1. The Tribunal hearing was conducted on 4 December 2025. The Applicant participated in the hearing by telephone and a representative for the Respondent joined the hearing by video.
2. In addition to the oral evidence and submissions made at the hearing, the Tribunal had the following documents before it, copies of which were also provided to all of the parties to the review:

(i) Bundle of "T" documents (T1 to T20);

(ii) Written statement prepared by the Applicant;

(iii) Copy of first review decision and copy of application for second review;

(iv) Respondent's Statement of Facts, Issues and Contentions dated 23 January 2025, with annexures.

1. The two issues before the Tribunal are the date from which carer allowance is payable to the Applicant and whether the Applicant's claim for carer payment was correctly rejected due to her combined income.

From what date is carer allowance payable, in respect of the claim submitted in February 2023?

1. The qualification requirements for carer allowance are set out in section 954 of the Social Security Act 1991 (Cth) (the Social Security Act), where a carer is providing care for a disabled adult in a private home of both the adult and the carer. The qualification requirements include, in part, that the care receiver receives care and attention on a daily basis from the carer, because of the disability the care receiver is suffering.
2. It was not disputed between the parties that the Applicant lodged an online claim for carer allowance and carer payment on 1 February 2023. A copy of the claim form states that the claim was created on 1 February 2023 and was submitted on the same date. The Applicant represented in the claim form that she was married and currently living together with her husband, with a "relationship date" of 28 July 1996. She provided the name and date of birth of her husband, stated she was employed at the time of claim and provided details of her fortnightly earnings. The Applicant stated in the claim form that she was providing care to her mother, who was living at the same address, and that she was providing personal care and attention seven days per week from 10 December 2021. The care receiver was described in the claim form as "in the final phase of a terminal illness and is expected to live more than 3 months". The claim form stated that a "staff assisted verbal declaration" was accepted on 1 February 2023.
3. As to the care needs of the care receiver, the Applicant stated in the claim form that her mother needed help to move around the house; sometimes fell over; moved around with some help; had difficulty seeing clearly; needed help or attention every night; needed help with eating, showering and bathing; was unable to dress herself or look after her grooming; needed help to take her medication; sometimes understood what was being said; sometimes knew where she was and what time of day it was; often shouted, screamed or threatened other people; sometimes physically harmed people and often laughed or cried without reason; sometimes withdrew from contact; and often had unusual, inappropriate or repetitive behaviours.
4. A corresponding record was made by the Respondent about the Applicant's contact of 1 February 2023. The "Document (DOC)" record made on this date reflects that:

Customer contacted [location of call centre] on 1 FEB 2023 regarding General Enquiry for Customer Contact Details. Information was obtained via Phone Call. Document created by [staff number] on 1 FEB 2023.

Commenced ACC with customer, customer placed SO on hold to contact customer for bank details but call dropped out. If calls back please complete remainder of ACC questions.

Customer contacted to finish ACC. Customer advised both self and partner working. ACC wouldn't allow for partner income. Partner works fulltime for [name of employer] and has gross pay of $1440pw.

Customer advised works fulltime (coded in claim), at end of claim advised SO that will be reducing hours to half pay. So advised to provide evidence from employer

SO assisted partner to complete online partner verification

SO advised customer to have SA332a completed by THP and would also need to supply

Bank statements for both self and partner and last 2 payslips for self and partner

Identity - You must provide an original photographic document in

Txt: Commencement - One document to confirm your birth or arrival in

Primary - One document to show the use of your identity in the

Secondary - One document to show the use of your identity in the

Current account balances for each of your bank, building society,

Your partner needs to confirm their relationship with you before you will be able to submit your claim.

1. The Applicant provided a completed "Carer Payment and/or Carer Allowance Medical Report (SA332a)" to the Respondent on 20 February 2023, which stated that the Applicant's mother had a malignant brain tumour, excised twice, and was suffering from impaired mobility due to generalised weakness from the tumour and chemotherapy, with the condition having begun in December 2021. The condition was described as permanent and the doctor who prepared the report noted that the care receiver required help through the day and night with all aspects of care, in addition to medications and medical appointments. The doctor's responses to specific functions were broadly consistent with the information provided by the Applicant in the claim form.
2. The Tribunal accepted from the above information that a claim form was submitted on 1 February 2023 and that the Applicant was then requested to provide further information in support of the claim. The Tribunal found that, as part of the further information provided by the Applicant, a medical report was provided to the Respondent on 20 February 2023.
3. Section 11 of the Social Security (Administration) Act 1999 (Cth) (the Administration Act) sets out the general rule for making a claim and provides that a person who wants to be granted a social security payment or concession card must make a claim for the payment or card in accordance with the Division (Division 1 of Part 3 of the Administration Act).
4. Section 16 of the Administration Act states that:

(1) A person makes a claim for a social security payment or a concession card:

(a) by lodging a written claim for the payment or card; or

(b) by making the claim in accordance with subsection (7).

(2) A written claim for the purpose of subsection (1) for one social security payment or for a concession card must be in accordance with a form approved by the Secretary.

(3) Two or more written claims by the same person may be combined in one claim. Such a claim must be made in accordance with a form approved by the Secretary for the purposes of this subsection.

(a) to a person apparently performing duties at a place approved for the purpose by the Secretary; or

(b) to a person approved for the purpose by the Secretary; or

(c) in a manner, and to a place, approved for the purpose by the Secretary.

(5) Subject to subsection (6), a place or person approved for the purposes of subsection (4) must be a place or person in Australia.

(6) The Secretary may approve a place or person outside Australia for the purposes of subsection (4) for the lodgment of:

(a) claims made under a scheduled international social security agreement; or

(b) claims for AGDRP in relation to a major disaster that occurred outside Australia; or

(7) A person may make a claim in a manner approved by the Secretary for the purposes of this subsection.

(8) The power of the Secretary to make an approval under subsection (7) is not limited by any other provision of this section.

1. The Respondent in this matter has referred to a decision made by an authorised review officer on 23 June 2023, finding that carer allowance was payable to the Applicant from 20 February 2023, and not from 1 February 2023 as had been found by the original decision maker in this matter. The findings of the authorised review officer had been that:
   • You made a claim for Carer Allowance on 1 February 2023 for caring for [name of care receiver].
   • You are not a vulnerable claimant.
   • On 20 February 2023, you lodged a Carer Payment and/or Carer Allowance Medical Report for a person 16 years and over form (SA332a).
   • On 20 February 2023, you submitted your claim for Carer Allowance.
   • On 24 April 2023, you were granted Carer Allowance for [care receiver] incorrectly from 1 February 2023 due to a system issue.

1. In submissions made to the Tribunal, the Respondent did not seek to rely on the claimed "system issue", but rather submitted that a complete claim was not made until 20 February 2023. The following written submissions were provided by the Respondent in respect of this:

Instruction 8.1.1.20 of the Social Security Guide (Guide) states that a claim is complete and can be lodged when the required documentation specified in the claim and within the claimant's control is included with the claim.

Further, instruction 8.1.4.50 of the Guide, specifies that a medical report from the carer receiver's treating health provider is required to be provided along with a CA claim form.

The Secretary contends that the Applicant made a claim for CP and CA on 20 February 2023...

On 1 February 2023, the Applicant completed an online claim for CP and CA in respect of the care provided to her mother, the care receiver. However, the Applicant did not lodge a Carer Payment and/or Carer Allowance Medical Report for a person - 16 years or over completed by the care receiver's treating health provider [name], General Practitioner, until 20 February 2023. The Medical Report, completed by [the GP] on 16 February 2023, stated the care receiver required care for "impaired mobility due to generalised weakness (from tumour & chemo)".

The Secretary contends that on the basis the Applicant did not lodge evidence of the care required by the care receiver until 20 February 2023, the decision of the ARO to pay her CA from that date was correct.

1. The Social Security Guide at Part 8.1.1.20, referred to by the Respondent, sets out the following guidance in respect of claim forms:

All necessary questions in the claim form MUST be answered. A claim form may specify that a form, document or other attachment needs to be provided with the claim form. A claim is complete and can be lodged when the required documentation specified in the claim and within the claimant's control is included with the claim. Different arrangements apply for a vulnerable claimant (see below).

A document specified in the claim is generally regarded as being within the claimant's control. However, Services Australia may determine on a case by case basis that a document is not within the claimant's control.

A document not already held by a claimant that may readily be obtained from a third party is generally regarded as being within the claimant's control. An example is an employment separation certificate.

An example of a document from a third party regarded as being outside the claimant's control is obtaining medical evidence from a treating doctor or specialist.

The provision of a document that is outside the claimant's control does not affect the day on which a claim is regarded as being complete for the purposes of setting the day the claim is made. Also, the provision of additional documentation not specified in the claim but requested separately does not affect the claim day. The provision of such information may be needed before Services Australia is able to assess the claim, which means the day the claim is determined may be delayed. However, the day the claim is made remains the day the claimant provides the required documentation specified in the claim and within the claimant's control.

1. The Tribunal is not bound by the above policy, but will take relevant policy into account unless there are cogent reasons not to do so (Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, at 645). Having considered the intentions of the legislation and the scope of the policy set out above, the Tribunal accepted that it is appropriate to have regard to the policy when making a decision in this matter.
2. The Respondent also referred to Part 8.1.4.50 of the Social Security Guide which, in the Respondent's submissions, "specifies that a medical report from the care receiver's treating health provider is required to be provided along with a CA claim form". The Tribunal accepts that a medical report is required in order for a claimant's claim for carer allowance to be assessed. However, Part 8.1.1.20 of the Social Security Guide clarifies that a claim is complete when a document specified in the claim and within a person's control is provided. The Tribunal makes two observations about this requirement.
3. Firstly, having considered the online claim form made by the Applicant as presented by the Respondent for the purposes of the hearing, the Tribunal could not find any notification in the form that a medical report was required to be provided. The Tribunal found from this that there was no medical report specified in the claim. Rather, the evidence before the Tribunal is that this formed separate information provided to the Applicant, as part of a list of further documents required from her to support her claim.
4. Secondly, the Tribunal was not satisfied that the medical report was a document within the Applicant's control, as described in the Social Security Guide. The Tribunal notes that the Guide specifically describes a medical report as being a document considered to be outside a person's control. In such circumstances, the Guide specifies that such a document does not affect the day on which a claim is made.
5. Having regard to the wording of the legislation and the policy set out in the Social Security Guide, the Tribunal finds that a claim for carer allowance and carer payment was made by the Applicant on 1 February 2023.
6. Clause 3 of Schedule 2 to the Administration Act provides a "general rule" for the start date of a payment and states that if a person makes a claim for a relevant social security payment and is qualified for the payment on the day on which the claim is made, the person's start day in relation to the payment is the day on which the claim is made.
7. Part 3 of Schedule 2 to the Administration Act sets out the circumstances in which a start date can be backdated. The Tribunal notes, however, that none of the specified circumstances applies to the Applicant's circumstances.
8. Section 13 of the Administration Act allows a backdated start date where a "deemed claim" has been made. Each of the subsections in this provision require, though, that the Applicant is in a class of persons determined in an instrument under section 14A and that she had made contact with the Respondent within a 13-week period of the claim being lodged.
9. The Respondent submits that this provision does not apply on the basis the Applicant's last contact with the Respondent was 12 July 2022. Further, the Respondent submits that the Applicant is not in a class of persons as described in the Social Security (Administration) (Class of Persons - Intent to Claim) Determination 2018, which are persons who were unable to make a claim on the contact day because, at any time in the eight week period ending on the contact day, they were:

(a) subject to domestic or family violence; > > (b) homeless; > > (c) hospitalised or suffering from a temporary incapacity arising from a medical condition; > > (d) released from prison or psychiatric confinement; > > (e) experiencing high stress associated with a relationship separation; > > (f) a parent of a dependent child born during the relevant period; > > (g) affected by the death during the relevant period of an immediate family member; > > (h) a person who entered Australia during the relevant period as a humanitarian entrant to Australia; > > (i) a person whose usual place of residence is in a remote area, and the person is physically present in the remote area; > > (j) a person whose principal place of residence was lost or sustained major damage during the relevant period as a result of an extreme circumstance; or > > (k) subject to other special circumstances beyond the person's control.

10. There is no evidence before the Tribunal that the Applicant is in a class of persons as set out above and she did not claim at hearing to be so. On the evidence available to it, the Tribunal finds that the deemed claim provisions in section 13 of the Administration Act do not apply to the claim lodged on 1 February 2023.
11. The AAT at first review purported to affirm a decision about the start date of carer allowance. However, it found that carer allowance was payable from 1 February 2023, which was an earlier start date than that found by the authorised review officer. The Tribunal considered that the clearest outcome in this matter is to set aside the decision under review and substitute its decision that carer allowance was payable to the Applicant from 1 February 2023, in respect of the claim lodged on 1 February 2023.
12. The Tribunal notes that the original decision was made on 24 April 2023 and a request for review was made on 4 May 2023, within 13 weeks of the original decision. The authorised review officer decision was made on 23 June 2023 and a request for review by the AAT was made on 4 September 2023, within 13 weeks of the authorised review officer's decision. The AAT first review decision was made on 20 April 2024 and an application for second review was made on 20 May 2024. All requests for review were made within 13 weeks of each relevant decision and, in these circumstances, section 109 of the Administration Act does not preclude implementation of the favourable decision to pay the Applicant carer allowance from 1 February 2023 and not from 20 February 2023.

Was there an earlier claim, which would allow the Applicant to be paid carer allowance from a date prior to 1 February 2023?

1. The Applicant asserts that she submitted a claim for carer allowance and carer payment with the Respondent in December 2021. The history of this assertion is as follows.
2. On 4 May 2023, the Applicant sought a review of the original decision that had been made about the start date of her carer allowance. The corresponding "Document (DOC)" record, dated 4 May 2023, reflects the Applicant's stated reasons as follows:

On December 2021 the customer attended the Service Centrelink as a nominee on behalf of her mother. While there the customer advised she is caring for her mother as she was diagnosed with cancer. The service officer advised customer that she would not be eligible for Carer Payment or Carer Allowance because she was working. Customer followed the officers advice on not meeting the eligibility criteria and did not follow through with submitting a claim until 01.02.2023 when a member of her community advised her she is eligible for both Carer Payment and Carer Allowance. Now that the customer has been granted for Carer Allowance she realised that she was incorrectly informed about Carer Allowance income eligibility and has now missed out on Carer Allowance from December 2021. The customer is unsatisfied with the incorrect advice she received from the service officer as customer states she was refused assistance or the application for both Carer Allowance and Carer Payment.

1. The Applicant prepared written submissions for the first review AAT proceedings, which set out the following in relevant part (paragraph numbering deleted):

On the beginning December 2021 my mother [name] became unwell and on 7 December 2021 she diagnosed with a brain cancer, my mother was receiving a Special benefit from Centrelink.

Due to my mother circumstance of her illness, she could not return the form herself, So I had to go myself to hand over the form of my mother as I was her official agent with Centrelink.

On the middle of December 2021 when I went to Centrelink to hand over my mother form of behalf of my mother I informed the customer officer at Centrelink office that I am taking care of my sick mother and looking after her and providing her all the care she needs 7 days a week since my mother became unwell in the beginning of December 2021 and I want to apply for a carer payment and carer allowance.

I asked Centrelink customer officer to registering my name's, my information that I providing my mother a full care that she needs 7 days a week and to record my names as a carer Also I informed the Customer Officer that I am looking after my mother and needs to apply for Carer payment and Carer allowance. I asked the Customer services officer to provide me the Carer payment and Carer allowance application form as I am not a familiar with my gov online account.

The Centrelink Customer Officer informed me that Centrelink cannot help me or provide me any kind of support and not eligible for any benefit from Centrelink. Also she's refused to provide me the carer payment and carer allowance application form.

I spoke to the friend from my community she was helping me and provide me supporting during that difficult time. She advised me that I am eligible to received benefit from Centrelink as a Carer when I am providing a full Care for my mother 7 days a week due to her serious illness.

Also recently when I went back to my record I found that I get carer payment and carer allowance application form and I field all the forms and I handed to Centrelink office on December 2021 when I went with my friend.

1. The Applicant provided the AAT at first review a copy of a "Carer Payment and/or Carer Allowance - Caring for a person 16 years of over" form which was dated "__/12/2021". The Tribunal was provided a copy of the form and noted that the carer's details appeared to have been written over other handwritten details; that details of a former name appeared to have been whited out; the care receiver's address and country of birth appeared to have been written over other details; the relationship to the care receiver appeared to have been written over other details; and crosses put next to care details questions appeared to have been whited out and replaced with crosses in other response boxes.
2. The Applicant had also provided the AAT at first review a handwritten note from a person stating they had attended a Centrelink office with the Applicant "on December 2021", where the Applicant had handed in her claim for carer allowance and carer payment "with all documents".
3. The Applicant gave evidence at the second review hearing about the claimed events in December 2021. She submitted to the Tribunal that she had attended Centrelink without documents and was told she wasn't entitled to anything. She had ceased work because her mother was having seizures and was unable to talk or walk. After that time, the Applicant stated she was on and off work, but towards the end of her mother's life she stopped working completely.
4. The Applicant gave evidence that her mother had been receiving special benefit and the Applicant was required to submit documents every three months for her mother's payment. Her mother then passed away after she submitted her claim form again. She had asked every three months about the earlier claim and was told it was processed.
5. The Applicant was asked at the second review hearing about the written submissions she had provided to the AAT for the first review hearing. The Applicant gave evidence that she had attended Centrelink and a female had refused to help her because she was working and was not entitled. She then stated that she had gone with a family friend who kept telling her she needed to submit the form, and she left the form and each three months kept asking about it. When she lodged a claim in February 2023, she asked about the earlier claim and was told it may not have been lodged or could have been lost.
6. When asked about her previous complaint made to Centrelink that the customer service officer would not take her form in December 2021, the Applicant stated that she had lodged the form and was asking why she had been waiting all of that time. When asked about her claim to have more recently found a copy of the form, the Applicant stated that she sometimes keeps a photocopy of documents she submits.
7. The Respondent noted during the hearing that the claim form in question appeared to belong to another care receiver, whose details had been whited out and written over. In addition, the Applicant's suburb had been incorrectly spelt. When asked about these details in the form, the Applicant stated she had not known how to spell her name and surname when her mother passed away, she was "under too much severe stress", and sometimes she gets confused with the suburb's spelling.
8. As to where she had obtained the claim form from, she stated it could have been from her family friend or she could not remember. As to whether the form had been blank, or had had writing on it which had been whited out, the Applicant stated she cannot remember. The Respondent observed during the hearing that the carer details had been crossed out and written over, the care receiver details had been whited out and the address appeared to have been whited out and written over. When asked about these details the Applicant stated that she would never do that.
9. As to whether the day-to-day care needs information would have had crosses already there, or whether it would have been blank, the Applicant stated she cannot remember. She stated it is her information and she either put it there or gave to her family friend to complete. The Respondent observed that all of the boxes on the form appeared to have been changed and, when the Applicant was asked whether she checked the form, she stated no. The Applicant acknowledged that she was an administrative officer in her current role, but asserted she had never completed similar forms in her role.
10. When asked about the Applicant's signature in place of her mother's as the person being cared for, the Applicant stated that her mother could not use her right hand and could not read or write; when her mother was sick, the Applicant used to do everything on her behalf and would sign for her. As to whether she would have completed the claim form in December 2021, the Applicant stated she thinks she wasn't able to do any forms, and a friend used to fill them in and she would sign them. The Applicant then stated that this was one of the things she and her husband used to fight about. The Applicant agreed in her evidence at the hearing that she had signed the form to declare the information she had provided in the form was true and correct.
11. The evidence given by the Applicant at the second review hearing was inconsistent and irreconcilable with her earlier information to Centrelink (in May 2023, as part of a request for internal review) that she had been advised in December 2021 that she would not qualify and had not followed through with submitting a claim until 2023 and had "missed out" on payments as a result. When asked about the discrepancies in her evidence, she did not provide any clear or compelling explanation to the Tribunal for the apparent discrepancies. The earlier account given by the Applicant of not having left a form, and the inconsistencies in this account with her later evidence, causes doubt for the Tribunal about the claims of the Applicant to have submitted a form in December 2021 that she repeatedly queried the progress of over following months.
12. The irregularities in the claim form the Applicant now asserts she submitted in December 2021 cause further doubt for the Tribunal that a form was completed in December 2021, was submitted to Centrelink and that a copy of this was kept by the Applicant and found some years later. In particular, the form gives the strong impression of having been completed with other details, which were whited out and written over by the Applicant. The lack of specificity of a particular day in December 2021 in which the form was completed adds further doubt for the Tribunal about its authenticity, on the basis the Tribunal would expect a specific date to be identified for the production and submission of a claim form to the Respondent.
13. While the Tribunal had before it a handwritten letter by an individual claiming to have attended Centrelink with the Applicant in December 2021, and observation of the Applicant submitting the form in question, the witness was not called to give evidence at the second review hearing and the contents of the handwritten letter have not been tested before the Tribunal.
14. Taking into account all of the above concerns, the Tribunal does not accept the evidence of the Applicant at the second review hearing that she attended Centrelink in December 2021 to submit a written claim for carer allowance and carer payment. The Tribunal does not accept that the Applicant found a copy of the form some years later. The Tribunal does not accept that the form provided by the Applicant to the AAT is a form that was submitted to Centrelink in December 2021. Rather, the Tribunal prefers the account given by the Applicant to the Respondent in May 2023, that she was dissuaded from lodging a claim for carer allowance and carer payment by a customer service officer in December 2021 and, in consequence, did not lodge a claim until February 2023.
15. The Tribunal finds that no claim for carer allowance was made, within the meaning of section 16 of the Administration Act, in or around December 2021. Carer allowance is payable to the Applicant from 1 February 2023 and not from an earlier date, in line with the findings of the Tribunal as set out above.

1. The legislation relating to qualification and payability of carer payment is set out in Part 2.5 of the Social Security Act. Section 210 of the Social Security Act states that a person's carer payment rate is worked out using the Pension Rate Calculator A at the end of section 1064. Subsection 199(1) of the Social Security Act provides that carer payment is not payable to a person if their carer payment rate would be nil.
2. Point 1064-A2 of the Rate Calculator notes that where two people are members of a couple, they will be treated as pooling their resources (income and assets) and sharing them on a 50/50 basis.
3. Point 1064-E2 requires that in calculating a person's rate of carer payment, where the person is a member of a couple, both their ordinary incomes are calculated on a yearly basis and divided by two to work out the amount of the person's ordinary income for the purposes of the Rate Calculator.
4. Section 4 of the Social Security Act sets out the law relating to "family relationships definitions - couples" and at subsection 4(2) states that a person is a member of a couple for the purposes of the legislation if (in relevant part):

(a) the person is legally married to another person and is not, in the Secretary's opinion (formed as mentioned in subsection (3)), living separately and apart from the other person on a permanent or indefinite basis; or

1. Subsection 4(3) of the Social Security Act then states that:

(3) In forming an opinion about the relationship between 2 people for the purposes of paragraph (2)(a), subparagraph (2)(aa)(ii) or subparagraph (2)(b)(iii), the Secretary is to have regard to all the circumstances of the relationship including, in particular, the following matters:

(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;

(i) any joint responsibility for providing care or support of children; 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;

(e) the nature of the people's commitment to each other, including:

(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.

1. As noted above, in the claim form for carer allowance and carer payment lodged on 1 February 2023, the Applicant stated she was living with her husband and was able to provide details about his income. Following lodgement of the claim, she provided her husband's payslips and bank statements on 20 February 2023.
2. The Applicant's claim for carer payment was rejected on 10 July 2023, due to her partner's level of income. Following this decision, on 28 July 2023 the Applicant provided the Respondent with a "Relationship details (SS229) Separated under one roof" form, in which she indicated her relationship status was "separated". The Applicant stated in the form that she could not afford to leave and didn't think they would get back together. She described that, since separation, their relationship had changed by her husband not wanting to be with her or support her. She stated she had not applied to legally end the relationship because she didn't want to upset the children.
3. One month later, on 19 August 2023, the Applicant provided the Respondent a "Separation details" form stating her relationship status was "separated" and that she was "not sure" if there was a chance of a reconciliation.
4. The Applicant's evidence to the AAT at first review is set out in the AAT's reasons for decision. The Applicant is described as having told the AAT that she had not understood the qualification requirements for the payment and had selected the "married and living together" option on the form as it was the closest match to her circumstances and there was no option to indicate separation under the one roof. The Applicant is reported to have told the Tribunal that her husband had been resentful of the Applicant sleeping in her mother's room and as resentful and unsupportive of the Applicant's mother's situation. The Applicant is reported to have told the AAT that the lack of concern from her husband caused a rift in their relationship and the Applicant regarded this as the point she had become separated under the one roof.
5. At the second review hearing, the Applicant gave evidence that she and her husband are now together, although she asserted that "at that time they were not". The Applicant confirmed she and her husband are living together. She stated that she has been sick for a while and they are now back together.
6. The Applicant gave evidence that she had been told what to put in her claim form by a customer service officer and that, at the time, she and her husband were having arguments, she was "under too much stress and pressure" and she and her husband were not agreeing or talking or sharing money at the time. She stated someone had phoned her and asked if they were a couple; she had said yes, they were living in the same house, even if they were not talking much.
7. When asked about the "Separated under the one roof" form she had completed in July 2023, the Applicant stated that they used to be separated under one roof, she has been through a lot, it was all happening when her mother was sick, they have children and the children are talking to them, and they are back together now. She asserted she had been separated under one roof with her husband from a time before her mother became sick and that things became worse after her mother passed away. She asserted she and her husband had reconciled some two to three months before the second review hearing, due to her husband having had an operation, due to the children talking to them, and due to her feeling sorry for him.
8. The Applicant confirmed that she and her husband still own their own home and are paying a mortgage on the home. Both their names are on the mortgage. They share bills, but her husband pays the mortgage and she tends to pay bills, because her husband's income is higher. Her husband does his own cooking and cleaning and she cooks and cleans for herself. When asked whether they had tried to sell their house while separated, the Applicant stated that they rang a real estate agency but found out they would lose a lot of money.
9. The Applicant stated that the house has five bedrooms and two bathrooms. When asked if she and her husband share a bathroom, the Applicant stated they use whichever one because they're a family. The Applicant stated she had cooked meals at different times due to her work schedule, that she buys her own food and that she doesn't assist with garden maintenance. As to where she had been sleeping as of December 2021, the Applicant stated she was sharing a room with her mother and had moved all of her clothes and shoes out of the room she'd previously shared with her husband. She stated she has remained in her mother's bedroom.
10. The Applicant stated she hadn't spoken to a lawyer about a divorce because she doesn't want to make her children upset or miserable. She stated that "not everyone is happy in life" and she doesn't want to upset her children, who are now 28, 26 and 23 years of age. She stated she had not told her children in December 2021 or the two years that followed about a separation and they had "pretended" when the children came over, although perhaps the children could see they weren't the same as they used to be. The Applicant confirmed she had given evidence at the first review hearing that she'd hoped to reconcile with her husband and that they are together again at present. When asked about witnesses she had nominated that the Respondent could contact to confirm a separation, the Applicant stated that she doesn't like to say too much about her life, but her witness knew she was fighting with her husband. She then stated she can't remember if she had told the witness about the separation or not, or that they would be aware she'd moved her clothes and shoes out of the bedroom she had shared with her husband.
11. In considering the relevant factors set out in subsection 4(3) of the Social Security Act, the Federal Court in S_taunton-Smith v Secretary, Department of Social Security_ [1991] FCA 513; (1991) 32 FCR 164, stated that (at [20]):[1]

It is not suggested that this list is exhaustive nor will each of these subjects fall to be considered in every case. It must also be emphasised that a particular answer to a single subject will rarely, if ever, supply a final solution. The responsibility of the fact-finding tribunal is to have regard to all the material facts of each case, treating the matters listed above only as indicators. The Tribunal will make its determination whether a particular man and woman are or are not living separately and apart only after assessing the totality of the evidence and other material that is before it.

1. The Tribunal finds that, at the time she claimed carer payment on 1 February 2023, the Applicant was legally married to her husband. As of February 2023, the Applicant and her husband were residing together in a house they were (and are) jointly paying a mortgage on. They were each contributing to household expenses such as bills. Each appeared to be contributing to household tasks such as cleaning and cooking. They did not, at the time of claim or in the years following, take any meaningful steps to separate their financial arrangements such as making arrangements to sell the house. While the Applicant claims to have moved into a bedroom with her mother and out of the marital bedroom, the remaining aspects of the financial and household arrangements at the time of claim were consistent with the Applicant and her husband being a member of a couple for social security purposes.
2. The Tribunal is prepared the accept the information provided by the Applicant in the "Separated Under the One Roof" form, submitted on 28 July 2023, that she did not, at that time, have a sexual relationship with her husband.
3. The Applicant and her husband have three children who, on the Applicant's own evidence, were not advised at any time of a separation. The Applicant represented herself to the Respondent at the time of claim as partnered and, in response to requests for information by the Respondent, provided her husband's payslips and bank statements. The Applicant gave evidence she had not made inquiries about a divorce. The Tribunal finds that, at the time of claim, the Applicant was representing herself to her children and to the Respondent as a member of a couple.
4. The Tribunal is prepared to accept the Applicant may have had a level of conflict with her husband, caused by the stress of having her ill mother living in the family home with them. However, as noted by the Respondent, the AAT has previously commented on the presence of conflict within a relationship as not necessarily evidencing that a relationship has broken down. In Haddara and Secretary, Department of Social Services and Department of Education, Skills and Employment (Social services second review) [2023] AATA 2316, the AAT commented (at [58]):[2]

The fact that the parties experienced difficulties in their relationship at times does not preclude a finding that a couple relationship existed. The Tribunal is not required to be satisfied that the relationship was happy or socially conventional. It does not require that there was a total commitment to a couple relationship by both parties at all times. It does not require a finding that there was a romantic relationship. The task for the Tribunal is to assess the true nature and character of the relationship between the parties having regard to the matters and factors specified in s 4(3) of the Act by weighing up the factors which point in favour of a de facto relationship and those that point against it.

1. Further, in circumstances where the Applicant is legally married to her husband, the Tribunal must be satisfied that the marital relationship must have broken down in a fundamental way at the time of the claimed separation. In Staunton-Smith, the Federal Court commented (at [37]-[39]) that:[3]

Addressing the subject of "separation" Watson J. said in In the Marriage of Todd (No.2) 1976 9 ALR 401:

In my view 'separation' means more than physical separation - it involves the destruction of the marital relationship (the consortium vitae). Separation can only occur in the sense used by the Act where one or both of the spouses form the intention to sever or not to resume the marital relationship and act on that intention; or, alternatively, act as if the marital relationship has been severed. What comprises the marital relationship for each couple will vary. Marriage involves many elements, some or all of which may be present in a particular marriage - elements such as dwelling under the same roof, sexual intercourse, mutual society and protection, recognition of the existence of the marriage by both spouses in public and private relationships.

When it is asserted that a separation has taken place it may be necessary to examine and contrast the state of the marital relationship before and after the alleged separation. Whether there has been a separation will be a question of fact to be determined in each case.

The Full Court of the Family Court (of which Watson J. was a member) expressed in In the Marriage of Pavey [1976] FamCA 36; (1976) 10 ALR 259 its general agreement with that statement of the law with two qualifications. It said that it was appropriate to use the word "breakdown" instead of "destruction" (p 262) and it considered "the nurture and support of the children of the marriage" as a constituent element of the marital relationship. (p 263)

The matter of greater significance to be derived from Pavey's case is the insistence by the Full Court that the composition of the marital relationship for each couple varies from case to case. This accords with the views that this Court and the Tribunal have expressed when considering various provisions of the Social Security Act: in every case it will be necessary to have regard to the particular circumstances of the people whose lives and lifestyles will be affected by the decision of the Department; it is wholly inappropriate to fall back on standards, conventions or "role-models".

1. The evidence of the Applicant at the second review hearing was clear and credible, that she considers she and her husband are together as a member of a couple. The Tribunal has placed weight on this evidence, and on the Applicant's evidence of having continued to maintain a mortgage, household and representation of themselves to their children and the Respondent as a couple, during a period the Applicant subsequently claimed she was separated from her husband. The Tribunal has placed weight on the length of the relationship between the Applicant and her husband and the commitment this demonstrates between them.
2. The Tribunal has, further, placed some weight on the representation by the Applicant to the Respondent as a member of a couple up to the point when it became apparent that the Applicant's husband's income had an impact on her qualification for carer payment. The Tribunal notes that the Applicant's claim for carer payment was made in February 2023 and was rejected in July 2023. It was only some two weeks after the rejection of the claim that the Applicant claimed for the first time she had been separated under the one roof with her husband at the time of claim.
3. Having weighed up all of the evidence before it, the Tribunal finds that the Applicant was a member of a couple as of 1 February 2023, for the purposes of the claim for carer allowance and carer payment.

Is there a special reason to treat the Applicant as single?

1. Subsection 4(6) of the Social Security Act provides that a person is not a member of a couple if a determination under section 24 is in force in relation to the person.
2. Subsection 24(1) of the Social Security Act states that:

(a) a person is legally married to another person; and

(b) the person is not living separately and apart from the other person on a permanent or indefinite basis; and

(c) the Secretary is satisfied that the person should, for a special reason in the particular case, not be treated as a member of a couple;

the Secretary may determine, in writing, that the person is not to be treated as a member of a couple for the purposes of this Act.

1. The Social Security Guide describes the objectives and scope of a section 24 determination. At Part 2.2.5.40, the Guide states that:[4]

In general, an income support payment is paid at a partnered rate where a person is a member of a couple in recognition that a couple living together typically pool resources and therefore have lower living costs in comparison to 2 single people living separately. Where a couple is unable to pool resources, it may result in extra expenditure causing financial difficulty, which would make it unfair to treat the person as partnered.

If there are practical or legal reasons a couple cannot share income and assets, then there MAY be grounds for exercising the discretion under section 24 provisions.

Generally, section 24 would NOT be appropriate where:

• a couple is able to pool resources but chooses not to do so, or
• if one or both members of a couple has access to other sources of support and either has not explored or realised the support or choose not to access it.

1. In Holt and Secretary, Department of Social Services [2010] AATA 143, the AAT considered case law relevant to section 24 determinations and noted that the test for the tribunal was whether, for practical purposes, the Applicant and their partner cold not reasonably be expected to enjoy the pooling of resources usually occurring in a marital relationship. The AAT noted that the test does not require that the circumstances of an applicant "be extremely unusual, uncommon or exceptional" (at [48]). Holt was cited with approval by the Federal Court in Kazmierczak v Secretary, Department of Families, Housing and Community Services [2010] FCA 1084 where the Court commented (at [41]-[42]):[5]

The case law canvassed by Senior Member Creyke in Holt's case confirms, in my view correctly, that there is a particular focus under the Act on the practical ability of the resources of the partner being available for pooling with the resources of the person holding the pension. This fundamentally derives from s 1064-A2 of the Act which provides that where two people are members of a couple, they will be treated as pooling their resources (income and assets) and sharing them on a 50/50 basis.

It stands to reason that if for some legal or other practical reason the partner member of the couple cannot be treated as sharing income and assets then there is a ground for exercising the discretion under s 24 so as not to treat the holder of the pension as a member of a couple who are capable of sharing resources. In that regard, in effect, the s 1064-A2 expectation that there will be pooling is negatived.

1. The Court in Kazmeirczak also noted (at [37]) that:[6]

I agree generally with what French J said in Boscolo v Secretary, Department of Social Security [1999] FCA 106; (1999) 90 FCR 531 (Boscolo) at [18], that the core of the requirement for "special reasons" under s 24(1) is that there be something unusual and different to take the matter the subject of the discretion out of the ordinary course. But that does not require that the case be extremely unusual, uncommon or exceptional. I also agree with the observation of French J, at [18], that the word "special" is in essence "instrumental", a direction to the decision-maker that the discretion it contains is not lightly to be enlivened.

1. The Respondent's position is that it is not appropriate to exercise the discretion in section 24 of the Social Security Act, because the evidence before the Tribunal establishes that the Applicant and her husband share mortgage repayments, share private health insurance and share household bills. The Respondent provided written submissions to the Tribunal, further, that:[7]

The Secretary contends that at the time of her claim for CA and CP on 1 February 2023, the Applicant was employed full-time at [name of employer] and [her husband] was employed full time by [name of employer]. The Secretary accepts that at the time of her mother's illness, the Applicant reduced her work hours and that she had increased her hours after her mother's death.

The Secretary contends that the evidence demonstrates that the Applicant and [her husband] were pooling resources prior to, during, and after the CP period, and there is no evidence that the Applicant and [her husband] have a practical inability to pool resources. To the extent that the Applicant argues that she and [her husband] do not pool resources apart from the provision of housing, which the Respondent does not concede in light of the available evidence, the Respondent contends that that focus is whether the couple is able to pool resources, not whether they in fact do: re Bilanovic, re Mears and Instruction 2.2.5.40 of the Guide. Where the couple is able to pool resources but choose not to, then it is not appropriate to exercise the discretion in section 24 to treat them as not members of a couple.

The Respondent contends the available evidence does not establish that the Applicant was in financial difficulty in the period.

There is no evidence of ill health affecting the Applicant or her family in the period.

1. The Applicant did not seek to submit that a section 24 determination should be made in this matter. Rather, she noted that at the time of the second review hearing, she and her husband were together again, although asserted that at the time of the original decision, had not been together.
2. Based on the uncontested evidence before the Tribunal, the Tribunal finds that the Applicant and her husband were, as of 1 February 2023, sharing a home over which they were paying a mortgage and they were both employed on a full-time basis. The Applicant and her husband were pooling resources for the benefit of their shared home and the Tribunal finds that there are no special circumstances to treat the Applicant and her husband as not members of a couple at the time of claim on 1 February 2023.

1. The Applicant's carer payment claim was rejected based on the Applicant's combined income, that is, the income of the Applicant and her husband. The Tribunal accepts that, at the time of claim, the upper limit for a member of a couple's income for carer payment was $3,431.20 per fortnight. The Tribunal accepted that the Applicant's husband was paid gross income of $1,743.11 on 8 February 2023 and $1,778.31 on 31 January 2023 ($3,521.42 earned for the fortnight). The Applicant's combined income exceeded the threshold for carer payment at the time of claim and the decision to reject the claim for carer payment was legally correct and is affirmed by the Tribunal.

Solicitors for Respondent: Ms G Heggen, Services Australia

[1] Respondent's Statement of Facts Issues and Contentions, paragraph 7.9.

[2] Respondent's Statement of Facts Issues and Contentions, paragraph 7.32.

[3] Respondent's Statement of Facts Issues and Contentions, paragraph 7.7.

[4] Respondent's Statement of Facts Issues and Contentions, paragraph 7.47.

[5] Respondent's Statement of Facts Issues and Contentions, paragraph 7.42.

[6] Respondent's Statement of Facts Issues and Contentions, paragraph 7.44.

[7] Respondent's Statement of Facts Issues and Contentions, paragraphs 7.51 to 7.53.