Luck and Secretary, Department of Education, Training and Youth Affairs [2000] AATA 4 (7 January 2000)

Last Updated: 10 January 2000

DECISION AND REASONS FOR DECISION [2000] AATA 4

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V1999/850

GENERAL ADMINISTRATIVE DIVISION )

Re GAYE LUCK

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, TRAINING & YOUTH AFFAIRS

Respondent

DECISION

Tribunal Mr B.G. Gibbs, AM, Senior Member

Date 7 January 2000

Place Melbourne

Decision The Tribunal affirms the decision under review.

(Sgd.) B.G. Gibbs

Senior Member

CATCHWORDS

AUSTUDY - whether eligible for payment of rent assistance

Words and Phrases -

* Homeless Persons Assistance Act 1974

* Human Rights and Equal Opportunity Commission Act 1986

* Student Assistance Act 1978 - ss. 1,8

* Social Security Act 1991 - s19

* Housing Assistance Act 1996

* AUSTUDY Regulations 5, 67, 68, 69, 71, 72, 73, 74, 75, 76, 77, 102A, 102H

* AUSTUDY Policy Guidelines Manual 1998 - Chapter 1, Part 6

Re Tait and Department of Employment, Education, Training and Youth Affairs (1996) 44 ALD 179

REASONS FOR DECISION

7 January 2000 Mr B.G. Gibbs, AM, Senior Member

INTRODUCTION

1. This is an application by Ms Gaye Luck for review of the decision of the Social Security Appeals Tribunal ("SSAT") dated 23 February 1999.

2. The decision of the SSAT was to affirm the decision of a Centrelink delegate of the Secretary, Department of Social Security (as it then was) dated 24 January 1998, to reject Ms Luck's application for rent assistance.

3. The decision of the delegate was affirmed by an Authorised Review Officer ("ARO") on 1 June 1998.

REPRESENTATION

4. At the hearing before this Tribunal Ms Luck was self-represented. Mr R. Frazzetto, Australian Government Solicitor's Office, appeared for the respondent, hereinafter referred to in these reasons as "the Department".

DOCUMENTATION

5. The Tribunal; had before it documents ("the T documents") lodged by the Department pursuant to section 37 of the Administrative Appeals Tribunal Act 1975.

6. A number of other documents, to some of which it may be necessary to refer, were also tendered and received during the hearing.

WITNESSES

7. Ms Luck gave evidence on her own behalf. No other witnesses were called.

ISSUE

8. The issue before the Tribunal for determination is whether, at the time of her application for rent assistance made on 19 January 1998 (T7, p45), Ms Luck met the qualifications for such assistance.

AUSTUDY REGULATION 102A

9. Regulation 102A of the AUSTUDY Regulations ("the Regulations") states:

"102A. (1) A student can get rent assistance if the student pays rent and:

(a) he or she:

(i) is under 25 years of age; and

(ii) receives the independent living allowance under regulation 72, 73, 74, 75 or 76; and

(iii) does not have a dependent child; or

(b) he or she:

(i) receives the away-from-home living allowance under paragraph 77(3); and

(ii) lives away from his or her carer's home to study.

(2) For the purposes of this regulation the fact that a student pays, or is liable to pay, maintenance for a child, does not alone, make the child a dependent child of the student."

10. Sub-regulation 102D(1) states:

"102D (1) For the purposes of this Chapter, amounts are 'rent' in relation to a student if the amounts are payable every 3 months (or more often):

(a) as a condition of occupying a place of residence, or part of a place, occupied by the student as his or her main place of residence while studying (except a place described in another paragraph of this provision)."

CONTENTIONS

11. It was Ms Luck' contention that she has an entitlement to payment of rent assistance and that the entitlement arises because of the operation of the following legislation:

* Student Assistance Act 1973;

* Social Security Act 1991;

* Housing Assistance Act 1996;

* Human Rights and Equal Opportunity Commission Act 1986;

* Homeless Persons Assistance Act 1974; and

* AUSTUDY Regulations.

BACKGROUND

12. Ms Luck was born on 25 February 1952.

13. In 1993, while living in Queensland, she was a recipient of SEVS/NEIS, which is a joint Queensland Government/Commonwealth Government New Enterprise Incentive Scheme designed to assist unemployed persons to start a self-employment business.

14. Ms Luck applied for her full loan entitlement under the scheme. However, the application was rejected and it was Ms Luck's assertion that this reduced her opportunity to establish an economically viable self-employment business.

15. In 1995 Ms Luck suffered an injury which prevented her from working. She applied for and received Newstart Allowance under the Social Security Act 1991 ("the SS Act").

16. In 1997 Ms Luck applied for Disability Support Pension, however the application was rejected on the grounds that she was deemed fit for work.

17. At some later stage Ms Luck moved to Brisbane where she rented a unit. She continued to receive Newstart Allowance and Rent Assistance. She also received Pharmaceutical Allowance.

18. Because of her medical condition and in an endeavour to enhance her employment opportunities, Ms Luck enrolled in a tertiary preparation course in early 1998. It is not in dispute that at that time she was in receipt of Newstart Allowance and received rent assistance under the SS Act.

19. On 19 January 1998 Ms Luck applied for rent assistance under the AUSTUDY Regulations. However, her application was rejected.

20. Ms Luck asserted that because of the rejection of her application for rent assistance she was forced to change courses and enrol in a tertiary course, which had been her ultimate goal following tertiary preparation. It is understood that Ms Luck was then eligible for a Supplemental Loan.

21. It was Ms Luck's assertion that although she received the Supplemental Loan she was still under financial and personal strain, especially in trying to cope with a tertiary course for which she was not adequately prepared. Because of this she sought a review of the decision to reject her application for rent assistance.

22. As indicated in paragraph 3 above, the decision to reject the application was affirmed by an ARO on 1 June 1998.

23. In affirming the decision the ARO addressed the provisions of Regulation 102A as set out in paragraph 9 above. In doing so, the ARO stated as follows:

"The regulations mentioned above are detailed below.

Under regulation 72 a student qualifies as independent through being an orphan if both natural or adoptive parents are dead.

Under regulation 73 a student qualifies as independent if both natural or adoptive parents are:

(a) serving a prison sentence of at least 10 years; or

(b) likely to be mentally incapacitated for an indefinite period; or

(c) living in a nursing home for an indefinite period; or

(d) missing.

Under regulation 74 a student can qualifies [sic] as independent through it being unreasonable that he or she live at home, if:

(a) he or she cannot live at the home of either or both of his or her natural or adoptive parents;

(i) because of extreme family breakdown or other similar exceptional circumstances; or

(ii) because to do so would be at serious risk to his or her physical or mental well-being due to violence, sexual abuse or other similar unreasonable circumstances.

Under regulation 75 a student qualifies as independent by reason of being a refugee if he or she holds, or has held, a visa or entry permit under the Migration Act 1958, for the grant of which a criterion or requirement was that the person demonstrate that he or she:

(a) is a refugee; or

(b) has other humanitarian needs.

Under regulation 76 a student qualifies as independent through being a ward if:

(c) the student qualified as independent in 1990 under AUSTUDY through being a ward, or having been a ward; and

(d) the student:

(i) continues to be a ward; or

(ii) stopped being a ward only because of his or her age.

Under subregulation 77(3), a student qualifies for the away-from-home living allowance if:

(e) the student is not living with a natural or adoptive parent; and

(f) either:

(i) the student is in the guardianship, care of custody of a Court, Minister or Department; or

(ii) there is a current direction from a Court, Minister or Department placing the student in the guardianship, care of custody of someone who is not the student's natural or adoptive parent; or

(iii) the student stopped being in a situation described in paragraph (i) or (ii) only because of his or her age; and

(g) no payments are being made by a State or Territory Government for the student's upkeep." (T11, p50-51)

The ARO further stated:

"As you are over 25 years of age and do not satisfy the other requirements of subregulation 102A(1), you are not eligible to receive rent assistance. The other regulations have been explained because students under 25 years of age also, must meet the other requirements of regulation102A(1). Rent assistance is not automatically granted to students eligible for AUSTUDY who are under 25 years of age." (T11, p51)

24. Upon receipt of the decision of the ARO, Ms Luck appealed to the SSAT and, as already indicated, on 23 February 1999 that Tribunal affirmed the decision earlier affirmed by the ARO. In so doing, the SSAT clearly considered the relevant law to be regulation 102A, together with the other regulations referred to therein. In applying regulation 102A to the facts as found, the SSAT stated as follows:

"7.3 To be eligible for rent assistance a student must satisfy either subregulation 102A(1)(a) or 102A(1)(b) of the AUSTUDY Regulations, Subregulation 102A(1)(a) of the AUSTUDY Regulations (as outlined in the section Issues/Legislation of this report) states that a student must be under 25 years of age and be receiving the independent living allowance under regulation 72, 73, 74, 75 or 76. Ms Luck is forty-seven years of age and consequently does not fulfil the criteria of subregulation 102A(a) or the AUSTUDY regulations. Subregulation 102A(1)(b) of the AUSTUDY Regulation does not necessarily apply only to students under a particular age.

7.4 Under this sub-section a student must be receiving the living away-from-home allowance under paragraph 77(3) and live away from his or her carer's home to study.

7.5 Sub-Regulation 77(3) states

(3) In addition, a student qualifies for the away-from-home living allowance if:

(a) the student is not living with a natural or adoptive parent; and

(b) either:

(i) the student is in the guardianship, care or custody of a Court, Minister or Department; or

(ii) there is a current direction from a Court, Minister or Department placing the student in the guardianship, care or custody of someone who is not the student's natural or adoptive parent; or

(iii) the student stopped being in a situation described in paragraph (i) or (ii) only because of his or her age; and

(c) no payments are being made by a State or Territory Government for the student's upkeep (but this does not apply to payments for dependent children in general).

7.6 Under this provision an adult student may be entitled to rental assistance providing the other criteria are met.

7.7 In the case of Ms Luck she was not receiving the away from home living allowance under paragraph 77(3) and thus can not satisfy subregulation 102A(1)(b) of the AUSTUDY Regulations.

7.8 As Ms Luck can not satisfy either subregulation 102A(1)(a) or (b) of the AUSTUDY Regulations she was not entitled to rent assistance in 1998 under the AUSTUDY scheme." (T2, p8)

THE APPLICANT'S SUBMISSIONS

25. It was Ms Luck's submission that the decision under review should be set aside and that this Tribunal should substitute therefor the decision that:

"The applicant is eligible for Austudy rent assistance under regulation 102H on the grounds that the applicant was in receipt of rent assistance under the Social Security Act 1991, section 738 SPB homeless person and section 1067 rent assistance and that amount was greater than the amount that would be calculated under the Austudy regulations. The applicant is eligible for Austudy rent assistance and under regulation 102A(1)(a)(i) and (ii) as a homeless person as described in regulation 74(a)(i) on the grounds that the applicant was excluded and disadvantaged on the basis of age and homelessness by the inconsistency of the Student Assistance Act 1973, the Human Rights and Equal Opportunity Commission Act 1986 and the Austudy Regulations 1997." (Transcript, p36)

26. Ms Luck stated that in order to establish whether at the material time she was eligible for rent assistance, it was first necessary to determine whether she was entitled to AUSTUDY living allowance. She submitted that in order to determine that issue it was necessary to have regard for the intention of the Student Assistance Act 1973 ("the SA Act"), Section 1 of which states that it is an Act to provide benefit to students by way of senior secondary scholarships, tertiary education assistance and post-graduate awards.

27. Ms Luck invited the Tribunal's attention to section 7 of the SA Act, which provides for the grant of a senior secondary scholarship to a person who is undertaking, or proposes to undertake, as a full-time student at a secondary school, a course of secondary education at a level approved by the Minister. As earlier stated, Ms Luck applied for a tertiary preparation course, her intention being to later pursue a university course.

28. Section 8 of the SA Act states that benefits under a senior secondary scholarship shall consist of the payment of a basic allowance and, where a living allowance is payable under the regulations in respect of the holder of the scholarship, the payment of a living allowance.

29. It was Ms Luck's assertion that:

"If the purposive approach to the legislation is used, one must consider that if a student is entitled to a senior secondary scholarship, the student is entitled to payment of a basic allowance at a rate prescribed for the purposes of section 8(a) of the Student Assistance Act 1973, the Act, and where a 'living allowance' is payable under the regulations, the holder of the scholarship is also entitled to payment of a rate determined in accordance with the regulations and under the Austudy regulations."

30. Regulation 5 of the Regulations requires that to get AUSTUDY a student must be at least 16 years of age, or entitled to leave school under the law of his or her state or territory and covered by regulations 72, 73, 74, 75 and 92. As Ms Luck pointed out, she is more than 16 years of age.

31. In her submissions, Ms Luck said that while regulation 5 governs who may get AUSTUDY, there is no definition of the term "AUSTUDY". This, she said, raised the question:

"... is Austudy the living allowance provided in accordance with the object of the Student Assistance Act 1973? Is it an allowance, a payment, a benefit? Is it a scheme? Is it rent assistance? Is it the allowance for fares?

If it is the benefit or living allowance provided for in the Student Assistance Act 1973, what is the living allowance, or what is a living allowance?"

32. It was Ms Luck's submission that while regulations 72, 73, 74, 75 and 76 provide for a range of independent student categories for the purposes of qualifying for living allowance, it remains unclear as to what, by definition, is "living allowance".

33. It was Ms Luck's submission that the answer to this question is to be found in section 19(5) of the SS Act which defines "reasonable living costs" and shows rent or mortgage payments as second to food in terms of importance.

34. Ms Luck also referred to her Social Security - Advance Payment application form dated 25 February 1998. The advance payment is an interest-free loan made under the SS Act to certain recipients of social security benefits. The Questionnaire Page of the application form is headed "Fortnightly Income and Expenses". It was Ms Luck's observation that:

"It is quite obvious when examining the questions asked on the form, that when dealing with persons in need of a means tested Allowance or Benefit the most significant expense, both in $ value and in level of importance is Housing ie Rent/Mortgage.

It would be a very unreasonable Government, indeed, which would grant scholarships and assistance to persons for the purpose of further education and not include in the assistance the means for the student to provide a basic need for living. That is, 'a living allowance', which undoubtedly includes RENT!!!." (Submissions, p17)

35. Regulation 67 sets out the qualifications necessary for a student to qualify for the independent living allowance. In doing so, the regulation states as follows:

"67.(1) A student qualifies for the independent living allowance if the student meets any of the following conditions for an independent student:

(a) age, as described in regulation 68;

(b) marriage, as described in regulation 69;

(c) has a dependent child, as described in regulation 70;

(d) periods in the workforce, as described in regulation 71;

(e) orphan, as described in regulation 72;

(f) parents cannot exercise responsibilities, as described in regulation 73;

(g) homeless, as described in regulation 74;

(h) refugee, as described in regulation 75;

(i) ward, as described in regulation 76."

36. Regulation 68 provides that, for the purposes of sub-regulation 67(a), a student is independent if the student receives independent living allowance on or after the student's 25th birthday.

37. Under regulation 69, the student qualifies as independent through marriage, if he or she is married or has previously been married.

38. Under regulation 71 the student qualifies as independent through periods in the workforce if, for at least 156 weeks out of the last 208 weeks, he or she has been unable to engage in full-time employment because of illness or incapacity and a registered medical practitioner confirms this in writing. Under the same regulation the student will also qualify as independent where, for the same period of time, he or she has been a recipient of newstart allowance, sickness allowance or special benefit under the SS Act.

39. Regulation 74 states:

"74. A student qualifies as independent through it being unreasonable that he or she live at home, if:

(a) he or she cannot live at the home of either or both of his or her natural or adoptive parents:

(i) because of extreme family breakdown or other similar exceptional circumstances; or

(ii) because to do so would be at serious risk to his or her physical or mental well-being due to violence, sexual abuse or other similar unreasonable circumstance; and

(b) he or she is not receiving continuous financial or other support, directly or indirectly, from a natural or adoptive parent of the student; and

(c) he or she is not wholly or substantially dependent on a person other than a natural or adoptive parent of the student, on a long term basis; and

(d) he or she is not receiving a regular payment of welfare or student assistance from the Commonwealth, a State or a Territory (except AUSTUDY); and

(e) he or she does not have a spouse who, being entitled to a regular payment from the Commonwealth, a State or a Territory, gets the payment at a higher rate because the student is his or her spouse."

40. Ms Luck maintained that her circumstances, which include those of her parents (who are separated) satisfies the qualifications set out in regulation 74. It was her view that in effect regulation 74 is describing "homeless" for the purposes of regulation 5, covering age eligibility,.

41. Ms Luck argued that:

"If a purposive approach is taken, Section 102A covering Rent Assistance, is inconsistent with Section 5 which outlines general requirements for all students. How can a ceiling age be determined for Rent Assistance only, when Section 5 - covering Age eligibility applies to all other allowances and supplements to the Living Allowance." (Submissions, p25)

42. Ms Luck further argued that regulation 102A is inconsistent with the purpose and object of the SA Act; the Human Rights and Equal Opportunity Commission Act 1986 ("the EOC Act") and the Homeless Persons Assistance Act 1974.

43. Under the latter Act a "homeless person" means a person who has attained the age of 16 years; has no settled home and is in need of approved assistance; or although having a settled home, is temporarily in need of approved assistance.

44. Ms Luck asserted that at the time she applied for rent assistance she was in need of approved assistance, even if only temporarily. She further asserted that she was "homeless" under regulation 67, which states that a student qualifies for the independent living allowance if the student is "homeless" as described in regulation 74 (Regulation 67(1)(g)).

45. Addressing the rejection of her claim for rent assistance on the basis of age, Ms Luck submitted that the exclusion is not consistent with the EOC Act, which provides that such exclusion has the effect of nullifying or impairing equality of opportunity (Schedule 1, Section 3, Article 1, Para 1(G)).

46. Ms Luck pointed out that the preamble to the Housing Assistance Act 1996 states that the inability to obtain adequate and ecologically appropriate housing can have adverse effects on health and the quality of life and reduces the prospects of obtaining employment and other opportunities. She went on to state her position as follows:

"To obtain equal opportunity by way of access to vocational training, the applicant was compelled to alter enrolment from a secondary course to a tertiary course for which she was not prepared educationally and was disadvantaged by added stresses in coping with the study loan. Being in severe financial hardship as defined under section 19(b) of the Social Security Act 1991, the applicant was forced to borrow money from a bank by way of a supplement loan for which she was also ineligible whilst enrolled in a secondary course.

This loan arrangement has the effect of halving the Austudy living allowance. To avoid being in severe financial hardship and homelessness, the applicant required continued payment of rent assistance which was normally granted to those students in similar circumstances who were under 22 years of age. Those students in similar circumstances to the applicant who are under 22 years of age were able to receive full living allowance, rent assistance and have no debt to repay." (Transcript, p29)

47. Regulation 102H states as follows:

"102H. A student who:

(a) has received rent assistance under the Social Security Act 1991 greater than the amount that would be calculated as the student's entitlement under these Regulations; and

(b) no longer qualifies for that rent assistance because he or she is entitled to AUSTUDY;

can receive rent assistance at an amount equal to the greater amount for up to 3 months after qualifying for AUSTUDY."

48. It was Ms Luck's submission that:

"It is evident that the applicant did receive rent assistance of $74.80 per fortnight under the Social Security Act 1991 and that amount was most definitely greater than the amount calculated as being the applicant's entitlement of nil under the Austudy regulations. Refer page 2, facts paragraph 1.2, exhibit E1(a)(b) and page 3, facts paragraph 1.3(v) and (vii), exhibit A2 and B1. Under the Austudy regulations the applicant no longer qualified for $74.80 after qualifying for Austudy and therefore should be entitled to the greater amount of $74.80 for up to three months after qualifying for Austudy." (Transcript, p31)

49. Ms Luck disagreed with the contention of the Department, which was that regulation 102H is intended for students who receive the student homeless rate. In expressing her disagreement, Ms Luck stated:

"Regulation 102H, which is obviously not intended for only students who receive the student homeless rate as the Respondent claims. It is intended for those who were receiving rent assistance under Social Security Act 1991, who were paid more than what they are entitled to receive in rent assistance on AUSTUDY, which indicates that provision was made for anyone suffering hardship because of being eligible for AUSTUDY.

It is not a Regulation designed to exclude and disadvantage a group of people already disadvantaged by the ambiguous legislation." (Submissions, p36)

THE DEPARTMENT'S SUBMISSIONS

50. It was Mr Frazzetto's submission that regulation 5 does not operate to provide an absolute entitlement for students over 16 years of age, but rather it sets a minimum qualification of 16 years of age, or entitlement pursuant to the criteria set out in the other regulations to which regulation 5 refers (see paragraph 30 above).

51. As to regulation 74 (see paragraph 39 above), Mr Frazzetto submitted that the regulation is directed to students who are normally dependent on their parents but who cannot live at home because of extreme family breakdown or exceptional circumstances, or where living at home would pose a serious risk to the student's physical or mental well-being due to violence, sexual abuse and so on.

52. Dealing with the independent living allowance (see paragraphs 35 and 36 above), Mr Frazzetto reminded the Tribunal that by virtue of regulation 67 a student qualifies for that allowance if he or she meets the age condition set out in regulation 68. In doing so, Mr Frazzetto stated:

"Regulation 68 qualifies a student as independent on and after his or her 25th birthday, I think that's been amended by the same regulation that amended regulation 102A which appears at page 20 of the T documents, the amendment appears at page 20. So Ms Luck was qualified as an independent student, able to receive independent living allowance, Austudy, by virtue of regulations 67A and 68 and that is a category which is known as non reviewable independent student status because the circumstance of qualifying by age can't change.

Whereas, the other students, for example under regulation 74, their circumstances could change because it may be that family issues may be resolved and they can go back home and they perhaps do go back home, so that's called reviewable independent status." (Transcript, p37)

53. Turning to the issue of regulation 102H (see paragraph 47 above), Mr Frazzetto stated that the purpose of the regulation is to support a student for a period of three months in order that he or she can organise accommodation. Where the rent assistance the student can receive under AUSTUDY is for a lesser amount than he or she was receiving under social security benefits, then the student has three months in which to organise himself or herself to accommodate the lower rate of rent assistance. Mr Frazzetto submitted that:

"Regulation 102H applies where there is an entitlement. There needs to be an amount calculated as the student's entitlement under the regulations. If a person is not eligible one doesn't get to the step of calculating an entitlement and there are two amounts that have to be compared under regulation 102H, so there is implicit an entitlement that needs to be established in the first place for that regulation to apply." (Transcript, p37)

54. In his final submissions, Mr Frazzetto drew the Tribunal's attention to the 1998 AUSTUDY Policy Guidelines Manual ("the Manual").

55. Chapter 1, Part 6 of the Manual ("Reviewable Independent Status") states as follows:

"6.1.1.1 AUSTUDY is normally assessed against a student's

Overview parents' income and assets until the student turns 25 or meets one of the criteria which indicate that it would be unreasonable to take parental income and assets into account, ie is granted a non-reviewable independent status. Non-reviewable independent status is granted where the student:

* turns 25 years of age (Regulation 68),

* is, or previously has been, married (Regulation 69),

* has, or had, a dependent child (Regulation 70),

* has participated in the workforce for at least 156 weeks out of the last 208 weeks (Regulation 71).

In such circumstances, the student is granted exemption from parental means tests. Reviewable independent status, on the other hand, is granted in situations where, for the time being, a student has no reasonable expectation of a home, care and support from his or her natural or adoptive parents.

The reviewable independent rates cover students who:

* are orphans (Regulation 72),

* have parents who are missing, or in prison for more than ten years or indefinitely medically incapacitated (Regulation 73),

* cannot live at home because of extreme family breakdown, violence, sexual abuse or other similar unreasonable circumstances (Regulation 74),

* are unsupported refugees without parents in Australia (Regulation 75),

* are permanent residents or New Zealand citizens who entered Australia on or after 1 January 1997 and who experienced a change in circumstances after their arrival so that they meet one or more of the reviewable independent criteria. Students must be under 22 years of age at the time their circumstances changed.

The rate of payment is the same as for other independent students of comparable age, and is commonly known as the Student Homeless Rate (SHR). Unlike other independent rate recipients SHR beneficiaries can qualify for rent assistance.

As the situations covered by the reviewable independent rate can change, for example, a homeless student becomes reconciled with his or her family or an orphan is legally adopted, independent status can be revoked at any time and normal parental means testing reinstated.

6.1.1.9 Students aged up to 18 years who have been receiving

Transferring to the independent homeless rate of Newstart Allowance,

AUSTUDY from social Sickness Allowance, Special Benefit or Youth Training

security as a homeless Allowance (YTA) can transfer directly to SHR (provided

young person under 18 they are otherwise eligible for AUSTUDY). Direct transfer

years of age can occur if the student provides a statement indicating that he/she has been receiving social security payments as a homeless young person.

A statement indicating that the client has been receiving 'independent rate' is not acceptable, confirmation of whether the client was paid that rate on the basis of homelessness must be provided. Students cannot transfer directly without this confirmation.

If the client was paid the independent rate for a reason other than homelessness (eg 18 weeks living away from home), he or she will need to apply for SHR in the usual way.

6.1.1.10 The Independent Homeless Rate is only available to

Social security social security clients under the age of 18. As a result,

clients over 18 at time records relating to payment as a homeless person are

of transfer to AUSTUDY normally destroyed when the client turns 18.

For students over 18 at the time of transfer to AUSTUDY, it will usually be necessary for the student to apply for SHR in the normal way.

6.1.1.14 Students who meet the criteria for one of the reviewable Rent assistance independent statuses, and receiving a living allowance may be eligible for rent assistance.

See '6.9 Rent Assistance' for details."

56. Chapter 9, Part 6 of the Manual ("Rent Assistance) states that rent assistance is available to students receiving the Student Homeless Rate (SHR) and those in State care who are in private rental accommodation. In terms of eligibility, conditions include all general eligibility criteria (see Part 3 of the Manual); the students living arrangements, the amount of rent paid, and the student's income test. As to entitlement, the Manual states that eligible students are entitled to the allowance in addition to their fortnightly living allowance. The Manual then states:

"6.9.1.1 Students eligible to receive SHR and those in State care

Regulation 102A: Who can apply for rent assistance if they are:

is eligible for rent . in private rental accommodation; and

assistance? . eligible to receive a living allowance.

SHR covers students who:

* are orphans;

* are an unsupported refugee without parents in Australia; or

* have parents unable to exercise parental responsibilities (because they are in prison, are incapacitated, or missing); or

* do not live at home because of serious risk to his or her physical or mental health, ie the homeless criteria.

6.9.1.28 Students transferring to AUSTUDY SHR from social

Regulation 102H: security Homeless Rate can continue to receive the same

Students transferring amount of rent assistance they were previously receiving

from the social security subject to their living circumstances remaining

Homeless Rate unchanged.

However, if a student would qualify for more rent assistance under AUSTUDY, the higher amount is payable (the social security rent assistance income test is different).

Students can get the social security amount for the first 3 months after transferring to AUSTUDY (subject to living circumstances not changing), after which time their entitlement is assessed against the usual AUSTUDY criteria.

The preserved social security amount is reassessed in the first three months where:

* the amount of rent paid by the student varies;

* where the student moves into accommodation that is not of the appropriate type for the payment of rent assistance;

* the student changes his/her accommodation arrangements (ie moves to or from shared accommodation); or

* the student marries or begins a de facto relationship.

A change in the estimated income of the student during the preserved payment period does not affect the rent assistance paid. The amount of rent assistance payable based on revised income is reassessed at the conclusion of the three-month period.

Where a social security transferee ceases to qualify for rent assistance for a period during the 3 month period (due to, for example, a short-term change in rent payments) the reinstatement of rent assistance is assessed against the usual AUSTUDY requirements."

FINDINGS

57. I find that in this matter none of the requirements of sub-regulation 102A(1)(a) or (b) of the AUSTUDY Regulations are satisfied.

58. I further find that regulation 102H is not applicable to Ms Luck.

59. That being so, Ms Luck is not eligible for rent assistance.

60. In making these findings I have accepted the various submissions made by Mr Frazzetto on behalf of the Department, to which I have referred.

61. As I have recorded, in this matter Ms Luck has sought to rely upon the intent and operation of the legislation listed in paragraph 11 above. In this connection, I again accept the submission of Mr Frazzetto, which was that AUSTUDY is a discrete scheme into which one cannot import the operation of other legislation.

62. As was correctly observed by Mr Frazzetto, this matter is very much a protest in which it is alleged that the regulations are discriminatory against older people who wish to study. Indeed, the same issue arose in Re Tait and Department of Employment, Education, Training and Youth Affairs (1996) 44 ALD 179. In that case the Tribunal made the point that while the regulations may be perceived as discriminatory, the Tribunal must nevertheless apply the relevant law, being the AUSTUDY regulations, to the facts as found. There is no discretion available to the Tribunal to do otherwise.

DECISION

63. The Tribunal will affirm the decision under review.

I certify that the 63 preceding paragraphs are a true copy of the reasons for the decision herein of Mr B.G. Gibbs, AM, Senior Member

Signed: Judith Holt, Associate

Date of Hearing 30 November 1999

Date of Decision 7 January 2000

Applicant Self-represented

Solicitor for the Respondent Mr R. Frazzetto, Australian Government Solicitor's Office