Simakovic and Secretary, Department of Family and Community Servi Ces

[2003] AATA 812

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 812

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2003/225

GENERAL ADMINISTRATIVE DIVISION		)
Re		ALEKSANDAR SIMAKOVIC

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Ms J Cowdroy, Member

Date19 August 2003 

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

(Sgd) J Cowdroy
  Member

CATCHWORDS

SOCIAL SECURITY – benefits and entitlements – youth allowance – applicant seeks payment at the “unreasonable to live at home rate” – whether it is unreasonable for the applicant to leave at home - whether there has been an “extreme family breakdown” – whether there is a risk to the applicant’s mental or physical well-being – whether applicant receiving direct or indirect support

Social Security Act 1991

Re Ness and Department of Employment, Education, Training (AAT 12648, 25 February 1998)

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

REASONS FOR DECISION

19 August 2003  Ms J Cowdroy, Member

Background

1.      The applicant, Mr Simakovic applied for Youth Allowance at the independent (unreasonable to live at home) rate on 30 July 2002. On 15 August 2002, Centrelink rejected that claim. Mr Simakovic applied for a review of the decision by an authorised review officer, who affirmed the decision, advising Mr Simakovic by letter dated 21 October 2002. 

2.      Mr Simakovic appealed to the Social Security Appeals Tribunal (SSAT) on 14 November 2002.  The SSAT affirmed the decision on 11 February 2003, and Mr Simakovic sought a review of that decision by this Tribunal on 12 March 2003.

Appearances

3.       The matter was heard on 27 June 2003.  The applicant attended the hearing but was not represented.  Ms Shea appeared on behalf of the respondent, the Secretary, Department of Family and Community Services.  

4.      At the hearing the following material was taken into evidence.

§Exhibit 1 – documents prepared in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the T-Documents (T1-T39));

§Exhibit 2 – a bundle of documents containing the respondent’s statement of facts and contentions and annexure A to E;

§Exhibit 3 – a statement by the applicant dated 25 June 2003; and

§Exhibit 4 – a letter from the applicant dated 6 May 2003.

Evidence

5.      The applicant immigrated from Serbia with his family in 1989, initially residing in Sydney.  Between 1989 and 2002, the family regularly relocated, including returning to Serbia on one occasion, before settling in Brisbane.  The applicant’s family currently resides in a unit in Victoria Street, Fairfield.

6.      The applicant disliked the constant moving and this often led to arguments with his father. Also the subject of dispute was the applicant’s academic performance. The applicant’s father was an excellent student and had high expectations of his son. 

7.      The applicant indicated there was one occasion when his father assaulted him and on one or two occasions he had witnessed his father slap his sister. Those incidents occurred some time before the applicant’s claim for Youth Allowance. The constant arguments between the applicant and his father resulted in the applicant’s father asking him to leave the family home. 

8.      The applicant moved out of the family home on 28 July 2002 into another unit in the same block as his family’s home (Victoria Street, Fairfield).  The unit had been purchased with a home loan (granted on 10 July 2002) for which his father, Branislav Simakovic, was guarantor. The unit is registered in the name of the applicant. The applicant applied for, and was granted, the Commonwealth Government’s first home grant.  On 21 June 2002, a joint bank account in the names of the applicant and his father was opened. The home loan repayments were made from this account.

9.      The applicant’s father provided the deposit for the purchase of the unit ($12,000) and paid all the expenses associated with the purchase.  The applicant paid the first mortgage payment from savings he had acquired and rent from a tenant, who stayed for only a short time. The applicant's father, as guarantor paid the next three payments, as the bank was threatening legal action. In addition, the applicant had received money from his grandfather and family friend, Mr Gluhajic, to assist in covering his loan repayments and living expenses.

10.     Mr Simakovic was granted Youth Allowance at the independent rate (unreasonable to live at home) with effect from 16 April 2003 on the grounds that all financial support had been withdrawn by his parents.

Issues before the Tribunal

11.     The issue before the Tribunal is whether the applicant is entitled to receive Youth Allowance at the “unreasonable to live at home rate” during the period 30 July 2002 and 16 April 2003.

Legislative Framework

12.     The Social Security Act 1991 (the Act) provides that Youth Allowance is payable in accordance with the provisions of the Act where the eligibility requirements in section 540 are met and where the applicant is “independent” within the meaning of section 1067A(9) of the Act.  There is no dispute in this case that the eligibility requirements in section 540 of the Act are met.  What is in issue, however, is whether the applicant is “independent”.. In this regard, section 1067A(9) of the Act provides:

“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 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 other person who is acting as the person’s guardian or 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, State or Territory.”

13.     The parties agree that the applicant satisfies section 1067A(9)(c) of the Act and the Tribunal so finds.  The Tribunal then must consider whether sub-sections 1067A(9)(a) and (b) of the Act are satisfied in order to determine whether the applicant is entitled to Youth Allowance at the independent (unreasonable to live at home) rate.

Applicant’s Case

14.     The applicant contends that he satisfies section 1067A(9)(a)(i) of the Act, in that he cannot live with his parents because of extreme family breakdown or similar exceptional circumstances.  The applicant argues that the on-going conflict with his father means that he can no longer reside in the family home.  His father asked him to leave and, if he had refused, “there would have been extreme consequences”. 

15.     The applicant further contends that he satisfies section 1067A(9)(a)(ii) of the Act, in that he cannot live with his parents, as there would be a risk to his mental well-being due to violence or other unreasonable circumstances. The poor relationship between the applicant and his father resulted in constant arguments. This, he contends, was an inappropriate way to live and the constant arguments impacted on his mental well-being. 

16.     The applicant further contends that he satisfies section 1067A(9)(a)(iii) of the Act, in that his parents were unable to provide him with a suitable home owing to a lack of stable accommodation. The applicant was forced to move on several occasions and he claims that this amounts to unstable accommodation.  Further, he argues that the accommodation that was ultimately provided was unsuitable as it was only a two-bedroom unit.

17.     Finally, the applicant contends that he satisfies section 1067A(9)(b) of the Act, in that he is not receiving continuous support, whether direct or indirect or whether financial or otherwise. He claims the initial expenses associated with the establishment of the loan and purchase the unit, as well as the three loan repayments met by his father, were “one off payments” and should not be considered as continuous support.  The monies received from Mr Gluhajic and the applicant’s grandfather were in the form of a loan and were repaid.        

Respondent’s Case

18.     The respondent contends that the applicant will only be eligible for receipt of Youth Allowance as at 30 July 2002 if he satisfies section 540 and section 1067A(9) the Act.  The respondent concedes that the applicant satisfies section 540 of the Act in that, at the time of his application, he was a full-time secondary student.  The respondent further concedes that the applicant satisfies section 1067A(9)(c) of the Act.  However, the respondent contends that the applicant does not satisfy the criteria in sub-sections 1067A(9)(a) and (b) of the Act.

19.     The respondent contends that the applicant does not satisfy section 1067A(9)(a)(i) of the Act in that he is not prevented from living with his parents because of extreme family breakdown or other exceptional circumstances.  The respondent argues that the types of circumstances contemplated under this provision are not applicable in this case.  These circumstances include documented behavioural and/or health problems of one or more family members; substance abuse and/or anti-social behaviour of the young person beyond the capacity of either parents or specialists to resolve; evidence of a threat to the young person or another family member’s well-being if the young person lived at home; or unsuccessful attempts to resolve the issues.

20.     The respondent argues that although Mr Simakovic’s father showed an unwillingness to allow his son to live at home, Mr Simakovic contributed to the conflict with his father by indicating an unwillingness to meet his father’s expectation that he apply himself to his studies or be prepared to undertake employment.  Further, the respondent contends that the applicant did not suffer from “any other similar exceptional circumstances”, such as criminal activity or substance abuse by his parents, or severe neglect, inadequate food, clothing, shelter, hygiene, medical attention, or by having extreme or abnormal demands placed upon him.       

21.     The respondent contends that the applicant does not satisfy section 1067A(9)(ii) of the Act in that he is not prevented from living with his parents because there would be a serious risk to his physical or mental well-being due to violence or other similar unreasonable circumstances. 

22.     The respondent contends that the applicant does not satisfy section 1067A(9)(iii) of the Act in that his parent were able to provide him with a suitable home and stable accommodation. The respondent argues that this sub-section applies in situations where a young person’s parents have not provided adequate housing by choosing inadequate housing or unsuitable locations.  Although it could be argued that inadequate provision had been made for Mr Simakovic’s accommodation, when the family of four moved into a two bedroom unit, the respondent contends that the alternative accommodation provided by Mr Simakovic’s father, in the form of a unit in the same block, was stable and suitable accommodation. 

23.     Finally, the respondent contends that the applicant does not satisfy section 1067A(9)(b) of the Act in that he is receiving continuous support whether direct or indirect, or whether financial or otherwise.  The respondent argues that, in this case, the applicant’s father was providing ongoing financial support by paying the initial expenses associated with the establishment of the loan and purchase of his son’s unit.  His father allowed him to take his clothing and some furniture when he moved out of the family home. The applicant’s father has paid three months of loan repayments valued at $1,920. In addition the applicant received financial support from his grandfather and family friend, Mr Gluhajic. 

Consideration

24.     In order to be “independent” for the purposes of the payment of Youth Allowance, a person must satisfy all the three criteria contained in section 1067A(9) of the Act.  That is, the person must be unable to live at home for one of a number of specified reasons (section 1067A(9)(a)); they must not be receiving support, whether directly or indirectly, or whether financial or otherwise (section 1067A(9)(b)); and they must not be receiving income support payments other than social security payments (section 1067A(9)(c)).  As indicated earlier, the parties have agreed that section 1067A(9)(c) of the Act has been satisfied in this case, and the Tribunal has so found. That leaves only for consideration, the question of whether sub-sections 1067A(9)(a) and (b) are satisfied.

Section 1067A(9)(a)

25.     Under section 1067A(9)(a), a person will be “independent” if they are unable to live at the home of their parents because of extreme family breakdown, or other similar exceptional circumstances (section 1067A(9)(a)(i)); or because there would be a serious risk to the person’s physical or mental well-being (section 1067A(9)(a)(ii)); or because the parents are unable to provide the person with a suitable home due to a lack of stable accommodation (section 1067A(9)(a)(iii)).

26.     The meaning of phrase “extreme family breakdown” was considered by Deputy President Barnett and Dr Gillings, Member in Re Ness and Department of Employment, Education, Training (AAT 12648, 25 February 1998).  Although this phrase was considered in the context of Austudy entitlements it provides a useful interpretation.  The Tribunal stated:

“35.  This cases raises important issues about what constitutes a family breakdown.  The possibilities are many, depending upon the point of examination.  From one point of view a family where the parents have separated has broken down but, if one parent provides a stable home for the student, that becomes the student’s family unit and, from the student’s perspective there has not been an extreme family breakdown.  In another case the student’s family and siblings may continue on a close knit family unit but if the student is excluded from the family home there is, from the student’s point of view, an extreme family breakdown and it is not reasonable to expect the student to live in the family home.

36.  What place does fault play in such cases?  If the student had been excluded through no, or little, fault of his or her own and is prohibited from returning, clearly this would be extreme family breakdown from the student’s perspective; particularly as this legislation is designed to facilitate his or her study.  What if the need to leave home was the fault, or mainly the fault, of the student?  This becomes relevant on the question of whether it would be reasonable for the student to return home.  If reasonable adjustment to the student’s pattern of behaviour would open the door back into the family home then it cannot be said that it is ‘unreasonable’ that the student live at the home of his parents because of extreme family breakdown.

37.  If, however, the family breakdown is so extreme, from whatever cause and because of whoever’s fault, that no reasonable adjustment of the student’s behaviour will mend the family breakdown, then, at that stage, it is unreasonable that the student live at the home of his or her parents because of extreme family breakdown.” (Tribunal’s emphasis)

27.     For the purpose section 1067A(9)(a)(i), any family breakdown must be extreme when considered in the context of the whole family situation. Ongoing conflict with a parent, or a parent’s refusal to allow the young person to return home, alone, is insufficient grounds to constitute an extreme family breakdown under the Act.

28.     While the Tribunal acknowledges there has been a breakdown in the family relationship in this case, particularly with regard to the relationship between Mr Simakovic and his father, it is not satisfied that the breakdown constitute an “extreme family breakdown”. 

29.     In evidence the applicant stated that he had been forced to leave home after continued conflicts with his father over his study habits and other issues.  He said that he attempted to resolve the arguments and misunderstandings with his father on numerous occasions, albeit unsuccessfully.  The Tribunal observes that the conflict between the applicant and his father has mainly arisen from the father’s perceptions about his son’s lack of commitment to his studies.   

30.     Further, the Tribunal notes that the applicant was not “forced” to leave home without any provision having been made for him.  The applicant’s father provided the deposit for, and went guarantor on, a home loan with which they purchased a unit for the applicant to reside in.  That unit is in the same block as the applicant’s parents.  The Tribunal considers that this action demonstrates that the family relationship has not been so damaged that it can be said the applicant’s father has withdrawn all support for him.

31.     With regard to the meaning of the phrase “other similar exceptional circumstances” in section 1067A(9)(a)(i), the guidelines published by Centrelink provide assistance.  The Tribunal notes that, although it is not bound to apply departmental guidelines, it will usually do so unless there are cogent reasons not to (see Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634). The guidelines in this case provide examples of circumstances which may fall within the category of “other similar exceptional circumstance”.. These include situations were there is criminal activity or substance abuse by the parents, or severe neglect where adequate food, clothing, shelter, hygiene, medical attention and supervision are not being provided, or where extreme and abnormal demands are placed on the young person.

32.     There is no evidence before the Tribunal that any member of Mr Simakovic’s family has a behavioural or drug-related problem, or that they were engaged in criminal conduct, such that it would be unreasonable for him to remain in the family home.

33.     The Tribunal is satisfied that, at all times, the applicant’s parents have provided him with adequate food, shelter, hygiene, medical attention and supervision.  The fact that the family has moved frequently does not alter that finding. 

34.     In evidence the applicant stated that his father had asked him to find part-time employment and to apply himself to his studies.  The Tribunal does not consider these demands to be extreme or abnormal.

35.     Therefore, the Tribunal finds that section 1067A(9)(a)(i) of the Act is not satisfied.

36.     With regard to section 1067A(9)(ii) of the Act, the Tribunal is of the view that the applicant is not prevented from living with his parents because a serious risk to his physical or mental well-being due to violence, other similar unreasonable circumstances. Although the Tribunal accepts that the applicant was assaulted by his father on one occasion, it is of the view that it was an isolated incident and there is no ongoing risk of violence to the applicant. 

37.     There is no medical evidence before the Tribunal to support the conclusion that the applicant’s emotional stability or development is inconsistent with that expected of an adolescent, due to the nature of his home environment.   Accordingly, the Tribunal finds that section 1067A(9)(a)(ii) is not satisfied in this case.

38.     Turning then to section 1067A(9)(a)(iii) of the Act.  The Tribunal concludes that the applicant’s parents have provided him with a suitable home and stable accommodation.  While the Tribunal acknowledges that constant moving of home is undesirable, those circumstances have now passed.    

39.     In accordance with the guidelines published by Centrelink, a young person’s parents are assumed to have some choice with regard to the accommodation they provide for themselves and their family. Suitability is not measured by whether the accommodation is a temporary situation resulting from choices made by the parent or whether the home can accommodate the size of the family.  It is measured by reference to whether the accommodation chosen is equipped with amenities such as water and electricity and is sufficiently furnished to provide a comfortable living environment.

40.     In addition, the Tribunal notes that the applicant’s father took steps to provide Mr Simakovic with the home unit he now owns prior to asking him to move out of the family home.    

41.     Accordingly, the Tribunal is satisfied that the requirements of section 1067A(9)(a)(iii) have not been met in this case.

Section 1067A(9)(b)

42.     Given the Tribunal’s findings in relation to section 1067A(9)(a), it is strictly unnecessary for the Tribunal to consider this issue.  However, for completeness, the Tribunal will provide brief reasons as to why it is not satisfied that the applicant meets this sub-section of the Act.

43.     The Tribunal considers that the applicant was in receipt of continuous support from his parents, particularly his father. The applicant’s father paid the initial expenses associated with the establishment of the loan and purchase of his son’s unit.  Significantly, the applicant’s father is the guarantor of his home loan and has, on more than one occasion, met Mr Simakovic’s repayment obligations when he was unable to do so.  The applicant submitted that the payments made by his father were “one off payments”, however, the Tribunal is not persuaded by this argument.  As the guarantor of the loan the applicant’s father has an obligation to meet these payments in default of the loan.  He has done so when the applicant was in default and there is no evidence before the Tribunal to suggest that he would not continue to do so in the future, if called upon by the financial institution.  This is sufficient to constitute continuous indirect financial support. 

Decision

44.     For all the above reasons, the Tribunal affirms the decision under review.

I certify that the 44 preceding paragraphs are a true copy of the reasons for the decision herein of Ms J Cowdroy, Member

Signed:         Sarah Oliver
  Associate

Date of Hearing  27 June 2003
Date of Decision  19 August 2003

The Applicant appeared in person
Solicitor for the Respondent      Ms T Shea, Departmental Advocate