GCMC and Secretary, Department of Social Services (Social services second review)
[2016] AATA 830
•21 October 2016
GCMC and Secretary, Department of Social Services (Social services second review) [2016] AATA 830 (21 October 2016)
Division
GENERAL DIVISION
File Number
2016/1567
Re
GCMC
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Senior Member A C Cotter
Date 21 October 2016 Place Brisbane The Tribunal affirms the decision under review.
........................[Sgd]................................................
Senior Member A C Cotter
CATCHWORDS
SOCIAL SECURITY – pensions, benefits and allowances – applicant applied for special benefit – whether applicant able to earn a sufficient livelihood – whether applicant is a SPB homeless person – whether unreasonable to live with parents - decision affirmed
LEGISLATION
Social Security Act 1991 (Cth) ss 729, 737, 739, 1067A
CASES
Marsh and Secretary, Department of Family and Community Services [2004] AATA 362
Re Spooner and Secretary to the Department of Social Security [1985] AATA 193
Re Myddleton andDepartment of Family and Community Services [2001] AATA 2
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Semmens and Department of Family and Community Services [2004] AATA 187
SECONDARY MATERIAL
Guide to Social Security Law 3.7.1.30 Assessment of SpB Claims Summary
REASONS FOR DECISION
Senior Member A C Cotter
20 October 2016
BACKGROUND
The Applicant is a 15 year old girl.
On 10 June 2015, then aged 14 years, she contacted the Department of Human Services (“Department”) about claiming Special Benefit (“SpB”), as she was not qualified for Youth Allowance (because she was under 16 years of age). Her claim for SpB was lodged the next day.[1]
[1] Exhibit 1, T Documents, T 5, pages 38-66, Claim for Special Benefit dated 11 June 2105.
In her claim, the Applicant said that she and her brother had left their mother’s house when she told them they were no longer able to stay. Due to her mother’s substance and alcohol abuse, which led to both physical and verbal abuse, the Applicant did not believe that environment was safe for her.[2] She stated that she was staying with her second cousin and his wife (“Mrs A”) and their children near Hervey Bay in Queensland.[3]
[2] Ibid, page 38.
[3] Ibid, pages 44-46. Pseudonym used pursuant to direction as to confidentiality dated 7 October 2016.
In an “Unreasonable to live at home” questionnaire, the Applicant stated that her mother lived at Wynnum in Queensland and her father lived at North Haven, New South Wales. She said that she could not live at home with her parents because of “substance & alcohol abuse” and “verbal & physical abuse”.[4]
[4] Exhibit 1, T Documents, T 6, pages 67-68, Mod Y Form, “Unreasonable to live at home” questionnaire dated 11 June 2015.
A “Study details” questionnaire completed at the same time stated that the Applicant was in the process of being enrolled at Hervey Bay State High School.[5]
[5] Exhibit 1, T Documents, T 7, page 71, Mod S Form, “Study details” questionnaire dated 11 June 2015.
Later in June 2015, a social work assessment report was completed by Ms Tai Florian, a Centrelink social worker. It noted that the Applicant’s mother was unable to be contacted. However, the father had been contacted by phone. He said that he had heard that the Applicant had left the mother’s care, but he had been unable to make telephone contact with the Applicant, her two older male siblings, or his ex-partner, to find out what the issues were. The father told Ms Florian that he had been awarded full custody of the Applicant about 12 months earlier. In February 2015, the Applicant’s older brother came to the father’s home and took the Applicant for a couple of weeks’ holiday in Brisbane. When the Applicant did not return, the father contacted the police. Although the Applicant returned to his care, she wanted to leave again and return to Brisbane to live with her mother and two brothers. The father said that he could not continue chasing the Applicant and bringing her back to live with him every time she ran away, as he had already spent a lot of money in the past to bring her back to his home. He denied that there were any unreasonable issues which prevented the Applicant from returning to live with him.[6]
[6] Exhibit 1, T Documents, T 20, pages 119-120, Social Work Report dated 26 June 2015.
Ms Florian also spoke with Mrs A, who was aware that there were Family Court orders in place concerning the Applicant. Mrs A said that she had contacted the father without identifying herself, and assured him that the Applicant was safe. She told the social worker that she and her husband would continue to support the Applicant, as they had made a commitment to her and her older brother that they would keep her safe in Hervey Bay.[7] Ms Florian found that the Applicant was being supported emotionally and financially by her brother, Mrs A and her husband.[8]
[7] Ibid, page 120.
[8] Ibid, page 121.
Based on the information collected, Ms Florian concluded that SpB could not be recommended, as the Applicant was able to live with her father, and she was “currently in a safe environment and has been offered Social Casework”.[9]
[9] Ibid.
The Department subsequently rejected the claim for SpB.[10]
[10] Exhibit 1, T Documents, T 13, page 89, letter from Department of Human Services to the Applicant dated 26 June 2015.
In accordance with standard procedure, the Applicant’s case was referred to the Queensland Department of Communities, Child Safety and Disability Services. Ms Louise Lane of that Department responded by saying that while the information provided suggested that the Applicant’s home environment/parent adolescent conflict placed her at risk of harm, she was unlikely to experience significant harm as she was currently in another out of home safe environment. The Applicant’s claim for independence was assessed to be valid, ”given the dynamics in the family home appears to be contributing to her risk of homelessness”. That risk was said to be likely mediated should the Applicant have access to financial support.[11]
[11] Exhibit 1, T Documents, T 19, page 116, letter Department of Communities, Child Safety and Disability Services to Ms Florian dated 9 July 2015.
Mrs A provided a letter in support of the Applicant’s request for review of the decision to reject her claim for SpB. She confirmed that the Applicant had been living with her and her husband since 7 June 2015 when they became aware of her living arrangements and offered her a safe home in which to live. Prior to that, the Applicant had been living with her older brother since early May 2015, after he removed her from her mother’s house due to alcohol, substance and verbal and physical abuse. Mrs A said that had the Applicant remained with her brother, they would have had no alternative but to live in his car. She said that the brother had earlier removed the Applicant from their father’s house in November 2014, where her ongoing safety was at risk due to the father’s long-term ongoing alcohol and substance abuse. The father was also said to have left the Applicant unsupervised with his drunk friends on more than one occasion. Mrs A said that once she became aware that the father had legal custody, she began weekly phone calls to him, to keep him up to date with the Applicant’s welfare. She became increasingly apprehensive about his level of concern for the Applicant and was not convinced that he wanted the updates, so she ceased the calls to test his level of concern. During that time, he had not attempted to contact her, even though he had her phone number. Nor had the mother attempted to contact her.[12]
[12] Exhibit 1, T Documents, T 10, page 85, letter from Mrs A dated 17 September 2015.
The letter from Mrs A confirmed that the Applicant had re-commenced full time school and had started participating in sport. She was having ongoing medical and dental care, with Mrs A and her husband lending her the money. The Applicant had no contact with either parent, nor received any financial support from them. Mrs A said that her husband had recently been retrenched and they were not in a position to lend the Applicant more money to support herself as they had ongoing large medical expenses for their son.[13]
[13] Ibid, page 86.
A review by an Authorised Review Officer was unsuccessful. Although he thought that the Applicant was unable to live with her mother or father, he was not prepared to exercise the discretion to grant SpB, because she was able to receive support from another source.[14]
[14] Exhibit 1, T Documents, T 15, pages 101-104, letter from Authorised Review Officer to the Applicant dated 21 October 2015.
An application for review by the Social Services & Child Support Division (“SSCSD”) of this Tribunal was likewise unsuccessful. [15]
[15] Exhibit 1, T Documents, T 2, pages 7-11, Social Services & Child Support Division decision and reasons for decision dated 7 March 2016.
Dissatisfied with the SSCSD’s decision, the Applicant sought a review of that decision by the General Division of the Tribunal.
THE LEGISLATIVE AND POLICY FRAMEWORK
Section 729 of the Social Security Act 1991 (Cth) (“Act”) deals with the qualification for SpB. Subsection (1) states that a person is qualified for SpB for a period if the Secretary determines, in accordance with subs (2), that a SpB should be granted to that person for the period. The note to that subsection states that SpB is a discretionary benefit and is available only to a person who is not able to get any other income support payment (referring specifically to paragraphs (a) and (b) of subs (2)).
Subsection (2) relevantly provides that the Secretary may, in his or her discretion, determine that a SpB should be granted to a person if:
(a)no social security pension is payable to the person during the period; and
(b)no other social security benefit is payable to the person for the period; and
…
(e)the Secretary is satisfied that the person is unable to earn a sufficient livelihood for the person and the person’s dependants (if any) because of age, physical or mental disability or domestic circumstances or for any other reason;…
Section 729 first involves a consideration of the applicant’s eligibility under the paragraphs of subs (2). If that is found in the applicant’s favour, then it is for the Secretary to consider exercising the discretion under subs (1). Subsection (2) has been said to be the gate through which the applicant has to pass before the Tribunal can consider exercising the discretion contained within s 729(1).[16]
[16] See Re Spooner and Secretary to the Department of Social Security [1985] AATA 193, page 2 (Senior Member McMahon, Member McClintock and Member Grant); and Re Myddleton andDepartment of Family and Community Services [2001] AATA 2, [37] (Senior Member Bullock).
In respect of paragraph (e), it is worthwhile noting at this point the relevant policy as contained in the Guide to Social Security Law (“Guide”). In discussing the notion of reasonable means of support, the Guide relevantly states:
A claim for SpB CANNOT be granted until all the domestic and social circumstances of the person are considered. ….
SpB should NOT be granted if the person:·is receiving, or able to receive support from other sources (see example 1), OR
·has reasonable means readily available by which they can obtain support (see example 2), OR
·…
·…
Example 1: The person may be receiving in kind support on a regular basis, to the extent that its value is sufficient to be regarded as obtaining or earning a sufficient livelihood or not causing immediate hardship. This might include payment of bills, spousal maintenance and provision of accommodation, food and/or clothing.
Example 2:· …
· …
· if the person lives with their family or other relatives, someone who can provide adequate support
· …
· …
Also relevant to consider in the present context is s737 of the Act, which appears in the subdivision relating to payability of SpB. It deals with full-time students and relevantly provides that, subject to subs(3)(which is not presently relevant), a SpB is not payable to a person:
(b)who satisfies both of the following:
(i)the person has not turned 16; and
(ii)the person is not a SPB homeless person;
if the person is enrolled in a full-time course of education or of vocational training.
A person is a “SPB homeless person” if they: are not a member of a couple; do not have a dependent child; and meet the conditions in s 1067A(9) of the Act (which is about being independent).[17]
[17] See Social Services Act 1991 (Cth), s 739.
Section 1067A (9) deals with the notion of being “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 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.
ISSUES FOR THE TRIBUNAL
The primary question which falls for my determination is whether the Applicant qualified for SpB at the time of her claim. There being no dispute that no social security pension or other social security benefit was payable to her at the relevant time, the key issue is whether the Applicant was unable to earn a sufficient livelihood at that time.
The other issue which arose out of the hearing was whether the Applicant was a SPB homeless person and in particular, whether it was unreasonable for her to live with either of her parents.
I deal with those questions below.
CONSIDERATION
Was the Applicant able to earn a sufficient livelihood?
The Applicant was 14 years old when she left her mother’s home in May 2015.
The following month, she and her older brother went to Hervey Bay for a BMX competition held over the then June long weekend. It was during that visit that they came into contact again with Mrs A and her husband (the Applicant having met them on two previous occasions).
Mrs A and her husband then discovered that the Applicant’s parents were not providing any financial support for her, and that her brother would not have the means to provide such support. On learning that if the Applicant returned to Brisbane she would be forced to live in her brother’s car, Mrs A and her husband offered her a place to stay in their home. The Applicant accepted that offer.[18]
[18] See Exhibit 1, T Documents, T 2, page 8, Social Services & Child Support Division decision and reasons for decision dated 7 March 2016, [9] and [10].
As Mrs A told the social worker, Ms Florian, a few weeks later, she and her husband made a commitment to the Applicant and her brother that they would keep the Applicant safe in Hervey Bay and that they would continue to support her.[19]
[19] Exhibit 1, T Documents, T 20, page 120, Social Work Report dated 26 June 2015.
At the SSCSD hearing, Mrs A gave evidence that she and her husband had been meeting the Applicant’s expenses. They provided her with food and the other necessities of life. They kept receipts so that if the Applicant received a Centrelink benefit, she would be able to pay them back. Examples of the particular expenditure included $260.00 on school fees; $204.00 on school uniforms; $164.00 on school stationery; $40.00 on footwear for school; $355.00 for sporting costs; and $11.00 in bus fares to get to school. They also met $3,250.00 in dental expenses so that the Applicant’s existing braces treatment could continue.[20]
[20] Exhibit 1, T Documents, T 2 page 8, Social Services & Child Support Division decision and reasons for decision dated 7 March 2016, [12].
Mrs A told the SSCSD that she and her husband had not received any financial support from the Applicant’s immediate family to help care for her. In particular, the Applicant’s brother had not been able to help care for his sister and neither of her parents had provided any financial support. [21]
[21] Ibid, [10].
At the hearing before me, Mrs A explained the financial burden this had placed on her family. Her husband has been out of work for 14 months and has been forced to access money from his superannuation. They had received a reduction in their mortgage repayments, but that arrangement had since ceased. They spend $130.00 per month on treatment of their son’s long-term ongoing illness. I note that Mrs A told the SSCSD that the current plan is that the Applicant will stay with the family until she completes year 12 at school. As she is currently in year 10, the financial burden will continue for some time yet.[22]
[22] Ibid, [9] and [14].
As I mentioned earlier, the Guide provides assistance when considering the question of whether the Applicant is unable to earn a sufficient livelihood. It requires all the domestic and social circumstances of the Applicant to be considered and emphasises that a person cannot be granted SpB if they are receiving support from other sources. That includes receiving in kind support on a regular basis, to the extent that its value is sufficient to be regarded as obtaining or earning a sufficient livelihood. There is no doubt that the Applicant is receiving such in kind support in the present case; Mrs A and her husband have provided, and are committed to continuing to provide, the Applicant with safe and supportive accommodation, as well as food and clothing and the other necessities of life. Her medical and dental expenses are met, as are her tuition and sporting fees. Applying the policy, it is clear that the Applicant is receiving, and able to receive, support from other sources, such that she does not qualify for SpB.
Although policy is not binding, the Tribunal will, in the interests of consistency and fairness, ordinarily apply it in reviewing a decision, unless there are cogent reasons to the contrary (such as unlawfulness or working an injustice in a particular case).[23] There is no suggestion here that the policy is unlawful. However, Mrs A submitted that the policy’s application would give rise to an unjust result in this instance, referring to the added financial burden imposed on her and her husband.
[23] See Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, 645.
While I empathise with Mrs A and her family and admire their generosity and compassion, I do not consider the application of the policy results in injustice in this case. I say that for two reasons.
First, the policy needs to be viewed in the context of the particular benefit under consideration. SpB is effectively social security’s payment of “last resort”; it provides a safety net for those who cannot receive any other form of Commonwealth or State/Territory support and who are unable to earn a sufficient livelihood. As such, it focuses on the applicant and his or her current situation, rather than on the circumstances of those providing support, or the arrangements they may have in place for reimbursement or repayment in the future. Consistent with the legislative objective of SpB, the policy set out in the Guide promotes that approach. In those circumstances, I do not think it could be said that the application of the policy itself works an injustice in this particular instance.
In any event, there remains a lingering question as to whether Mrs A and her husband might otherwise qualify for Family Tax Benefit (“FTB”), which, if granted, would no doubt go some way to easing the financial burden they are experiencing. In that regard, I share the surprise expressed by the SSCSD, that FTB has not been applied for.[24] I also note the Secretary’s submissions on that point, that FTB could, depending on the particular circumstances of Mrs A and her husband, be available in respect of the Applicant.[25] While Mrs A maintains that she does not consider that she is entitled to such a payment,[26] the position will not be known until she makes a claim.
[24] See Exhibit 1, T Documents, T 2, page 9, Social Services & Child Support Division decision and reasons for decision dated 7 March 2016, [16].
[25] See Exhibit 7, Secretary’s Statement of Facts and Contentions dated 26 September 2016, [38]-[44].
[26] Exhibit 1, T Documents, T 1, page 6, Application for Review dated 24 March 2016. See also Exhibit 4, Statement of Mrs A dated 8 August 2016, [25].
It follows from what I have said that I am not satisfied that the Applicant was, or is, unable to earn a sufficient livelihood. She therefore does not satisfy s 729(2)(e) of the Act and therefore is not qualified for SpB.
Is the Applicant a SPB homeless person?
In view of my conclusions that the condition in s 729(2)(e) of the Act is not satisfied and that the Applicant does not qualify for SpB, it is unnecessary to consider this question. Nevertheless, I deal with it for completeness.
The practical effect of s 737(1)(b) of the Act is that SpB is not payable to a full-time student unless they are under 16 years of age and are a SPB homeless person. In this case, that leads directly to a consideration of s 1067A(9) and the question of whether the Applicant is independent, in the sense that it is not reasonable for her to live at home with either of her parents.
There being consensus that it was not open for the Applicant to live with her mother, because of the latter’s substance and alcohol abuse and associated verbal and physical abuse, the parties’ attention focussed on the prospect of the Applicant living with her father.
For the Applicant, it was submitted that her father also had a history of substance and alcohol abuse and of being both physically and verbally abusive to his children. While the Applicant did not give oral evidence at the hearing, reliance was placed on her signed statement, in which she described her father’s conduct. That can be summarised as follows:
(a)Her father would leave her at home by herself at least four to five times a week “while he went and spent all his money on alcohol at the local pub/club”.[27]
(b)“He would drink alcohol at least every night and during the day”.[28]
(c)He would “always take (the Applicant) to someone else’s house for them to look after (her) while he was out drinking and would come (and) pick (her) up later that night and drive us both home while being highly intoxicated”.[29]
(d)He would never spend time with her and if he did, “he would always be under the influence of alcohol or have drugs in his system”.[30]
(e)Her father would never let her contact her brothers or mother and if he found out that she had attempted to, he would get angry at her and be verbally abusive towards her.[31]
(f)Her father had a “history of drinking while driving and driving with no license”; he is currently suspended from driving because he was caught drinking while driving.[32]
(g)She would always witness her brothers getting beaten up by their father and he would sit and laugh at them when they were in pain or bleeding.[33]
(h)On the occasion when the police retrieved the Applicant from her mother’s home and returned her to her father, he verbally abused her and attacked her, reducing her to tears.[34]
(i)One night, her father had a friend at his home, drinking and smoking and watching the football. The father fell asleep, during which time the friend constantly came into the Applicant’s room, sitting on her bed and watching what she was doing.[35]
[27] Exhibit 3, Applicant’s statement dated 8 August 2016, [1].
[28] Ibid, [2].
[29] Ibid, [3].
[30] Ibid, [4].
[31] Ibid, [9].
[32] Ibid, [10].
[33] Ibid, [11].
[34] Ibid, [14].
[35] Ibid, [16].
Unsigned and unsworn statements from the Applicant’s brothers were also relied upon. The older brother, N, said that the father was “always abusive both physically and verbally towards both my brother and sister and myself”.[36] He said that the father had a history of driving while under the influence of alcohol and always drank and drove while his children were in the car.[37] The younger brother, H, said that he had not had any contact with his father for four to six years.[38] However, he also spoke of the abuse against the three children.[39] H said that while they were all in their father’s custody, they were left unsupervised or with his friends four to five times a week.[40] He stated that on every occasion his father came home drunk, he would physically abuse him; H was “genuinely worried that (the father) would do the same thing to my sister as he had done it to both my brother, (N), and myself”.[41]
[36] Exhibit 5, N’s statement, undated, [5].
[37] Ibid, [7].
[38] Exhibit 6, H’s statement, undated, [4]
[39] Ibid, [5].
[40] Ibid, [6].
[41] Ibid, [8].
The father provided a statement in which he denied having any drug or alcohol abuse problems. He also denied any history of being verbally or physically abusive towards the Applicant.[42] He said that he never left the Applicant unsupervised or with friends who were intoxicated.[43]
[42] Exhibit 2, Statement of father dated 27 June 2016, [20].
[43] Ibid, [21].
The Applicant’s father also gave evidence at the hearing, affirming the truth and accuracy of his statement. He specifically denied having had any drug or alcohol abuse problems or of being verbally or physically abusive towards the Applicant. He denied any knowledge of having been investigated by Child Support agencies. During cross-examination, he denied the allegations against him raised by his three children. He did, however, concede that he had a mid-range drink driving conviction. He said that he had not taken drugs for 15 years.
The father was also questioned about his lack of contact with Mrs A concerning the Applicant. He agreed having had two conversations with Mrs A (although he did not know her identity). He recalled also receiving two voice messages from her as well as a text message with her contact phone number. However, he said that in about November 2015, his phone fell into a river, damaging the SIM card and wiping the contacts and messages. Because of that, he said he could not contact Mrs A. He did concede, however, that he had not contacted her between about July and November 2015, before the SIM card was corrupted.
From the summary of the evidence outlined above, it is clear that there are significant credibility issues to be resolved between the father and his three children. That resolution is particularly difficult in the present case, where none of the witnesses physically attended the hearing, such that it was impossible to assess their respective demeanours. Only the father gave evidence on affirmation and was subject to cross-examination. While the Applicant provided a signed statement, the statements of her two siblings were neither dated nor signed. None of the three children were called as witnesses; their evidence was therefore untested.
While Mrs A pointed to inconsistencies and contradictions in the father’s evidence, there were also a number of inconsistencies in the siblings’ statements, both internally and when read together. In particular, there were inconsistencies on important issues such as the frequency of events and against whom certain events occurred. By way of example (and without intending to be exhaustive), the Applicant stated that the father would leave her at home by herself “at least 4-5 times a week” while he went to the local club or pub. Two paragraphs later, however, she said that the father would “always” take her to someone else’s home for them to look after her. She said that her father would get angry with her and would be verbally abusive to her, but made no mention of being physically abused by him. N, however, said that the father was “always” abusive, both physically and verbally, towards all three children. It was difficult to place H’s statement in terms of timeframe, since he said that he had not had contact with the father in four to six years. Given that the father and mother separated in about 2013,[44] that raises the question of whether the events he described occurred before the family separated and when both parents resided at home. Putting that aside, H said that the father had a history of alcohol and violence against all three children. However, later he described being physically abused by his father and being “genuinely worried” that the father would “do the same thing to (the Applicant) as he had done it to both my brother (N) and myself”. That latter comment suggests that the Applicant had not been physically abused by her father.
[44] See Exhibit 1, T Documents, T 20, page 118, Social Work Report dated 26 June 2015.
The matters I am required to decide are particularly serious, they concerning questions of “extreme family breakdown” and “exceptional circumstances”, as well as issues relating to physical or mental well-being due to domestic violence. Having regard to the serious nature of those matters, I would only be prepared to make such findings based on cogent evidence. Given the limitations and weaknesses to which I have already alluded, I am not persuaded that there is sufficient evidence to establish that the Applicant cannot live at home with her father, as required by paragraph (a) of s 1067A(9) of the Act. In reaching that conclusion, I am also conscious of the absence of any investigations or professional reports by social workers or child support agencies concerning the father’s conduct. On the contrary, the report of the social worker, Ms Florian, contained no adverse remarks concerning the father, noting that the Applicant was able to live with him. Ms Florian also expressed the view that the reason why the Applicant wanted to move was because she wanted to live with N, with whom she had a close bond.
Paragraph (b) of s 1067A(9) also needs to be satisfied if the person is to be considered independent. It requires them not to be receiving continuous support, whether directly or indirectly and whether financial or otherwise, from a parent or from “another person who is acting as the person’s guardian on a long-term basis.” It is not in dispute that Mrs A and her husband are not the Applicant’s legal guardians. While that term is not defined in the Act, it has been held by this Tribunal that attributing the word its technical legal meaning is an unacceptably narrow view of the expression in the context of the Act, especially since the provision refers to the person acting as a guardian, “which presumably means fulfilling a like role”.[45] Although Mrs A disavows that she has taken on the formal role of guardian of the Applicant, it is clear, given the lack of contact with the Applicant’s parents, that she and her husband are nevertheless fulfilling that role, by providing both the emotional and material support and direction the Applicant requires. That arrangement has been in place since June last year and is expected to continue for at least the next couple of years. It is far from temporary, and I believe would be considered long-term, especially given the stage it has come in the Applicant’s life, with her being in the middle of her adolescent years. In those circumstances, then, I do not consider that paragraph (b) of s 1067A(9) is satisfied.
[45] See Marsh and Secretary, Department of Family and Community Services [2004] AATA 362, [16] (Senior Member McCabe and Member Way); and Semmens and Department of Family and Community Services [2004] AATA 187 (Professor Davis, Member).
It follows from what I have said that I do not consider that the Applicant can be said to be independent under s 1067A(9). I am not satisfied (under paragraph (a)) that she could not live with her father. Further, I consider that she was, and is, receiving continuous support, both financial and emotional, from Mrs A and her husband who are effectively acting as her guardians on a long-term basis.
I therefore do not accept that the Applicant was a “SPB homeless person”.
CONCLUSION
To summarise, I do not consider that the Applicant qualifies for SpB. She does not meet the requirement in s 729(2)(e) of the Act, in that she was able to earn a sufficient livelihood.
Nor do I think that she was entitled to be paid SpB, as she did not satisfy the requirements of s 1067A(9) of the Act and therefore, was not a SPB homeless person under s 739 of the Act.
Accordingly, the decision under review is affirmed.
I certify that the preceding 55 (fifty -five) paragraphs are a true copy of the reasons for the decision herein of Senior Member A C Cotter .........................[Sgd]...............................................
Associate
Dated 21 October 2016
Date of hearing 7 October 2016 Advocate for the Applicant Mrs A (by telephone) Solicitors for the Respondent Department of Human Services
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