Cosic and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2008] AATA 428

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 428

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   2007/4916

GENERAL  ADMINISTRATIVE   DIVISION		)
Re		BRANKICA COSIC

Applicant

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

Respondent

DECISION

Tribunal Mr C. Ermert, Member

Date26 May 2008

PlaceMelbourne

Decision The Tribunal sets aside the decision under review and in substitution decides that the rental allowance to be paid to Ms Cosic for the period from 20 May 2006 to 23 December 2006 be calculated on the basis that she paid a rental amount of $157.55 per week.

(sgd) Conrad Ermert

Member

SOCIAL SECURITY ‑ rent assistance with Newstart allowance – amount of rent paid – whether proof of payments ‑ decision set aside.

Social Security Act 1991

Housing Act 1983 (Vic)

REASONS FOR DECISION

26 May 2008   Mr C. Ermert, Member

INTRODUCTION

1.        Ms Cosic has been receiving Newstart Allowance from Centrelink since 25 March 2002.  Centrelink is the service delivery agency for Department of Families, Housing, Community Services and Indigenous Affairs.  On 20 May 2006 Ms Cosic started to live in a government housing property at 156/12 Sutton Street, North Melbourne (the property) occupied by her brother and let to him as the sole tenant.  On 14 November 2006 Ms Cosic advised Centrelink that she was living at the property and lodged a rent assistance questionnaire to claim the rent assistance payable with the Newstart payments.  The form shows a figure of $50.34 per week as Ms Cosic’s share of a total rental of $157.55 per week.  On the basis of the information on the form, Centrelink calculated that Ms Cosic was entitled to receive $6.66 a fortnight in rent assistance from 14 November 2006, the date the form was submitted.  After a review Centrelink decided that Ms Cosic was entitled to be paid arrears of rent assistance from 24 May 2006, the date shown on the form as the date on which she first started paying rent at the property.

2.        Ms Cosic contends that the questionnaire form was altered by Centrelink officers.  She contends further that her brother had abandoned the property and that she has been paying the full amount of the rental from the time she moved into the property.  Ms Cosic stopped paying rent on the property on 23 December 2006 after which eviction processes were initiated.  Ms Cosic is seeking an increase in the rent allowance payable from 24 May to 23 December 2006.

3.        On 5 July 2007 an Authorised Review Officer of Centrelink affirmed the original decision to pay Ms Cosic $6.66 per fortnight.  This decision was affirmed by the Social Security Appeals Tribunal (SSAT) on 28 August 2007.  The present matter is an application for a review of that SSAT decision.

THE HEARING

4. Ms Cosic represented herself at the hearing and called a Mr Ciavarella as a witness. The respondent was represented by Ms Kayren Paul, an advocate from Centrelink Legal Services. I had before me the documents lodged by the respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T‑documents).  During the hearing I took in eight exhibits on behalf of the applicant (Exhibits A1 to A8) and received a further two bundles of documents from the applicant subsequent to the hearing.  These later documents were reviewed by the respondent who made further submissions dated 8 April 2008.

THE LEGISLATION

5. Qualification for Rent Assistance is defined in section 1070B of the Social Security Act 1991 (the Act), which relevantly states that a person qualifies for rent assistance if the person satisfies the common requirements set out in section 1070C.  The common requirements in that section relevantly include that:

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

6.        Government rent is defined in section 13(1) of the Act and includes rent payable to the Director, within the meaning of the Housing Act 1983 of the State of Victoria.  Section 13(3AC) provides for persons paying rent for living in premises in respect of which someone else pays Government rent.  In this case the respondent accepts that Ms Cosic’s brother was liable to pay Government rent during the period in question and consequently, for the purposes of subsection 13(3AC) of the Act, Ms Cosic was qualified to receive rent assistance.

7.        Sections 1070Q to 1070T of the Act set out the rate calculations for Rent Assistance.

THE ISSUE

8.        With the concession of the respondent that Ms Cosic was qualified to receive rent assistance, the only issue to be determined in this case is the amount of rent assistance payable to Ms Cosic during the period in question.

EVIDENCE

9.        Ms Cosic’s evidence is that when she moved into the property on 20 May 2006, her brother, who was the tenant registered with the Office of Housing, left the property on the condition that Ms Cosic pay the full rental of $157.55 per week but not tell the Office of Housing of the arrangement.  In her evidence Ms Cosic said that her brother paid the rent up to 20 May 2006 and after that she paid the full amount.  Ms Cosic said that her brother left the country and only came back for a short period in August 2006, to sort out some personal matters.  Ms Cosic said that she had the utilities, such as electricity, transferred into her name as soon as she moved in and she had taken on the property as if it were her own. 

10.      In regard to the rent certificate form lodged on 14 November 2006 (T14), Ms Cosic said that the figures shown as answers to questions 5, 6, and 7 were not those she had written on the form when she submitted it to the Office of Housing.  Ms Cosic stated that the figures were altered by an officer in the Office of Housing and that the figure of $50.34 per week for her share of the rent was incorrect.  Ms Cosic said that when she saw the alterations she told them the amount was incorrect but that she was so angry at the time that she stormed out of the office and took the form to Centrelink. 

11.      At the hearing Ms Cosic tendered Exhibit A1 which is list of transactions from her bank account showing a number of debits to ‘POB AUST POST HOTHAM’ which Ms Cosic said were payments of rental for the property. 

12.      Ms Cosic submitted documents relevant to the period in question after the hearing.  They include:

(a)Telstra accounts in her name at the Sutton Street address issued from 20 May 2006 to 20 November 2006;

(b)Origin Electricity accounts in her name at the Sutton Street address issued from 7 September 2006 to 5 December 2006; and

(c)A Household Income statement, dated 19 August 2006, declared by Valentino Cosic, the brother of Ms Cosic, which includes a statement My sister has moved in as resident on 20 May 2006.

13.      Mr Donald Matthew Ciavarella gave evidence for the applicant.  He stated that he was Ms Cosic’s boyfriend at the time when she moved into the property.  In regard to the rent certificate form (T14), Mr Ciavarella said that Ms Cosic … filled it out with her brother and put on there $157.  He said he was present when the form was handed in to the Ministry of Housing and that Brankica really didn’t take much notice that the figures had been altered. So we rushed off to Centrelink, gave the form in, realising that the figures have been altered (Transcript page 28). 

14.      Mr Ciavarella also said:

… I’ve seen her go the post office, draw the money out from her account, pay the rent when she had enough money to pay for the rent.  She’s even asked me for money to pay for rent and sometimes I have given her $100 or $50 to cover for the rent”. (Transcript page 28). 

Mr Ciavarella said that between May and December 2006 he was with Ms Cosic on most occasions when she went to the post office to pay the rent and would see her pay the money to the Ministry of Housing.  His evidence was that, from his personal knowledge, Ms Cosic began paying the rent in May 2006. 

CONSIDERATION

15.      The issue in this case is the amount of rent assistance to be paid to Ms Cosic during the period in question.  The amount of rent assistance varies with the amount of rent paid by the person.  In this case therefore the issue to be determined is the amount of rental paid by Ms Cosic between 20 May and 23 December 2006.

16.      The respondent’s contentions are that Ms Cosic:

…provided evidence to Centrelink on 14 November 2006, in the form of a Rent Assistance Questionnaire, that she was liable to pay $50.34 per week in rent for the premises at 156/12 Sutton Street, North Melbourne from 24 May 2006 [T14, p30-31].   The Secretary contends that, as this form was signed by both Ms Cosic and the Ministry of Housing and was lodged by Ms Cosic with Centrelink, the Rent Assistance Questionnaire is an accurate representation of the amount of rent payable by Ms Cosic for living at 156/12 Sutton Street. (submission dated 8 April 2006). 

17.      In considering the contention that the figure $50.34 shown on the form is an accurate representation of the amount of rent payable by Ms Cosic, I note the evidence of Ms Cosic and Mr Ciavarella who both stated that the amount shown on the form was originally $157.55 but that figure was altered by staff of the Office of Housing.  Both witnesses stated that after the form was handed to staff at the Office of Housing it was taken away and when it was returned the entry had been changed.  While it is not possible to discern from the copy of T14 what figure may have been entered originally it is clear that the original entry has been overwritten with the amount of $50.34.  Accordingly, I do not accept that the figure of $50.34 was lodged by Ms Cosic to the Ministry of Housing.

18.      Nevertheless, the form with the overwritten figure of $50.34 was lodged by Ms Cosic with Centrelink.  Ms Cosic’s evidence was that at the time she handed the form to Centrelink she:

…was very, very disorientated at the time, I just did not know what I was doing, because I was so angry and very, very bitter at the time. I just went in and handed it in (Transcript page 11) and

… because I was so much under strain with what they had been putting me through and I was possibly going to be evicted out on the street. (Transcript page 12)

19.      Mr Ciavarella’s evidence was that he and Ms Cosic rushed off to Centrelink and gave the form in realizing that the figures had been altered.

20.      From the evidence of Ms Cosic and Mr Ciavarella I accept that Ms Cosic did lodge the form (T14) with Centrelink even though she knew at the time that the figure of $50.35 for her rental payment was not correct.  Under the circumstances, I do not accept that the lodgement of the form with Centrelink makes the figure of $50.34 an accurate representation of the amount of rent payable by Ms Cosic for living at 156/12 Sutton Street. 

21.      The respondent also contends that Ms Cosic has provided inconsistent information regarding the amount of rent she has been liable to pay for the property:

·In August 2006 Ms Cosic asked her brother to complete a form stating that she was paying $100 per week (Exhibit A7);

·On 5 September 2006 Centrelink received information that Ms Cosic was paying government rent of $110 per week (T10, page 26); and

·On 10 November 2006 Ms Cosic informed Centrelink that she paid rent of $100 per week (T11, page 27).

22.      The respondent contends that, given the inconsistent evidence provided by Ms Cosic, the Tribunal should give the evidence on the Rent Assistance Questionnaire greater weight. 

23.       Ms Cosic’s evidence was that she wrote $100 per week rental on the first form submitted to Centrelink because that is what she was told to do by her brother.  She said her brother told her:

…to keep paying the rent and not to say anything to Office of Housing that I’m living there … he was making things very, very difficult, I was walking into a situation at the time which was very, very, you know I knew that I was running into a trap, I had left my property in Footscray which I had a proper lease, and I had my own place, and I was, you know, he needed someone to move in and I just did everything … not thinking straight  (Transcript pages 5 and 8).

24.      At the time of providing the information to Centrelink, Ms Cosic was living in premises rented to her brother, without having notified the Office of Housing of her residency; with the added concern that her brother had left Australia and she was in danger of eviction if the situation became known to the Office of Housing.  In his evidence Mr Ciavarella said that he also advised Ms Cosic at the time:

…Its not a good idea to move into these premises because you’re not on the contract; anything goes wrong, your brother’s not here to cover you; you’re buying problems (Transcript page 27).

25.     I accept Ms Cosic’s evidence that she felt she was running into a trap and was not thinking straight.  In those circumstances, I do not put much weight on the evidence that Ms Cosic was not consistent in her reporting of the amount of rent she was paying.  Her evidence at the hearing, supported by that of Mr Ciavarella, was firm that she paid the full amount of rental from the time she moved into the premises. 

26.      Another submission from the respondent is that the utilities were not put into Ms Cosic’s name until August 2006 and even if they had been transferred into her name on 24 May 2006 that, on its own, would not support Ms Cosic’s contention that she paid the full rental of $157.55 for the premises.  In considering this point I note that the telephone account of 20 May 2006 is shown in Ms Cosic’s name.  The earliest submitted electricity account in Ms Cosic’s name is that of September 2006. However, that may be due to the accounts being issued periodically.  Ms Cosic’s evidence is that she had the utilities transferred into her name as soon as she moved in and that is supported, in part, by the telephone account of 20 May 2006.  So, while of its own that is not evidence of Ms Cosic paying the full amount of rental from the time she moved into the premises, I accept it as evidence that she took the responsibility for the provision of services to the premises; an act that I would consider unusual if her brother were still paying the rent to the authorities.

27.      The respondent also submits that the evidence from the Office of Housing (Exhibit A2) states that Ms Cosic was approved as a resident of the Sutton Street premises from 18 August 2006.  I am not clear on the purpose of this submission.  It may be intended to throw doubt on the start date of Ms Cosic’s occupation of the premises.  However, I accept the oral evidence of Ms Cosic that she occupied the premises from 20 May 2006.  There is the evidence of the telephone account dated 20 May 2006 in Ms Cosic’s name.  The date of 20 May 2006 is also shown on the Household Income statement dated 19 August 2006, declared by Valentino Cosic as the date on which Ms Cosic moved into the property.  This date is at variance with the date of 24 May 2006 shown on the rental certificate (T14).  However, Ms Cosic’s evidence, supported by that of Mr Ciavarella, is that the date on the form was altered by an officer of the Office of Housing.  Certainly the writing on the form showing 24/5/06 appears to very similar to that showing $157 in the box for total rent for the premises and $50 in the box for the share of the rent for the premises, both figures claimed by Ms Cosic to have been altered.  Ms Cosic’s evidence of the alteration was clearly supported by the evidence of Mr Ciavarella.  There is no evidence that Ms Cosic did not occupy the premises until August 2006, as may be inferred from the respondent’s submission.  From the evidence I accept that Ms Cosic moved in to the property on 20 May 2006. 

28.      The respondent also submits that the pattern of withdrawals on the bank statement provided by Ms Cosic does not support her contention that she withdrew the full amount of rental payable for the premises and paid it to the Office of Housing.  In considering the issue I take note of the oral evidence of Ms Cosic that she paid the full rental from the time she moved into the property until she stopped paying rental on 23 December 2006.  Her evidence is supported in part by the evidence of relevant withdrawals from her bank account shown in Exhibit A1.  I note the point made by Ms Paul, that not all the rental payments made to the Ministry of Housing have corresponding withdrawals from the bank account. However, there are sufficient withdrawals that do relate to the rental account, starting from 30 May 2006 to indicate that Ms Cosic did pay the full rental amount on a number of occasions over the period in question.  I take note also of the evidence of Mr Ciavarella that he was with Ms Cosic on most occasions when she made the rental payments, starting in May 2006.  Mr Ciavarella also gave evidence that on some occasions he and other acquaintances of Ms Cosic gave her money to help her with the rent payments.  I accept that these occasions may account for some of the discrepancies between the withdrawals from Ms Cosic’s bank account and the recorded rental receipts. 

29.      The respondent raises the possibility that Mr Valentino Cosic or someone on his behalf made the rental payments recorded by the Office of Housing.  I consider this submission as hypothetical only.  There is no evidence to support the contention. Whereas there is the evidence of Mr Ciavarella who was with Ms Cosic on most occasions when she made her rental payments to the Office of Housing. 

30.      The respondent contends that even if it could be established that Ms Cosic paid the full rent amount to the Office of Housing, there is no evidence that she was liable to pay any more than $50.34 per week.  This contention is supported by the letter from the Office of Housing dated 18 August 2006, which specified that Ms Cosic did not have tenancy rights to the property and would have to vacate it if Mr Valentino Cosic, the tenant, were to leave the property.  The evidence of Ms Cosic and Mr Ciavarella is that Ms Cosic clearly understood the precarious situation she was in by continuing to occupy the premises from which she could be evicted if it were recorded that Mr Valentino Cosic had left the property.  I accept it as likely that Ms Cosic would be keen to ensure the rental payments were maintained to prevent alerting the Office of Housing to the fact that the prescribed tenant was no longer occupying the premises.  Although there was no liability on Ms Cosic to pay more than $50.34 per week, I accept that it was more likely than not that she considered it in her best interests to maintain the full rental payments in the absence of her brother and acted accordingly. 

31.      After considering all the evidence before me I am satisfied that Ms Cosic moved into the property on 20 May 2006 and paid the full rental for the Sutton Street property from the first payment made on 30 May 2006 to her last payment made on 23 December 2006.  Accordingly I find that the rental allowance due to Ms Cosic for the period from 20 May 2006 to 23 December 2006 should be calculated on the basis that Ms Cosic paid the full rental of $157.55 per week.

32.      As a consequence of my findings, I set aside the decision of the SSAT made on 28 August 2007.

DECISION

33.      The Tribunal sets aside the decision under review and in substitution decides that the rental allowance to be paid to Ms Cosic for the period from 20 May 2006 to 23 December 2006 be calculated on the basis that she paid a rental amount of $157.55 per week.

I certify that the thirty‑three [33] preceding paragraphs are a true copy of the reasons for the decision herein of:

Mr C. Ermert, Member

(sgd)     Dianne Eva
  Clerk

Date of Hearing:  25 January 2008

Date of Decision:  26 May 2008

Advocate for the applicant:                 Self represented

Advocate for the respondent:             Ms Kayren Paul, Centrelink Legal Services