The Guides to Social Policy Law is a collection of publications designed to assist decision makers administering social policy law. The information contained in this publication is intended only as a guide to relevant legislation/policy. The information is accurate as at the date listed at the bottom of the page, but may be subject to change. To discuss individual circumstances please contact Services Australia.

2.2.5.40 Discretion to treat a person as not being a member of a couple for a special reason - section 24

On this page

Summary

Section 24 of the SSAct provides discretion to enable a delegate to decide if there is a 'special reason' NOT to treat a person as a member of a couple (1.1.M.120).

It deals with inequitable and/or unjust situations and only applies in very limited cases when all other reasonable avenues have been explored and exhausted.

Where the delegate decides there is a special reason, which would make it unfair to administer the partnered rate of payment and/or the partner income and assets test in relation to a person, the person will be treated as not being a member of a couple. They will be paid the single rate of payment and, only the person’s individual income and assets are to be used in assessing their rate.

Note: If a change in circumstances applies such that a partner commences earning income or receives a large payout, the application of section 24 needs to be reviewed. If an unreported change in circumstances is later discovered which would result in section 24 not having been applicable from the date of the change, this may result in the person incurring a debt.

Special reasons

In general, a couple’s circumstances must be unusual, although not necessarily unique, compared to most cases to be considered a special reason for the purposes of making a section 24 decision.

Previous decisions by the AAT and Federal Court indicate that when applying section 24, the following may not be sufficient to constitute 'special reason' in and of itself:

  • ineligibility for a social security payment
  • a person's financial difficulty.

The following circumstances normally attract a single rate of payment under SSAct, and therefore section 24 would not be applicable:

All circumstances must be taken into account

Consideration of ALL relevant circumstances must be taken into account when determining if there is a special reason in the couple's particular instance. In addition, the following needs to be considered:

Section 24 MAY BE CONSIDERED if, because of the couple's circumstances, there is an inability to pool resources and there are financial difficulties, and one member of a couple:

  • is required to move interstate for a considerable period to attend legal proceedings
  • is living overseas awaiting residency application
  • is subject to a NARWP (1.1.N.70) and unable to work, or
  • due to court ordered conditions, is in rehabilitation or subject to parole resulting in separate living arrangements.

Subject to consideration of circumstances of family and/or domestic violence, section 24 SHOULD NOT BE CONSIDERED if one member of a couple is:

  • eligible for an income support payment but chooses not to claim it
  • not residentially qualified for an income support payment, but their visa type allows an exemption from the NARWP or it allows the partner to work but they choose not to, or

    Explanation: There may be confounding reasons a person cannot work, such as language barriers, limited work opportunities in local area, lack of skills or transport for the available work, age, caring responsibilities or disabilities. In determining if a person can work but chooses not to, the decision maker should take into account any reason the person could not work.

  • subject to the NARWP and an AoS.

Note: Generally, it would also not be appropriate to apply section 24 if the couple could live together but choose not to do so. However, a decision maker should consider if there is a genuine reason preventing the couple from living together.

Where a couple’s situation in and of itself could be considered special, but the couple have other reasonable means of support available to them, the application of section 24 would not be appropriate.

Inability to pool resources

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.

Note: Section 24 does NOT generally apply if the couple is living together overseas. In assessing couples living together overseas, the decision maker must be satisfied that the information provided is a special situation to warrant the application of section 24. It is important to consider whether the couple is able to benefit from pooling of resources.

Financial difficulty

For the purposes of section 24, in determining financial difficulty the following should be considered:

  • if there is an inability to provide accommodation and the basic necessities of life
  • if the couple is without adequate means of support, and
  • if there is income or readily available funds from other sources.

Consideration should be given to the couple’s overall financial situation, compared to their necessary expenditure. All sources of readily available funds and/or income are to be taken into account, as well as any in-kind support received. This includes but is not limited to:

Funds and/or income In-kind support Necessary expenditure
  • income support payments (including FTB, RA etc.)
  • investments
  • insurance and compensation pay-outs
  • trusts (1.1.T.180)
  • accessible superannuation
  • liquid assets (1.1.L.50)
  • payments of bills
  • spousal maintenance
  • provision of food, clothing and/or pharmaceutical items
  • free board and/or lodging
  • gas
  • telephone
  • rates
  • mortgage payments/rent
  • groceries
  • transport
  • loan repayments
  • electricity

Circumstances where special expenses disproportionately disadvantage a couple financially are to be considered, for example, ongoing medical treatments.

Family & domestic violence

The presence of family and/or domestic violence in a relationship may indicate that a person is not a member of a couple under the 5 factors (2.2.5.30).

However, there may be situations where section 24 should be applied due to a person’s particular circumstances. In general, the application of section 24 should only be considered in circumstances where:

  • the person who is experiencing family and/or domestic identifies as partnered, or
  • a member of a couple assessment has resulted in finding the 2 people are a couple, but due to the existence of family and/or domestic violence both members of the couple should be treated as single.

When a person experiencing family and/or domestic violence is not subject to the partnered income and asset test and is paid a higher rate, it could enable them to leave a situation they would not have been able to otherwise.

Multiple relationships

The Australian social security system does NOT recognise the existence of multiple relationships, including multiple de facto relationships or a de facto relationship where the person is legally married or in a registered relationship (2.2.5.10).

If a person declares they are part of a multiple relationship, and 2 other members of that relationship are either legally married or in a registered relationship with the other person (the primary couple), then the person may be considered to be single under section 24. If no members of a multiple relationship are legally married to or in a registered relationship with another person in the relationship, the relationship that commenced the earliest will be the recognised member of a couple relationship for social security purposes.

Failure to advise of a change in circumstances

A person must advise Centrelink of any changes in their circumstances after section 24 has been applied, as this may affect their payment.

In general, if a person’s circumstances may have warranted the application of section 24, but they failed to notify Centrelink of becoming a member of a couple at the time, it would be appropriate to consider section 24 in determining whether a debt exists.

Where family and/or domestic violence exists, a person may be coerced into to providing false or misleading statements about their relationship out of duress or fear. The person’s full circumstances must be considered and a determination made about whether they are a member of a couple or if section 24 should be applied.

Reviews

Where section 24 has been applied, the person must be reviewed regularly to ensure the correct rate of payment continues to be made.

The frequency of reviews are dependent on the likelihood of any change in circumstances and the risk of incorrect payments.

Act reference: SSAct section 4(3) Member of a couple—criteria for forming opinion about relationship, section 24 Person may be treated as not being a member of a couple (subsection 4(2))

Policy reference: SS Guide 2.2.5.10 Types of member of a couple relationships

Last reviewed: