Gazal and Secretary, Department of Family and Community Services

[2004] AATA 1106

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1106

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2004/668

GENERAL ADMINISTRATIVE DIVISION		)
Re		ALIZA GAZAL

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Mrs Josephine Kelly, Senior Member

Date22 October 2004

PlaceSydney

Decision The decision of the Social Security Appeals Tribunal of 27 April 2004 to affirm the decision of an authorised review officer to cancel Mrs Gazal’s rent assistance is affirmed.

[sgd] Senior Member

CATCHWORDS

SOCIAL SECURITY – rent assistance – not available for state department of housing residence - no rent paid at ‘principal home’ – meaning of ‘principal home’ discussed – decision affirmed

LEGISLATION

Social Security Act 1991 sections 13, 1064-D1,

CASELAW

Secretary, Department of Family and Community Services v Kulshrestha (2003) AATA 227

Re Di Primio and Secretary, Department of Social Security (1993) 31 ALD 233

Re Kirkman and Secretary Department of Social Security (1990) 20 ALD 400

Hafza v Director-General of Social Security (1985) 60 ALR 674

Koitaki Para Rubber Estates Ltd v Federal Commissioner of Taxation (1941) 64 CLR 241

REASONS FOR DECISION

22 October 2004 Mrs Josephine Kelly, Senior Member      

SUMMARY

1.      Mrs Aliza Gazal, the Applicant, seeks the review of a decision of the Social Security Appeals Tribunal (“the SSAT”) made on 27 April 2004 affirming the decision of an authorised review officer on 10 November 2003 which affirmed the cancellation of her rent assistance from 23 October 2003.  The reason for that cancellation was that Mrs Gazal was “paying rent to a State/Territory public housing authority” (Ex T p 15).

2. “Rent assistance” is paid as part of certain pensions and carer payments where s 1064-D1 of the Social Security Act 1991 (“the Act”) is satisfied. That provision appears in Module D of the Pension Rate Calculator in Part 3.2 of the Act. The criterion in issue in this case is s 1064-D1(c) which provides: “the person pays, or is liable to pay, rent (other than Government rent)” (emphasis added).

3.      Two issues arise from the definitions of “rent” in s 13 of the Act. Is Mrs Gazal paying rent and if so, is it in respect of her principal home?

4.      My conclusion upon all of the evidence and for the reasons given below is that Mrs Gazal does not pay rent as defined for the following reasons.  She is currently paying “government rent”, which is excluded by the Act, in relation to New South Wales Department of Housing premises at Woollahra. In relation to the unit in Bondi where she sleeps, spends most of her time and cares for her mother, her evidence is that she is not paying rent. Accordingly, my decision must be that the reviewable decision to cancel Mrs Gaza’s rent assistance is affirmed.

LEGISLATION

5. Section 13(1) of the Act contains the following definitions:

“"board", when used in the expression board and lodging, means the provision of meals on a regular basis in connection with the provision of lodging.

…

"rent" has the meaning given by subsections (2) and (4).”

That sub-section also defines “Government rent” as meaning rent payable to various State housing departments, including the “Housing Commission of New South Wales”.

6. Relevantly, the balance of s 13 provides:

“(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

(ia)      as a condition of occupancy of premises, or of a part of   premises, occupied by the person to allow him or her to   provide personally a substantial level of care in a private   residence for another person who needs, or in the Secretary's   opinion is likely to need, that level of care in a private   residence for at least 14 consecutive days; or

…

(iv)      for lodging in premises that are the person's principal home; 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

(vi)      for the right to moor a vessel that is occupied by the person as   the person's principal home; and

(b)       either:

(i)        the amounts are payable every 3 months or more frequently;   or

(ii)       the amounts are payable at regular intervals (greater than 3   months) and the Secretary is satisfied that the amounts should   be treated as rent for the purposes of this Act.

…

(5)  If a law of a State, the Northern Territory or the Australian Capital Territory alters the name of an authority referred to in the definition of Government rent in subsection (1), a reference to that authority in that definition is to be construed as a reference to the authority under the new name.

(6)  Where:

(a)       a person pays, or is liable to pay, amounts for board and lodging; and

(b)       it is not possible to work out the part of each of those amounts that is                   paid or payable for lodging;

the amount of rent paid or payable by the person is, for the purposes of this Act, to be taken to be two-thirds of the amounts paid or payable as mentioned in paragraph (a).

…

(8D)  In this section, rent assistance means an amount paid or payable under this Act to help cover the cost of rent.”

7.      The Housing Commission of New South Wales is the former name of the New South Wales Department of Housing. It follows that that rent paid to the NSW Department of Housing is relevantly “Government rent” pursuant to so 13(1) and (5) of the Act.

8. The material before this Tribunal included the documents provided pursuant to s 37 of the Administrative Appeals Tribunal Act (“the AAT Act”), considerable material tendered by Mrs Gazal (Exhibits A1 to A9), her oral evidence and the Secretary’s Statement of Facts and Contentions. Mrs Gazal provided additional material to the Tribunal on several occasions after the hearing. That material has been taken into account with the consent of the Secretary and has been made Exhibit A10 in these proceedings.

CONSIDERATION

9.      Mrs Gazal’s life has been an unhappy and difficult one since her father’s death in 1981. She was born in 1938 and is not in good health.  She had difficulties in her marriage from 1977.  Later, proceedings in the Family Court resulted in her being evicted from her Maroubra home. She feels marginalised from her community and suffers from isolation and stress, as appears from the report of Dr Jane Tolman dated 13 July 2004 (Exhibit A3).  For the purposes of this decision it is not necessary to give details of all the events and circumstances that Mrs Gazal has related to the Tribunal.

10.     According to Mrs Gazal she was evicted from her flat in Bondi in February 1986.  A person from a Jewish welfare agency placed her property in a Miller’s self-storage facility.  Mrs Gazal and her two daughters went to live with her mother and grandmother.  As I understand Mrs Gazal’s evidence, she has been living in the same premises, a unit in Mitchell Street, Bondi, since that time.  Her grandmother died in 1986.    She is now living there caring for her 89 year old mother Mrs Najiya Gazal.  She is receiving a carer’s allowance in respect of her mother which was granted on 2 December 1999 and backdated to the date of her claim on 15 October 1999. Such an allowance is only payable if the carer is living with person being cared for.  Mrs Gazal is very concerned that when her mother dies she will have nowhere to live. 

11.     She made repeated applications to the Department of Housing in New South Wales for her own home but was not successful until 1999.  The Department of Housing Residential Tenancy Agreement is dated 23 August 1999 (part Exhibit A6) when she was apparently allocated an apartment in James Street, Woollahra.   Mrs Gazal has been under threat of eviction from that apartment since at least 30 July 2003 (Exhibit A6, letters to Mr Carr and Mr Scully dated 30 July 2003 and to Mr Refshauge dated 15 July 2004; Exhibit A7, letter to Department of Housing (undated)).  The reason for the original decision was that she had admitted that she did not sleep there.  It appears from the evidence that she is now also behind in her payments.

12.     It is clear from the evidence that the rent assistance originally claimed and granted to Mrs Gazal in 1992 was for her cost of a Millers self-storage facility.  The fact that the “rent” was for the self-storage facility was apparently not known to the Respondent.  Mrs Gazal’s views were conveniently summarised by her in Exhibit A1 on the last page:

“1. The issue is whether I should receive Rental Assistance.

2. Since for over 10 years while on a low income pension I received full Rental assistance while my property was in Millers Self Storage, and now Centrelink considers that I live here in Bondi and Woollahra is merely a storage for me – all the more I should get Rental Assistance because you are collecting revenue from me, not Millers.

3. You Centrelink cannot have it both ways – you made a mistake removing my rental assistance without asking why I was given it in the first place …”

13.     Mrs Gazal unhesitatingly acknowledged that she has stayed only one night in her Woollahra apartment and that she goes there for a few hours a day when she can for respite from her responsibilities of caring for her mother, and to be alone.  She may eat dinner there and then return to the Bondi unit at night.  Mrs Gazal has furniture and personal possessions at Woollahra, including a micro-wave oven, TV, bed, clothes, crockery and a refrigerator.  She says that there would be no room for her to store these items in her mother’s house should she be forced to live there (Exhibit A7).   She sleeps every night at Bondi to care for her mother. 

14.     In the material Mrs Gazal sent to the Tribunal after the hearing (Exhibit 10), there is evidence that Mrs Gazal’s mother was going into respite care from 6 October 2004 to 26 October 2004 and during that period Mrs Gazal will be sleeping at Woollahra.

15.     Mrs Gazal desperately wants a home of her own, a place where no-one can go without her permission and where she can spend time.  In Woollahra she has found that place and considers it to be “her home”.

16.     I understand Mrs Gazal’s frustration with the Respondent’s view that her renting of a Woollahra apartment does not entitle her to continued rent assistance when she received that assistance for the storage facility for some years.  However, I must decide the matter according to the law.  I cannot make a decision on the basis of any sympathy I may have for Mrs Gazal’s circumstances.

CONCLUSIONS

17. Assuming that the NSW Department of Housing premises in James Street, Woollahra are Mrs Gazal’s principal home, she would not be entitled to rent assistance because the legislation specifically excludes rent paid for such premises (s 1064-D1(c) and s 13(1) and 13(5) of the Act).

18. The next question is whether Mrs Gazal may be entitled to rent assistance in respect of the unit in Mitchell Street, Bondi. Two issues arise. Does Mrs Gazal pay “rent” and, if she does, are those premises her “principal home” within the meaning of the Act?

19.     Mrs Gazal specifically denied paying rent for the Bondi property when giving her oral evidence. She pays half the bills for utilities such as telephone and electricity, for transport from Bondi to her Woollahra apartment and for the shopping except once every three months when she does a “big shop” for which her mother pays.    She makes no regular payment to her mother in the nature of rent.  On the evidence, I must conclude that Mrs Gazal does not pay “rent” in respect of the Bondi unit.

WHAT IS MRS GAZAL’S “PRINCIPAL HOME”?

20. Although not necessary for the decision in this matter, it may be of assistance to Mrs Gazal and the Respondent for me to express an opinion on whether the Woollahra or Bondi premises are her “principal home”. That expression is not defined in the Act, although there are definitions that relate to it in s 11(1), (5), (6) and (7) which are not of assistance here.

21.     The Respondent referred me to the decision of Deputy President Forgie in Secretary, Department of Family and Community Services v Kulshrestha (2003) AATA 227. The Deputy President referred to dictionary definitions of “home” and concluded “but, in the context in which it appears in the Act, it means 1. a house or other shelter that is the fixed residence of a person, a family or a household”.  She continued:

“The meanings ascribed to the word “principal” include “first or highest in rank, importance, value, … chief; foremost…Taken together a person’s principal home is the place of residence that is his or her chief or first and foremost residence”.

22.     Having considered the dictionary definitions and after referring to ReDi Primio and Secretary, Department of Social Security (1993) 31 ALD 233 and the quotation in that decision from Re Kirkman and Secretary Department of Social Security (1990) 20 ALD 400, the Deputy President concluded that:

“The place in which Dr Kulshrestha resides is 47 Braeside Avenue.  It is the place where he cooks, eats, sleeps, washes himself and his clothes and generally lives.  It is the place where he usually resides and it is the place that he regards as home.”

23.     The circumstances of the present case are different from those in Kulshrestha and the authorities to which the Deputy President referred.  In particular, Mrs Gazal identifies the Woollahra apartment as “her home” rather than the Bondi unit at which she spends more time.  The quotation in Di Primio from Re Kirkman includes a quotation from Wilcox J in Hafza v Director-General of Social Security (1985) 60 ALR 674 at 680-1. His Honour set out the following test for determining where “a person’s usual place of residence” was:

“Physical presence and intention will coincide for most of the time.  But few people are always at home … The test is whether the person has … a continuity of association with the place … together with an intention to return to that place and an attitude that that place remains ‘home”

24.     The Woollahra apartment provides storage for some of Mrs Gazal’s possessions and provides a sanctuary for her for a few hours when she is able to get there.   Applying the test in Hafza, Mrs Gazal has a continuity of association with both Bondi and Woollahra, an intention to return to both places but an attitude that Woollahra is “her home”. 

25.     It is useful to return to the decision of Koitaki Para Rubber Estates Ltd v Federal Commissioner of Taxation (1941) 64 CLR 241 at 249 where Williams J said:

“The place of residence of an individual is determined, not by the situation of some business or property which he is carrying on or owns, but by reference to where he eats and sleeps and has his settled or usual abode.”

26.     Applying that test and the meaning of “principal home” determined by Deputy President Forgie, I conclude that despite Mrs Gazal’s subjective belief that Woollahra is “her home”, on the facts, the Mitchell Road, Bondi unit is her “principal home”. While Mrs Gazal does sometimes eat a meal at the Woollahra apartment and spends time there when she can, she had only slept there one night at the time of the hearing.  She sleeps at Bondi, spends most of her time there, does the shopping for the home and cares for her mother there, for which she receives a carer allowance.  The fact that she will be sleeping at Woollahra during the period her mother is in respite care does not alter the fact that her principal home is the Bondi unit.  Once her mother returns to the Bondi unit, Mrs Gazal will resume her role as her carer.

27.     The Respondent has also taken the view that the Bondi unit is Mr Gazal’s principal home.

28.     Mrs Gazal was advised by the Authorised Review Officer (Exhibit T page 44) that if she provided evidence that she was paying rent for board and lodging to live in her mother’s house she should lodge that with Centrelink and her entitlement to rent assistance would be reassessed.  She did not do so and has not done so before the SSAT or this Tribunal. 

29.     Mr Larcombe at the hearing of this matter also stated that if Mrs Gazal were paying rent to her mother for the Bondi unit or to a private owner (not a government body) she may be entitled to rent assistance.

DECISION

30.     The decision of the Social Security Appeals Tribunal made on 27 April 2004 affirming the decision of an authorised review officer on 10 November 2003 which affirmed the cancellation of Mrs Gazal’s rent assistance from 23 October 2003, is affirmed.  Mrs Gazal’s application has been unsuccessful.

I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs Josephine Kelly, Senior Member

Signed: Guy Moloney           .....................................................................................

Associate

Date/s of Hearing  2 September 2004
Date of Decision  22 October 2004
Solicitor for the Respondent     James Larcombe