Joseph and Department of Education, Training and Youth Affairs

[2000] AATA 607

DECISION AND REASONS FOR DECISION [2000] AATA 607

ADMINISTRATIVE APPEALS TRIBUNAL      )

No A2000/26 & A2000/27

GENERAL ADMINISTRATIVE  DIVISION       )          
           Re      JIBY JOSEPH        
  Applicant
           And    SECRETARY, DEPARTMENT OF EDUCATION, TRAINING AND  YOUTH AFFAIRS      
  Respondent

DECISION

Tribunal       Senior Member J.A. Kiosoglous MBE    

Date26 July 2000

PlaceCanberra

Decision      Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decisions under review.
  (Signed)
  J.A. KIOSOGLOUS
  (Senior Member)
CATCHWORDS
EDUCATION - AUSTUDY – Regulations – away from home rate – independent rate – "living with" considered - definition of "home" considered
Student and Youth Assistance Act 1973
AUSTUDY Regulations 74, 77
Re Tang and Secretary, Department of Employment, Education and Training (AAT 8155, 7 August 1992
Re Secretary, Department of Employment, Education, Training and Youth Affairs and
Re Galati and Director-General of Social Security (1984) 6 ALD 538
Levene v Inland Revenue Commissioners [1928] AC 217
Re Kyvelos and Director-General of Social Services (1981) 3 ALN N120
Re Dickeson and Secretary, Department of Social Security (AAT 5312, 16 August 1989)
Todd v Nicol [1957] SASR 72
Herbert v Byrne [1964] 1 All ER 882

REASONS FOR DECISION

26 July 2000    Senior Member J.A. Kiosoglous MBE   

1. This is an application by Mr Jiby Joseph (the applicant) for review of two decisions of the Social Security Appeals Tribunal (SSAT).  The first dated 24 July 1998 (A2000/26 - T2) affirmed a decision made by an authorised review officer of the respondent dated 3 June 1998 (A2000/26 - T9) which affirmed a delegate of the respondent's decision of 27 April 1998 (A2000/26 - T7) that the applicant was not eligible for AUSTUDY at the "away from home" rate from 9 March 1998.  The second dated 8 October 1999 (A2000/27 - T2) affirmed a decision of an authorised review officer of the respondent dated 20 July 1999 (A2000/27 - T9) affirming a decision of a delegate of the respondent made on or about 9 July 1999 that the applicant is not eligible for AUSTUDY at the independent (homeless) rate from 9 March 1998 to 30 June 1998.

2. The Tribunal received into evidence the documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 (A2000/26 - T1-T15) and (A2000/27 - T1-T11), together with eight exhibits, six lodged by the applicant (Exhibits A1-A6) and two lodged by the respondent (Exhibits R1-R2). In addition, the Tribunal heard evidence from the applicant, who represented himself. The respondent was represented by Mr D. O'Donovan of counsel.

3. The issues before the Tribunal are whether or not the applicant is entitled to AUSTUDY at either the independent (homeless) rate for first semester 1998; and/or the away from home rate as from 9 March 1998 for the period during which his father resided with him.
   background

4. The applicant moved to Adelaide to study at Flinders University, initially residing at Aquinas College, North Adelaide, and then moving into a two-bedroom unit on South Road, Bedford Park, in February 1998.  His name and that of one of his brothers appears on the lease (A2000/27 - T8).  Whilst it was his intention to find another student to share the accommodation, he was unable to do so, and, it being difficult to meet expenses, his father moved from Canberra to live with him in order to defray costs as from 9 March 1998.

5. He informed the Department in April 1998 that his father had moved in with him from 9 March 1998 and would stay until the applicant had completed his studies.  The delegate decided on 27 April 1998 (A2000/26 - T7) that whilst the applicant's father lived with him, he was not entitled to the away from home rate.  This decision was affirmed upon review on 3 June 1998 (A2000/26 - T9).

6. On 12 February 1999 (A2000/27 - T5) the applicant applied for the independent rate in respect of first semester.  This application was rejected by the delegate on or about 9 July 1999 and affirmed upon review on 20 July 1999 (A2000/27 - T9).
   applicant's evidence and submissions

7. The applicant gave limited oral evidence and made few submissions at hearing, seeking to rely on written submissions previously lodged with the Tribunal, as well as on the documents before it.  The Tribunal has given careful attention to all the evidence before it, both oral and documentary. 

8. In oral evidence, the applicant told the Tribunal that his father stayed until February 2000.  It was understood between them that the rent and utilities would be equally split, the applicant would physically attend to paying bills and the like, and his father would, in turn, do most of the cooking.  He stated that his father occasionally gave him money, or contributed more to the household expenses, as and when his father earned more than he did.  He told the Tribunal that his father considered that it was the son's home and not the father's.
   respondent's submissions

9. Mr O'Donovan submitted, on behalf of the respondent, that the term "not living with a parent" in Regulation 77 of the Student and Youth Assistance Act 1973 AUSTUDY Regulations (Regulation 77) sub-regulation (2) should be given its ordinary meaning and that it does not matter whose name is on the lease.

10. In respect of Regulation 74 of the Student and Youth Assistance Act 1973 AUSTUDY Regulations (Regulation 74), he submitted that a "home" is a person's residence and shelter. He also submitted that the father provided the son indirect financial support by paying half of the rent, and contributing to bills and occasionally giving the applicant money. He further submitted that the household allowed for other family type support, such as encouragement to attend and succeed at University.

11. He submitted that this case was comparable to the second period in Re Tang and Secretary, Department of Employment, Education and Training (AAT 8155, 7 August 1992).  He also submitted that he considered it unfortunate that the legislation applies in the manner in which it does in the present case, and conceded that Parliament had not intended for the legislation to "catch out" people in the applicant's position.
    discussion and findings

12. Regulation 77 sub-section (2) provides as follows:

    "(2)     A tertiary student qualifies for the away-from-home living allowance if the student is not living with a parent and it would be impractical for the student to live at his or her parents' principal home because:

    (a)of the time and distance that would be involved in travelling daily between the home and the education institution; or

    (b)       it is difficult to study there; or

    (c)the student is required by the educational institution to live-in to undertake his or her course."

1. The Tribunal notes that this is a two-pronged test, namely that the student is not living with a parent and it would be impractical for the student to live at the parent's principle home for the stated reasons.  In whatever way the unit in Bedford Park is described, the Tribunal does not consider that it in any way meets the definition "parent's principal home" and the Tribunal so finds that clearly the applicant satisfies the second limb of the sub-regulation.  In dispute is the first limb, namely, whether the applicant was "living with a parent".  The Tribunal was referred to Re Tang and Re Secretary, Department of Employment, Education, Training and Youth Affairs and Bransden (AAT 12760, 30 March 1998), both of which have dealt with this issue.  From Re Tang, the Tribunal notes the following:

   "…

   15.      Mr Tang submitted first, that although there was a difference in the legal situation before and after 2 August 1991, the economic situation was the same.  He received no benefit from sharing the unit with his father other than the benefit he would have received from sharing with a friend.  They lived as flat mates, rather than as parent and child.  The legislation should be interpreted according to its purpose, which was to distinguish between those students who received support from their parents, whether by way of cash or subsidised accommodation, and those who did not.  He received no support from his father.

   16.      He submitted further that the expressions 'home of his or her parents' and 'parents' home' indicated a legislative intention 'that the parents should own the accommodation or have sufficient rights with respect to it to provide accommodation to the student without the need for the consent of another.  At the very least, the parent should have a majority interest in the relevant property'.  He had an equal interest in the property with his father.  It was the home of each of them, and neither could be said to have an exclusive right to it, save that by mutual consent each had an exclusive right to a bedroom.  Most of the assets in the unit, such as the television, microwave oven and refrigerator, were provided by Mr Tang, so that he could be said to have had in effect a greater interest in the establishment than his father.

   17.      In principle, Mr Tang submitted, he was living in his own home, although his father's home was at the same place.

   18.      Having considered the matter, we accept the submission of Mr Misso.  In our view the meaning of the Regulations is clear, and there is no scope for a purposive interpretation.  It could be said that until 2 August 1991, Mr Tang senior was living in his son's home.  But after that date, as each of the two had an identical interest in the unit, it was the home of both of them, and Mr Tang, while living in his own home, was also living in his father's home.
   …"      

2. From Re Bransen the Tribunal notes the following:

   …

   12.      Regulation 77(2) sets out two qualifications for an "away-from-home" allowance.

   13.      The first requirement is that "the student is not living with a parent."

   14.      The term "lived with" is, in the Tribunal's view, synonymous with the term "reside with" which has been judicially defined in a number of decisions.

   15.      The Macquarie Dictionary (Second Edition) defines "live" as "to dwell or reside".

   16.      The applicant referred to decisions which considered the meaning of the term "reside", namely Hafza v Director-General of Social Security (1985) FCR 444, and Galati and Director-General of Social Security (1984) 6 ALD 538 in which a number of prior authorities were considered.

   17.      In Galati (supra) Senior Member Balmford of the AAT considered a decision of Latham CJ in Commissioner of Taxation v Miller (1946) 73 CLR 93 at 99 when she said:

   "I should have thought that there was no doubt that a man resided where he lived, and I do not think that there is any interpretation of the word 'reside' by the courts which makes it impossible to apply the ordinary meaning of the word 'reside' in the present case.  In Levene v Inland Revenue Commissioners, Viscount Cave LC said:
   '… the word "reside" is a familiar English word and is defined in the Oxford Dictionary as meaning "to dwell permanently or for a considerable time, to have one's settled or usual abode, to live in or at a particular place".  No doubt this definition must for present purposes be taken subject to any modification which may result from the terms of the Income Tax Act and Schedules; but, subject to that observation, it may be accepted as an accurate indication of the meaning of the word "reside".  In most cases there is no difficulty in determining where a man has his settled or usual abode, and if that is ascertained he is not the less resident there because from time to time he leaves it for the purpose of business or pleasure.'"
   It is well established that one person can be taken as residing in two or more places over the same period.  (Gregory v Federal Commissioner for Taxation (1937) 57 CLR 774)."

   18.      In this matter the AAT is satisfied that the respondent lives with her mother for the bulk of each week, even if for two days each week she lives elsewhere.

   19.      As the respondent "lives" with her mother, she does not satisfy the first requirement of regulation 77(2) in "not living with a parent".

   20.      Even if the AAT is wrong in this interpretation of regulation 77(2), the respondent receives a standard allowance already and she would not also be eligible to receive an "away-from-home" allowance.
   …"

3. The Tribunal notes that both of these cases are very dependent upon their facts, and as the applicant points out in his written submission (Exhibit A3), there are distinctions to be drawn on the facts between those cases and the present case.  Re Tang  is distinct in that it was concerned with Regulation 77 as it stood prior to the amendments which came into effect on 1 January 1992, and which added the phrase "is not living with a parent".  The amendment also added the word "principal" to the phrase in the second part of the test ("parent's home" became "parent's principal home").  Accordingly, the characterisation of what constitutes a "parent's home" in Re Tang has no direct bearing on this case, where the relevant test is whether or not the applicant was "living with" a parent.

4. Whilst the Tribunal appreciates the factual distinctions, it concurs with Senior Member Webster's approach to the law in Re Bransden at paragraphs 14-17, also noting the reliance therein on Senior Member Balmford's approach in Re Galati and Director-General of Social Security (1984) 6 ALD 538.

5. There is a real danger of "semantic overkill" in the present case were the Tribunal to draw the fine distinctions advocated by the applicant (see the first paragraph of the written submission dated 27 January 1999 (Exhibit A3) in particular).  "Live with" can be equated with "reside with" and as to where someone is living, the question to be relevantly asked is, "where is a person's settled or usual abode, or where are they dwelling permanently or for a considerable time?" (referencing Viscount Cave LC in Levene v Inland Revenue Commissioners [1928] AC 217).

6. Unique to this case, it could not be said that either parent had a permanent or principal home.  The applicant's father has lived something of a transient lifestyle, moving from place to place.  Nevertheless, he was "residing" or "living" at the unit in Bedford Park from March 1998 until February 2000, and the Tribunal concludes that he was "living with" the applicant.  In the Tribunal's opinion, to "live with", in the context of these Regulations, requires no legal interest in a property or any particular arrangements as regards utilities or expenses.  It simply connotes an act of residence in the same place for a period of time long enough to establish a "residence" or "usual place of abode" as that term is understood by reference to the authorities quoted in the above paragraphs.

7. Accordingly, the Tribunal is satisfied that there was enough stability from 9 March 1998 until February 2000 in the applicant's father's living arrangements such that it can be reasonably said that his "usual abode" was the unit at Bedford Park, and as a consequence, he was "living there", with the applicant.  This means that sub-regulation 77(2) is not satisfied, and the applicant is not entitled to the away from home rate with effect from 9 March 1998, and the Tribunal so finds.

8. With respect to the independent rate,  Regulation 74 relevantly provides:

   "74.     A student qualifies as independent through it being unreasonable that he or she live at home, if:

   (a)he or she cannot live at the home of either or both of his or her natural or adoptive parents:

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

   (ii)because to do so would be at serious risk to his or her physical or mental well-being due to violence, sexual abuse or other similar unreasonable circumstance; and

   (b)he or she is not receiving continuous financial or other support, directly or indirectly, from a natural or adoptive parent of the student; and

   (c)he or she is not wholly or substantially dependent on a person other than a natural or adoptive parent of the student, on a long term basis; and

   (d)he or she is not receiving a regular payment of welfare or student assistance from the Commonwealth, a State or a Territory (except AUSTUDY); and

   (e)he or she does not have a spouse who, being entitled to a regular payment from the Commonwealth, a State or a Territory, gets the payment at a higher rate because the student is his or her spouse."

9. All aspects of the Regulation must be satisfied to qualify for the independent rate.  The first issue to arise in this case is simply whether or not either of the applicant's parents have a "home" against which the Regulation could be said to apply.

1. In Re Kyvelos and Director-General of Social Services (1981) 3 ALN N120 the Tribunal commented that:

   "…

   22.      The essence of the concept of 'home' was considered by Beattie J in Geothermal Energy New Zealand Ltd v Commissioner of Inland Revenue [1979] 2 NZLR 324.  For the purposes of the Income Tax Act 1976 (NZ) a person was deemed to be resident in New Zealand 'if his home is in New Zealand'.  At 340, his Honour said:

   'The essence of the concept of "home", on the other hand, can be gleaned from the major dictionaries.  The Shorter Oxford English Dictionary defines it as: "… The place of one's dwelling and nurturing with its associations".  Chambers Twentieth Century Dictionary – "the scene of domestic life, with its emotional associations".  The Random House Dictionary of the English Language – "The place in which one's domestic affections are centred".  I therefore consider Mr Molloy was right when he claimed that for the purposes of s 241(1), "home" is where the heart is; it is the location of the axis around which, for the present, the normal course of one's life revolves.  Put another way, it is the place where the centre of gravity of one's domestic life is to be found.  As well as these dictionary definitions there is the maxim ubi uxor domus.  In the Poor Law case of R v Norwood [1867] LR 2 QB 457, Blackburn J referred to what he described as the "prima facie rule", at 459: "… a man's home is where is wife lives, and so he may be said to be resident there".'
   …

   24.      In our view, the meaning of the word 'home' in s 20(1)(a) of the Act is most accurately reflected by the Random House Dictionary definition cited by Beattie J in the abovementioned decision, namely 'The place in which one's domestic affections are centred'.  Or, as Beattie J said, 'it is the place where the centre of gravity of one's life is to be found'.  As with the question of 'residence' … the question whether a person's home remained in Australia during a period of absence does not necessarily depend upon his owning or leasing property in this country.  It is a question of fact to be determined by applying ordinary common sense … .
   …"

1. In Re Dickeson and Secretary, Department of Social Security (AAT 5312, 16 August 1989) the Tribunal set out the following consideration in relation to "home" within the various contexts in which the term has come up for judicial consideration:

   "…
   The words "home", "house", "residence" and "domicile" have all been extensively considered by the Courts, but derive their meaning only by reference to a particular subject whether it be Taxation, Family Law, Tenancy, Customs, Probate, or Social Welfare.
   In assessing the criteria of what constitutes a "home" a substantial degree of occupation is persuasive (Herbert v Byrne (1964) 1 AE 882) whereas conversely occupation by occasional visiting is not (Beck v Scholz (1953) 1 AE 814), and living away from the family home in other premises causes the family home to no longer be the principal home (Samek v Department of Social Security (1979) 9 AAR 355).  A "home" is likely to be a place where persons ordinarily eat, morning and night, and where they sleep, and in the case of adults have the characteristics of permanency (Todd v Nichol (1957) 1 SASR 72).  It is a concept in nature and "it is the place where the centre of gravity of one's domestic life is to be found" (Geothermal Energy N.Z. Ltd v Commissioner of Inland Revenue (1979) 2 NZLR 324).  Where one chooses to live is relevant (Hyland v Hyland 18 FLR 461 and a reference to a "home" requires an affinity to its location and usage by the occupier (Inland Revenue Commissioners v Lysaght (1928) AE 575 and Koitaki Para Rubber Estates Ltd v Federal Commissioner of Taxation 64 CLR 241.  A home need not be a structure of four walls and a roof, but may be constituted by a caravan (Helsham v Repatriation Commission (N85/492, Decision No 2741) or a campervan (Buchanan v Repatriation Commission, V89/50, decision 14 July 1989) or a yacht (Re Koitaki Para Rubber Estates Ltd ibid).
   I think that this structure is the home of the Applicant and is therefore his principal home within the meaning of the Act.  It has all the above elements which I find constitute a "home".  The Applicant sleeps nightly at these premises and prepares and consumes most meals at these premises.  It is fitted and furnished, however modest, for his needs and comfort.  It is the place that he regards as his home.
   I do not accept that this man lives in the shed by choice, that is, something chosen from a consideration of a number of differing options, and alternative places of accommodation.  Indeed I believe that his choices are probably limited.  However, in this application there was no evidence from the Applicant on affidavit or otherwise.  One might speculate what his intentions are by living in this shed and it may be explained by his attachment to, and affinity with the land.  I cannot discern however from the evidence heard or observation of the photographs that this accommodation is in any way temporary.
   …"

1. The Tribunal has also considered several other judicial definitions of "home" and considers that the statement in Todd v Nicol [1957] SASR 72 at 86 per Mayo J is worth setting out more fully herein:

   "…
   A home is a place where the residents ordinarily eat morning and night, and where they usually sleep.  With adults it may have the characteristic of permanency.  A home is, or used to be, regarded as a place of refuge and rest.  With modern conveniences, and under the present conditions of life, these aspects may perhaps be regarded as undergoing change.  References to "sharing a home" can be taken to import an intention by the parties to live together under conditions of mutual indulgence and forbearance, of propriety, decorum and friendliness, and, if necessary, of resignation and toleration, as might be reasonably expected in a home.
   …"

1. In Herbert v Byrne [1964] 1 All ER 882 at 887, Salmon LJ stated (inter alia):

   "… Home" is a somewhat nebulous concept, incapable of precise definition.  Nor would it be possible to obtain any measure of agreement between reasonable men as to the essential constituents of a real home.  For example, uxorious persons might consider that a real home cannot exist without a wife and children; hardened bachelors might take an entirely opposite view.  Some people might hold that there can be no real home without television; others that there can be none with it.  It would be easy to multiply instances.  In my view, if the evidence establishes, as it does here, a substantial degree of regular personal occupation by the tenant of an essentially residential nature, it would be difficult, if not impossible for a court to hold that he was not in occupation of the premises as a home without the meaning of the word as used by this court in Skinner v Geary [1931] 2 KB 546 …"

2. As this Tribunal understands the decision in Re Tang, a distinction was apparently drawn between that period in which Mr Tang senior lived with his son and another person in the unit with that unit being legally in the name of the son and the other person, and that period after 2 August 1991 in that case where the lease was in both Mr Tang senior's and Mr Tang junior's names.  The applicant in this case sought to place great reliance on the fact that in the second period in Re Tang there was an equity of interest, and right to both father and son in that case to exclusive occupation, whereas in this present application, the lease remained in the name of the applicant.  The father did not have exclusive possession in the same way as in Re Tang as a result of this, and had no legal occupancy rights, at least in so far as the lease is concerned.

3. This Tribunal considers that there are clear factual differences between this case and Re Tang.  The limited reasoning stated in Re Tang is not such, in this Tribunal's opinion, to allow this Tribunal to use it to support the proposition that at least an equal legal interest is required between two people for it to be considered both of their homes, and that in the absence of equal legal interest in a property, it is only to be considered the home of the person with the majority legal interest.  This approach would clearly be at odds with the approach taken to what a "home" is, according to the numerous authorities the Tribunal has cited above.

4. In this case, the applicant's father lived at the unit for approximately two consecutive years.  He slept there each and every night, ate almost all of his meals there, and was responsible for at least half of the bills, and one half of the rent.  Whilst there are family elsewhere, the father and the applicant benefited from having each other in the household in the sense of there being some family aspects to the arrangement.  In particular, this is evident from the support given by the father to the applicant in relation to his studies, as well as the support the applicant gave his father with his health problems during the relevant period.  There is sufficient continuity of ongoing personal occupation, enjoyment and benefit derived and centring of the domestic and practical  affairs of the applicant's father for the two years he was living in the Bedford Park unit, that this Tribunal considers, and so finds that it must be said to be his "home" for that period of time.

5. Accordingly, Regulation 74 is not applicable, as sub-regulation (a) cannot be satisfied.  For the period in question, the applicant could and did live at the home of one of his natural parents.  The Tribunal so finds as a result, that the applicant is not entitled to payment at the independent rate for the period 9 March 1998 to 30 June 1998.

6. By way of conclusion, as it expressed at the hearing of this matter, the Tribunal would concur with Mr O'Donovan that this is an unfortunate case where the applicant has been "caught out" by the legislation, when it could be properly said that the intention of the legislation was not to "catch out" people like the applicant.  Whilst this Tribunal is sympathetic in that regard, as a matter of law, it must affirm the decisions under review.
   decision

7. For the reasons given, and pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decisions under review.

I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member J.A. Kiosoglous

Signed:
           ............……...................................................
  Personal Assistant

Date/s of Hearing  16 June 2000
Date of Decision  26 July 2000
Counsel for the Applicant        In person
Solicitor for the Applicant         -
Counsel for the Respondent    Mr D. O'Donovan
Solicitor for the Respondent    AGS