Drew and Secretary, Department of Family and Community Services

[2000] AATA 944

DECISION AND REASONS FOR DECISION [2000] AATA 944

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2000/457

GENERAL ADMINISTRATIVE  DIVISION       )          
           Re      DAVID DREW        
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES        
  Respondent

DECISION

Tribunal       Dr E K Christie, Member   

Date30 October 2000      

PlaceBrisbane

Decision      The Tribunal affirms the decision under review.  This means Mr. Drew's application is unsuccessful.         
  .............(Signed).................................
  DR E K CHRISTIE
  MEMBER
CATCHWORDS
SOCIAL SECURITY – rent assistance – principal residence
Social Security Act 1991: s.13(2)
Re Waters and Secretary, Department of Social Security (AAT 7612, 20 December 1991)

REASONS FOR DECISION

Dr E K Christie, Member               

1. This is an application by David Drew for a review of the Social Security Appeals Tribunal ("the SSAT") made on 20 April 2000 which affirmed a decision made by an Authorised Review Officer of Centrelink on 10 January 2000.  The SSAT decided that Mr. Drew was not entitled to additional rent assistance for the cost of a storage shed.

2. In reaching its decision, the SSAT concluded that:

   "Obviously, the storage shed is not part of his [Mr. Drew's] principal residence.  It cannot be argued that the storage shed is part of the premises which he occupies as his principal place of residence."

1. The evidence before the Tribunal comprised the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the "T" documents).

2. A telephone directions hearing ("TDH") was held on 6 October 2000 prior to the application being decided on the papers.  The purpose of the TDH was to clarify any outstanding issues and to provide the parties with an opportunity to present submissions on how the application should be decided.  Mr. David Drew and Ms. Julie Dwyer, a Departmental Advocate, participated in the TDH.
   ISSUE TO BE DECIDED

3. There was only one issue for the Tribunal to decide:  whether Mr. Drew was entitled to additional rent assistance for moneys paid for rental of a storage shed.
   FACTS

4. The general facts were that:

• Mr. Drew received newstart allowance;

• Mr. Drew advised Centrelink on his fortnightly newstart allowance review form on 3 December 1999 that he was paying $54.00 per week rental at a caravan park and $15.00 per week for shed rental for storage of his personal items;  and

• The storage shed was not occupied by him and was located about four kilometres from the caravan park.

CONTENTIONS AND SUBMISSIONS OF THE PARTIES

1. Mr. Drew stated that there were no storage facilities for his personal items at the caravan park site he occupied.  As a result, he had to go four kilometres off-site to obtain a storage shed.  He contended that the distance between the caravan park and the storage shed was immaterial in any consideration of his entitlement for rent assistance for both sites.  Mr. Drew submitted that if he rented a house, with a garage to store his personal items, he would be entitled to full rent assistance.

2. Mr. Drew contended:

   "I cannot see that it makes any material difference that the caravan site from one landlord and the shed from another makes any material difference, hence the application for rent assistance.  It is part of my principal residence as the shed houses my personal effects, that had I the shed alongside would undoubtedly be housed in.  As I am unable to it should not be held against me which not granting it [additional rent assistance] is undoubtedly doing (21 September 2000)."

1. Mr. Drew also contended that payment of rent assistance, in his situation, for a caravan and a storage shed would provide economic benefits for Centrelink as the total cost was less than if he had rented a home with a garage.

2. Mr. Drew concluded with the submission that it was not within the spirit and intent of the Social Security Act for him to be refused rent assistance for the storage shed. In addition, that in his circumstances he was being discriminated against.

3. Ms. Dwyer, the Departmental Advocate, submitted that the issue was clear cut.  Specifically:

   "Section 1068 contains the method of calculation for a person's rate of Newstart Allowance, including the rate of Rent Assistance payable.  Section 1068-F1 provides that Rent Assistance is payable if a person pays or is liable to pay, rent. Section 13(2) defines the meaning of 'rent'.  The Department contends that Rent Assistance is not payable in respect of the storage shed because it is not an amount paid 'as a condition of occupancy of premises, or of a part of premises, occupied by [Mr Drew] as [his] principal home'."

CONSIDERATION OF THE ISSUES

1. The objective of the Tribunal is to review administrative decisions, not only on their merits but in accordance with the law at all times.  The relevant legislation is the Social Security Act 1991 ("the Act"). The provisions of the Act which must be considered by the Tribunal in deciding this application are contained in s.13(2):

   "13(2)  Amounts are rent in relation to the person if:
             (a)       the amounts are payable by the person:

   (i)as a condition of occupancy of premises, or of a part of premises,  occupied by the person as the person's principal home;  or

   …….;  or

   (v)       for the use of a site for:
             (A)      a caravan or other vehicle;  or
             (B)      a structure;
   occupied by the person as the person's principal home;  or…."

1. Applying these provisions of the Act, rent assistance is payable to help cover the cost of rent. Amounts are paid as rent as a condition of occupancy of premises or of a part of premises occupied by the person as their principal home or as a condition of occupancy of premises.

2. The first question for the Tribunal to decide is whether the storage shed could be considered as part of Mr. Drew's "principal home" – a key requirement for rent assistance.  In Re Waters and Secretary, Department of Social Security (AAT 7612, 20 December 1991), the Tribunal rejected the argument that a person who lived and divided their time between two visits in the same block of flats could justify that both units together form their "principal home".  The Tribunal concluded to hold that the combination of two such disparate units, as the "principal home", on different levels of the building, was one that was not reasonable.

3. Applying this reasoning in Mr. Drew's circumstances, and recognising that the storage shed and the caravan park were four kilometres apart, the Tribunal can make no other finding than to conclude that the storage shed was not part of Mr. Drew's "principal home".

4. The next issue for the Tribunal to decide is whether rent assistance should be paid in respect of the storage shed because it is a condition of Mr. Drew's occupancy of the premises, or part thereof, and occupied as his principal home.  The Tribunal finds that this is not the case in Mr. Drew's situation.

5. For all of the above reasons, the Tribunal has no option other than to conclude that Mr. Drew is not entitled to additional rent assistance for the cost of the storage shed. Whilst this decision may seem unfortunate, the Tribunal is provided with no discretion under the Act other than to decide Mr. Drew's application in this way. The facts before the Tribunal are the steps in the Tribunal's decision-making process and can only be interpreted in accordance with the law and the object of the Act in making the following decision.

6. The decision under review is affirmed.  This means Mr. Drew's application is unsuccessful.

   I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Dr E K Christie, Member

   Signed:         .....................................................................................
              B. Hitchcock, Secretary

   Date/s of Hearing  Heard on the Papers
   Date of Decision  30 October 2000           
   Applicant  Mr. Drew, himself
   Respondent  Ms. Dwyer, Departmental Advocate