QX052 and QX053 and Secretary, Department of Family and Community Services
[2005] AATA 111
•7 February 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 111
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2004/506, Q2004/522
GENERAL ADMINISTRATIVE DIVISION )
Re QX052 and QX053
Applicants
And
SECRETARY, DEPARTMENT
OF FAMILY AND COMMUNITY SERVICESRespondent
DECISION
Tribunal Dr E K Christie, Member Date7 February 2005
PlaceBrisbane
Decision The decision under review is set aside and in substitution thereto the Tribunal decides that the applicants are entitled to youth allowance at the “away from home rate”. .................[Sgd]........................
E K Christie
Member
CATCHWORDS
SOCIAL SECURITY – benefits and entitlements – youth allowance – needs to live away from home – independent person – words and phrases: “unreasonable to live at home”; “need to live away from home for the purpose of education”
Social Security Act 1991 s 1067A, 1067D
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Australian Tea Tree Oil Research Institute v Industry Research and Development Board (2002) 124 FCR 316; (2002) 70 ALD 1
Comptroller-General of Customs v Akai Pty Ltd (1994) 50 FCR 511
Jebb v Repatriation Commission (1988) 80 ALR 329REASONS FOR DECISION
7 February 2005 Dr E K Christie, Member 1. This is an application by the applicants to review a decision of the Social Security Appeals Tribunal (“the SSAT”) made on 16 June 2004 that they were both only entitled to youth allowance at the “at home rate”, instead of the “living away from home rate”.
2. In reaching this decision, the SSAT concluded that:
“18.In this case, the Tribunal noted [the applicants’ mother’s] submission was that her sons needed to move away from her home for the purpose of education. The Tribunal noted that [the applicant] and his twin brother moved very close by, that is next door to premises rented by their mother. The evidence of the [applicant’s mother] to the Tribunal, which the Tribunal accepted, was that her sons did have a better study environment once they had moved next door. The impression and tenor of the evidence provided by [the applicants’ mother] in this case is that while a move next door may have created a more conducive study environment for her sons, the reasons appear to have been primarily economic rather than driven by considerations of enhancing the educational prospects of her sons. The Tribunal noted that [the applicant] and his twin brother moved next door into what might be described as a ‘student house’. (T2, Folio 11);
and
“23.In this case, there is no suggestion of conflict between [the applicant] and his mother or between [the applicant] and any other occupant at [No 18].
24.When all of the evidence and objective and subjective factors are considered, the Tribunal was satisfied that there was no relevant and probative evidence that justified or supported the conclusion that [the applicant] needed to move away from home in order to continue his education within the meaning of section 1067D(1)(c)(i). This means that [the applicant] has not satisfied the requirements to be paid youth allowance at the living away from home rate. The Tribunal is satisfied that the original decision-maker and the authorised officer on appeal made the right decision in circumstances of this case.” (T2, Folio 12).
3. At the hearing the applicants were represented by their mother. The respondent was represented by Mr James Howard, a Departmental Advocate.
4. At the hearing the Tribunal had in evidence before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the “T” Documents – Exhibit 1) and the various documents lodged by the parties.
5. The application for review was subject to section 35(2) orders. Consistent with the requirements of both orders (13 September 2004; 29 November 2004) the names of the applicants, their mother and the treating counsellor have been suppressed.
Facts
6. On the basis of the evidence before it, the SSAT made the following findings of fact:
“A.[The applicant] lives at No 20 with his twin brother.
B.[The applicant’s] mother, lives in leased accommodation at No 18.
C.[The applicants’ mother’s] home is an enclosed ‘Queenslander’ with four bedrooms and two bathrooms upstairs and a ground floor flat with two bedrooms and a bathroom.
D.Neither [applicant] resides with [their mother].
E.[The applicants’ mother] sub-lets the other bedrooms besides the bedroom she occupies in her home to students.” (T2, Folio 9)
7. The applicants’ mother acknowledged these findings of fact, as correct, at the commencement of the hearing.
Issues before the Tribunal
8. At the commencement of the hearing the parties agreed that the only issue for the Tribunal to decide was whether there was a need for the applicants to live away from home for the purpose of education: section 1067D(1)(c)(i) of the Social Security Act 1991 (“the Act”).
9. However, following the oral evidence of the applicants’ mother and QX052 it was clearly evident that a second issue became a relevant consideration for the Tribunal to decide: whether it was unreasonable for the boys to live at home and so be regarded as “independent” persons for the purposes of the Act, i.e. in accordance with the criteria prescribed by section 1067A(9) of the Act. This issue had not been considered by the SSAT. Accordingly, the Tribunal exerted its inquisitorial powers and sought expert opinion from their treating family counsellor on the issues raised by this section of the Act. The expert had been the treating counsellor of the applicants’ mother and QX052 during 2004. The parties were invited to make supplementary submissions in response to the receipt of this report.
Statutory Requirements
§ Issue 1: Person required to live away from home for the purposes of education
10. Section 1067D of the Act is the relevant provision and this section states:
“Person required to live away from home
When a person is taken to be required to live away from home
1067D.(1) A person is taken to be required to live away from home for the purposes of 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
…..”
For this application for review, paragraphs (a) and (c) are disputed issues.
§ Issue 2: Unreasonable to live at home
11. Section 1067A prescribes criteria to determine whether a person is to be regarded as “independent” in terms of being unable to live at the home of either of, or both of his or her parents. The relevant section of the legislation, in the factual circumstances of this application for review, is section 1067A(9) which states:
“Unreasonable to live at home
1067A.(9) A person is independent if:
(a) the person cannot live at the home of either or both of his or her parents:
(i)because of extreme family breakdown or other similar exceptional circumstances; or
(ii)because it would be unreasonable to expect the person to do so as there would be a serious risk to his or her physical or mental well-being due to violence, sexual abuse or other similar unreasonable circumstances; or
(iii)because the parent or parents are unable to provide the person with a suitable home owing to a lack of stable accommodation; and
(b)the person is not receiving continuous support, whether directly or indirectly and whether financial or otherwise, from a parent of the person or from another person who is acting as the person’s guardian on a long-term basis; and
(c)the person is not receiving, on a continuous basis, any payments in the nature of income support (other than a social security benefit) from the Commonwealth, a State or a Territory.”
Examination of the Evidence: Consideration of the Issues to be Decided
12. The Tribunal considers the factual evidence that is relevant in determining the questions of law that are prescribed by the statute.
13. The Tribunal firstly considers the issues raised by section 1067A(9) of the Act – whether it is unreasonable for the applicants to live at home, as well as the question whether they are to be regarded as “independent”. This issue is a threshold question in order for the applicants to succeed i.e. before the Tribunal considers the second issue arising under section 1067D(1)(c)(i). The applicants must succeed on both issues in order to receive youth allowance at the “away from home rate”.
§ Issue 1 – Independent Person: Unreasonable to live at home
14. The applicants’ mother’s oral evidence in regard to the issues prescribed in relation to her twin sons being unable to live at home, and so be regarded as “independent”, can be summarised as follows:
(a)That she suffers from extreme anxiety and depression (see Exhibit 2) and that she has found herself in an intolerable situation by being placed under extreme pressure dealing with their behavioural problems. As a result, she could not cope living with her twin sons when they lived at home. These problems led to outbursts of anger and drinking problems for her;
(b)That she had grown up in a violent household as an abused child and now felt that she was also reacting, in the same way, to her twin sons, when they lived at home i.e. by exerting the same physical responses on her sons as she had experienced during her own upbringing. She knew she should protect them but felt this was difficult to achieve through her limitations in self-control. In these circumstances she stated that “the boys were at risk”;
(c)Her family situation was described as a “huge family crisis”;
(d)She was a sole parent and had never received any financial support from the twins’ father;
(e)Because of the traumas in her life, plus the stress and anxiety, she could not manage her life easily; and
(f)She stated that she cleans the applicants’ home at No 20.
15. The applicant’s (QX052) oral evidence in regard to this issue can be summarised as follows:
(a)That whilst he lived with his mother at the same house there had been constant conflict, arguments and shouting – as well as physical attacks from his mother;
(b)Whilst they lived in the same home his relationship with his mother was breaking down. However, since moving, he has found it easier to deal with his mother. In retrospect, he believes that he should have moved earlier; and
(c)That he still sees his mother, as the cleaning and cooking at No 20 is done by his mother.
16. The following aspects of the expert opinion of their qualified Family Counsellor are relevant to the question of the twins being regarded as “independent” in regard to being unable to live at home. This opinion was provided in response to a Direction issued by the Tribunal at the completion of the hearing and was filed on 20 December 2004.
“(a) [The applicants’ mother’s] emotional/mental health:
§[The applicants’ mother’s] emotional state has fluctuated from medium to high levels of anxiety.
§She has felt at times severely overwhelmed by the sense of responsibility for managing her son’s study habits, their domestic routine and their social interactions.
§She has felt ineffective in terms of setting and reinforcing what she considers to be appropriate boundaries.
§She has had a tendency to assume and anticipate negative outcomes and there have been indicators of medium level depressive thinking.
§This condition has resulted in an inability to sleep, which has contributed to further deterioration of her stress tolerance and has had a negative impact on her physical and emotional well-being.
(b)[The applicants’ mother’s] familial relationship with her two sons including conflict dynamics:
§In general terms, the boys have been asserting their independence, challenging their mother’s authority and generally pushing the boundaries set within the family home.
§This has resulted in [the applicants’ mother] becoming increasingly agitated and her reactions have at times resulted in further inflammation of the conflict and more long lasting hostility between all three individuals.
§Suggestions as to how the boys and [the applicants’ mother] might communicate more constructively were given earlier in the year, and while this helped to some extent, intense hostility has tended to resurface quite easily. In my opinion, it is becoming increasingly difficult for this family group to establish a positive, co-operative dynamic for any length of time.
(c) Impact of the above on the physical and mental well-being of the boys:
§ Because the conflict dynamics have been intense and prolonged, there are strong feelings of resentment between mother and sons. Although there have been some attempts at resolving the resentments, this has largely been unsuccessful.
§ The ongoing conflict has resulted in more extreme boundary pushing and intense outbreaks of anger.
§ I consider that the turbulent emotional environment in the home has severely undermined the boy’s ability to maintain a satisfactory level of concentration and focus on study. This applies especially to QX052 but also to QX053.
§ The prolonged nature of the conflict has resulted in the boy’s decision making being motivated by built up anger. This means that some inappropriate choices have been made, especially with regard to study habits. I am concerned that this will have a negative impact on future study prospects.
§ I was concerned at one stage that the escalating conflict may lead the boys to engage in some form of risk taking behaviour. To my knowledge, that has not occurred, however it is an ongoing concern.
§ In the counselling session I had with QX052 and [the applicants’ mother]. QX052 presented as withdrawn and angry. He engaged to some degree in the counselling process and a few agreements were reached between mother and son. This resulted in reduced levels of tension in the home for a short time, however it could not be sustained.
(d) General comments:
§ [The applicants’ mother] has made an effort to manage the home environment and parent her son’s in a more constructive way. Both QX053 and QX052 have also tried to control their behaviour. However, I consider that the negative relationship dynamics are at a level that is undermining the quality of life for this family group.
§ Hostilities have existed for some time and several factors will continue to inhibit resolution, namely, an accumulation of deep seated resentments, extremely negative perceptions of each other, low levels of stress tolerance, [The applicants’ mother’s] on going physical and emotional health issues, the boy’s developmental stage, unresolved disagreements over boundaries and the use of inappropriate communication styles.” (Emphasis added)
§ Issue 2: Need to live away from home for the purpose of education
17. Further additional oral evidence given by the applicants’ mother, that is relevant for the Tribunal to consider, is summarised as follows:
(a)Since the boys had moved from her home, their educational learning environment had improved. Their opportunity for private study had increased and was reflected in both boys completing Year 12 and one (QX053) had obtained a scholarship for tertiary study in 2005;
(b)She acknowledged that she sub-leased both properties (No 18 and No 20) and that her father was the landlord. Rentals received from four international students who resided with her at No 18 was $2,400/month; From this amount the applicants’ mother received about $180/week;
(c)That rent received from her sons whilst living at No 20 was $220/fortnight for each of them. However, each son only received $174/fortnight for youth allowance at the “at home rate”. As a result she had to contribute to the food and other necessaries of life that her twin sons required; and
(d)That a small business she had commenced in July 2002 had not been overly successful – and not without extreme effort on her part to succeed. As a result, this necessitated her obtaining supplementary income by managing, cleaning and gardening of the premises at No 18 and No 20.
18. QX052 said that when he moved to No 20 he found it easier to study as he had “more privacy” in having his own room and he did not have to deal with living with his “stressed out” mother. In contrast, the volatility in living at No 18 resulted in him not being able to study at all.
Contentions and Submissions of the Parties
19. James Howard, for the respondent, submitted that there was not a need for QX052 and QX053 to move from No 18 to No 20 as they could have received “at home” youth allowance with their mother by making small changes to living arrangements; for example, by not letting out 2 of the 4 rooms at No 18 to international students. It was his contention that the decision made by the applicants’ mother was for economic reasons – not educational needs.
20. James Howard further contended that the homes at No 18 and No 20 could be regarded as “conjoint homes”. [The applicants’ mother] cooks, cleans and sublets both homes, her father is the landlord of both homes, and that the applicants’ mother “appears to have substantial control over what happens in each house: and she “still maintains control over the everyday lives of her twin sons”.
21. The applicants’ mother submitted that for educational purposes her twin sons could not leave their home at No 20 because the sub-lease continued until they finished Year 12 at a public secondary school [2004]. In addition, in order to attend this secondary school they had to live in the school catchment area.
22. The applicants’ mother submitted that she had “honestly tried to help the situation improve” – but that the “situation today has been forced on them over time due to personal problems”.
Supplementary Submissions
23. The applicants’ mother did not make any supplementary submissions in relation to the treating family counsellor’s expert report. The respondent filed a response with the Tribunal on 14 January 2005.
24. Mr Howard submitted:
(a)that the applicants’ situation was not “unusual” or “special” and certainly did not necessitate the applicants’ moving out of the family home;
(b)that the decision to live next door to their mother was a choice that was made by the applicants, in conjunction with the applicants’ mother – it was not a requirement; and
(c)that the relationship between the applicants’ mother and her two sons would not have a negative impact on future study prospects given the oral evidence provided to the Tribunal by the applicants’ mother in relation to her son’s academic achievements.
25. Mr Howard qualified these submissions with the following statements:
(a)“much of their [the applicants’] high-school study, and the entirety of Year 11, was spent living in a situation that was supposedly intolerable and placed great pressure upon the boys. Notwithstanding this, it would appear that they have both done well in their studies – in QX053’s case, exceptionally well.”
(b)“Although the domestic arrangements at No 18 may have been less than ideal, this is true of many families. Many people would rather live somewhere other than places in which they are compelled to dwell, out of economic necessity.”
(c)“Further, many families experience conflict and disruption as children become more mature and desire greater independence. Regardless of the condition in which they live, virtually every young man will indulge in ‘risk-taking behaviour’.”
The Tribunal’s Decision-making Powers
26. The question for the determination of the Tribunal is whether the decision [under review] was the correct one [that is, when there is only one decision] or preferable one [that is, when a range of decisions is available] on the material before the Tribunal: See Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, [per Bowen CJ and Deane J, at 68]. In the case of the applicants, there is only one possible decision – whether they are entitled to youth allowance at the away from home rate.
27. Administrative decision-makers are generally required to address the evidence before them and not confine themselves to evidence before a prior decision-maker whose decision is being reviewed unless the relevant legislation requires a decision to be based upon the circumstances at a particular point of time: see Australian Tea Tree Oil Research Institute v Industry Research and Development Board (2002) 124 FCR 316 at 324-326; Comptroller-General of Customs v Akai Pty Ltd (1994) 50 FCR 511 at 521; Jebb v Repatriation Commission (1988) 80 ALR 329 at 333). Case law requires the Tribunal’s decision to be based upon the applicants’ circumstances at a particular point of time – from November 2003 to the end of the 2004 school year.
28. In Jebb, at 333, approved by Stone J in Australian Tea Tree Oil at 325, Davies J described decision-making in the Tribunal as generally a "continuum" in which "the tribunal considers the applicant's entitlement from the date of application, or other proper commencing date, to the date of the tribunal's decision". The Tribunal has adopted this approach in its consideration of the issues.
Tribunal Findings
29. The first issue for the Tribunal is to decide whether it is unreasonable for both applicants to live at home [section 1067A(9)]. The Tribunal accepts the evidence of the applicants’ mother [paragraph 13] and QX052 [paragraph 14] as corroborated by the expert opinion of the treating family counsellor. The expert opinion provided by the counsellor is particularly relevant as it describes a situation where the conflict dynamics are both intense and prolonged, intense outbreaks of anger associated with the conflict and where negative relationship dynamics are undermining the quality of life as a family. Moreover, that the hostilities will continue because certain inherent factors will inhibit conflict resolution.
30. Accordingly, the Tribunal finds that the familial relationship between the applicants’ mother and her twin sons over the period October 2003 and the school year 2004 was extremely volatile to the extent that it represented “exceptional circumstances” as an “extreme family breakdown”. Furthermore, that it would be unreasonable for the applicants to live in the same home as their mother as there would be a serious risk to their physical or mental well-being due to the nature of their mother’s emotional and psychiatric state.
31. In terms of whether the applicants were receiving “continuous support”, “directly or indirectly”, “financial or otherwise” from their mother, the Tribunal finds that the applicants received direct continuous support, financial or otherwise, from their mother from the time they commenced living at No 20 in November 2003 and which continued throughout 2004 [see oral evidence of the applicants’ mother at paragraph 13(f), 16(c) and QX052 at paragraph 14(c)] which are supported by the submissions of Mr Howard [at paragraph 19].
32. Given these findings, the Tribunal concludes that both sections 1067A(9)(a)(i), (ii) and (c) are satisfied. However, section 1067A(9)(b) is not satisfied. Accordingly, applying the statutory criteria for an “independent” person is unnecessary as the applicants are “not independent” persons under the Act.
33. Given this finding, the Tribunal next considers whether there is a need for the applicants to live away from home for the purposes of education.
34. The Tribunal gives weight to the expert opinion of the treating family counsellor in this regard. The intense prolonged conflict dynamics she observed, associated with intense outbreaks of anger and negative relationship dynamics between the applicants and their mother were considered to continue at a level that undermined the quality of their lives. In turn, the counsellor expressed the opinion that these characteristics, would have adverse effects on the applicants’ ability to “maintain a satisfactory level of concentration and focus in their study”. Furthermore, the counsellor observed that the nature of the familial conflict has led to “some inappropriate choices … especially with regard to study habits.”
35. Some of these observations by the treating family counsellor are corroborated by the oral evidence given by the applicants’ mother and QX052.
36. Accordingly, the Tribunal concludes that the “exceptional circumstances” that made it unreasonable for the applicants to live at home also have a central role in a need for both applicants to live away from home for the purposes of education. The Tribunal does not agree with the conclusion of the SSAT that “…the impression and tenor of the evidence provided by [the applicants’ mother] in this case is that while a move next door may have created a more conducive study environment for her sons, the reasons appear to have been primarily economic rather than driven by considerations of enhancing the educational prospects of her sons.” (T2, Folio 11). Such a conclusion cannot be supported by the expert opinion of the treating family counsellor, together with a recognition the expert medical opinion that the applicants’ mother is being treated for anxiety and depression. (Exhibit 2).
37. Accordingly, the Tribunal finds that subsection 1067D(a), (b) and (c)(i) are all satisfied.
38. The Tribunal considers the basis for the supplementary submissions made by the respondent (see para 24) are speculative and that such statements fail to address, or rebut, the expert opinion provided by the treating family counsellor. Furthermore, the Tribunal makes the observation that performance in Year 11 is not necessarily directly related to performance in Year 12 and that there was no factual evidence before the Tribunal both years were comparable; this application for review considered entitlements to Social Security payments for the Year 12 academic year only.
39. Given all of the above reasons, the Tribunal sets aside the decision under review and in substitution thereto decides that the applicants are entitled to youth allowance at the “away from home rate”.
I certify that the 39 preceding paragraphs are a true copy of the reasons for the decision herein of Dr E K Christie, Member
Signed: Camille Banks
AssociateDate/s of Hearing 29 November 2004
Date of Decision 7 February 2005
The applicants were represented by their mother
For the respondent Mr James Howard, Departmental Advocate
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