CHUNG AND COMMISSIONER FOR HOUSING - [2007] ACTAAT 3

AUSTRALIAN CAPITAL TERRITORY

ADMINISTRATIVE APPEALS TRIBUNAL

CITATION:CHUNG AND COMMISSIONER FOR HOUSING [2007] ACTAAT 3 (20 FEBRUARY 2007)
AT06/67
Catchwords: Housing assistance – calculation of rental rebate – whether applicant deemed to have been in receipt of New Start Allowance
Housing Assistance Act 1987, ss 8, 11A, 12, 15
Social Security Act 1991 (Cth), ss 593, 595, 601, 605, 624-626, 631
Social Security (Administration) Act 1999 (Cth), ss 16, 63, 67, 68

Bell, Alwyn and Commissioner for Housing [1998] ACTAAT 226 (20 January 1998)
Castleman and Secretary, Department of Family and Community Services [2004] AATA 119
Joss & Secretary, Department of Employment and Workplace Relations [2006] AATA 24 (13 January 2006)
McGowan, Andrew and Karen and Commissioner for Housing [2000] ACTAAT 13
Neidorf and Commissioner for Housing [2003] ACTAAT 51
Pettitt and Department of Family and Community Services [2001] AATA 469
Secretary, Department of Employment & Workplace Relations v Joss [2006] FCA 884
Te Velde and Director General of Social Services (1981) 3 ALN 111
Weekes and Director-General of Social Security (19181) 3 ALN 141

Tribunal:Mr D F McMichael, Senior Member
Date:20 February 2007

AUSTRALIAN CAPITAL TERRITORY                   )
ADMINISTRATIVE APPEALS TRIBUNAL )          NO: AT06/67
GENERAL DIVISION  )

RE:      MICHAEL CHUNG
  Applicant
AND:   COMMISSIONER
FOR HOUSING
Respondent

DECISION

Tribunal : Mr D F McMichael, Senior Member

Date : 20 February 2007

Decision :

The decision under review is set aside and the following decision substituted:

The applicant is taken to have earned an amount equivalent to the Commonwealth Newstart Allowance, by virtue of the operation of subclause 6(3)(a) of the Housing Assistance Public Rental Housing Program 2006 (No 2) and his rental rebate should be calculated accordingly.

……………………………
Senior Member

AUSTRALIAN CAPITAL TERRITORY                   )
ADMINISTRATIVE APPEALS TRIBUNAL )          NO: AT06/67
GENERAL DIVISION  )

RE:      MICHAEL CHUNG
  Applicant
AND:   COMMISSIONER
FOR HOUSING
Respondent

REASONS FOR DECISION

20 February 2007 Dr D F McMichael, Senior Member

Background

Mr Michael Chung (“the applicant”) a tenant of Housing ACT has sought review by the Administrative Appeals Tribunal (“the AAT”) of a decision of the Commissioner for Housing (“the respondent”) conveyed to him on 18 June 2006 and subsequently affirmed by the delegate of the respondent on 11 September 2006 following review by a Housing Review Committee, to deem him to be in receipt of the Commonwealth Newstart Allowance (“NSA”) as a component of his income for the purposes of calculating the rental rebate to which he is entitled. It appears from the respondent’s submissions to the Tribunal that the decision was made under the provisions of subclause 6(3)(c) of the Housing Assistance Public Rental Housing Assistance Program 2006 (No 2), (“the Program”) made on 7 July 2006 pursuant to the Housing Assistance Act 1987 (ACT) though that is not explicitly stated in the Tribunal documents.

The result of the decision was to increase the rent payable by Mr Chung from $70.80 per week to $116.90 per week. The amount of $70.80 per week, advised to Mr Chung on 23 December 2005, did not include any deemed income. Mr Chung, who is self-employed while actively seeking employment for which he is qualified, does not want to apply for the NSA and considers it unfair that he should be deemed to have income which in fact he does not have. The decision of the Commissioner is reviewable by the AAT by virtue of clauses 27(1)(b), 28, and 30 of the Program.

Contentions and Submissions of the Parties

Mr Chung, who was self-represented, lives in a two-bedroom ACT Housing flat with his wife and four children, soon to be five. While he has applied for transfer to a larger house and was placed on the High Needs Housing list in October 2006, that issue was not before the Tribunal. His concern is with the amount of rent he is being required to pay for his present accommodation.

He has a number of tertiary degrees, including a Bachelor of Commerce from the University of NSW, awarded in April 1993, a Bachelor of Actuarial Studies from the Australian National University, awarded in September 2001, a Master of Financial Planning from the University of the Sunshine Coast, awarded in March 2005, a Master of Commerce from Macquarie University, awarded in July 2005, and a Graduate Diploma in Business Administration from the University of Canberra, awarded in July 2006.

He has previously been employed in both the Commonwealth and the ACT Public Services, but has not had any regular employment since 2004. In order to provide income for him and his family, on 5 July 2005 he commenced business as a sole trader under the name Michael Chung (ABN 53 252 600 237) offering consultancy and trading services but obtained little work. It appears that, in April 2005, he established his own company, Global Bosses Pty Ltd, (ABN 39 119 410 645) of which he became the Managing Director and sole employee, but the details available to the Tribunal about this company were vague and it was not clear whether he also continued his business as a sole trader.

Either way, he claimed that his income from his business activities amounted to only a few hundred dollars. He said that he had been actively seeking work since establishing his businesses and continues to do so, but he had not been successful despite being well qualified, and considered that maintaining and growing his business was his only hope of providing for his family.

A matter of particular concern to the applicant was a suggestion made by Ms Sandra Warnock, Team Leader, City Region, in a telephone conversation on 6 June 2006 and recorded in a File Note included in the Tribunal Documents, that Mr Chung terminate his business activities and see Centrelink regarding payments. However, a later File Note prepared by Ms Stephanie Rake, Team Leader, City Tenancies, dated 17 July 2006, included a statement that in a telephone conversation on 17 July 2006, she had explained to the applicant that:

Housing ACT used the Centrelink income as a guide and that we were not forcing him to receive a Centrelink income. I advised that the amount we used was the equivalent of Newstart allowance. This did not mean in any way that Housing ACT was suggesting that Mr Chung give up his business and return to unemployment’s (sic) benefits.

In short, Mr Chung submitted that he was not in receipt of the Newstart allowance and had no intention of applying for it. He was already well qualified for employment and was actively seeking appropriate work while endeavouring to make his business a success. Consequently he should not be deemed to be in receipt of that allowance and his rental rebate should be calculated without reference to the Newstart allowance.

Ms Rebekah Knox, the legal representative of the respondent, submitted that Housing ACT had calculated the applicant’s rental rebate in accordance with the Program. She submitted that the respondent is required to follow the Program and that the Tribunal is in the same situation and that the provisions of subclause 6(3(c) were relevant. Subclause 6(3)(c) provides that a person may be taken to have earned, derived, received or become entitled to an amount if:

for a self employed person, an amount equivalent to the entitlement of the person to a relevant pension or benefit under the Commonwealth Social Security Act.

Example for par (c)

Where a person would, but for being self-employed, be entitled to Newstart Allowance, the Commissioner may deem the person to be receiving the equivalent of Newstart Allowance.

Ms Knox submitted that the applicant was able to choose to avail himself or not to avail himself of Centrelink benefits to which he is entitled. She further submitted that the Commissioner cannot be said to have exercised his discretion in a manner that is unjust or improper when it was the actions of the applicant in choosing not to avail himself of the benefits available to him that placed him in financial disadvantage, and that for the Commissioner to decide not to take into account a particular tenant’s entitlement to a Commonwealth benefit would be an inconsistent exercise of the discretion afforded under clause 6 and would result in gross inequality amongst ACT Housing tenants. It would also be inconsistent with the Commissioner’s broader obligations under the Housing Assistance Act 1987 to ensure, for example, the equitable distribution of housing assistance and would result in increased financial costs to the Territory.

She further submitted that the respondent was also entitled to rely on the discretion contained in subclause 6(3)(a) which provides that a person may be taken to have earned, derived, received or become entitled to an amount if:

the commissioner is satisfied that the person would have earned, derived, received or become entitled to the amount if the person had taken reasonable action to secure the amount and the action is or was reasonably available to the person.

Example for par (a)

1. a pension or other benefit to which the person would have been entitled if the person had applied for it.

Applicable Law

The Housing Assistance Act 1987 makes provision for the supply of publicly-owned rental housing to those in need. Among its objects are:
(a) to maximise the opportunities for everyone in the ACT to have access to housing that is affordable, secure and appropriate to their needs; and
……….
(c) to maximise value for money in the provision of housing assistance.

Section 8 of the Housing Assistance Act provides for the appointment of a Commissioner whose functions are, inter alia, to administer programs for the delivery of housing assistance in the ACT. Section 11A enables the Territory to enter into a housing agreement with the Commonwealth. Section 12(1) provides for the Commissioner to prepare a housing assistance program and section 12(2), inter alia, states that such a program may provide for the housing agreement to apply to it.

The current housing agreement, Housing Assistance (Commonwealth/State Housing Bilateral Agreement) 2004 (No 1) was made between the Territory and the Commonwealth for the period 1 July 2003 to 30 June 2008 and notified as Notifiable Instrument N12004-284 on 6 August 2004 (“the Agreement”). The Housing Assistance Public Rental Housing Assistance Program 2006 (No 2) is Disallowable Instrument D12006-178 and clause 4 provides that the Agreement applies to the Program.

The Agreement sets out a number of guiding principles, which relevantly include:

1. To maintain a core social housing sector to assist people unable to access alternative suitable housing options.

………..

3. To provide assistance in a manner that is non-discriminatory and has regard to consumer rights and responsibilities, including consumer participation.

………

7.To ensure that housing assistance supports access to employment and
promotes social and economic participation.

8.To establish greater consistency between housing assistance provision and outcomes, and other social and economic objectives of government, such as welfare reform, urban regeneration and community capacity-building.

9. To undertake efficient and cost-effective management that provides best value for governments.

The Agreement includes a set of Objectives for which Outcomes and Strategies, Performance Measures/Milestones, and Timelines are specified. Those which relate to Guiding Principles 7 and 8 are:

Outcome 5.1: Rent Policies to support access to employment

Strategies

· Identification of tenants in public housing who are “work ready”

· Conduct review of public housing……… rent policies

· Research and review implications of casual employment and the effects on rent rebates.

It is clear that the Commissioner is to have regard to these Outcomes and Strategies in administering the Program.

Section 15 of the Housing Assistance Act 1987 provides that the rent to be charged in relation to rental housing assistance under a housing assistance program is an amount equivalent to market rent. However, Clause 20 of the Program provides that a rent rebate may be granted by the respondent on application by a tenant under specified circumstances, related to the income of the tenant and other members of his or her household. Clause 21 allows the respondent to review a rent rebate from time to time and to suspend, amend or revoke the rebate.

Clause 6 of the Program deals with the assessment of an applicant’s income and subclause 6(1)(a) provides that for the Program, income for a person:

includes an amount taken to be earned, derived or received by the person under subclause (3)

The provisions of subclauses 6(3)(a) and 6(3)(c) have been set out in paragraphs 9 and 11 above. The example for subclause (a) refers generally to a pension or other benefit to which the person would have been entitled (which would include the NSA) while the example for subclause (c) refers specifically to the NSA. A note inserted under subclause 6(3)(b) states that:

An example is part of the instrument, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

The NSA is established under Part 2.12 of the Social Security Act 1991 (Cth). The qualification of a person for the NSA is set out in s 593(1), the relevant parts of which provide that:

a person is qualified for a newstart allowance in respect of a period if:

(a) the person satisfies the Secretary that

(i) throughout the period the person is unemployed;

………….

(b) in the case of a person to whom subparagraph (a)(i) applies – throughout the period…the person which

(i) satisfied the activity test; or

(ii) is not required to satisfy the activity test: and

(c) if subsection 605(1) applies to the person at all times (if any) during the period when the person is not a party to a Newstart Activity Agreement, the person is prepared to enter into such an agreement…

Section 601 provides for the activity test and subsection 1 reads:

Subject to subsections (1A) and (5), a person satisfies the activity test in respect    of a period if the person satisfies the Secretary that, throughout the period, the        person is:
(a)        actively seeking; and
(b)        willing to undertake;
paid work in Australia, other than paid work that is unsuitable to be undertaken by the person.

Section 605(1) provides that:

Subject to this section, the Secretary may require a person who is not a party to a Newstart Activity Agreement to enter into such an agreement if:
(a) the person is receiving, or has made a claim for, a newstart allowance; or
(b)the Department is contacted by or on behalf of the person in relation to a claim for a newstart allowance.

The Social Security Act 1991, in s 595(1) further provides that:

the Secretary may treat a person as being unemployed throughout a period if:

(a) during the period the person undertakes

(i) paid work that, in the Secretary’s opinion, is suitable for the person to undertake; or

(ii) any other activity;

as a result of which he or she would, but for this subsection, not be taken to be unemployed; and

(b the Secretary is of the opinion that, taking into account:

(i) the nature of the work or other activity; and

(ii) the duration of the work or other activity; and

(iii) any remuneration received for the work or activity; and

(iv) any other matters relevant to the work or other activity, or to the person’s circumstances that the Secretary considers relevant;

the activity shall be disregarded.

Additional sections of the Social Security Act 1991 set out various matters that applicants or recipients of the NSA are required to comply with in order for the NSA to be payable to them. They include s 624 to 626 which define a Newstart participation failure and the consequences thereof, and s 631 which provides that failure to provide information required under ss 67 and 68 of the Social Security (Administration) Act 1999 (Cth) may result in the NSA not being payable.

The Social Security (Administration) Act 1999 sets out a range of general administrative rules relating to the circumstances of applying for a social security benefit and its subsequent payment to qualified persons. They include, for example, s 16 which specifies that an applicant for a social security payment must lodge a written claim in a manner approved by the Secretary, while s 63 specifies that an applicant or recipient of a benefit may be required to attend the department and failure to comply may result in the person ceasing to be qualified. Under ss 67 and 68 the Secretary may require an applicant or recipient of a benefit to provide information on any change in circumstances, events or matters that might affect payment of the benefit.

Consideration of the Issues

There is really only one issue to be decided in this matter, and that is whether the Program allows the respondent to take (deem) the applicant to be in receipt of income equivalent to the NSA. The wording of subclause 6(3)(c) of the determination quoted above in para 8, while lacking in syntax, can be taken to mean that the Commissioner may deem a person who is self-employed to be in receipt of income to an amount equivalent to any relevant pension or benefit under the Commonwealth Social Security Act to which the person would be entitled were it not for being self-employed. The NSA is such a benefit. The question is whether the applicant is entitled to it. He could not be deemed to have income equivalent to a pension to which he was not entitled, for example, the age pension.

It is to be noted that no evidence of any inquiries as to the applicant’s entitlement to the NSA was put before the Tribunal. There is, in the Report dated 11 September 2006 of a Housing Review Committee which reviewed the assessment of the applicant’s rental rebate, a statement that:

The Committee notes that Mr Chung is possibly eligible for Newstart Allowance

but there seems to have been no evidence to support this proposition before the Committee.

The basic conditions of eligibility for NSA as shown on the Centrelink website ( reflect the provisions of the legislation. They are:

Must be unemployed, or regarded as unemployed (this can include some people who work).

Aged 21 or over but under Age Pension age.

Willing to undertake suitable paid employment.

Unless exempted, must participate in, or be willing to participate in approved activities and/or JobSearch.

Prepared to enter into, comply (sic) or vary an existing Activity Agreement to fulfil the activity test.

Applying these tests to the applicant, it seems clear that he meets the second and third requirements, but possibly not the first, the fourth and the fifth. A primary issue is whether he is to be regarded as unemployed.

In Secretary, Department of Employment & Workplace Relations v Joss [2006] FCA 884, the respondent Mr Joss had been refused the NSA because the Department of Social Security considered that he was not unemployed (by virtue of his engaging in certain activities for which he received expenses) and therefore was not entitled to the allowance. Following a comprehensive review of relevant decisions of the Commonwealth Administrative Appeals Tribunal and the legislative provisions governing the NSA, Graham J held that:

A person will be ‘unemployed’ within the meaning of s 593(1) of the [Social Security] Act if that person is without work or employment and that situation is both temporary and involuntary. If a person is carrying on a business or engaged in work with a view to profit, such a person could not be considered to be unemployed for the purposes of s 593(1).

In reaching this conclusion Graham J referred to the reasons for the decision of Senior Member Hunt under appeal (Joss & Secretary, Department of Employment and Workplace Relations [2006] AATA 24 (13 January 2006)) and commented:
34. [t]he proposition that a person who is self-employed throughout a given period could also be regarded as unemployed is unsustainable. With great respect to the Senior Member this proposition does not bear analysis. In the case of people who undertake paid work during a period the Secretary may, under s 595, disregard the work undertaken and treat them as being unemployed throughout the period by reference to the matters for which the section provides. However, that would be a case of a statutory power being invoked which contemplates that the Secretary can, in special circumstances, act in a manner which is inconsistent with the facts. I would understand the power conferred on the Secretary to so treat a person as being unemployed, disregarding the paid work that the person may have undertaken, as one which could be invoked in respect of both paid work as an employee and also paid work as a self-employed person whether on that person’s own account, or as a member of a partnership or of a joint venture.
35. It may well be that viewed as a question of fact and degree and having regard to the intensity with which a person applies him or herself to a particular enterprise, one may conclude that a person is not self-employed at all. But, once it be found that the person is self-employed it seems to me impossible to conclude that such a person was, at the same time, unemployed.
Graham J also cited with approval earlier Commonwealth AAT decisions including Te Velde and Director General of Social Services (1981) 3 ALN 111, in which Senior Member Hall concluded that:
a self-employed person may be considered ‘employed’ even when engaged in full-time activities that do not earn that person a sufficient livelihood

and Weekes and Director-General of Social Security (19181) 3 ALN 141, in which the Tribunal reasoned that:

a person who was seeking to establish a business and who was not in receipt of any net income could not be regarded as ‘unemployed’.

Based on these cases, it would seem that for the purposes of eligibility for the NSA, the applicant would not be regarded as unemployed unless the Secretary exercised the discretion available under s 595(1)(b) of the Social Security Act 1991 to disregard his employment activity. Given the evidently unsuccessful nature of the applicant’s business activities to date, it seems possible that such a discretion might well be exercised in the event that he were to apply for the NSA.
Despite the Federal Court’s decision in Joss (see para 15 above), clause 6(3)(c) of the Program specifically allows the respondent to disregard the fact that a person is self-employed if they would otherwise be entitled to the NSA. It seems clear that the intention of clause 6(3)(c) is to ensure that a person who is self-employed but earning very little cannot avoid being deemed to be in receipt of a pension or benefit to which he or she would otherwise be entitled simply by not being willing to apply for it. Nevertheless, subclause 6(3)(c) requires that the person would have an “entitlement” to the relevant benefit if not self-employed, and of this the respondent cannot be certain.
Ms Knox submitted that having regard to the way the example is expressed and the associated note, it is clear that the exercise of the discretion conferred upon the Commissioner under subclause 6(3)(c) was not intended to be restricted to circumstances where the tenant is actually eligible for the allowance or benefit but enables the Commissioner to consider what the tenant may be entitled to if it were not for the tenant’s actual circumstances such as the fact that the tenant is self-employed. However, the only eligibility test that is exempted by subclause 6(3)(c) from consideration by the respondent is the prohibition against being self-employed. It remains necessary for the respondent to be satisfied that the applicant would otherwise be entitled to the NSA.
It is difficult to see how the respondent can be so satisfied in the absence of an unsuccessful application by Mr Chung which had been refused solely because of his being self-employed (and thus not unemployed). Hence it appears that the respondent cannot reasonably conclude that the applicant had an entitlement to the NSA under subclause 6(3)(c).
The Tribunal has in several previous cases considered the income deeming provisions of the Program in relation to ACT Housing rental rebates. In Neidorf and Commissioner for Housing [2003] ACTAAT 51, Mr Niedorf, who was founder and leader of a band that was in the process of establishing itself but which so far had generated little income for him, had been deemed to be in receipt of income equivalent to the ACT Government Technical and Further Education Teachers – Salaries and Conditions Award. This award was considered by the Commissioner to be relevant because Mr Neidorf had done some work in music tuition and as a band coordinator in schools in order to boost his income and the assumption was that he would have earned income equivalent to the Teachers Award if he had taken reasonable action to do so.
Senior Member McKenzie rejected the proposition that the Commissioner had formed a belief based on evidence that Mr Neidorf could reasonably have earned the equivalent of the teachers' award salary and instead accepted his stated actual income as being his income for the period. She found that Mr Neidorf was “the leader of an artistic enterprise in the field of music with a business development plan for the future” and that, “like many businesses in their establishment phase, the risks are high and the financial rewards can be slow to arrive”.
In McGowan, Andrew and Karen and Commissioner for Housing [2000] ACTAAT 13, the applicants had been deemed to be in receipt of income equivalent to NSA, although apparently ineligible for the NSA because they were employed full-time in the work of an international organisation for which they received only modest remuneration Further, they were not willing to actively seek and undertake other paid work [in order to meet the activity test] as this would interfere with their current full-time work, which they regarded as socially useful.
Senior Member O’Neil found that Mr and Mrs McGowan would both be able to earn an adequate income should they choose to seek employment in the general workforce. She recognised that this would require them to cease their current level of activity with the organisation, but accepted the argument of the respondent, that it was unreasonable for Mr and Mrs McGowan to expect ACT taxpayers to subsidise their housing so that they could enjoy the luxury of doing what they want to do without seeking adequate remuneration for their work. She wrote (para 11):
If public housing funds are devoted to people who have the capacity to support themselves but choose not to do, then there is less money available to assist those who are unable to assist themselves.
Neither Neidorf nor McGowan is directly of assistance in the present case. While the applicant could be regarded as being in the establishment phase of his business, no evidence was presented to the Tribunal of how actively he was pursuing the obtaining of work, nor whether he had any business development plan (unlike Neidorf). Moreover, he claimed that he had “never stopped looking for work” during the period since establishing his businesses and told the Tribunal that getting a job appropriate to his qualifications was his primary goal. He is not choosing to work at a lower level of remuneration than he could otherwise obtain in the general workforce (unlike McGowan). On the contrary, he cannot obtain suitable paid employment and his small income from his business activities is not the consequence of any choice made by him to be satisfied with less than he might reasonably be able to earn if employed.
This raises the question of whether Mr Chung should reasonably be expected to accept that his business activities have failed, that he is effectively unemployed, and that he should seek the NSA. In other words, should he be expected to take reasonable action to obtain the allowance to which he could be entitled if he were willing to apply for it? A successful application would increase his income by the amount of the NSA, and the additional income received would be significantly greater than the increase in rental that he is being asked to pay.
Clause 6(3)(a) of the Program provides that a person may be taken to have earned, derived, received or become entitled to an amount [which would qualify as income] if:
(a)the commissioner is satisfied that the person would have earned, derived,received or become entitled to the amount if the person had taken reasonable action to secure the amount and the action is or was reasonably available to the person.
The Tribunal addressed the issue of what was “reasonable action” in Bell, Alwyn and Commissioner for Housing [1998] ACTAAT 226 (20 January 1998). In that case, Ms Bell’s NSA had been reduced by 18% because she had not provided certain information of a personal nature to the Commonwealth Social Security agency. However, the Commissioner for Housing had deemed her to be in receipt of the full allowance on the grounds that she had not taken reasonable action to secure “a source of income reasonably available to her”, that is, the full NSA. Ms Bell gave evidence that she was intending to appeal to the Social Security Appeals Tribunal against the decision to reduce her NSA but had not yet done so, the time for lodging of her appeal not having expired. President Curtis found that on this basis she had not yet failed to take “‘reasonable steps to secure the full benefit” and that, pending the lodging and outcome of her appeal, the Commissioner could not form a “belief” that she would have been entitled to the full NSA had she taken reasonable action to secure it (as then clause 4(5) of the Program required). On this basis, it would appear that “taking reasonable action” is the doing of whatever acts are necessary to obtain the allowance. It seems clear that making a formal application and satisfying the Secretary that one is “qualified” for the allowance would be reasonable actions.
The wording of the clause has since changed, so that the Commissioner is now required to be “satisfied” rather than to “believe” though there does not seem to me to be any significant difference between the two requirements.
The rules governing the granting of social security benefits make it clear that applications for such benefits are to be made in writing in the approved form, and that applicants and recipients must comply with any requirements associated with the various classes of payments. The Commonwealth AAT has dealt with numbers of cases in which persons have been refused the NSA or had their allowance reduced for failure to comply with one or other of the formal requirements laid down for this allowance, including failing to properly apply, failing to enter or comply with an Activity Agreement (e.g. Castleman and Secretary, Department of Family and Community Services [2004] AATA 119 (lodging of a claim on the proper form); Pettitt and Department of Family and Community Services [2001] AATA 469 (unreasonable delay in entering into an Activity Agreement)).
I consider that complying with the rules governing applications for the NSA would be the taking of reasonable steps. In this case, reasonable steps that the applicant could take would include formally applying for the NSA, seeking to have himself accepted as “unemployed” under s 595 of the Social Security Act 1991, and negotiating an appropriate Activity Agreement (if required to do so) with Centrelink. I consider it open to the respondent to be satisfied that the applicant has not taken reasonable steps to obtain the NSA which could be available to him if he were willing to seek it.
Nevertheless, under subclause 6(3)(a) the respondent is also required to be satisfied that the person would have become entitled to the benefit if he or she had taken the reasonable action. The question to be answered by the Tribunal, standing in the shoes of the respondent, is whether it can be satisfied that the applicant would have become entitled to the NSA had he taken the reasonable action indicated. Given the nature of Mr Chung’s employment activities, I am satisfied that the Secretary would disregard the work he is doing and treat him as being unemployed under s 595(1) of the Social Security Act 1991. I am further satisfied that Mr Chung would meet the activity test and would be capable of entering into a Newstart Activity Agreement if required to do so. Consequently I conclude that he would be entitled to the NSA if he were to take reasonable steps (set out in para 39 above) to apply for it.
It is important to note that whether applying clause 6(3)(a) or clause 6(3)(c) of the Program, the respondent is not requiring the applicant to apply for the NSA. He is doing no more than exercising the discretion available to him under the Program, to deem the applicant to be in receipt of an amount equivalent to the NSA for the purpose of calculating his rental rebate. It remains entirely up to the applicant as to whether he applies for the NSA or not.
In administering the Program, the respondent is bound to have regard to the objects of the Housing Assistance Act 1987 set out in para 12 above, and to the Guiding Principles, Objectives and Strategies of the Agreement, set out in para 14 above. In order to achieve these objects, the respondent is entitled to expect applicants for ACT housing assistance to minimise their demands on the resources available for public housing, including by paying a rent that takes into account whatever social security benefits are potentially available to them.
While the applicant’s motives in not choosing to apply for the NSA may be commendable, the effect of his doing so is to impose a cost burden on the ACT Government and taxpayers which the respondent is in duty bound to resist. That the consequence of the applicant applying successfully for the NSA would be to impose an additional cost burden on the Commonwealth and its taxpayers is not a matter that the respondent, or the Tribunal, can take into account.

Conclusion

I conclude that it was not open to the respondent, under subclause 6(3)(c) of the Program, to consider Mr Chung to have earned an amount equivalent to the NSA because he could not be satisfied that he was entitled to it, regardless of his employment status. However, it was open to the respondent to be satisfied, under subclause 6(3)(a), that Mr Chung had not taken reasonable action which was reasonably available to him to secure the NSA, and to be satisfied that, had he taken such action, Mr Chung would have become entitled to the NSA. Consequently the decision to deem him to be in receipt of income equivalent to the NSA was correct.
FORM 33
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Member's Staff
________________________________________________________________________

PART A FILE NO: AT06/67

APPLICANT:  MICHAEL CHUNG
RESPONDENT:                   COMMISSIONER FOR HOUSING
PARTY JOINED:                 N/A
COUNSEL APPEARING:    APPLICANT: MS R KNOX
RESPONDENT:
PARTY JOINED:

SOLICITORS:  APPLICANT:
RESPONDENT:       ACT GOVERNMENT SOLICITOR
PARTY JOINED:

OTHER:APPLICANT: SELF
RESPONDENT:
PARTY JOINED:

TRIBUNAL MEMBER/S: DR D F MCMICHAEL, SENIOR MEMBER

DATE/S OF HEARING: 18 DECEMBER 2006 PLACE: CANBERRA

DATE OF DECISION: 20 FEBRUARY 2007 PLACE: CANBERRA
_______________________________________________________________________
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION (X)
COMMENTS: