Miller v Commissioner for Social Housing - [2017] ACAT 10

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

MILLER v COMMISSIONER FOR SOCIAL HOUSING (Administrative Review) [2017] ACAT 10

AT 45/2016

Catchwords:	ADMINISTRATIVE REVIEW – social housing – rent rebate – Centrelink income – Perpetual Income Confirmation Consent – earlier rental rebate revoked – date of effect of rent rebate – Discretion – unusual or out of the ordinary circumstances at date of review – lessor public authority – human rights – relevance of tenant’s right to protection from arbitrary interference with home in exercise of discretion – breach of tenant’s right to not have home arbitrarily interfered with – rent rebate backdated
Legislation cited:	ACT Civil and Administrative Tribunal Act 2008 s 68 Charter of Human Rights and Responsibilities Act 2006 Housing Assistance Act 2007 ss 6, 9, 18, 19, 21, 22 Human Rights Act 2004 ss 12, 28, 30, 40, 40B Legislation Act 2001 ss 43, 139 Residential Tenancies Act 1997, cl 26
Subordinate Legislation cited:	Housing Assistance Public Rental Housing Program (2013) cl 9, 11, 25, 31, 32 Housing Assistance Public Rental Housing Assistance Guideline (Rent Rebate) Operational Guideline 2008 (No 1 ) cl 8 Rental Rebate Policy
Cases cited:	Castles v Secretary, Department of Justice [2010] VSC 310 Commissioner for Social Housing in the ACT v “A” [2015] ACAT 13 Commissioner for Social Housing in the ACT v Jones [2016] ACAT 75 Director of Housing v Sudi [2010] VCAT 328 Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 Hakimi v Legal Aid Commission (ACT); the Australian Capital Territory (Intervener) [2009] ACTSC 48 McKinnon v Secretary, Department of the Treasury (2006) 228 CLR 423 Minister for Immigration and Ethnic Affair v Pochi [1980] FCA 85 Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31 PJB v Melbourne Health & Anor [2011] VSC 327 (Patrick’s Case) Shi v Migration Agents Registration Authority [2008] HCA 31 Zhang & Anor v Commissioner for Social Housing in the ACT [2015] ACAT 46

Tribunal: Presidential Member E Symons

Date of Orders: 20 February 2017

Date of Reasons for Decision: 20 February 2017

AUSTRALIAN CAPITAL TERRITORY )

CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 45/2016

BETWEEN:

ERIN MILLER

Applicant

AND:

COMMISSIONER FOR SOCIAL HOUSING

Respondent

TRIBUNAL: Presidential Member E Symons

DATE: 20 February 2017

ORDER

The Tribunal orders that:

Pursuant to section 68 of the ACT Civil and Administrative Tribunal Act 2008 the decision under review dated 29 June 2016 is set aside and the Tribunal substitutes the decision that the date of effect of the applicant’s rent rebate granted on 22 March 2016 is 14 November 2015.

………………………………..

President G Neate AM

Delivered for and on behalf of the Tribunal

REASONS FOR DECISION

Introduction

Erin Miller (the applicant) entered into a residential tenancy agreement dated 15 June 2004 with the Commissioner for Social Housing (the respondent) pursuant to which she leased residential premises in Richardson (the premises).
The applicant was in receipt of a Newstart Allowance. She also received a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] ACAT 10
Decision Date: 20 February 2017

CaseChat Overview and Summary

In Miller v Commissioner for Social Housing, the applicant sought an administrative review of the Commissioner's decision to deny her request to backdate the commencement of her rent rebate for public housing. The applicant argued that the Commissioner had discretion to backdate the rebate under the Housing Assistance Act 2007 and Housing Assistance Public Rental Housing Assistance Program (Rent Rebate) Operational Guideline (2008) (No. 1). The Commissioner had previously revoked the applicant's earlier rent rebate on 14 November 2015 and granted a new rebate on 22 March 2016. The applicant argued that the rebate should have been backdated to 14 November 2015 to prevent a gap in the rebate. The Commissioner argued that the legislation did not provide for backdating of the rebate.

The main legal issues were whether the Commissioner had discretion to backdate the rebate under the legislation and whether the Commissioner's decision not to backdate the rebate breached the applicant's human rights. The Tribunal found that while the legislation did not expressly allow for backdating of the rebate, the Commissioner did have inherent discretion to backdate the rebate in unusual circumstances. The Tribunal considered the applicant's circumstances to be unusual and found that the Commissioner had breached the applicant's right to protection from arbitrary interference with her home by not backdating the rebate. The Tribunal therefore set aside the Commissioner's decision and ordered that the rebate be backdated to 14 November 2015.

Orders

Orders of the court

Pursuant to section 68 of the ACT Civil and Administrative Tribunal Act 2008 the decision under review dated 29 June 2016 is set aside and the Tribunal substitutes the decision that the date of effect of the applicant’s rent rebate granted on 22 March 2016 is 14 November 2015.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

On 29 June 2016 the respondent advised the applicant that he had accepted the HATRP recommendation and that her Second Level review request to backdate the effect of the grant of rent rebate had been unsuccessful (the review decision). On 28 July 2016 Canberra Community Law, on behalf of the applicant, lodged with the tribunal an application for review of the review decision. The order sought by the applicant was “Backdate of rental rebate to date it expired.” The parties complied with the tribunal’s directions in relation to the filing of material. The applicant filed the following documents:(a)statement of facts and contentions dated 4 October 2016;(b)witness statement of Erin Miller dated 4 October 2016;(c)reply dated 4 November 2016; and(d)further submissions in reply dated 9 December 2016. The respondent filed the following documents:(a)statement of reasons on 29 August 2016;(b)submissions dated 27 October 2016; and(c)further submissions dated 29 November 2016. At the hearing on 14 December 2016 Ms Kucherova, solicitor with Canberra Community Law, appeared for the applicant and Ms Storey, solicitor with the ACT Government Solicitor, appeared for the respondent. At the commencement of the hearing the parties reached agreement that the amount of rent arrears for the period between the cancellation of the previous rent rebate, 14 November 2015, and the commencement of the grant of rebate the subject of this hearing, 22 March 2016, is $6,507 and if the rent rebate is backdated to 14 November 2015 then the applicant is in credit in the amount of $1,603 with her rent payments. At the hearing the applicant gave evidence via video link and was cross examined. After hearing submissions from the applicant and the respondent the Tribunal made orders in relation to the parties’ filing written closing submissions and reserved its decision. This is the Tribunal’s decision. Broadly, the application for and the provision of rent rebates for public housing tenants is regulated by the Housing Assistance Act 2007 (HA Act). The Commissioner for Social Housing is established by section 9 of the HA Act. Section 9 provides:9 Housing commissioner—establishment(1) There is a Commissioner for Social Housing (the housing commissioner).(2) The housing commissioner is a corporation and must have a seal.(3) The director‑general is the housing commissioner. Part 4 of the HA Act refers to housing assistance programs. Section 18 of the HA Act sets out what is a housing assistance program, and includes (a) the kind of assistance that may be provided under the program and (b) the eligibility criteria for assistance under the program and, relevantly for this matter, section 18(c) provides that the program for providing housing assistance includes:18 What is a housing assistance program?In this Act:housing assistance program means a program for providing housing assistance that includes the following:...(c) how decisions of the housing commissioner under the program may be reviewed. ...

Ratio Decidendi

Legal Principle Established

Pursuant to section 21 of the HA Act the Commissioner is empowered to approve guidelines outlining procedures for the management or operation of processes. This section provides:21 Approved housing assistance programs—operational guidelines(1) The housing commissioner may issue guidelines (housing operation guidelines) outlining procedures for the management or operation of approved housing assistance programs.(2) Housing operation guidelines—(a) may deal with matters also dealt with elsewhere under this Act; but(b) must not be inconsistent with this Act (including approved housing assistance programs).(3) A housing operation guideline, and each amendment (if any) of a guideline, is a notifiable instrument.The Commissioner has approved the Housing Assistance Public Rental Housing Assistance Program (Rent Rebate) Operational Guideline (2008) (No. 1) (the Guideline). The purpose of the Guideline is expressed to be “to provide guidance on clause 25 – Rent Rebate” in the Program. Subsection 22(2) of the HA Act provides that:22 Approved housing assistance programs—market rent...(2) However, an approved housing assistance program may provide for a rebate of rent in accordance with the program.... Subclause 11(1)(c) of the Program provides that the meaning of ‘income’ for a person: 11 Meaning of income(1) For this program, income, for a person—...(c) includes an amount taken to be earned, derived or received by the person under subclause (3); and Subclause 11(3) provides:(3) For subclause (1) (c), a person may be taken to have earned, derived, received or become entitled to an amount in the following circumstances—(a) the housing commissioner considers that the person might have earned, derived, received or become entitled to the amount if the person had taken reasonable action to secure the amount and the action is or was reasonably available to the person; or Examples for par (a)1 a pension or other benefit to which the person might have been entitled if the person had applied for it (unless the person provides documentary evidence to the contrary).2 interest or return on moneys at a reasonable rate available to the person if the person took steps to recover it.Note An example is part of this instrument, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132). Subclause 25(1) of the Program provides that the housing commissioner may provide the tenant of a public housing dwelling a rent rebate provided that the tenant satisfies the eligibility criteria in clause 9(4) and clause 25 of the Program. Subclause 9(4) of the Program provides:(4) An applicant is eligible for a rent rebate if the applicant satisfies each of the following criteria: the applicant is receiving rental housing assistance from the housing commissioner under this program; andthe applicant is eligible for a rent rebate in accordance with clause 25. Subclause 25(8) of the Program specifies the date of effect for granting a rent rebate. It states:(8) Provision of a rent rebate takes effect from—the expiry of any previous provision of a rent rebate; orthe date of application for the rent rebate; or(c) if the tenant was receiving a rent rebate immediately before the application and the housing commissioner determines that the rent rebate has increased—a date, decided by the housing commissioner, not more than 2 weeks before the date of application; or(d) from an earlier date in circumstances decided by the housing commissioner.Example for par (d)The applicant was physically or mentally incapacitated and thereby prevented from completing the application form for a rent rebate.