BARRY BETTS and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2009] AATA 645

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 645

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/2211

GENERAL ADMINISTRATIVE DIVISION		)
Re		BARRY BETTS

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Dr M Denovan, Member

Date28 August 2009

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

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

Member

CATCHWORDS

SOCIAL SECURITY – Rent assistance – Applicant shares major area of accommodation – Rate of rent assistance payments correct – Decision affirmed.

Social Security Act 1991 (Cth), ss 5A, 1070L

REASONS FOR DECISION

28 August 2009 Dr M Denovan, Member    

1.      Barry Betts, the applicant, was paying rent and in receipt of age pension and rent assistance.  On 28 January 2009, Centrelink, the respondent, decided to pay Mr Betts rent assistance at the sharer rate.  Mr Betts disagreed with that decision as he was sharing with immediate family only and had never been treated as a sharer previously, even when sharing with the same people.

2.      The criteria that a person must meet to be entitled to rent assistance are found in the Social Security Act 1991 (“the Act”).  If a person is a single person sharing rental accommodation with others, that person’s maximum rent assistance is two-thirds of the amount received by a single person living alone.

3.      In order to resolve the dispute in this case, I must:

·     determine if, on 28 January 2009, Mr Betts was a single person sharing accommodation; and, if so

·     determine whether the rent assistance component of Mr Betts’ age pension was paid at the correct rate.

4.      The parties have agreed that the Tribunal determine this application without proceeding to a hearing in person.

5.      After having careful regard to all of the evidence, I have decided Mr Betts was a single person sharing accommodation on 28 January 2009.  Also, the rent assistance component of his age pension was paid at the correct rate.  I have therefore decided to affirm the decision under review.  I explain my reasons below.

THE FACTUAL BACKGROUND

6.      In a rent certificate lodged with Centrelink on 28 January 2009, Mr Betts indicated that he shared accommodation with his son Barry, his grandson Steven, his granddaughter Elsie and her son Sonny.

7.      In the same document, Mr Betts stated that he pays $640 a fortnight rent and that his son, grandson and granddaughter each contribute $150 a fortnight towards rent.

8.      Mr Betts told the Social Security Appeals Tribunal (“the SSAT”) that whilst the information in the rent certificate lodged on 28 January 2009 was correct, none of his family members were now paying the agreed $150 a fortnight to him.  Mr Betts said that his son contributes to the power bill only.  His grandson is on the dole and does not contribute any money.  He also said that his granddaughter was not paying him anything, but that she pays money towards the power bill when she can and that her last contribution was $50.  

CONSIDERATION

9. The rate of rent assistance is calculated pursuant to s 1070L of the Act. That section provides that if a single person is sharing accommodation, the person’s maximum rent assistance is two-thirds of the maximum amount, namely $73.47[1].

[1] Attachment A, Respondent’s Statement of Facts and Contentions.

10. The Act at s 5A(1) provides that a person is to be treated as a single person sharing accommodation if the person :

(a)        is not a member of a couple; and

(b)       has no dependent children; and

(c)has, in common with one or more other people, the right to use at least one major area of accommodation.

11.     Mr Betts does not claim to be a member of a couple.  He told the SSAT that he raised his grandchildren from primary school age in his current accommodation.  Mr Betts also indicated that his granddaughter is receiving parenting payment and his grandson is receiving the dole.  Both grandchildren were 21 years old on 28 January 2009[2].  There is no evidence to suggest that Mr Betts had any dependent children on that date.

[2] Attachment C, Respondent’s Statement of Facts and Contentions.

12.     In addition to the relevant legislation, the Tribunal will usually follow the departmental guidelines—contained in the Guide to Social Security Law (“the Guide”)—unless there is a cogent reason for not doing so.  The Guide, at 3.8.1.110, provides that if a single parent shares accommodation with one or more independent children who receive a wage or salary, then all occupants are classified as sharers.  It was Mr Betts’ evidence to the SSAT that his son Barry is employed.

13. A “major area of accommodation” is defined by s 5A(6) of the Act as a bathroom, kitchen or bedroom. Mr Betts told the SSAT that he shares the use of the kitchen and the bathroom with his grandchildren. The question, then, is whether others have the right to use one or more of the shared areas.

14.     The Guide at 3.8.1.110 provides as follows:

A legal right to share a major area of accommodation can be demonstrated in one of 2 ways:

·the recipient's name is included in a formal lease or tenancy agreement, OR

·the recipient has an oral agreement to share AND there is evidence of this in the form of a rent certificate or rent declaration proving that the recipient pays regular amounts of money on a regular basis.

15.     Mr Betts told the SSAT that there is no written lease.  The information provided by Mr Betts in the rent certificate dated 28 January 2009, as well as his evidence to the SSAT, confirms that Mr Betts’ son and two grandchildren had an agreement to pay him regular amounts of money and that, until 28 January 2009 at least, they had been doing so on a regular basis.  Whilst Mr Betts told the SSAT that he has had trouble collecting money from his son and grandchildren since 28 January 2009, he confirmed that there is still an arrangement in place for them to pay.

16.     At 3.8.1.120, the Guide provides examples to assist in the assessment of whether someone should be classified as a sharer.  Specifically, “a single recipient who shares one or more major areas of accommodation with one or more other people including wage earners or other Centrelink recipients or other non-dependent family members” is to be assessed as a sharer.

17. None of the exceptions in ss 5A(2) to 5A(5C) of the Act are applicable to Mr Betts, such that his accommodation would be exempt or that he should not be treated as a single person sharing accommodation. For these reasons, Mr Betts is a single person for the purposes of s 5A(1) of the Act.

CONCLUSION

18.     In summary, I am satisfied that on 28 January 2009 Mr Betts was a single person sharing accommodation and that his rate of rent assistance has been calculated correctly.

19.     The Tribunal affirms the decision under review.

I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Dr M Denovan, Member.

Signed: .....................[Sgd]........................................................
             Mátyás Kochárdy, Research Associate

Hearing on the Papers               
Date of Decision  28 August 2009
Applicant was self-represented
For the Respondent                  Michelle Brazier, Departmental Advocate