McNamara and Department of Family and Community Services

[2002] AATA 362

DECISION AND REASONS FOR DECISION [2002] AATA 362

ADMINISTRATIVE APPEALS TRIBUNAL      )           No Q2001/1146
  )
GENERAL ADMINISTRATIVE DIVISION          )          
           Re      DANIEL McNAMARA        
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES                   
  Respondent

DECISION

Tribunal       Mr R G Kenny, Member    

Date17 May 2002

PlaceBrisbane

Decision      The Tribunal affirms the decision under review.         
  ..............................................
  R G Kenny
  Member
CATCHWORDS
SOCIAL SECURITY – youth allowance - independent rate – whether unreasonable to live at home – whether self supporting

Social Security Act 1991 ss 1067A(1), (9), (10)

Re Dainty and Minister for Immigration and Ethnic Affairs (1987) 6 AAR 259
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 41 FCR 82

REASONS FOR DECISION

17 May 2002 Mr R G Kenny, Member                

Background

1. From January 1999 until October 2001, Daniel McNamara (the applicant) was in receipt of youth allowance which is payable under the Social Security Act 1991 (the Act). It was paid at the independent rate on the basis that he was not able to live at the home of his parents. A delegate of Centrelink, on 29 October 2001, determined that youth allowance was no longer payable to the applicant because he had moved back to live with his parents. That decision was affirmed by an authorised review officer on 7 November 2001 and, in turn, by the Social Security Appeals Tribunal on 26 November 2001. On 19 December 2001, the applicant sought review of that decision by the Administrative Appeals Tribunal (the Tribunal).

Appearances

1. The matter was heard on 15 April 2002 and 10 May 2002. The applicant attended the hearing but was not represented. Ms J D'wyer appeared on behalf of the Secretary, Department of Family and Community Services (the respondent).

2. At the hearing, the following material was taken into evidence:

   Fom the respondent:

   Exhibit R1 – documents prepared in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the T documents: T1 – T35);

   Exhibit R2 – Centrelink Guidelines for payment of youth allowance;

   Exhibit R3 - a Centrelink letter dated 2 May 2002;

   Exhibits R4 to R8 – letters, dated 2 May 2002, from R Watts; and

   Exhibit R9 – a letter, dated 15 April 2002, from P Tipney.

   From the applicant:

   Exhibit A1 – a letter, undated, from Robert Watts;

   Exhibit A2 – a letter, dated 14 April 2001, from the applicant's mother, Wendy McNamara;

   Exhibit A3 – a copy of a group certificate for the period from 4 May 1999 until 30 June 1999;

   Exhibit A4 - a copy of the applicant's group certificate for the period from 10 July 1999 until 12 November 1999;

   Exhibit A5 – a payroll advice sheet from Knowledge Books and Software for 18 February 2000;

   Exhibit A6 - a payroll advice sheet from Knowledge Books and Software for 126 November 2000; and

   Exhibit A7 - a copy of a group certificate for the period 12 October 1998 until 28 February 1999.

Issues and Legislation

1. The issue in this matter is whether or not, as at the date of the decision under review ie 29 October 2001, the applicant can be regarded as being independent for the purposes of section 1067A of the Act. Sub-section 1067A(1) of that provision reads:

   "1067A(1) This section applies to determine whether a person is to be regarded as independent for the purposes of this Part and Part 2.11. A person is not to be regarded as independent except as provided by this section."

1. The section sets out several situations when a person may be regarded as being independent and relevant to the determination of this matter are sub-sections 1067A(9) and (10) which read:

   "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."

1. Centrelink has published Guidelines to assist those who make decisions under the Act. In relation to being self-supporting, Guideline 3.2.5 reads:

   "A young person is considered independent for YOUTH ALLOWANCE purposes if they have supported themselves through paid work consisting of:

• employment of at least 30 hours per week(that is, full-time employment) for at least 18 months during the preceding 2 years; or

• employment of at least 15 hours per week (that is, part-time employment) for at least 2 years sine the person last left secondary school; or

• employment within an 18 month period with cumulative earnings totalling at least 75% of the appropriate maximum Commonwealth Training Award rate."

Applicant's evidence and submissions

1. The applicant said that he had not been not living with his parents until October 2001. Because of difficulties in his relationships with his parents and his siblings, he had been living with a friend at Zillmere. During 2001, he was charged with having committed several offences and had been admitted to bail in the Brisbane Magistrates Court. A condition of his being granted bail was that he was to reside with his parents. His father was in court when the bail order was made and agreed to the terms of the order. Other conditions of his bail were that he must maintain an 8 pm curfew and report to relevant authorities twice per week. The applicant said that some of the charges had been dealt with and had resulted in the imposition of community service orders. He has been carrying out these obligations which will continue for some months. He said that the remainder of the outstanding charges were to be dealt with in June this year. He also said that he had been forced out of the family home on or about 7 May 2002 because of the strained relationship with his parents.

2. The applicant said that he had been in difficult financial circumstances since the cessation of payment of his youth allowance. Until 7 May 2002, he had obtained some food from his parents and was allowed to occupy a bed-room but he obtained no financial support from them. He utilises the services of organisations such as Lifeline to renew his clothing needs. He has not been in employment since September 2001 and one of the factors in not getting work is the community service commitments that he must complete. Another such factor is lack of transport options. Since leaving the family home in early May 2002, he slept in a shelter for one night and at a friend's home and in an abandoned house on other nights.

3. At the first day of hearing, the applicant said that he had been in various forms of employment since leaving school in mid 1998. He said that these included some 4 months with Red Rooster, some 6 months with Woolworths, some 9 months with Knowledge Books and Software and some 4 months with AME Products. He believed that he had earned in the order of $15,000 to $16,000 during those periods which totalled more than 18 months. At the resumed hearing, he conceded that he had not been employed for a total of 18 months.
   Respondent's case

4. Ms Dwyer referred to the background of the applicant's claim for youth allowance. He had been considered for the standard rate which is payable on the basis of the level of parental income. She said that the applicant's parents had refused to supply Centrelink with their respective income details although she had been advised that it was in the order of $80,000 per year. She submitted that this income level would preclude payments to the applicant and that the "cut off" figure, above which youth allowance could not be paid, in the applicant's case was in the order of $68,000. However, she submitted that no assessment could be made in the absence of accurate income details.

5. Ms Dwyer submitted that, while the applicant was actually living at the home of his parents, he did not meet the terms of sub-section 1067A(9) of the Act and, therefore, could not be paid the independent rate of youth allowance on the basis that it was "unreasonable to live at home". She advised that, after leaving the family home, the applicant had made a further claim for payment and had been in receipt of youth allowance at the independent rate since 7 May 2002.

6. In relation to sub-section 1067A(10) of the Act, Ms Dwyer submitted that the Guidelines should be followed and that it would be sufficient if the applicant had worked for 18 months, not necessarily continuously, and had earned at least $14,000 in the employment period.

Consideration and Findings on Material Facts

1. It is not disputed, and the Tribunal finds, that the applicant was living at the home of his parents from October 2001 until around 7 May 2002. The only basis upon which the independent rate of youth allowance can be paid is if at least one of the categories in section 1067A of the Act is satisfied.

2. The category relating to it being unreasonable to live at the home of the parents is provided for in sub-sections 1067A(9) of the Act. That provision commences with the requirement that the person "cannot live" at the home of his parents. That requirement was not met at the time of the decision under review. While the Tribunal accepts that he experienced difficulties living at the home of his parents, he did not satisfy the terms of the provision while he continued to reside there. That is the case even though he was living there in accordance with the terms of a bail order with which he was bound to comply. This means that sub-section 1067A(9) of the Act is not met.

3. In relation to independent status based on self-employment, the Tribunal is not bound to apply the Guidelines of the kind published by Centrelink (see Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409) but may do so and, indeed, will usually apply the guidelines unless there are cogent reasons in a particular case for not doing so: see Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 639-645; Re Dainty and Minister for Immigration and Ethnic Affairs (1987) 6 AAR 259 at 267; and Minister for Immigration, Local Government and Ethnic Affairs v Roberts(1993) 41 FCR 82 at 86. Ms Dwyer submitted that the Guidelines should be applied by the Tribunal in the present case and the Tribunal acceded to that submission, there being no material before it to indicate that they should not be applied.

4. Despite his submissions on the first hearing day, the applicant conceded at the resumed hearing that he has not worked for the 18 months required as a minimum by the Guidelines. On the basis of the evidence contained in exhibits R 4 to R 9, the Tribunal is reasonably satisfied that this concession was properly made and the Tribunal is reasonably satisfied that he was not in employment for the 18 month period set down in the Guidelines. This means that sub-section 1067A(10) of the Act is not met.

Decision

1. The Tribunal affirms the decision under review.

   I certify that the preceding 17 paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Member

   Signed:         .....................................................................................
     Associate

   Date of Decision  17 May 2002
   Dates of Hearing  15 April 2002 and 10 May 2002
   Applicant  Appeared in Person
   Solicitor for the Respondent    Ms J Dwyer
     Advocacy and Admin Law Team, Centrelink