Morgan; Secretary, Department of Employment and Workplace Relations and

[2007] AATA 1464

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1464

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2006/936

GENERAL ADMINISTRATIVE DIVISION		)
Re		SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Applicant

And LYNETTE MORGAN

Respondent

DECISION

Tribunal Mr M A Griffin, Member

Date25 June 2007

PlaceCoffs Harbour

Decision The decision under review is set aside and in substitution thereof, the Tribunal decides that the decision to impose a 26 week non payment period on Mrs Morgan's Newstart Allowance is the correct and preferable decision.

...............[sgd]...............................

Mr M A Griffin

Member

CATCHWORDS

SOCIAL SECURITY - Newstart Allowance - reduced employment prospects - move to be near friend - friend not deemed a family member - no extreme circumstance for moving place of residence - decision set aside

Social Security Act 1991 – sections 23, 634

Re Secretary, Department of Employment and Workplace Relations and Trajcevski [2005] AATA 415

REASONS FOR DECISION

25 June 2007 M A Griffin, Member           

1.      The Secretary seeks review of a decision of the Social Security Appeals Tribunal (“SSAT”) on 30 June 2006.  The SSAT set aside a decision made by an Authorised Review Officer (“ARO”) to impose a 26 week non payment period on Mrs Morgan’s Newstart Allowance (“NSA”) because she moved to an area of lower employment prospects.

ISSUE

2.      The issues to be determined by the Tribunal are:

·     Did Mrs Morgan reduce her employment prospects when she moved from Sydney to Yarrahapinni on 16 March 2006?

·     If she did reduce her employment prospects by this move, did she have a sufficient reason for moving such that a 26 week non payment period should not be applied?

LEGISLATION

3. The relevant legislation is contained in section 634 of the Social Security Act 1991 (“the Act”). The effect of subsection 634(1) is that NSA is not payable for 26 weeks if a person has reduced his or her employment prospects by moving to a new place of residence without sufficient reason. Subsection 634(3) provides as follows:

“634(3) For the purposes of subsection (1), a person has a sufficient reason for moving to a new place of residence if and only if the person:

(a)       moves to live with a family member who has already established his or her residence in that place of residence; or

(b)       moves to live near a family member who has already established residence in the same area; or

(c)       satisfies the Secretary that the move is necessary for the purposes of treating or alleviating a physical disease or illness suffered by the person or by a family member; or

(d)       satisfies the Secretary that the person has moved from his or her original place of residence because of an extreme circumstance which made it reasonable for the person to move to the new place of residence (for example, the person had been subjected to domestic or family violence in the original place of residence).”

EVIDENCE

4.        Mrs Morgan is divorced. She has three adult children, two sons and a daughter.  After 22 years of happy marriage, Mrs Morgan discovered in June 2002 that her husband had molested their daughter and the marriage broke down.  Mrs Morgan was forced to continue living under the same roof with her estranged husband for an extended period and they divorced in June 2004.  The family home in Berowra Heights Sydney was sold on 16 March 2006 and at the same time Mrs Morgan settled the purchase of her new residence in Yarrahapinni, which is a small town some 33 kilometres from Nambucca Heads in New South Wales.

5.        Prior to her move to Yarrahapinni, Mrs Morgan had always worked and had never been on the dole.  She had been self-employed as a cleaner.  She worked in the local area, at a school and hospital in Wahroonga, for more than 10 years.

6.        Mrs Morgan said she moved to get away from her ex-husband and his family who lived nearby.  Her evidence was that chance meetings with them were upsetting and problematic for her.  Another reason for her move was to be near Mrs Carol McLeod who had been married to her ex-husband’s maternal uncle who was recently deceased.  Mrs Morgan had developed a very close bond with Mrs McLeod over the years and her continuing support was of the utmost importance to Mrs Morgan.  Mrs Morgan said “I could have moved to my mother at Benboka but I wanted to be near Carol.  I left my kids in Sydney that’s how much I wanted to be near this lady”.  She said “I mainly moved here to help Carol and be with her and start afresh and get away from them [her former husband and his family], I just couldn’t face seeing them all the time down there”.

7.        Mrs Morgan said “I presumed I would get work here with all the hotels and caravan parks”.  She said she did not know about the social security rules because she had never been unemployed and didn’t know she would have to wait 6 months for NSA.  She said “I tried everywhere to get jobs - truck stops, hotels and hospitals”. She has since undertaken further education with a TAFE course in aged care.

8.        Mrs McLeod confirmed that Mrs Morgan had been married to her late husband‘s nephew and that they had developed a very close bond.  She described how helpful Mrs Morgan had been to her during her husband’s illness and subsequently.  She said she has a daughter and grandchildren who live nearby.  She said her daughter is very busy with her young family and that Mrs Morgan does a great deal to help her, that is, Mrs McLeod.  She confirmed that Mrs Morgan moved from Sydney to be near her.

Employment Prospects

9.         The Secretary produced Centrelink statistical data (T7 p.17) which indicates that at the relevant time the unemployment rate for Berowra Heights was 4.5% and the unemployment rate in the Nambucca Heads area (which covers Yarrahapinni) was 13.9%.  In Port Macquarie the unemployment rate was 7.2%, in Coffs Harbour 9.2%, in Kempsey 10.7% and in Macksville, where Mrs McLeod lives, it was 13.9%.  The documents also include a Nambucca Shire Economic profile from June 2003 and a number of job search printouts for the region (Exhibit D).

10.      Mrs Morgan produced Australian Bureau of Statistics (“ABS”) data on labour force status by region for the March 2007 quarter (Exhibit R6) and the December 2005 and December 2006 quarters (Exhibit R7). The ABS March 2007 unemployment rate for Sydney as a whole was 5.3%, which was an increase of 0.3% for the year from March 2006.  There were different figures for the various regions within the greater Sydney area and the table also contains NSW country areas.  Mrs Morgan referred to Gosford-Wyong as the appropriate region for her, on the basis of the region’s proximity to Berowra Heights which is situated on the northern outskirts of Sydney, with an unemployment rate of 7.4%, which was a reduction of 0.8% for the year from March 2006.  The same table had an unemployment rate of 8.0% for the Richmond-Tweed/Mid-North Coast region, being an annual reduction of 1.1%.  

CONSIDERATION OF ISSUES

11.     In Re Secretary Department of Employment and Workplace Relations and Trajcevski [2005] AATA 415, Senior Member Hastwell referred to a line of decisions in which the Tribunal has “…rejected taking a purely statistical approach which looks only at the relative employment statistics in the two locations to determine whether a person has reduced his or her employment prospects. An analysis of the individual situation is important in each case”.

12.      In this case, the evidence is that Mrs Morgan was able to obtain work within reasonable proximity to her residence in Berowra Heights in a variety of unskilled positions for many years.  Indeed, her evidence was that she had never been unemployed.  She did not travel to and work in the Gosford-Wyong region but in the northern suburbs of Sydney.

13.      Mrs Morgan, on her ABS evidence, moved in March 2006 from a region that she was actually working in which had a 5% unemployment rate, to a region with an unemployment rate of 9.1%.  Her actual job prospects are reflected in the fact that she has been unable to find any employment since she moved and that she has found it necessary to undertake training to acquire skills for which there is some demand in the area.

14.      I find that Mrs Morgan did reduce her employment prospects by her move from Berowra Heights to Yarrahapinni.

15. The evidence is that Mrs Morgan chose to move to Yarrahapinni to avoid her former husband and his family, to help her friend Mrs McLeod and to be near her and to make a fresh start in life. Are these sufficient reasons for the purposes of subsection 634(3) of the Act? Mrs McLeod was a relative by marriage and that relationship does not fall within the definition of family member as provided in subsection 23(14) which is the applicable definition for the purposes of subsection 634(3) of the Act.

16.      Mrs Morgan produced medical reports which make reference to her marital stress as early as August 2002 and to her intention to move to Macksville from January 2005 (Exhibit R3).  However, there is no evidence that the move was necessitated by some medical condition or treatment as provided for in the subsection.  That leaves the remaining consideration of whether Mrs Morgan moved residence because of an extreme circumstance, for example (as given in the subsection), domestic or family violence in the original residence.

17.      The Secretary does not dispute the unfortunate history of molestation of Mrs Morgan’s daughter.  However, this unfortunate fact came to light some four years before Mrs Morgan moved to Yarrahapinni and was not the reason for her change of residence.  Her evidence is that her daughter moved out of home after her husband left the family home and lived with her boyfriend and then with friends.  Mrs Morgan left Berowra Heights to avoid chance meetings with her former husband and his family.  She had in fact continued to live in the same house with him for 17 months after she became aware of his interference with their daughter.  Her desire to avoid chance meetings in the street with him and his family is understandable but does not, in the circumstances, amount to a matter of such urgency or gravity as to amount to an extreme circumstance.

18.       On the evidence, both written and oral, I find that Mrs Morgan did not move to Yarrahapinni to live with, or live near, a family member.  I find that the move was not necessary for the purposes of treating or alleviating a physical disease or illness.  I find that Mrs Morgan’s move to Yarrahapinni was not because of an extreme circumstance which made it reasonable for her to move to the new place of residence.  I find that Mrs Morgan did not have sufficient reason, for the purposes of the legislation, to move to her new place of residence.

DECISION

19.      The decision under review is set aside and in substitution thereof, the Tribunal decides that the decision to impose a 26 week non payment period on Mrs Morgan's NSA is the correct and preferable decision.

I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M A Griffin, Member

Signed:         ............[sgd]....................................................................
  Associate

Date of Hearing  28 May 2007
Date of Decision  25 June 2007
Solicitor for the Applicant          Ms J Maclean of Centrelink
Solicitor for the Respondent     Self-represented