Aliya and Secretary, Department of Social Services (Social services second review)

[2020] AATA 3504

Aliya and Secretary, Department of Social Services (Social services second review) [2020] AATA 3504 (11 September 2020)

Division:GENERAL DIVISION

File Number:          2019/3929

Re:Mustafa Aliya

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member M East

Date:11 September 2020

Place:Perth

The decision under review is set aside and remitted to the Respondent with the direction that the Applicant was at all relevant times qualified for rent assistance.

........[Sgd]................................................................

Member M East

CATCHWORDS

SOCIAL SECURITY – rent assistance – whether the Applicant was overpaid rent assistance as a component of his DSP – if so, what the correct period and amount of debt is – whether the Applicant was, during the relevant period, paying rent – decision set aside and remitted to the Respondent with the direction that the Applicant was at all relevant times qualified for rent assistance

LEGISLATION

Social Security Act 1991 (Cth) – ss 1070B, 1070C, 1070D, 1070L

SECONDARY MATERIALS

Department of Social Services, Guide to Social Policy Law: Social Security Guide,

REASONS FOR DECISION

Member M East

11 September 2020

INTRODUCTION

1. The decision under review is the decision of the Administrative Appeals Tribunal (the Tribunal), Social Services & Child Support Division (AAT1) dated 11 June 2019, affirming the decision of an Authorised Review Officer (ARO) dated 18 January 2019 that the Applicant had Disability Support Pension (DSP) debts of:

   ·$1,418.51 for the period 22 August 2008 to 18 February 2009;

   ·$3,034.38 for the period 28 December 2010 to 5 March 2012; and

   ·$14,917.37 for the period 6 March 2012 to 30 November 2016.

2. The Respondent in its Statement of Issues, Facts and Contentions (SIFC) (Exhibit R2) conceded that the Applicant was entitled to rent assistance during the period

   
   

   22 August 2008 to 18 February 2009. It follows that there is no debt for this period.

3. The Tribunal therefore accepts that there are only two periods it is considering, being

   
   

   28 December 2010 to 5 March 2012 and 6 March 2012 to 30 November 2016 (the relevant period). In total, the debt equals $17,951.75.

   BACKGROUND

4. The Applicant has been in receipt of DSP since 3 June 2005. As part of his payment he received rent assistance.

5. The Respondent has comprehensively detailed the factual history of this matter in their SIFC which the Tribunal has reproduced below:

   4.The Applicant advised that he was residing at …, Dianella (Dianella address) and paying $75 per week lodgings to Mr Bonner from 1 December 2006. The Applicant told the Department that Mr Bonner would not sign a “Rent Q” because it was a homewest house. [T10, 501 & 513 and ST3, p 8931].

   5.On 11 December 2006, the Department wrote to the Applicant at the Dianella address, advising that his rate of DSP would include rent assistance of $43.65 per fortnight, and that he should advise the department if his rent changed, or if he changed address [T4, 92-93].

   6.On 21 March 2007, the Applicant told the Department that he had moved to …, Mount Lawley from 19 February 2007 (Mount Lawley address) paying rent of $125 per fortnight. [T11, p 563, 567 and T10, p 500] The Department wrote to the Applicant at the Mount Lawley address, advising that his rate of DSP would include rent assistance of $104.00 per fortnight, and that he should advise the department if his rent changed, or if he changed address. [T4, 100-101]

   7.On 8 May 2007, 13 August 2007, 5 November 2007, 29 January 2008, 5 May 2008, 26 July 2008, 20 October 2008, 12 January 2009, 21 February 2011, 16 May 2011, the Applicant was sent Account Statements/Centrelink Statements which noted his rental details and advised that he should contact the Department if his rent or accommodation details changed. [T4, p 108-109, 119-122, 143-146, 159-162, 198-201, 214-217, 252-255, 266-269]

   8.On 29 May 2007, 19 June 2007, 16 July 2007, 7 September 2007, 10 September 2007, 11 September 2007, 27 November 2007, 18 January 2008, 14 May 2008, 26 June 2008, 15 July 2008, 10 September 2008, 18 February 2009, 29 December 2010, 10 May 2011, 14 December 2011, the Department sent the Applicant notices which included a warning that he must advise the Department if his rent changed, or if he changed address. [Letters contained at T4]

   9.On 28 September 2007, the Department requested details of the Applicant's rental circumstances. [T4, pp 136-137]

   10.On 29 October 2007, the Department cancelled the Applicant’s rent assistance because he did not respond to the request for information. [T4, pp 140-141]

   11.On 27 November 2007, the Applicant provided a rent certificate and the Department updated his rental details. [T10, p 500, T11, p 603]

   12.On 28 May 2008, the Department requested details of the Applicant’s rental circumstances by way of a rent certificate. [T4, pp 180-182]

   13.On 26 June 2008, the Applicant provided a rent certificate and the Department updated his rental details. [T10, p 500]

   14.On 1 September 2008, mail was returned from the Mount Lawley address and so the Department stopped further payments pending contact by the Applicant. [T11, p 646-647]

   15.On 5 September 2008, the Applicant phoned the Department regarding the restoration of his rent assistance. The Applicant advised he had moved to a friend’s house temporarily for support, but that he was still paying rent at his old address [T11, p 649]. The Department restored the Applicant’s payments and updated his address to the Dianella address (with effect from 22 August 2008) [T10, p 498]. The Department officer advised/reminded the Applicant of the general notification provisions. The Department also wrote to the Applicant at the Dianella address, advising that his rate of DSP would include rent assistance of $107.20 per fortnight, and that he should advise the department if his rent changed, or if he changed address [T4, 205].

   16.On 18 February 2009, the Applicant was incarcerated at Hakea Prison and so his DSP was suspended from 19 February 2009. The Applicant remained incarcerated until 17 November 2010. [T4, p 224, 230 and T11, p 665]

   17.On 23 November 2010, the Department issued a rent certificate to the Applicant. [T4, p 235]

   18.On 29 December 2010, the Applicant contacted the Department to update his address and accommodation details [T11, p 500 and 666]. The Department commenced paying rent assistance, but reissued a rent certificate to the Dianella address, as the Applicant’s rental details had not been formally confirmed [T4, p 246, T10, p 500, 507].

   19.On 24 January 2011, the Applicant contacted the Department to update his address and accommodation details. The Applicant was reminded to return the rent certificate. [T11, p 669]

   20.On 22 February 2011, the Applicant’s rent assistance was cancelled because he had not returned the rent certificate. [T4, p 673]

   21.On 25 February 2011, the Applicant contacted the Department in relation to the rent assistance being cancelled. [T11, p 673]. A rent certificate was reissued. [T4, p 258] On 4 March 2011, the Applicant’s rent assistance was restored on the basis that he provided a rent certificate. [T4, p 260 and T10, p 500, 506]

   22.On 15 December 2011, the Applicant contacted the Department to update his accommodation details [T11, p 693]. The Department commenced a review of his rent assistance [T5, p 272].

   23.On 13 January 2012, the Applicant’s rent assistance was cancelled because he had not responded to the Department’s request for information. [T5, p 275]

   24.On 18 January 2012, the Applicant contacted the Department to advise that he would provide the rent certificate on 23 January 2012. [T11, p 695]

   25.On 24 January 2012, the Applicant formally verified his accommodation details and his rent assistance was restored. [T5, p 285, T10, p 500, T11, p 696]

   26.On 11 June 2012, the Applicant requested an interim concession card. The card was issued to the Applicant with a temporary address of …, Mandurah, WA, 6210.

   27.On 12 June 2012, the Applicant updated his address and accommodation details. [T11, pp700-701]

   28.The Applicant attended a service centre at various times throughout 2012, 2013, 2014, 2015 and 2016 and requested an interim voucher and concession card. Each time the concession card was mailed to the Applicant at the Dianella address. [T5, p 290, 296, 302, 352, 353, 358, 363, 373, 376, 379]

   29.On 5 December 2012, the Department sent the Applicant a notice which included a warning that he must advise the Department if his rent changed, or if he changed address. [T5, p 291]

   30.On 7 May 2013, the Department requested information in respect of compensation and damages (MOD C) [T5, p 303]. On 20 May 2013, the Applicant contacted the Department regarding his payment and advised that he had not received the MOD C [T11, p 720] As the Applicant did not respond to the request for information, his payments were suspended on 22 May 2013 [T5, p 306, T11, p 721]. On 24 May 2013, the Applicant attended a service centre regarding not receiving the MOD C in the mail. The Applicant’s payment was restored. [T11, p 724]

   31.On 27 May 2013, the Department issued a rent assistance form (SU523). [T11, p 729]

   32.On 11 July 2013, the Applicant verified his accommodation details with a rent certificate. He was noted to have been living at the Dianella address and paying rent of $165 per week from 27 April 2013. The Applicant was issue[d] with a notice which included a warning that he must advise the Department if his rent changed, or if he changed address. [T11, p 716, 738, T10, p 500, T5, p 314-316]

   33.All correspondence sent to the Applicant since 11 July 2013 until 27 March 2017 were sent to the Dianella address [T5, p314 - 405]. This includes notices on 2 December 2013 [p 335], 18 March 2014 [p 342], 30 April 2014 [p 347] and 23 September 2016 [p 386] which warned the Applicant that he must advise the Department if his rent changed, or if he changed address.

   34.The Applicant began living at …, Butler (Butler address) on 1 December 2016. [T7, p 434]

   35. In May 2017, the Department commenced an investigation into the Applicant’s accommodation arrangements. On 21 June 2017, information was sought from the Applicant’s landlord, Mr William Bonner [T6, p 427]. Mr Bonner provided a statement to the Department dated 30 July 2017 [ST2, pp 888-889].

   36. On 24 August 2017, the Department determined that the Applicant had been overpaid rent assistance of $1,649.24 during the period 6 December 2006 to 23 February 2009; $3,034.38 28 during the period 28 December 2010 to 29 February 2012; and $15,037.17 during the period 1 March 2012 to 3 May 2017. [T5, pp 415-420]

   MATERIAL BEFORE THE TRIBUNAL

6. The parties appeared by telephone at the hearing. Mr Aliya was unrepresented. The Respondent was represented by Ms Forsyth of Mills Oakley Lawyers.

7. The Tribunal had the following material before it:

   ·the section 37 T-Documents dated 15 November 2019 (T1–T11, pages 1–884) (Exhibit R1);

   ·

   the Respondent’s Statement of Issues, Facts and Contentions dated

   
   

   11 October 2019 (Exhibit R2); and

   ·

   the Respondent’s supplementary T-Documents (ST1–ST3, pages 885-893)

   
   

   (Exhibit R3).

   ISSUES FOR DETERMINATION

8. The issues for consideration by the Tribunal are:

   (a)whether the Applicant was overpaid rent assistance as a component of his DSP and if so, what the correct period and amount of debt is; and

   (b)if the Applicant incurred a debt to the Commonwealth, whether there are any grounds for write off or waiver of recovery of the debt.

   RELEVANT LEGISLATION

9. The Tribunal is required to consider the provisions of the Social Security Act 1991 (Cth) (the SS Act); and the Social Security (Administration) Act 1999 (Cth). The Tribunal is also able to have regard to the relevant policy contained in the Guide to the Social Security Law (the Guide).

10. It is not in dispute between the parties that the Applicant during the relevant periods was in receipt of a benefit. The issue in dispute is whether the Applicant was liable to pay rent in order to occupy his premises. There was no suggestion that the Applicant was a homeowner and therefore ineligible. Sections 1070B, 1070C and 1070D of the SS Act set out the qualification criteria for the payment of rent assistance. Section 1070L of the SS Act sets out the rate at which the rent assistance is calculated.

11. In this matter there is no dispute about the rate of payment or the Applicant’s eligibility for rent assistance as part of his DSP, in general terms. The question for the Tribunal is whether, during the relevant period, the Applicant was in fact paying rent. This question of fact is to be determined by the Tribunal having regard to the documentary and oral evidence provided to it.

    CONSIDERATION

12. Evidence provided at the hearing and in the T-Documents demonstrated that the Applicant was incarcerated between 19 February 2009 and 17 November 2010 (transcript p.12; Exhibit R1, T4, page 224, 230 and T11, page 665). During that time his payments of DSP were suspended. The Applicant advised the Department that after his release from prison he started living at the Dianella address (Exhibit R1, T11, page 500 and 666) from
    29 December 2010. The document at T11, page 666 of Exhibit R1 records the Applicant’s contact with the Department on that date.

13. The Tribunal asked the Applicant whether he was living at the Dianella address from 2008 to 2016 and his response was ‘[y]es, that is my correct evidence’ (transcript page 19).

14. The Applicant elaborated further and said he was living there ‘off and on’ for eight years (transcript page 19). In response to the Tribunal asking him the names of the people he lived with at the Dianella address, he responded, ‘[t]wo Christian people’ and when asked for their names again, said ‘[d]o I have to give you names? I’ve been in gaol, like I don’t have to give anyone names really, do I, or…’ (transcript page 20).

15. The Applicant had previously been paid rent assistance when he was living at this house prior to his incarceration. A review of his records indicates that he has lived at a few different addresses. The Dianella property belongs to Mr and Mrs Bonner who have assisted the Applicant over the years. The Applicant stated that he did not want to get them into trouble.

16. At the outset of the hearing the Applicant explained his situation as follows:

    It doesn’t matter where you go, you’ve got to pay rent. You go to the backpackers – hello.

    Are you going to stay for free, are you? If you go to the hotel, you’ve got to pay money. If you go anywhere else, like your friend’s place, you’ve got to buy food and pay your lodgings. I do not have to let Centrelink know everywhere I live, what I do. My payment is automatically a disability pension, and that’s why I get my pension. It goes in there, end of story – end of story. Now can you answer that please?

    Hello, I can’t hear you. I live there. I live there. I live at four places at once. I don’t let Centrelink know my – hey, listen, I’ve been in gaol 20 years of my life, okay. You didn’t know that, did you? So, I’ve been out 11 years now. I don’t – no-one keeps tabs on me, mate. I don’t care who they are. If the police – I don’t let them know where I’m living because they all complain, okay.

    My pension is a disability pension and I should not have got that debt in the first place because someone took my mail – sent my mail back to Centrelink and they’ve done the wrong thing by me there too. They shouldn’t have – and the people would just say that I’m living here and I’m not – but I was living here, so they didn’t declare it and they are liable, not me.

    (Transcript page 8.)

17. Ms Forsyth stated the following in reply:

    Member, in response to Mr Aliya’s statements, there is no proof of the payment of rent amount during the various debt period and that’s the reason why the debt’s been raised.

    Requests were made pursuant to the Social Security Administration Act, section 68, requesting that Mr Aliya provide information in relation to his address, accommodation and how much he’s been paying and that information hasn’t been forthcoming.

    (Transcript page 9.)

18. Ms Forsyth cross-examined the Applicant about his living arrangements at the Dianella address. She specifically referred to evidence before the Tribunal that he was not living at that address since 2008 (Exhibit R3, ST2, pages 888–9). The Applicant’s response to that question was ‘someone’s telling you porky pies’ (transcript page 21).

19. The Applicant contended that he had not seen the letter from Mr Bonner. The Tribunal notes that it was part of the evidence at the AAT1 hearing and extracts of that letter were in the written reasons for decision. The Tribunal is also aware that the Applicant has claimed on multiple occasions that he is illiterate and cannot read or write (transcript pages 3, 9, 23 and 24).

20. Ms Forsyth questioned the Applicant on how he paid his rent to the Bonners and he said that he paid cash out of his pension to them. He said it was not declared because it was a government house and ‘they had me on and off for all amount of years. They’ve been helping me, trying to get back on track and that’s all I say, that’s it. All I’m saying, that’s all I’m saying’ (transcript page 21).

21. At the outset of the hearing the Applicant gave his address as the Dianella address. Later in the hearing he said ‘I am homeless. I’ve got nowhere to go and that’s why I’m back at this address. So, does that add up as my first place? Is someone telling you porky pies or what’s going on now? Why am I back at this address for?’ (transcript page 22).

22. Ms Forsyth noted the difficulty she had in questioning the Applicant and said that for every question she had asked the Applicant he had responded with a question and that there was no other evidence before the Tribunal other than what was in the exhibited documents (transcript page 22).

23. The Tribunal does not agree that the Applicant’s oral evidence was unhelpful. The Applicant’s evidence was that he is living at the Dianella address again, the couple who own the house are a ‘Christian couple’ who help him out and have helped keep him out of jail since he was released in 2010. He said he was in jail for many years prior to that but has not been arrested since that time. He disputes the evidence that he wasn’t living at Dianella since 2008 and said somebody was telling ‘porky pies’.

24. Investigations undertaken by the Department in 2017 into the Applicant’s entitlement to rent assistance involved requesting information from Mr Bonner (Exhibit R1, T6, page 427). The letter enclosed a questionnaire relating to the Applicant’s tenancy. Mr Bonner responded on 30 June 2017 (Exhibit R3, ST2, pages 888–9) and stated as follows:

    In answer to your questionnaire dated 21/06/2017, neither my wife nor I have had any personal contact with the above-named person since the end of 2008. We submitted to his request to have his mail sent to our address as he was a person of no fixed abode. We placed his correspondence in our meter box and he picked it up from time to time, over the period from 2008 until recently, when he finally changed his postal address, after my numerous requests; however, neither I nor my wife ever saw him on these occasions. We have, had brief conversations with him over the phone, over the years, however; this is the only contact we have had with him since the end of 2008.

    We initially met the above-named sometime in 2004 through a church affiliation and as he was a person in need we attempted to help him out, initially with short term accommodation and personal assistance with his administrative affairs, then by allowing his mail to be sent to our address. He was an ex-prisoner from Outcare with frequent needs for transport to his various distant appointments which included regular parole appointments, drug testing, psychiatric and other health issues, financial counselling and assistance, employment interviews, Centrelink appointments, Outcare and sundry other needs – and as I was an assistant pastor (unpaid) it was in my duty of care to assist him. Since that time, he has stayed with us intermittently, never for long periods, and has paid nominal amounts, infrequently to cover the cost of his food and occasionally, small amounts for fuel to assist with the cost of transport since, I am not a man of great means and did not seek reimbursement from the Church. The last time he stayed with us was in 2008 for a brief time, but he was rarely ever present and left to stay with friends. Since that time, we have seen him, but rarely and from a distance at some church gathering or other.

1. The Applicant’s oral evidence is that during the relevant period he was still living with the Bonners. Mr Bonner has provided a signed statement, which also forms part of the evidence before the Tribunal, that they have not seen or heard from the Applicant since 2008.
   Mr Bonner confirmed his and his wife’s intention to help the Applicant as an act of charity and goodwill. He confirmed that he allowed the Applicant to use his house as a mailing address but never saw him when he picked his mail up out of his meter box. The Applicant repeatedly stated that he was concerned about causing trouble for the Bonners because they were not supposed to be accepting rent from a third party for a public housing property in which they were living.

2. After the Tribunal told the Applicant that the only issue it was considering was his entitlement to rent assistance and the raising of the debt against him, and not whether the Bonners were accepting money to which they were not entitled, the Applicant said he was telling the truth about his living circumstances (transcript page 23).

3. The Applicant again emphasised that he cannot read or write. He explained how he had moved to Adelaide, in South Australia from the former Yugoslavia when he was five years old. He said he could not speak English and going to school was very difficult. He said he was bullied and did not want to go to school. He left school at 13 and worked in the Schweppes factory in South Australia prior to moving to Western Australia. He said he then fell in with a bad crowd, broke into houses and was in and out of jail for many years (transcript page 24).

4. The Applicant had also described himself as ‘homeless’. When asked what ‘homeless’ meant to him the Applicant responded:

   Well, to me it means that I haven’t got a family. My son and my daughter disown me and God knows what, my son’s in a bad way, you know, he’s on drugs and God know what, you know. He should – he should know better. He’s 35 and he doesn’t want to change. I had a house with him. I was living with my family in Butler.

   Then I run away from Butler, where I was getting the rent assistance, okay, because the rent was too high. I was paying $700 a fortnight on my own and there was no one there to help me.

   (Transcript page 26.)

5. After questioning the Applicant, the Tribunal understands the Applicant’s description of himself as ‘homeless’ to mean that he does not have a place of his own and relies on ‘Christian people’ to take him in. He said he does not live with strangers. He cannot live with his daughter because he said his daughter pulled a knife on him and threw her mother’s ashes on the lawn.

6. The Tribunal has had regard to the Departmental customer service notes in the
   T-Documents, specifically from pages 739–879.

7. The records reflect that on 23 July 2013 the Applicant visited the Morley Centrelink office to advise that the house he had been staying at for the past few weeks had burnt down and he had lost his belongings (Exhibit R1, T11, page 739). The officer advised that this was not the address on record for him. The Applicant left the Centrelink office without pursuing anything further.

8. The Applicant contacted Centrelink several times because he had lost his concession card (Exhibit R1, T11, pages 763, 769, 777, 780 and 785). On each occasion the notation is made that a new card is being sent to the Dianella address, which is listed as the mailing address in the notes.

9. On 25 February 2016, the Applicant requested an urgent payment because he had been kicked out of his accommodation and needed money to travel to his girlfriend’s grandmother’s house. The note records that he has been staying in motels for the last five nights (Exhibit R1, T11, page 788). On 17 March 2016, he contacted Centrelink again requesting an urgent payment because he was homeless and needed money to stay at the backpackers. He said he had been homeless for the last six weeks (Exhibit R1, T11, page 789).

10. On 1 June 2016, the Applicant again stated he had lost his concession card and a replacement card was sent to the Dianella address (Exhibit R1, T11, page 793).

    Conclusions on the evidence

11. The Tribunal has found it a little difficult to glean a clear history from the Applicant about his living conditions. It is undisputed that for most of the relevant period the Applicant had informed the Department that he was living at the Dianella address. Mr Bonner, his supposed landlord, however, has denied this claim and stated in his letter that they have not seen or heard from him since 2008. The Applicant, whilst not directly expressing it, was concerned that the Bonners may get into trouble for accepting rent from him when they were living in public housing.

12. The Applicant has repeatedly stated that he is illiterate and, given his family and migration history, the Tribunal accepts this to be the case. Despite this however, the Applicant has shown a good understanding since being granted his DSP of what his current situation is and when his rent assistance has ceased and when his entitlements have been reduced. Clearly, he is getting help from somebody within his community. Added to this, the Applicant is receiving DSP payments for the condition of schizophrenia which severely limits his ability to function.

13. The Applicant was initially quite difficult to deal with in the hearing, but however settled down during the course of it and became quite cogent and co-operative towards both the Tribunal and Ms Forsyth.

14. The Tribunal has drawn no conclusions on whether the Bonners were improperly subletting to the Applicant, other than to note that if their property was public housing, there were possible negative consequences for the Bonners from doing so. When viewed in this context, the Applicant’s repeated statements that he did not want to cause problems for anybody before confirming where he lived make sense.

15. The Respondent decided to raise an overpayment against the Applicant based on the response from the Bonners together with the Applicant not providing information about his living arrangements for the relevant periods. The ARO formed a similar conclusion.

16. At paragraphs 7-8 of the AAT1 decision (Exhibit R3, p.7), the member said as follows:

    … and while he may not have been residing at … Dianella throughout the periods in question, he had to reside somewhere, and there were costs associated with whatever accommodation he obtained, and it was excessively intrusive for the government to insist on knowing all his movements.

    There is a certain superficial force in the argument that most people who do not own accommodation have to rent accommodation, and since Mr Aliya does not own accommodation, he was therefore probably renting accommodation during the period in question. However, each person’s circumstances are different, and the question is not whether most people in Mr Aliya’s circumstances would have rented accommodation; the question is whether Mr Aliya rented accommodation. He may well have had other arrangements in place whereby he did not pay rent. Notwithstanding his medical condition, he remains best placed to state where he resided from time to time. When he has done so, Centrelink has reduced his debts accordingly. At the hearing he was unable or unwilling to state where he resided during the periods from 22 August 2008 to 18 February 2009, and from 28 December 2010 to 30 November 2016. On balance I am not persuaded that he was paying rent during those periods.

17. In this hearing, the Applicant has given sworn evidence that he was living at the Dianella address during the relevant periods. He explained that his reluctance to say that was because of his concern for the Bonners and whether they had done something wrong by sub-letting a room to him. Balanced against this, the Tribunal has the signed letter from Mr Bonner dated 30 June 2017 (Exhibit R3, ST2, p.889). The letter is not sworn and the Tribunal has not had the benefit of questioning Mr Bonner. If it had, it may have been able to form a conclusion about the reliability of the Applicant’s evidence.

18. In these circumstances, however, when balancing the sworn evidence of the Applicant against untested, unsworn, documentary evidence, the Tribunal is entitled to give greater weight to the sworn evidence.

19. Furthermore, even though the Applicant appeared to be unclear in his evidence, on closer inspection of the transcript, he consistently stated he was living in Dianella.

20. The Tribunal finds that for most of the relevant period the Applicant was living at the Dianella address and paying rent, in cash, from his fortnightly pension to Mr and Mrs Bonner.

21. The only contemporaneous documentary evidence that conflicts with this conclusion is the notation on 25 February 2016 which states that the Applicant had been homeless for five nights and on 17 March 2016 which states that he said he had been homeless for six weeks. The Tribunal calculates the period of homelessness to be from 20 February 2016 to at least 17 March 2016, which is approximately five weeks.

22. When the Applicant attended Centrelink the first time, he said he was staying in motels. At the second visit he said he needed money to stay at the backpackers. It is unclear whether he had been staying at the backpackers or had in fact been on the streets. Given the period of time which has elapsed, together with the well documented mental illness which the Applicant suffers from, the Tribunal is still satisfied that the Applicant paid for accommodation throughout the relevant period.

23. Accordingly, during the relevant period the Applicant was liable to pay rent in order to occupy his premises. Therefore, no overpayment of rent assistance has occurred and no debt has arisen.

    DECISION

24. The decision under review is set aside and remitted to the Respondent with the direction that the Applicant was at all relevant times qualified for rent assistance.

I certify that the preceding 48 (forty -eight) paragraphs are a true copy of the reasons for the decision herein of Member M East

......[Sgd]..................................................................

Associate

Dated: 11 September 2020

Date of hearing:	9 July 2020
Applicant:	By phone
Representative for the Respondent:	Ms J Forsyth, Mills Oakley Lawyers