Summers and Department of Family and Community Services - [2001] AATA 619

DECISION AND REASONS FOR DECISION [2001] AATA 619

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A2000/443

GENERAL ADMINISTRATIVE DIVISION       )
           Re      SHERWYN SUMMERS
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
  Respondent

DECISION

Tribunal Senior Member J.A. Kiosoglous

Date2 July 2001
PlaceCanberra

Decision Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decision under review.

(Signed)
J.A. KIOSOGLOUS
(Senior Member)
CATCHWORDS
SOCIAL SECURITY – pensions, benefits and allowances - Youth Allowance – independent rate – whether extreme family breakdown – credibility issues
Social Security Act 1991 s.1067A

REASONS FOR DECISION

2 July 2001 Senior Member J.A. Kiosoglous MBE

This is an application by Mr Sherwyn Summers (the applicant) for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 19 October 2000 (T2) which affirmed, upon review, a decision of an Authorised Review Officer (ARO) of the respondent dated 26 June 2000 (T13). This decision had affirmed decisions of delegates of the respondent not to pay the applicant Youth Allowance.
The Tribunal received into evidence the documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 (T1-T16), together with 31 exhibits, 9 lodged by the applicant (Exhibits A1-A9) and 22 lodged by the respondent (Exhibits R1-R22). The applicant was represented by his mother, Mrs G. Summers. Ms E. Hampton, a departmental advocate, represented the respondent.
The issue before the Tribunal is to determine whether the applicant can be considered to be "independent" as defined in sub-section 1067A(9) of the Social Security Act 1991 (the Act) and therefore entitled to receive Youth Allowance as and from 22 July 1999.
history of the application
On 22 July 1999 the applicant, being 15 years and 23 days old, lodged a claim for Youth Allowance (T3). This claim was rejected on 29 July 1999 on the basis that he did not meet the necessary age qualification (T4). This decision was affirmed upon review on 25 November 1999 (T7).
On 22 February 2000 the applicant's mother, Mrs G Summers wrote to the respondent requesting reassessment on the basis that the applicant was unable to return home "under any circumstances" (T8). On 15 May 2000 the delegate rejected this further claim (T9). This decision was affirmed upon review by an ARO dated 26 June 2000 (T13) and by the SSAT on 19 October 2000 (T2).
applicant's case
Mrs Summers indicated to the Tribunal that the applicant would not be attending the hearing. She stated that due to his attention deficit disorder (ADD), she was in a better position to tell the Tribunal the truth of his circumstances. She indicated to the Tribunal that she wished to proceed in his absence, despite the Tribunal explaining that by not being present, his case was disadvantaged.
Mrs Summers spoke at length to the Tribunal, and was cross-examined by Ms Hampton. In the midst of cross-examination, Mrs Summers got up and left the hearing room, indicating that she wished the matter to conclude in her absence. For reasons which will become apparent in the discussion and findings herein, the Tribunal finds it unnecessary to set out her testimony at great length.
Mrs Summers told the Tribunal that the applicant was born on 29 June 1984, and is apparently still listed as a student at Dickson College, a secondary school in the ACT. She stated that he is dangerous to be around due to his ADD, particularly if he has not taken his medication, and that she cannot tolerate him in her house. She referred to him making homemade bombs in recent times, and complained that she could never have a relationship due to the applicant's presence in her household. She told the Tribunal that her other children need the applicant out of the house for safety and nurturing reasons.
Mrs Summers stated that she rarely sees the applicant. In relation to his apparent employment, she stated that he worked for Bungendore Railways doing gardening and maintenance, mowed lawns and performed maintenance for another person, and worked for a wood and metal working business at various times.
In relation to where the applicant has apparently been living, she stated that he has been out of the house since March 1999, and rents a caravan from his sister. She further stated that she has only visited the van once or twice, and does not know exactly where it is. She thought that it might be on crown land, and stated that although the applicant had previously indicated that he paid rent, it appears he apparently did not have to. She stated that he has paid two amounts of $90 to his sister for the use of the caravan. She thought that the applicant might have a petrol generator, and/or a gas cylinder and mainly managed with candles, enjoying his independence without electricity. She told the Tribunal that he gets groceries from Bungendore or Dickson and presumed that he transports them back and forth on public transport, hitches lifts, or rides his pushbike or motorbike. She further stated that he has a special arrangement with the police allowing him to ride his motorbike unlicensed. Under cross-examination, she also stated that the applicant either takes a bus or train from Boro to school. She thought that he probably hitches a lift to the train or bus station.
Mrs Summers gave sketchy details about the work that the applicant has apparently being doing part-time, from which the Tribunal can only conclude that he has worked sporadically over the past few years, earning a very small amount of money.
Mrs Summers stated that she owns four houses. She attached a value of $2,500 to the "Oakvale" property, and $6,500 to the "18 Willow Road" property. The four bedroom "Elmslea Drive" property has a value of $235,000 in which she considered there to be $5,000 equity. She told the Tribunal that she has been unable to rent the other properties, as they are not fit for habitation. She could not recall ever moving into the Elmslea Drive residence in early 1999, and stated that she has been living in "Shamrocks", a property owned by her ex-defacto, Mr Bateup, to whom she pays rent, whilst she recovers from her various health problems. In that regard, she considered that her poor recall was explained by her health problems.
Mrs Summers told the Tribunal that contrary to representations in documentation lodged with the respondent over the past fifteen or so years, Mr Bateup was not in fact the father of the applicant. She stated that the applicant's father was in fact a Mr Fish, who now resides in Perth, and is, on her evidence, a hopeless alcoholic. She told the Tribunal that Mr Bateup acted as a father figure, and provided "assistance payments" for her children in his capacity as a good friend, and did not pay child maintenance. She conceded, in cross-examination, that the applicant had lived with Mr Bateup at some stage, but could not do so now, due to Mr Bateup's living arrangements. She also made several references to a Centrelink social worker, with whom she has had some apparently acrimonious dealings.
respondent's submissions
Ms Hampton submitted that Ms Summers was not a witness of credit. She further submitted that that the documentary evidence suggests that Mr Bateup is the biological father of the applicant, and that Mr Fish was a ruse being used by Mrs Summers in an attempt to get a further pension. She also submitted that the applicant has in fact lived with his mother at 9 Elmslea Drive throughout the entire period from 1999 onwards, and tendered a number of statements from neighbours on Elmslea Drive, a police officer, the vendor of 9 Elmslea Drive and school information records in support of this submission (Exhibits R18, R22, R19, R20 and R17 respectively).
Ms Hampton submitted that ADD is not a unique diagnosis, and that of itself, in the absence of other evidence, there is no extreme family breakdown. She provided valuations of the four properties owned by Mrs Summers that Mrs Summers had in fact given to financial institutions (Exhibit R21) which contradict Mrs Summers' evidence. She also submitted that Mrs Summers was equivocal and evasive when questioned about the caravan arrangements. In her submission, the amounts earned by the applicant in employment, as attested to by Mrs Summers, would be insufficient to provide for daily needs, leading to the conclusion that the applicant must have been receiving support from Mr Bateup or Mrs Summers in the relevant period.
discussion and findings
The Tribunal remarked, at the outset, that it was unnecessary to canvas the evidence in this matter at great length. This is for the simple reason that, having observed Mrs Summers in the presentation of her evidence and considering the documentary evidence before it contrary to her evidence, the Tribunal rejects her evidence in its entirety. She is a witness totally lacking in credibility and one of the most disreputable persons before this Tribunal in recent memory. Her answers to questions were equivocal and evasive. Whilst she sought to qualify her evasiveness by reference to recent memory problems, in the Tribunal's observation, her memory served her well when she wanted to recall something to support her case, and only deserted her when questions became too tough for her to answer.
Mrs Summers was "caught out" on numerous issues. As an example, the Tribunal notes the clearly false representation she made as to the value of her four houses. Either she lied to the Tribunal in giving valuations of $2,500 and $6,500 for two of the properties, or to her financier, wherein she records 3 properties at Captain's Flat as being worth $80,000, 80,000 and 70,000 respectively (Exhibit R21). Interestingly, that application for a loan also includes diamonds worth $40,000, antiques and paintings worth $40,000, antique furniture worth $20,000 and four cars worth $35,000. Unfortunately Mrs Summers chose to leave the hearing room rather than answer questions which may have at least attempted to explain the extraordinary discrepancies between her testimony and the documentary evidence.
The evidence advanced by Mrs Summers about the caravan living arrangements is best characterised as being simply preposterous. On the applicant's earnings in part-time employment as she listed them, there is no way that he could have survived day-to-day in this mysterious caravan, which apparently exists in a location that no-one could quite ascertain. On her evidence, the applicant worked quite a bit for a Mr Manton, however Mr Manton indicates that he paid the applicant approximately $450 over an eight-month period (Exhibit R13). Mrs Summers would have the Tribunal believe that maybe he hitchhikes to school, or rides his motorcycle illegally (but with police approval). The Tribunal is not so gullible as to accept any of this clearly false and self-serving testimony.
The documentation before the Tribunal suggests to the contrary that the applicant moved into the 9 Elmslea Drive property with his family in 1999. He has also apparently found accommodation with Mr Bateup as and when he needed to. The Tribunal prefers the documentary evidence in every respect, and notes in particular the statements referred to in paragraph 14 herein.
In the absence of any evidence untainted by Mrs Summers' involvement in these proceedings, which would suggest extreme family breakdown, the Tribunal is entirely unsatisfied that there is such extreme family breakdown so as to warrant the granting of the independent rate of Youth Allowance in this case. Accordingly, the decision under review should be affirmed.
The Tribunal notes that, despite it being suggested on numerous occasions to the applicant and his mother, it has apparently remained the case that he has not applied for Youth Allowance since turning sixteen years of age (whereby he may or may not be eligible for the normal rate, subject to satisfying the other qualifying criteria). Mrs Summers stated that she did in fact lodge such a claim at some stage, however the Tribunal does not accept this as being truthful. The applicant is still entitled to lodge such a claim, although on the current available evidence, would not be eligible at the independent rate.
decision
For the reasons given, and pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decision under review.
I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member J.A. Kiosoglous
Signed:         ....................(Signed)............................................
  Personal Assistant
Date/s of Hearing  16 May 2001
Date of Decision  2 July 2001
Counsel for the Applicant        Mrs G. Summers (mother)
Solicitor for the Applicant         -
Counsel for the Respondent    Ms E. Hampton
Solicitor for the Respondent    Centrelink