Editors --- "Youth allowance: whether unreasonable to live at home" [2008] SocSecRpr 52; (2008) 10(4) Social Security Reporter, Article 18

• MIK and SECRETARY TO THE DEEWR
• The issue
• Background
• The law
• Discussion
• Formal decision

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Youth allowance: whether unreasonable to live at home

MIK and SECRETARY TO THE DEEWR

(2008/857)

Decided: 25th September 2008 by G. McDonald

The issue

In this matter the issue for consideration was whether Mik was entitled to be paid youth allowance (YA) at the independent rate, on the basis that it was unreasonable for her to live at home.

Background

Mik applied for YA as an independent person in April 2005, arguing that her chronic fatigue syndrome was exacerbated by living with her step father and two step-siblings. She was granted YA on the basis that there had been an extreme family breakdown, but her YA was cancelled after she ceased full time study in 2007. She reapplied in June 2007, but her claim to be paid at the unreasonable to live at home (independent) rate was rejected.

Mik was aged 23 years and studying at university. She developed chronic fatigue syndrome after suffering glandular fever in 2003. She lived with grandparents during her final year of school so as to have time and suitable circumstances in which to study. She advised that one of her step sisters suffered from an obsessive compulsive disorder, whilst the other had temper tantrums, that her relationship with her step father was characterised by shouting, and that the home environment as a whole was noisy.

Medical evidence was presented which stated that Mik’s chronic fatigue was exacerbated by the family situation, and that a significant deterioration occurred in 2005 after a family disruption. The medical evidence was that her home situation was not compatible with progress and stability in her illness. However, it was also noted that Mik had a good relationship with her mother who supported her financially with some university fees, mobile phone and other living expenses, and that Mik was welcome to live at home should she choose to do so. Mik supported herself through employment when well enough to work, and paid her own rent and much of her living expenses, except when unable through ill-health to do so. She argued that it would be unreasonable for her to live at home because of the impact this would have on her physical wellbeing, not the unreasonableness of particular aspects of her home situation.

The law

The criteria which must be satisfied for YA to be paid, the independent rate on the basis that it is unreasonable for an applicant to live at home, are contained in s.1067A(9) of the Social Security Act 1991(the Act), which provides:

1067A(9). A person is independent

if:

the person cannot live at the home of either or both of his or her parents:

because of extreme family breakdown or other similar exceptional circumstances; or

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 wellbeing due to violence, sexual abuse or other similar unreasonable circumstances; or

because the parent or parents are unable to provide the person with a suitable home owing to a 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 another person who is acting as the person’s guardian on a longterm 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, a State or a Territory.

Discussion

The Tribunal accepted that chronic fatigue syndrome was an illness with as yet no known cure.

The Tribunal concluded that Mik did not meet the requirements of s.1067A(9)(a)(i) in that there was no extreme breakdown in the family relationship or similar circumstance – though the home environment was not ideal, Mik was welcome to live at home should she elect to do so. However, the Tribunal determined that Mik did meet the requirements of s.1067A(9)(a)(ii) in that there was a serious risk to her physical wellbeing due to ‘unreasonable circumstances’. The Tribunal accepted that both the medical and Mik’s own evidence supported the view that it was reasonable, given her illness and her knowledge of what exacerbated it, for Mik to take steps to prevent a known stressor – in this case, her family situation – from affecting her illness. The Tribunal noted that s.1067A(9)(a)(ii) of the Act did refer to violence or sexual abuse, neither of which were argued in Mik’s case, but concluded that the legislation allowed the ‘serious risk’ in a particular situation to be due to other circumstances, and not limited by the other terms used in the sub-section. Here, the Tribunal concluded, the consequence for Mik of the unreasonable circumstance(her family situation) was, because of her particular illness, similar to the impact of violence or sexual abuse – that is, the impact on her was caused by the unreasonable circumstance.

The Tribunal concluded that, notwithstanding some financial support from her mother, Mik was not receiving ‘continuous’ direct or indirect or other support on a long term basis, as is specified in s.1067A(9)(b). The emotional support provided by Mik’s mother was not, of itself, sufficient to impact upon Mik’s status as an independent person. The Tribunal further found that, despite occasional scholarship assistance, Mik did not receive support from the Commonwealth on a ‘continuing’ basis. She therefore met the requirements of s.1067A(9)(c). The Tribunal found, further, that the ‘Commonwealth Education Cost Scholarship’ for which Mik had applied was designed to meet education costs and not general living costs, and so was not ‘income support’ as required by s.1067A(9)(c).

Formal decision

The Tribunal set aside the decision and determined that it would be unreasonable to require that Mik live at home and that she be paid YA at the independent rate on the basis that it was unreasonable for her to live at home.

[P.A.S.]