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

[2011] AATA 130

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 130

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No. 2010/4457

GENERAL ADMINISTRATIVE DIVISION		)
Re		Michael jones

Applicant

And secretary, Department of Families, housing, community services and indigenous affairs

Respondent

DECISION

Tribunal Ms N Isenberg, Senior Member

Date28 February 2011

PlaceSydney

Decision The decision under review is affirmed.

..................[SGD]............................

Ms N Isenberg

Senior Member

CATCHWORDS

SOCIAL SECURITY – Rent assistance – disability support pension – person’s principal home

Social Security Act 1991 (Cth) ss 13(2), 23(1)

Re Samek and Secretary, Department of Social Security (1988) AATA 684.

Re Secretary, Department of Family and Community Services and Kulshrestha [2003] AATA 227

Secretary, Department of Family and Community Services v Laurent (2003) 132 FCR 211

REASONS FOR DECISION

28 February 2011 Ms Naida Isenberg, Senior Member

DECISION UNDER REVIEW

1.      The Applicant, Michael Jones, seeks review of the decision of the Social Security Appeals Tribunal dated 7 September 2010, affirming Centrelink’s decision to increase his rate of disability support pension to include rent assistance from 29 April 2010 and not from an earlier date.

BACKGROUND

2.      Mr Jones began receiving disability support pension on 18 September 1986.

3.      In 2008 Mr Jones purchased a mobile home located at Ettalong Beach and notified Centrelink of the purchase on 5 February 2008 by completing a Income and Assets update form.  Attached to the form was a statement by Mr Jones informing Centrelink that he would not be living at the property because bail conditions required him to live at his mother’s residence in Empire Bay.

4.      Mr Jones remained at his mother’s until he was incarcerated at the Metropolitan Remand Centre, Silverwater on 27 April 2009, with a release date of 4 January 2010.  Subsequent to this, Centrelink suspended his disability support pension on 28 April 2009.  As a condition of his parole he was again required to live with his mother.

5.      On 31 December 2009 Mr Jones re-claimed disability support pension and Centrelink reinstated the payment.  His recorded address with Centrelink was his mother’s residence from 4 October 2002 until 31 December 2009.

6.      Mr Jones moved to his mobile home and advised Centrelink of a change of address on 29 April 2010.  Centrelink advised him on 30 April 2010 that his disability support pension payment would now include a rent assistance amount.

7.      Mr Jones requested a review of the decision to pay rent assistance.  The decision was affirmed by an authorised review officer.  Mr Jones’ application to the Social Security Appeals Tribunal was also unsuccessful.

LEGISLATION

8. Part 3.7 of the Social Security Act1991 (Cth) (the Act) deals with qualification for rent assistance generally. Rent assistance is not defined under s 23(1) of the Act as a social security payment, entitlement or benefit.

9.Section 13(2) of the Act relevantly 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

…

(v)for the use of a site for:

(A)      a caravan or other vehicle;

(B)      a structure;

occupied by the person as the person’s principal home;

(Original emphasis)

ISSUE

10.     Should rent assistance be paid to Mr Jones prior to 29 April 2010?

CONSIDERATION

11.     Mr Jones’ case initially was that he should be paid rent assistance from 11 February 2008, when he purchased the mobile home and commenced paying site fees.  He relies on the fact that he was not able to live in the property until April 2010 because of his bail and, later, parole conditions. 

12.     In his evidence he conceded that he was not entitled to any Centrelink benefits while in gaol: s 1158(a).  In Secretary, Department of Family and Community Services v Laurent (2003) 132 FCR 211 the Court held that rental assistance was, in effect, an add-on benefit and not a benefit in its own right. Therefore, if there is no entitlement to a social security payment, such as disability support pension, then there can be no entitlement to rental assistance.

13.     Mr Jones’ contention at the hearing was therefore limited to the period before he went to prison and after his release; i.e. when he was entitled to disability support pension.

14.     In his evidence Mr Jones conceded that he did not live at the property prior to his arrest, although he had moved furniture and other household items into the property.  This is not a matter where Mr Jones used the mobile home as his principal home and that use was interrupted by incarceration, because Mr Jones was, prior to his arrest, not using the mobile home as his principal home.  If Mr Jones had lived in the mobile home and it had become his principal home prior to incarceration, this matter may have been problematic because a residence can continue to be a person’s principal home despite travel or temporarily absence from it: Re Samek and Secretary, Department of Social Security (1988) AATA 684.

15.     Similarly Mr Jones on his release on bail and later on parole, said he visited the property to ensure it was safeguarded, but did not move his personal items and actually take up residence until 29 April 2010, when he persuaded the Probation and Parole Service to revoke the requirement that he live with his mother.  While in prison he had his daughter check on the place and use his credit card to pay the site fees. 

16.     A person’s principal home is the place where a person cooks, eats, sleeps, washes themselves and their clothes and generally lives.  It is the place a person usually resides and the place that the person regards as home: Re Secretary, Department of Family and Community Services and Kulshrestha [2003] AATA 227. Mr Jones lived with his mother from 4 October 2002 until 29 April 2010, apart from his imprisonment. His mobile home cannot be considered as his principal place of residence until he actually lived there, as distinct from when he began to pay site fees.

DECISION

17.     The decision under review is affirmed.

I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member.

Signed: ................................[SGD].....................................................
             N. Olson, Associate

Date of Hearing  18 February 2011
Date of Decision  
Solicitor for the Applicant          Unrepresented
Solicitor for the Respondent     Ms G Heggen, Centrelink Advocacy Branch