Kinsey, R. v Secretary to the Department of Social Security

[1990] FCA 246

Re: RUTH KINSEY
And: SECRETARY TO THE DEPARTMENT OF SOCIAL SECURITY
No. V G299 of 1989
FED No. 246
Administrative Law
20 ALD 14

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Gray J.(1)

CATCHWORDS

Administrative Law - social security - carer's pension - provision of care "in a home of the person and of the other person" - whether house or flat together constituted one home - failure of tribunal to consider whether flat alone was a home of both persons.

Words and phrases - "home" - "a home of the person and of the other person".

Social Security Act 1947 s. 39

Administrative Appeals Tribunal Act 1975 s. 44

HEARING

MELBOURNE

#DATE 5:6:1990

Counsel for the applicant: G. Maguire

Solicitors for the applicant: Morrison and Teare by their town

agents Bullards

Counsel for the respondent: C. Gunst

Solicitors for the respondent: Australian Government Solicitor

ORDER

1. The appeal is allowed.

2. The questions of law are answered as follows:

(1) the Administrative Appeals Tribunal did not err in deciding that the house at 32 Gray St Numurkah and the flat at 3/17 Callander St Numurkah together did not constitute a home of the applicant and her daughter Megan.

3. The decision of the Administrative Appeals Tribunal is set aside.

4. The matter is remitted to the Administrative Appeals Tribunal to be heard and decided again, by determination of the question whether the flat at 3/17 Callander St Numurkah by itself constituted a home of the applicant and her daughter Megan, with or without the hearing of further evidence, as the Tribunal may see fit.

5. The respondent pay the applicant's costs of the appeal.

Note: Settlement and entry of orders is dealt with by 0.36 of the Federal Court Rules.

JUDGE1

The applicant appeals from a decision of the Administrative Appeals Tribunal. On 8th September 1989, the Tribunal decided that the applicant was not entitled to a carer's pension, pursuant to s.39 of the Social Security Act 1947. The relevant parts of that provision are as follows:

"39(1) Subject to this Part, where-

(a) a person (not being a person who is receiving an age pension, an invalid pension or a wife's pension) personally provides constant care and attention for another person in a home of the person and of the other person;

(b) the other person is a severely handicapped person who-

(i) is an age pensioner or an invalid pensioner; ....

the person is qualified to receive a carer's pension."

1. The facts found by the Tribunal indicate that the applicant's situation was most distressing. She and her husband had a twenty-eight year old daughter, Megan. When she was eighteen, Megan developed mental illness. She married in 1981 and her daughter (the applicant's granddaughter), Alison, was born in 1982. Megan's husband suffered severe injury in an accident, following which Megan suffered a complete mental breakdown, requiring hospitalisation on several occasions. She became incapable of caring for herself and for Alison. She was in receipt of an invalid pension. There is no dispute that she was a severely handicapped person, for the purposes of s.39(1).

2. Prior to 30 May 1988, Megan, her husband and Alison lived in the same house as that occupied by the applicant and her husband. That house is situated on the corner of Gray Street and Callander Street, Numurkah, and is known as no. 32 Gray Street. It was owned by the applicant and her husband. The applicant was able to provide care for Megan and Alison in that house and received a carer's pension. Unfortunately, that arrangement did not work, partly because the applicant's husband also suffers from a form of mental illness.

3. The family considered extending the house but rejected that, because it would have involved demolition of a carport and a shed. They considered selling and moving to more convenient premises. Then the flat next door became available and was purchased in the name of Megan and her husband. Part of the purchase price was raised by a loan, secured by a mortgage of the house at 32 Gray Street.

4. The flat has a frontage onto Callander Street and is built on land contiguous with the land on which the house is built. Its address is Flat 3, 17 Callander Street. Part of a dividing fence was removed and a path was established between the two dwellings. An intercom was also installed.

5. The applicant provided care for her own husband and for Megan and Alison in both buildings. On two or three nights a week, she slept in the flat in Alison's bedroom. On other nights, she slept in the house. She took breakfast in whichever place she had slept. The other meals were eaten in either the house or the flat. The applicant did the housework in both the house and the flat, and the laundry for both. The land surrounding the two dwellings was used by the three generations of the family.

6. On 30 May 1988, the applicant advised the Department of Social Security of these arrangements. After investigation, the applicant's carer's pension was cancelled on 15 August 1988. The applicant appealed to the Social Security Appeals Tribunal, which recommended that the decision be reversed. On 15 December 1988, a delegate of the Secretary to the Department affirmed the decision to cancel the carer's pension, on the ground that the applicant did not provide care "in a home of the person and of the other person".

7. The applicant sought review of that decision by the Administrative Appeals Tribunal. The Tribunal considered the question whether the house and the flat together could constitute one home, which was the home of both the applicant and Megan. The learned Senior Member who constituted the Tribunal held that the two dwellings could not constitute one home, and affirmed the decision of the delegate of the Secretary to the Department of Social Security. It is from that decision of the Administrative Appeals Tribunal that the applicant appeals.

8. An appeal of this nature can only be on a question of law. See s. 44(1) of the Administrative Appeals Tribunal Act 1975. The questions of law set out in the amended notice of appeal are as follows:
   

(a) Did the applicant occupy a "home of the person and of the other person" within the meaning of s. 39(1) of the Act?

(b) What is the proper meaning to be given to the phrase "a home of the person and of the other person" as set out in s.39(1) of the Act?

(c) Does the occupation of two homes by the applicant and by a person for whom the applicant provides care constitute occupation by the applicant of "a home of the person and of the other person" as set out in s.39(1) of the Act?

(d) Does the occupation of two premises by the applicant and by a person for whom the applicant provides care constitute occupation by the applicant of "a home of the person and of the other person" as set out in s.39(1) of the Act?

(e) What are the matters required to be established by an applicant to establish that premises occupied by the applicant and by a person for whom the applicant of "a home of the person and of the other person" within the meaning of s.39(1) of the Act?

The last of these questions would involve the giving of an advisory opinion, without reference to particular facts, and is plainly outside the jurisdiction of the Court. Similarly, question (b) travels beyond the particular facts of the case, and seems to call for some sort of general construction of the relevant provision. Question (a) raises questions of fact. Only questions (c) and (d) are directed towards the particular facts of the case, but they are expressed in a somewhat limited fashion. The real question is whether, in deciding that the applicant did not provide constant care and attention for Megan in a home of the applicant and of Megan, the learned Senior Member misdirected herself in law.

1. Both in the Tribunal and before the Court, reference was made in argument to various decisions in which the meaning of the word "home" had been in issue, and to the tests propounded in such cases for determining the meaning of that word. One group of such cases was a group in which the question was whether a person may have more than one home at one time. See Langford Property Co. Ltd. v. Tureman (1949) 1 KB 29, Beck v. Scholz (1953) 1 QB 570, Herbert v. Byrne (1964) 1 WLR 519 and Re Y. (Minors) (1985) Fam 136. In general, those cases were concerned with the question whether the degree of occupation of one set of premises, coupled with the intention to occupy it as a home, was sufficient to make it a home of the person concerned. These cases were therefore unhelpful in determining the question with which the Tribunal concerned itself in the present case, namely whether the house and flat together constituted one home.

2. Also unhelpful were cases concerned with the location of a person's residence, for taxation purposes. An example of these cases is Geothermal Energy New Zealand Ltd v. Commissioner of Inland Revenue (1979) 2 NZLR 324, in which there is a discussion as to whether a person's home might be in a place where he or she owned a residential property, although for reasons connected with work he or she was absent from that property for an extended period. There can be no doubt that, in the present case, the applicant's home was in Numurkah. Far from being absent from that home for any length of time, she was tied to it by the need to care for the other members of her family. This conclusion, however, cannot assist in deciding the question with which the Tribunal dealt.

3. Reference was also made to the dictum of Williams J. in Koitaki Para Rubber Estates Ltd. v. Federal Commissioner of Taxation (1941) 64 CLR 241, at p 249, to the effect that a person may reside in hotels or on a yacht, to the decision of the Tribunal in Re Dickeson and Secretary, Department of Social Security (1989) 10 AAR 488, in which the question was whether a shed was a home, and to Re Clarkson and Secretary, Department of Social Security (1988) 15 ALD 424, in which Deputy President Layton held that two people whose marriage had been dissolved were living in the same home, when they were sharing parts of that home, although occupying other parts of it separately. Again, apart from some comments in these cases, they are not helpful. One comment that may be of assistance is in para (43) of Re Clarkson as follows:
   

"To give a simple illustration: the "former matrimonal home" may have comprised the main house with a self-contained "granny flat" at the rear of the house. Following separation, one spouse (the pensioner claimant) may continue to reside in the main house and the former spouse may reside in the "granny flat". In that example the pensioner is living in part of the former matrimonial home; likewise the spouse is also living in part of the former matrimonial home, but they are not residing in the "same home". The structures and area of the matrionial home in which each resides are different; they are not the same."

1. Finally, in Re Rayner (1928) 23 Tas L R 41, there was some discussion as to what a testator meant by the expression "the home". Nicholls C.J. reached the conclusion that, in that case, the expression meant the house and the land on which it stood, with all furniture and implements used therewith.

2. In none of these cases is there any indication that separate buildings, on land in separate titles and under different ownership can together constitute one home. In my view, it would be necessary to stretch the meaning of the expression "home" to include such a situation. Nothing about the language of s.39 of the Act compels the conclusion that any departure should be made from the ordinary meaning of the word. The concept of a home is a nebulous one to some extent but is difficult to apply to two separate dwellings, each with its own facilities complete, owned and occupied by separate family groups, simply because there is ease of access between them and one person performs household duties, sleeps and eats in both. I am therefore of the view that the learned Senior Member applied the law correctly in reaching the conclusion which she reached on the question with which she dealt.

3. An alternative submission put to the Tribunal was that the house at 32 Gray Street and the flat at 17 Callander Street were two separate homes, but that each of them was a home of the applicant. The Tribunal did not deal with this argument at all. As the first group of cases to which I have referred shows, it is possible for a person to have more than one home. Nothing in s.39(1) of the Act seems to preclude the recipient of a carer's pension from having more than one home, so long as that recipient provides care for another person in a home which is both the ome of the recipient and of the person for whom care is provided. In my view, the Tribunal erred in law in failing to determine whether the flat at 17 Callander Street, by itself, was a home of the applicant and of Megan. The findings of fact made by the Tribunal do not enable this question to be determined on appeal. It is necessary for the matter to be returned to the Tribunal for a determination of this question.

4. the appeal will therefore be allowed, and the matter will be remitted to the Tribunal for the determination of the question whether the flat at 17 Callander Street, Numurkah was a home of the applicant and of her daughter Megan, for the purposes of 2.39(1) of the Act. The respondent should pay the applicant's costs of the appeal.