Kilner and Secretary, Department of Education, Employment and Workplace Relations
[2008] AATA 73
•25 January 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 73
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/4662
GENERAL ADMINISTRATIVE DIVISION ) Re RACHEL KILNER Applicant
And
SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Deputy President S D Hotop Date25 January 2008
PlacePerth
Decision The Tribunal affirms the decision under review.
..............................................
Deputy President
CATCHWORDS
SOCIAL SECURITY – youth allowance – applicant claimed youth allowance – applicant qualified for youth allowance – applicant not independent – combined income of applicant’s parents exceeds allowable limit – applicant’s youth allowance rate would be nil – youth allowance not payable to applicant – decision under review affirmed
Social Security Act 1991 (Cth), s 547(1), s 556, s 1067 and s 1067A
REASONS FOR DECISION
25 January 2008 Deputy President S D Hotop Introduction
1. Rachel Kilner (“the applicant”) made a claim for youth allowance under the Social Security Act 1991 (Cth) (“the Act”) on 16 March 2007. She had, on 26 February 2007, commenced full-time study in the Bachelor of Arts degree course at The University of Western Australia.
2. On 21 May 2007 a Centrelink officer rejected the applicant’s claim for youth allowance on the ground that she was not regarded as “independent” and her parents’ income was “above the allowable limit” for the payment of youth allowance.
3. That decision was affirmed by a Centrelink Authorised Review Officer on 31 July 2007 and by the Social Security Appeals Tribunal on 28 August 2007.
4. The applicant has appealed to this Tribunal, claiming that the circumstances of her case are exceptional and that, because of those circumstances, youth allowance should be paid to her at the independent rate.
5. At the request of the applicant, and with the consent of the respondent, the Tribunal directed, pursuant to s 34J of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”), that this matter be determined “on the papers” without holding a hearing.
The Tribunal’s Determination
6. For the reasons which follow, the Tribunal has determined, in accordance with the relevant provisions of the Act, that youth allowance is not payable to the applicant pursuant to her claim of 16 March 2007.
The Material Before the Tribunal
7. The material before the Tribunal, on the basis of which it has determined this matter, comprised the following:
· the documents (T1-T36, pp 1-143) lodged by the respondent in accordance with s 37 of the AAT Act;
· the respondent’s Statement of Facts and Contentions (including attachments) filed on 21 December 2007;
· copy of a letter (undated) from the applicant to the Hon Julia Gillard, Minister for Education, Employment and Workplace Relations, filed on 7 December 2007;
· written submission by William Kilner and Maree Kilner (the applicant’s parents), on behalf of the applicant, filed on 11 January 2008.
The Facts
8. The following relevant facts, which are not in dispute, are found by the Tribunal on the basis of the material before it.
9. The applicant completed her secondary education (Year 12) at the end of 2005. At that time she was living with her parents in the town of Busselton (which, the Tribunal notes, is located approximately 230 kilometres south of Perth).
10. The applicant ceased to live with her parents in Busselton in January 2006.
11. In 2006, the applicant lived in Austria as a Rotary Exchange Student sponsored by the Geographe Bay Rotary Club. A condition of that sponsorship was that the applicant would not engage in paid work during the period of her student exchange placement in Austria.
12. Following her return to Australia the applicant lived with her parents in Busselton until 18 February 2007.
13. On 26 February 2007 the applicant commenced full-time study in the Bachelor of Arts degree course at The University of Western Australia in Perth. She was then residing at St Catherine’s College, a student residential college close to the university campus.
14. Since February 2007 the applicant has engaged in part-time work for 19-30 hours per week and has earned approximately $15.00 per hour.
15. The applicant was 18 years of age when she made the claim for youth allowance on 16 March 2007.
The Law
16. Division 1 of Pt 2.11 of the Act contains the provisions (ss 540-546) dealing with qualification for youth allowance.
17. Division 2 of Pt 2.11 of the Act contains provisions setting out situations in which youth allowance is not payable, including s 547(1) which relevantly provides:
“… a youth allowance is not payable to a person if the person’s youth allowance rate would be nil”.
18. Division 5 of Pt 2.11 of the Act is headed, “Rate of youth allowance”, and includes s 556 which provides:
“… the rate of a person’s youth allowance is to be worked out in accordance with the Youth Allowance Rate Calculator in section 1067G”.
19. Part 3.5 of the Act contains the provisions relating to the Youth Allowance Rate Calculator. Section 1067(1) contains various definitions for the purposes of Pt 3.5 including:
“‘independent’ has the meaning given by section 1067A.”
Section 1067A sets out the circumstances in which a person is regarded as “independent” for the purposes of, inter alia, Pt 3.5. Section 1067A(1) provides:
“…
A person is not to be regarded as independent except as provided by this section.”
20. The circumstances in which a person is to be regarded as “independent”, as provided in s 1067A, include the following:
“1067A(9) A person is independent if:
(a) the person cannot live at the home of either or both of his or her parents:
(i) because of extreme family breakdown or other similar exceptional circumstances; or
(ii) because it would be unreasonable to expect the person to do so as there would be a serious risk to his or her physical or mental well-being due to violence, sexual abuse or other similar unreasonable circumstances; or
(iii) because the parent or parents are unable to provide the person with a suitable home owing to a lack of stable accommodation; and
(b) the person is not receiving continuous support, whether directly or indirectly and whether financial or otherwise, from a parent of the person or from another person who is acting as the person’s guardian on a long-term basis; and
(c) the person is not receiving, on a continuous basis, any payments in the nature of income support (other than a social security benefit) from the Commonwealth, a State or a Territory.
1067A(10) A person is independent if the person has supported himself or herself through paid work consisting of:
(a) full-time employment of at least 30 hours per week for at least 18 months during any period of 2 years; or
(b) part-time employment of at least 15 hours per week for at least 2 years since the person last left secondary school; or
(c) a period or periods of employment over an 18 month period since the person last left secondary school, earning the person at least the equivalent of 75% of the maximum Commonwealth training award payment that applied at the start of the period of the employment.
1067A(11)A person is independent if the person:
(a) is at least 18 years old; and
(b)has had full-time employment of at least 30 hours per week for a period of at least 12 months, or for periods that total at least 12 months; and
(c) does not live at the home of either or both of his or her parents; and
(d) in the Secretary’s opinion, is specially disadvantaged with respect to education or employment; and
(e)is not receiving financial support, whether directly or indirectly, from a parent of the person or from another person who is acting as the person’s guardian on a long-term basis.”
The Applicant’s Submissions
21. In their written submissions filed with the Tribunal, the applicant and her parents appeared to concede that the applicant does not fall within any of the circumstances, as provided in s 1067A of the Act, in which a person is to be regarded as “independent” for the purposes of the payment of youth allowance, but submitted that there are, in her case, “cogent reasons” why the relevant provisions of the Act should not be applied so that youth allowance may be paid to her at the independent rate.
22. In her abovementioned letter to the Hon Julia Gillard, the applicant wrote:
“When I was 17, I made a decision to pursue my dream of representing Australia as a Rotary Exchange student. However, if I had any idea of the emotional and economic toll this choice would exact on myself and my family I would have followed a far different pathway.
After high school all of my friends dutifully began full time employment in low-paying, unskilled positions but I wanted to follow an alternate pathway to the rest by seizing the opportunity to be a Rotary Ambassador of Australia. I knew that not making the requisite $18,000 in my gap year would be a severe disadvantage when it came to starting university life but to be honest I thought that I could study and work just enough to cover my expenses. It was a very immature and naïve idea but I was young and anything seemed possible. And is it really so immature to follow a personal goal and not conform to what the majority of people are doing? The fact that I regret my dogged pursuit of an alternate pathway reflects harshly on the opportunities available to regional students.
Why did I not simply take another gap year on my return to Australia? I often ask myself the same question but it is a decision I do not regret. My exchange was a giant learning curve, one that I couldn’t have ever expected. I lived with abusive host families, experienced crippling loneliness and struggled with the death of a fellow exchange student and good friend. The maturity and independence I developed while I was overseas meant that I felt motivated and prepared to pursue tertiary education. However my exchange also led me to believe that I could do things alone and this couldn’t be far from the truth. I came to realize that government support is critical to the survival of students, and I struggled without it. In the middle of the academic year I had a mental breakdown from the sheer stress that I was under, I was forced to seek extensions in all my subjects. How I made it to the end of the year is a mystery even to me but my motivation to pursue a tertiary education was seriously diminished and I finished up studying only part-time so that I make enough money to afford my accommodation.
I understand why the legislation is so rigid and I accept that public funds need to be protected but surely there must be some better way of having a system that allows for a ‘cogent reason’ to change how the law is applied in some cases. Unfortunately, I believe that I am one of these cases and my tertiary studies will have to be put on hold as I will have to work full time next year if I do not receive Youth Allowance as my parents will be overseas. They will be unable to help me financially as they have this year. Even though I want to improve my employment prospects by gaining a tertiary education I am prevented from pursuing this goal by inflexible legislation. This legislation does not take into account the possibility of high school leavers participating in community projects like rotary exchange. Taking a year off from my tertiary education may seem to be inconsequential but I was always under the impression that the government’s role was to support young adults pursuing higher education and thus enriching the Australian workforce.
I want it to remain clear that I don’t resent anyone for the fact that I did not receive youth allowance, I accept that my own decisions have led me to the place I am today. I only wish that more leeway was given so that today’s youth could pursue diverse pathways after high school and not have to suffer for their decisions.”
23. In their abovementioned written submissions, the applicant’s parents stated:
“As parents of Rachel Kilner, we acknowledge that our daughter has not satisfied the criteria for the independent rate of Youth Allowance and our combined income exceeds the allowable limit regardless of our own personal circumstances. However, considering the section on page 13 of the T Documents that refers to ‘a cogent reason not to do so’, we request a compassionate review of her situation without a referral to the legislation or contentions.
We are contending that cogent means a convincing reason and in Rachel’s particular case there is a convincing reason to not enforce the governing legislation.
Rachel has been a high achieving student throughout her school life and our fear is that the demoralizing impact the Rotary Exchange has had on her, combined with the financial issues she has confronted on her return along with this protracted application for Youth Allowance, will deter her from continuing her studies.
…
Making a compassionate decision in this case would not open up the ‘flood gates’ to Rotary Exchange students disadvantaged by their gap year overseas and requesting Youth Allowance. On the contrary Rachel’s predicament is a unique situation that warrants special consideration.
During her year of Exchange Rachel was placed in a situation where she was exposed to abusive behaviour. It was a most unpleasant and difficult experience for her and eventually Rotary was forced to review its arrangement with Austria with regards to placements of students. The year also held tragedy for Rachel when one of her fellow Exchange Students, whom she was seconds away from meeting to celebrate her 18th birthday, was hit and killed by a train.
The events of the Exchange year were far from positive and had a cathartic impact upon Rachel. She returned to Australia and was adamant that she needed to attend university and focus on building a meaningful future for herself. She stated she felt if she couldn’t study and keep herself occupied academically then she feared she would suffer from depression. During last year whilst attending university Rachel did, in fact, suffer from depression associated with the events that occurred in Austria and she did receive treatment. Academically she enjoyed university and did very well during her first year receiving ‘distinctions’; she has set new goals for herself and now has plans to undertake a course in physiotherapy at Curtin University this year. This will only eventuate though if she is successful in securing Youth Allowance for herself in this review.
…
We are not challenging the legislation guiding applications for Youth Allowance. We are presenting a cogent reason for the legislation not to be enforced in guiding Rachel’s application. We are asking for a review and assessment on compassionate grounds for the following cogent reasons:
1) We are asking for consideration of the demoralizing impact that the Rotary Exchange Program had on Rachel.
2) We are asking for consideration of the fact that Rachel did receive a TER of over 95% and that she does have an academic approach to life if given the opportunity.
3) We are asking that consideration be given to the fact that she is from the country and given that only 17% of regional students access Tertiary Education, in Rachel’s case, it will be financial difficulties that will cause her to leave university.
4) We are asking for consideration of Rachel’s mental well-being; the stress associated with this review as well as past events plus the uncertainty of her future is taking its toll.
Once again, we are contending that cogent means a convincing reason and in Rachel’s particular case we believe the above letter provides a convincing reason to not enforce the governing legislation and the contentions and instead review with compassion. Rachel is a young person who wants to follow a meaningful path and aim in life – she has a plan – to be an educated Australian. Rachel needs financial support. Our fear, at the moment, is that if she is unsuccessful in this application we know she will definitely leave university and she may be deterred from continuing her studies. It will be a loss that at this point in time could be averted. We appeal to you to please show compassion in your judgement!” (original emphasis)
Analysis and Findings
24. There is no dispute that the applicant, when she claimed youth allowance on 16 March 2007, was qualified for youth allowance in accordance with the provisions in Div 1 of Pt 2.11 of the Act, and the Tribunal, on the basis of the material before it, so finds.
25. The only matter in dispute is whether youth allowance is payable to the applicant pursuant to her claim.
26. The Tribunal notes, at the outset, that, although it may properly choose not to apply the Centrelink Guide to Social Security Law (which is merely a policy document and does not have the force of law) in a particular case where there are cogent reasons for doing so, it is bound to apply the relevant provisions of the Act and has no discretion not to do so.
27. The abovementioned submissions are, accordingly, based on a fundamentally flawed proposition, namely, that the Tribunal has the discretionary power to determine that the applicant is to be regarded as “independent”, for the purposes of Pt 3.5 of the Act, by reason of the special circumstances of her case, notwithstanding that her circumstances do not fall within any of the circumstances in which a person is to be regarded as “independent” for the purposes of Pt 3.5, as set out in s 1067A of the Act.
28. Section 1067A(1) of the Act states unequivocally that a person is “not to be regarded as independent except as provided in [that] section”. Subsections (2)-(12) of s 1067A specify the circumstances in which a person is regarded as “independent”.
29. There can be no doubt that, on the material for the Tribunal, the applicant has not, at any material time, fallen within the circumstances specified in subss (2)-(8) and (12) of s 1067A of the Act, and the Tribunal so finds.
30. The Tribunal is, furthermore, satisfied, on the basis of the material before it, that paras (a) and (b) of s 1067A(9) of the Act have not, at any material time, been satisfied in the applicant’s case, and the Tribunal so finds.
31. Likewise, the Tribunal is satisfied, on the basis of the material before it, that neither para (a), nor para (b), nor para (c) of s 1067A(10) of the Act has, at any material time, been satisfied in the applicant’s case, and the Tribunal so finds.
32. Finally, the Tribunal is satisfied, on the basis of the material before it, that paras (b) and (c) of s 1067A(11) have not, at any material time, been satisfied in the applicant’s case, and the Tribunal so finds. The Tribunal is, moreover, of the opinion that the applicant has not, at any material time, been “specially disadvantaged with respect to education or employment”, within the meaning of para (d) of s 1067A(11), and, accordingly, the Tribunal finds that that paragraph has not, at any material time, been satisfied in the applicant’s case.
Conclusion
33. The Tribunal concludes, therefore, that, pursuant to s 1067A of the Act, the applicant, at all material times, is not to be regarded as “independent” for the purposes of Pt 3.5 of the Act.
34. That being the case, it is common ground that, having regard to the income of the applicant’s parents in the relevant period, the applicant’s youth allowance rate, worked out in accordance with the Youth Allowance Rate Calculator in s 1067G of the Act, would be nil, and the Tribunal, on the basis of the material before it, so finds.
35. It follows, pursuant to s 547(1) of the Act, that youth allowance, at all material times, has not been, and is not presently, payable to the applicant.
Decision
36. For the above reasons, the Tribunal affirms the decision under review.
I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop.
Signed: ......................[Sgd M Rosair]..............................
AssociateDate of Hearing 18January 2008
Date of Decision 25 January 2008
Representative for the Applicant Mr William KilnerRepresentative for the Respondents Mr Aaron Holt
Legal Services Branch
Centrelink
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