Xavier and Department of Family and Community Services [2002] AATA 109 (22 January 2002)

Last Updated: 25 February 2002

DECISION AND ORAL REASONS FOR DECISION [2002] AATA 109

ADMINISTRATIVE APPEALS TRIBUNAL )

) No S2001/280

GENERAL ADMINISTRATIVE DIVISION )

Re J MICHAEL XAVIER

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Senior Member WJF Purcell

Date 22 January 2002

Place Adelaide

Decision For the reasons given orally at the Hearing of this matter, the Tribunal affirms the decision under review.

(Signed)

WJF PURCELL

(Senior Member)

CATCHWORDS

SOCIAL SECURITY - pensions, benefits and allowances - Austudy - "ordinary income" - whether monies received from half-brother in Canada should be treated as "income" in determining Austudy entitlement - definition of "brother"

Social Security Act 1991 sections 8, 581, 1067L-D17

Social Security Legislation Amendment Act 199

ORAL REASONS FOR DECISION

22 January 2002 Senior Member WJF Purcell

1. This is an application for review of a decision of the Social Security Appeals Tribunal (the SSAT) of 27 June 2001, which affirmed the decision of an Authorised Review Officer, of 10 April 2001, to assess a gift from the applicant's half brother as income in determining his Austudy entitlement.

2. The evidence before the Tribunal comprised the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T Documents), together with the exhibits tendered by the respondent (the Department). The applicant appeared on his own behalf. Ms Odgers represented the Department.

3. The applicant is in receipt of Austudy payments whilst completing his law degree at the University of Adelaide. He is married with three dependent children. He receives intermittent payments from his half brother in Canada, and puts these funds towards his children's private school fees, and other expenses for his children. He works part-time as a taxi driver; and it is not in dispute that he declares this income to Centrelink on a fortnightly basis.

4. The Department treated amounts received by the applicant from his half brother as "income" for the purposes of determining his rate of Austudy payment. The decision to treat these amounts as "income" was affirmed by an Authorised Review Officer on 10 April 2001 and the SSAT on 27 June 2001.

5. Section 581(1) of Social Security Act 1991 (the Act), as far as is relevant for the purposes of this review, provides:

"Subject to this section, the rate of a person's austudy payment is to be worked out in accordance with the Austudy Payment Rate Calculator in section 1067L."

6. Section 1067L provides:

"1067L-D17 Subject to point 1067L-D18 (and despite paragraph 8(8)(z)), a person's ordinary income for the purposes of this Module includes a periodical payment or benefit by way of gift or allowance from the father, mother, son, daughter, brother or sister of the person."

7. Section 8(8) provides:

" The following amounts are not income for the purposes of this Act:

...

(z) a periodical payment by way of gift or allowance, or a periodical benefit by way of gift or allowance, from the person's father, mother, son, daughter, brother or sister;"

8. "Brother" is defined in the Macquarie Concise Dictionary (2^nd ed, 1988) as:

"-n. 1. a male child of the same parents, as another, (full brother or brother-german). 2. a male child of only one of one's parents (half-brother). 3. a male member of the same kinship group, nationality, profession, etc.; an associate; a fellow countryman, fellow man, etc. 4. Eccles. A male lay member of a religious organisation which has a priesthood. 5. (pl.) all members of a particular race, or of the human race in general. [ME; OE brother, c. G Bruder]"

9. The applicant submits that he receives amounts from a "half-brother", not a "brother", and that therefore the income is not caught by section 1067L-D17 of the Act. If we are to divert from full brother to half-brother, we could include all other definitions, such as all members of a particular race or nationality, as defined in the Macquarie Concise Dictionary. He submits also that prior to 1998 the receipt of this money did not affect his rate of payment of Austudy. The sub-section, which came into effect in October 1998, is directed to people who have rich parents, and get money in hand and other benefits, such as being in a flat near home, and should not be receiving Austudy. The amount set aside by Government for Austudy payments is intended for people on the breadline, like himself. Because his money comes from overseas, the applicant contends, that as a Social Security recipient, he is being targeted by the Department, which is not happening to these other people.

10. The applicant argues also that as a Social Security dependant he has a human right of access to Social Security and tertiary education. This is a denial of human rights which is having an impact on the family and the applicant's three children, as the family income is adversely affected.

11. The Department maintains that "brother" includes "half-brother" and in the context of the sub-section is being used in a familial relationship - a class of relationship which might be expected to give gifts and allowances. Austudy is an income support payment, and within the legislative framework there is a definition of "income" which includes the money from the applicant's half-brother. The clear terms of the legislation should not be ignored, because they preclude a person from payment.

12. I consider that the applicant's earnest and carefully reasoned submissions cannot succeed. Section 1067L-D17 of the Act specifically excludes the effect of section 8(8)(2) of the Act; and ordinary income for the purposes of Module D includes a periodical payment from a brother. The Macquarie Concise Dictionary definition of "brother" includes "half-brother", and in the context of the legislation the familial relationship covered by section 1067L-D17 is clearly defined, and limited to immediate relatives. The Explanatory Memorandum to the Social Security Legislation Amendment Act, reads in part:

"New Points 1067L-D17 and 1067L-D18

These points make it clear that a person's ordinary income is to include a periodical payment or benefit by way of gift or allowance from one of the specified immediate relatives of the person. However, a payment to the person from such a relative for board or lodging is not included in ordinary income."

13. In relation to the applicant's submissions as to denial by the Department of his basic human rights to tertiary education, and Social Security payments, the question of human rights and equal opportunity can be pursued in another forum, but the applicant clearly has the right to receipt of Austudy to pursue his tertiary education, if he so qualifies. The payment is subject to an income test, and in accordance with section 581 of the Act, the rate of payment is to be worked out in accordance with the Austudy Payment Rate Calculator in section 1067L of the Act, which includes the provision 1067L-D17 which treats the monies received from the applicant's brother, as "ordinary income" for the purposes of module D.

14. For these reasons, the Tribunal affirms the decision under review.

I certify that the 14 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member WJF Purcell

Signed: .....................................................................................

Associate

Date/s of Hearing 22 January 2002

Date of Decision 22 January 2002

Counsel for the Applicant In person

Solicitor for the Applicant -

Counsel for the Respondent Ms L. Odgers

Solicitor for the Respondent Centrelink