Mik and Secretary, Department of Education, Employment and Workplace Relations
[2008] AATA 857
•25 September 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 857
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/0703
GENERAL ADMINISTRATIVE DIVISION
) Re Yuliya Mik Applicant
And
Secretary, Department of Education, Employment and Workplace Relations
Respondent
DECISION
Tribunal Mr G L McDonald, Deputy President Date25 September 2008
PlaceMelbourne
Decision The Tribunal sets aside the decision under review and substitutes a decision for the period commencing 31 July 2007. The applicant qualifies under s 1067A(9) of the Social Security Act 1991 to be paid youth allowance at the unreasonable to live at home rate.
..............................................
Deputy President
CATCHWORDS
SOCIAL SECURITY – Social Security Act – youth allowance – unreasonable to live at home – whether it was unreasonable for the applicant to live at home due to her chronic fatigue – whether the impact of returning home was a similar circumstance – whether the applicant received continuous financial support from her mother – whether the applicant’s scholarship was government income support – decision under review set aside
Administrative Appeals Tribunal Act 1975 s 37
Social Security Act 1991 s 1067A(9)
Simakovic and Secretary, Department of Family and Community Services [2003] AATA 812
REASONS FOR DECISION
25 September 2008 Mr G L McDonald, Deputy President The Application
1. The applicant is appealing against a decision of the Social Security Appeals Tribunal affirming a decision to reject her claim for the unreasonable to live at home rate of youth allowance.
The Hearing
2. The Tribunal has before it the documents filed for the purposes of s 37 of the Administrative Appeals Tribunal Act 1975 (the T documents). The applicant was self-represented. The respondent was represented by Mr Stephen Lucas.
The Background
3. The applicant applied for youth allowance as an independent person under the unreasonable to live at home criteria in April 2005. The applicant claimed it was unreasonable for her to live at home because her relationship with her step-father and two younger step-siblings negatively impacted on her illness, chronic fatigue syndrome. The applicant was subsequently granted youth allowance as Centrelink considered there had been an extreme family breakdown.
4. The applicant is aged 23 years. She is an Arts/Law student. The applicant’s father died in 2000. Her mother began to live with the applicant’s stepfather when she was five years old. The mother and the applicant’s stepfather have two young children who, from the evidence before the Tribunal leave it satisfied, contribute to there being a noisy home environment. The applicant gave evidence to the Social Security Appeals Tribunal and to this Tribunal that one of her sisters suffers obsessive compulsive disorder and the younger one has temper tantrums. The applicant does not get on with her stepfather. She described their relationship as being constituted by shouting matches and not by conversation or parental guidance. Both the applicant’s mother and stepfather work, her mother as a music teacher and the stepfather is self employed.
5. During the applicant’s last school year she stayed with her grandparents in order to have time and suitable circumstances in which to study. In 2003 the applicant contracted glandular fever and consequently became ill with chronic fatigue. A departmental social worker reported in 2005 on “... long-standing and on‑going difficulties within the family … It seems that the on-going and hihg (sic) level nature of the conflict has largely compounded and exacerbated [the applicant’s] health issues….”[1]
[1] T documents, T9, page 38.
6. The applicant ceased full-time study and began part-time study in the first semester of 2007. Her youth allowance was consequently cancelled.
7. The applicant again applied for youth allowance on 13 June 2007. On 31 July 2007 she requested Centrelink to consider her claim under the unreasonable to live at home criteria, again citing the negative impact of her relationship with her stepfather and step-siblings on her illness. The applicant’s claim was rejected.
The Legislation
8. In order to be considered independent under the unreasonable to live at home criteria, the applicant must meet one of either s 1067A(9)(a)(i), (ii), or (iii) of the Social Security Act 1991 (the Act) and must meet s 1067A(9)(b) and (c).
9. Section 1067A(9) provides as follows:
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.
The Evidence
10. The applicant tendered doctors’ reports in support of her claim. Dr Oldmeadow’s report, dated 19 June 2008, stated the applicant had developed chronic fatigue syndrome in late 2003 after a bout of glandular fever.[2] The report classifies the applicant’s illness as “active up to the present time.” The report goes on to state that the illness limits the applicant’s “capacity to engage fully in her many areas of active interest and at times exacerbates to the extent that virtually no useful function is possible over an extended period.” The report further states that on one occasion in 2005 a significant exacerbation of her symptoms had been precipitated by a family disruption. Dr Oldmeadow states that after that event it became evident the applicant’s home situation “would not be compatible with ongoing improvement in the activity of her illness.” The report identifies excessive pressure or stress or physical or cognitive activity as triggers for exacerbation for those in whom the illness remains active. The doctor emphasises the applicant’s home situation is not compatible with the satisfactory progress and stability with her illness and that moving home to be with her family would inevitably cause a serious downturn in the applicant’s health. Dr Oldmeadow states the reason behind his advice is that emotional stress and distress remains “the most potent in precipitating exacerbations at any time.” Dr Oldmeadow has worked with over 4,000 patients with chronic fatigue over 15 years.
[2] Exhibit A1.
11. The applicant’s treating doctor, Dr Rosenblum, also wrote a report for the Tribunal, also dated 19 June 2008.[3] Dr Rosenblum agrees the applicant’s home situation affects her illness:
Yuliya’s symptoms are significantly exacerbated by stress. Yuliya’s family situation is a highly stressful environment due to ongoing relationship problems with her step-father as well as her two younger sisters. The stresses associated with living at home with her family have had a significant detrimental impact on Yuliya’s medical condition, and in my opinion … significantly exacerbate her condition …
Yuliya’s family situation remains dysfunctional and extremely stressful, and therefore the advice to reside away from home remains current. The stresses associated living at home continue to pose a serious risk to Yuliya’s health and thus her physical and emotional well-being. In my opinion these stresses pose a serious risk to her physical and emotional well-being as they are a significant factor in the current state of her medical condition.
[3] Exhibit A2.
12. The respondent relied on the Guide to the Social Security Law.
The Submissions
extreme family breakdown
13. The respondent submitted there was not the extreme family breakdown in the applicant’s family as is required by s 1067A(9)(a)(i). The respondent observed the applicant’s mother was happy to have the applicant return home if the applicant wanted to return. The applicant stated she could return home if she needed to but preferred not to. The applicant said she had a good relationship with her mother, that she saw her mother one to three times each week and that her mother helped her financially when she was able to do so. The applicant agreed with the respondent’s submission that there was not an extreme family breakdown and said she had never relied on this criterion to make her claim for the unreasonable to live at home rate of youth allowance. She said she did not know why her first claim for youth allowance in 2005 had been assessed under this criterion.
14. The respondent submitted that ongoing conflict alone is not sufficient to constitute an extreme family breakdown.
serious risk to physical or mental well-being or similar circumstances
15. The respondent submitted Dr Rosenblum’s report could not be relied upon, that it made repeated broad sweeping statements and did not provide detail about how residing at home impacts the applicant’s well-being. Additionally, the respondent submitted Dr Oldmeadow was not qualified to give his opinion on the applicant’s home situation.
16. The respondent submitted there would not be a serious risk to the applicant’s physical or mental well-being if she returned home. Mr Lucas said there was no violence, sexual abuse or other similar unreasonable circumstances to keep her away from the family home. The respondent contended the applicant’s home situation is not similar to one involving violence or sexual abuse. The applicant submitted that the violence and sexual abuse referred to in s 1067A(9)(a)(ii) is not an exhaustive list. The applicant relied on the ‘similar circumstances’ referred to in the sub-section. She contended it would be unreasonable for her to return home because of the severe negative impact it would have on her physical well-being, not the unreasonableness of the particular aspects of her home situation. She submitted that although there is no violence or sexual abuse at home, the impact to her health would be similar, thus satisfying the ‘similar circumstances’ alternative in the sub‑section. The applicant submitted the Guide to the Social Security Law does not require some sort of abuse. She submitted that it was the situation at home plus her illness that made it unreasonable for her to live at home and that this was not inconsistent with the guide. She maintained that the impact, result, and outcome on her physical well-being would be similar to the impact from violence or sexual abuse and that satisfies the class in s 1067A(9)(a)(ii). She emphasised that the negative impact of her returning home should be accorded the same weight as the impact caused by violence or sexual abuse.
17. The respondent submitted that a similar impact was not enough, that the legislation envisaged an operating external factor. The respondent submitted that because the legislation specifically referred to violence and sexual abuse, the legislation thus established a class. Therefore, the applicant needs to establish a circumstance within that class and nature, and that an unhappy situation at home was not enough. The respondent submitted that Parliament was careful to draw narrow legislation in this instance and that if the Tribunal adopted a wider interpretation the floodgates would open and children who simply do not get along with their parents would qualify under this criterion. The applicant in return submitted that Parliament would not have intended to restrict the sub-section only to people who were being abused.
18. Further, the respondent submitted the applicant’s condition has been exacerbated despite her not living at home. The respondent submitted the evidence was inconclusive whether the illness would worsen if the applicant moved home. Mr Lucas pointed to the fact the applicant has been ill while she has been living away from home. The respondent contended that there is no ‘risk’ if her condition is already being exacerbated outside the home. The applicant confirmed that while living away from home that she had had periods of days, weeks, and months where her illness has been exacerbated causing her to become bed-bound for those periods. The applicant explained that her illness did not “magically disappear” when she moved out of home. She said her illness was unlikely to disappear in the near future, even if she remained living away from home. The applicant stated she expects to have the illness for a number of years, that no cause can be determined, but that she can determine the triggers and the factors that help and/or hinder her illness. The applicant agreed that moving out of home has not made her illness worse or improved it. She likened the illness to having a broken leg – if you stay still and don’t do anything you won’t make it worse, but if you dance on the broken leg you would exacerbate the injury and make it worse. The applicant explained that before she developed chronic fatigue she was able to deal with the situation at home. However, since she became ill stressful situations have a negative impact on her health and exacerbate the illness.
19. The applicant in her final submissions submitted that the respondent could not dispute the evidence, that is, the reports from her doctors, if there was no evidence to the contrary. She contended that the clear medical evidence, particularly from Dr Oldmeadow, should be accepted by the Tribunal without evidence to the contrary.
lack of stable accommodation
20. This criterion was not in dispute and it was accepted by both parties that the applicant’s mother and stepfather could provide her with a suitable home and stable accommodation if she returned home.
continuous support, financial or otherwise, on a long-term basis
21. The respondent submitted the applicant was receiving continuous support from her mother. The applicant confirmed her mother assists her with the payment of telephone bills and medical bills, education expenses and sometimes rent. The respondent pointed to the definition of ‘continuous support’ in the Guide to the Social Security Law:
Continuous support must have regularity or stability that enables the young person to have a reasonable expectation that it will be received. Consideration should be given to the nature and intention of the support, that is, whether it is continuous rather than emergency in nature and intent, and whether it shows on-going concern for the young person.
Example: Continuous support may include regular payments, regardless of the amount, payments for school fees, regular provision of food, meals and subsidised accommodation.[4]
[4] s 3.2.5.30 Guide to the Social Security Law.
The respondent submitted the applicant has a reasonable expectation of a stability of support when she cannot earn income and that that support is ongoing, rather than a one-off. The respondent contended the applicant’s mother has shown an ongoing concern for her daughter and therefore the applicant cannot be determined ‘independent’.
22. The respondent pointed to T26, a statement by the applicant’s mother where she lists the doctors the applicant has consulted. The applicant’s mother states the amount of money she has spent on doctors and medications for her daughter was “huge.”[5] The applicant agreed that she and her mother had spent a huge amount of money to help her illness. She said that the medications she had been prescribed over the years had cost a lot, some had been subsidised by Medicare and some had not. The applicant said her mother had not always helped and that she had spent a lot of her own money on doctors and medications.
[5] T documents, T26, page 111.
23. The respondent pointed to the university amenities fees the applicant’s mother paid which was $250 per semester. The applicant said her mother had paid those fees when she (the applicant) was unable to do so. If the applicant had the money to cover the fees then she would pay it.
24. The respondent submitted the applicant’s mother had paid for her daughter’s university textbooks. The applicant confirmed that at times her mother has paid for her textbooks if she (the applicant) has not been working. The applicant emphasised that this did not happen regularly, that it did not happen every semester, and that her mother would only pay for the books when the applicant could not work due to her illness.
25. The respondent pointed to her mother paying the applicant’s mobile telephone bills. The applicant confirmed this happened sometimes, but again, only if she could not work due to her illness.
26. The respondent raised the fact the applicant’s mother had helped fund some overseas study trips. The trips were part of the applicant’s university course. The applicant confirmed she had recently studied in Malaysia. She funded her trip with a grant and a loan from her university and had some savings. She estimated her mother gave her about $500. The applicant also studied in Italy for five months. She funded that trip with a loan and grant from university, a HECS loan, her savings, and youth allowance. She estimated her mother gave her $1000 for that trip.
27. The respondent submitted this case was similar to that in Simakovic.[6] In that case the Tribunal decided that it was not unreasonable for the applicant to live at home as he was being financially supported by his father. The applicant purchased a house. His father was a guarantor on the loan used to purchase the house. The applicant and his father opened a joint bank account and loan repayments were made from this account. The applicant’s father provided the deposit for the purchase of the house and paid all of the expenses associated with the purchase. The applicant made the first loan repayment but his father made the next three repayments as the bank was threatening legal action. The Tribunal consequently decided the applicant was in receipt of continuous support from his father. The Tribunal stated that as guarantor of the loan the applicant’s father had an obligation to meet the repayments if his son was in default. He had helped repay the loan when his son had been in default and there was no evidence he would not continue to do so if his son defaulted in the future.
[6] Simakovic and Secretary, Department of Family and Community Services [2003] AATA 812. In that case the applicant claimed it was unreasonable for him to live at home due to his relationship with his father.
28. The applicant submitted that Simakovic was not relevant to her case. She submitted she did not have a guarantor and has never had a guarantor on her lease. The applicant contended Simakovic should be distinguished on the facts, as there was no medical situation in that case.
29. The applicant maintained she did not receive continuous financial support from her mother. The applicant emphasised the financial support she received from her mother was purely on a needs basis and was qualified by her mother’s low income. The applicant submitted her mother did not have the ability to pay her rent every week or buy food or petrol for her on a regular basis. She said that ‘continuous support’ in the Act meant financial support that was unbroken or without cessation. However, this was contrasted with her situation where she only received maternal financial support when she was unable to work due to her illness. She submitted her mother could not afford to provide her with continuous financial support, that her mother did not have the financial means to do so. The applicant submitted her financial support was very broken and with persisting cessation. Her medical expenses were irregular and sporadic, some expenses were covered by Medicare and others were not. The applicant emphasised her mother supported her only when she could not earn an income due to her illness and that this did not qualify as continuous support.
30. Additionally, the applicant submitted that ‘emotional support’ should not be read into the Act. She confirmed her mother visited her when she was ill but these visits were limited to about 15 minutes because her mother had other school aged children to take care of at home. The applicant submitted the fact that her mother was conscientious should not be relevant to her independence, that visits from her mother did not put petrol in her car or food on her table. The applicant maintained that emotional support should not qualify, that if it did qualify then anyone with an ongoing relationship with at least one parent would be disqualified. The applicant submitted that the policy behind the legislation was not concerned with emotional support and whether a person was being provided with emotional support had nothing to do with their independence.
continuous income support from the commonwealth, a state or a territory
31. While the respondent did not address this sub-section in its Statement of Facts and Contentions, it become known just prior to the hearing and further discussed at the hearing that the applicant had been in receipt of a Commonwealth scholarship at the relevant time.
32. The applicant submitted the scholarship should not be deemed ‘income’ for the purposes of the Act. The applicant explained that she did not apply for this particular scholarship but had received it after applying for other scholarships through her university. As this issue was revealed just prior to entering the hearing, the applicant did not have immediate access to the scholarship documentation. The applicant recalled the scholarship was named the ‘Commonwealth Education Cost Scholarship’. She received approximately $2,000 per semester for two semesters (being the whole year) in 2007. The applicant explained that she did not automatically qualify for the scholarship, that she had to qualify under certain criteria and that she was re-assessed every semester, thus there was no guarantee she would receive the money each semester and therefore it was not ‘continuous’. She did not qualify for the scholarship when she became a part-time student. The applicant further submitted that the material she received with the scholarship said the payment was not to be treated as income for tax purposes.
33. The respondent submitted that if the applicant had received the scholarship for two semesters in 2007 it would be continuous income. The respondent relied on the Guide to the Social Security Law, which relevantly provides:
Income support is defined as payments received directly or indirectly by the young person intended to meet, or to assist in meeting, their general living costs regardless of whether it is adequate for this purpose. Such payments can be considered to be continuing where they are received on a regular basis and the young person has a reasonable expectation that they will be available for a reasonable period of time.
Example: Provision of board and lodgings on a long term basis would be regarded as income support.[7]
[7] s 3.2.5.30 Guide to the Social Security Law.
The respondent submitted that the Guide to the Social Security Law should be considered if there is no cogent reason not to do so.
The Tribunal’s Consideration
34. For the sake of thoroughness, the Tribunal has sought a definition of chronic fatigue syndrome. Black’s Medical Dictionary defines chronic fatigue syndrome as a condition characterised by “severe, disabling fatigue and a range of symptoms including pain in muscles and bones, headaches, poor sleep, disturbed moods and impaired concentration.”[8] The Tribunal accepts chronic fatigue is an illness with, as yet, no known cause or cure.
[8] 40th edition, edited by Gordon Macpherson.
35. The Tribunal is satisfied the applicant does not satisfy the criterion of s 1067A(9)(a)(i). The applicant does not rely on the extreme family breakdown category. The applicant says she has a good relationship with her mother despite the unpleasant relationship she has with her stepfather. The applicant gave evidence that she has not spoken with her stepfather for about 10 years, however has had arguments with him during these years. She said she had not argued with her stepfather in the last year. The applicant conceded that the relationship may minimally improve in the future but there would not be a parental relationship. The Tribunal is satisfied the applicant’s family situation does not fulfil the requirements as envisaged by this sub-section. There is not an extreme family breakdown or other similar circumstance. The Act conceives a breakdown in the family relationship caused by extreme conflict within the family and where it is beyond reasonable expectation for the young person to live at home.
36. However, the Tribunal is satisfied it is unreasonable for the applicant to live at home because there is a serious risk to her physical well-being due to unreasonable circumstances in accordance with s 1067A(a)(ii). The Tribunal finds the exhibits provide irrefutable support for the applicant’s contentions. Dr Oldmeadow’s report should not be disregarded without evidence to the contrary. The report clearly states the applicant’s illness is exacerbated by stressful situations. He points to a family disruption in 2005 that led to a significant exacerbation of the applicant’s illness. This incident made it clear the applicant would need to remove herself from the family home to try to prevent further similar exacerbations. While the applicant did concede she has suffered exacerbations since moving out of home, the Tribunal finds this is likely due to the nature of her illness, that she has ups and downs, and that her illness will not be cured by moving out of home, or indeed, by taking any other measure. Chronic fatigue has no known cure. The applicant says she knows what triggers the exacerbations of her illness and other measures that can improve it. It is clear from the doctors’ reports and the applicant’s evidence that a significant trigger to the exacerbations of her illness are stressful situations. While the applicant will inevitably suffer many stressful situations in her life, the Tribunal finds it reasonable for the applicant to take steps to prevent at least one stressful situation from affecting her illness, one step being to remove herself from the family home. The Tribunal is therefore satisfied that the applicant would suffer serious risk to her physical health if she lived at home.
37. The Tribunal accepts that the serious risk to the applicant’s physical health is not due to violence or sexual abuse. However, legislation enacted to provide benefits should not be read in such a way as to defeat the purpose intended by Parliament. Contrary to the submission on behalf of the respondent, the Tribunal finds the legislation is not restricted to violence or sexual abuse, it allows the serious risk to be due to other similar unreasonable circumstances. The question here is whether the similar unreasonable circumstance refers to the cause of the risk, or as the applicant contended, the impact of the risk. The Tribunal accepts that the consequence for her arising for the unreasonable circumstances she faces is similar to the impact of violence or sexual abuse. The impact is caused by the unreasonable circumstance. Thus, if the Tribunal finds the impact on the applicant’s health is similar to the impact caused by violence or sexual abuse, the serious risk is due to a similar unreasonable circumstance.
38. The respondent contended that an unhappy home situation is not similar to a home where she would be subjected to a violence or sexual abuse. The Tribunal agrees with that argument. However, the respondent’s contention must be seen in light of the applicant’s illness. The applicant gave evidence that she could handle the stressful home situation before she became ill but since she has developed chronic fatigue the stressful situation significantly adversely impacts on her illness. Thus, the Tribunal is satisfied that in the applicant’s case, because of her illness, the stressful home situation produces a similar impact on her health as violence or sexual abuse may impact on a person without chronic fatigue.
39. The Tribunal does not agree with the respondent’s submission that such a finding this would open the floodgates to children who simply do not get along with their parents or one of their parents. The Tribunal makes it clear that the applicant’s home situation is a risk to her physical health because of her illness. If the applicant did not have chronic fatigue, the Tribunal would expect her to be able to cope with the stressful situation at home. The Tribunal notes it is not unusual for children and parents to have difficulties in their relationship. The Tribunal emphasises the applicant’s situation is different to those situations where the young person does not have chronic fatigue syndrome or a similar illness.
40. The Tribunal is satisfied the applicant’s mother and stepfather are able to provide the applicant with a suitable home. Thus, the applicant does not satisfy s 1067A(9)(a)(iii).
41. The Tribunal is satisfied the applicant is not receiving continuous, direct or indirect, financial or non-financial, support from her mother on a long-term basis in accordance with s 1067A(9)(b). Although it is clear the applicant’s mother provides financial support to her daughter, the Tribunal finds the support is not continuous or regular. The applicant gave evidence she has spent much of her own income on doctors and medication. The applicant gave evidence she pays her own rent and bills when she is able to work, that her mother only helps out when she is unable to work due to her illness. The applicant contended the support she receives from her mother is sporadic and not continuous. The Tribunal accepts the applicant’s contention. The support provided by the applicant’s mother is limited due to her mother’s low income and the fact she has other children to support. The Tribunal accepts the money provided for the applicant’s overseas study trips were gifts, in one circumstance an early birthday or Christmas gift, and that it does not constitute continuous financial support for the purposes of the Act. It is clear the applicant mainly supports herself, working when she can and also through Centrelink payments and loans. Accordingly, a lack of finances that would enable an affected person avoid an unreasonable circumstance must constitute a basic reason for a payment being made under the Act. The case of Simakovic is not relevant here, the facts are clearly distinguishable.
42. The Tribunal agrees with the applicant’s contention that ‘emotional support’ should not be read into the legislation. Having her mother visit her when she is ill should not impact the applicant’s status as an independent person. While emotional abuse may result in a finding in an applicant’s favour under s 1067A(9)(a)(ii) of the Act, the fact that emotional support is given where other unrelated unreasonable circumstances are found to exist, does not act to lessen the consequences of that finding of unreasonable circumstance. The Act, after all, is concerned with the provision of financial support.
43. The Tribunal is also satisfied the applicant did not receive, on a continuous basis, payments in the nature of income support from the Commonwealth or the State of Victoria in accordance with s 1067A(9)(c). The Tribunal is satisfied the applicant did not receive scholarship funds on a continuous basis, that the applicant did not have a reasonable expectation that the scholarship would be available to her each semester. The applicant gave evidence that she did not apply for the scholarship and once she received the scholarship she had to satisfy certain criteria each semester in order to receive it again. The applicant contended there was no guarantee she would be able to satisfy the criteria and receive the scholarship for a new semester. She gave evidence she did not qualify for the scholarship when she became a part-time student. The applicant became a part-time student because she was struggling to study full-time while suffering chronic fatigue. The nature of the applicant’s illness means she cannot predict when she will be bed-bound for days or weeks or when or if she will have a reasonable amount of energy. Thus, if her illness were to take a significant downturn, the consequence may be a change from full-time to part-time study or to cease study altogether. This unforeseeable consequence would thus disqualify her from a further grant of the scholarship. This seems to have been the case here. Thus, the applicant did not have a reasonable expectation of receiving the scholarship each semester due to the nature of her unpredictable illness and the consequences coming from an exacerbation of her illness.
44. The Tribunal is additionally satisfied the scholarship is not income support. While there is no specific stated purpose nor a requirement to spend the payment on anything particular, the Tribunal looks to the name of the scholarship for its intended purpose. The scholarship is the ‘Commonwealth Education Cost Scholarship’. Therefore, the Tribunal takes it the scholarship is for education costs and not to meet general living costs despite there being no requirement that the applicant spend it thus so.
The Tribunal’s Determination
45. The Tribunal sets aside the decision under review and substitutes a decision for the period commencing 31 July 2007. The applicant qualifies under s 1067A(9) of the Act to be paid youth allowance at the unreasonable to live at home rate.
I certify that the forty-five preceding paragraphs are a true copy of the reasons for the decision herein of
Mr G L McDonald, Deputy President
Signed: ...............................................................
Grace Horzitski Associate
Date of Hearing 20 August 2008
Date of Decision 25 September 2008
For the Applicant self representedSolicitor for the Respondent Mr Stephen Lucas,
Sparke Helmore Lawyers
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