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

This case concerned an appeal by TSMB against a decision by the Secretary of the Department of Social Services regarding her eligibility for a carer payment. The central dispute was whether TSMB was a member of a couple for the purposes of the Social Security Act 1991 (Cth) from 11 April 2017. The matter was heard by Chris Puplick AM, Senior Member, of the Administrative Appeals Tribunal.

The legal issues before the Tribunal were to determine whether TSMB and SV were a couple, considering the financial, social, and other aspects of their relationship, including the nature of their household and their commitment to each other. This involved assessing whether their de facto relationship, or consortium vitae, had broken down, even though they continued to live together in the same property.

The Tribunal reasoned that while the assessment of a relationship's status involves both objective and subjective criteria, the overall view must be objective. It accepted evidence that TSMB and SV had been married since 1981, but following an accident in 2013, SV became dependent on TSMB for care and exhibited significant changes in mood and behaviour. TSMB concluded by 2015 that she no longer regarded herself as married to SV, though she continued to provide care for family and cultural reasons. The Tribunal noted that they lived separately within the same house, had separate bedrooms, did not share meals, and there was no sexual relationship. While they jointly owned their property, this was primarily due to financial considerations and the inability to afford separate accommodation. TSMB managed the finances, and while they attended some family gatherings, they did so separately. The Tribunal found no evidence that TSMB held herself out to the community at large as being in a married relationship with SV.

Ultimately, the Tribunal concluded that, weighing all the factors, TSMB was not a member of a couple with SV from 11 April 2017. The decision under review was set aside, and the matter was remitted to the Secretary with a direction that TSMB was not a member of a couple for the relevant period, and her carer payment entitlements were to be recalculated at the single rate.