Thomas Jackson and Secretary, Department of Industry, Innovation, Climate Change, Science, Research and Tertiary Education

[2013] AATA 432

[2013] AATA  432

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2012/4910
Re	Thomas Jackson
APPLICANT
And	Secretary, Department of Industry, Innovation, Climate Change, Science, Research and Tertiary Education
RESPONDENT

DECISION

Tribunal	Senior Member R W Dunne
Date	13 June 2013
Date of written reasons	26 June 2013
Place	Adelaide

For the reasons given orally at the hearing, the Tribunal affirms the decision under review.

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Senior Member R W Dunne

CATCHWORDS

SOCIAL SECURITY – youth allowance – independent person – whether the applicant is an accommodated independent person – whether the applicant lives at the home of either or both of his parents – what constitutes a “home” – decision under review affirmed.

LEGISLATION

Social Security Act 1991, ss 1067A, 1067B.

CASES

Robert Dickerson and Secretary To the Department of Social Security [1989] AATA 190

Joseph and Secretary, Department of Education, Training and Youth Affairs [2000] AATA 607

SECONDARY MATERIALS

Macquarie Dictionary, Fifth Edition

REASONS FOR DECISION

Senior Member R W Dunne

26 June 2013

1. This matter is an application by Mr Thomas Jackson (“applicant”) for review of a decision of the Social Security Appeals Tribunal (“SSAT”) made on 2 October 2012.  That decision affirmed an earlier decision of an Authorised Review Officer of Centrelink, under the Social Security Act 1991 (“Act”), made on 6 August 2012.  The reasons of the Authorised Review Officer may be summarised as follows:

   ·In the applicant’s circumstances, he became qualified for independent youth allowance when he reached 22 years of age on 3 June 2012.

   ·Because the applicant lives at the home of a parent (his mother) he is regarded as an “accommodated independent person” and is therefore not entitled to receive youth allowance at the independent (away from home) rate.

   ·The applicant is also not entitled to receive rent assistance because the relevant legislation precludes an “accommodated independent person” from receiving rent assistance.

2. The matter before the SSAT was whether the applicant qualified for youth allowance at the “independent” rate and whether he was entitled to receive rent assistance.  The applicant was unable to attend the hearing before the SSAT, which was conducted on the papers.  On 29 October 2012, the applicant applied to this Tribunal for review of the decision of the SSAT.

3. Before this Tribunal, the applicant was unable to attend the hearing and was represented by his mother, Mrs Joan Jackson.  Ms Lee-Anne Odgers (from Program Litigation and Review Branch, Department of Human Services) represented the respondent.  At the hearing, the following facts were agreed by the parties:

   (a)The applicant was born on 3 June 1990.  He was granted youth allowance with effect from 10 November 2009 and was paid at the “dependent” rate.

   (b)The applicant turned 22 years of age on 3 June 2012. Pursuant to subsection 1067A(4) of the Act, he was to be regarded as “independent” for the purposes of Parts 2.11, 2.11B, 3.4B, 3.5 and 3.7 of the Act (see subsection 1067A(1)).

   (c)The applicant continues to be paid the dependent rate of youth allowance.  He was not paid rent assistance.

   (d)On 4 June 2012 the applicant (through his nominee, his mother) requested a review of the decision to continue to pay him at the dependent rate of youth allowance and not to pay him rent assistance.

   (e)The applicant lives at premises situate at 428 Montague Road Modbury North (“Montague Road”).  The premises are leased in the name of the applicant’s brother (Dean Jackson), who is disabled and is in receipt of disability support pension.  He leases the premises from Accessible Housing.  The applicant lives at Montague Road with the permission of Accessible Housing.

   (f)Mrs Joan Jackson, the mother of the applicant, and Dean Jackson also live at Montague Road.  Mrs Jackson is Dean Jackson’s full time carer, and is in receipt of carer payment.

   (g)The rental payable in respect of Montague Road is based on a percentage of the household income, which includes the applicant’s youth allowance, but excluding Mrs Jackson’s income as Dean Jackson’s carer.  The fact that Mrs Jackson also lives at Montague Road is irrelevant to the contribution that the applicant is expected to make.

   (h)It is undisputed that the applicant is regarded as “independent” pursuant to s 1067A of the Act.

   (i)It is also undisputed that the applicant satisfies paragraphs 1067B(1)(a), (c), (d), (e) and (f) of the Act.

   (j)The only matter in issue between the parties is whether the applicant “lives at the home of either or both of his or her parents” as set out in paragraph 1067B(1)(b) of the Act.

   ISSUE BEFORE THE TRIBUNAL

4. The issue before me was whether the applicant is an “accommodated independent person” as defined in s 1067B of the Act and, in particular, whether “he lives at the home of either or both of his …. parents” as referred to in paragraph 1067B(1)(b) of the Act.

5. The provisions of s 1067A and paragraph 1067B(1) of the Act relevantly read:

   “1067A When a person is regarded as independent

   (1)  Application

   This section applies to determine whether a person is to be regarded as independent for the purposes of this Part and Parts 2.11, 2.11B, 3.4A, 3.4B and 3.7. A person is not to be regarded as independent except as provided by this section.

   …

   (4)  Person at least a certain age

   For the purposes of Parts 2.11 and 2.11B, this Part and section 1070G, a person is independent at a time in a period specified in an item of the table if at the time the person is at least the age specified in the item: 

   Age when person becomes independent

   Item Period Age

   1.  The period starting at the start of 1 April 2010 and ending at the end of 31 December 2010   24 years

   2.  The year 2011   23 years

   3.   A year after 2011   22 years

   …”

   “1067B  Accommodated independent person

   (1)   A person is taken to be an accommodated independent person for the purposes of Part 2.11B and this Part if, and only if, the person:

   (a)   is independent; and

   (b)   lives at the home of either or both of his or her parents;

   …”

6. In the applicant’s absence, I took evidence from Mrs Joan Jackson.  She said the applicant was unable to attend because he was preparing for his university examinations.  She lived at Montague Road with the applicant and as carer for the applicant’s brother, Dean Jackson.  They had all been living at Montague Road since about February 2011.  The applicant contributed to the living costs of the three members of the family and he provided assistance to Mrs Jackson in caring for Dean Jackson, who had been disabled from birth and had not undertaken any schooling because he had learning disabilities.  Mrs Jackson said that the applicant assisted her with her caring role for Dean Jackson and, without his assistance, she would be unable to manage him on her own.  She thought these factors should be treated as special circumstances in her and the applicant’s case.

7. It was Mrs Jackson’s contention that the applicant did not “live at the home of his mother” as intimated in paragraph 1067B(1)(b) of the Act. It was the respondent’s contrary contention that the applicant did live at the home of his mother at Montague Road.

8. Ms Odgers further contended that the phrase “lives at the home of either or both of his or her parents” in paragraph 1067B(1)(b) is not explained or further defined in the Act, and thus it should be given its ordinary meaning. In the Macquarie Dictionary, Fifth Edition the term home is defined as follows:

   1) a house or other shelter that is the fixed residence of a person, a family, or a household.

   2) a place of one’s domestic affections. 

   Ms Odgers further contended that Montague Road was the fixed residence of Mrs Jackson, and therefore was her home in the ordinary sense of the word.

9. In an oral decision, I decided that the applicant lived at the home of his mother within the meaning of paragraph 1067B(1)(b) of the Act. In view of the circumstances of the case, I thought it appropriate to provide written reasons within the period of 28 days under s 43(2A) of the Administrative Appeals Tribunal Act 1975 (Cth).

   CONSIDERATION

10. In the absence of any precise definition of home within the Act, external aids ought to be employed to assist in construction of the meaning of this part of the Act.

11. The question of what constitutes a home has been discussed in various decisions of this Tribunal.  For example, in Re Robert Dickerson and Secretary To the Department of Social Security [1989] AATA 190, Senior Member Handley made the following comments:

    “28. In assessing the criteria of what constitutes a ‘home’ a substantial degree of occupation is persuasive (Herbert v Byrne (1964) 1 AE 882) whereas conversely occupation by occasional visiting is not (Beck v Scholz (1953) 1 AE 814), and living away from the family home in other premises causes the family home to no longer be the principal home (Samek v Department of Social Security (1979) 9 AAR 355). A ‘home’ is likely to be a place where persons ordinarily eat, morning and night, and where they sleep, and in the case of adults have the characteristics of permanency (Todd v Nichol (1957) 1 SASR 72). It is a concept in nature and ‘it is the place where the centre of gravity of one's domestic life is to be found’ (Geothermal Energy N.Z. Ltd v Commissioner of Inland Revenue (1979) 2 NZLR 324). Where one chooses to live is relevant (Hyland v Hyland 18 FLR 461 and a reference to a ‘home’ requires an affinity to its location and usage by the occupier (Inland Revenue Commissioners v Lysaght (1928) AE 575 and Koitaki Para Rubber Estates Ltd v Federal Commissioner of Taxation [1941] HCA 13; 64 CLR 241.”

12. Ms Odgers submitted that the applicant lives with his mother at Montague Road.  She referred to the decision of Senior Member Kiosoglous MBE in Joseph and Secretary, Department of Education, Training and Youth Affairs [2000] AATA 607, where he said:

    “18.  In the Tribunal’s opinion, to ‘live with’, in the context of these Regulations, requires no legal interest in a property or any particular arrangements as regards utilities or expenses.  It simply connotes an act of residence in the same place for a period of time ling enough to establish a ‘residence’ or ‘usual place of abode’ as that term is understood by reference to the authorities quoted in the above paragraphs.”

13. Ms Odgers contended that, in giving the phrase its ordinary meaning, it is correct to say that the applicant “lives at the home of his mother”. I agree with this contention. In these circumstances, the provisions of paragraph 1067B(1)(b) are satisfied and thus the applicant is taken to be an “accommodated independent person”.  As the applicant is an “accommodated independent person”, he is not entitled to the higher rate of youth allowance for a person who is regarded as independent under 1067A of the Act. Nor is he entitled to receive rent assistance.

14. Mrs Jackson thought that, because of the factors in the present case, there were special circumstances which required that I find that the applicant was not an “accommodated independent person”. There are some provisions in the Act that allow for “special circumstances” to be found and taken into account. Regrettably, the provisions of paragraph 1067B(1)(b) of the Act do not permit the Tribunal to take into account circumstances that might be viewed as “special”. The Tribunal is only able to take into account the facts of the applicant as they presently exist and to literally interpret paragraph 1067B(1)(b), having regard to its ordinary meaning.

15. Mrs Jackson said that she did not accept the decision I reached in the applicant’s case. Although she seemed to recognise that the applicant did live at home with his mother, she said that the Tribunal had a moral responsibility to find that the applicant was not an accommodated independent person. By not making this finding, she said that she and her son were being victimised because of my “immoral” reading of s 1067B(1)(b) of the Act. I have some sympathy for the view that Mrs Jackson has expressed. However, in the applicant’s case, the Tribunal is unable to apply the relevant provisions of the Act, other than by a literal reading of the legislation itself.

16. I understand Mrs Jackson has received material about “Act of Grace” and “Ex gratia” payments.  I encourage her to peruse the material and to explore the possibility of obtaining the benefit of these arrangements.  

    DECISION

17. The Tribunal affirms the decision under review.

I certify that the preceding 17 (seventeen) paragraphs are a true copy of the reasons for the decision herein of

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Administrative Assistant

Dated 26 June 2013

Date(s) of hearing	13 June 2013
Advocate for the Applicant	Mrs Joan Jackson
Advocate for the Respondent	Ms L Odgers
Solicitors for the Respondent	Department of Human Services