Gunning and Secretary, Department of Industry, Innovation, Climate Change, Science, Research and Tertiary Education
[2013] AATA 595
•23 August 2013
[2013] AATA 595
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/3883
Re
Natalie Gunning
APPLICANT
And
Secretary, Department of Industry, Innovation, Climate Change, Science, Research and Tertiary Education
RESPONDENT
DECISION
Tribunal Mr R G Kenny, Senior Member
Date 23 August 2013 Place Brisbane The Tribunal affirms the decision under review.
.............................[SGD].....................................
Mr R G Kenny, Senior Member
CATCHWORDS
SOCIAL SECURITY – Pensions, benefits and allowances – Youth Allowance – Criteria for regarding a person as independent – Applicant not prevented from living at home of parents because of extreme family breakdown or other similar exceptional circumstances – Not unreasonable to expect the applicant to live at home of parents – Applicant receiving continuous support from parents – Applicant not regarded as independent - Decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth) ss 1067(1), 1067A(9), 1067G-F2
CASES
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
SECONDARY MATERIALS
Guide to Social Security Law
Australian Concise Oxford Dictionary 4th Edition, 2008
REASONS FOR DECISION
Mr R G Kenny, Senior Member
23 August 2013
BACKGROUND
On 12 April 2013, Ms Natalie Gunning (“the applicant”) claimed Youth Allowance (“YA”) which is payable under the Social Security Act 1991 (Cth) (“the Act”).[1] On 16 April 2013, she completed a Centrelink form titled Youth Allowance … ‘Unreasonable to live at home’.[2] The applicant was assessed by Centrelink as having claimed YA at the independent rate as she was not living with either of her parents. Centrelink rejected her claim on 6 May 2013.[3] That decision was affirmed by an authorised review officer on
25 June 2013[4] and, on 25 July 2013, by the Social Security Appeals Tribunal.[5]
[1] Exhibit 1, T-Document 4, p. 20.
[2] Exhibit 1, T-Document 5, pp. 33-39.
[3] Exhibit 1, T-Document 8, pp. 50-51.
[4] Exhibit 1, T-Document 15, pp. 61-66.
[5] Exhibit 1, T-Document 2, pp. 2-7.
LEGISLATION, ISSUES AND SUBMISSIONS
The rate of YA is calculated with regard to the income of a claimant’s parents unless the claimant is regarded as independent.[6] The Act sets out the circumstances in which a person will be so regarded and the issues in this matter are whether the applicant can not live at home because of extreme family breakdown or whether it is unreasonable for her to live at home, and whether she has received continuous support. In that regard and in so far as potentially relevant in this matter, s 1067A(9) of the Act reads:
[6] See ss 1067, 1067A and 1067G-F2 of the Act.
(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; …
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
…
In the material lodged with Centrelink, the applicant advised that, on 11 April 2013, she moved from the family home to live with a friend and her family. This was because of stress associated with arguments with her mother about “silly rules” and with her brother about matters generally. She expressed concern that the family environment interfered with her capacity to concentrate on her studies. For the respondent, Mr Ashley Burgess submitted that the criteria in s 1067A(9)(a) and 9(b) of the Act were not met and that the decision under review ought be affirmed.
EVIDENCE
The applicant
The applicant gave the following evidence. Before leaving the family home in
April 2013, she was regularly engaged in arguments with her mother mainly as result of her being required to undertake household chores such as cooking, doing dishes after meals and cleaning. She also described constant fault-finding by her mother in relation to the quality and extent of her carrying out these household obligations. She referred to her brother’s constant interference with her daily activities including her study patterns and to his use of force against her in the form of hitting her from time to time. At no stage had she been required to attend a doctor for treatment as a result of those actions but, at times, applied “cold packs” to assist her. The applicant also had some disagreements with her father whom she described as “an aggressive man”. She said that both her mother and father are in full-time employment.
The applicant believed that she had developed depression and anxiety as a result of the interrelationships in the family home and was to have seen a psychologist at one stage, but was unable to afford the consultation fees. The applicant noted that her mother had advised Centrelink that she was always willing to have the applicant return to the family home. However, the applicant said that, initially, she had left the family home because her mother had requested her to leave.
Once she moved house, the applicant said, she was much more comfortable and was able to focus more on her studies. During that time, her mother continued to meet the annual costs of registration and insurance in relation to her vehicle which had been gifted to her by her parents on her 16th birthday. The applicant described those payments as constituting a loan to her by her mother and she estimated that she owed her mother approximately $2,000. She was supposed to pay $100 per week rent at her friend’s house, but had difficulty doing so. As a result, she has a debt to her friend’s mother of approximately $2,100. The parents of her friend with whom she was living separated recently and, because the applicant was unable to maintain her rent payments, she was invited to leave that household. Accordingly, she contacted her mother and requested that she be permitted to return to the family home. Her mother agreed to that course of action.
On 10 August 2013, the applicant returned to live at the family home and continued to reside there as at the date of the hearing. She saw this as a temporary measure pending the decision about her YA. In the event that the YA is paid to her, the applicant intended to leave the family home again and engage in a share-house arrangement with some friends. The applicant advised that, while she had been living at the family home again, her car developed a mechanical problem and her mother had arranged for it to be repaired. Her mother also paid the registration fee on the car at that time. The applicant said that her mother did these things without consulting her.
Since her return to the family home, the applicant has enjoyed more favourable living arrangements than when she was there previously. She has now been required to undertake a more limited range of household duties and has been involved in fewer disputes with family members. However, she has had some arguments with her mother and some disagreements with her father. Her brother has not used physical force against her, but she has had some verbal disputations with him. She acknowledged that he suffers from health disorders including oppositional defiant disorder (“ODD”), attention deficit hyperactivity disorder (“ADHD”) and obsessive compulsive disorder (“OCD”). She accepted that these made him unpredictable and impulsive in his actions.
The applicant is currently undertaking two study programs at separate colleges. These are the diploma in event management and a business course. She has achieved passing grades in her courses thus far.
Helen Gunning
Mrs Gunning is the applicant’s mother. She completed a statement on 18 April 2013.[7] Therein, she confirmed that the applicant had decided to leave home on 11 April 2013 and that this was because the applicant had thought it unfair for her to be required to perform certain household chores. These included washing the kitchen dishes on the nights when she did not cook a meal and “cleaning her clutter” from communal areas of the house. She wrote that the household included her husband, her son and the applicant as well as two of the applicant’s grandparents. Mrs Gunning advised that her son has ADHD, ODD and OCD, works 20 hours per week and is in full-time study. She wrote that an allocation to him of fewer duties in the house than to the applicant led to allegations of unfairness by the applicant when her duty requirements are perceived by her to be more excessive than those allocated to her brother. Mrs Gunning wrote that this attitude led to arguments between them.
[7] Exhibit 1, T-Document 7, pp. 45-49.
Mrs Gunning declared that she was missing the applicant and that she believed that the applicant had not been unreasonably burdened by home chores. She wrote that she and the applicant had kept in contact with text messages while they were apart.
She confirmed that she continued to make payments towards the running costs of the applicant’s car which she and her husband purchased for her. She advised that she had loaned some $800 to the applicant from November 2012 until April 2013.
Katrina Shapter
Mrs Shapter is the mother of the applicant’s friend in whose house the applicant lived after leaving her family home. She completed a statement on 16 April 2013.[8] When she saw the applicant in April 2013, Mrs Shapter described her as being very upset about arguments with her mother and was nervous about her mother’s reactions to her leaving home. Mrs Shapter understood that the applicant had experienced extra pressure on her in the family home with an impact on her ability to concentrate on her studies.
[8] Exhibit 1, T-Document 6, pp. 40-44.
Dr Azadeh Barhaghtalab
Dr Barhaghtalab, the family medical practitioner, completed reports on 21 June 2013,[9] and 18 July 2013.[10] In his first report, he diagnosed anxiety and depression which were temporary in nature and likely to improve and were not such as to interfere with the applicant’s study arrangements. In the later report, he described severe anxiety and depression and wrote that the applicant attributed these conditions to family problems. He noted that such problems “can cause” those conditions.
[9] Exhibit 1, T-Document 13, p. 60.
[10] Exhibit 2.
CONSIDERATION
The Act does not provide assistance as to the meaning of the terms used in s 1067A(9) thereof. However, to that end, reference may be made to the Guide to Social Security Law (“the Guide”). While the Tribunal is not bound to apply policy instructions of the kind referred to in the Guide, it may do so and will usually apply the guidelines unless there are cogent reasons in a particular case for not doing so.[11] No such reasons apply in this matter.
[11] See Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 639-645.
At s 3.2.5.40 of the Guide, reference is made to how family breakdown, as provided for in s 1067A(9)(a)(i) of the Act, is established:
How is breakdown established
For the purposes of independence, family breakdown may be due to various causes. Family breakdown must be considered in the context of the whole family situation, and must establish circumstances where it is unreasonable to expect the person to remain in that family environment.
The existence of ongoing conflict alone is insufficient grounds to grant independence under this criteria…
Ongoing emotional and personal support from a parent can influence the assessment of whether, or not, there is extreme family breakdown. Such support may indicate that the breakdown is not extreme.
Parents refuse to allow young person to live at home
If parents refuse to allow the young person to live at home, this does not constitute 'extreme family breakdown' unless there is evidence of extreme and enduring family conflict. This applies particularly if the young person has provoked the response from parents by unwillingness to meet reasonable expectations.
What are 'other similar exceptional circumstances'
Situations that constitute 'other similar exceptional circumstances', or that are similar to extreme family breakdown cannot be defined. The following list provides some examples.
Example 1:
criminal activity or substance abuse by the parents, OR
severe neglect, where adequate food, clothing, shelter, hygiene, medical attention and supervision is not being provided, OR
extreme and abnormal demands placed on the young person.
Example 2: Cultural or religious demands, although these would rarely constitute the main reason for extreme family breakdown. Extreme cultural practices are generally illegal practices such as arranged marriages and female circumcision.
Example 3: Refusal to allow the young person to work or study.
In relation to the assessment of serious risk, as referred to in s 1067A(9)(a)(ii) of the Act, s 3.2.5.50 of the Guide reads:
How is serious risk established?
Indicators of serious risk to the young person's physical or mental well-being include sexual, physical or psychological abuse. Where there is a serious risk of this occurring if the young person was to live at home, then remaining at home is unreasonable.
At s 3.2.5.30 of the Guide, the following reference is made in relation to continuous support as set out in s 1067A(9)(b) of the Act:
If a young person is receiving continuous financial or other support from parents or another person acting as a long-term guardian, they CANNOT be considered independent under this category.
'Continuous' support is not tied to any specific period of time, nor to a specified amount or type of support and may be direct or indirect, financial or otherwise. Continuous support must be regular and/or stable support that enables the young person to have a reasonable expectation that it will be received. Consideration should be given to the nature and intention of the support, that is, whether it is continuous rather than emergency in nature and intent, and whether it shows on-going concern for the young person.
The circumstances that prevailed in the family home of the applicant before she decided to move to her friend’s house were characterised by frequent arguments with her mother and confrontations with her brother. The evidence is that the applicant and her mother were in conflict about the applicant’s unwillingness to perform household chores as well as the extent that these were satisfactorily completed when they were undertaken by her. Mrs Gunning’s evidence was that the applicant was required to clean dishes after an evening meal on some nights and tidy her own materials in common areas. Nevertheless, Mrs Gunning has remained in contact with the applicant during the period of her living away from home and has been willing for the applicant to return to live in the family home recently.
The nature of the interaction between the applicant and her brother is not entirely clear on the evidence before me but it is not disputed that there was a level of tension between them before she left the family home. I have noted the references by Mrs Gunning and the applicant to the conditions from which he suffers and the applicant’s understanding that these result in unpredictable and impulsive behaviour by him. The applicant described physical abuse by him but the extent or seriousness of this has not been disclosed except that cold packs have been applied at times. No medical assistance was required by the applicant as a result of his conduct. The applicant has described symptoms to Dr Barhaghtalab relating to her psychiatric state but has not consulted a psychologist or a psychiatrist in relation thereto. Dr Barhaghtalab’s opinion is that she suffers from anxiety and depression but he has not attributed these conditions to the applicant’s family circumstances. Rather, he has merely indicated that such factors “can cause” depression and anxiety. Since moving back to the family home, there has been an improvement in the relationship between the applicant and her mother and also with her brother.
It is not disputed that there was a level of breakdown in the applicant’s dealings with her mother and brother before she decided to leave the family home in April 2013. However, s 1067A(9)(a)(i) of the Act requires the breakdown to be at an extreme level and that extent of breakdown is reflected in the remainder of the provision which refers to “other similar exceptional circumstances”. The Oxford Dictionary meaning of extreme includes “reaching high or the highest degree; exceedingly great or intense”.[12] As noted above, the Guide describes ongoing conflict alone as being insufficient to constitute extreme family breakdown. The improved level of the relationship between the applicant and her mother and brother indicates a significant level of continuing support for the applicant. In that regard, I note that the Guide refers to emotional and personal support as capable of influencing the assessment of whether, or not, there is extreme family breakdown. I am satisfied that the decision by the applicant to leave the family home was not because of extreme family breakdown or other similar exceptional circumstance.
[12] Australian Concise Oxford Dictionary 4th edition, 2008.
Under s 1067A(9)(a)(ii) of the Act, the applicant will be regarded as independent if it was unreasonable to expect her to remain in the family home. This must be because there would be serious risk to her physical or mental well-being if she remained. Further, that risk must be due, in this case, to violence or other similar unreasonable circumstances.[13] The evidence before me does not support a serious risk to the applicant’s physical or mental well-being. I have referred to the physical consequences of disputations with her brother but am satisfied that these did not pose a serious risk to her. Further, the risk of that appears to have diminished further since her return to the family home.
Dr Barhaghtalab referred to the applicant as suffering from anxiety and depression but he has not attributed that to her family environment although he noted that, if those conditions were so attributable, the applicant would benefit from living separately from the family.
[13] No allegations of sexual abuse arise in this matter.
The nature of the family home is of relevance in this matter. In addition to the parents, the applicant and her brother, two of the applicant’s grandparents reside there. Both the applicant’s parents work full-time. In those circumstances, it is not at all surprising that the applicant, who is now 18 years of age, would be required to carry out a range of household chores. The nature of those duties, as described by Mrs Gunning, was not disputed by the applicant. I am satisfied that the applicant’s situation was not a risk to her physical or mental well-being for any reason, including violence or other unreasonable circumstances. Certainly, I am satisfied that Mrs Gunning’s requirements concerning household responsibilities to be completed by the applicant did not constitute such unreasonable circumstances. I am satisfied that it was not unreasonable to expect the applicant to live at the family home.
Finally, under s 1067A(9)(b) of the Act, the applicant will not be regarded as independent if she was receiving continuous support from her parents. This ground was not argued strongly by the applicant and I am satisfied that it is not met. As I understand it, the applicant had been supported by her parents in living in the family home before she decided to leave home. Since returning to the family home, that support has continued even though she is now an adult. Also, Mrs Gunning has provided financial assistance to the applicant in relation to the maintenance of her vehicle as well as in relation to meeting periodic outlays such as registration payments. The applicant described these as loans from her mother. Nonetheless, I am satisfied that Mrs Gunning has provided continuing support to the applicant such that the applicant can not be regarded as being independent.
I am satisfied that none of the terms of s 1067A(9) of the Act are met in this case and it follows that the applicant may not be regarded as independent for the purposes of assessing her rate of YA.
DECISION
The decision is affirmed.
I certify that the preceding 25 (twenty-five) paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member ...........................[SGD].........................................
Associate
Dated 23 August 2013
Date of hearing 21 August 2013 Applicant In person Advocate for the Respondent Mr Ashley Burgess, Departmental Advocate
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