subsections 4(3) and 4(3A) of the relevant Act. These criteria encompass the financial aspects of the relationship, the nature of the household, social aspects, sexual relationship, and the nature of their commitment to each other. Crucially, subsection 4(3A) mandates that a marriage-like relationship cannot be formed if the parties are living separately and apart on a permanent or indefinite basis.

The Tribunal considered the evidence presented, particularly concerning the financial aspects of the relationship. It noted a lack of evidence for joint ownership of assets or liabilities, and no significant pooling of financial resources. While there was conflicting evidence regarding Ms Dolma's contributions to rent and household expenses, the Tribunal found it more likely that her payments were commensurate with those of other housemates, rather than indicating a significant financial interdependence characteristic of a de facto couple. Given the evidence, particularly the living arrangements and financial contributions, the Tribunal concluded that Ms Dolma and Mr Thomson were not members of a couple during the debt period.

Consequently, the Tribunal set aside the decision under review. It substituted a decision that Mr Thomson was not a member of a couple in the relevant period, was not overpaid pension benefits, and therefore did not owe a debt to the Commonwealth. The matter was remitted to the Respondent to recalculate Mr Thomson’s benefits and make any appropriate payments.