Meschino and Secretary, Department of Family and Community Services

[2005] AATA 580

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 580

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S2004/315

GENERAL ADMINISTRATIVE  DIVISION		)
Re		JAKE MESCHINO

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Senior Member L Hastwell

Date17 June 2005

PlaceAdelaide

Decision The Tribunal affirms the decision under review.

(Signed)

L HASTWELL
  (Senior Member)

CATCHWORDS

SOCIAL SECURITY – pensions, benefits and allowances – Youth Allowance – independent rate – extreme family breakdown – continuous support – suitable home – decision affirmed

Social Security Act 1991 s 1067A

REASONS FOR DECISION

17 June 2005   Senior Member L Hastwell      

1.      Jake Meschino (the applicant) made a claim for payment of Youth Allowance at the independent rate on 31 October 2003.  That claim was rejected by a decision of Centrelink on 26 November 2003.  The applicant sought a review of that decision, which was affirmed by an Authorised Review Officer on 15 January 2004.  The applicant appealed, and on 6 August 2004 the Social Security Appeals Tribunal (the SSAT) affirmed the decision under review. 

legislation

2. The relevant legislation is found in s 1067A of the Social Security Act 1991 (the Act). Section 1067A(1) of the Act provides:

“(1)This section applies to determine whether a person is to be regarded as independent for the purposes of this Part and Parts 2.11, 3.4A, 3.4B and 3.7. A person is not to be regarded as independent except as provided by this section.”

3. Section 1067A(9) of the Act is the only provision that has any potential application in this case, and provides as follows:

“(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.”

issues for consideration

4.      The central issue for the Tribunal to determine is whether the applicant is unable to live at the home of either of his parents because either:

·it would be unreasonable to expect him to do so as there would be a serious risk to his physical or mental wellbeing due to violence, sexual abuse or other similar unreasonable circumstances; or

·his parents are unable to provide him with a suitable home owing to a lack of stable accommodation; or

·he is not receiving continuous support either directly or indirectly whether financial or otherwise from a parent or from another person who is acting as his guardian on a long term basis.

discussion of the evidence 

5.      The applicant was represented by his father, Mr Carlo Meschino (the father), and gave evidence on his own behalf.  The father also gave evidence.  The respondent (the Department) was represented by Mr Andrew Goldie, a Departmental advocate.  The Department also called Ms Lorraine Colquist, an Authorised Review Officer, as a witness.

6.      The T documents were received into evidence as Exhibit A1.  They included, inter alia, a Social Work Assessment dated 3 November 2003 [T10/27-28], a letter from Family and Youth Services dated 1 December 2003, which included an income and expenditure statement prepared from information supplied by the father, as well as various reports with respect to the applicant’s intellectual abilities and his progress at school, including reports from the Women’s and Children’s Hospital and reports of DEET, dating back to when he was a child.  The Tribunal had regard to the content of these reports which confirmed that the applicant did have some intellectual and developmental difficulties.

the evidence

7.      The applicant was a cheerful and straightforward witness.  He left school at the end of 2004, having completed Year 12.  Since leaving school he has been employed at Woolworths and Hungry Jack’s for a while.  However, because he failed to attend his places of employment as required he had lost both jobs.  At the time of the hearing, he had commenced work on a casual basis for an equipment hiring company.

8.      The applicant complained that he has “no money” and that his car is currently defected.  He lives between the father’s home and a friend’s home, riding his father’s bike between the two.  He has currently lost his driver’s licence due to traffic violations.  During the day he helps his father around the house, or he helps around his friend’s house, depending on where he is situated.  He and his father live alone together when he is at his father’s house.

9.      The applicant said that he enjoys “mucking around with cars”, and that he had sold his friends a few cars.  He expressed concern about needing funds to get his car back on the road.  He also indicated that he had very substantial traffic fines that had accrued over a period of time, amounting to some thousands of dollars.  He had been living with his father now since he was 16 years of age.  After his parents separated, he had initially lived with his mother, and then between both parents’ homes, but because of conflict with his mother he no longer spent time at her home.  He does see her occasionally.

10.     The applicant was examined about issues of conflict between him and the father.  He expressed the view that they did not have problems in their relationship.  He said that his father goes to the beach and seems happy, but that sometimes he appears “down”.  He did not perceive that there was much friction between them.  He described them as being good friends.  He agreed that their relationship had improved since he was spending less time at home.

11.     The applicant said that his father helps him out, and that he can rely on him.  He looks after him, and there is “not much more to it”.  He said that he did not have enough money, and that he wanted more clothes and his car running.  His main interests he expressed to be going out and having a good time, having a few drinks and going to the city.  He did not express any particular ambitions for the future.  He pays all his Youth Allowance to the father, who manages his money and gives him $30.00 per fortnight.  He does not pay anything to Yvette, who runs the other house where he enjoys spending time.

12.     The father gave evidence that he is the recipient of a Disability Support Pension, and he suffers from migraines.  He described himself as being “lumbered” with the applicant at 16 years of age, after the marital breakdown.  Things had improved between them since the applicant started spending several nights a week away from home.  He described having a lot of trouble with the applicant while he was at school, and that the applicant also found himself in trouble with the police on occasions.  The applicant has an inability to follow instructions because of his disability, and cars are one of his biggest problems.  He was concerned to see the applicant in full-time employment and independent.

13.     The father said that there are ongoing discussions as to which job network provider will be appropriate for the applicant, given his intellectual difficulties.  The father confirmed that he manages the applicant’s money for him, giving him a small allowance and taking some for household expenses.  He said that the woman who owns the other house where the applicant spends time appears happy for him to spend a few nights there.  He understood that the applicant assisted Yvette around the house, and with her children.

14.     The father made it quite clear that he would not force the applicant to move out of his home.  He was concerned as to what would happen to him because of his perception that his son could not run his own life.  He expressed anxiety about the applicant’s future.  He emphasised the financial difficulties he found himself in.

15.     Ms Lorraine Colquist, an Authorised Review Officer, gave evidence.  She said that she relied on the information in the Social Work Assessment dated 3 November 2003, which included an interview with the applicant and his father, and a summary of the situation in making her decision.  She could not recall whether there were any medical reports available to her.  She said that the Family Court Order dated 24 January 2000 [Supplementary T documents pages 74-77] did not affect her decision.  To her the issue was whether a person could live at home with a parent.  She said that the fact that there were other financial constraints in the household were not, in her opinion, grounds for granting the applicant Youth Allowance at the independent rate.  She did not see friction between parents and teenage children as being a basis for Youth Allowance.  She said that the applicant did not give permission for Centrelink to speak to his mother, and so they had considered the situation with his father only.

submissions

16.     The father’s submission was that there must be some scope in the legislation to qualify his son for Youth Allowance at the independent rate.  He pointed out that he received no support from his mother, and it would be reasonable that he be given Youth Allowance at the higher rate.  He also placed some emphasis on the Family Court Order that provided for a shared residence arrangement.  He pointed out that the mother was not fulfilling her obligations under the Order.

17. The Department submitted that a lot of the content of the applicant’s and the father’s evidence was not relevant to s 1067A(9) of the Act, and that separation alone does not constitute an extreme family breakdown. It submitted further that considerations about the applicant’s mother were not directly relevant at all as there was evidence that there was a parent that the applicant could live with, namely the father.

consideration

18.     The applicant was straightforward in giving his evidence.  He was truthful about his financial difficulties.  He seemed happy with his life, and felt that he was supported by the father, and that he had a home to live in, although he did acknowledge that there was less tension between him and the father when he spent some time away, which he does regularly at a friend’s place.

19.     The father presented as angry towards the system, and struggling financially.  In that regard, the Tribunal noted that he is frustrated and angry with lack of support for his son both from his former wife, and from the Department.  The father has been a committed parent who has for many years endeavoured to manage his son’s disability, which has caused difficulties at school and with the police.  His son appears to have little idea as to how to manage his finances, and expects the father to be there to support him when needed.  The father remains committed to his son’s wellbeing, and has his best interests at heart.  Nevertheless, he is frustrated by the situation of financial difficulty that his son finds himself in.

20.     The Tribunal makes the following findings:

·The applicant is currently in receipt of Youth Allowance and is now 18 years of age.

·The applicant resides with the father, Mr Carlo Meschino, in the family home, where he has lived all his life.  He regards this as his home, but he also spends some time staying at a friend’s home in Lockleys.

·His father manages his money for him, and gives him an allowance per fortnight. His father is anxious and concerned about the applicant’s future, and is concerned about the financial difficulties that the applicant has found himself in because of fines, and also because he now has a defected vehicle.

·The applicant is putting some effort into job seeking, but has made it quite clear that he is not particularly interested in anything other than a desk job.  He presented as having unrealistic expectations as to his future.

·The applicant currently has casual work, and has had casual work on and off since leaving school.

·The father is in receipt of a Disability Support Pension, and he is experiencing financial difficulties as is evidenced by his income/expenditure statement.  The household income is supplemented by the earnings of the applicant from time to time.

·The applicant has learning disabilities, which created difficulties with him at school, and possibly in the workforce.  The applicant has some contact with his mother, but could not live with her.  She has a new partner, and when he was living there, there was conflict with her.

·The applicant has confidence in his relationship with the father and feels that he is there to help him.  The father is a caring and supportive parent who would not evict the applicant from the family home, but is worried about the applicant’s financial position and his future.

·There has been some conflict between the applicant and the father, possibly related to the difficulties that the applicant continually finds himself in, and the father’s need to assist him with these difficulties.  This includes trouble with the police, losing employment and not managing his finances to pay significant fines.

·The applicant is able to continue to live at the home of one of his parents, namely his father, and he is not at risk of any form of abuse in continuing to live there.

application of the law

21. Based on the above findings, the Tribunal cannot find that there is any application of s 1067A(9) of the Act in the circumstances. The applicant is able to live at his father’s home, and there is no risk to his physical or mental wellbeing in residing there. Although there is conflict in their relationship at times, it is not the sort of conflict referred to in s 1067A(9)(a)(ii) of the Act. His father clearly cares for him, and is willing to continue to provide him with a home, guidance and support. In the circumstances the applicant does not qualify as being independent within the meaning of s 1067A(9) of the Act.

22.     The Tribunal must have regard to the provisions of the legislation in determining the application before it.  The legislation with respect to Youth Allowance at the independent rate is quite specific.  The applicant can only qualify if he cannot live at the home of either or both of his parents.  The Tribunal’s view of all the evidence is that the applicant does live at the home of the father, but elects to spend some nights per week away from the father’s home.  Nevertheless, it was made manifestly clear by both the applicant and the father that he can continue to live at his father’s home.  The father can provide him with a suitable home, is doing so, and remains willing to do so.

23.     In the circumstances, the Tribunal affirms that decision under review, and this means that the application is not successful.

I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member L Hastwell

Signed:         ...........(J Coulthard).....................................
  Associate

Date of Hearing  29 April 2005
Date of Decision  17 June 2005
Counsel for the Applicant         In person with Mr C Meschino (father)
Solicitor for the Applicant          -
Counsel for the Respondent     Mr A Goldie
Solicitor for the Respondent     Centrelink Legal Services Branch