Thomas-Angelo and Department of Family and Community Services
[2001] AATA 699
•6 August 2001
DECISION AND REASONS FOR DECISION [2001] AATA 699
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2000/972
GENERAL ADMINISTRATIAVE DIVISION )
Re AURTHUR THOMAS-ANGELO
Applicant
And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Mr K L Beddoe (Senior Member)
Date6 August 2001
PlaceBrisbane
Decision The Tribunal decides: (a) to set aside the decision under review; (b) to determine that the applicant needs to live away from home for the purpose of eduction; and (c) to remit the matter to the respondent to give effect to the Tribunal's decision.
(Sgd) K L Beddoe
Senior Member
Decision No: 699/2001
CATCHWORDS
SOCIAL SECURITY - youth allowance - away from home rate - gifted student - need
Social Security Act 1991 s5, s1067A, s1067D, s1067E
Re Sachs and Director-General of Social Security (1984) 6 ALN N22
REASONS FOR DECISION
6 August 2001 Mr K L Beddoe (Senior Member)
On 18 September 2000 the Social Security Appeals Tribunal ("the SSAT") affirmed a decision made by an Authorised Review Officer ("ARO") on 28 June 2000 not to pay the applicant youth allowance ("YA") at the "away from home rate".
The applicant applied to this Tribunal for a review of that decision by application dated 13 October 2000 and received in this Tribunal on 19 October 2000.
At the hearing Ms Heyworth-Smith appeared for the applicant and the respondent was represented by Mr Foster. The documents lodged in the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were before the Tribunal as the "T" documents and a copy of a document headed "North Coast Institute of TAFE – Tertiary Preparation", was tendered and marked as exhibit A. No oral evidence was given.
This Tribunal finds the facts of the matter to be agreed as follows. The applicant is a secondary school student, born on 19 October 1983. His family live in Murwillumbah in northern New South Wales. The applicant resided with his parents during the initial years of his high school education. The applicant was then attending the local government high school – the Murwillumbah High School.
The applicant was successful in gaining a tuition-only scholarship to attend The Southport School ("TSS") at Southport in Queensland covering the school years 2000 and 2001. These years coincide with the applicant's final years of secondary schooling (years 11 and 12). The applicant applied for and was granted YA which was paid at the "living at home rate" from the start of the 2000 school year.
After unsuccessfully applying to be paid YA at the "away from home rate" (T4, T9, T11, T12, T15), the applicant moved out of the family home advising the respondent of this in a letter dated 11 May 2000 (T16). The applicant moved in with his grandmother who resides at Tugun, Queensland. The applicant apparently continues to reside there. The applicant continues to attend TSS and is currently in year 12.
Section 1067D of the Social Security Act 1991 ("the Act") states:
(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
(ii)the likelihood of the person's getting employment will be significantly increased if the person lives away from home.
Section 1067A of the Act sets out the criteria which must be fulfilled before a person can be said to be independent.
The main issue is whether the applicant is eligible for youth allowance at the "living away from home rate".
The Applicant's Contentions
It was submitted that the applicant is an above average and gifted student who, though given extra tuition at a higher level in his year eight at the Murwillumbah High School, was not afforded such assistance in the following two years of schooling. This failure to stimulate the applicant's scholastic abilities resulted in a loss of interest by the applicant in his schoolwork and a resulting falling of his school grades. His parents were concerned that the applicant may have dropped out of school during or before completion of his 10th year.
The applicant sat for and was awarded a tuition-only scholarship to TSS thereby confirming his academic ability. The curriculum at TSS provides the challenge the applicant needs to stimulate his ability and provides the subjects needed for the applicant to fulfil his desire to become a robotics engineer (T2, page 8, paragraph 29).
Further, it was submitted that prior to moving in with his grandmother, the applicant, as a fifteen year old boy, would, on occasions, have to hitch-hike to the appropriate bus-stop as part of a three hour trip from his family home to TSS. This, it was submitted was an unreasonable amount of time to travel to an academic institution and the evidenced the need to live away from home.
No rent is currently being paid to the grandmother, however, it is the applicant' intention to pay rent if and when he is paid YA at the "away from home rate". The applicant makes the current contention that he is eligible for YA at the "away from home rate" because he no longer resides with his parents.
The applicant had considered finishing his senior studies at the local TAFE if he could not attend TSS because he was not happy at the local high school (T2, page 7 and 8, paragraph 27). The curriculum of this institution was provided to this Tribunal (Exhibit A).
It was contended that this matter involves the issue of whether the applicant "needs" to live away from home for the "purpose of education" (section 1067D(c)(i)).
An excerpt from the Macquarie Dictionary was submitted to assist the Tribunal with a definition of "education" being:
The act or process of education; the imparting or acquisition of knowledge, skill, etc;
This definition, with particular emphasis on the "acquisition of knowledge", it was submitted, supported the contention that if a student is unable to learn at a particular institution he or she is not being educated. In this context, the applicant was said to not be receiving an education at the Murwillumbah High School and so he needed to live away from home to receive an education.
In addition, it was contended that as the applicant is now in his final semester of grade 12, transferring back to the New South Wales school is not an option for the applicant.
It was argued that the "real need" to live away from home was the converse of the accepted position of a young person with a disability who needed special facilities. Here was a young person with a high aptitude whose needs could not be met at the local school.
The Shorter Oxford Dictionary definition of the word "need" provides in part to mean:
"necessity arising from the facts and circumstances of a case…necessary, need for…a condition of affairs placing one in difficulty or distress. A condition marked by the lack or want of some necessary thing or requiring some extraneous aid or addition. A state of extreme want or destitution." (underlining added)
The applicant submitted that this was not a question of choice of schooling, but of necessity arising from the particular facts and circumstances, in particular, the particular scholastic stimulus required by the applicant. There was no question of "opening of the flood gates" of applications. In this particular matter the education the applicant would receive at the Murwillumbah High School was different to that he was currently receiving at TSS. Higher level maths subjects were not offered at the government high school.
This, it was argued, was not a case of someone leaving home to pursue opportunities, but rather one where the applicant is living away from home and "needs" to do so for the purpose of his education.
The Respondent's Submissions
The respondent submitted that the applicant did not need to live away from home for one of the purposes of section 1067D. In particular, the respondent argued that the applicant does not need to live away from home for the purpose of education, training, searching for employment or doing anything else in preparation for getting employment (section 1067D(c)(i)).
The respondent supplied the Shorter Oxford English Dictionary meaning of "need" (in a slightly elaborated version than the applicant's). The meaning of "need" as outlined by the Macquarie dictionary was also provided as:
"to have need of, require; to be necessary; to be under a necessity"
It was contended that "needs" involves a necessity which is genuine substantial and has an edge or acuteness to it.
The respondent submitted that the word "need" should be applied objectively (Re Sachs and Director-General of Social Security (1984) 6 ALN N22). In this matter, it was submitted that there was no objective need for the applicant to live away from home as the applicant had access to secondary education at the Murwillumbah High School or Murwillumbah TAFE. Subjective considerations which induce the applicant to study at TSS do not support an objective need to live away from home.
It was further submitted that the applicant provided no evidence that he was required to leave Murwillumbah to be able to pursue a career in robotics. The applicant had not researched the study he would need to undertake and could not name a course or university he would apply to in order to pursue this idea.
The respondent submitted that subjects equivalent to those currently being studied by the applicant at TSS were available at the Murwillumbah High (T20, page 96).
For these reasons, the respondent submitted that it was a matter of choice that the applicant was living away from home and attending TSS. The mere fact that the applicant was awarded a scholarship does not place him into the realm of having a special need. Section 1067E of the Act was submitted to apply and the applicant is not entitled to YA at the "away from home rate".
Consideration
Section 1067A of the Act sets out the criteria of a "dependent person". The Tribunal is satisfied that the applicant does not fit any of these criteria and the Tribunal is therefore satisfied that section 1067D(1)(a) is no barrier to the applicant's case.
"Parent" in section 5 of the Act is defined as:
(b) in Part 2.11 and in the Youth Allowance Rate Calculator in section 1067G, in relation to a person (relevant person):
(i) …
(ii) …
(iii) Any other person (other than the relevant person's partner) on whom the relevant person is wholly or substantially dependent; or
(iv) …..
It was not argued before this Tribunal that the applicant's grandmother stood in the shoes of the applicant's parents and no detailed evidence was presented as to the domestic arrangements at the applicant's grandmother's house. The Tribunal is therefore in no position to assess for itself whether s1067D(1)(b) applies to preclude the applicant from his claim. The respondent not having put the matter in issue, I am satisfied the applicant is not dependent upon his grandmother.
It remains for the Tribunal to consider whether the applicant satisfies section 1067D(1)(c) of the Act. The Tribunal finds that the question of the applicant seeking employment is irrelevant and so will consider the relevance of section 1067D(1)(c)(i) to the applicant's submission. In particular the Tribunal considers that the question arises whether the applicant:
"…needs to live away from home for the purpose of education…"
The Tribunal makes no value judgments or qualitative judgments regarding the standard of education available at either TSS, Murwillumbah High or the Murwillumbah TAFE and indeed the Tribunal notes that it was not called upon to do so by either party.
The Tribunal accepts that "need" is to be assessed objectively but notes the objective "need" to live away from home for the purposes of education must be tempered with subjective criteria of an individual's circumstances.
Each individual's educational requirements differ. These requirements depend on many factors – aptitude, motivation and opportunity amongst others. The Tribunal is satisfied that the educational requirements of a child, whether exceptionally academically gifted or afflicted by severe learning difficulties may require that that the child move away from home and closer to a facility which can cater for those special needs.
The applicant contends that it is not a question of choice. Yet, in preference to the Murwillumbah High School, he considered attending the local TAFE college to complete his senior studies if he could not attend TSS.
There is no evidence before this Tribunal to show how the applicant could be more scholastically challenged or his interest stimulated by the vocational studies at the TAFE by comparison with the subjects offered by a government high school, or indeed how the subjects offered at the TAFE could open the door to engineering studies at a tertiary institution.
In addition, the evidence shows that the applicant was "not happy" at the local high school (T2, page8, paragraph 27). The reason for this unhappiness was not revealed.
The Tribunal understands that a student would be less able to study effectively in an environment in which he or she is not happy. However, the Tribunal is not satisfied that a failure to learn at a particular institution because a student is not happy with the environment, constitutes a necessity to live away from home to attend another educational institution some three hours travelling time away.
Further, the Tribunal was told that the applicant's parents were concerned that the applicant might leave school before finishing, or after year 10. It is difficult for the Tribunal to reconcile this statement with the applicant's evidence that if he could not attend TSS, he was considering completing his senior studies at the local TAFE.
Finally, the applicant's parents have conceded that the applicant probably would have attended TSS and will continue to attend TSS even if youth allowance was paid at standard rate because of the scholarship and his academic needs. The matter of the applicant's academic needs is considered later. For these reasons, the Tribunal is satisfied that the desire to take up the scholarship offered by TSS was a matter of choice rather than necessity.
The applicant has contended that the choice of which particular secondary institution he attends is not a matter of personal preference but rather one of scholastic challenge. No syllabuses or other evidence was provided regarding TSS and the Murwillumbah High School to enable the Tribunal to compare for itself the level of challenge available at either institution. However, I accept that the applicant's parents perceived that the TSS education program was appropriate and necessary for their son.
Section 1067E of the Act states:
"If a person:
(a) is not independent; and(b)is not taken by section 1067D to be required to live away from home; the person is taken for the purposes of this Part to be living at home."
The Tribunal notes that the Guide to the Social Security Act 1991 ("the Guide") provides conditions, at least one of which must exist for a secondary student to be taken to be required to live away from home (T8, page 62). The Tribunal considers that in this matter the Guide provides some assistance to the Tribunal as it agrees with the Tribunal's considerations on this point. The only applicable condition relevant to the facts of this proceeding are outlined in the Guide as:
"an equivalent activity is not available locally."
This is explained (T8, page 63) to mean that a student is unable to study or attend training courses locally because:
"an equivalent course is not available locally, OR
a student's academic needs are not met by local education facility, OR
there is no local facility."
The Tribunal's is satisfied that this interpretation makes allowance for the situation of a child with severe learning difficulties or a proven academically talented and gifted student whose educational requirements cannot be met by local government schools or any other local educational facility.
I am satisfied that the fact of winning the scholarship to TSS on academic grounds indicates that the applicant is a student of proven academic talent.
The results provided to the Tribunal covering the applicant's first semester 2000 at TSS (T14) do not indicate to this Tribunal a particularly exceptional scholastic ability. However, the Tribunal does accept that the applicant was suffering Post-Glandular Fever Syndrome and Severe Respiratory Allergy at the time which may have affected his results (although the medical certificate supplied is almost illegible – see attachment to Applicant's Statement of Facts and Contentions). No other results were, however, provided to indicate the applicant's aptitude in the later two semesters.
The Tribunal also notes that the applicant has indicated an interest in studying engineering particularly with reference to robotics. However, despite claims by the applicant that the subjects offered at the Murwillumbah High School would not assist the applicant in this aim, the applicant has stated that he has not researched any particular tertiary institution which may provide an appropriate course and has no knowledge of prerequisites required except to say that "he had to study 'standard' science/maths subjects." (T2, page 8, paragraph 29). There is no evidence that the Murwillumbah High School or in fact the Murwillumbah TAFE could not provide an appropriate curriculum.
The Tribunal notes that (at T2, page 7, paragraph 25) that the applicant's father contends that although Maths C is offered at both TSS and the Murwillumbah High, it is not in the same format. Just what the difference in format is and how it affects the applicant's needs is not explained.
The respondent has asserted that the subjects available at the Murwillumbah High School should be accepted as equivalent to those offered at TSS.
It is not disputed that if the applicant is unable to study locally, the time involved to travel to and from the family home in Murwillumbah to TSS is excessive.
Finally, the Tribunal is not satisfied that the fact that difficulty may now be encountered in transferring from a Queensland school back to the New South Wales school is relevant to a need to live away from home for education purposes unless the move to the current school was not a matter of choice.
However, the Tribunal is satisfied that the applicant's academic needs were not being met at Murwillumbah, that it was necessary for him to move away from Murwillumbah to obtain an education appropriate to his needs so that he needed to live away from home for the purposes of education.
The Tribunal is therefore satisfied that the applicant "needs to live away from home for the purposes of education".
With respect to those who assert otherwise the applicant's choice was to in effect give up on his education in Murrwillumbah because his needs were not being met there or pursue his education at a place that met his needs.
I am satisfied and determine that the applicant needed to live away from home for the purpose of his education and training in preparation for pursuing a proposed working career in robotics.
The decision under review will be set aside, there will be a determination that the applicant needed to live away from home for the purpose of education and the matter remitted to the respondent to give effect to the Tribunal's decision.
I certify that the 59 preceding paragraphs are a true copy of the reasons for the decision herein of MR K L Beddoe
Signed: .....................................................................................
AssociateDate/s of Hearing 24 July 2001
Date of Decision 6 August 2001
For the Applicant Ms Heyworth-Smith, Counsel
For the Respondent Mr Foster, Departmental Advocate
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