Fraser and Department of Family and Community Services

[2000] AATA 745

DECISION AND REASONS FOR DECISION [2000] AATA 745

ADMINISTRATIVE APPEALS TRIBUNAL)
  Nº V00/256
GENERAL  ADMINISTRATIVE  DIVISION)                 
           Re:     LEIGH FRASER     

Applicant

And:    SECRETARY TO THE DEPARTMENT OF FAMILY AND COMMUNITY SERVICES            

Respondent

DECISION

Tribunal:       Mrs H.E. Hallowes, Senior Member         

Date:25 August 2000

Place:Melbourne

Decision:      The decision under review is set aside, and the matter is remitted to the Secretary for reconsideration in accordance with the Direction that, for the purpose of calculating the applicant's entitlement to youth allowance, he is entitled to be paid at the independent rate from the date he lodged a claim on 23 June 1999. 

(sgd) H.E. Hallowes
           Senior MemberSOCIAL SECURITY — youth allowance — whether entitled to be paid at the independent rate— death of mother — whether aunt acting as "guardian" — whether on a long-term basis
Social Security Act 1991 ss.5, 1067, 1067A, 1067G-F2
Re Coin and Director-General of Social Security (1983) 5 ALN N254
Re Flynn and Director-General of Social Security (1982) 4 ALN N282
Re Messina and Director-General of Social Security (AAT 1091, 20 June 1983)
Re Technau and Secretary, Department of Social Security (1987) 7 AAR 403

REASONS FOR DECISION

25 August 2000                   Mrs H.E. Hallowes, Senior Member         

1. Mr Leigh Fraser seeks payment of youth allowance at the independent rate. There may be an issue in this application as to when a claim for youth allowance was lodged. Leigh turned 16 years on 17 April 1999. The claim form amongst the documents, lodged with the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the documents"), was lodged with Centrelink on 23 June 1999. The evidence, as summarised by the Social Security Appeals Tribunal ("the SSAT") in its reasons for decision, and as confirmed by Leigh in evidence before the Tribunal, was that his mother, who died on 15 June 1999, had tried to lodge a claim for youth allowance for Leigh just after his 16th birthday, around 20 April 1999, but the form was apparently incorrectly filled in and it was returned to Leigh's mother by a Centrelink officer. This evidence suggests to the Tribunal that an earlier claim form may have been "lodged" with Centrelink, as well as the claim form, a copy of which was amongst the documents.

2. In Re Coin and Director-General of Social Security (1983) 5 ALN N254 Deputy President Todd discussed the meaning of "lodged" with respect to social security claims.   Although he accepted that Mrs Coin's claim for family allowance had been posted, he referred to what Mr A.N. Hall, Senior Member (as he then was) said in Re Flynn and Director-General of Social Security (1982) 4 ALN N282 that "I do not think that there can be any doubt that a claim which is posted is not 'lodged with a Director' until it is actually received in his office" and also to what was said by the Tribunal in Re Messina and Director-General of Social Security (AAT 1091, 20 June 1983) that ". . . posting of the claim does not meet the requirement of section 98; the claim must be lodged with a Director".   No doubt Leigh would be pleased to be paid youth allowance at the independent rate from either 20 April or 23 June.   As issues arise from time to time before this Tribunal as to whether claims have been "lodged", this Tribunal expresses its concern that, if Leigh's mother took a claim form to a Centrelink office, no record appears in Centrelink's computer with respect to the receipt of that earlier claim form.   Even if details on the form needed to be amended or further evidence obtained, for example, with respect to Leigh's age, a record should have been made by Centrelink that a claim form for youth allowance was lodged as it affects the date from which Leigh can be paid if he is entitled to be paid.   There is some support for Leigh's evidence as a copy of an extract of birth entry in the documents was sent to Leigh's mother before her death.   However, as there is some doubt in this matter, the Tribunal finds that Leigh lodged his claim for youth allowance on 23 June 1999 and the Tribunal will review the decisions arising out of that claim.

3. The claim form was signed by Leigh on 22 June 1999.   He advised that no one helped him complete the form.   He further advised that he was a full-time student.   In evidence before the Tribunal he said that in 1999 he was completing Year 11 at a secondary college.   He was not looking for full-time work.   He provided his address which is the same address as the person he described in his claim form as his "Guardian Aunt", Mrs H. Sharp, whose date of birth was also required to be provided on the form.   She was born on 5 October 1938.   Leigh ticked the box best describing where he lived as "I live in a home where my parent(s)/guardian(s) live".  However he also completed section H of the form with respect to "Away from home rate", advising that he moved away from his home on the day his mother died, 15 June 1999, because his home conditions made it difficult for him to study.   Section I of the form, the section for a parent/guardian to complete, was not completed.   The questions in Section I include questions with respect to the income and assets and tax file numbers of parents or guardians.   There is advice in Section I that "Your payments cannot start until all these questions have been answered".  

4. As well as the documents, the Tribunal had before it an advice from the East Gippsland Shire Council that the owner of the property Leigh had lived in with his mother, was now his mother's sister, Mrs Sharp.   Mrs Sharp advised the Tribunal that her sister died intestate and that she obtained Letters of Administration with respect to her deceased sister's estate.   Leigh's home has been transferred into Mrs Sharp's name but when Leigh turns 18 years he can apply to have the property put back into his name.   After discussions with Leigh, it has been decided that the property is to be sold and the proceeds invested for his benefit.  

5. Mrs Sharp advised the Secretary on 19 July 1999:

   . . . after his mother died it seemed the natural thing to look after him.
   I would like to make the point that although both myself and my husband willingly and totally support Leigh we are not legally bound to him.   We feel he needs his independence, has no personal monetary means of support as he is still a full time student and gets no Government assistance elsewhere, this allowance would help with his own choices in education, personal development and needs.
   . . .

Mrs Sharp told the Tribunal that Leigh had stayed with her sometimes when his mother was alive and she has had regular contact with him.   She could not leave Leigh alone in the home where his mother died.   Leigh had no means of support.   In her opinion he needs to gain independence and to pay his own way.   She has no intention of becoming his "guardian".   She said that she likes to know where Leigh is if he is going out after school or at night or at the weekend, but he is making more and more of his own decisions.   He comes to her with suggestions, seeking her comment.   He is more independent than her own children were at the same age.   Mrs Sharp has a son aged 34.   There is a considerable age difference between Leigh and her children.  

1. Leigh told the Tribunal that he is now completing the first year of a two-year Technical and Further Education course.   He hopes to become an apprentice painter.   He has his own bank account which he opened when he obtained part-time employment following a school work experience programme.   He no longer has that employment.  

2. Ms K. Cunningham, an advocate with Centrelink, who appeared for the Secretary at the hearing, put to the Tribunal that the decision of the SSAT dated 25 January 2000 should be affirmed.   The SSAT affirmed a decision of a Centrelink officer dated 4 August 1999 "not to pay youth allowance to Mr Fraser at the independent rate", which was affirmed by an authorised review officer ("ARO").   In fact no allowance of any kind has been paid because Mrs Sharp has not completed the income and assets and tax file number details as required on the claim form for youth allowance.

3. The documents disclose that on 12 July 1999 a text was recorded on the Centrelink computer with respect to Leigh:

   Guardian aunt, Heather Sharp states a/n lives with her after the death of his mother.  Leigh has no ongoing support from his father and Mrs Sharp refuses to supply details of income & assets as she is not his "legal" guardian.   She also refuses to request these details from his father & requests that special consideration be given to regard Leigh as independant [sic].   No criteria met for assessment of independant [sic] rate.   SSA state anyone providing longterm [sic] support is to be considered a guardian to the young person & needs to supply income & asset details.  

It was not disputed by the Secretary that Leigh's father has never contributed to his maintenance and that he has had little contact with Leigh, who told the Tribunal that any contact with his father had to be initiated by him.

1. The relevant legislation when Leigh lodged his claim for youth allowance under Part 3.5 of the Social Security Act 1991 ("the Act") provides:

   1067(1)        In this Part:
   . . .

   independent has the meaning given by section 1067A.
   . . .
   living at home has the meaning given by section 1067E.
   . . .

   Note:   This definition also applies in Part 2.11.
   . . .
   1067A(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)are unable to provide the person with a suitable home because they lack 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.

   . . .

   Note:   For parent see section 5 (paragraph (a) of that definition).

   . . .     [emphasis added]

   1067G-F2     Subject to point 1067G-F3, the parental income test applies to the person if the person is not independent.  
   . . .  

   5(1)             In this Act, unless the contrary intention appears:

   parent means:

   (a)(except in Part 2.11 and in the Youth Allowance Rate Calculator in section 1067G):

   (i)in relation to a young person, other than an adopted child — a natural parent of the young person; or

   (ii)in relation to an adopted child — an adoptive parent of the young person; or

   (b)in Part 2.11 and in the Youth Allowance Rate Calculator in section 1067G, in relation to a person (relevant person):

   (i)a natural or adoptive parent of the relevant person with whom the relevant person normally lives; or

   (ii)if a parent referred to in paragraph (a) is a member of a couple and normally lives with the other member of the couple — the other member of the couple; or

   (iii)any other person (other than the relevant person's partner) on whom the relevant person is wholly or substantially dependent; or

   (iv)if none of the preceding paragraphs applies — the natural or adoptive parent of the relevant person with whom the relevant person last lived.

   Note:   * * * * * 

2. In her statement of case Ms Cunningham put to the Tribunal:

   . . .

   11.1The decisions of the Original Decision Maker and the SSAT are correct.   Section 1067A(2) to A(11) sets out the criteria which must be met if a person is to be regarded as independent for Youth Allowance purposes.

   Mr Fraser appears to meet unreasonable to live at home Section 1067A(9)(a).

   However, he must also meet 1067A(9)(b) and (c).

   The Secretary contends that he does not meet 1067A(9)(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;

   . . .

Ms Cunningham contended that Leigh does not satisfy section 1067A(9)(b) because Mrs Sharp is acting as Leigh's guardian on a long-term basis. She put to the Tribunal that Mrs Sharp meets Leigh's daily expenses. The Tribunal finds that to a large extent she has since Leigh stopped working and because he therefore has no income. What does an aunt do with a young man in Leigh's circumstances?

1. The Tribunal is satisfied that Leigh must presently rely on his Aunt for financial support as he has no other means of support and, as he pointed out during the hearing, he has nowhere else to go but he "can't depend on Aunty all the time for money".   Having considered his evidence, the Tribunal is satisfied that he relies on a friend and the friend's mother for guidance with respect to his study, employment and the company he keeps.   He has a house but Ms Cunningham has conceded that it was unreasonable for him to live there.   Leigh needs more than a roof over his head if he has no money for food, clothing and to pay for services.   The Tribunal accepts that Mrs Sharp also provides Leigh with emotional support and guidance.   He does not get support from his father and Mrs Sharp has refused to supply details of her assets and income and tax file number.   She has no other reason to supply those details to the Secretary unless she is found to be Leigh's guardian acting on a long-term basis.  

2. Leigh's uncle, Mr J. Fraser, was also in attendance at the hearing before the Tribunal.   He commented on the circumstances of others in his local community of which he is aware with respect to the payment of allowances.   In coming to its decision, the Tribunal can have no regard to other people's circumstances, however right or wrong.   It only has jurisdiction to determine the issue before it.   Leigh's circumstances may have been different had the claim form taken to Centrelink by his mother been recorded and a decision made with respect to his entitlement to youth allowance when his mother was alive.   His mother's assets and income would have been taken into account in determining a rate.   Any reduction in Leigh's entitlement to a rate of youth allowance because of his mother's income and assets may have been significantly different from the rate assessed taking into account Mrs Sharp's income and assets.  

3. The Tribunal is satisfied that Mrs Sharp is not Leigh's guardian as noted on the text on the computer, ". . . Aunty is the guardian as Leigh is residing with her . . .".   The fact that Leigh is now residing with his Aunt does not necessarily make her his guardian; it is only one of the relevant factors for the Tribunal to consider.   The decision of the Tribunal in Re Technau and Secretary, Department of Social Security (1987) 7 AAR 403 is of assistance in deciding this application. In Re Technau, at pages 407 and following, Deputy President Thompson had this to say:

   Mr Cavanough submitted that for the purpose of s 33(1)(a) of the Act Tina was the applicant's relative, by virtue of s 33(3). He relied upon par (c) of the definition of that term in s 33(3). The effect of that paragraph is that, where one person is or has been a guardian of another person, each is a relative of the other for the purposes of the section. Mr Cavanough referred to the first two meanings of "guardian" given in the Shorter Oxford English Dictionary, that is to say:

   "1.one who guards, protects, or preserves; one to whom the care or preservation of any thing is committed; and

   2.one who has or is entitled to the custody of the person or property (or both) of an infant, an idiot, or other person legally incapable of managing his own affairs; a tutor."

He argued that "guardian" should not be given a narrow meaning.   He drew the Tribunal's attention to a number of cases where courts have referred to the fact that "guardian" may have various shades of meaning, depending upon the context in which it is used.   Mr Ginnane, as I understood, did not dispute that in other contexts the word could have other meanings but submitted that its context in the definition of "relative" in s 33(3) required that it be given its ordinary legal meaning.   Consequently, he said, the range of possible meanings was narrow.   He relied on meaning 2 given in the Shorter Oxford English Dictionary, which is stated there to be a specifically legal meaning.   Both Mr Cavanough and Mr Ginnane referred to meanings given in a number of other dictionaries, none of which, I consider, afforded any more assistance than is to be derived from the cases and the meanings given in the Shorter Oxford English Dictionary             

. . .
The meaning of "guardian" in par (c) of the definition of "relative" was considered recently by the Tribunal, constituted by Dr A P Renouf, in Re Wain and Secretary to the Department of Security (1987) 12 ALD 382.   In his statement of the reasons for the Tribunal's decision Dr Renouf summarised as follows some of the submissions made, in documents lodged with the Tribunal, by the person who had brought those proceedings:

"(a)'Guardian' is not defined in the Act.

(b)Ordinarily, the term refers to a relationship between a child and an adult or another adult who is legally incompetent.

(c)The term is not necessarily so confined.   This is suggested by the definition in Mozley and Whitely's Law Dictionary — 'One who has the charge or custody of any person or thing; but commonly he who has the custody and education of such persons as are not of sufficient discretion to manage their own affairs'.

It is also suggested by the definition in Osborne's Concise Law Dictionary — 'A person having the right or duty of protecting the person, property or rights of one who is without full legal capacity or otherwise incapable of managing his own affairs'."

He then said at pars (17) and (18):

"As the term 'guardian' is not defined in the Act, I feel that 'guardian' should be given its ordinary legal meaning. This approach is supported by the pains which were taken in defining a 'relative' in paragraphs (a), (b) and (c) of the definition. It would be inconsistent with the nature of these parts of the definition to say that the remaining part, that dealing with a 'guardian', uses the term in a more liberal sense.
No matter which of the various definitions of 'guardian' is to be preferred, the great majority of them have one thing in common — a guardian manages the affairs of a person who is incapable himself of so doing . . .    ."

He decided the matter before the Tribunal by reference to the fact that the person for whom the constant care and attention had been provided had retained the capacity to manage his own affairs until just before his death.   He held that Mr Wain had not been that person's guardian until the week before his death when he had ceased to be able to manage his own affairs, but that he had been his guardian during that week.
I agree with Dr Renouf's conclusion that in par (c) of the definition "guardian" should be given its ordinary legal meaning.   But what is the extent of its ordinary legal meaning?   Mr Cavanough referred to a passage in Beall v Smith (1873) 9 Ch App 85 where James LJ said:

"The law of the Court of Chancery undoubtedly is that in certain cases where there is a person of unsound mind, not found so by inquisition, and therefore incapable of invoking the protection of the Court, that protection may in proper cases and if and so far as may be necessary and proper, be invoked on his behalf by any person as his next friend.   But every person so constituting himself officiously the guardian, committee, and protector of a person of unsound mind does so entirely at his own risk, and he must be prepared to vindicate the necessity and propriety of his proceedings if they are called in question, and to bear the consequences of any unnecessary and improper proceedings."

A situation perhaps more frequently met is that where a child is left an orphan and is taken into the home of a grandparent or an uncle who then takes the place of the child's parents.   He provides nurture and takes responsibility for all aspects of the child's welfare.   In my view in neither of those circumstances is the person a guardian within the ordinary legal meaning of that word.
As Dr Renouf pointed out in Re Wain (supra), for a person to be the guardian of another person that other person must be incapable of managing his own affairs.   That incapacity may be the result of infancy or mental defect.   In the case of an infant there is legal incapacity.   The natural guardians of a child are its parents; but another person may be appointed as its guardian, either by a parent (by deed or will) or by a court.   However, a person comes to be the guardian of a child, the fact that he is its guardian can be readily established.   It is important that that be so as the law confers powers and imposes duties on the guardian of a child.   In the case of a person suffering from a defect of the mind, there is no legal incapacity unless he has been found (usually by a court) to be incapable of managing his own affairs; in that event either a committee or a guardian is appointed or a public official, such as the Public Trustee, is made responsible for managing them.   The power conferred by the appointment or the legislation may be limited to controlling the person's property and not extend to controlling his person.   Again it is important that it should be possible to establish readily the status of the committee or guardian, as, like the guardian of a child, the law confers powers and imposes duties on him.   [emphasis added]

1. Turning to paragraph 1067A(9)(b) of the Act, the Tribunal finds that, standing in the shoes of the Secretary when the decision was made in August 1999, 15. Mrs Sharp was not acting as Leigh's "guardian on a long term basis". She was not Leigh's "guardian" nor was her assistance to Leigh to be on a long-term basis. She acted as any well meaning and caring relative or friend would in not leaving Leigh alone with no means of support in the home in which his mother died. Mrs Sharp has provided Leigh with some financial support. Leigh has done what he can to support himself while being denied youth allowance. He took responsibility for paying what he could when he was in part-time employment. He hopes to gain an apprenticeship in the near future which will provide him with some security. He tells his Aunt of his movements as any thoughtful temporary member of a household would. On 4 August 1999, he had only lived with his Aunt for a very short period of time. The Tribunal now knows that he has remained with his Aunt since then. He has no alternative, as he has no means of support. He has not been in a financial position to make any other decision in that regard. However, he is not incapable of managing his own affairs. He seeks advice from his Aunt and others, and then makes decisions about his own future. He did not have legal capacity to take out Letters of Administration with respect to his mother's estate. There is legal incapacity in that regard but that incapacity does not mean that his Aunt is his guardian for the purpose of section 1067A of the Act. Leigh has made a decision to sell the home he shared with his mother and his Aunt will carry out his wishes. He has decided he wants to undertake an apprenticeship.

2. It is for these reasons the Tribunal will set aside the decision under review, and remit the matter to the Secretary with a direction that Leigh is entitled to be paid youth allowance at the independent rate.

   I certify that the fifteen [15] preceding paragraphs are a true copy of the reasons for the decision herein of
   Mrs H.E. Hallowes, Senior Member

   (sgd)         Catherine Thomas
                    Personal Assistant

   Date of Hearing:                   06.07.00
   Date of Decision:                  25.08.00
   Solicitor for the Applicant:     IN PERSON

   Solicitor for the Respondent: Ms K. Cunningham, Advocate with Centrelink