Hobbs; Secretary, Department of Social Services and (Social services second review)
[2021] AATA 3534
•5 October 2021
Hobbs; Secretary, Department of Social Services and (Social services second review) [2021] AATA 3534 (5 October 2021)
Division:GENERAL DIVISION
File Number: 2020/7555
Re:Secretary, Department of Social Services
APPLICANT
AndMs Abbey Hobbs
RESPONDENT
DECISION
Tribunal:Ms A E Burke AO, Member
Date:5 October 2021
Place:Melbourne
The Tribunal sets aside the decision of the AAT1 and in substitution determines that Ms Hobbs was not entitled to ‘living away from home’ rate for the purpose of receiving Youth Allowance.
........................................................................
Ms A E Burke AO, Member
Catchwords
SOCIAL SECURITY – eligibility for Youth Allowance – claimant lives away from home at boarding school – whether claimant needs to live away from home for the purpose of education, training, searching for employment or doing anything else in preparation for employment – whether the likelihood of the claimant’s “getting employment” will be significantly increased if she lives away from home – consideration of educational and employment opportunities at boarding school compared to those in home town – consideration of claimant’s academic performance and whether she had a special talent or area of excellence – decision set aside and substituted for decision that claimant is not eligible for Youth Allowance
Legislation
Social Security Act 1991
Cases
Drake and Minister of Immigration and Ethnic Affairs (1979) 46 FLR 409
Drum and Secretary, Department of Social Services [2018] AATA 742
Thomas-Angelo and Department of Family and Community Services [2001] AATA 699Secretary, Department of Social Services and QBZG [2021] AATA 331
Secondary Materials
Guide to Social Security Law, Department of Social Services
REASONS FOR DECISION
Ms A E Burke AO, Member
INTRODUCTION
The Secretary, Department of Social Services (the Applicant) is seeking a second tier review of the decision made by the Social Services and Child Support Division of this Tribunal (AAT1) to grant Ms Abby Hobbs (the Respondent) Youth Allowance pursuant to the Social Security Act 1991 (the Act).
On 7 February 2019, Centrelink found that Ms Hobbs was not entitled to Youth Allowance as she did not meet the requirements of the Act. On 10 April 2019, an Authorised Review Officer (ARO) of Centrelink affirmed the decision. Ms Hobbs sought review of the decision by the ARO at (Tier 1), which set aside the decision on 14 October 2020. The Secretary now seeks a review of that determination. Centrelink is the service provider for the then Department of Human Services, now Services Australia.
The application was heard via telephone on 26 August 2021. The Secretary, Department of Social Services was represented by Ms Kellie Latta, Special Counsel at Sparke Helmore Lawyers and Mr Gavin Simmons of Simmons Advisory Services appeared for the Respondent. Ms Abbey Hobbs (the Applicant), Mrs Theresa Hobbs (mother of Abbey) and Mr Michael Bishop, Assistant Principal at Balmoral Community College (BCC), all provided evidence at the hearing.
THE ISSUE IN CONTENTION
The issue in contention is whether Ms Hobbs met the eligibility requirements to live away from home for the purposes of education to qualify for Youth Allowance.
BACKGROUND
On 29 February 2019, Ms Hobbs lodged a claim for Youth Allowance at which time she was 16 years of age, in Year 11 and boarding at Ballarat Grammar where her permanent address was in Douglas, a small town 228 kilometres from Ballarat. Ms Hobbs previously attended BBC until Year 8 and transferred to Ballart Grammar in Year 9.
On 7 February 2019, Centrelink notified Ms Hobbs that her application for Youth Allowance had been rejected as she was under 18 years of age, dependant, living at home and in full-time secondary study.
On 10 April 2019, an ARO of Centrelink conducted an internal review and affirmed the original decision to not grant Youth Allowance to Ms Hobbs, finding:
In your claim for Youth Allowance you declared that you live away from the parental home to attend Ballarat Grammar School. I acknowledge that the distance between your parental home and educational institution is approximately 228km, which would meet the excessive travel time provisions.
However, where the local area provides reasonable access to an appropriate government school, but the student chooses to attend another school, outside of their local area, the young person would not be approved to live away from home for the purposes of Youth Allowance. In this instance, an appropriate government school is any that offers tuition in the student's grade or year and the term local area is considered to be anywhere that can be reached without excessive travel time.
I am satisfied that based on the information that has been provided, Balmoral Community College offers Year 11 tuition and is also considered to be within the local area of your parental home.
Your nominee Gavin Simmons has requested that you be deemed eligible for the 'away from home' rate of Youth Allowance. He notes that as you wish to study dentistry at university, you need to obtain a high ATAR and that this would be unlikely if you remained at the local school, as they do not have the required specialist teachers. He also states that as the local school only has three students in the grade, it would be beneficial for your social development to attend another school.
Young people with special career interests, who need to bypass a local school to attend a non-local school because of particular subject/s, may be eligible for the away from home rate of Youth Allowance, if they can demonstrate that the study is/will be beneficial to their educational and/or employment prospects. In addition, evidence also needs to be provided to confirm that the subjects the student needs to undertake as part of their Year 11 and 12 studies, in relation to their special talents or career interests, are not available at the local school.
I discussed the circumstances of the review with your mother Teresea on 29 March 2019 and explained that I would need evidence, as outlined above, to verify your need to bypass the local school. However, to date this has not been provided.
As such, based on the information that has been provided, I am not satisfied that there is a requirement for you to live away from home in order to undertake full-time study.
Accordingly, as you are under 18 years of age and a dependent secondary student who is not required to live away from home in order to undertake your studies, you do not qualify for Youth Allowance.
On 14 October 2020 the AAT1 set aside the ARO’s decision finding that Ms Hobbs was required to the live away from home to study and met the eligibility requirements for payment of Youth Allowance. In the decision the Member stated:
The tribunal is satisfied that Ms Hobbs’ academic needs would not be met by Balmoral Community College; that a facility like Ballarat Grammar School is not available to her locally; that she is an above average student with aspirations to become a dentist ; that Ballarat Grammar School can provide her with the academic environment to be able to achieve a sufficient ATAR entry to be admitted into dentistry and finally that Ballarat Grammar School has the facility to foster her abilities and talents whereas a small regional school would not have the facilities to do so.
The tribunal finds Ms Hobbs satisfies the requirements of section 1067D of the Act because she is required to live away from home for the purposes of her education. She is thus undertaking full-time studies as required by subsection 543(2AA) of the Act and so satisfies the activity test. She qualifies for payment of youth allowance.
On 16 October 2020, the Secretary sought a review of the AAT1 decision by this division of the Tribunal as they disagree with the decision, stating:
The social services and child support division at the administrative appeals tribunal erred in setting aside the decision finding that Ms Hobbs is required to live away from home for the purposes of youth allowance payment.
RELEVANT LEGISLATION AND ISSUES
Section 540 of the Act provides that a person is qualified for Youth Allowance if:
(a) either of the following applies:
(i) throughout the period the person satisfies the activity test (see Subdivision B) or is not required to satisfy the activity test (see Subdivision C);
(ii) the person is a CDEP Scheme participant (see section 1188B) in respect of the period;
(b) throughout the period the person is of youth allowance age (see Subdivision D); and
(c) throughout the period the person satisfies any requirements relating to Youth Allowance Employment Pathway Plans that apply to the person under Subdivision E; and
(d) throughout the period, the person:
(i) is an Australian resident; or
(ii) is exempt from the residence requirement within the meaning of subsection 7(7).
Section 543 of the Act defines a person is of Youth Allowance age if the person:
(a) has attained the minimum age for youth allowance (see section 543A); and
(b) has not yet attained the maximum age for youth allowance (see section 543B).
Section 543A of the Act defines the minimum age for Youth Allowance:
General
(1) Subject to this section, the person has attained the minimum age for youth allowance if the person:
(a) is at least 16 years old; or
(b) is 15 years old and is independent.
Note: For independent see section 1067A.
(2) Subject to subsections (2AA), (2A) and (2B), a person who satisfies paragraph (1)(a) or (b) but is not yet 18 years old is not taken under subsection (1) to have attained the minimum age for youth allowance unless the person:
(a) has completed the final year of secondary school, or an equivalent level of education; or
(b) is undertaking full‑time study; or
(c) the person has entered into or agreed to enter into a Youth Allowance Employment Pathway Plan; or
(d) is a new apprentice.
(2AA) Paragraph (2)(b) does not apply to a person who is aged 16 or 17 and who is undertaking full‑time study in respect of a secondary course at a secondary school (within the meaning of the Student Assistance Act 1973) or at a TAFE institution unless:
(a) the person is independent (see section 1067A); or
(b) the person is taken by section 1067D to be required to live away from home; or
(c) the person was receiving youth allowance immediately before starting that course; or
(d) the Secretary determines that the person is not benefiting from family tax benefit that is being paid to the person’s parents.
Section 1067D of the Act outlines the requirements for a Youth Allowance recipient to live away from home:
When a person is taken to be required to live away from home
(1) A person is taken to be required to live away from home for the purposes of Part 2.11B and 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; or
(iii) the person needs to live away from home because the person is a new apprentice.
Matters to which Secretary is to have regard
(3) In making a determination under subparagraph (1)(c)(ii), the Secretary is to have regard to:
(a) the overall employment prospects for young people in the areas where the home is situated and in the area where the person is living; and
(b) matters relating to the person that would affect the likelihood of the person’s getting employment in those areas.
The Guide to Social Security Law (the Guide) notes that a person’s mere choice to live away from home would not qualify them for Youth Allowance and provides examples about the application of section 1067D of the Act:
3.2.6.10 Qualification for Away from Home Rate of YA
The away from home rate of YA is a higher rate of YA payable to some recipients who need to live away from home in order to access study, undertake an Australian apprenticeship, or to enhance their employment prospects. Dependent young people who fulfil the activity test as a job seeker, Australian apprentice or full-time student, may qualify for the away from home rate of YA.
…
YA can be paid at the away from home rate for dependent young people who:
•need to live away from home for the purpose of education (including full-time secondary study), training, searching for employment or doing anything else in preparation for getting employment, OR
•are significantly more likely to get employment if they live away from home (NOT including full-time students), OR
•need to live away from home in order to undertake their Australian apprenticeship.
…
Who CANNOT receive the away from home rate?
Not all young people living away from the parental home can qualify for the away from home rate. It is NOT sufficient for the young person to choose to live away from home, or for the parent to choose not to support the young person.
Note: A person's mere choice to live away from home would not entitle them to the away from home rate. However, they may meet the requirements if they can demonstrate a need to live away from home for the purposes of education or training, or because the likelihood of them getting employment will be significantly increased.
Example: If a student's parents move to a new location and it requires excess travelling time, the student may be able to demonstrate that their continuity of studies would be interrupted by moving with their parents, so they may satisfy the Secretary that they need to live away from home for educational purposes.
YA recipients in the following circumstances do NOT qualify for the away from home rate:
•a dependent YA recipient who lives away from home because they choose to, for any reason, or because they need to, for reasons other than approved employment, job search, study or training, OR
•a dependent YA recipient who is living in the parental home, OR
•an independent YA recipient who is taken to be an accommodated independent person (1.1.A.10), OR
•young people in state care who receive, or attract for their carer, a State or Territory payment for their upkeep.
Approval to live away from home - secondary students
In order to approve a secondary student to live away from home, AT LEAST ONE of the following conditions would need to exist:
•travelling time is excessive (1.1.E.150), OR
•parents move their principal home frequently, OR
•the parental home (1.1.P.20) is isolated, OR
•the parental home is an inadequate place to study, OR
•the young person has a disability and the parental home is isolated from required special facilities, OR
•parents move out of the area (year 11 and 12 students), OR
•an equivalent activity is not available locally.
In some cases, secondary students may bypass local schools to attend another of their choice that is not in their local area if they can demonstrate a need to live away from home. However, if the local area provides reasonable access to an appropriate government school, but the young person simply chooses to attend another school outside their local area, then the young person would NOT be approved to live away from home.
For the purposes of YA, excessive travelling time is where the time it takes for the young person to travel by public transport from their parent's home to an approved activity (1.1.S.410), exceeds 90 minutes including walking and waiting times. Restrictions due to lack of, or deficiencies in public transport should also be taken into account.
The Guide at 3.2.6.40 outlines where approval will be given for a student to bypass a local school out of choice:
To be approved for the away from home rate of YA and to bypass a local school, a student must demonstrate a need to live away from home for the purposes of their education and/or employment prospects.
A range of factors may influence a student's choice of school (e.g. family connections, social/ethnic composition, quality or standard of education provided, range of subjects offered and delivery methods, availability of a scholarship, etc). However, a student's mere preference, by itself, to bypass a local school is NOT sufficient to demonstrate a need to live away from home for the purposes of the person's education and/or employment prospects.
Example: Where the local area provides reasonable access to an appropriate government school, but the student simply chooses to attend another school outside their local area, then the young person would NOT be approved to live away from home for the purposes of YA, as their personal choice by itself, does not demonstrate that they need to live away from home for the purposes of their education and/or employment prospects. An appropriate government school would be any that offers tuition in the student's grade or year. Local area is considered to be anywhere that can be reached without excessive travel time (1.1.E.150).
However, it is important to note that the existence of other factors, combined with a student's personal choice, may be sufficient to demonstrate a need to live away from home for education and/or employment prospect purposes. (emphasis added)
…
Factors demonstrating a need to live away from home for education and/or employment prospects
In deciding whether a student has demonstrated a need to bypass a local school consideration should be given, but not limited, to the following factors:
•the compelling nature of the student's circumstances and the degree of control/choice the student has over their circumstances,
•the availability, or otherwise, of suitable local school alternatives to meet the education and/or employment needs of the student, having regard to any special talents/career interests the student has,
•the extent to which attendance at a non-local school will positively impact on the student's education and/or employment prospects. (emphasis added)
Circumstances that may be considered to demonstrate a need to live away from home for education and/or employment prospects may include, but not be limited to, the following:
•The student has special abilities/talents whose educational needs are not able to be met by the local school (see separate section below for more guidance).
•The student has special career interests and needs to attend a non-local school to study special subjects that will benefit their education and employment prospects, as the local school does not offer such subjects (see separate section below for more guidance).
•The student has a scholarship to a non-local school which allows the student to undertake special career interest subjects, not available at the local school, which will be beneficial to the student's education and/or employment prospects (see separate section below for more guidance).
•The student has been excluded or suspended from the local government school and there is no other government school in the local area for the student to attend.
•The student's parents have moved from one area to another resulting in the student not being able to study the same subjects for the purpose of completing required curriculum for their year 12 certificate and/or tertiary entrance requirements, and there is no other local school that offers the same subjects.
•The student attends a non-local school because the syllabus and teaching arrangements are specifically geared to cater for the needs of Aboriginal and Torres Strait Islander students and where the first language of most children attending the school is not English.
•The state/territory education authority agrees that the local school is inappropriate for a student or group of students, because it does not meet their educational needs.
◦Example: The school does not provide adequate facilities to permit students to gain a year 12 certificate and/or tertiary entrance score or the student is subject to extreme bullying. (emphasis added)
•The CEO or delegate of the state/territory education authority supports the bypassing by an individual student, and where the reasons are consistent with the aims of YA.
Students with special talents and/or special career interests
Where a student can demonstrate that they need to live away from home and bypass a local school as it will be beneficial for their educational and/or employment prospects, then they may be assessed as eligible for the away from home rate of YA. Consideration in such cases should be given to the special abilities of the student and whether their needs can be met by the local school. The student should provide, where possible, evidence that their educational and/or employment prospects will be better met by study at the non-local institution. This evidence may take the form of statements from school principals, teachers, or others acting in an official role with the school. The intent of this policy is to encourage the development of young people with special talents whose educational needs may not be met by their local secondary institution.
Young people with special career interests, who need to bypass a local school to attend a non-local school because of particular subject/s, may be eligible for the away from home rate of YA if they can demonstrate that the study is/will be beneficial to the student's educational and/or employment prospects. In such cases, in addition to the support statements from school principals, teachers, or others acting in an official role with the school, evidence is also required to indicate that the particular subject/s for which the student has a special career interest is/are undertaken as part the young person's year 12-certificate and/or tertiary entrance curriculum.
As a policy document, the Guide is not binding on the Tribunal, but should be taken into account unless there are cogent reasons to not do so (Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634 at 645; P v Child Support Registrar [2012] FCA 1398 at [3]).
THE TRIBUNAL’S CONSIDERATION AND FINDINGS
Evidence before the Tribunal
The evidence before the Tribunal included documents provided pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, referred to as the “T documents”, as well as a statement from Ms Hobbs’s representative and additional information from both parties.
On 18 February 2019, Mr Simmons wrote to Centrelink to appeal the rejection of Ms Hobbs’s Youth Allowance. He argued:
We hereby appeal the decision to reject Youth Allowance for Abbey as we feel special consideration should be applied to be paid at the “Away from Home” rate as per Guide 3.2.6.40.
Abbey is undertaking education in Ballarat, where she is attending Ballarat Grammar in 2019 undertaking Year 11 studies. Family resides at Douglas which is some 228 kilometres from Ballarat.
Reason for Abbey bypassing her local school are several, but main issues surround,
1. Abbey’s dream is to study dentistry. To gain entry in such field a high ATAR is required. Dux of her local school in 2018 obtain an ATAR in the fifties. There were only 3 other students who would have been in her Year 12 class. There is a definite lack of specialist teachers given the low number of Year 12 students.
2. ATAR scores at local school are consistently lower than state average due to lack of specialised teachers due to small class numbers. Teachers are required to teach in subjects that is not their field of expertise and hence students are disadvantaged.
3. Furthermore there was only 3 girls in her local school covering Years 9,10,11 & 12. This did not create a healthy peer group. So as to attain required ATAR school and expand her social skills Abbey was sent to Ballarat to attend boarding school.
To give Abbey every opportunity in life to reach her potential and realise her dreams, boarding school was only option so that her employment and educational prospects could be enhanced.
On 26 April 2020, Mr Simmons appealed to the AAT1 against the decision of the ARO to reject Ms Hobbs's Youth Allowance, repeating his contentions contained in his letter of 18 February 2019, and stating additionally:
With the Social Security Act being beneficial legislation in nature as per Guide 1.3.1, if it can be interpreted to the clients benefit then the legislation must side with those for whom the legislation is there to benefit, in this case Abbey.
On 23 June 2020, Mr Simmons provided a letter in which he stated:
Balmoral Community College K12 is a Kindergarten - Year 12 community school having 124 students, 17 of which are kindergarten children with only 32 currently attending secondary school in Years 7 - 12
Abbey's subjects in Year 11 - 2019 & Year 12 - 2020 subjects were/are as follows
Year 11
English
English Literature
Biology
Psychology
Further Maths
Health and Human Development
Visual Communication
Year 12
English
Further Maths
Biology
Visual Communication
Health and Human Development
Mr Simmons enclosed a list of subjects that BCC offered at Year 11 and 12 noting Biology was not being offered at Year 12 level in 2020, stating that:
Be that due to very small numbers in classes, specialists teachers are very rarely available and often if one student is absent then whole class is cancelled so student does not fall behind. (sic)
An undated statement was received from Ms Hobbs in which she advises:
In response to why I left Balmoral Community College, it's simple. I wanted a good education, I wanted to not be one of two girls in my class, and I wanted to be surrounded by opportunities that couldn’t be provided to me. When I was about five, I decided I’d like to be a Dentist, and just about every five-year-old has a dream career; astronaut, football player, doctor… and after that you don’t think too much about it again until you have to, I know that in year eight as a thirteen-year-old I didn’t. In 2016 I wasn’t thinking about VCE and an ATAR, I knew nothing about any of it, and that’s the way it’s supposed to be at that age. It would be crazy for me to be concerned about the subjects I would need to take to become a dentist, as those thoughts were needed at least two years away. It is not unknown that private schools have better educational results than public schools, especially public schools that are more isolated than not. With this in mind, I always knew that in Balmoral I couldn’t be learning to my full potential, and this obvious in the instance that with such few students in classes (particularly year 12 classes), no one was achieving an outstandingly high ATAR, when in all seriousness with almost one on one teaching this shouldn’t have been the case. I am currently happy and very satisfied with the course that I am studying, and I know that I owe my thanks to all the education that I received throughout my life, but I wouldn’t be where I am today if I didn’t attend private school.
As I mentioned I was one of two girls in my year level with about 10 other boys in my class at the time. Gradually over the years, I saw the majority of the people I had grown up with since kindergarten leave to attend other schools and this was probably the biggest change to my whole education at Balmoral, as they were all my closest friends. Looking back, if I had stayed, I would have been miserable, and I know that due to the school’s geographical location there would never have been a big influx of children coming to the school, as in the 2020 graduating class there were barely any students and only one student that I grew up with from kindergarten completed VCE. I can’t imagine going through year 12 alone, with no girls to console with, it would have been detrimental for my mental health if I had stayed. At boarding school, I met the most amazing girls and guys who I would now call family, I didn’t know that I could have so much love for a group of people and I am so very grateful that they are a massive part of my life. I hate to imagine all of the things that wouldn’t have been possible if I had stayed in Balmoral, I wouldn’t be half the person I am today. I do owe a lot to Balmoral Community College, but at that time in my life they couldn’t offer me everything I needed as a young teenage girl, I know that the choices made surrounding my education were the right choices and I wouldn’t want it any other way.
Mr Simmons submitted the following:
(i)Latrobe University information for the Bachelor of Dental Science (Honours), Bendigo which advised the following:
Prerequisite
VCE: Units 3 and 4: a study score of at least 25 in Chemistry. Units 3 and 4: a study score of at least 25 in Biology. Units 3 and 4: a study score of at least 30 in English (EAL) or at least 25 in English other than EAL.
(ii)A table of Australian Universities who offer a Bachelor of Dental Science which all indicated an ATAR of 90 or above was required
(iii)Letters from parents of children who also previously attended BCC but who had all chosen to send their children away to finalise their secondary education in preference to continuing at BCC
(iv)Letter for Ms Wendy Hobbs, Former Principle at BCC from 2010 –2017 who advised:
I note in my work diary of 2016 that I had meetings with Abbey and her mother Tereasa Hobbs on the 8th August and 4th October to discuss Abbey’s education. In 2016 Abbey was in Year 8 and starting to think about a career in Dentistry and having to choose her elective selections for Year 9 & 10 and a pathway to VCE.
At these meetings it was discussed that future VCE subjects could be accessed via face to face at the College, or alternatively via Virtual School or correspondence if need be. At that time we discussed that most of Abbey’s subjects would be face to face however, I could not guarantee that all subjects would be, as it was dependent on staffing and student numbers, with the likelihood of Abbey being the only student in some of her classes.
At these meetings discussions took place around the fact that it would be likely that Abbey would be the only girl in her year level (with the possibility of the Year level having less than five students) and that there were no girls in senior classes above Abbey once she was in Year 10. It was discussed that Abbey was very sociable and enjoyed others company and needed numbers around her to thrive and do her best.
In consideration of student health, wellbeing and educational needs it was considered that Abbey could benefit from attending a school that had a larger proportion of students in general who would be in her classes and importantly some female students for Abbey to connect with.
Abbey left Balmoral K-12 Community College at the end of 2016 to further her education at another school.
On 17 February 2021, Mr Michael Bishop, Assistant Principal, Balmoral K-12 Community College, provided the following in response to a request from the Applicant, he advised:
1 Did BCC offer Biology as a subject that senior students (students who are in years 11 and 12) could undertake during the 2019 and 2020 school years?
The practice of the College is to offer subjects to students according to ability to Staff subjects and then upon receipt of advice of from students to operate classes students according to Student subscription and choice. Biology received no subscriptions for the 2019 School Year. It was not operated as a class. Biology received subscriptions of Units 1 and 2, regularly Year 11 Units, of the 2020 School Year and was operated during that period at that Year level.
2 If so, can you please provide details of how that subject was offered (e.g. locally, virtually or other).
The subject was operated locally, with regular face to face teaching.
3 If not, could you please explain how a student attending BCC could undertake Biology should they require completion of this subject as a pre-requisite for entry into a particular course at university (leaving aside other entry requirements that may exist).
This question is a moot point, as the operation of the class did occur when the subscription to the subject existed. Please refer to (1) above, paragraph one response.
4 Are senior students who attend BCC generally able to undertake subjects which enable them to obtain an ATAR (and obtain entry into a university (subject to specific course entry requirements)?
Yes.
5 Can you please provide copies of enrolment documents/forms, class schedules, attendance records, report cards and correspondence for Miss Abbey Hobbs (DOB 6/2/03) while she was a student at BCC.
Please refer to the attached zip file and its contents. This constitutes a copy of the entire contents of the file that the College holds on Miss Hobbs. It is, to the best of my belief and understanding not readily possible to gain access to copies of her reports that are held on the learning and reporting system called ‘Sentral’ which was used by the College up until the end of 2017, to which the College no longer has access, ‘Sentral’ having been replaced by ‘Compass’. If these reports were downloaded by the college, no current Staff member has knowledge of their whereabouts. Data were not transferred from Sentral to the Compass system, as they are discreet non-connected entities. The operation of Sentral was under the auspice of the then Lead Teacher, Mr Andrew Mark Kuchel, who is no longer on the staff of the College.
6 Can you please advise and provide any information about Miss Hobbs’ enquiries regarding what subjects were available to study at BCC in 2019 and 2020? Can you please provide any file notes, correspondence or documents in relation to those enquiries/discussions?
To the best of my knowledge and belief, Miss Hobbs made no enquiries of the College at the specified times. As a result, no such file notes, correspondence or documents in relation to those enquiries/discussions exist. In my role as Assistant Principal at this time I would anticipate involvement in any such process, and it did not occur.
BCC is a Victorian government school, which describes itself on its website as:
Balmoral K-12 Community College is a Child Safe School which offers students a caring and nurturing learning environment. Our dedicated and experienced Staff provide a positive and enriching program, appreciating the individual needs and interests of every child.
Our College is a place where learners are prepared through a course of directed studies either to enter the workplace with a broad skill set, or to undertake further studies to prepare them for their chosen vocation or profession.
Our College is a warm and welcoming place that values relationships, student engagement and student voice, and endeavours to seek student feedback to improve outcomes, both within and external to the classroom.
Facilities are utilised by students from Kindergarten through to Year 12, and include two Gymnasiums, a Science Lab, Foods Room, Tech Shed, Eco Centre, Textiles Classroom, Library, Music Room, two Art Rooms, Mandarin Classroom, two vegetable gardens, and paddocks for our stock which includes cattle, sheep, birds and chickens.
The College offers a comprehensive curriculum focusing on Literacy and Numeracy acquisition from Foundation through to Year 10, and VCE and VCAL at Years 11 and 12.
We boast an excellent range of specialist programs including Physical Education, Agriculture, Music, Art, Performing Arts, Science, Food Studies, Technology and LOTE (Mandarin Chinese).
Ballart Grammar is a private Anglican co-educational school with over 1,500 students from early childhood to Year 12, including around 250 boarders which describes itself online as:
With three campuses, an extensive range of first-class facilities and a range of challenging and diverse programs, we provide rich opportunities for our students to learn to thrive.
The ‘essence of Grammar’ is based on wellbeing. Steeped in the Anglican tradition, we invest our values and focus in preparing our students to develop into positive and resilient individuals intent on establishing their own pathway in the world.
We want our students to graduate with a deep understanding of the world and of people in it. As an active member school of Round Square our students are supported to take on challenges that demand courage, generosity, imagination, principle and resolution.
Our regional Anglican School fosters academic aspiration, trust, opportunity and engagement, resilience, and social and environmental justice within the search for faith and meaning.
At the hearing, Mrs Hobbs, Abby’s mother, advised the Tribunal that:
·her husband had died leaving her a widow with 4 children, that BCC had given all her children a great start in their education and she was very supportive of the local community school. However, whilst it was a tough choice as a widow to send her children away to boarding school she had determined it was best for her children’s secondary education as Ballarat Grammar offered a wider choice of subjects, great extra-circular activities/social interaction and she did not hold a great regard for online learning; and
·it was 20 minutes from their home to BCC by bus and whilst Hamilton was 50 minutes’ drive from their home it required a 20-minute drive to the bus stop and another hour by bus to the school.
Ms Hobbs advised the Tribunal that:
·She hadn’t discussed with other Year 8s about what they wanted to study because she was in Year 8.She now knew there were two students in Year 12 at BCC and knew for a fact they didn’t study biology last year;
·She had been considering Dentistry at Adelaide University, did not believe chemistry was a prerequisite for entry there, had changed her mind about studying dentistry after she had done work experience in it and discovered it was very boring;
·as she had left BCC at the end of Year 8 she wasn’t personally thinking about subjects but her mother was and her mother had sent her away to boarding school so she could give her the best education and get the best experiences;
·it had been both social reasons and subjects provided by BCC which had led to a decision to go away to Ballarat Grammar;
·She did not describe herself as an expectational student as she had to strive to achieve her results, she was studying Business at ACU which she was enjoying greatly; and
·She did not think Ballarat Grammar was better because it was a private school.
At the Tribunal Mr Bishop confirmed and explained the advice contained in his letter of 17 February 2021.
Ms Hobbs’s need to live away from home in order to get an education
At the date of claim, Ms Hobbs was 16 years of age and in Year 11. Whilst of the minimum age to qualify for Youth Allowance, she was not eligible under section 543A of the Act to receive Youth Allowance as she had not completed her final year of secondary education.
Noting that Ms Hobbs was not independent, Ms Latta, for the Representative, whilst acknowledging that Ms Hobbs was not living at home at the date of claim, contended that Ms Hobbs had chosen to continue her education at Ballarat Grammar as a boarder, as a personal choice and not out of necessity.
Additionally, Ms Latta contended there was limited compelling evidence that Ms Hobbs needed to live away from home as her local government school provided courses of an appropriate academic standard for the Respondent to achieve her goal of studying Dentistry at a tertiary level.
Ms Latta argued it was fundamentally Ms Hobbs’s preference – not a necessity – to live away from home to continue her education at Ballarat Grammar.
Mr Simmons contended that Ms Hobbs was required to live away from home to achieve her maximum potential as the standard of education, without question, had been much better at Ballarat Grammar. Mr Simmons contended that at Ballarat Grammar, Ms Hobbs had greater access to tutors and exposure to subjects she had great interest in and/or the access to greater resources.
Mr Simmons argued that his client’s situation satisfied the instruction outlined in the Guide at 3.2.6.40 beyond any doubt or ambiguity but that should the Tribunal consider that ambiguity existed, that it should take note of the Guide at 1.3.1 which states the Act is “beneficial legislation” requiring a beneficial approach to statutory interpretation, or in other words, an approach which is favourable to the recipient of benefit under the Act.
Ms Hobbs’s need to bypass the local school
Ms Latta argued the Tribunal should reject Ms Hobbs’s contention that her academic needs were unable to be met by a local school. Ms Latta relied on the evidence of Mr Bishop, who stated that Biology was not offered in 2019 because it received no subscriptions, but that the practice of the college is "to offer subjects to students according to ability to staff subjects and then upon receipt of advice from students operated classes according to Student subscription and choice". Mr Bishop advised the Tribunal that Biology Units 1 and 2 were operating during the 2020 school year, were held locally with regular face to face teaching, and that students who attend BCC were, and are, able to undertake subjects which enable them to obtain an ATAR and entry into university.
Ms Latta contended that the school in Ms Hobbs’s local area offered subject choices and appropriate educational standards for her to realise her academic potential which, subject to her own commitment and performance, would allow her entry into a dentistry degree, should she later choose it.
Whilst Mr Simmons did not wish to be derogatory regarding the BCC educational standards, he noted the feeling of Abbey and her family was not an isolated concern and advised he acted for many families from that area, who for one reason or another, do not believe their child’s best interest or education is served by remaining at BCC. He argued this was demonstrated by the fact that in Abbey’s year, there had initially been 12 students, but that by her Year 10 level only 4 students remained enrolled at BCC, and that at the time of her claim, it was not certain that they would all remain to undertake Year 11 & 12.
Mr Simmons contended if Abbey had remained at BCC she would have been one of only 3 girls in Year 9–12 in 2019 which raised concerns greater than educational attainment and that the issues in regards development of social skills should not be ignored. He contended that by reading Abbey’s submission she had been able to dramatically advance her social skills and networking capabilities at Ballarat Grammar.
Mr Simmons contended the Guide at 3.2.6.40 states that the requirement to bypass a school only needs to enhance someone’s educational or employment prospects. He also contended that education received by video conferencing, and being the only student in a class, was not the preferred or ideal option for undertaking a child’s secondary education. He contended that professionals are now concerned about children’s mental health and standard of learning, and argued that attending boarding school had enhanced not only Ms Hobbs’s educational prospects but enriched her social life through the experience of diversity and being part of a larger cohort of peers.
Ms Hobbs’s special talent and/or special career interests
Ms Latta contended that Ms Hobbs did not have a special talent, or a need to undertake specific subjects for a special career interest that were not available to her at her local school.
Ms Latta argued Ms Hobbs had consistently asserted via her representative in letters dated 31 January 2019, 18 February 2019, 26 April 2020, 23 June 2020 and 26 January 2021 that the primary reason for bypassing her local school was because her "dream" was to study dentistry, which required completion of Biology, a subject not offered at BCC.
Ms Latta took the Tribunal to the course overview for a Bachelor of Dental Science (Honours) from La Trobe University provided by Mr Simmons on 26 January 2021 which outlined the prerequisite entry requirements include "VCE: Units 3 and 4: a study score of at least 25 in Chemistry. Units 3 and 4: a study score of at least 25 in Biology. Units 3 and 4: a study score of at least 30 in English (EAL) or at least 25 in English other than EAL."
However, Ms Latta argued Ms Hobbs’s report cards from Ballarat Grammar, indicated she had not undertaken Chemistry in 2019. Ms Latta argued it was incongruent that the primary reason for leaving BCC was due to not being able to undertake the prerequisite subjects to enable study of dentistry only to then attend a different school and not study those prerequisite subjects.
Ms Latta argued the Tribunal could not be satisfied that Ms Hobbs’s "choice" to attend Ballarat Grammar was due to her desire to pursue a career in dentistry and referred the Tribunal to the following:
(a)Ms Hobbs’s statement that "It would be crazy for [her] to be concerned about the subjects [she] would need to take to become a dentist, as those thoughts were needed at least two years away" demonstrates that her "dream career" and the pathway to it played minimal role in her decision to attend Ballarat Grammar.
(b)Mr Bishop's statement dated 17 February 2021 that “To the best of [his] knowledge and belief, Miss Hobbs made no enquiries of the College at the specified times. As a result, no such file notes, correspondence or documents in relation to those enquiries/discussions exist. In [his] role as Assistant Principal at this time [he] would anticipate involvement in any such process, and it did not occur”.
(c)Ms Hobbs advised at the hearing that she had heard her brother’s stories of boarding school and wanted to have the same experience, a life beyond her small rural community.
Ms Latta noted that Mr Simmons had also asserted that BCC had an unhealthy peer group, lack of specialised teachers, and did not have the ability to educate children to enable them to achieve a high ATAR. The Applicant’s representative argued this contention proved that Ms Hobbs’s decision to attend Ballarat Grammar was a personal choice guided by her own perceptions of educational standards at public and private schools, noting she stated that:
It is not unknown that private schools have better educational results than public schools, especially public schools that are more isolated than not. With this in mind, I always knew that in Balmoral I couldn't be learning to my full potential…
Ms Latta noted that Mr Simmons and Ms Hobbs had asserted her happiness and mental health as reasons to support her decision to attend Ballarat Grammar. As noted by the Tribunal in in the matter of of Re Thomas-Angelo and Department of Family and Community Services (‘Thomas-Angelo’) at [4]:
The Tribunal understands that a student would be less able to study effectively in an environment in which he or she is not happy. However, the Tribunal is not satisfied that a failure to learn at a particular institution because a student is not happy with the environment, constitutes a necessity to live away from home to attend another educational institution some three hours travelling time away.
Ms Latta contented that it is not the intent of the policy or legislation, nor would it be appropriate, to effectively subsidise Ms Hobbs’s school fees because of her choice to live away from home to attend her preferred school (instead of her local government school) when it is not needed for the purposes of her education in preparation for employment.
Mr Simmons contended it had been Abbey’s intention back in late 2018 and since the age of five, to pursue a career in dentistry. To achieve this, he argued she required certain science subjects as prerequisites and an ATAR in the 90s to be offered a place in dentistry. Mr Simmons argued the Dux at BCC in 2018 obtained an ATAR in the fifties which indicated the school did not have the capacity to see her achieve her academic potential or desire.
FINDINGS
The Tribunal, standing in the shoes of the decision maker, must have particular regard to section 1067D(1)(i) and (ii) of the Act, which clearly states the Secretary determines that the need of the student to live away from home is primarily to support a person to obtain employment. The Act does not specify that the goal is to help the student attain their preferred employment opportunity or to maximise their individual potential but to be successful in finding employment.
The Tribunal found there was no compelling reason to demonstrate why Ms Hobbs had chosen to by-pass the local government school to attend Ballarat Grammar other than personal preference. The Tribunal considered that the local school in Ms Hobbs’s area would have provided her with the ability to achieve a standard of education that would ultimately assist her to obtain employment.
The Tribunal relied upon the findings of Member Parker in the matter of QBZG; Secretary, Department of Social Services and (Social services second review) [2021] AATA 331 that:
Returning to the words of subsections 1067D(1)(i) and (ii) of the Act, it refers in both of those provisions to “getting employment”. The legislators did not insert the words “of the person’s choice” after the words “getting employment”, when they could have done so. This wording is consistent with the interpretation that this Tribunal considers should be applied to those provisions.
Accordingly, the Tribunal considers that the purpose for which the person needs to live away from home has certain limitations and that the need to live away from home must arise for the purpose of education and other activities done “in preparation for getting employment”. The Tribunal does not consider that this means getting employment of the person’s choice. This means that if the Secretary is able to demonstrate that QZGB could get employment (of any kind) by completing his secondary school education at a local school in Town A, thereby obviating the need for him to live away from home, he would not be entitled to youth allowance under these provisions.
The Tribunal also notes that the legislators inserted the word “needs” in s 1067D(1)(c)(i) and did not use the word “wants” or “desires”, when they were at liberty to do so. The Tribunal considers that the presence of the word “needs” makes it clear that youth allowance will not be available if a person chooses to live away from home for a purpose not encompassed by the specified purpose in this provision. The distinction between “needs” and “wants” or “desires” is significant and requires the Tribunal to consider what is necessary, in terms of where the person is living, to prepare the person to get employment, rather than what is desirous by reference to the person’s personal preferences for the type or status of his or her future employment.
Subsection (1)(c)(ii) allows for consideration of the attributes of an individual and whether pursuing education or other activities away from home will result in a significant increase in “the likelihood of the person's getting employment”. But again, the measure taken must be focussed on the person getting employment of any type or status and is not directed at the person getting employment of a type or status as preferred by the person.
On reading Ms Hobbs’s school reports and hearing her give compelling evidence at the hearing, the Tribunal considered she was a bright, articulate, social being with many skills and attributes. However, Ms Hobbs’s abilities were not such that they would be considered special talents such as a gifted dancer, singer or athlete. The Tribunal found Ms Hobbs had no specific talent or career interest as defined in the Guide that required her to undertake her secondary school at Ballarat Grammar.
On the basis of the evidence provided, the Tribunal considered Ms Hobbs’s local school would have offered her subject choices and appropriate educational standards to provide her with the opportunity to realise her academic potential. Whilst some may argue that online learning and small class size is not an ideal form of education, it is in fact the experience of the majority of secondary students at present and a reality of many who live in remote and rural Australia. The grant of Youth Allowance for secondary students is based on the need to bypass a school and not a preference, a preference for larger class size and face to face learning is not envisaged by the Act, Guide or relevant case law.
The Tribunal considered that Ms Hobbs did not leave BCC at the end of Year 8 to attend Ballarat Grammar to ensure she would be able to undertake the prerequisite subjects required and achieve an ATAR for entry into dentistry. Ms Hobbs and her mother both advised the Tribunal that a driving motivation to leave the school was a lack of peers and most particularly, girls who would be studying with Ms Hobbs in her senior years at BCC. Whilst the Tribunal understands this is a sound social and indeed academic reason to relocate schools, it is not one envisaged by the Act for the purposes of receiving Youth Allowance. The Tribunal considers the ATAR Ms Hobbs finally received and the course she gained entry into would both have been realised had she remained at BCC.
The Tribunal also relied upon the findings of Senior Member Beddoe in the matter of Thomas-Angelo:
35. The Tribunal accepts that “need” is to be assessed objectively but notes the objective “need” to live away from home for the purposes of education must be tempered with subjective criteria of an individual’s circumstances.
43. The applicant has contended that the choice of which particular secondary institution he attends is not a matter of personal preference but rather one of scholastic challenge. No syllabuses or other evidence was provided regarding TSS and the Murwillumbah High School to enable the Tribunal to compare for itself the level of challenge available at either institution. However, I accept that the applicant’s parents perceived that the TSS education program was appropriate and necessary for their son.
44. Section 1067E of the Act states:
“If a person:
(a) is not independent; and
(b) is not taken by section 1067D to be required to live away from home; the person is taken for the purposes of this Part to be living at home.”
45. The Tribunal notes that the Guide to the Social Security Act 1991 (“the Guide”) provides conditions, at least one of which must exist for a secondary student to be taken to be required to live away from home (T8, page 62). The Tribunal considers that in this matter the Guide provides some assistance to the Tribunal as it agrees with the Tribunal’s considerations on this point. The only applicable condition relevant to the facts of this proceeding are outlined in the Guide as:
“an equivalent activity is not available locally.”
46. This is explained (T8, page 63) to mean that a student is unable to study or attend training courses locally because:
·“an equivalent course is not available locally, OR
·a student’s academic needs are not met by local education facility, OR
· there is no local facility.”
47. The Tribunal’s is [sic] satisfied that this interpretation makes allowance for the situation of a child with severe learning difficulties or a proven academically talented and gifted student whose educational requirements cannot be met by local government schools or any other local educational facility.
48. I am satisfied that the fact of winning the scholarship to TSS on academic grounds indicates that the applicant is a student of proven academic talent.
…
55. However, the Tribunal is satisfied that the applicant’s academic needs were not being met at Murwillumbah, that it was necessary for him to move away from Murwillumbah to obtain an education appropriate to his needs so that he needed to live away from home for the purposes of education.
56. The Tribunal is therefore satisfied that the applicant “needs to live away from home for the purposes of education”.
57. With respect to those who assert otherwise the applicant’s choice was to in effect give up on his education in Murrwillumbah because his needs were not being met there or pursue his education at a place that met his needs.
58. I am satisfied and determine that the applicant needed to live away from home for the purpose of his education and training in preparation for pursuing a proposed working career in robotics.
Whilst the Guide does note that other factors combined with a student’s choice may be sufficient to demonstrate a need to live away from home, the Tribunal was not satisfied there were additional factors such as a special talent or lack of subject choice which would give rise to Ms Hobbs’s need to live away from home for her secondary schooling.
For completeness, the Tribunal also consider the excessive travelling for Ms Hobbs to attend schools in her local area and considers there were several options available to her to attend where the time it would take to travel by public transport from her parent's home to a secondary school did not exceed 90 minutes. Again, the Tribunal appreciates this travel would provide obstacles to both Ms Hobbs and her mother, and whilst understanding this lost travel time was not inducive to best educational outcomes, it did not exceed the 90 minutes travel outlined in the Guide.
As with all social security payments, Youth Allowance is granted on the premise that an individual is unable to support themselves via any other means and in this case, on the basis that circumstances require a person under 18 to live away from their parents out of necessity, not choice. Fundamentally, the Tribunal found that the decision to attend Ballarat Grammar, whilst a completely valid and rational choice on many levels, was a preferred educational option chosen by Ms Hobbs and her mother and not a necessity
CONCLUSION
The Tribunal concludes that:
(a)Ms Hobbs did not need to live away from home for the purpose of education, training, searching for employment, or doing anything else in preparation for employment as per subsection 1067D(1)(c)(i) of the Act; and
(b)the likelihood of Ms Hobb’s getting employment would not have been significantly increased by her living away from home as per subsection 1067D(1)(c)(ii) of the Act.
The Tribunal concludes that Ms Hobbs, at the date of claim, was a dependent who had not yet turned 18 years old and is not taken to have reached the minimum age because she had not undertaken full-time study by reason of needing to live away from home for a purpose as defined in section 1067D of the Act.
Accordingly, the Tribunal sets aside the Decision Under Review and in substitution, decides that Ms Hobbs does not qualify for Youth Allowance under the Act, in respect of her claim dated 29 February 2019.
The Tribunal sets aside the decision of the AAT1 and in substitution determines that Ms Hobbs was not entitled to the ‘living away from home’ rate for the purposes of receiving Youth Allowance.
I certify that the preceding 63 (sixty-three) paragraphs are a true copy of the reasons for the decision herein of Ms Anna Burke AO, Member
.............................[sgd]...........................................
Associate
Dated: 5 October 2021
Date of hearing: 26 August 2021 Special Counsel for the Applicant: Ms Kellie Latta
Solicitors for the Applicant: Sparke Helmore Lawyers Advocate for the Respondent: Mr Gavin Simmons, Simmons Advisory Services
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