By Amy Schneider, Economic Justice Australia
Earlier this year, Economic Justice Australia was fortunate to work with the Social Services and Child Support Division of the Administrative Appeals Tribunal (SSCSD) to facilitate a collaborative workshop and discussion around recent changes to the Social Security Guide (the Guide) regarding family and domestic violence in the context of member of a couple decision making.
The changes to the Guide are the culmination of Economic Justice Australia’s consistent advocacy stemming from the evidence-based findings of two reports which examined the shortfalls of the social security system in responding to family and domestic violence, as well as our consultative relationship with the Department of Social Services, who produce the Guide.
Member of a couple
Under social security law, whether you are a member of a couple can impact both your rate of payment, and your eligibility for payment. In the case of family and domestic violence, being considered a member of a couple can mean a victim-survivor is paid the lower, partnered rate of payment, or determined to be ineligible for income support due to their partner being over the income or asset thresholds. This often results in victim-survivors being paid less and/or subject to unfair debts where they received no financial or other benefit. The reduction in payment rate, ineligibility due to a partner’s income or assets, and/or the attribution of a debt requiring repayment ultimately reduces the means available for victim-survivors to safely leave an abusive relationship, and has the effect of financially tethering a victim-survivor to the perpetrator.
In determining when someone is to be considered a member a couple, the Social Security Act 1991 (Cth) lists 5 factors for decision makers to take into account:
- The financial aspects of the relationship;
- The nature of the household;
- The social aspects of the relationship;
- The existence of a sexual relationship; and
- The nature of the commitment.
Section 24 of the Social Security Act also provides a decision-maker discretion to treat a member of a couple as single for “special reason”.
The Guide changes
Changes to the Guide came into effect in April this year. The changes put family and domestic violence at the forefront of decision-making in member of a couple cases.
Where the Guide was previously silent on the impact of family and domestic violence in member of a couple decisions, the changes empower decision makers to consider the impacts of family and domestic violence at all stages of a member of a couple assessment. For example, in relation to the five factors, the Guide now adds:
|Nature of the household||Due to the presence of family and/or domestic violence, the nature of the household may present in a way that does not reflect the realities of the relationship and needs to be considered in the overall assessment.|
|Social aspects of the relationship||Family and/or domestic violence may lead a person to falsely present themselves as a member of a couple to family and friends. Therefore, merely presenting in public as a couple is not necessarily indicative two people are members of a couple.|
|Sexual relationship||As the nature of a person’s sexual relationship may be a sensitive subject, care should be exercised with inquiries into its existence, considering the person’s particular circumstances, such as: non-disclosed sexual orientation, cultural or religious beliefs, and the presence of family and/or domestic violence. A coercive or non-consensual sexual relationship may be regarded as family and/or domestic violence and indicate a member of a couple relationship does not exist.|
|Nature of the commitment||The presence of family and/or domestic violence may indicate there is no genuine commitment in the relationship and that the person is not a member of a couple. In cases where the person presents themselves as a member couple, consideration should be a given to whether this is a result of coercion and threatening behaviour|
|Financial aspects of the relationship||The presence of financial abuse may indicate a person is not a member of a couple. A person experiencing financial abuse may be subject to coercion and threats, which has led to their existing financial arrangements. Financial abuse may include: the withholding or control of fundsaccessing and use of a person’s money without their permission or in a way that limits the person from being able to pay for essential items, andrestricting a person from working, forcing them to rely on the other person.|
Importantly, the Guide also clarifies that section 24 can be used both retrospectively to “cure” a member of a couple debt, as well as prospectively to secure the higher single rate of payment for a victim-survivor in an abusive relationship. The retrospective impact of section 24 is particularly relevant due to the “knowingly” limitation (e.g. where a victim-survivor may have been coerced into providing incorrect information to Centrelink) in section 1237AAD of the Social Security Act and section 101 of A New Tax System (Family Assistance) (Administration) Act 1991 which allows waiver of debts in special circumstances.
The Guide changes generally bring policy into line with limited but developing case law on member of a couple and the use of section 24 in cases of family and domestic violence. See for example: Kozarova v DEEWR  FMCA 888; 234 FLR 304; GRYB and Secretary, Department of Social Services (Social services second review)  AATA 2156; 175 ALD 562; RFGW and Secretary, Department of Social Services (Social services second review)  AATA 2154; Perry and Secretary, Department of Education, Employment and Workplace Relations  AATA 959.
Impacts on decision making
Economic Justice Australia is hopeful the changes to the guide will result in a significant impact on decision-making at first instance and provide all decision-makers confidence to consider family and domestic violence when making a member of a couple assessment, or a determination under section 24. The changes will also likely result in fewer appeals by Services Australia to the General Division of the Administrative Appeals Tribunal where family and domestic violence has been considered, or section 24 was applied, in determining that someone was not a member of a couple.
The facilitated discussion with the SSCD provided an invaluable opportunity to discuss these changes with the highly experienced and learned Members at the forefront of social security decision making, including the role of the Tribunal in drawing on this policy change, and the potential challenges in doing so – both procedural and evidentiary. In cases of family and domestic violence, corroborating “objective” evidence is often unavailable by virtue of the subject matter. In the facilitated discussion we discussed how to approach cases such as this, and looked at commentary in case law which recognised a decision can be made in favour of the applicant when the only “evidence” may be the testimony of the victim-survivor themselves. In cases where evidence may be available, creative and trauma-informed approaches to identifying and obtaining that evidence may be required.
 The New Tax System (Family Assistance) Act (1999) at section 3 defines “member of a couple” by reference to the Social Security Act.