Marsh and Secretary, Department of Family and Community Services

[2004] AATA 362

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 362

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2003/626

GENERAL ADMINISTRATIVE  DIVISION		)
Re		JODIE MARSH

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Professor McCabe, Senior Member, and Mr Way, Member

Date7 April 2004

PlaceBrisbane

Decision The Tribunal affirms the decision under review. 

..........……..Sgd.......................

Senior Member

CATCHWORDS

SOCIAL SECURITY – pensions, benefits and allowances – applicant applied for youth allowance at independent rate – whether applicant is independent – whether applicant is living with guardians – definition of guardian – decision affirmed

Social Security Act 1991

Wain and Secretary, Department of Social Security (1987) AAT No 3617

Gerda Technau and Secretary, Department of Social Security (1987) AAT No 3922

Semmens and Secretary, Department of Family and Community Services [2004] AATA 187 

REASONS FOR DECISION

7 April 2004 Senior Member McCabe and Member Way       

Introduction

1.      Jodie Marsh is the applicant in these proceedings. She lives with her grandparents. She applied for Youth Allowance at the independent rate. The respondent denied her application, saying she was receiving continuous support from her grandparents. The Secretary says Jodie’s grandparents are acting as her long-term guardians.

2.      Jodie appealed the decision to the Social Security Appeals Tribunal (the SSAT). She was unsuccessful. She has now approached this Tribunal.

The material before the Tribunal

3. The Tribunal was provided with the documents required under s 37 of the Administrative Appeals Tribunal Act 1975. Jodie’s counsel also tendered a letter from the Nudgee Beach Environmental Education Centre explaining that Jodie is undertaking a trainee-ship at the Centre while she finishes school. The respondent tendered a copy of the claim for Family Tax Benefit filed by Jodie’s grandparents, Mr and Mrs Marsh.

4.      Jodie and her grandmother, Estelle Marsh, gave evidence at the hearing. Jodie’s grandfather, Edward Marsh, also attended the hearing to support Jodie.

5.      Mr Alford of counsel represented Jodie at the hearing. He was instructed by Mr Stannard of Welfare Rights, Inc. Mr Howard represented the Secretary.

The facts

6.      Mr and Mrs Marsh are Jodie’s paternal grandparents. Her parents apparently split up many years ago. She lived with her mother until she was about eight years old. Her mother sent her to live with Mr and Mrs Marsh briefly, and she ended up staying a year. She then went to live with her father and his new partner. We are satisfied she left her father and returned to the care of her grandparents with good reason after about a year. It was originally intended she would remain with Mr and Mrs Marsh for a short period but she has resided with her grandparents ever since. She is now 17 years old.

7.      Mr and Mrs Marsh have never obtained formal custody of Jodie. She simply lives with them. It seems clear she lives with them by choice. Her father on at least one occasion turned up at her school and demanded that she come home with him. The police were called on that occasion and told Mrs Marsh they could not stop her son from taking Jodie. They explained it would be necessary to apply to the court if Mrs Marsh wished to obtain custody. Jodie’s father did not persist with his claim on that occasion, but Mrs Marsh says the incident confirmed she had no formal power over Jodie. She said she did not feel able to resist the child’s parents involving themselves in Jodie’s upbringing if they wished to do so. 

8.      Mrs Marsh said Jodie’s parents saw their daughter occasionally. She said her son was particularly assertive on occasions. Mrs Marsh and Jodie described a number of incidents where the parents injected themselves into Jodie’s life: her mother arranged for Jodie to have a piercing on her 16^th birthday, and she would routinely criticise Mrs Marsh’s taste in teenage clothes. On another occasion Jodie was given a mobile phone. She ran up a large bill. Mrs Marsh says she and her husband did not accept responsibility for the bill, but handed it to Jodie’s parents.

9.      Despite these difficulties, Jodie appears to have grown into a normal and well-adjusted 17 year-old. She appears to have a good relationship with her grandparents. Jodie’s evidence (and that of Mrs Marsh) confirms they offer a supportive and loving environment. They provide for her physical needs, although she also has part-time employment that funds clothes and a social life. They offer guidance and discipline, although Mr and Mrs Marsh say they have no formal control over Jodie because they do not have the legal status of parents or guardians.

10.     Jodie and her grandparents have no plans to change their domestic arrangements in the near future. Jodie suggested she might commence study and seek a full time job that would permit her to move out of her home and into an apartment, either on her own or with friends. But that is speculation at this point. She might also continue residing with her grandparents while she studied. Mrs Marsh agreed she and her husband would support Jodie indefinitely if she chose to study at university.

11.     Mrs Marsh says the arrangement with Jodie has gone on for a number of years, but it was never intended to be more than a temporary state of affairs. She says she does not regard herself as Jodie’s parent or her guardian. She says she sees herself and her husband as foster parents. They even joined a foster parents’ association to obtain help and support. She emphasised she and her husband had no legal status – they have never approached the courts to take custody or become guardians of Jodie.

12.     We have read the findings of fact of the SSAT at paragraph 14 of its decision. We are satisfied that the evidence justifies us adopting those findings as our own.

The legislation

13. A person who applies for Youth Allowance at the independent rate must satisfy the criteria set out in s1067A of the Social Security Act 1991. Section 1067A(9) deals with the situation where it is unreasonable for the young person to live at home. It imposes three requirements: firstly, the applicant must no longer be able to reside with her parents. Secondly, the applicant must not be:

“…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”.

Thirdly, the applicant must not be receiving other forms of income support.

14. No question arises as to the third issue. This application succeeds or fails depending on the interpretation of the second requirement, contained in s1067A(9)(b). Are Mr and Mrs Marsh acting as Jodie’s guardians on a long-term basis?

15.     The term guardian is undefined in the Act for this purpose. Mr Alford, for the applicant, says the term should be given its technical legal meaning. He says Mr and Mrs Marsh cannot be described as guardians because there has never been a formal order made to that effect.

16.     We think that is an unacceptably narrow view of the expression in the context of the Act – especially since the provision refers to a person acting as a guardian, which presumably means fulfilling a like role. While Mrs Marsh does not describe it in these terms, she and her husband have clearly stepped into a parenting role with respect to Jodie. She lives with them, and they look after her. They are more than her carers. They provide a level of emotional and material support and direction one expects of parents and guardians. While it is true Jodie’s parents occasionally assert themselves, their interventions are clearly not welcome. Jodie wants to be with her grandparents.

17.     Mr Alford referred us to a number of authorities, including Wain and Secretary, Department of Social Security (1987) AAT No 3617 and Gerda Technau and Secretary, Department of Social Security (1987) AAT No 3922. Both of those cases concerned claims by persons caring for adults who were ill. The carer in each case was required to establish he or she was a guardian of the person they were caring for. The Tribunal in both cases said the carer could only be considered to be the guardian if the applicant was formally declared to be a guardian by the appropriate authorities.

18.     We think these cases can be distinguished. In both cases, the carer was looking after an incompetent adult. We are talking about a child in this case and her relationship with the individuals standing in place of her parents. We think this case is similar to the recent decision of the Tribunal in Semmens and Secretary, Department of Family and Community Services [2004] AATA 187. In Semmens, Professor Davis found a youth who was living with his aunt and uncle was not independent in circumstances like these. Indeed, it seems the relationship between Jodie and her grandparents may be even closer than that considered in Semmens.

19.     We are also satisfied Mr and Mrs Marsh have acted as guardians on a long term basis. Jodie has lived with them for over seven years. While Jodie hopes to move out on her own at some point in the future, it is unclear when that will occur. There is no suggestion she will be moving back into the homes of either parent. She is with her grandparents indefinitely. If her circumstances (or those of her grandparents) change, she is of course free to make a further application for assistance.

20.     There is one further matter. Mr Alford made submissions in relation to the effect of the Convention on the Rights of the Child. He argued the Tribunal should interpret the legislation with an eye to the objective (identified in the Convention) of reinforcing the independence of the child as she grows to maturity. He says the Tribunal must prefer a construction that will promote Jodie’s best interests.

21.     We do not think the Convention is of any assistance in this case. The existence of a formal guardianship order – a mere formality – should not be determinative of independence. The Act intends that the decision-maker look to the practical reality of the claimant’s circumstances. That is entirely proper.

22. Mr Alford also drew our attention to the effect of s 1067A(8). That provision says a person is independent if they are in the care of the state. Mr Alford says Mr and Mrs Marsh are in the same position as foster parents and ought to be treated accordingly. Mrs Marsh emphasised that is how she saw herself.

23. We disagree. Mr and Mrs Marsh cannot satisfy the requirements of s 1067A(8). They are not foster parents. They are doing what good grandparents do: they are looking after their grandchildren.

Conclusion

24.     Mr and Mrs Marsh are good grandparents. They have stepped into the breach to look after Jodie. They have willingly taken on the real costs and burdens involved in raising a teenager. Jodie is clearly grateful to them, as she should be. She is not independent, and cannot qualify for the Youth Allowance at the independent rate in her current circumstances.  The Tribunal affirms the decision under review.

I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member McCabe and Member Way

Signed:         ................................Sgd............................................
  Associate: Thomas Ritchie

Date/s of Hearing: 1 April 2004
Date of Decision: 7 April 2004
The Applicant was represented by Mr Stannard and Mr Alford of counsel
The Respondent was represented by Mr Howard, a departmental advocate