Harris and Secretary, Department of Social Security [1991] AATA 530 (28 May 1991)

Last Updated: 4 July 2008

SOCIAL SECURITY - young homeless allowance - applicant chose to live independently away from home - whether person who chooses to live away from home is 'homeless' - decision affirmed

Words and Phrases - "Homeless Person"

Administrative Appeals Tribunal Act 1975, s.37

Social Security Act 1947, ss.115, 118, 20 5

DECISION AND REASONS

Re: PETER JOHN HARRIS

Applicant

And: SECRETARY, DEPARTMENT

OF SOCIAL SECURITY

Respondent

No: S90/224

AAT Decision No 6980

Tribunal: Deputy President B.H. Burns

Place: Adelaide

Date: 28 May 1991

Decision: The decision of the Social Security Appeals Tribunal of 16 August 1990 is affirmed.

(Signed)

Deputy President B.H. Burns

ADMINISTRATIVE APPEALS TRIBUNAL)
) No. S90/224
General Administrative Division )

Re: PETER JOHN HARRIS

Applicant

And: SECRETARY, DEPARTMENT OF SOCIAL SECURITY

Respondent REASONS FOR DECISION

28 May 1991 Deputy President B.H. Burns

1. This is an appeal by Peter John Harris ("the applicant") against a decision of the Social Security Appeals Tribunal ("the SSAT") on 16 August 1990 affirming a decision of a delegate of the Secretary of the Department of Social Security ("the respondent") on 30 March 1990 to reject his application for Young Homeless Allowance. The appeal is made pursuant to s.205 of the Social Security Act, 1947 ("the Act").
2. The Tribunal had before it the documents provided pursuant to s.37 of the Administrative Appeals Tribunal Act, 1975 ("the 'T' documents"). In addition, a number of exhibits were admitted during the hearing of the application. Oral evidence was given by the applicant; Mr R. Harris and Mrs J. Harris, the applicant's parents and Mrs V. Crowhurst, his maternal grandmother. Ms. H. Bonnes, a social worker, gave evidence on behalf of the respondent. The applicant was represented by Ms R. O'Grady of counsel and the respondent by Ms M. Pozydajew, a departmental officer.

3. The facts presented to the Tribunal in written and oral evidence are not in dispute. What is disputed in this matter is the interpretation and application of the relevant sections of the Act to these facts. It is necessary to outline the facts that give rise to this dispute. I make the following findings of fact.

4. The applicant was born on 10 March 1973. In 1988, when he was fifteen and a half years old, his parents moved into his grandmother's house and gave up their rented accommodation. The applicant, not wishing to change schools, moved in with his sister who lived nearby. His parents moved to his maternal grandmother's house in order to care for her so she would not be forced to move to an institution. A mortgage was arranged on the house, which his parents pay for, in order to build a two-room extension. At that stage, no provision was made to house the applicant at his parent's new abode.
5. The applicant stayed with his sister for approximately six months. For reasons which were not made clear to the Tribunal, he then moved into Mrs Crowhurst's house. At that time he left school and found full-time employment. It appears that at about this same time, he also applied to the South Australian Housing Trust for accommodation. He understood there was a three year waiting list for this and he planned to move out when the flat became available. He expected that after 3 years in full-time employment, he would be financially independent and secure.
6. The applicant and Mrs Crowhurst had some difficulty living in the same house together. He had, at first, moved into a sleepout at the back of the house but it was not suitably ventilated and he moved into the second bedroom in the main part of the house. This part of the house was where Mrs Crowhurst had lived for nearly forty years. His parent's extension had been designed for just themselves and they had no room to accommodate the applicant.
7. From the evidence of the applicant, his parents and Mrs Crowhurst, it is obvious that the arrangement was less than satisfactory. Mrs Crowhurst did not like her house being "taken over" by a teenager. In mid-1990 the applicant was offered a flat by the South Australian Housing Trust. Also at about this time he left his employment and was granted Job Search Allowance by the respondent. Not unnaturally, given the situation at home, he accepted the flat from the Housing Trust at a rent of $6.50 per week.

8. It is clear that the applicant left Mrs Crowhurst's house entirely on his own volition , as he said at pp.30-31 of the transcript:

" Q. So you discussed it with them and they understood that you had to go. Did they think it was a good idea that you had a Housing Trust flat?

A. Well, my dad didn't want me to go because he wanted me to stay home but I wanted to go.

Q. ...you wanted to go, in part, because the accommodation became available anyway? A. Yes.

Q. And because it wasn't as comfortable at home as you would have liked?

A. Yes.

Q. And at no stage none of your parents did or said anything that suggested that they were actually throwing you out?

A. No.

Q. Your grandmother didn't actually throw you out?

A. No."

9. The applicant is happy with his independence and does not wish to return to the family home, that is, to Mrs Crowhurst's house. In cross-examination at p.31:

"Q. Well, would it be correct to say then that if the department would just give you a bit more money then you'd be perfectly happy with your existing arrangement?

A. Yes, I'd be happy."

and later, answering questions from the Tribunal at p. 41:

"Q. ...if your grandmother said it was okay to come back you wouldn't?

A. No.

Q. All right. I - and correct me if I'm wrong about this, but would one of the reasons be why you wouldn't want to go back is that you have set yourself up as an - your own sort of place?

A. Yes.

Q. Being independent?

A. Yes.

Q. You're managing your finances?

A. Yes.

Q. Your money. You've got a few things around you?

A. Yes."

10. The applicant contends that he is homeless, not because he was thrown out of home but, because Mrs Crowhurst would not let him return if he wanted to. I find that she certainly said this to him at the time, as she said in evidence at p.53:

"Q. Did you say for a short time, or until he gets somewhere else, or something like that?

A. No. I didn't say anything. I just took it at that and just let him stay there and then he said to me that he would like to go and get a place of his own. Wanted to be independent and I said to him at the time: You're going Peter. I'm not turning you out. You're going on your own accord, but if you go I won't have you back again or anybody else. I wanted the place to myself. I want to be, you know, peace and quiet. You know, because I've got to have proper rest."

However, I am not satisfied that put to the test, she would have maintained her resolve and in all probability if he had been without any accommodation, she would have allowed him to return. I also find that had the applicant not decided to move, Mrs Crowhurst would not have forced him out.

11. The applicant has not asked if he can return home, indeed, as things stand, he has no reason to. His contention is essentially that he no longer has the option. It is not so much the case that he is not allowed to return home, more it is that there is a mutual agreement between his parents, Mrs Crowhurst and himself that it is best if things stay as they are. This was clear from the answers his mother, Mrs J. Harris, gave in cross-examination at p.86-87:

"Q. Has he asked if he can come back at all?

A. No, because he won't come back there with her there.

Q. But I guess if she wasn't there, would he want to give up his flat?

A. That I don't know. I don't think so. He likes to be on his own.

Q. ...you actually don't need to take Peter in at the moment, he's quite happy on his own, but what would happen if something awful happened and he just didn't have anywhere to go?

A. Well, I suppose I'd have to take him back whether he liked to or not.

Q. ...if he was really destitute and had absolutely nothing else to do, nowhere else to go?

A. Well, I'd take him back, yes, but there'd be a big argument though with her."

12. The definition of a homeless person for the purposes of the Young Homeless Allowance is contained in s.115(1) of the Act and is:

"'homeless person' means a person who is an unmarried person, without dependants, who:

(a) either:

(i) does not live, and for a continuous period of at least 2 weeks has not lived, at a home of the parents, or of a parent, of the person because the parents are not, or neither parent is, prepared to allow the person to live at such a home; or

(ii) does not live at a home of the parents, or of a parent, of the person because domestic violence, incestuous harassment or other such exceptional circumstances make it unreasonable to expect the person to live at such a home; and

(b) is not receiving continuous support, whether directly or indirectly and whether pecuniary or otherwise, from a parent of the person or from another person who is acting as the person's guardian on a long-terra basis; and
(c) is not receiving, on a continuous basis, any payment in the nature of income support (other than a benefit) from the Commonwealth, a State or a Territory;"

The applicant must satisfy these criteria to be eligible for an allowance under s.118 of the Act.

13. It was agreed between the parties that the relevant part of sub-section (a) of the definition is placitum (i). If the applicant does not satisfy this criterion, there is no need to go on to consider sub-sections (b) and (c) of the definition.

14. The definition above requires causation. It expects that the reason a young person has left and stayed away from home for two weeks is that they cannot, under any circumstances, return. On the evidence before me, I find this is not the case. The applicant found it unpleasant living at home, and all concerned are happy that he has left, but he left of his own volition to move to better circumstances. The word "because" in the definition means that a beneficiary of Young Homeless Allowance under the Act, must be "homeless" for the reason that his or her parent(s) will not permit them to live in the house.

15. On the evidence before me, it was clear that both of the applicant's parents would be quite happy to have him live at home, were it not for Mrs Crowhurst's preference, and I would put it no stronger than that, that he lives elsewhere. The applicant does not live at home, not because he is not permitted to, but because he chooses to. It is because he wants independence, because it is more comfortable and he can do as he pleases in independent accommodation.

16. It does not appear, from the context of the legislation, that it was Parliament's intention to pay the higher rate of Young Homeless Allowance to people under 18 simply because they had left home. The benefit is payable when someone is forced to leave home, against their will or because it is impossible to stay.

17. After considering all of the material and submissions before the Tribunal, I have come to the conclusion that the applicant does not come within the definition of a homeless person in the Act. Accordingly, the decision under review is affirmed.