Wade and Secretary, Department of Education, Science and Training
[2007] AATA 1100
•18 April 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1100
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V 200601133
GENERAL ADMINISTRATIVE DIVISION ) Re TIMOTHY JAMES WADE Applicant
And
SECRETARY,
DEPARTMENT OF EDUCATION, SCIENCE AND TRAINING
Respondent
DECISION
Tribunal Mr C. Ermert, Member Date6 March 2007
PlaceMelbourne
Decision The Tribunal sets aside the decision under review and remits the matter back to the respondent with the direction that Mr Wade be paid youth allowance and rent assistance for the period between 6 November 2005 and 15 December 2005, at the rate applicable to a person who is independent but is not an accommodated independent person.
(sgd) Mr C. Ermert
Member
ADMINISTRATIVE APPEALS TRIBUNAL N°V 200601133
GENERAL ADMINISTRATIVE DIVISION
Re: TIMOTHY JAMES WADE
Applicant
And:SECRETARY, DEPARTMENT OF EDUCATION, SCIENCE AND TRAINING
Respondent
CORRIGENDUM [2007] AATA 1100
Tribunal: Mr C. Ermert, Member
Date:18 April 2007
Place:Melbourne
Member Ermert made a decision under s 43 of the Administrative Appeals Tribunal Act1975 (the Act) on 6 March 2007.
The Tribunal was advised by letter dated 11 March 2007 from the applicant’s representative that there was an error in the decision.
In accordance with s 43AA(1) of the Act, the Tribunal directs that the Registrar alter the text of the decision by deleting the decision on page one and paragraph 31 and replacing it with the following:
The Tribunal sets aside the decision under review and in substitution decides Mr Wade is not an accommodated independent person and is entitled to youth allowance and rent assistance at the independent rate from 16 December 2005.
(sgd) Conrad Ermert
Member
SOCIAL SECURITY – youth allowance payments – rent assistance – shared rental – tenancy agreement - independent person – accommodated independent person – living at home of parent – meaning of ‘home’ – centre of gravity of one’s life – characteristics of permanency – sufficient legal interest – extend privileges of accommodation – assumption of lower living costs
Administrative Appeals Tribunal Act 1975
Social Security Act 1991
Student Assistance Act 1973
United Kingdom Landlord and Tenant Act 1954
Victorian Residential Tenancies Act 1980
Kyvelos and Director-General of Social Services (1981) 3 ALN No 77
Reynah Tang and Secretary, Department of Employment, education and Training (AAT 8155, 7 August 1992)
Dickeson and Secretary, Department of Social Security (1989) 18 ALD 58
Todd v Nicol (1957) SASR 72
Herbert v Byrne [1964] 1 All ER 882
Joseph and Department of Education, Training and Youth Affairs [2000] AATA 607
Geothermal Energy New Zealand Ltd v Commissioner of Inland Revenue [1979] 2 NZLR 324
REASONS FOR DECISION
6 March 2007 Mr C. Ermert, Member
INTRODUCTION
1. The applicant, Mr Timothy Wade, was born in 1983 and has been living independently since he was aged 17. He was granted youth allowance at the independent rate as a full-time student from 30 January 2004. At the time he was sharing rental accommodation in Hampton with Mr Michael Brown, a friend; an arrangement which existed throughout the relevant period and continued until Mr Wade departed recently to work overseas. At some time in 2005 the applicant and Mr Brown made a decision to move to better rental accommodation in Beaumaris.
2. At that time, the applicant’s mother, Ms Colleen Gray, was living in rental accommodation at Dromana. Ms Gray had been living there on her own for one to two years and had been receiving rental assistance. However, she had recently declared an intention to move to Byron Bay to live. Following discussions between Messrs Wade and Brown and Ms Gray it was mutually decided that Ms Gray would move in to the Beaumaris accommodation on a temporary basis until such time as she moved to Byron Bay. Her stay was extended by her decision to move instead to Canada with consequent delays in obtaining her passport. In the end Ms Gray stayed with the others in the Beaumaris accommodation for a period of six months before leaving for Canada.
3. On 4 November 2005 Messrs Wade and Brown and Ms Gray entered into a tenancy agreement for the Beaumaris premises and Ms Gray moved into the premises on 6 November 2005. This living arrangement information was provided to Centrelink on 28 November 2005. Centrelink is the service delivery agency for the Department Of Education, Science and Training. A Centrelink officer made a decision that Mr Wade was no longer entitled to the independent rate of youth allowance and his rent assistance also ceased. A debt was raised for $470.01, being the youth allowance and rent assistance paid to Mr Wade between 6 November and 15 December 2005 (the relevant period). In subsequent reviews and reconsiderations the debt was varied to $203.10 and the decision to raise the debt was set aside and then re-instated. On 2 November 2006 the Social Security Appeals Tribunal (SSAT) affirmed a decision that Mr Wade’s youth allowance be paid at the rate applicable to an accommodated independent person from 16 December 2005 and that payment of rent assistance cease from the same date. This hearing is a review of the SSAT decision.
THE HEARING
4. At the hearing the applicant, who is currently living overseas, was represented by Mr Brown. The respondent was represented by Mr Faisal Bakhtiar, an advocate from the Legal Services Branch of Centrelink. I had before me the documents lodged by the respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T‑docs). I accepted into evidence a letter from Mr Brown to the Legal Services Branch, dated 2 January 2007 (Exhibit A1). After the hearing, the Tribunal received an undated letter from Mr Brown covering an account from Optus Billing Services, dated 4 February 2006, and an account from Victoria Electricity, dated 22 March 2006. These documents were forwarded to the respondent, who advised that he had no objection to the documents being taken into consideration in the decision of this matter.
5. Mr Brown gave evidence on behalf of the applicant. There were no witnesses for the respondent.
THE ISSUES
6. Section 556(1) of the Social Security Act 1991 (the Act) requires that the rate of a person’s youth allowance is to be worked out in accordance with the Youth Allowance Rate Calculator in section 1067G of the Act. That section provides different rates of allowance for accommodated independent persons and not a member of a couple (an accommodated independent person) and independent, not an accommodated independent person and a member of a couple (an independent person).
7. The parties agreed that the rate of rent assistance is a direct consequence of whether the applicant was an accommodated independent person during the relevant period. A finding made on the latter issue would therefore determine the rate of rent assistance payable. Accordingly, a separate finding on rent assistance was not required. Therefore, the only issue to be determined in this case is whether, during the relevant period, Mr Wade was an accommodated independent person.
Was Mr Wade an accommodated independent person
8.Section 1067B of the Act defines an accommodated independent person as one who:
(a) is independent; and
(b) lives at the home of either or both of his or her parents; and
…
9. The respondent concedes that Mr Wade met the criteria of section 1067A for a person to be regarded as independent. Furthermore, there is no dispute that Ms Gray meets the definition requirements of parent, being Mr Wade’s biological mother. The issue remaining to be determined is whether, during the relevant period, Mr Wade was living at the home of his parent, Ms Gray.
Was Mr Wade living at the home of his parent
10. The respondent contends that Mr Wade was living at the home of his mother in the relevant period. Mr Bakhtiar submitted that while the term home is not defined in the Act, its meaning has been considered in a number of cases. He referred to the following cases:
·Kyvelos and Director-General of Social Services (1981) 3 ALN No 77
·Dickeson and Secretary, Department of Social Security (1989) 18 ALD 58
·Todd v Nicol (1957) SASR 72
·Herbert v Byrne [1964] 1 All ER 882
11. Mr Bakhtiar also referred to the matter of Reynah Tand and Secretary to the Department of Employment, Education and Training (AAT 8155, 7 August 1992) in which the Tribunal considered similar provisions to this case, but under the Student Assistance Act 1973. In that case, in what was referred to as the first period, the applicant was a co-tenant in a unit with his father. It was the applicant’s submission that he received no benefit from sharing a unit with his father other than the benefit he would have received from sharing with a friend. They lived as flat mates rather than as parent and child. Mr Tang argued that (at para 15):
the legislation should be interpreted according to its purpose, which was to distinguish between those students who received support from their parents, whether by way of cash or subsidised accommodation, and those who did not.
However, the Tribunal in that case said that the meaning of the regulations was clear and that there was no scope for a purposive interpretation.
12. Mr Bakhtiar submitted that the above decisions made it difficult to accept the contention that the Beaumaris property was not Ms Gray’s home during the relevant period, even though her stay was short. He added that while permanence was regarded in some of the cases as a consideration, in this case Ms Gray had no other dwelling which she maintained as a home. The Beaumaris property was the place in which her usual domestic activities were centred. She took on legal responsibility for the property by signing the lease agreement as a co-tenant. There was also an intention by the parties in the household to live together under conditions of mutual indulgence and forbearance … and toleration, as might be reasonably expected in a home (Todd at 86). The respondent contends that Mr Wade was an accommodated independent person during the period under review, as that term is defined in section 1067B of the Act. This in turn affects the rate of youth allowance and rent assistance payable to him.
13. In his submissions Mr Brown also referred to Tang. Mr Brown submitted that, in its prior review of the matter, the Student Assistance Review Tribunal (SART) indicated that the term parent’s home is used to distinguish between those who benefit from living with a parent and those who do not, the assumption being that those living with a parent may receive benefits such as shelter and food. The SART went on to declare that for the assumption to be effective the parent’s home must be a place of residence where the parent has sufficient legal interest to enable the parent to extend to the student the privilege of accommodation. Mr Brown submitted that in the present case Ms Gray was not residing in a place in which she had that legal interest.
14. Mr Brown next referred to the situation in Tang which pertained prior to the first period. In the prior period the applicant’s father, as a boarder, had moved into the premises occupied by the applicant and a friend. The SART found that in this situation the father was in fact homeless for the purposes of the Student Assistance Act1973 with the result that the applicant’s payment was not reduced during this period. This finding was not disturbed in the subsequent review by the Tribunal. Mr Brown submitted that the scenario in Tang is very similar to the situation in this case; in that Ms Gray was more like a boarder taking a room in a house and therefore should be considered homeless for the purpose of the Act. Mr Brown stated that he paid all the bond money, that Ms Gray contributed very little, and that she brought very little furniture and few household items. He submitted that the only difference between the present case and the situation in Tang is that Ms Gray signed the lease as a co-tenant; and this was done only to prove her entitlement to rent assistance from Centrelink. Mr Brown referred to the decision in Joseph and Department of Education, Training and Youth Affairs [2000] AATA 607 in which the Tribunal indicated (at paragraph 26) that a lease is not the defining factor in determining whether the place where one resides is their home.
15. Mr Brown also referred to the many judicial interpretations of the term home. He submitted that there is a common thread of permanency in those interpretations. He submitted that in the present case there were many factors demonstrating a lack of permanence in Ms Gray’s move to the Beaumaris property, including the limited number of items Ms Gray brought to the house, Ms Gray’s short stay of only six months compared to the 12 months of the lease, Ms Gray’s stated intention to move away, an offer to Ms Gray to stay rent free, and the fact that another tenant did not replace Ms Gray when she left. Mr Brown submitted that Ms Gray’s stay was more akin to a visit than a relocation to a residence and that she should be considered as homeless for the purposes of the Act over the period in question.
Consideration
16. I turn first to the decision in Tang. In that case it was not in issue that Mr Tang and his father were joint tenants in a unit in Glenhuntly. In making its decision the Tribunal accepted the respondent’s submission, which relied on dictionary definitions of home and authorities which indicated that, as tenants under the Victorian Residential Tenancies Act 1980, Mr Tang and his father would have exclusive possession of the unit. The Tribunal also had regard to the earlier findings of the SART, which took the view that a parent’s home is the parent’s place of residence in which the parent has a sufficient legal interest, as owner, tenant or licensee, to enable the parent to extend to a child the privileges of accommodation which the regulations assume. The regulations proceed on the assumption that students who live at their parent’s home have lower living costs than those who cannot live at their parent’s home. The assumption is that those students are provided with shelter and other basic needs by their parent. As Mr Tang senior was one of two tenants of the unit, the SART considered that he had a sufficient legal interest to extend accommodation to his student child.
17. There are a number of issues that differentiate the present case from the situation in Tang. In this case there are three tenants on the lease, not the two in Tang. Therefore, it can not be said that Ms Gray and Mr Wade have exclusive possession of the unit. Also, as there is a third tenant with equal rights, Ms Gray does not have sufficient legal interest on her own to extend to Mr Wade the privileges of accommodation. In regard to the assumption that the student living at the parent’s home has lower living costs, there is evidence to show that it did not apply in the present case. Mr Brown’s evidence is that Ms Gray contributed very little to the costs of living in the unit. Ms Gray paid only the same amount of rent as the applicant. The amount of the applicant’s rent remained the same. Ms Gray brought very little to the unit because she had sold everything else in preparation for her move. She did not acquire things to add to the house but used the items brought to the unit by the other two. There was no evidence that the applicant enjoyed any of the privileges of accommodation resulting in lower living costs as a result of his mother living in the same unit.
18. After considering the above factors, I am satisfied that the situation in the present case is sufficiently differentiated from the situation in Tang so that Tang does not assist the respondent.
19. I return then to section 1067B of the Act, which provides that a person is an accommodated independent person if that person is independent and lives at the home of either of his parents. In considering the meaning of home I had regard to the decisions referred to by Mr Bakhtiar.
20.In Kyvelos the Tribunal found (at paragraph 24):
In our view, the meaning of the word ‘home’ in s20(1)(a) of the Act is most accurately reflected by the “Random House Dictionary” definition cited by Beattie J in the abovementioned decision (Geothermal Energy New Zealand Ltd v Commissioner of Inland Revenue [1979] 2 NZLR 324) namely ‘The place in which one’s domestic affections are centred’. Or, as Beattie J said, ‘it is the place where the centre of gravity of one’s life is to be found.
21. In the present case I do not accept that the Beaumaris property was the place where the centre of gravity of Ms Gray’s life was to be found. The undisputed evidence is that Ms Gray was essentially in transit from a home in Dromana to making a new home in Byron Bay, or as it turned out, in Canada. I find it unreasonable to accept that the short term transit accommodation in this case can be considered as a place where the centre of gravity of one’s life is to be found.
22. In Dickeson the Tribunal drew on the Geothermal Energy decision referred to in the quote above and also drew on the decision of Todd which included the following (at 86):
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.
23. The evidence in the present case is that, for Ms Gray, the unit in Beaumaris had no characteristics of permanency. Indeed the evidence is quite clear that Ms Gray intended to live in the unit only temporarily while making her arrangements to move. In fact Ms Gray lived in the unit for six months, some two months longer than intended but purely as a result of a change in her destination. There is no evidence that Ms Gray intended to live in the Beaumaris unit permanently. She brought with her the minimum of belongings, having disposed of the rest prior to leaving Dromana. And according to the evidence, Ms Gray did not buy things to add to the house but used the items belonging to the others.
24.In his judgement in Todd, Mayo J went on to say:
References to “sharing a home” can be taken to import an intention by the parties to live together under conditions of mutual indulgence and forbearance, of propriety, decorum and friendliness, and, if necessary, of resignation and toleration, as might be reasonably expected in a home.
25. Mr Bakhtiar used this extract in his written submissions in support of his contentions that the Beaumaris unit was the home of Ms Gray. I note however that Mayo J was referring to the phrase sharing a home and not addressing the phrase in question in section 1067B of the Act, namely lives at the home of. Therefore, I do not find this reference by Mr Bakhtiar to be helpful to me in this decision.
26. The other judgement cited by Mr Bakhtiar was that of Herbert where Salmon LJ said (at 887):
In my view, if the evidence establishes, as it does here, a substantial degree of regular personal occupation by the tenant of an essentially residential nature, it would be difficult, if not impossible for a court to hold that he was not in occupation of the premises as a home …
27. I note however that this was a case under the United Kingdom Landlord and Tenant Act 1954 in which the UK Court of Appeal held that a man in the course of moving from one home to another could have a home at each place until the move was completed. This situation is quite different from the present case in which Ms Gray was not in a process of moving from the Dromana home to the unit in Beaumaris. She had already moved out of Dromana with the intention of living in Byron Bay. Her stay in Beaumaris was essentially a transit situation between Dromana and Byron Bay, or Canada as it eventuated. I do not find this case persuasive as the circumstances are different from the present case and the legislation is different.
28. After considering the evidence in this case I find that the circumstances do not fit the meaning of home as determined in the cases that have been cited. I do not accept that the Beaumaris unit was the centre of gravity of Ms Gray’s domestic life (Kyvelos). I also do not accept that Ms Gray’s occupation of the unit had the characteristics of permanency (Todd and Dickeson). Accordingly I find that, during the relevant period, the Beaumaris unit was not the home of Ms Gray. As a result, I find that the applicant did not live at the home of either of his parents and therefore he was not an accommodated independent person in accordance with section 1067B of the Act.
CONCLUSION
29. I have found that, during the relevant period, Mr Wade was not an accommodated independent person. This means that, for the relevant period, the youth allowance payable to the applicant is that pertaining to a person who is Independent, not an accommodated independent person and a member of a couple as provided for in section 1067G of the Act. It also means that the applicant should be paid rent assistance for the relevant period at the rate applicable to a person who is independent but is not an accommodated independent person, in accordance with section 1070 of the Act.
30. This finding means that the applicant’s application for review is successful.
DECISION
31. The Tribunal sets aside the decision under review and remits the matter back to the respondent with the direction that Mr Wade be paid youth allowance and rent assistance for the period between 6 November 2005 and 15 December 2005, at the rate applicable to a person who is independent but is not an accommodated independent person.
I certify that the thirty-one [31] preceding paragraphs are a true copy of the reasons for the decision herein of:
Mr C. Ermert, Member
(sgd) Ursula Noyé
Clerk
Date of Hearing: 2 February 2007
Date of Decision: 6 March 2007
Advocate for the applicant: Mr M. Brown, friend of the applicant
Advocate for the respondent: Mr F. Bakhtiar, Centrelink Legal Services Branch
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