SEAN BURNS and SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

[2012] AATA 267

[2012] AATA 267  

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2011/4840
Re	SEAN BURNS
APPLICANT
And	SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
RESPONDENT

DECISION

Tribunal	Hon R J Groom AO (Deputy President)
Date	7 May 2012
Place	Hobart

Decision Summary

The decision under review is set aside and in substitution:

(1)   The Tribunal decides that it has been unreasonable for the applicant to live at home since the 25 May 2011.  For the purposes of the Social Security Act (1991) he has therefore been “independent” since that date.

(2)   The matter is remitted to the respondent for the purpose of assessing the applicant’s entitlement to youth allowance in accordance with this decision.

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Hon R J Groom AO (Deputy President)

CATCHWORDS

SOCIAL SECURITY – youth allowance – whether entitled to allowance at the independent rate – whether unreasonable for applicant to live at home – whether there has been an “extreme family breakdown” – whether the emotional wellbeing of the young person or another family member would be jeopardised – extreme family breakdown exists – serious risk to health of mother – decision under review set aside

LEGISLATION

Social Security Act 1991 s1067A (9)

CASES

Re M.T. and Secretary, Department of Social Security (1986) 9 ALD 146

Re Kandasamy and Secretary, Department of Social Security (1987) 11 ALD 440

Re Ness and Department of Employment, Education and Training (1998) 50 ALD 925

REASONS FOR DECISION

Hon R J Groom AO (Deputy President)

7 May 2012

INTRODUCTION

1. The decision now being reviewed is a decision of the Social Security Appeals Tribunal (SSAT) dated 18 October 2011.  The SSAT decision affirmed an earlier decision by Centrelink not to pay the applicant youth allowance at the higher independent rate. 

   THE LEGISLATION

2. A person is entitled to be paid youth allowance at the higher independent rate if it is unreasonable for that person to live at home.

3. Section 1067A (9) of the Social Security Act 1991 “(The Act)” provides as follows :

   Unreasonable to live at home

   “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 Territory”.

   THE ISSUE

4. The principal issue to be determined is whether it is unreasonable for the applicant to live at home and in particular whether “extreme family breakdown or other similar exceptional circumstances” are present in this case. 

   BACKGROUND FACTS

5. The applicant Sean Burns was born on the 4 May 1995.  He is therefore now sixteen years of age and is a student at the Jordan River Learning Federation senior school.  He is presently living with his brother Todd and his sister- in- law Sarah. 

6. Sean’s biological parents Micheline Lang and Brendan Burns separated more than ten years ago.  Sean is the youngest of five sons of that relationship.  In 2006 Sean’s mother became the partner of Brendan Lang.  They married about two years later. 

7. In May 2011 Sean was the only brother still living at home with Ms Lang. 
   Also living in the house at the time was Sean’s stepfather Mr Lang and a stepbrother.

8. On or about the 25 May 2011 Sean became involved in a heated argument with his mother after he had been suspended from school for smoking.  Since Sean was thirteen years of age he and his mother had been involved in frequent arguments about various issues.

9. Following the argument on or about the 25 May 2011 Sean decided that it was “getting too hard to live there”.   He said because of the constant arguments :

   “I was getting depressed… I was having trouble doing work at school”

   Sean packed his belongings to leave the house.  He was still at the premises however when his mother told him to get out.   She has since refused to allow him to return to live at home.  In the “Unreasonable to Live at Home” claim form lodged by Sean (T4) he stated that he was “kicked out by mum”.  As mentioned Sean then went to live with his brother Todd.

10. According to Ms Lang’s general practitioner Dr Bridgette Watts, Sean’s mother has been suffering anxiety and depression for a number of years.  Dr Watts said her depression can at times be “quite severe”.   Dr Watts explained that Ms Lang’s condition fluctuated and the fluctuations related to “…the home situation”.  In Dr Watt’s opinion if Sean moved back to live at home Ms Lang’s medical condition “would deteriorate”. 

    `Dr Watts said further that if Sean lived at home with his mother :

    “The anxiety and depression would become much worse”.

11. Sean has also had a strained relationship with his stepfather Mr Lang.  Sean explained to the Tribunal that this relationship had also had its “ups and downs”.

12. Sean said of his natural father:

    “my dad Brendan Burns left us when I was five years old.  We do not contact each other, and I have not spoken to him since I saw him in the street about a year ago.  I cannot live with him because he does not have his own house and stays at his brother’s house”. (Exhibit A1)

    In the “Social Work Report” (T7) it is stated as follows :

    “…he had had very limited contact with his biological father who currently has no accommodation and was recently released from prison” (T7 page 22).

    IS THERE PRESENT IN THIS CASE “EXTREME FAMILY BREAKDOWN” OR “SIMILAR EXCEPTIONAL CIRCUMSTANCES” ?

1. In addition to s1067(A)(9) of the Act, The Tribunal has considered the Social Security Guide which provides at 3.2.5.40 as follows:

   “3.2.5.40 Assessment of Extreme Family Breakdown & Other Similar Exceptional Circumstances

   How is breakdown established

   For the purposes of independence, family breakdown may be due to various causes but must be extreme.  Family breakdown must be considered in the context of the whole family situation, and must establish circumstances where it is unreasonable to expect the person to remain in that family environment.

   The existence of ongoing conflict alone is insufficient grounds to grant independence under this criteria.  Factors which may indicate extreme family breakdown include:

   ·One or more members of the family are experiencing documented behavioural and/or health problems which can be attributed to the breakdown of the family relationship,

   ·The young person’s substance abuse and/or anti-social behaviour is so extreme that specialised intervention has been unsuccessful and it is beyond reasonable expections for the parent(s) to have the capacity to resolve the situation.

   ·Evidence that the emotional or physical well-being of the young person or another family member would be jeopardised if the young person were to live at home,

   ·Unsuccessful attempts have been made to resolve the issue(s), for example through counselling or mediation.

   Ongoing emotional and personal support from a parent can influence the assessment of whether, or not, there is extreme family breakdown.  Such support may indicate that breakdown is not extreme.

   Parents refuse to allow young person to live at home

   If parents refuse to allow the young person to live at home, this does not constitute ‘extreme family breakdown’ unless there is evidence of extreme and enduring family conflict.  This applies particularly if the young person has provoked the response from parents by unwillingness to meet reasonable expectations”.

2. The above Guide cannot supplant the applicable legislative provisions.  But as has been recognised in a number of decisions of this Tribunal, this type of Guide can provide additional understanding arising from the extensive experience of those tasked with administering a relevant scheme.  See, for example, re M.T. and Secretary, Department of Social Security (1986) 9 ALD 146 at 150 and re Kandasamy and Secretary, Department of Social Security (1987) 11 ALD 440 at 445.

3. Such a Guide can also help achieve consistency. However consistency, although obviously most desirable, must not be at the expense of individual justice which the Act itself seeks to create.

4. According to the Guide a factor which may indicate extreme family breakdown is if the health of the young person involved or another family member would be at risk if the young person were to live at home.

5. The Tribunal finds Dr Watt’s evidence to be persuasive.  Dr Watts has conducted many consultations with Ms Lang since July 2009 and has a sound knowledge of her health problems.  Obviously Dr Watts did not witness the constant arguments between Sean and Ms Lang but the Tribunal is satisfied on other evidence that those conflicts and arguments did occur and were sufficiently serious to cause harm to Ms Lang’s mental health.  It accepts as accurate and reliable Dr Watt’s opinion that Ms Lang’s mental health (and also her “emotional wellbeing”) would be seriously jeopardised if Sean was to return to live at home with his mother.  The Tribunal finds that if Sean did return to live with her Ms Lang’s anxiety and depression would become “much worse”.

6. Although the medical evidence from Dr Watts related to the likely effect on Ms Lang’s health, the Tribunal is also satisfied that if Sean was to return to live at home with his mother it would also adversely impact upon his own mental wellbeing. He said in evidence that he was “getting depressed” because of the constant arguments with his mother and as a result he was having trouble doing his school work.  The Tribunal accepts this statement as reliable.  Sean gave frank evidence and in the Tribunal’s view was an honest witness. 

7. Mr Sparkes for the respondent placed a good deal of reliance on the written report of  R. Seager, a social worker, (T7) and reported comments by the principal of Bridgewater High School (T7 page 24).  Neither was called to give oral evidence.  The Tribunal finds the oral evidence of Sean and Dr Watts more persuasive than the written report of the social worker which expresses the opinion that there had been “no extreme family breakdown or other exceptional circumstances” and cited comments from the school principal and Sean’s sister-in-law Stacey  in support of that conclusion. 

8. As the Guide indicates a refusal of a parent to allow a young person to continue to live at home is not itself conclusive evidence of “extreme family breakdown”.  This is particularly so when the young person has provoked such a response through an “…unwillingness to meet reasonable expectations”.

9. The Tribunal however finds that the cause of the constant conflict between mother and teenage son was in reality a combination of factors.   The principal cause was Ms Lang’s health problems and her inability, because of those problems, to cope with the challenging behaviour and attitudes of her teenage son.  In addition, Sean’s own conduct has obviously exacerbated the situation.  The Tribunal however is satisfied that the cause of the ongoing arguments and conflict was not Sean’s behaviour alone.

10. Sean is not receiving continuous support from a parent or another person acting as his guardian nor is he receiving payments in the nature of income support from the Commonwealth or a State or Territory (see s1067A (9) (b) (c)).

11. The Tribunal is further satisfied that Sean would not be able to live with his biological father because of his inability to provide Sean with a suitable home owing to a lack of stable accommodation (see s1067A (9) (a) (iii) of the Act).

    CONCLUSION

12. After considering all the material before it the Tribunal is satisfied that in this case there is present a family breakdown which was extreme in nature.

13. The evidence establishes that Sean and his mother did not get along and were constantly involved in serious heated arguments over various issues.  This had continued for a number of years.  The principal cause of the serious breakdown in the relationship was Ms Lang’s health problems and her resultant inability to cope with Sean’s behaviour.

14. The Tribunal is satisfied on the evidence that on or about the 25 May 2011 Sean’s mother ordered him to leave the house.  On a number of occasions since that date she has refused to allow him to return to live with her.  Ms Lang continues to hold the view that Sean must not return to live at home as it would cause a serious deterioration in her health.  Ms Lang has indicated an unwillingness to mediate the ongoing conflict between herself and her son (T7 page 23).

15. The Tribunal is satisfied that this is not a case of a normal family disagreement or conflict.  The evidence satisfied the Tribunal that there has been an extreme breakdown in the family relationship.  This is clearly not a case where the applicant has simply chosen to live away from home in order to receive  the allowance at the independent rate.  The cause of his departure from home was the very serious breakdown in the relationship with his mother and the constant arguments that had been occurring for a number of years.

16. In the circumstances of this case the Tribunal finds that if Sean did adjust his pattern of behaviour it would not resolve the conflict between him and his mother.  The Tribunal is convinced that if Sean returned to live at home further arguments and conflict will occur causing harm to the state of health of both Sean and his mother.  The “reasonable adjustment to the student’s pattern of behaviour” principle set out at paragraph 36 of the Tribunal’s decision in re Ness and Department of Employment Education and Training (1998) 50 ALD 925 does not provide an answer in the particular circumstances of this case.

17. The Tribunal concludes on the totality of the evidence that there is present in this case “extreme family breakdown” which has existed since the 25 May 2011 and continues to this day.

    DECISION

18. The decision under review is set aside and in substitution:

    (1)The Tribunal decides that it has been unreasonable for the applicant to live at home since the 25 May 2011.  For the purposes of the Social Security Act (1991) he has therefore been “independent” since that date. 

    (2)The matter is remitted to the respondent for the purpose of assessing the applicant’s entitlement to youth allowance in accordance with this decision. 

I certify that the preceding 30 (thirty ) paragraphs are a true copy of the reasons for the decision herein of Hon R J Groom AO (Deputy President).

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Administrative Assistant

Dated 7 May 2012

Date of hearing	29 March 2012
Counsel for the Applicant	Mr Henry Pill
Solicitors for the Applicant	Hobart Community Legal Services
Counsel for the Respondent	Mr Brian Sparkes
Solicitors for the Respondent	Centrelink – Program Litigation and Review Branch