Re Hallak and Secretary, Department of Social Security (1990) 20 ALD 527 Main v Main [1949] HCA 39; (1949) 78 CLR 636 Re Reid and Director-General of Social Services (1981) 4 ALN No 1 Secretary, Department of Social Security v Le-Huray (1996) 138 ALR 533 Staunton-Smith v Secretary, Department of Social Security [1991] FCA 513; (1991) 32 FCR 164 Re Trail and Secretary, Department of Social Security (1986) 9 ALD 128

1. This is an application by the Secretary to the Department of Social Security ("the applicant") for review of a decision of the Social Security Appeals Tribunal ("SSAT"), dated 28 May 1996. In that decision the SSAT set aside a decision, dated 14 August 1995, of an Authorised Review Officer ("ARO") within the Department of Social Security ("Department") and substituted a new decision that Jane Catherine Porter ("the respondent") not be treated as a "member of a couple", for the purpose of calculating the rate of Disability Support Pension ("DSP") payable to her under the Social Security Act 1991 ("the Act"), with effect from 30 November 1995.

2. At the hearing the applicant was represented by Mr C G de Hoog, a Departmental advocate, and the respondent was represented by Mr D Clyne of counsel. The Tribunal had before it the documents ("T documents") lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 and documentary exhibits tendered by the parties. Oral evidence was given by Mr J L Bolst and Mr J A W Sharp, who were called by the applicant, and by the respondent and her husband, Kenneth James Porter ("Mr Porter").

3. The background facts, as found by the Tribunal on the basis of the T documents and about which there is no dispute between the parties, are as follows.

4. The respondent, who is aged 51 years, and Mr Porter, who is aged 52 years, have been married since 1964.

5. On 23 February 1993 the respondent lodged with the Department a claim for DSP (T6). That claim was subsequently granted and DSP was paid to the respondent, with effect from 25 February 1993, at the married rate.

6. On or about 4 June 1993 the Department was informed, by letter dated 2 June 1993 (T8), from Ms J Isbister of Moora District Hospital, that the respondent was then an inpatient at that Hospital and had been a "permanent patient" both at that Hospital and at Sir Charles Gairdner Hospital since July 1992. The letter went on to state that the respondent would "always be a nursing home patient" and that she wished to apply for the single rate of pension, plus rent assistance, to cover her hospital costs. DSP was subsequently paid to the respondent at the single rate, plus rent assistance, with effect from 25 February 1993.

7. As from 18 May 1995 the rate of DSP payable to the respondent was reduced owing to Mr Porter's income.

8. By letter dated 23 May 1995 (T13) to the Department, the respondent referred to the reduction in the rate of her DSP to $277.30 per fortnight and requested that DSP be paid to her at the single rate to enable her to pay her hospital costs of $740.00 per month.

9. On 4 August 1995 the Department received a letter (T17) from the respondent appealing against "the decision ... not to pay (her) a single Disability Support Pension".

10. On 8 August 1995 a delegate of the applicant decided that DSP was payable to the respondent at the single rate, on the basis that she was a member of an illness separated couple, but that, for the purpose of the income test, the "halving provisions" of the Act were applicable because of Mr Porter's income (T18 and 19).

11. On 14 August 1995 an ARO within the Department affirmed the delegate's decision of 8 August 1995. The respondent was notified of the ARO's decision by letter dated 14 August 1995 (T20).

12. On 30 November 1995 the SSAT received written notice of an appeal, dated 21 November 1995 (T21), from the respondent.

13. On 28 May 1996 the SSAT set aside the ARO's decision of 14 August 1995 and substituted a new decision that, pursuant to s.24(1) of the Act, the respondent not be treated as a "member of a couple", for the purpose of calculating the rate of DSP payable to her, with effect from 30 November 1995.

14. John Leonard Bolst told the Tribunal that he has been employed in the Health Department of Western Australia for 25 years and that he presently occupies the position of Senior Finance Officer. He confirmed that he was the author of a letter, dated 18 February 1997 (Exh A1), signed by Mr A Kirkwood, Manager, Corporate Finance, Health Department of Western Australia, and addressed to Mr de Hoog of the Department. In that letter it was stated that the contribution rate applicable to "nursing home type patients" for hospital accommodation was 87.5% of the sum of single rate of age pension and rent assistance payable to a "partnered, illness separated" pensioner and that the daily contribution rate was $24.75 as at 18 May 1995 and $25.50 as at 30 November 1995. Mr Bolst explained that the expression "nursing home type patient" refers to a hospital patient whose stay in hospital extends beyond a period of 35 days. He also explained that the expression "contribution rate" referred to the total amount contributed by an individual patient towards the cost of his or her accommodation in a State public hospital. If the patient had taken out private health insurance, there would also be a contribution (whose amount would vary according to the health insurance status of the patient) by the relevant health insurance fund. If, however, the patient had not taken out private health insurance, no additional contribution - that is, over and above the abovementioned maximum patient contribution rate - would be payable to the hospital.

15. John Alexander Watson Sharp told the Tribunal that he is employed in the Commonwealth Department of Health and Family Services and he currently occupies the position of Executive Officer, Validation Section, Aged and Community Care Branch. He explained that the function of the Validation Section is to monitor expenditure in relation to nursing homes approved by the Commonwealth. He confirmed that he had written a letter, dated 20 February 1997 (Exh A2), to Mr de Hoog of the Department. That letter contained the following information: "1. Nursing Home fees are calculated as 87.5% of the aged (sic) pension plus Rent Allowance (sic). The resident contribution rate - on 18 May 95 was $24.75 per day. on 30 Nov 95 was $25.50 per day. is currently $26.30 per day. These rates apply to all residents. The Government contribution varies according to the care needs of the resident. 2. The basic Hostel fee is calculated as 85% of the aged (sic) pension plus rent assistance. This is currently calculated as $178.93 (per week). The Government contribution varies according to the care needs of the resident. 3. WA AUST Nursing Home Resident Numbers 5792 74229 Hostel Resident Numbers 5724 63941 Nursing Home residents aged under 60 yrs make up 3.4% of the resident population. The equivalent figure for hostels is not available. Other data which may be of interest - 80% of Nursing home residents are pensioners and approximately 36% are married."

16. Mr Sharp explained that the Commonwealth Government approves all nursing homes and sets the fee that can be charged by them. The fee comprises a resident contribution (the rate of which is 87.5% of the maximum single rate of age pension plus rent assistance) and a Government contribution which makes up the balance.

17. Mr de Hoog also tendered in evidence a document entitled: "Background Information Paper on Nursing Home Type Patients for Commonwealth - State Working Group Meeting of 1 February 1994" (Exh A3). Mr Sharp explained that this document had been sent to him in 1994 by his head office in Canberra in response to an inquiry he had made regarding "nursing home type patients". It is unnecessary for the Tribunal to refer in detail to the contents of this document other than to note that it contains statistical information on the number and ages of "nursing home type patients", their public and private hospital utilisation, and the way in which they are funded by the Commonwealth Government.

18. The respondent told the Tribunal that she presently resides at The Lodge, which is situated next to the Moora District Hospital, in the town of Moora approximately 200 kilometres north-east of Perth.

19. The respondent outlined her employment history and the circumstances that led to her hospitalisation. She said that, upon leaving school in Perth in 1961 at the age of 15 years, she first worked as a telephonist with the then Postmaster-General's Department in Moora. Thereafter, until 1992, she was fully employed in three concurrent part-time occupations, namely, as a laboratory assistant in a senior high school, as an assistant in a bakery, and as a gardener.

20. The respondent told the Tribunal that in July 1992 (when she was aged 46 years) she entered Sir Charles Gairdner Hospital in Perth for a medical procedure involving the treatment of an aneurism behind her right eye. She said that, during the procedure, the artery ruptured causing bleeding as a result of which she suffered a stroke. She said that, when she awoke after the anaesthetic had worn off, she was paralysed down her left side.

21. The respondent told the Tribunal that she has been hospitalised since suffering the stroke in July 1992. She said that she remained in Sir Charles Gairdner Hospital until September 1992 when she was transferred to the Moora District Hospital where she remained until 15 September 1996 when she was transferred to The Lodge (for frail aged patients) adjoining the Hospital, where she presently resides.

22. The respondent told the Tribunal that there was presently no prospect of her returning home to live with Mr Porter because she was unable to look after herself. She added, however, that Mr Porter visits her every night. She said that she did not want to leave Moora because she would then not be able to see Mr Porter.

23. The respondent confirmed that her only income consisted of her social security payments and that all her financial affairs were now looked after by Mr Porter.

24. Mr Porter told the Tribunal that he has lived in Moora for approximately 34 years and that he has always worked, and presently still works, as a shearer. He added, however, that since January 1993 he has had difficulties in performing his shearing duties owing to health problems. He explained that he underwent triple bypass heart surgery in January 1993, suffered carpal tunnel syndrome in 1994, and in 1995 developed a hernia on the scar left by his earlier heart surgery.

25. Mr Porter confirmed that he now looks after all of the respondent's financial affairs. He said that up until September 1996 the cost of the respondent's hospitalisation in the Moora District Hospital was $780 - $790 per calendar month, and that the present cost of her accommodation at The Lodge is $363.15 per fortnight. He said that, in addition, the cost of the respondent's clothing, toiletries, toothpaste and the like was, on average, approximately $40.00 per fortnight.

26. Copies of Mr Porter's income tax returns included in the T documents indicate that his taxable income in the financial years 1991-92, 1992-93, 1993-94 and 1994-95 was as follows: 1991-92 $14,001.00 (T5, p19) 1992-93 $15,321.00 (T9, p36) 1993-94 $29,240.00 (T12, p49) 1994-95 $29,568.00 (T14, p59)

27. Mr Porter told the Tribunal that he estimated that his taxable income in the 1995-96 financial year was approximately the same as in the 1994-95 financial year. He added that he expected that his taxable income in the 1996-97 financial year would be roughly the same, although it could be a "little less" because shearing work had been "pretty lean" since last Christmas.

28. Mr Clyne (for the respondent) tendered a statement of Mr Porter's expenditure (Exh R1). According to that statement, as amended by Mr Porter's oral evidence, his average fortnightly expenditure comprises the following items: $ Food/Household Items 200.00 Clothing 12.50 Petrol 100.00 Entertainment 60.00 Chemist 24.00 Health Insurance 83.00 Accountancy 12.00 Rates - Council 28.54 Rates - Water 4.70 House & Contents Insurance 9.23 Electricity 17.50 Telephone 12.50 Car Registration 13.42 Car Insurance 11.50 Repairs & Maintenance 64.00 Life Insurance 15.19 Ambulance Fund 1.00 Mortgage Payments 180.00 Credit Card Payments 18.00 Mr Porter said that he does not spend any money on alcohol or cigarettes.

29. Mr Porter told the Tribunal that, as a result of the SSAT's decision that the respondent not be treated as a "member of a couple", the rate of the respondent's DSP is presently $426.40 per fortnight, and that that amount is sufficient to cover the cost of her accommodation at The Lodge ($363.15 per fortnight) and of her clothing, toiletries and other necessities (approximately $40.00 per fortnight).

30. Mr de Hoog informed the Tribunal that if the respondent were to be treated as a "member of an illness separated couple" the rate of her DSP would be reduced to approximately $170.00 per fortnight.

31. Mr Porter told the Tribunal that he continues to reside in the matrimonial home in Moora which he and the respondent purchased approximately 20 years ago. He described it as a small, 3 bedroom house. He said that, although he did not presently expect that the respondent would be able to return to live in the house in the future, he had not given any thought to selling it. He added that the population of Moora was approximately 1700 and that the only alternative accommodation options available in Moora were State housing or private rental accommodation.

32. The relevant provisions of the Act are as follows: "4(1) ... 'illness separated couple' has the meaning given by subsection (7); 'member of a couple' has the meaning given by subsections (2), (3), (3A) and (6); ... 4(2) Subject to subsection (3), a person is a member of a couple for the purposes of this Act if: (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; ... 4(6) A person is not a member of a couple if a determination under section 24 is in force in relation to the person. 4(7) Where 2 people are members of a couple, they are members of an illness separated couple if: (a) they are unable to live together in a matrimonial home as a result of the illness or infirmity of either or both of them; and (b) because of that inability to live together, their living expenses are, or are likely to be, greater than they would otherwise be; and (c) that inability is likely to continue indefinitely. ... 24(1) Where: (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."

33. Mr de Hoog conceded that, notwithstanding their permanent, or at least in-definite, physical separation, the respondent and Mr Porter are "members of a couple" for the purposes of the Act, within the meaning of s.4(2)(a). He further conceded that they are members of an "illness separated couple" within the meaning of s.4(7). His primary submission was, however, that the discretion, conferred by s.24(1) of the Act, to determine that a person, who is a "member of a couple" within the meaning of s.4(2)(a), not be treated as a "member of a couple" is not exercisable in the case of a person (such as the respondent) who is a member of an "illness separated couple" within the meaning of s.4(7). In support of this submission, Mr de Hoog referred to the provisions of Pension Rate Calculator A in Part 3.2 of the Act whereby a higher rate of DSP and other benefits, such as Pharmaceutical Allowance and Rent Assistance, is payable to a member of an "illness separated couple" than is payable to a person who is "partnered" - that is, a "member of a couple" (see s.4(11)(a) of the Act). He contended that the fact that Part 3.2 of the Act contained specific beneficial provisions relating to the calculation of DSP in the case of a member of an "illness separated couple" suggested that the legislature did not intend that the general discretion conferred by s.24(1) should be exercisable in relation to such a person. Mr de Hoog also submitted that, if, contrary to his primary submission, the discretion conferred by s.24(1) was exercisable in the case of a member of an "illness separated couple", it should not be exercised in favour of the respondent because there was no "special reason" (within the meaning of s.24(1)(c)) in the circumstances of her particular case which would warrant such an exercise of the discretion.

34. Mr Clyne did not accept Mr de Hoog's concession that the respondent is a member of an "illness separated couple". He submitted that, under s.4(6) of the Act, by virtue of the SSAT's decision to exercise the discretion, conferred by s.24(1), that the respondent not be treated as a "member of a couple" for the purposes of the Act, the respondent was not a "member of a couple" and, therefore, not a member of an "illness separated couple" within the meaning of s.4(7) of the Act. Mr Clyne's main submission, however, was that it was appropriate to exercise the discretion conferred by s.24(1) in favour of the respondent because the overall circumstances of her particular case - in particular the unfavourable financial circumstances of the respondent and Mr Porter, and the respondent's most unfortunate physical condition, including the timing and impact thereof - were such as to constitute a "special reason", within the meaning of s.24(1)(c), which would warrant such a course.

Findings on Material Questions of Fact and Application of Law

35. The Tribunal notes, at the outset, that, pursuant to s.4(6) of the Act, the effect of the SSAT's decision of 28 May 1996 was, as submitted by Mr Clyne, that the respondent is not a "member of a couple" for the purposes of the Act. However, by virtue of the applicant's application to this Tribunal for a review of the SSAT's decision, the entire matter is now before this Tribunal whose function is to consider the matter afresh and make what it regards as the correct and preferable decision in the matter.

36. The crucial issues in this matter are whether s.24(1) of the Act is applicable to the respondent - that is, whether the statutory conditions precedent to the applicability of that subsection are satisfied in the circumstances of the respondent's case - and, if so, whether it is appropriate, having regard to those circumstances, to exercise, in the respondent's favour, the discretion conferred by that subsection.

37. As regards the firstmentioned issue, the Tribunal does not accept Mr de Hoog's primary submission that s.24(1) of the Act is inapplicable to a member of an "illness separated couple" as defined in s.4(7). In the first place, there is nothing in the express provisions of s.24(1) which lends any support to this submission. Nor, in the Tribunal's opinion, can it necessarily be inferred from the general provisions of Part 3.2 of the Act that the legislature had such an intention. On the contrary, the Tribunal is of the opinion that, if Mr de Hoog's primary submission were upheld, the result would be to discriminate against a member of an "illness separated couple" by denying to them the substantial benefit, which is available to a "member of a couple", flowing from a favourable exercise of the s.24(1) discretion, and that this result would be contrary to the intention of the legislature.

38. Accordingly, the Tribunal concludes that, whether or not the respondent is a member of an "illness separated couple", the issue of the applicability of s.24(1) of the Act arises for consideration in this case.

39. There is no dispute that the respondent is "legally married to another person" - namely, Mr Porter - and thus para (a) of s.24(1) is satisfied. In order to satisfy para (b), the respondent must not be "living separately and apart from" Mr Porter "on a permanent or indefinite basis". Mr de Hoog conceded that this requirement was satisfied in the respondent's case. In the Tribunal's opinion this concession was rightly made. The statutory phrase "living separately and apart" has been consistently interpreted in family law and social security cases as requiring not only a physical separation but also a state of affairs in which it can be said that the conjugal relationship between the parties no longer exists: see, for example, Main v Main [1949] HCA 39; (1949) 78 CLR 636; Re Trail and Secretary, Department of Social Security (1986) 9 ALD 128; Re Hallak and Secretary, Department of Social Security (1990) 20 ALD 527; Staunton-Smith v Secretary, Department of Social Security [1991] FCA 513; (1991) 32 FCR 164. In the present case, although the respondent and Mr Porter have been living physically apart from each other since the respondent's hospitalisation in July 1992, it is clear that their marriage relationship is continuing strongly. Mr Porter visits the respondent at The Lodge every night and continues to be supportive of her, both emotionally and financially. The respondent, in turn, is dependent on Mr Porter's emotional and financial support and wishes to remain in Moora so that she can maintain her relationship with Mr Porter. Both parties have continued to demonstrate a strong commitment to each other and a desire that their marriage relationship continue. Accordingly, the Tribunal finds that the respondent is "not living separately and apart from" Mr Porter on a permanent or indefinite basis and that, therefore, para (b) of s.24(1) of the Act is satisfied.

40. The Tribunal now turns to what is the ultimate issue in this case - namely, whether it is satisfied, for the purposes of para (c) of s.24(1) of the Act, that the respondent "should, for a special reason in (her) particular case, not be treated as a member of a couple". The Tribunal notes in passing that, but for the possible operation of s.24(1), it would find that the respondent is a "member of a couple" within the meaning of s.4(2)(a), for the reasons stated in para 37 above, and in particular, a member of an "illness separated couple" within the meaning of s.4(7) of the Act. Mr de Hoog conceded that paras (a), (b) and (c) of s.4(7) were satisfied in this case and the Tribunal is of opinion, on the basis of the evidence before it, that that concession was rightly made.

41. In Re Reid and Director-General of Social Services (1981) 4 ALN No. 1 the Tribunal considered the scope of the discretion conferred by s.29(2)(b) of the Social Services Act 1947 in terms, and in a context, similar to those of s.24(1) of the Act. The Tribunal commented (at p. N2): "34 The general rule with respect to computation of the income of a husband or wife for the purposes of Pt III of the Act laid down by s.29(2) of the Act is quite clear. Each of them is deemed to have half the total income of both. An express exception to this rule is acknowledged in s.29(2)(a) where the parties are living apart in pursuance of a separation agreement in writing or of a decree, judgment or order of a court. Parliament has also envisaged, however, that there may be other circumstances where it would be inappropriate for the general rule to operate. It has therefore given the Director-General a discretion under s.29(2)(b) to make a determination precluding that operation for a 'special reason' in any particular case. 35 The requirement that there must be a 'special reason' to justify making an exception from the general rule regarding computation of income laid down by s.29(2) connotes in our view that there must be some factor or factors in the circumstances of the particular case which take it outside the common run of cases ... As we said in Re Ivovic and Director-General of Social Services (1981) 3 ALN No. 61 in relation to a similar discretion under s.115(4A) of the Act, we consider that in exercising the discretion under s.29(2) of the Act 'the decision-maker must have regard to whether, by exercising the discretion in a particular case, he will be achieving or frustrating ends or objects which are conformable with the scope and purpose of the Social Services Act 1947... Thus while keeping the general rule laid down by s.29(2) in mind, the decision-maker must nevertheless be prepared to respond to the circumstances of a particular case if for any special reason the application of the general rule would be unjust, unreasonable or otherwise inappropriate having regard to the scope and object of the Act."

42. A similar approach was recently adopted by the Federal Court of Australia in Secretary, Department of Social Security v Le-Huray (1996) 138 ALR 533 at 542 in relation to s.24(2) of the Act which confers an identical discretion to that conferred by s.24(1) in circumstances where the person concerned is not legally married but is living with a person of the opposite sex in a "marriage-like relationship".

43. In the present case the relevant general rule with respect to calculating the rate of DSP payable to a person is provided by points 1064-A2 and 1064-E2 of Pension Rate Calculator A in Part 3.2 of the Act. Point 1064-A2 provides: "Where 2 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 ...". Point 1064-E2 provides, for the purpose of working out the effect of a person's ordinary income on the person's maximum payment rate of DSP: "If a person is a member of a couple, add the couple's ordinary incomes (on a yearly basis) and divide by 2 to work out the amount of the person's ordinary income for the purposes of this Module."

44. Section 24(1) of the Act, however, confers a discretionary power on the applicant - which is exercisable by this Tribunal on review - in effect to waive the application of the abovementioned general rule in a particular case if satisfied that, for a "special reason" in that case, such waiver would be appropriate. That discretionary power must, however, be exercised for the purpose for which it was conferred and having regard to the scope and object of the Act as a whole. The Act is welfare legislation whose general object is to make provision, by way of social security payments, for those who are in genuine need thereof. The purpose of s.24(1) of the Act is to preclude the application of the abovementioned general rule in a particular case if, for a "special reason" in that case, such application would not promote, but would instead impair, the welfare of the relevant "member of a couple" in receipt of social security and, therefore, would not accord with the general object of the Act: see Le-Huray (above), at p.542.

45. In the present case the respondent, having tragically suffered a devastating stroke in 1992 at the early age of 46 years, is unable to care for herself and is confined, for the foreseeable future, to The Lodge - an institution for frail, aged persons. Her only income is social security by way of DSP. The personal cost of her accommodation at The Lodge is $363.15 per fortnight and the cost of her clothing, toiletries and other necessities is approximately $40.00 per fortnight. If the respondent were to be treated as a "member of a couple" - more specifically, a member of an "illness separated couple" - the rate of her DSP would, by applying the general rule referred to in para 40 above, be approximately $170.00 per fortnight - that is, approximately $234.00 per fortnight less than her essential fortnightly expenditure. If, however, the discretion conferred by s.24(1) of the Act were to be exercised in the respondent's favour so that she would not be treated as a "member of a couple" for the purposes of the Act, the rate of her DSP would be $426.40 per fortnight - that is, approximately $23.00 per fortnight more than her essential fortnightly expenditure.

46. If the respondent were to be treated as a member of an "illness separated couple", the burden of making up the difference between her income and her essential expenditure - that is, approximately $234.00 per fortnight - would fall upon Mr Porter. Mr Porter's present expenditure - as set out in para 26 above and which the Tribunal finds to be reasonable in the circumstances - amounts to approximately $867.00 per fortnight. According to his evidence, which the Tribunal accepts, Mr Porter's present taxable income is approximately the same as it was in 1994-95 and 1995-96 - namely, $29,000 - $30,000 per annum (see para 25 above). According to the Tribunal's information obtained from the Australian Taxation Office, these figures would result in a nett, after-tax income of approximately $22,683 - $23,328 per annum - that is, approximately $872.00 - $897.00 per fortnight. Mr Porter's present fortnightly disposable income, therefore, is only marginally in excess of his own reasonable fortnightly expenditure. In these circumstances, the requirement to make up the difference between the respondent's income, by way of DSP calculated on the basis that she is a member of an "illness separated couple", and her essential expenditure - namely, approximately $234.00 per fortnight - would impose a substantial financial burden on Mr Porter and cause him severe financial hardship.

47. The Tribunal is satisfied that, if the respondent were to be treated as a member of an "illness separated couple" for the purpose of calculating the rate of her DSP, the result would be to cause both her and Mr Porter severe financial hardship, notwithstanding the fact that a higher rate of DSP is payable to a member of an "illness separated couple" as compared with a person who is "partnered" - that is, a "member of a couple". In the Tribunal's opinion the circumstances of this case - in particular, the respondent's most unfortunate physical condition requiring her permanent institutionalisation at a relatively young age, and the resulting substantial adverse impact on the financial circumstances of both the respondent and Mr Porter - are such as to take this case outside the common run of cases and to render the rate of DSP, which would be payable to the respondent on the basis that she is a member of an "illness separated couple", as substantially inadequate and inappropriate, having regard to the scope and object of the Act.

48. The Tribunal, accordingly, is satisfied that the circumstances of the respondent's case are such as to constitute a "special reason" (within the meaning of s.24(1)(c) of the Act) why she should not be treated as a "member of a couple" for the purposes of the Act and, pursuant to s.24(1) of the Act, the Tribunal so determines.

49. The decision of the Tribunal, therefore, accords with the decision of the SSAT, dated 28 May 1996, that the respondent not be treated as a "member of a couple" for the purposes of the Act. As regards the date of effect of that decision, the Tribunal agrees with the SSAT's decision that, pursuant to s.1255(4) of the Act, the relevant date is the date on which the respondent's application for review of the ARO's decision of 14 August 1995 was received by the SSAT - namely, 30 November 1995.

50. For the above reasons the Tribunal affirms the decision under review.