Ian Morrow and Secretary, Department of Social Services
[2013] AATA 857
[2013] AATA 857
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/2499
Re
Ian Morrow
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Dr P McDermott RFD, Senior Member
Date 2 December 2013 Place Brisbane The decision under review is affirmed.
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Dr P McDermott RFD, Senior Member
CATCHWORDS
SOCIAL SECURITY – Pensions, benefits and allowances – Rent assistance – Whether ‘ineligible homeowner’ – Not qualified to receive rent assistance – Application to Social Security Appeals Tribunal (SSAT) made more than 13 weeks after notice of decision of authorised review officer (ARO) – Decision affirmed
LEGISLATION
Land Title Act 1994 (Qld) s 184
Property Law Act 1974 (Qld) s 11
Social Security Act 1991 (Cth) ss 11, 11A, 13, 1070B, 1070CSocial Security (Administration) Act 1999 (Cth) s 152
CASES
Nullagine Investments Pty Ltd v Western Australian Club Inc (1993) 177 CLR 635
Re Secretary, Department of Employment and Workplace Relations and Mitchell (2006) 92 ALD 201
Secretary, Department of Employment and Workplace Relations v Vanderpluym (2007) 161 FCR 388
SECONDARY MATERIALS
Megarry and Wade, The Law of Real Property (5th ed, 1984)
REASONS FOR DECISION
Dr P McDermott RFD, Senior Member
2 December 2013
INTRODUCTION
Mr Ian Morrow (“the applicant”) has sought the review of a decision of Centrelink to reject his claim for rent assistance.
BACKGROUND
On 29 August 2007 the partner of the applicant (Sandra Morrow) became the registered owner of a property at Macleay Island as a tenant in common with a one third interest in the property. The other co-owners of the property are Douglas Morrow with a one third interest as a tenant in common, and Jon and Marnie Morrow as joint tenants inter se having a one third interest as a tenant in common. On 4 December 2009 a tenancy agreement was signed between the applicant as tenant and the registered co-owners of the property (including the partner of the applicant) as the lessor. The period of the tenancy agreement was for a term of 3 years which ended on 3 December 2012. The tenancy agreement initially provided for the payment of rent of $250.00 per week. The applicant stated that this rental amount was the amount which was paid by the previous tenant of the property. In June 2012 the tenancy agreement was purportedly amended by the deletion of the partner of the applicant as a lessor and by the reduction of the rent to $156.00 per week. The applicant stated that the reduction of the rent was effected to reflect the interests of the parties as he and his wife were renting the remaining two thirds of the property. The applicant currently pays $170 per week in rent.
PRIOR DECISIONS
On 20 May 2010 the Applicant was granted age pension with effect from 26 March 2010, this did not include any payment for rent assistance. On 20 June 2010 the applicant wrote a letter to seek reconsideration of the decision not to grant him rent assistance. The applicant claimed that he was qualified for rent assistance as he was leasing the interests in the property of the co-owners, other than his partner. On 12 July 2010 Centrelink advised the applicant that he was not qualified to receive rent assistance because he was an ‘ineligible homeowner’. On 30 August 2010 an Authorised Review Officer affirmed the decision. On 10 May 2013 the Social Security Appeals Tribunal (“SSAT”) also affirmed the decision. On 25 May 2013 the applicant made an application to this Tribunal to review the decision.
RELEVANT LEGISLATION
The legislation that I have to administer is the Social Security Act 1991 (Cth) (the Act) and the Social Security (Administration) Act 1999 (Cth) (the Administration Act). Section 1070B the Act provides that:
A person qualifies for rent assistance if the person satisfies:
(a) the common requirements set out in s 1070C of the Act; and
(b) any specific requirement, set out in a later section of this Division, applicable to the person's social security payment.
Section 1070C of the Act provides the “common requirements” to qualify a person to receive rent assistance, relevantly, paragraph (b) of that section provides the common requirement that the person must not be an ‘ineligible homeowner’.
Section 13 of the Act provides that an ‘ineligible homeowner’ is a homeowner other than one covered by certain exceptions in paragraphs (a) to (e) of that section, which have no relevance to this application.
Section 11(4)(b) of the Act provides that a person who is a member of a couple is a homeowner if:
(i) the person, or the person's partner, has a right or interest in one residence that is:
(A) the person's principal home; or
(B) the partner's principal home; or
(C) the principal home of both of them; and
(ii) the person's right or interest, or the partner's right or interest, in the home gives the person, or the person's partner, reasonable security of tenure in the home;
Section 11(1) of the Act provides that ‘reasonable security of tenure’ has the meaning given by s 11A(10) of the Act. Section 11A(10) of the Act provides that:
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.
DOES THE APPLICANT OR HIS PARTNER HAVE AN INTEREST IN THE PROPERTY?
There is no issue that at all material times the property at Macleay Island has been and continues to be the principal home of the applicant and his partner. There is also no issue that the partner has a one third interest in the property as a tenant in common, as evidenced by the extract from the Queensland Land Titles search that is in evidence.[1] The partner is a registered proprietor who under s 184 of the Land Title Act 1994 (Qld) holds an interest in the property. In Secretary, Department of Employment and Workplace Relations v Vanderpluym (2007) 161 FCR 388 at 402, Greenwood J remarked that the interest of a registered proprietor is an interest within the meaning of s 11(4)(b) of the Act. I accordingly find that the partner has an interest in the property as a tenant in common.
[1] Exhibit A, p. 26.
The applicant now asserts that he has an interest in the property. There is no disclosure that he has this interest in the letters dated 10 March 2010, 20 June 2010,
30 July 2010, and 6 September 2010 which have been sent to Centrelink.
On 11 September 2013 the applicant and his wife executed a document which confirms that at all times the applicant has a joint interest in the property with his partner.[2] This document which has been signed by his partner would certainly satisfy the formal requirements of s 11(1)(b) of the Property Law Act1974 (Qld). In Secretary, Department of Employment and Workplace Relations v Vanderpluym (2007) 161 FCR 388 at 402-403, Greenwood J remarked that an equitable interest in a property is an interest within the meaning of s 11(4)(b) of the Act. The applicant therefore has an interest in the property within the meaning of s 11(4)(b)(i) of the Act.
[2] Exhibit B.
ARE THE APPLICANT OR HIS PARTNER ‘INELIGIBLE HOMEOWNERS’?
Having found that the applicant and his partner both have an interest in the property,
I must now consider whether the applicant or his partner can be regarded as ‘ineligible homeowners’. It is not in dispute that the property is the principal home of the applicant and his partner within the meaning of s 11(4)(b)(i) of the Act, but do these interests give the applicant or his partner ‘reasonable security of tenure’ within the meaning of
s 11(4)(b)(ii) of the Act?
The applicant contends that his partner does not have ‘reasonable security of tenure’ in the property. The applicant primarily relies upon a document dated 10 September 2013 which is headed “Statement of the Facts and Intentions of the Parties” which has been admitted into evidence.[3] The applicant relies on the document to show that both he and his partner do not have ‘reasonable security of tenure’ in the home. The document is written in the first person by the applicant and it has been signed by the applicant and the registered proprietors of the property. The document contains the following statement: “My wife and I are aware that we must vacate the property if we cannot pay the rent including any increase that may occur from time to time. It is the intention and understanding of all parties that the lease will be enforced strictly on its terms” (Para 7).
[3] Exhibit B.
The applicant in his letter dated 20 June 2010 made the submission that “a Joint Tenant has an interest in the whole of the property whilst a Tenant in Common only has an interest in part of the property”.[4] However, in Nullagine Investments Pty Ltd v Western Australian Club Inc[5] Brennan J explained that a tenant in common has the right to occupy the whole of the property in common with other tenants in common. The partner of the applicant therefore has the right to occupy the whole of the property. I do not consider that the document which is headed “Statement of the Facts and Intentions of the Parties” is effective to deprive the partner of the applicant of her right as a tenant in common to occupy the property. The document contains the following statements at
Para 7:
My wife expressed concern as to what would happen if for some reason we found that we could not pay the rent as she was aware that our sons could simply not afford to allow us to live in the property on anything other than commercial terms. The matter was discussed and an agreement reached that we would rent our sons interests from them but strictly on commercial terms. Accordingly a formal lease was entered into to evidence this arrangement and on the clear understanding by all of us that we must comply with the terms of the lease or vacate the premises.
[4] Exhibit A, p. 63.
[5] (1993) 177 CLR 635 at 643. Brennan J cited with approval Megarry and Wade, The Law of Real Property (5th ed, 1984) p 422.
The document has been drafted on the assumption that the partner of the applicant has an obligation to pay rent. However, the tenancy agreement of the property does not list the partner of the applicant as being under any liability to pay rent. In fact the partner of the applicant was originally listed as one of the lessors and not as a tenant. The rental agreement does not reflect the arrangement that is mentioned in the document.
From the outset of the arrangement it is clear that only the applicant was a tenant, as the letter dated 10 March 2010 from the agent of the applicant to Centrelink states the applicant pays rent to the owners. In that letter it is also stated:[6] “This property is owned by Sandra Morrow (1/3), Jonathan and Marnie Morrow (1/3), and Douglas Morrow (1/3). A rental tenancy agreement is attached to indicate the $250 per week rent which is paid by Ian to the owners”. There is no suggestion in this letter that the partner of the applicant is a tenant or has any liability to pay rent. Even after the rental agreement was amended to delete the partner of the applicant as a lessor, there was no amendment which made the partner of the applicant a tenant.
[6] Exhibit A, p. 29.
I therefore find that the partner of the applicant has reasonable security of tenure in the property. I find that the applicant and his partner are both an ‘ineligible homeowner’ under s 13 of the Act and for that reason the applicant is not qualified to receive rent assistance.
PAYMENT OF ARREARS OF RENT ASSISTANCE
I consider that the applicant is not qualified to receive rent assistance. Therefore in all strictness it is not necessary to consider if the applicant can be paid arrears of rent assistance from 26 March 2010. The applicant was given notice of the decision that he was not qualified to receive rent assistance on 30 August 2010. It was not until 22 March 2013 that the applicant applied to the SSAT for the review of that decision. The applicant explained that the delay in lodging an appeal against the decision was because of health issues caused by stress. The applicant has submitted: ‘If for example a discretion could be applied to allow for payment to apply from the initial date of the application I would ask that we be dealt with favourably’. However, social security law does not confer any such discretion upon this Tribunal. Under s 152(4) of the Administration Act if a person is given written notice of a decision under social security law and that person applies to the SSAT more than 13 weeks after the notice was given for review of the decision and the effect of the decision of the SSAT is to direct the making of a social security payment then that decision will take effect on the day on which the application was made to the SSAT for review of the decision. There is Presidential authority from this Tribunal that
s 152(4) of the Administration Act applies to decisions of this Tribunal.[7] If the applicant was qualified to receive rent assistance, he could only be paid arrears of rent assistance from 22 March 2013. However, as I mentioned earlier, I do not consider that the applicant is entitled to receive rent assistance.
[7] Re Secretary, Department of Employment and Workplace Relations and Mitchell (2006) 92 ALD 201.
CONCLUSION
The decision under review is affirmed.
I certify that the preceding 18 (eighteen) paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott RFD, Senior Member ........................[Sgd]................................................
Associate
Dated 2 December 2013
Date of hearing 13 November 2013 Advocate for the Applicant Mr Brian Lawson Solicitor for the Respondent Mr Nick Warren, Departmental Advocate
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