Brooks and Secretary, Department of Family and Community Services

[2005] AATA 534

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 534

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S2004/370

GENERAL ADMINISTRATIVE DIVISION		)
Re		CHELSEA BROOKS

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Senior Member WJF Purcell

Date7 June 2005

PlaceAdelaide

Decision The Tribunal affirms the decision under review.

(Signed)

WJF PURCELL
  (Senior Member)

CATCHWORDS

SOCIAL SECURITY – pensions, benefits and allowances – Youth Allowance – Rent Assistance – Independent Rate – Living Away from Home Rate – extreme family breakdown – continuous support – decision affirmed

Social Security Act 1991 s 11, 13, 1067A, 1067D

Re Joseph and SDETYA [2000] AATA 607
Re Pietro Galati and Director-General of Social Security (AAT 1711, 10 August 1984)

Re Simakovic & Secretary, Department of Family and Community Services [2003] AATA 812

REASONS FOR DECISION

7 June 2005   Senior Member WJF Purcell

1.      This is an application for review of a decision of the Social Security Appeals Tribunal (the SSAT) of 13 October 2004, which related to two decisions of delegates.  The SSAT affirmed the first decision, of 15 June 2004, that the applicant was not entitled to payment of Youth Allowance at the Independent Rate, during the period 18 February 2004 to 11 June 2004.  The SSAT set aside the second decision, of 16 September 2004 that the applicant would not have qualified for Rent Assistance during the period 18 February 2004 to 11 June 2004, and remitted the matter to Centrelink for determination of whether the applicant was entitled to Youth Allowance at the Living Away from Home Rate, for the period 3 April 2004 to 11 June 2004, and consequential Rent Assistance. 

2. The evidence before the Tribunal comprised the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act1975 (the T documents). The applicant appeared on her own behalf and gave oral evidence.  She was assisted by Mr D Kay, a family friend.  Ms Pugsley represented the respondent (the Department).

3.      In earlier proceedings, the SSAT, on 6 February 2004, set aside a decision made on 5 August 2003, and determined that the applicant was entitled to be paid Youth Allowance at the Independent Rate from 18 June 2003, as it was unreasonable for her to live at the home of either of her parents.  At the time, the applicant was in full-time employment, and not in receipt of Youth Allowance.  She resided at 1/225 Beulah Road, Beulah Park.  Her father, Mr Tony Brooks (the father), resided at 12/45 Thornton Street, Kensington, and her mother resided in Brisbane.  On 13 February 2004 the applicant advised of a change of address, to 12/45 Thornton Street, Kensington, but did not advise that this was the address of the father’s rented South Australian Housing Trust (the SAHT) flat.

4.      On 18 February 2004 the applicant applied for Youth Allowance, which was granted at the Living at Home rate.  On 4 March 2004 arrears were paid to the applicant representing the difference between the Living at Home rate and the Independent Rate, as a result of the SSAT decision of 6 February 2004.  Youth Allowance continued to be paid at the Independent Rate.

5.      On 26 May 2004 the Department became aware that the applicant was now residing in a home rented by her father.  On 31 May 2004, her father was contacted, and the record of this contact reads, in part:

“He is currently working on contract in Sydney.  He is unsure if contract will continue past August.  He states that the home Chelsea is living in is a SAHT.  He pays $165.00 per week and Chelsea pays him $100.00.  He states he is trying to get the lease put in Chelsea[‘s] name.  I asked if the SAHT knows that Chelsea is living there and he indicated that this was the case.  I explained the legislation and have emailed him copies of continuous support and extreme family breakdown.  I have explained that I have reservations as it would appear as if there is continuous support.  He indicated that we would make Chelsea homeless.  I stated I would check with policy and get back to him.”  [T4/60-62]

6.      On 31 May 2004 a delegate decided that the applicant was no longer entitled to receive Youth Allowance at the Independent Rate.  A letter dated 8 June 2004 was sent to her, requesting that she provide a copy of her father’s Taxation Notice of Assessment for the 2003 financial year.  On 15 June 2004, a letter was sent to the applicant explaining and confirming the decision to no longer pay her Youth Allowance at the Independent Rate.

7.      On 5 July 2004, the applicant’s nominee, Mr Kay, requested, by letter, that the decision be reviewed by an Authorised Review Officer.  On 20 July 2004 a letter was sent to the applicant advising her that the decision had been reconsidered by the Business Manager Social Work, Area South Australia, who had not changed the decision, and that the matter had now been referred to an Authorised Review Officer.

8.      Mr Kay requested, by letter dated 22 July 2004, that the Authorised Review Officer also consider whether the applicant had an entitlement to be paid Rent Assistance.  On 30 August 2004 the applicant claimed arrears of Rent Assistance for the period 18 February 2004 to 11 June 2004.  A facsimile dated 7 September 2004 was received from the SAHT, advising that the father was the tenant of the Kensington property and had been paying full market rent for the property of $164.00 per week as and from 2 August 2003.  He was in receipt of a rental rebate for the period 18 October 2003 to 2 April 2004.  It further notified that the father advised of his intention to terminate his tenancy, as and from 24 September 2004.

9.      On 13 September 2004 the applicant was advised that a decision had been made that Rent Assistance was not considered to be payable.  The letter further advised that the matter had been referred to an Authorised Review Officer.  On 16 September 2004, the Authorised Review Officer affirmed the decision that the applicant was not eligible to be paid at the Independent Rate of Youth Allowance for the period 18 February 2004 to 11 June 2004, and that she would not have qualified for Rent Assistance throughout the same period.  The applicant applied for review of the decision, and on 13 October 2004 the SSAT made the decision under review.  She has applied now, to this Tribunal, for review of that decision.

10. Section 1067A(9) of the Social Security Act 1991 (the Act) sets out the criteria for when a person is to be regarded as independent – “Unreasonable to live at home”:

“(9)     A person is independent if:

(a)the person cannot live at the home of either or both of his or her parents:

(i)because of extreme family breakdown or other similar exceptional circumstances; or

(ii)because it would be unreasonable to expect the person to do so as there would be a serious risk to his or her physical or mental well-being due to violence, sexual abuse or other similar unreasonable circumstances; or

(iii)because the parent or parents are unable to provide the person with a suitable home owing to a lack of stable accommodation; and

(b)the person is not receiving continuous support, whether directly or indirectly and whether financial or otherwise, from a parent of the person or from another person who is acting as the person’s guardian on a long-term basis; and

(c)the person is not receiving, on a continuous basis, any payments in the nature of income support (other than a social security benefit) from the Commonwealth, a State or a Territory. “

11. Section 1067D(1) of the Act provides:

“(1)     A person is taken to be required to live away from home for the purposes of this Part if, and only if:

(a)      the person is not independent; and

(b)the person does not live at the home of either or both his or her parents; and

(c)      the Secretary determines that:

(i)the person needs to live away from home for the purpose of education, training, searching for employment or doing anything else in preparation for getting employment; or

(ii)the likelihood of the person’s getting employment will be significantly increased if the person lives away from home.”

12.     Section 1067G-D1(a) of the Act provides:

“Subject to point 1067G-D3, an amount to help cover the cost of rent is to be added to the maximum basic rate of a person for a period if:

(a)       the person:

(i)is independent (see section 1067A), but is not an accommodated independent person (see section 1067B); or

(ii)is not an independent person and is required to love away from home (see section 1067D); and”

13. Section 13(3AC) of the Act provides:

“(3AC)If a person pays, or is liable to pay, rent for living in premises in respect of which someone else pays Government rent (other than Government rent paid at or above a rate that the authority receiving the rent has told the Department is the market rate), the rent paid or payable by the person for living in those premises is taken to be Government rent, unless the person shares the premises with the person who pays, or is liable to pay, Government rent in respect of those premises and the person’s income has been taken into account in calculating the amount of Government rent payable in respect of those premises.”

14.     Mr Kay provided twenty typewritten pages of submissions in support of the application to set aside the SSAT decision, and substitute a decision that the applicant was entitled to Youth Allowance at the Independent Rate from 18 February 2004 to 11 June 2004; and was entitled also, to Rent Assistance for the same period.  Most of these submissions were considered by the SSAT, which quite succinctly addressed them in the course of it’s Reasons for Decision, which reads, in part, as follows:

“…

23.The Tribunal found Mr Kay’s submission that the unit at Thornton Street was not the home or principal home of Mr Brooks to be persuasive.  While the authorised review officer has several arguments for why he considered the unit was the home of Mr Brooks, he also cites the Centrelink policy guide in the context of the unreasonable to live at home criteria where young people can be living in a home owned by their parents and rented by the young person but the parents are not living there.  Under that policy, provided the young person pays market rate rent they are considered not to be in receipt of continuous support.  The Tribunal was of the view that while Mr Books did not own the unit, he did have a lease on it and made it available for Ms Brooks to rent. This was an indication that he did not regard the unit as his home during the relevant period.  The question of whether Ms Brooks received “continuous support” in her situation is another matter and will be addressed further in this decision.

24.After carefully considering the evidence in this case, the Tribunal’s view was that Ms Brooks was only living at Mr Brooks’ unit because he was absent in Sydney and the arrangement did not signify an improvement in her relationship with her father.  Based on the evidence previously provided to the Tribunal she remained at all times unable to live with her father due to extreme family breakdown despite that arrangement.

25.Mr Kay has also argued that Ms Brooks was not being supported and therefore she was not receiving continuous support.  He states that the reality is that people in Ms Brooks’ position pay around $100 per week for rent, whether as a share or for a room or single bed ‘sit’.  Also Mr Brooks kept the lease on the property until his future in Sydney was certain and then terminated his lease.  Getting the $100 a week from Ms Brooks simply reduced his financial burden in that time.  Also the market value claimed by the SAHT is $164 a week for the whole of the unit on the housing trust lease arrangement.  She had only one of the bedrooms and no right to stay.  This meant that she could not share the rent of the property, which dramatically reduces the value in Ms Brooks’ demographic.

26.However, in the Tribunal’s view it was open for Ms Brooks to find a share house or unit in which to live where she paid in the order of $100 a week rent.  That she chose to live in her father’s unit indicated that the arrangement had advantages over share rental including sole occupancy, and no other conditions associated with the lease such as a shared bond. She also had the right to stay as long as her father allowed her to or up until he terminated the lease.

27.The Tribunal thought that the authorised review officer makes a strong case for finding that Ms Brooks was receiving “continuous support” from her father, equal to $64 a week by the rental subsidy he was claiming from the SAHT until 2 April 2004 or by the actual cash contribution from 3 April 2004 to 11 June 2004.

…

35.The Tribunal was satisfied that the weight of evidence was that there was extreme family breakdown in Ms Brooks’ case and that she was unable to live with her father in the same home with him. As stated under the heading DISCUSSION OF EVIDENCE, the Tribunal considered Ms Brooks was only living at Mr Brooks’ unit because he was absent and the arrangement did not indicate her relationship with her father had improved. Despite that arrangement, she remained at all times unable to live with her father due to extreme family breakdown. Therefore section 1067A(9)(a) is satisfied.

36.However, on the issue of whether Ms Brooks was receiving “continuous support” under section 1067A(9)(b), the Tribunal was in accord with the authorised review officer’s opinion that the section did not limit the scope of what is deemed to be “continuous support”, and that the support need not be financial or even substantial. The Tribunal was not persuaded by the argument of Mr Kay that Ms Brooks’ arrangement was not continuous. Its view was that continuous meant ongoing or uninterrupted in the relevant period. The Tribunal was in no doubt that in the relevant period Ms Brooks was receiving continuous support from her father equal to $64 a week by the rental subsidy he was claiming from the SAHT until 2 April 2004 or by way of actual cash contribution from 3 April 2004.

37.The Tribunal concluded as a consequence that Ms Brooks did not satisfy section 1067A(b) [sic] and therefore did not meet the qualification requirement for youth allowance at the independent (unreasonable to live at home) rate in the period from 18 February 2004 to 11 June 2004.

38.The next issue for the Tribunal to consider was whether Ms Brooks was eligible for rent assistance in the period from 18 February 2004 to 11 June 2004.

…

44.The Tribunal notes that the unit at Thornton Street was Ms Brooks’ principal place of residence and for this reason the amounts she paid as a condition of occupancy meets the definition of ‘rent’ for the purpose of subsection 13(2) of the Act.

45.Having regard to section 13(3AC) of the Act, even if Ms Brooks met the criteria for the required to live at home rate, she would not be eligible for rent assistance in the period from 18 February to 2 April 2004. This is because Ms Brooks paid Government rent in that period and therefore the rent paid by her is taken to be Government rent. Under section 13(3AC) of the Act, the rent Ms Brooks was paying from 3 April 2004 would be regarded as private rent. Accordingly, she could receive rent assistance from 3 April 2004 to 11 June 2004, if it was established by Centrelink that she was able to be paid the required to live away from home rate under the parental or other tests.

…”  [T2/12-18]

15. At the Hearing, Mr Kay submitted that the lease arrangement between the father and the SAHT was different from the lease arrangement between him and the applicant, and by virtue of these differences they have different values. As such the cost of the property to the father does not directly determine the value of the modified property. As the applicant only had the real use of one bedroom, and did not enjoy any security of ongoing use, that the market value is dramatically reduced. Such a flat would not be considered by many couples, and certainly not by families or flatmates planning to share. If she rented a single bedroom flat of this ilk under the terms of her lease arrangement for $100 per week from a person other than her father, that would not be unusual or commercially unlikely. As she was paying her father what she would likely pay another for an equivalent property, it cannot be said that her father was providing support by way of a subsidy. It may be that a valuation of the rental value of the property reveals a value that is not exactly the same as the amount paid by the applicant. Such is the nature of commercial deals and of valuations. Support should not be taken literally, but in the context that the support would need to eliminate the need for assistance from the Commonwealth in order for the applicant to continue studies. So just as the word “continuous” must be taken in context, so the word “support” must be taken in context. If it is taken that both words should be taken literally, then the fact that the applicant has previously qualified for payment by virtue of s 1067A(9) of the Act means she continues to qualify as it indicates that support has not been literally continuous.

16. Mr Kay argued that the applicant did not pay Government rent at any time while she rented the property from her father, by virtue of s 13(1) of the Act, because she did not pay rent to any of the authorities listed. She did not pay Government rent from 3 April 2004 onwards by virtue of s 13(3AC) of the Act, because of the application of the phrase “(other than Government rent paid at or above a rate that the authority receiving the rent has told the Department is the market rate)”. The Act does not contain any further definition that would mean that the rent paid by her to the father in relation to 12/45 Thornton Street, Kensington, was Government rent.

17.     Mr Kay reiterated his other submissions at the Hearing, and argued that what the applicant received was consistent with what she paid for it.  If she had not paid the $100 per week the father would have continued to pay $164 per week.  It was mutually beneficial on normal commercial terms – it was not “support”.

18. The Department, in its Statement of Facts and Contentions lodged before the Hearing, contended that the Tribunal should set aside the SSAT’s decision, and affirm the decision of the Authorised Review Officer. In the course of the Hearing, and in her final submissions, Ms Pugsley abandoned the argument that the applicant was living at home, and conceded that the appropriate payment was the Living Away from Home Rate, pursuant to s 1067D of the Act, but that the payment of Youth Allowance at the Independent Rate was not applicable, because the father, by providing accommodation to the applicant at less than the rental value of the property, and making up the remainder himself, provided continuous support; and the applicant did not satisfy s 1067A(9)(b) of the Act.

19. In relation to the question of Rent Allowance, the Department had contended that the father, as a tenant of the SAHT, an Authority to which Government rent was paid, in accordance with s 13(1) of the Act, was deemed to be paying Government rent, and the applicant had no entitlement to rent assistance. In the course of the Hearing, Ms Pugsley conceded, on instructions, that as the father was from 3 April 2004 paying rental at an above market rate, the rental no longer had the flavour of Government rent. The applicant had an entitlement to Rent Assistance from 3 April 2004, subject to the parental means test. The Department submitted therefore, that the decision of the SSAT should be affirmed.

20. In the light of the Department’s concession that the applicant qualifies for the Living Away from Home Rate, the remaining question is whether she is qualified for the Independent Rate. She satisfies s 1067A(9)(a) of Act, in that she cannot live at the home of either or both of her parents, but the question remains as to whether, during the relevant period, she was receiving continuous support from a parent.

21.     On the applicant’s own evidence, she left her father’s unit in June 2003, and lived in shared rental accommodation. In early 2004, her father told her that he had obtained a contract in Sydney.  He wanted to stay in Sydney, but the contract was not secure, and he wanted to know that his residence in Adelaide was still available to him, if he returned to Adelaide.  The applicant said in evidence that that at that time she was 4 months into a lease agreement, with a flat mate.  She was paying $84 per week rent.  They were not getting along 100 percent, and there were “some issues there”.  Things had gone missing, and she did not feel safe living in those premises any more.  When her father came to her, she saw this as an easy way to move somewhere, temporarily, in order to get her finances and herself in order, and to be able to find herself new premises to live in.  There was a benefit in moving in for security purposes.

22.     The applicant gave evidence that she showed her father what her income was, and he gave her a rental price of $100 per week, which he believed, left a balance appropriate for her to live on, within that unit.  The father would pay the difference of $64 per week.  She had the use of one of the two bedrooms.  He stored equipment and furniture in the other.  She had her own furniture and kitchen utensils, but her father left his household goods available for her use, if she so desired.  The rental rebate her father had been receiving ceased on 2 April 2004.  It is unclear on the evidence whether the rebate was the full $64 per week, but in any event he continued to pay the higher differential to the SAHT, and the SAHT advised that $164 per week was the market rate.

23.     In the matter of Re Simakovic & Secretary, Department of Family and Community Services [2003] AATA 812, the applicant’s father paid the initial expenses associated with the establishment of the loan and the purchase of the son’s unit. The father was the guarantor of the home loan, and on more than one occasion met the applicant’s repayment obligations when he was unable to do so. The Tribunal was satisfied that these were not “one-off” payments – they were sufficient to constitute continuous indirect financial support.

24. In this matter, the father has, in my view, provided throughout the relevant period, continuous financial support by providing subsidised rental premises, with a continuing obligation to meet the rental to the SAHT. He provided her with the safety and security of a fully equipped home, which she did not need to share with others. I am satisfied on the evidence therefore, that the applicant does not satisfy s 1067A(9) of the Act, and is not eligible for payment of Youth Allowance at the Independent Rate. She is eligible for payment of youth Allowance at the Living Away from Home Rate. She has an entitlement to Rent Assistance from 3 April 2004, subject to the parental means test.

25.     For these reasons the Tribunal affirms the decision under review.

I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member WJF Purcell

Signed:         .....................................................................................
  Associate

Date of Hearing  21 April 2005
Date of Decision  7 June 2005
Counsel for the Applicant         In person
Solicitor for the Applicant          -
Counsel for the Respondent     Ms A Pugsley
Solicitor for the Respondent     Centrelink Legal Services Branch