Brooks and Secretary, Department of Employment and Workplace Relations

[2007] AATA 1973

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1973

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No A2007/3735

GENERAL ADMINISTRATIVE  DIVISION		)
Re		TERENCE BROOKS

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Mr S. Webb, Member

Date21 November 2007

PlaceCanberra

Decision The decision under review is affirmed.

............signed..................................

Mr S. Webb, Member

CATCHWORDS

SOCIAL SECURITY - rent assistance - eligibility - meaning of 'government rent' - sub-leasing - Applicant not eligible - decision affirmed

Social Security Act 1991(Cth) ss 13, 1070, 1070B, 1070C

Housing Assistance Act 1987 (ACT), s13

Housing Assistance Act 2007 (ACT), ss 9, 100, 101

REASONS FOR DECISION

21 November 2007 Mr S. Webb, Member         

1.      Terence Brooks lives in public housing accommodation.  He claimed rent assistance but his claim was rejected.  He has pursued his rights of review without success, and the matter is now before this Tribunal.

2.      The facts are as follows.  Mr Brooks was granted a Disability Support Pension in 1996.  He resided in private rental accommodation and received rent assistance until 24 January 2007.  On 16 January 2007, he entered into a Tenancy Agreement with the ACT Commissioner for Housing in respect of Flat 16, Block B 41-55 Allambee Street, Reid.[1]  On 25 January 2007, Mr Brooks informed Centrelink of his change of address.[2]  As can be seen, under the Agreement, Mr Brooks is liable to pay rent to the Commissioner for Housing in the ACT in the amount of $300 per fortnight from the commencement date.  By his own account, Mr Brooks receives a rebate on the fortnightly rent payable under the Agreement, and in reality pays rent of approximately $123 per fortnight to the ACT Department of Disability, Housing and Community Services. 

[1] Exhibit A1.

[2] T22 folio 87.

3.      On 25 January 2007, Centrelink determined that Mr Brooks was not entitled to rent assistance “because you are paying rent to a State/Territory public housing authority”.[3]  Mr Brooks was not happy with this decision and asked for the matter to be reconsidered.[4]  The matter was reconsidered and the decision was affirmed by successive decision makers.[5]

[3] T9 folio 51.

[4] T10.

[5] T12, T17 and T2.

4.      In Mr Brooks’ submission, he is worse off in public housing than he was previously in private rental accommodation.  He says that the public rental property is not of a reasonable standard:  it contains asbestos; the kitchen and bathroom facilities are not always functional; he suffers from sleep deprivation as a result of noise; he feels unsafe in the premises; and he incurs additional out-of pocket expenses as a result of these factors that increase his cost of housing and should be taken into account.  Mr Brooks says that he has a human right to a reasonable standard of accommodation and this is presently being denied by the ACT Government.  Mr Brooks asserts that he is not paying rent to the ACT Government, but is effectively sub-leasing the premises in question from another entity.[6]  Thus, Mr Brooks says, he is entitled and should be paid rent assistance from 25 January 2007.

[6] Exhibit A2, paragraph 2.

5.      I do not agree.

6.      The eligibility criteria for Rent Assistance are set out in the Social Security Act 1991. In order to qualify for rent assistance, a person must satisfy the ‘common requirements’ and any specific requirements that are applicable (s.1070B). The ‘common requirements’ are set out at s.1070C. As can be seen from that section, there are four conjunctive elements. Of particular relevance is subs 1070C(c), which requires that:

…

(c) the person pays, or is liable to pay, rent, other than Government rent, in respect of a period in respect of premises in Australia; and

…

The terms ‘rent’ and ‘Government rent’ are given meaning at s.13. The meaning of ‘rent’ is set out at subs 13(2). ‘Government rent’ means rent that is payable to one of a number of listed authorities, including the Commissioner for Housing within the meaning of the Housing Assistance Act 1987 (the ‘1987 Act’) of the Australian Capital Territory. However, subs 13(5) provides that if a law of the Australian Capital Territory alters the name of the authority referred to in the definition of ‘Government rent’, and it is altered by a law of the ACT, then the meaning of ‘Government rent’ pertains to the authority under the new name.

7.      The ACT Housing Assistance Act 1987 was repealed and the ACT Housing Assistance Act 2007 (the ‘2007 Act’) came into effect on 10 November 2007. Section 9 of the 2007 Act establishes the Commissioner for Social Housing, in the following terms:

9        Housing commissioner—establishment

(1)       There is a Commissioner for Social Housing (the housing commissioner).

(2)       The housing commissioner is a corporation and must have a seal.

Note    For provisions about proof of seals, see the Evidence Act 1995 (Cwlth), s 150 and s 151.

(3)       The chief executive is the housing commissioner.

The 2007 Act also sets out transitional provisions, whereby a right or a liability of an entity under the 1987 Act continues under the 2007 Act (ss 100 and 101 of the 2007 Act).

8.      Thus, a liability under the 1987 Act to pay rent to the Commissioner for Housing under that Act continues under the 2007 Act as a liability to pay rent to the Housing Commissioner.  Such an ongoing liability to pay rent to the Housing Commissioner is within the meaning of ‘Government rent’ for the purposes of the Social Security Act.

9.      Considering the facts in Mr Brooks’ case, I am reasonably satisfied that the terms of the Tenancy Agreement establish his liability to pay rent for the premises in which he resides.  Prior to the enactment of the 2007 Act, his liability to pay rent was to the ACT Commissioner for Housing.  On that enactment coming into effect, his liability is to the ACT Housing Commissioner.  In both cases, Mr Brooks is liable to pay rent that is within the meaning of ‘Government rent’.

10. That being so, Mr Brooks does not satisfy the common requirement specified at subs 1070C(c) of the Social Security Act.  It follows that he is not entitled to rent assistance.  I must therefore affirm the decision under review.

11.     Mr Brooks made issue of a number of matters concerning questions of reasonableness and human rights.  These are not matters that bear upon his eligibility for rent assistance and should be taken up with relevant authorities in the ACT.  The eligibility criteria attaching to rent assistance do not contain a test of reasonableness in relation to the particular premises.  The Social Security Act does not confer upon decision-makers, including this Tribunal, any discretion in relation to matters of reasonableness or special circumstances in relation to the rent assistance eligibility criteria.  The ‘common requirements’ must each be satisfied by all rent assistance claimants.  Mr Brooks does not satisfy one of those criteria.

12.     Mr Brooks urged me to accept that his residence in the premises was, in effect, a sub-leasing arrangement.  Even if that is the case, and I note the general leasehold system that is in force in the ACT, it does not assist Mr Brooks’ case.  The Tenancy Agreement Mr Brooks signed on 16 January 2007 renders him liable to pay rent to the ACT Housing Commissioner in respect of the premises in which he resides.  The leasehold system that is in force in the ACT does not disturb that liability.  It is his liability to pay ‘Government rent’ in respect of the premises that renders him ineligible for rent assistance.  Mr Brooks made submissions concerning the nature of the entity to which or to whom he pays or is liable to pay rent.  These submissions are neither persuasive nor are they made out.  As can be seen from the relevant provision of the 2007 Act by which the ACT Housing Commissioner is established, the Housing Commissioner is a corporation and the Commissioner is the chief executive.  There is no evidence before me that Mr Brooks is liable to pay rent in respect of the premises to any other entity, or that he has in fact done so.  I note that by his own account he has paid rent via Post Office transactions to the Department of Disability, Housing and Community Services.  That evidence does not persuade me that Mr Brooks was not liable to pay rent, or did not pay rent, to the ACT Housing Commissioner.  There is no evidence that Mr Brooks pays rent, or is liable to pay rent, to any entity other than the ACT Housing Commissioner.

13.     In closing, it is necessary to note that the decision under review is that Mr Brooks is not eligible for rent assistance from 25 January 2007.  The evidence before me is that he was liable to pay ‘Government rent’ in respect of the premises at Allambee Street in Reid from 16 January 2007.  By Mr Brooks’ own evidence, he vacated his former residence on or before 17 January 2007.  However, I have not seen any objective evidence concerning the termination of his former tenancy and the matter was not pressed by the Respondent.

decision

14.     The decision under review is affirmed.

I certify that the 14 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member

Signed:       ...signed.............................................
  Jane Gribble
  Associate

Date of Hearing  12 November 2007
Date of Decision  21 November 2007
Representative for the Applicant  Self
Solicitor for the Respondent        Jillian Furner
  Centrelink Legal Services