QBZG; Secretary, Department of Social Services and (Social services second review)

QBZG; Secretary, Department of Social Services and (Social services second review) [2021] AATA 331 (1 March 2021)
Division:GENERAL DIVISION
File Number: 2020/3534
Re:Secretary, Department of Social Services
APPLICANT

AndQBZG
RESPONDENT

DECISION
Tribunal:Member K. Parker
Date:1 March 2021
Place:Melbourne

The Tribunal sets aside the decision under review and in substitution, decides that QBZG was not eligible for youth allowance under the Social Security Act 1991 (Cth) in respect of his claim dated 25 September 2019.
[sgd]........................................................................
Member K. Parker
SOCIAL SECURITY – eligibility for youth allowance – claimant lives away from home at boarding school – whether claimant needs to live away from home for the purpose of education, training, searching for employment or doing anything else in preparation for employment – whether the likelihood of the claimant’s “getting employment” will be significantly increased if he lives away from home – consideration of family circumstances in claimant’s home town due to divorce of parents – consideration of educational and employment opportunities at boarding school compared to those in home town – significance of offer by boarding school of a partial bursary in respect of boarding school fees – no scholarship offered in respect of tuition fees – consideration of claimant’s academic performance and whether he had a special talent or area of excellence – decision set aside and substituted for decision that claimant not eligible for youth allowance
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)
Cases
Drake and Minister for Immigration and Ethnic Affairs (No. 2), Re (1979) 2 ALD 634
Secretary, Department of Social Services and Drum, Re [2018] AATA 742
Thomas-Angelo and Department of Family and Community Services, Re [2001] AATA 699
Secondary Materials
Social Security Legislation Amendment (Youth Allowance) Bill 1997 - Explanatory Memorandum
Social Security Legislation Amendment (Youth Allowance) Bill 1997 - Second Reading Speech
Guide to Social Security Law, Department of Social Services
REASONS FOR DECISION
Member K. Parker
1 March 2021
INTRODUCTION

This application involves an issue about the eligibility of QBZG[1] to receive youth allowance under the Social Security Act 1991 (the Act). QBZG submitted a claim to receive youth allowance on 25 September 2019.
[1] The Tribunal, of its own motion, made orders under s 35 of the Administrative Appeals Tribunal Act 1975 (Cth) to apply a pseudonym in place of the Respondent’s name in order to keep his identity confidential because these Reasons for Decision refer to sensitive information involving the Respondent’s family circumstances.
QBZG previously attended a public secondary school (Local School A) located in the regional town where his family members live (Town A). Town A has a population of about 20,000. In 2019, QBZG completed Semester 1 of Year 11 at Local School A. In mid-2019, QBZG transferred to a private boarding school (Private School) in a regional city with a population of about 100,000, located about 200 kilometres away from Town A (City A). QBZB completed Semester 2 of Year 11 in 2019 and Year 12 in 2020, at Private School.
QBZG’s parents were divorced in about 2016. They live in separate households in Town A.
When QBZG lived in Town A, before moving to City A, he was cared for by both of his parents under a shared care arrangement. QBZG has two younger siblings who remain living in Town A under this shared care arrangement between the parents.
Centrelink rejected QBZG’s claim for youth allowance on the basis that he did not meet the eligibility requirements under the Act because it was not satisfied that he was “required to live away from home for the purpose of education, training, searching for employment or doing anything else in preparation for employment”, as per subsection 1067D(1)(c)(i) of the Act.
QBZG sought review by an Authorised Review Officer of the Department (ARO) who affirmed Centrelink’s rejection decision.
QBZG sought “first tier” review of the ARO’s decision by the Social Services and Child Support Division of this Tribunal (AAT1). The AAT1 set aside the ARO’s decision and decided to grant youth allowance to QBZG (Decision Under Review).
The Secretary sought “second tier” review of the AAT1’s decision by the General Division of the Administrative Appeals Tribunal Act 1975 (Cth) (this Tribunal).
The application for review before this Tribunal was heard on 29 January 2021. The Respondent lodged a set of documents under s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) and a supplementary set of documents under s 38AA of the AAT Act, which the Tribunal will refer to as the T-Documents and ST-Documents respectively. The Tribunal has considered the written and oral submissions and documentary evidence lodged by both parties.
For the reasons set out below, this Tribunal sets aside the Decision Under Review and in substitution, decides that QBZG did not qualify for youth allowance under the Act in respect of his claim dated 25 September 2019.
ISSUE
The issue in contention is whether QBZG was eligible to receive youth allowance under the Act. This will involve a consideration of:
(a)whether QBZG needed “to live away from home for the purpose of education, training, searching for employment or doing anything else in preparation for employment” as per subsection 1067D(1)(c)(i) of the Act; and
(b)whether the likelihood of QBZG’s “getting employment” will be significantly increased on account of QBZG having lived away from home, as per subsection 1067D(1)(c)(ii) of the Act.
LEGISLATIVE FRAMEWORK
Section 540 of the Act specifies the mandatory eligibility requirements for a person to receive youth allowance. One of those requirements in subsection (b) of this provision is that the person is “of youth allowance age (see Subdivision D)”. Under s 543, a person is “of youth allowance age” if he or she has reached the minimum age for youth allowance as per s 543A and has not yet attained the maximum age for youth allowance as per s 543B. At no time had QBZG reached the maximum age. The issue is whether he has reached the minimum age as defined by s 543A of the Act.
Section 543A provides that a person has met the minimum age if they are 16 years old or 15 years if they are independent (see subsections (1)(a) and (b)). However, if a person is not yet 18 years old, he or she is taken not to have reached the minimum age unless:[2]
(a)they have completed the final year of secondary school or an equivalent level of education; or
(b)they are undertaking full-time study; or
(c)they have entered or agreed to enter a Youth Allowance Employment Pathway Plan; or
(d)they are a new apprentice.
[2] Refer subsection (2).
Subsection (2AA) qualifies that a person is undertaking full-time study for the purpose of subsection (2)(b) if they are aged 16 or 17 and are undertaking full-time study of a secondary course at a secondary school unless one of the following circumstances apply:
(a)the person is independent (see s 1067A); or
(b)the person is taken by s 1067D to be required to live away from home; or
(c)the person was receiving youth allowance immediately before starting that course; or
(d)the Secretary determines that the person is not benefiting from family tax benefit that is being paid to the person’s parents.
Section 1067D provides as follows:
Person required to live away from home
When a person is taken to be required to live away from home
(1)     A person is taken to be required to live away from home for the purposes of Part 2.11B and this Part if, and only if:
(a)      the person is not independent; and
(b)     the person does not live at the home of either or both his or her parents; and
(c)     the Secretary determines that:
(i)      the person needs to live away from home for the purpose of education, training, searching for employment or doing anything else in preparation for getting employment; or
(ii)     the likelihood of the person's getting employment will be significantly increased if the person lives away from home; or
(iii)     the person needs to live away from home because the person is a new apprentice.
Note:         For parent see section 5 (paragraph (a) of that definition).
Matters to which Secretary is to have regard
(3)     In making a determination under subparagraph (1)(c)(ii), the Secretary is to have regard to:
(a)     the overall employment prospects for young people in the areas where the home is situated and in the area where the person is living; and
(b)     matters relating to the person that would affect the likelihood of the person's getting employment in those areas.
…
CONSIDERATION
At the date of claim, QBZG was 16 years of age. QBZG had not completed his final year of secondary education and because he was not yet 18 years of age, he did not meet the eligibility requirement to receive youth allowance under s 543A(1)(a) of the Act. QBZG does not contend that he was independent or that subsections (1)(c) or (d) applied to him. However, QBZG contends that he should be taken by s 1067D to be required to live away from home. For this reason, QBZG contends he should be taken to have reached the minimum age by operation of s 543(1)(b) of the Act.
QBZG was represented in this application by an accountant, Mr Gavin Simmons. Mr Simmons lodged the following written submissions with the Tribunal to explain the basis upon which QBZG claimed that he needed to live away from home.[3] Mr Simmons stated:
[3] The Tribunal has also considered Mr Simmons’ earlier letters dated 30 September 2019 at T-Documents T9 and dated 3 March 2020 at T-Documents T12, in addition to the emails by QBZG and his mother dated 1 September 2020 and 3 May 2020 respectively.
After a relationship break down of QBZG’s parents in July 2016, QBZG became a pawn in what has been a bitter custody battle ever since. Whichever parent QBZG chose to reside with he often felt pressure from other parent and being eldest child this affected him most.
As his school grades started to suffer and his withdrawal from social life and with a keen interest in Engineering, QBZG in agreeance with both parents, decided [Private School] would be of great relief and enhance his educational prospects, so in 2019 he moved to City A.
[Private School] engineering program offered much greater diversity that what was on offer at [Local School A]. Access to large engineering firms in City A and in Melbourne with start of the art technology.
Engineering competitions on a state wide basis.
QBZG has developed so much more self belief in himself and does not feel the tug of war emotions of being between each parent.
Whilst in name it may appear [Private School] & [Local School A] offer similar access to engineering course, it was QBZG’s evaluation that [Private School] prepared you for university degree, [Local School A’s] was only a preparation for an apprenticeship carer (sic).
With these facts overlayed over guide 3.2.6.40 we were presented with a compelling scenario as to QBZG’s need to live away from home for the purpose of his education which then naturally leads onto his employment prospects. We do highlight the fact that such guide states to be considered for away from home rate it needs to be demonstrated that it enhances his education and/or employment prospects and not essential to.
The standard of education, without question, has been much better at [Private School]. Be this due to greater access to tutors, exposure to subjects he has great interest in and/or the access to greater resources.
Whilst we consider QBZG’s case to be beyond any doubt and ambiguity as to satisfying Guide 3.2.6.40 we further add that as per Guide 1.3.1 which states that if ambiguity was to exist, the Social Security Act takes a “beneficial” consideration and that a decision most favourable to the people/person the Act is intended to benefit must endure.
We further attach letters from [Private School] with accompanying Systems Engineering course structure as well as letter from QBZG himself.
The VCE Systems Engineering teacher at Private School wrote an open letter lodged with the Tribunal on 9 December 2020 about the school’s VCE Systems Engineering course. The teacher wrote as follows:
The VCE Systems Engineering course at [Private School] follows and enhances the regular study design as set out by the VCAA. It is a successful course with a history of excellent academic results. School statistics show that a typical VCE cohort is well subscribed with a higher than average number of students enrolled. VCAA reports indicate that VCE Systems Engineering students perform ‘significantly higher’ than the state average on most areas of the end of year examination and we have a significant percentage of our students achieving 40+ study scores. Systems Engineering students from Ballarat Grammar are regularly selected to display their work at the Melbourne Museum as part of the VCE Season of Excellence (Top Designs).
The students are supported by state of the art facilities. The Design area was refurbished in its entirety for the 2019 academic year. Students have access to a range of modern manufacturing equipment, including laser cutting, CNC machining and 3D printing technology, in addition to more traditional workshop processes.
As the School is based in a large regional centre, students have the opportunity to take advantage of the close links that exist with key industrial partners, allowing access to more advanced manufacturing processes and industry expert mentorship. These companies regularly offer excellent work experience placements to our students. We also enjoy an excellent relationship with [University A] and the [name omitted]. Melbourne is one hour by train allowing students quick and convenient to access facilities and seminars that are held at RMIT, Swinburne and the Melbourne Museum throughout the academic year.
At the conclusion of studying VCE Systems Engineering at [Private School], many students often move on to Tertiary education to study an Engineering discipline. Our students enjoy an excellent rate of first choice offers from Universities, with a growing number of former graduates now working professionally in their chosen domains.
I believe these are compelling reasons for an aspiring engineer to relocate to [Private School].
At the hearing, Mr Simmons highlighted that QBZG needed to live away from home so that he could attend Private School in City A. QBZG contends that he needed to do so for the following three reasons:
(a)the courses available to him at Private School in City A would prepare him for entry into an engineering degree, rather than an apprenticeship, and it is QBZG’s goal to complete such a degree. QBZG contends that the courses available to him at Local School A were focussed on preparing students for apprenticeships, rather than engineering degrees;
(b)due to QBZG’s family circumstances, including the breakdown of the family unit in 2016 and the resultant stress that QBZG stated this had caused to him; and
(c)QBZG had been awarded a bursary at the private school which he contends is indicative of QBZG being of a high academic standing.
Interpretation of s 1067D(1) of the Act
The Tribunal considers that this case calls into question the interpretation of s 1067D(1) of the Act.
In respect to subsection (1)(c)(i), the person’s need to live away from home should be assessed by reference to the purpose as specified in this provision, which is “education, training, searching for employment or doing anything else in preparation for getting employment”. The inclusion of the word “else” in this phrase leads the Tribunal to interpret this provision as specifying that the “purpose” should be taken as anything done in preparation for getting employment and includes (as specified and without limitation) “education, training and searching for employment”.
The next question arising is what does the phrase “in preparation for getting employment” mean? The Tribunal considers that the words in this phrase must be given their ordinary meaning and should be interpreted as encompassing activities that would prepare a person to secure paid employment, which in turn will obviate the need for the person to be supported by social security entitlements funded by the taxpayer. The Tribunal does not consider that this phrase extends so far as to be interpreted as referring to activities done to prepare the person to secure employment of a particular kind, for instance, a type of employment that the person prefers (for example, an engineer as distinct from a nurse) or with a heightened status that the person prefers (for example, as a professional engineer as distinct from a workshop tradesperson).
In respect to subsection (1)(c)(ii), the person claiming youth allowance must establish that they need to live away from home because “the likelihood of the person's getting employment will be significantly increased”. The observations made in the above paragraph apply equally when interpreting this subsection in that the reference to employment should be interpreted as a reference to any employment and not employment of the person’s preference.
The Tribunal’s interpretation of subsections (1)(c)(i) and (ii) as outlined above, is consistent with the interpretation of these provisions as adopted by Member Burke in an earlier application before the Administrative Appeals Tribunal in Re Secretary, Department of Social Services and Drum [2018] AATA 742 (Drum). In Drum, Member Burke made the following observation:
The Tribunal standing in the shoes of the decision maker must have particular regard to section 1067D(1)(i) and (ii) of the Act, which clearly states the Secretary determines that the need of the student to live away from home is primarily to support a person to obtain employment. The Act does not specify that the goal is to help the student attain their preferred employment opportunity or to maximise their individual potential but to be successful in finding employment.
To better understand what the legislators may have intended when this provision was first enacted, the Tribunal has considered the Explanatory Memorandum and Second Reading Speech for the Social Security Legislation Amendment (Youth Allowance) Bill 1997 (see below two paragraphs). The statements made in those documents about Parliament’s intention behind introducing s 1067D(1)(i) or (ii) are not expansive. Those references have been highlighted by the Tribunal in bold print in the following two paragraphs. In the Tribunal’s view, they indicate that youth allowance would only be available to a dependent person who is not yet 18 when the student needs to live away from home to pursue their education or to look for work. The Tribunal has also considered the reference to an overarching “Government philosophy” that families (and by implication, not taxpayers) should support young people until they have achieved financial independence.
The Tribunal notes the following statements in the Social Security Legislation Amendment (Youth Allowance) Bill 1997 - Explanatory Memorandum:
Schedule 1 - Youth allowance
1. Summary of proposed changes
This Schedule amends the Social Security Act 1991 (the Social Security Act) to insert new Part 2.11 which introduces youth allowance (YA) with a commencement date of 1 July 1998.
The rationale for the introduction of YA is as follows.
YA will provide a comprehensive coverage of income support for young people, thereby both substantially reducing the number of different rates of payment, and addressing public concerns about the current fragmentation of income support arrangements between the Departments of Social Security and Employment, Education, Training and Youth Affairs.
YA removes undesirable incentives for young people to leave education or to choose unemployment over education and training.
YA reinforces the Government's philosophy that families should support young people until they have achieved financial independence.
Given the range of education, training, work and employment options available to, and experienced by, young people the current arrangements are too inflexible to cater for increasing numbers of young people who do not follow the traditional route from full-time study to full-time employment.
YA will provide increased assistance for young students who need to live away from home, especially those from rural areas.
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New section 1067D
Section 1067D addresses when a person is taken to be “required to live away from home”. This will be so if the person is not independent and lives away from home for a reason that is assessed as being either (i) for the purpose of education, training, job search or any other activity in preparation for getting a job, or (ii) as likely to significantly enhance the person’s likelihood of getting a job. In making such assessments, the Secretary may be guided by advice from the person’s case manager under the Employment Services Act 1994. In the case of (ii) above, the Secretary must have regard to the difference in overall employment prospects between the person’s home and new location and also to his or her personal prospects of finding a job in each location.
If a person is required to live away from home, he or she will be paid the higher “away from home” maximum basic rate and may attract rent assistance. If the person is under 18, the assessment will also generally result in the person’s YA payment being directed to himself or herself rather than to a parent.

The Tribunal also notes the following comments made in the Second Reading Speech for the introduction of the Social Security Legislation Amendment (Youth Allowance) Bill 1997:
Youth allowance will be paid at the higher ‘away from home’ rate for independent young people who live away from their parent’s home, and for those who are not independent but who need to live away from home to pursue their education or to look for work.
Young people who are not independent and who do not need to live away from home for such a reason will be eligible only for the lower ‘at home’ rate.
Youth allowance provides more support for those who have to leave home to study or look for work, especially from rural areas, by extending rent assistance to more young Australians who are studying. Rent assistance will also be available to independent youth allowance recipients who are partnered or who have a dependent child or to other independent young people who live away from their parent’s home.
Returning to the words of subsections 1067D(1)(i) and (ii) of the Act, it refers in both of those provisions to “getting employment”. The legislators did not insert the words “of the person’s choice” after the words “getting employment”, when they could have done so. This wording is consistent with the interpretation that this Tribunal considers should be applied to those provisions.
Accordingly, the Tribunal considers that the purpose for which the person needs to live away from home has certain limitations and that the need to live away from home must arise for the purpose of education and other activities done “in preparation for getting employment”. The Tribunal does not consider that this means getting employment of the person’s choice. This means that if the Secretary is able to demonstrate that QZGB could get employment (of any kind) by completing his secondary school education at a local school in Town A, thereby obviating the need for him to live away from home, he would not be entitled to youth allowance under these provisions.
The Tribunal also notes that the legislators inserted the word “needs” in s 1067D(1)(c)(i) and did not use the word “wants” or “desires”, when they were at liberty to do so. The Tribunal considers that the presence of the word “needs” makes it clear that youth allowance will not be available if a person chooses to live away from home for a purpose not encompassed by the specified purpose in this provision. The distinction between “needs” and “wants” or “desires” is significant and requires the Tribunal to consider what is necessary, in terms of where the person is living, to prepare the person to get employment, rather than what is desirous by reference to the person’s personal preferences for the type or status of his or her future employment.
Subsection (1)(c)(ii) allows for consideration of the attributes of an individual and whether pursuing education or other activities away from home will result in a significant increase in “the likelihood of the person's getting employment”. But again, the measure taken must be focussed on the person getting employment of any type or status and is not directed at the person getting employment of a type or status as preferred by the person.
The Tribunal was referred to the decision in Re Thomas-Angelo and Department of Family and Community Services [2001] AATA 699 (Thomas-Angelo). Senior Member Beddoe made the following observations:
43. The applicant has contended that the choice of which particular secondary institution he attends is not a matter of personal preference but rather one of scholastic challenge. No syllabuses or other evidence was provided regarding TSS and the Murwillumbah High School to enable the Tribunal to compare for itself the level of challenge available at either institution. However, I accept that the applicant's parents perceived that the TSS education program was appropriate and necessary for their son.
44. Section 1067E of the Act states:
"If a person:
(a) is not independent; and
(b) is not taken by section 1067D to be required to live away from home; the person is taken for the purposes of this Part to be living at home."
45. The Tribunal notes that the Guide to the Social Security Act 1991 ("the Guide") provides conditions, at least one of which must exist for a secondary student to be taken to be required to live away from home (T8, page 62). The Tribunal considers that in this matter the Guide provides some assistance to the Tribunal as it agrees with the Tribunal's considerations on this point. The only applicable condition relevant to the facts of this proceeding are outlined in the Guide as:
"an equivalent activity is not available locally."
46. This is explained (T8, page 63) to mean that a student is unable to study or attend training courses locally because:
·"an equivalent course is not available locally, OR
·a student's academic needs are not met by local education facility, OR
· there is no local facility."
47. The Tribunal's is [sic] satisfied that this interpretation makes allowance for the situation of a child with severe learning difficulties or a proven academically talented and gifted student whose educational requirements cannot be met by local government schools or any other local educational facility.
48. I am satisfied that the fact of winning the scholarship to TSS on academic grounds indicates that the applicant is a student of proven academic talent.
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55. However, the Tribunal is satisfied that the applicant's academic needs were not being met at Murwillumbah, that it was necessary for him to move away from Murwillumbah to obtain an education appropriate to his needs so that he needed to live away from home for the purposes of education.
56. The Tribunal is therefore satisfied that the applicant "needs to live away from home for the purposes of education".
57. With respect to those who assert otherwise the applicant's choice was to in effect give up on his education in Murriwillumbah because his needs were not being met there or pursue his education at a place that met his needs.
The Tribunal does not disagree with the Tribunal’s observation in Thomas-Angelo at [35] that the objective need "must be tempered with subjective criteria of an individual's circumstances", particularly when it comes to assessing s 1067D(1)(c)(ii). However, the Tribunal does not agree with the measure that was used by the Tribunal in Thomas-Angelo, when considering whether the circumstances in s 1067D(1)(c)(i) applied to the circumstances in that case was to assess whether the person needs to live away from home “for the purposes of education” (see paragraph [56] reproduced in the above paragraph). This Tribunal interprets s 1067D(1)(c)(i) differently and in a more targeted manner, as outlined above in paragraphs [20] to [31].
Further, the facts in Thomas-Angelo were different to those in this case in that the population of the town in question was about 10,000 compared to the population of Town A which is double the size with a population of approximately 20,000. The Tribunal is not satisfied in the present application, as the Senior Member was in the circumstances of the Thomas-Angelo case, that if QBZG was unable to attend Private School, his only other choice would have been to give up on his education at the local schools in Town A. There was no reason evident to the Tribunal that it would not be open to QBZG to pursue his education at one of the local schools in Town A (either Local School A or the other secondary school in Town A) to prepare him for getting employment of some type, even if it were as an apprentice, leading to employment as a tradesperson in Town A or elsewhere. The reasons for the Tribunal reaching this view are explained in detail below.
QBZG, or his parents, may perceive the approach taken by this Tribunal as harsh or unfair. However, the role of the Tribunal is to apply the legislation as enacted by Parliament. The Tribunal will not interpret the provisions in a way that would strain the ordinary meaning of the words of those provisions.
Consideration of relevant policy guidance – The Guide to Social Security Law
The Tribunal has considered relevant policy guidance provided by Services Australia in relation to a person’s eligibility for youth allowance. Specifically, paragraph 3.2.6.10 of The Guide to Social Security Law (SS Guide) provides policy guidance in relation to whether a person qualifies to receive the “living away from home” rate of youth allowance under the Act. Of relevance, it provides as follows:
3.2.6.10 Qualification for away from home rate of YA
What is the away from home rate of YA?
The away from home rate of YA is a higher rate of YA payable to some recipients who need to live away from home in order to access study, undertake an Australian apprenticeship, or to enhance their employment prospects. Dependent young people who fulfil the activity test as a job seeker, Australian apprentice or full-time student, may qualify for the away from home rate of YA.
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Qualification (1.1.Q.10) for dependent young people
YA can be paid at the away from home rate for dependent young people who:
·need to live away from home for the purpose of education (including full-time secondary study), training, searching for employment or doing anything else in preparation for getting employment, OR
·are significantly more likely to get employment if they live away from home (NOT including full-time students), OR
·need to live away from home in order to undertake their Australian apprenticeship.
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Who CANNOT receive the away from home rate?
Not all young people living away from the parental home can qualify for the away from home rate. It is NOT sufficient for the young person to choose to live away from home, or for the parent to choose not to support the young person.
Note: A person's mere choice to live away from home would not entitle them to the away from home rate. However, they may meet the requirements if they can demonstrate a need to live away from home for the purposes of education or training, or because the likelihood of them getting employment will be significantly increased.
Example: If a student's parents move to a new location and it requires excess travelling time, the student may be able to demonstrate that their continuity of studies would be interrupted by moving with their parents, so they may satisfy the Secretary that they need to live away from home for educational purposes.
YA recipients in the following circumstances do NOT qualify for the away from home rate:
·a dependent YA recipient who lives away from home because they choose to, for any reason, or because they need to, for reasons other than approved employment, job search, study or training, OR
·a dependent YA recipient who is living in the parental home, OR
·an independent YA recipient who is taken to be an accommodated independent person (1.1.A.10), OR
·young people in state care who receive, or attract for their carer, a State or Territory payment for their upkeep.
…
Further, paragraph 3.2.6.20 of the SS Guide provides policy guidance about the rules that determine the need to live away from home for youth allowance. With respect to secondary students, it provides as follows:
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Approval to live away from home - secondary students
In order to approve a secondary student to live away from home, AT LEAST ONE of the following conditions would need to exist:
·travelling time is excessive (1.1.E.150), OR
·parents move their principal home frequently, OR
·the parental home (1.1.P.20) is isolated, OR
·the parental home is an inadequate place to study, OR
·the young person has a disability and the parental home is isolated from required special facilities, OR
·parents move out of the area (year 11 and 12 students), OR
·an equivalent activity is not available locally.
Each of the points is explained in the rest of this topic.
In some cases, secondary students may bypass local schools to attend another of their choice that is not in their local area if they can demonstrate a need to live away from home. However, if the local area provides reasonable access to an appropriate government school, but the young person simply chooses to attend another school outside their local area, then the young person would NOT be approved to live away from home.
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Parental home is isolated
The parental home is isolated if it is:
·     56 kms or more from an appropriate government school, OR
·     at least 90 minutes travelling time one way, OR
·     isolated because of impassable roads for 20 school days in a year.
If the family would be eligible for assistance under the AIC Scheme, then the away from home rate would generally be payable to a young person living away from the parental home, without the provision of reasons. However, if the student receives YA they will not be able to also attract a payment under the AIC scheme.
Parental home is inadequate for study & undertaking job search activities
The parental home may be considered inadequate for study or job search activities in the following situations:
·     overcrowding of the parental home which means the young person lacks the physical facilities and privacy (not meaning the young person requires a room for themselves) required for study only, OR
·     if conflict exists between the parents or between the young person and parents, e.g. conflict involving alcoholism, assault, or chronic illness in the family.
This does NOT extend to minor difficulties of a kind normally encountered in a family.
However, it may be possible for recipients to reasonably demonstrate other situations where the parental home is inadequate for study and undertaking job search activities.
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Equivalent activity is not available locally
This applies ONLY to secondary students, and means the student is unable to study or attend training courses locally because:
·     an equivalent course is not available locally, OR
·     a student's academic needs are not met by local education facilities, OR
·     there is no local facility.
Example: The local school does not offer a year 12 course.
Approval for away from home rate under this category should only be given where excessive travelling time is involved.
In deciding if 2 courses are equivalent, the following must be taken into account:
·     course content, AND
·     length of the course, AND
·     level of the course, AND
·     when it is offered.
Tertiary students are NOT subject to the same rules about where they study - their choices of course and institution will be accepted.
Section 3.2.6.40 of the SS Guide provides further policy guidance in relation to when approval will be given for a student to bypass a local school:
3.2.6.40 Away from home rate of YA & bypassing local schools
Cannot bypass local schools out of choice
To be approved for the away from home rate of YA and to bypass a local school, a student must demonstrate a need to live away from home for the purposes of their education and/or employment prospects.
If a school in a local area provides subject choices and appropriate educational standards for a student to obtain these academic outcomes, then approval for the away from home rate should not be granted. It should be presumed that a local government school does provide the appropriate educational standards.
A range of factors may influence a student's choice of school (e.g. family connections, social/ethnic composition, quality or standard of education provided, range of subjects offered and delivery methods, availability of a scholarship, etc.). However, a student's mere preference, by itself, to bypass a local school is NOT sufficient to demonstrate a need to live away from home for the purposes of the person's education and/or employment prospects. The Act does not specify that the goal is to help the student attain their preferred employment opportunity or to maximise their individual potential but to be successful in finding employment.
Example: Where the local area provides reasonable access to an appropriate government school, but the student simply chooses or prefers to attend another school outside their local area, then the young person would NOT qualify for the away from home rate for the purposes of YA, as their personal choice by itself, does not demonstrate that they need to live away from home for the purposes of their education and/or employment prospects. An appropriate government school would be any that offers tuition in the student's grade or year. Local area is considered to be anywhere that can be reached without excessive travel time (1.1.E.150).
Act reference: SS Act section 1067D(1)(c)(i) When a person is taken to be required to live away from home
Policy reference: Administrative Appeals Tribunal decision Drum and Secretary, Department of Social Services (Social services second review) (2018) AATA 742.
Factors demonstrating a need to live away from home for education and/or employment prospects
In deciding whether a student has demonstrated a need to bypass a local school, consideration should be given, but not limited, to the following factors:
·     the compelling nature of the student's circumstances and the degree of control/choice the student has over their circumstances
·     the availability, or otherwise, of suitable local school alternatives to meet the education and/or employment needs of the student, having regard to any special talents/career interests the student has
·     the extent to which attendance at a non-local school will positively impact on the student's education and/or employment prospects in a way not available at a local school.
Circumstances that may be considered to demonstrate a need to live away from home for education and/or employment prospects may include, but not be limited to, the following:
·     The student has special abilities/talents whose educational needs are not able to be met by the local school (see separate section below for more guidance).
·     The student has specific career interests and needs to attend a non-local school to study special subjects that will benefit their education and employment prospects, as the local school does not offer such subjects (see separate section below for more guidance).
·     …
·     ...
·     The state/territory education authority agrees that the local school is inappropriate for a student or group of students, because it does not meet their educational needs.
o    Example: The school does not provide adequate facilities to permit students to gain a year 12 certificate and/or tertiary entrance score or the student is subject to extreme bullying.
·     The CEO or delegate of the state/territory education authority supports the bypassing by an individual student, and where the reasons are consistent with the aims of YA.
Students with special talents and/or special career interests
Where a student can demonstrate that they need to live away from home and bypass a local school as it will be beneficial for their educational and/or employment prospects, then they may be assessed as eligible for the away from home rate of YA. Consideration in such cases should be given to the special abilities of the student and whether their needs can be met by the local school. The student should provide, where possible, evidence that their educational and/or employment prospects will be better met by study at the non-local institution. This evidence may take the form of statements from school principals, teachers, or others acting in an official role with the school. In addition to the support statements from school principals, teachers, or others acting in an official role with the school, evidence is also required to indicate that the particular subject/s for which the student has a special career interest is/are undertaken as part the young person's year 12-certificate and/or tertiary entrance curriculum. The intent of this policy is to encourage the development of young people with special talents whose educational needs are not met by their local secondary institution.
Example 1: John is a secondary student studying year 12 and living in rural NSW. He has elected to study at a secondary school other than his local secondary school as the school is offering a tertiary agricultural studies component as part of its year 12 curriculum. John claims that studying at his chosen school will enhance his employability as he has a keen interest in employment in the agricultural field, is from a rural area and has a deep affinity with the land. Supporting documentation has been provided in the form of statements from John's school principal and teachers. John's preferred place of study is more than 90 minutes from his home address.
John would be seen as eligible to bypass his local secondary school and qualify for the away from home rate of YA as the curriculum available at the non-local school would enhance the student's employability.
Example 2: Zoe has a high intellect and is a very gifted dancer; she lives in Canberra. Her local secondary school provides for all her basic education needs however does not provide facilities or an educational focus for her major talent, dance. Zoe wishes to bypass her local secondary school in order to attend the Victorian School of Ballet to progress her recognised talent. Zoe's school principal, teachers and members of the arts community (who have connections with the school) have provided statements identifying that attendance at the non-local school will be beneficial in the development of Zoe's special talent.
Zoe would be eligible to bypass her secondary school as she has been able to demonstrate that it would be beneficial to her education and/or employment prospects. As she would have to move to another state to attend, she would qualify for the away from home rate of YA.

Policy guidance, such as the guidance referred to above, is not binding on the Tribunal. However, Federal Court authority stands for the proposition that the Tribunal should take such policy into account when making its decision, unless there are cogent reasons not to do so.[4] A reason not to do so would be that the policy is inconsistent with the relevant legislative provisions. The Tribunal does not consider the policy guidance referred to in these Reasons for Decision to be inconsistent with the relevant legislative provisions.
[4] Refer Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634 at 645.
Secretary’s contentions
Ms Voigt, on behalf of the Secretary, contends that:
(a)there was no evidence before this Tribunal which would demonstrate that the academic needs of QBZG could not be met by a secondary school at Town A, whether it be Local School A or some other secondary school in Town A; and
(b)the bursary awarded to QBZG was not a scholarship and as such, no conclusion should be drawn that he was of high academic standing from the fact that a bursary had been awarded to him.
Academic standing of QBZG and whether he had a special talent
At the hearing, the Tribunal and the parties addressed the letter in relation to the granting of the bursary in respect of boarding school fees at Private School (Bursary Letter). The Bursary Letter does not mention that any specific assessment of QBZG’s academic standing had been undertaken by Private School. However, there were some references, albeit general and somewhat vague, indicating that QBZG’s academic standing was viewed positively by those offering him the bursary. The first is that the name of the bursary was the “General Excellence Boarding Bursary” suggestive that the recipients had met a standard of “general excellence”. In the third paragraph of this letter, the author states that QBZG “is to be commended on his ability and range of achievements”.
The Tribunal is not prepared to go beyond finding that at the time QBZG was granted the bursary, Private School appeared to consider his general standing as a prospective student in a positive light. However, there was no evidence that he had been granted a scholarship in respect of his tuition fees to attend Private School based on academic achievements and Centrelink had been advised previously that it did not, in fact, cover tuition fees.[5] The Bursary Letter did not identify with precision the aspects of QBZG’s abilities and achievements that Private School considered to be excellent or for which he was to be commended. For instance, it is possible that he might have been granted the bursary based on his sporting or other non-academic abilities and achievements.
[5] Refer T-Documents T3/124.
Separately, the evidence in this application included QBZG’s academic results to date. QBZG obtained the following results:[6]
[6] Refer ST-Documents ST1/109-112.
(a)2019 Semester 1, Year 11 at Local School A;
(i)Design & Tech: Outcome 1 – 95%, Outcome 2 – 83% and Unit 1 examination 79%;
(ii)English: five results ranging between 60% (for the exam) and 90% for other assessments;
(iii)Maths Methods: Test 1 – 75%, Test 2 – 64%, Test 3 – 76% and Unit 1 Exam – 54%;
(iv)Out & Env Studies: Exam - 75%;
(v)Physics: Test 1 – 89%; Test 2 – 52% and Unit 1 Exam – 40%;
(b)2019 Semester 2, Year 11, at Private School:[7]
[7] Ibid at ST2/114.
(i)VCE English Unit 2 – C+ (65% to 69%);
(ii)VCE Mathematical Methods Unit 2 – D+ (55% to 59%);
(iii)VCE Physical Education Unit 2 – A+ (90% to 100%);
(iv)VCE Physics Unit 2 – C (60% to 64%);
(v)VCE Product Design and Technology Unit 2 – C+(65% to 69%); and
(vi)VCE Systems Engineering Unit 2 – B (70% to 74%);
(c)2020 Semester 1, Year 12, at Private School:[8]
(i)VCE English Unit 3 AoS 1 – 23/30 & Unit 4 AoS2 – 21/30;
(ii)VCE Mathematical Methods Unit 3 AoS 1 – 27/50;
(iii)VCE Physical Education Unit 3 AoS 1 – 19/25, Unit 3 AoS 1 33/50, and Unit 3 AoS 2 – 20/25;
(iv)VCE Physics Unit 3 AoS3 – 2.7/4, Unit 3 AoS3 – 2.6/5 and Unit 3 AoS 1 – 14/30;
(v)VCE Systems Engineering – Unit 3 SAT Criterion 1 – 7/10.
[8] Refer ST-Documents at ST2/116-123.
With all due respect to QBZG, his Year 11 and Semester 1, Year 12 results do not satisfy the Tribunal that he can be fairly characterised as a student of consistently high academic standing at a level that that the Tribunal considers that his academic needs were not able to be met at Local School A or any other local school in Town A, or that he had exceptional academic abilities or a special talent in a particular subject such as maths and engineering. While he was doing reasonably well, his grades were inconsistent and on average, he was not an A-grade student.
Comparison of courses/subjects offered at Private School and local schools
The assistant principal of Local School A provided the following information by email correspondence dated 20 April 2020:[9]
(a)all subjects offered at Year 11 and 12 at the Local School A were listed in the school’s “Subject Selection Booklet” and “draft Senior Course Selection Book 2020”. A link to those booklets were provided in the assistant’s principal’s letter and the subject of “Systems Engineering” was offered as a subject for Years 11 and 12 in 2019 and 2020;
(b)all subjects offered at Year 11 and 12 at Local School A are taught in accordance with the Study Designs provided by the Victorian Curriculum and Assessment Authority (VCAA) found on the VCAA’s website;[10] and
(c)the median Australian Tertiary Admission Rank (ATAR) of all students completing VCE at Local School A was 68.1 in 2018 and 59.7 in 2019.
[9] Ibid at ST1/97.
[10] Refer >
The Tribunal notes that Local School A offered the same subjects undertaken by QBZG in 2019 and 2020, as offered by and undertaken by him at Private School. In particular, Local School A offered the Year 11 and 12 “Systems Engineering” subjects, and the Year 11 “Product Design and Technology” subject. Those subjects were delivered by each school in accordance with the same curriculum as prescribed in the VCAA Study Designs. In that regard, the Deputy Head of Private School informed the Secretary by letter dated 6 August 2020 that its English, Mathematical Methods, Physical Education, Physics and Systems Engineering subjects all followed the curriculum prescribed in the VCE Study Designs found on the VCAA’s website.
The Deputy Head of Private School also advised that the school’s ATAR results were 76.1 for the 2018 year and 77.3 for the 2019 year.
No breakdown was provided by either school for the average study scores achieved in the subject of “System Engineering” for each of the schools. Based on the more general median ATAR’s for each school before the Tribunal, the students at Private School have performed better overall than students at Local School A. This is not inconsistent with the statements made in the letter from Private School, referred to in paragraph [18], explaining the significant resources put into engineering studies at the school and the networks in place with certain workplaces and other programs to promote a high level of education for students of Private School interested in this field of study. In 2018, the difference in the median ATAR of both schools was only 8. However, the gap increased to 17.6 the following year in 2019. The Tribunal considers that this this difference is significant. However, the Secretary produced evidence to show that the entrance ATAR score for an engineering degree at Deakin University was 64.05. This is less than the median ATAR score obtained by a student at Local School A in 2018. It is acknowledged that the entrance score is higher than the median ATAR at Local School A in the following year, however, the Tribunal is satisfied that QBZG’s academic acumen, whilst not exceptional, is at least reasonably strong, and that he is likely to achieve above the median ATAR were he to have completed his studies at Local School A. This being so, the Tribunal cannot be satisfied that a potential path of studying engineering at University was not reasonably open to QBZG were he to continue his studies at Local School A. Further, there is no evidence before the Tribunal to suggest that it would not be reasonably open to QBZG to obtain an apprenticeship were he to complete his studies at Local School A, if he missed out on gaining entry into an engineering degree. There was also no evidence before the Tribunal to suggest there would be any difficultly in QBZG gaining work in a trade in Town A if he was to remain in this sizeable regional town with a population of 20,000. On this basis, the Tribunal was not satisfied that the likelihood of QBZG getting employment would have been significantly increased on account of him living away from home.
Special talent or lack of course/subject choice
The Tribunal is not satisfied there were other factors such as a special talent or lack of course/subject choice which would give rise to QBZG’s need to live away from home for his secondary schooling. Specifically, his school results referred to above do not reveal that QBZG had a special talent, save that they reveal a strength in the area of physical education for which he received a grade of “A+”. There was no evidence of QBZG having won any engineering or design-related prizes or student competitions at any stage during his secondary schooling, which would otherwise be indicative of QBZG having a special talent in this area. There was note by QBZG’s mother of a glowing report having been received from an engineering company but there was no detailed evidence before the Tribunal in this regard about this report.
The Tribunal accepts the Secretary’s contention set out in paragraph [35] of the Secretary’s Statement of Facts, Issues and Contentions that although QBZG wishes to undertake a Bachelor of Engineering upon completing his secondary education, there is no evidence of a relevant “special talent” or a need to undertake “special career interest” subjects which require him to attend a specialised school, for instance, a sports high school or conservatorium. The subjects that QBZG wished to study were available at Local School A.
Whether family circumstances gave rise to need by QBZG to live away from home for the specified purpose
The Tribunal acknowledges that the breakdown of QBZG’s family unit was likely to have been distressing and disruptive for all family members involved. When the Tribunal asked QBZG at the hearing about his experience during this event, he confirmed that it was stressful although he did not create an impression that it was as traumatic as characterised in Mr Simmons’ submissions, referred to above. The Tribunal notes that QBZG has two younger siblings who are still cared for by the parents under their shared care arrangements and that steps have not been taken to remove those children from the home environment under the shared care arrangement. QBZG received some general counselling at the time but did not give evidence at the hearing to demonstrate that he was suffering from any clinically diagnosable mental health issues. The Tribunal notes in Centrelink’s records the following entry recording a conversation that took place with QBZG on 18 October 2019:[11]
SW spoke to customer about criteria for UTLAH – no relationship breakdown, in regular contact with parents, no risk of safety or well being with either parents and parents are able to provide home.
[11] Refer ST-Documents ST3/124.
Noting the policy guidance which states that family circumstances should be taken into account, a high bar is set for what type of family circumstances might give rise to a need by a person to live away from home for the specified purpose. The policy guidance suggests those circumstances need to be in the ilk of overcrowding in the family home or conflict between family members such as “conflict involving alcoholism, assault, or chronic illness in the family”. The policy guidance specifies that this does not extend to “minor difficulties of a kind normally encountered in a family”.
The breakdown of a family unit is a not an uncommon occurrence. While it can present challenging circumstances, the Tribunal is not satisfied that there is sufficient evidence before it to find that the level of conflict in his two family homes as a result of the breakdown of the family unit in 2016 was at a high enough level to impact on QBZG’s ability to study or where it could be characterised as conflict involving assault. The Tribunal finds that QBZG’s family circumstances as described above are representative of the challenges that many families face and did not give rise to a need by him to live away from home for the purpose of the specified purposes or to significantly increase his prospects of getting employment.
CONCLUSION
The Tribunal is not satisfied based on this evidence that QBZG’s academic needs could not be met at Local School A for the purpose of him getting employment when he completes his education. The Tribunal finds that QBZG by-passed Local School A which the Tribunal is satisfied would have provided him with comparable opportunities to achieve a standard of education that would ultimately prepare him to gain entry into an engineering degree and/or an apprenticeship and ultimately, to obtain employment.
The Tribunal concludes that:
(a)QBZG did not need to live away from home for the purpose of education, training, searching for employment or doing anything else in preparation for employment as per subsection 1067D(1)(c)(i) of the Act;
(b)the likelihood of QBZG’s getting employment would not have been significantly increased by QBZG living away from home as per subsection 1067D(1)(c)(ii) of the Act.
The Tribunal concludes that QBZG is a dependent who has not yet turned 18 years old and is not taken to have reached the minimum age because he is not taken to have undertaken full-time study by reason of needing to live away from home for a purpose as defined in s 1067D of the Act.
Accordingly, the Tribunal sets aside the Decision Under Review and in substitution, decides that QBZG does not qualify for youth allowance under the Act, in respect of his claim dated 25 September 2019.

I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for the decision herein of Member K. Parker

[sgd]........................................................................
Associate
Dated:   1 March 2021
Date of hearing:  29 January 2021
Solicitors for the Applicant: Ms April Voigt, Services Australia
Advocate for the Respondent:       Mr Gavin Simmons, Simmons Advisory Service

[2021] AATA 331

1 March 2021

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