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

This matter concerned an appeal by the applicant, Xanh, against a decision by the Secretary of the Department of Social Services regarding her eligibility for a disability support pension. The central dispute revolved around whether Xanh was considered a "member of a couple" for the purposes of the *Social Security Act 1991* (Cth) during a period when she and her legally married husband, Mr Dang, were cohabiting. The case was heard by Emeritus Professor P A Fairall, Senior Member.

The primary legal issue before the Tribunal was to determine whether Xanh and Mr Dang were living separately and apart on a permanent or indefinite basis, as defined by subsection 4(3) of the *Social Security Act 1991*. This involved assessing various indicators of a relationship, including financial aspects, household arrangements, social interactions, sexual relations, and the nature of their commitment to each other. The Tribunal also considered whether any debt arose due to the Department's sole administrative error and whether special circumstances existed to justify waiving or writing off any debt.

The Tribunal found that despite the applicant's subjective view that the marriage was not a "real marriage," her evidence, along with objective indicators such as Mr Dang listing the applicant's address as his own and identifying her as his spouse on aged care forms, supported the conclusion that they were members of a couple. The Tribunal reasoned that during their period of cohabitation from August 2016 to December 2017, they were legally married and, in the absence of evidence of profound estrangement, were not living separately and apart on a permanent or indefinite basis. The Tribunal further determined that the debt did not arise from the Department's sole administrative error and that no special circumstances were present to warrant waiving the debt. The decision under review was set aside, and the matter was remitted to the Secretary for reconsideration.