HZDW and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2013] AATA 66
[2013] AATA 66
| Division | GENERAL ADMINISTRATIVE DIVISION |
| File Number | 2012/3846 |
| Re | HZDW |
| APPLICANT | |
| And | Secretary, Department of Families, Housing, Community Services and Indigenous Affairs |
| RESPONDENT |
DECISION
| Tribunal | Regina Perton, Member |
| Date | 14 January 2013 |
| Date of written reasons | 13 February 2013 |
| Place | Melbourne |
For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal affirms the decision under review.
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Regina Perton, Member
SOCIAL SECURITY – whether applicant homeowner for the purposes of the assets test – whether a social security recipient living on a boat is a homeowner – decision affirmed
Social Security Act 1991 ss 11(1), 11(4), 11A(10), 13(1)(e), 117, 1064
Grant Alexander Millar Johnston and Repatriation Commission [1994] AATA 154
Koch and Department of Family and Community Services [2002] AATA 407
Re Drake and Minister for Immigration and Ethnic Affairs (no 2) (1979) 2 ALD 634
Re Robert Dickeson and Secretary to the Department of Social Security [1989] AATA 190
Rozel Delos Reyes and Secretary, Department of Social Security [1993] AATA 384
Wharton and Secretary, Department of Families, Housing, Community Service and Indigenous Affairs [2010] AATA 162
REASONS FOR DECISION
Regina Perton, Member
13 February 2013
The Tribunal provided oral reasons for its decision at a hearing of this application on 15 January 2013. The applicant subsequently requested written reasons for decision. The reasons for the Tribunal’s decision are set out below.
Assets held by a social security recipient are taken into account in determining the level of benefit paid to him. The place of residence of a recipient is generally exempt from the assets test. A property owned by a social security recipient, in which he does not live, is taken into account in calculating his assets. If there is a mortgage over the property, the value of the property for the purposes of the assets test is reduced by the amount owing. The respondent, for whom Centrelink administers social security benefits, arranges for the revaluation of properties from time to time to determine if a recipient’s assets are above a permitted asset threshold below which there is no impact on entitlements. Once the asset value exceeds the threshold, the amount payable to the recipient is reduced until it cuts out entirely at a prescribed figure. The threshold figure is adjusted every six months.
HZDW has been receiving disability support pension (DSP) for many years. He owns a house in Melbourne. He lives on a boat in a warm climate outside Australia. He has been doing so for several years, returning to Australia for short periods. HZDW is entitled to ongoing DSP because he was receiving DSP before 2000 when amendments were introduced that limited portability for those commencing DSP after that time. With limited exceptions, payments while a person is overseas are now restricted to a maximum of six weeks.
In May 2011 Centrelink reassessed HZDW’s status, changing his status from a non-homeowner to a homeowner. This decision was based on Centrelink’s determination that HZDW lives on his boat and has reasonable security of tenure on the vessel. This decision did not have an immediate effect on HZDW’s DSP payment as he fell below the assets threshold limit based on the then attributed value of his house of $300,000 less a mortgage of $102,000.
In September 2011 Centrelink initiated a revaluation of HZDW’s property. Its value was determined as $410,000. A mortgage of $102,000 lowered the asset value. His minimal additional assets resulted in HZDW being assessed as having assets of $309,000 for the purposes of the assets test. This resulted in his DSP being reduced. A single non-homeowner is allowed considerably more assets than a homeowner before it affects his pension.
An authorised review officer (ARO) affirmed the decision that HZDW is a homeowner with assets of $309,000 on 24 April 2012 as did the Social Security Appeals Tribunal (SSAT) on 23 July 2012. On 10 August 2012 HZDW lodged an application with this Tribunal.
HZDW is not challenging the valuation made in September 2011. However he is challenging Centrelink’s classification of him as a homeowner and the consequent decision to lower his DSP entitlement. HZDW is of the view that he is not a homeowner as he lives on a boat which is not on land. Centrelink does not agree.
RELEVANT LEGISLATION
Sections 117 and 1064 of the Social Security Act 1991 (the Act) set out the manner in which the rate of DSP to which a qualified person is entitled. Section 1064-G3 of the Act sets out the assets value limit. As at 14 September 2011, the asset value for a single person was $186,750 if he was a homeowner and $321,750 if he was a non-homeowner.
Section 11(1) of the Act sets out relevant definitions for the purposes of the assets test.
asset means property or money (including property outside Australia).
…
reasonable security of tenure has the meaning given by subsection 11A(10)
Subsection 11(4) of the Act sets out the meaning of the term homeowner:
11(4) For the purposes of this Act:
(a) a person who is not a member of a couple is a homeowner if:
(i) the person has a right or interest in the person's principal home; and
(ii) the person's right or interest in the home gives the person reasonable security of tenure in the home;…
Subsection 11A(10) of the Act is as follows:
Reasonable security of tenure
(10) If a person has a right or interest in the person’s principal home, the person is to be taken to have a right or interest that gives the person reasonable security of tenure in the home unless the Secretary is satisfied that the right or interest does not give the person reasonable security of tenure in the home.
Section 13(1)(e) of the Act, which concerns rent assistance specifically mentions the possibility of a person’s principal home being a vessel which has been moored.
The Guide to Social Security Law contains policy guidelines to assist with determinations under social security legislation. Decision makers should generally apply policy such as the guide unless the policy is unlawful or its application produces an unjust result in the circumstances of a particular case (Re Drake and Minister for Immigration and Ethnic Affairs(no 2) (1979) 2 ALD 634). The Tribunal is satisfied that the guide reflects the legislation and its intent.
Part 4.6.3.20 of the Guide concerns whether a person is a homeowner or a non-homeowner.
4.6.3.20 Determining Homeowners & Non-Homeowners
…
Definition of a homeowner
A homeowner is an income support recipient who has, or whose partner…has:
•a right or interest in the place they occupy, AND
•the right or interest gives them reasonable security of tenure.
Examples: An income support recipient is a homeowner if they are living in:
•a home owned or partly owned by themselves or their partner, OR
•a home to which they have legal title, OR
•a home which is owned by a company … AND the company gives the income support recipient reasonable security of tenure in the home,
•a campervan, caravan, transportable home or boat owned or partly owned by themselves or their partner…
IS HZDW A HOMEOWNER?
There is no disagreement between the parties that HZDW lives on a boat that he owns and has done so for many years. The boat is sometimes moored and at other times at anchor. HZDW puts the value of the boat at $10,000. He returns to Australia for short visits from time to time. His most recent departure from Australia was in May 2011.
HZDW submits that he can only be considered a homeowner if he has tenure in real property. He cited several cases including Grant Alexander Millar Johnston and Repatriation Commission [1994] AATA 154, Koch and Department of Family and Community Services [2002] AATA 407 and Rozel Delos Reyes and Secretary, Department of Social Security [1993] AATA 384 as authorities for his submission. These cases involved disputes as the nature of the applicants’ interests in houses in which they lived.
HZDW put particular emphasis on a passage set out at paragraph 18 by Deputy President Forrest in Delos Reyes which concerned rent assistance being available to a person who no longer had claim to the former marital property, except as a tenant:
The first question for consideration is whether the applicant has a "right or interest" in the principal home: S. 11(4)(a)(i). The expression "right or interest" is not defined in the Act. For the purposes of the provision I consider a right or interest in the principal home to be synonymous with a right or interest in real property. It if were otherwise I think it would give a meaning to homeowner not contemplated by the provision.
HZDW submitted that as his boat is not on land and is not real property, he cannot be considered as a homeowner for the purposes of the Act.
The respondent submitted that as HZDW is the owner of the yacht on which he lives, he has reasonable security of tenure for the purposes of s 11(4) of the Act. The respondent also cited a number of AAT cases in which reasonable security of tenure was the issue in premises other than a house. These included Wharton and Secretary, Department of Families, Housing, Community Service and Indigenous Affairs [2010] AATA 162 which concerned another person living on a boat who was determined to have reasonable security of tenure. In Re Robert Dickeson and Secretary to the Department of Social Security [1989] AATA 190, the applicant lived in a shed:
27. The words "home", "house", "residence" and "domicile" have all been extensively considered by the Courts, but derive their meaning only by reference to a particular subject whether it be Taxation, Family Law, Tenancy, Customs, Probate, or Social Welfare.
28. In assessing the criteria of what constitutes a "home" a substantial degree of occupation is persuasive (Herbert v Byrne (1964) 1 AE 882) whereas conversely occupation by occasional visiting is not (Beck v Scholz (1953) 1 AE 814), and living away from the family home in other premises causes the family home to no longer be the principal home (Samek v Department of Social Security (1979) 9 AAR 355). A "home" is likely to be a place where persons ordinarily eat, morning and night, and where they sleep, and in the case of adults have the characteristics of permanency (Todd v Nichol (1957) 1 SASR 72). It is a concept in nature and "it is the place where the centre of gravity of one's domestic life is to be found" (Geothermal Energy N.Z. Ltd v Commissioner of Inland Revenue (1979) 2 NZLR 324). Where one chooses to live is relevant (Hyland v Hyland 18 FLR 461 and a reference to a "home" requires an affinity to its location and usage by the occupier (Inland Revenue Commissioners v Lysaght (1928) AE 575 and Koitaki Para Rubber Estates Ltd v Federal Commissioner of Taxation [1941] HCA 13; 64 CLR 241. A home need not be a structure of four walls and a roof, but may be constituted by a caravan (Helsham v Repatriation Commission (N85/492, Decision No 2741) or a campervan (Buchanan v Repatriation Commission, V89/50, decision 14 July 1989) or a yacht (Re Koitaki Para Rubber Estates Ltd ibid).
As indicated above, HZDW acknowledges that he lives on his boat. He owns that boat. The Tribunal is satisfied that HZDW has reasonable security of tenure in relation to the boat on which he has lived for many years. HZDW has lived on his boat for many years and has rented out the property he owns in Melbourne. The increase in value of that property and his classification as a homeowner by virtue of his principal place of residence being his boat led to the consequent decrease in HZDW’s pension and the dispute before the Tribunal.
The Tribunal does not accept that a person must live on land to be considered a homeowner. The Act contemplates that a person who has reasonable security of tenure in their choice of accommodation is classed as a homeowner. The Tribunal finds that HZDW is classified as a homeowner for the purposes of the Act.
As HZDW is a homeowner his assets must be considered under the relevant amount for a single homeowner.
DECISION
For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal affirms the decision under review.
| I certify that the preceding 23 (twenty -three) paragraphs are a true copy of the reasons for the decision of Regina Perton, Member. |
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Administrative Assistant Legal
Dated 13 February 2013
| Date of hearing | 14 January 2013 |
| Applicant | On phone |
| Advocate for the Respondent | Mr M Hester |
| Solicitors for the Respondent | Department of Human Services Legal Division |
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