Semmens and Secretary, Department of Family and Community Service S

[2004] AATA 187

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 187

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2003/82

GENERAL ADMINISTRATIVE  DIVISION		)
Re		NATHAN JOHN SEMMENS

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Associate Professor B W Davis AM (Part-time Member)

Date26 February 2004

PlaceHobart

Decision The decision under review is affirmed.

[Sgd B W Davis]

Part-Time Member

CATCHWORDS

Social Security - youth allowance - qualification criteria - independence - guardian - living arrangements - disability pension - permanence - SSAT.

Social Security Act 1991 and amendments - s1067A(9)

Social Security (Administration) Act 1999

Guide to Social Security Law

Fraser and Secretary, Department of Family and Community Services (2000) AATA 745

Technau and Secretary, Department of Social Security  (1987) AAT No 3922

Wain and Secretary, Department of Social Security (1987) AAT No 3617 

REASONS FOR DECISION

26 February 2004	Associate Professor B W Davis AM (Part-time Member)
Decision Under Review

1.      The applicant, Nathan John Semmens, seeks review of a decision made by Centrelink on 7 November 2002, subsequently affirmed by the Social Security Appeals Tribunal (SSAT) on 25 March 2001 to reject his claim for youth allowance at the independent rate.

Issue

2.      The issue in this appeal is whether Nathan John Semmens is independent, rather than in a guardian relationship, for the purpose of calculating his entitlement to payment of youth allowance.

Standard of Proof

3.      The standard of proof is on the balance of probabilities and to the reasonable satisfaction of the Tribunal.

Legislation

4.      The relevant legislation is the Social Security Act 1991 (“the Act”) and amendments, especially s1067A(9).

Background

5.      The applicant, Nathan John Semmens, experienced a difficult childhood, living with his single mother in his grandfather’s house until age four, then when the grandfather became ill, being “looked after” by his uncle and aunt, Dale and Maggie Anderson at the grandfather’s request, in order to prevent him being taken into State care.   Mr and Mrs Anderson have subsequently looked after Nathan’s welfare for the past 12 years and there is every indication they have treated him as a member of their family and given every attention to this welfare and education.

6.      Despite some learning difficulties Nathan (aged 17) has now achieved full-time employment and considerable independence, but continues to regard the Anderson’s residence as “home”.   Nathan’s mother resides elsewhere and has only seen him once in the past twelve years.   There is no information about Nathan’s father and Nathan is sometimes understandably agitated about his family situation.

7.      Nathan Semmens claimed youth allowance at the independent rate on 30 October 2002, aged 16 years at that time.   On 7 November 2002 Centrelink made a decision to reject the applicant’s claim, on the basis that Nathan continued to live with his aunt and uncle, who were regarded as his long-term guardians.   Mr Semmens, through his uncle Dale Anderson, sought a review of that decision.   On 2 December 2002 the original decision-maker affirmed the decision and on 13 December 2002 an Authorised Review Officer (ARO) further affirmed the decision to reject the applicant’s claim for youth allowance at the independent rate.

8. The ARO noted that Mr Semmens met the qualification criteria set out in s540 of the Act, but concluded he did not qualify for payment under s1067A(9). This was due to the ARO concluding that the applicant’s living arrangements were such that his aunt and uncle (Mr and Mrs Anderson) should be regarded as his long-term guardians and that youth allowance had to be assessed having regard to Mr and Mrs Anderson’s income.

9. On 31 January 2003 the applicant appealed the decision to the SSAT, which after a hearing conducted in Launceston on 25 March 2003, further affirmed the decision on that date. In so doing, the SSAT relied upon s1067A(9), but noted that the Andersons had done their best to care for Nathan, in circumstances which were largely forced upon them. The SSAT was unable to find any discretion which would permit them to vary the decision or find an alternative provision other than application of s1067A(9).

10.     Dale Anderson, on behalf of the applicant, made an application for review by the Administrative Appeals Tribunal on 6 May 2003.

The AAT Hearing

11.     The AAT hearing was conducted in Launceston on 3 February 2004.   The applicant was represented by Dale Anderson and the respondent by Mr Brian Sparkes.   Nathan Semmens was not present and did not give evidence.   Counsel for the respondent queried this; Dale Anderson stated that Nathan had previously been greatly distressed when questioned by Centrelink officers and confidential information about his family situation had been given direct to him, undermining his confidence and morale.

12.     Mr Anderson was sworn as witness and proceeded to explain how he and his wife had come to care for Nathan and what measures they had taken to house, educate and assist Nathan over 12 years, to the stage where he had achieved full-time employment.   He was not Nathan’s legal guardian, had been paid carer’s allowance only, and considered it unfair that after personal sacrifice to assist Nathan, the application for youth allowance had been refused.   He would not abandon Nathan, who still needed some assistance.

13.     Under cross-examination he indicated Nathan had suffered some learning problems, but was now relatively independent and could probably move out of the Anderson residence, but would not do so, considering it his home.   What Mr Anderson was concerned about, was that the process of seeking youth allowance had led to questioning which had undermined Nathan’s confidence.   Nathan does not pay board, but relied upon stable support.   Mr Anderson said he was fighting on principle; he and his wife had sacrificed much for Nathan, the government response was to penalise them for doing this.

14.     Counsel for the respondent said that while he sympathised with Mr Anderson’s situation, Nathan’s application for youth allowance could only treated as the law allowed.   The reality was that the Anderson’s had acted as virtual guardians for twelve years, providing constant care and attention.   Youth allowance was intended to provide assistance for children with little support, but this was not the situation here.   There were a number of case authorities, which he cited, demonstrating that long term care of the kind the Andersons had provided, should be characterised as guardianship.

Analysis

15.     The Tribunal is required to stand in the shoes of the original decision-maker, examining all evidence anew, noting any statutory provisions and any relevant case determinations.

16.     The issue in this appeal is whether Nathan Semmens is independent for the purpose of determining his rate of youth allowance.   The relevant legislation is the Social Security Act 1991, section 1067A(9), but ss 504 and 547 should also be noted, as they set out qualification for youth allowance (YA) and state that youth allowance is not payable if the allowance rate would be nil. Section 1067G of the Act sets out how to calculate the rate payable to a young person, taking into account parental income.

17. The real key, in the current case, is s1067A(9) of the Act which states:

“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.”

18.     The SSAT accepted that Nathan Semmens met criteria (a) and (c), but considered the provisions of criteria (b) warranted further consideration.   Centrelink’s decision had been made on the basis that the Andersons should be regarded as Nathan’s guardians on a long-terms basis; the SSAT decided those circumstances should be examined in more detail.   Having done this, they affirmed the original decision, on grounds that Nathan was in a long-term guardianship relationship with the Andersons and thus did not satisfy the provisions of s1067A(9).

19.     The Tribunal has examined all evidence anew.   It is clear the Andersons have provided a home and ongoing nurture for Nathan for a period of now more than twelve years, and in this sense a close and long-term relationship exists.   However this cannot automatically be regarded as “guardianship”; since living with a relative does not necessarily make the relative a long-term guardian.  (Fraser and Secretary, Department of Family and Community Services (2000) AATA 745 (25 August 2000)).

20. The term “guardian” is not defined in the Act and must therefore be given its everyday meaning, which the Macquarie Dictionary renders as:

“… One who has custody of any person or thing; but commonly he who has the custody and education of such persons as are not of sufficient discretion to manage their own affairs.”

This somewhat disparaging reference is probably better defined in Osbourne’s Concise Law Dictionary as:

“A person having the right or duty of protecting the person, property or rights of one who is without full legal capacity or otherwise incapable of managing his own affairs.”

21.     This goes to a question about the degree of independence and ability to manage his own affairs of the applicant.   It is clear, Nathan Semmens has now achieved some degree of independence through a full-time job, however evidence suggests he continues to rely upon the Andersons and wishes to continue residing at their home.   In Fraser earlier cited and also Wain and Secretary, Department of Social Security (1987)  (AAT No. 3617), there was a question of the duration of care, but here we are dealing with a longstanding relationship.   In Technau and Secretary, Department of Social Security (1987) (AAT No. 3922), there was a question of incapacity, but that centred upon infancy, which is not the principal issue here.. In short the Tribunal is forced to make a judgment about the duration and kind of care provided. The SSAT concluded that the applicant could not be regarded as a dependent, because Nathan Semmens is not the Anderson’s child. Taking into account the purpose of the legislation and the circumstances of the applicant’s living arrangements, the Tribunal is forced to conclude that within the meaning of s1067A(9) of the Act, the Andersons must be regarded as guardians and in this event the claim for youth allowance fails.

Decision

22.     The decision under review is affirmed.

23.     Given the circumstances of this case it may be appropriate for the decision to be conveyed to the applicant via Mr and Mrs Anderson, rather than direct.

I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor B W Davis AM (Part-time Member)

Signed: K L Miller (Administrative Assistant)

Date/s of Hearing  3 February 2004
Date of Decision  26 February 2004
Counsel for the Applicant         Mr Dale Anderson (Applicant's Uncle)
Solicitor for the Applicant           
Counsel for the Respondent     Mr Brian Sparkes
Solicitor for the Respondent     Centrelink