Miller v Commissioner for Social Housing
[2017] ACAT 10
•20 February 2017
| 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 |
Subordinate Legislation cited: | Housing Assistance Public Rental Housing Program (2013) cl 9, 11, 25, 31, 32 |
Cases cited: | Castles v Secretary, Department of Justice [2010] VSC 310 |
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 rent rebate from the respondent. In 2011, the applicant signed a Perpetual Income Confirmation Consent Form (the PICC form) enabling Centrelink to electronically provide the respondent with ‘Centrelink Statements of Income’ in connection with the periodic assessment of the applicant’s entitlement for rental rebate.
The applicant’s Newstart Allowance was cancelled on 28 April 2015. The respondent revoked her rent rebate on 29 October 2015.[1]
[1] At the hearing this date was agreed to be 14 November 2015
On 22 March 2016 Canberra Community Law, on behalf of the applicant, re-applied for a rent rebate and sought that it be backdated and granted effect from the end of the previous rent rebate and that her rebate be calculated on the basis of a deemed income equivalent to Newstart Allowance.
This application for review arises from the decision of the respondent on 29 June 2016 to accept the recommendation of the Housing and Tenancy Review Panel (HATRP) to refuse to backdate the commencement of a grant of rent rebate to the date that the previous rent rebate ended.
Summary of the Tribunal’s decision
For the following reasons the Tribunal has determined that the decision under review should be set aside and the correct or preferable decision is to backdate the date of effect of the rent rebate. The Tribunal determined that the applicant’s circumstances were unusual or out of the ordinary and, pursuant to subclause 25(8)(d) of the Housing Assistance Public Rental Housing Assistance Program 2013 (the Program), that the provision of rent rebate takes effect from 14 November 2015. The Tribunal also determined that the failure of the respondent to backdate the applicant’s rent rebate amounts to an arbitrary interference with the applicant’s right to home in section 12(a) of the Human Rights Act 2004 (HR Act).
In the reasons below, a reference to ‘ACAT’ or ‘tribunal’ refers to the ACT Civil and Administrative Tribunal generally, whereas ‘Tribunal’ refers to the member who heard the application.
Background
On 22 September 2015 the applicant applied to the respondent for a rent rebate. The respondent was unable to confirm the applicant’s income with Centrelink by using the PICC form. The applicant’s Newstart Allowance had been cancelled from 28 April 2015. By letter dated 24 September 2015 the respondent requested the applicant provide the respondent with “evidence of income for Erin Miller, please provide a Proof of Income statement from Centrelink” within twenty-eight days. This letter also informed the applicant that her current rent rebate “expires on 14 November 2015.” The respondent did not respond to this letter.
Between 24 September 2015 and 18 December 2015 the respondent made numerous attempts to telephone the applicant, wrote letters to the applicant and attended the premises and left calling cards asking her to contact the respondent. The applicant spoke with her Housing Manager on 20 May 2015, 20 July 2015, 2 September 2015, 16 October 2015 and 7 December 2015 and attended meetings with the respondent on 30 November 2015 and 11 December 2015.
By letter dated 29 October 2015 the respondent advised the applicant “... your rental rebate has been cancelled from 29 October 2015 and full rent of $410.00 is payable from that date.”[2] The respondent accepted in its further submissions[3] that it had mistakenly revoked the applicant’s rent rebate on 29 October 2015; that the rent rebate should have been revoked on 14 November 2015 and undertook to rectify the calculations at the conclusion of the proceedings. The letter also advised the applicant that the decision of 29 October 2015 was a reviewable decision. The applicant did not seek a review.
[2] Respondent’s statement of reasons dated 29 August 2016, page 15
[3] At Background [2]
On 22 March 2016 the respondent received a further rent rebate application from Canberra Community Law on behalf of the applicant and a request to backdate the rent rebate to the expiry of the most recent rent rebate.
On 15 April 2016 the respondent reviewed and declined the request to backdate the rent rebate (backdate denial decision). The respondent granted the applicant rent rebate from 22 March 2016, the date of the application.
On 13 May 2016 Canberra Community Law requested an extension of time to appeal the backdate denial decision which the respondent granted.
By letter dated 6 June 2016, on behalf of the applicant, Canberra Community Law requested a ‘Second Level’ review of the backdate denial decision.
On 23 June 2016 HATRP considered the Second Level review request and recommended to the Commissioner that the backdate request be denied.
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).
The tribunal proceedings
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.
Relevant legislative provisions
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
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.
Housing Assistance Programs
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. ...
Pursuant to section 19 of the HA Act the Commissioner is empowered to approve a ‘Housing Assistance Program’. Section 19 provides:
19 Approved housing assistance programs
(1) The Minister may approve a housing assistance program.
(2) An approved housing assistance program is a disallowable instrument.
The Commissioner has approved the Housing Assistance Public Rental Housing Assistance Program 2013 (No 1) (Program) pursuant to this section.
Review of Decision
The respondent’s decision to accept the HATRP’s recommendation was made under subclause 31(4)(b) of the Program, which provides:
31 Review of decision
...
(4) If the housing commissioner receives a request, the housing commissioner may—
(a) review the decision; or
refer it to an advisory committee established by the housing commissioner for recommendation and accept, vary or reject the recommendation.
...
Review by Tribunal
Clause 32 of the Program provides for review by the tribunal. It states:
32 ACAT review
Application may be made to the ACT Civil and Administrative Tribunal for review of a decision under clause 31 (4)(a) or a decision to accept vary or reject a recommendation under clause 31(4)(b).
Guidelines
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.
Rebate of Rent
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.
...
Income
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).
Eligibility criteria for rent rebate
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; and
the applicant is eligible for a rent rebate in accordance with clause 25.
Date of effect of rent rebate
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; or
the 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.
Clause 8 of the Guideline also relates to the date of effect for granting a rent rebate in subclause 25(8) of the Program. It provides:
8. Subclause 25(8) specifies the date of effect for granting a rent rebate. This includes provision for a date earlier than would normally apply where particular circumstances exist. These would include circumstances that are unusual or out of the ordinary, such as:
· where a tenant was unconscious in hospital and could not contact Housing ACT to make them aware of their situation; or
· where a tenant has been called away unexpectedly because of a death or serious illness of an immediate family member.
Rent rebate policy
The respondent has a Rental Rebate Policy (the Policy) in addition to the Guideline which provides:
Wage and Salary Earner
A tenant’s rebate entitlement is calculated on the basis of assessable household income. The average of the tenant’s gross income over the previous 26 weeks is used to determine assessable income. If the tenant has been employed for less than 26 weeks, gross income over the period of employment is averaged. On-going income (not the averaged) is used in the assessment when the tenant has had a permanent increase or decrease in income during the 26 week period prior to the application.
If, however, the household income drops significantly, a tenant may lodge another application with updated income information. The date on which the new rebate becomes effective is the date the application is received, unless there are special circumstances that prevented earlier lodgement. In that case the rebate may be backdated up to two (2) weeks. In exceptional circumstances the rebate may be backdated beyond two (2) weeks with the approval of the Housing Commissioner or authorised officer.
Tribunal review of entity decisions
Section 68 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) applies when the tribunal reviews a decision by an entity. It provides:
68 Review of decisions
(1) This section applies if the tribunal reviews a decision by an entity.
(2) The tribunal may exercise any function given by an Act to the entity for making the decision.
(3) The tribunal must, by order—
(a)confirm the decision; or
(b)vary the decision; or
(c)set aside the decision and—
(i)make a substitute decision; or
(ii)remit the matter that is the subject of the decision for reconsideration by the decision-maker in accordance with any direction or recommendation of the tribunal.
Human Rights Act 2004 (ACT) (HR Act)
Section 30 provides:
So far as is possible to do so consistently with its purpose, a Territory law must be interpreted in a way that is compatible with human rights.
Subsection 40B(1) provides:
40B Public authorities must act consistently with human rights
(1)It is unlawful for a public authority—
(a)to act in a way that is incompatible with a human right; or
(b)in making a decision, to fail to give proper consideration to a relevant human right.
Section 12(a) provides:
12 Privacy and reputation
Everyone has the right—
(a) not to have his or her privacy, family, home or correspondence interfered with unlawfully or arbitrarily; and
(b) not to have his or her reputation unlawfully attacked.
Section 28 provides:
28 Human rights may be limited
(1) Human rights may be subject only to reasonable limits set by laws that can be demonstrably justified in a free and democratic society.
(2) In deciding whether a limit is reasonable, all relevant factors must be considered, including the following:
(a)the nature of the right affected;
(b)the importance of the purpose of the limitation;
(c)the nature and extent of the limitation;
(d)the relationship between the limitation and its purpose;
(e)any less restrictive means reasonably available to achieve the purpose the limitation seeks to achieve.
Applicant’s contentions
Firstly, the applicant contends[4] (the applicant’s first contention) that:
(a)subclause 25(8) of the Program sets out:
a schema to determine what date a rental rebate takes effect from, with the earliest relevant date taking precedence.[5]
(b)subclause 25(8)(a) of the Program requires that the applicant’s rent rebate application be granted from 29 October 2015[6], being the date of the expiry of her previous grant of rebate, and not from 22 March 2016 being the date of her application.
(c)the applicant does not seek that the rebate commence any earlier than the expiry of her last rebate as provided for in subclause 25(8)(a) of the Program, and submits, therefore it is not necessary for the Commissioner to exercise the discretion in subclause 25(8)(d) of the Program.
[4] Applicant’s statement of facts and contentions dated 4 October 2016 at [5] – [8]
[5] Applicant’s statement of facts and contentions dated 4 October 2016 at [48]
[6] Which at the hearing was agreed to be 14 November 2015
Secondly, in the alternative, (the applicant’s second contention) the terms of the Guideline are not such that the applicant is required to demonstrate that her circumstances are ‘unusual or out of the ordinary’ and, even where such circumstances are not considered to exist, the commissioner is empowered to decide to backdate an application for rent rebate having regard to the objects of the HA Act and to the commissioner’s obligations under subsection 40B(1) and subsection 12(a) of the HR Act.
In relation to sections 12 and 40B of the HRA the applicant contends[7]:
(a)an interpretation of clause 25(8) of the Program which does not maximise the period over which the respondent must provide a rent rebate would result in arbitrary interference with a person’s home and the decision is unlawful pursuant to section 40B of the HRA;
(b)without a rent rebate the applicant was charged rent at an arbitrary rate that was far beyond what she can afford; and
(c)to refuse to grant a rent rebate over a period based on the applicant’s failure to provide evidence that she was unable to provide in circumstances where it was open to the respondent to process the rebate without the requested information was unreasonable.[8]
[7] Applicant’s statement of facts and contentions dated 4 October 2016 at [54]
[8] Applicant’s statement of facts and contentions dated 4 October 2016 at [63 iv]
Thirdly, in the alternative, (the applicant’s third contention) to the extent that the Guideline purports to require the demonstration of ‘unusual or out of the ordinary circumstances’, the Guideline is inconsistent with both the HA Act and the Program and should be read down to the extent necessary to eliminate that inconsistency.[9]
[9] Applicant’s statement of facts and contentions dated 4 October 2016 at [7] and [63 iii]
The applicant submits that the wording in clause 8 of the Guideline states that the ‘particular circumstances’ in question “would include circumstances that are unusual or out of the ordinary…” (emphasis added) and do not limit the respondent’s power under subclause 25(8)(d) of the Program to only cases of unusual or out of the ordinary circumstances. The respondent is required in all cases to consider all relevant circumstances including the objects in the HA Act and the HR Act. To the extent that the Guideline purports to limit the respondent’s discretion in subclause 25(8) of the Program that limitation should be read down to have no effect on the Tribunal’s decision.[10]
[10] Applicant’s statement of facts and contentions dated 4 October 2016 at [63]
Fourthly, in the alternative, (the applicant’s fourth contention) the applicant’s circumstances meet the definition of ‘unusual or out of the ordinary’ and the rent rebate should, therefore, be backdated to the expiry of her last rent rebate.[11]
Respondent’s contentions
[11] Applicant’s statement of facts and contentions dated 4 October 2016 at [8] and [38] to [46]
The respondent contends[12], in relation to the applicant’s first contention, that:
(a)subclause 25(8) of the Program should be read in its plain and ordinary meaning, namely that the provision of a rent rebate takes effect from one of a number of dates expressed in subclause (a), or (b) or (c) or (d). The circumstances for the commencement of a rent rebate are determined by reference to the Guideline; and
(b)there is no hierarchy in subclause 25(8). To refer to the objects of the HA Act as the basis of interpreting subclause 25(8) as having a hierarchy has no basis in law. The objects of an Act provide the purpose of an Act, analogous to a preamble. The objects do not command a particular outcome of discretionary power.
[12] Respondent’s submissions dated 27 October 2016 [11] – [27]
The respondent contends[13], in relation to the applicant’s second contention:
(a)Pursuant to section 21 of the HA Act the Commissioner may issue guidelines for the management or operation of approved housing assistance programs and the guidelines may also deal with matters elsewhere in the HA Act.
(b)The Guideline the Commissioner has issued states that its ‘Purpose’ is “To provide guidance on clause 25 – Rent rebate.”
(c)The Guideline was implemented to outline the management of subclause 25(8) in order to determine the appropriate date to which a rent rebate may begin. It serves to elucidate the policy objectives in accordance with which the respondent acts in exercising his discretion under section 25(8)(d) and in accordance with the objects of the HA Act and the Program. It does not operate to fetter the respondent’s discretion, but provide guidance when such discretion should normally be exercised.
(d)The tribunal has no jurisdiction to determine that the Guideline is inconsistent with the HA Act and the Program; nevertheless the Guideline is not inconsistent with them.
[13] Respondent’s submissions dated 27 October 2016 [11] – [27]
In relation to the applicant’s contention that in failing to backdate the rent rebate the respondent arbitrarily or unlawfully interfered with the applicant’s protected right under section 12(a) of the HR Act and that the decision was unlawful pursuant to section 40B(1) of the HR Act the respondent contends[14]:
[14] Further submissions of respondent 29 November 2016 pages 11 - 20
Section 12(a) of the HR Act
(a)A decision whether to accept, vary or reject a recommendation of HATRP, does not, on its face, amount to an interference with the applicant’s home.
(b)It is the tribunal’s consideration of an application for termination of a tenancy which may engage a tenant’s right under section 12(a) of the HR Act.
(c)Whether section 12 of the HR Act is engaged by a decision in relation to rental rebate will depend on the effect of that decision on the tenant’s particular circumstances, and must be determined having regard to the facts of each case.
(d)While it may be possible that because of the applicant’s particular situation she may not be able to make payments of the arrears that have accumulated or the fortnightly rent payable, those circumstances may not have been materially affected by the decision under review; there is no evidence to indicate if the amount of the arrears owing is such that it results in eviction action being taken by the respondent it would be as a consequence of the Tribunal’s decision to accept the HATRP’s recommendation not to backdate the rent rebate and there is no evidence that indicates whether or not the applicant would be in a position to repay arrears.
(e)If section 12 of the HR Act is engaged, section 28 of the HR Act provides that human rights may be subject to reasonable limitations set by Territory laws that can be demonstrably justified in a free and democratic society.
Arbitrariness
(f)“The respondent’s decision to accept the recommendation of HATRP was not arbitrary within the meaning of section 12(a) of the HR Act because”:
(i) The concept of ‘arbitrariness’ applies to decisions that are inconsistent with other protected rights and are unreasonable in the circumstances.[15]
[15] Further submissions of the respondent dated 29 November 2016 page 13; Human Rights Committee, General Comment No. 16 [32]: Right to Privacy (1988) HRI/GEN/1/Rev.9 (Vol. 1) at [3] to [4]; PJB v Melbourne Health & Anor (Patrick’s Case) [2011] VSC 327, Bell J at [77] to [80]
(ii) The HA Act, Program and Guideline reveal consistent and objective procedures and guidelines, which were complied with, upon which a decision to accept HATRP’s recommendation could be based.
(iii) The decision to accept the HATRP recommendation was made according to law and made by a process of reasoning having regard to the relevant statutory scheme.
(iv) The respondent considered the applicant’s particular circumstances in determining whether to accept the recommendation.
(v) The applicant’s right to seek a review of that decision before the tribunal amounts to an adequate safeguard and review mechanism.
(vi) The applicant appears to have conflated, incorrectly, the respondent’s decision to undertake actions in the residential tenancy jurisdiction of the tribunal seeking the applicant’s eviction from the property with the respondent’s decision to accept the HATRP recommendation.
Market Rent
(g)The respondent submits that the rate of rent charged to the applicant when not in receipt of a rent rebate was market rent prescribed by a formula described in subsection 22(3) of the HA Act and is not unreasonable or disproportionate.
(h)Subsection 22(1) of the HA Act mandates that if housing is being rented to an entity under an approved housing assistance program, the entity must be charged market rent for the housing.
(i)The applicant’s residential tenancy agreement with the respondent contained the terms set out in the standard residential tenancy terms in Schedule 1 to the Residential Tenancies Act 1997 and provided that the applicant be charged market rent.
(j)The respondent’s decision to accept the HATRP recommendation was lawful because:[16]
(i) it was made pursuant to and in accordance with a valid statutory scheme; and
(ii) the tribunal is not empowered in an administrative capacity to find a decision of the respondent was unlawful. To do so is to assume a jurisdiction normally vested in the Supreme Court.[17]
[16] Further submissions of the respondent dated 29 November 2016 at page 14 ‘Lawfulness’ at [8], [9] and [10]
[17] Commissioner for Social Housing in the ACT v “A” [2015] ACAT 13 at [51]
In relation to the applicant’s third contention, the respondent rejects that there is an inconsistency between the Guideline and the HA Act and contends that:
(a)the decision under review is the respondent’s decision to accept the recommendation of HATRP. The validity of the Guideline is not a matter for consideration by the Tribunal;
(b)the applicant has not submitted (a) if there is an inconsistency, (b) what is that inconsistency and (c) how it is inconsistent;
(c)clause 4 of the Program provides that “Assessment date means the date of receipt of an application for assistance by the housing commissioner and/or any other date notified in writing by the housing commissioner to the applicant or community applicant (as applicable).” The date the application is received would be the ‘normal’ date to which a rental rebate would begin; and
(d)in circumstances that are unusual or out of the ordinary, then clause 8 of the Guideline guides the determination of the date of effect of the rental rebate.
In relation to the applicant’s fourth contention the respondent submits[18]:
(a)the applicant’s circumstances do not meet the test of ‘unusual or out of the ordinary’;
(b)the applicant has failed to demonstrate and evidence circumstances that meet the test of ‘unusual or out of the ordinary’ that prevented her from completing the rebate application;
(c)it is not ‘unusual or out of the ordinary’ for a recipient of statutory income to be ‘cut off’ for failure to report or to provide requested documentation; and
(d)the respondent made numerous attempts to engage the applicant between September 2015 and December 2015 and to assist her to lodge a rent rebate application but the applicant did not engage with the respondent.
Issues
[18] Submissions of respondent 27 October 2016, page 6
The issue for the Tribunal is whether the respondent made the correct or preferable decision in accepting the HATRP recommendation not to backdate the date of effect of the applicant’s rent rebate to the expiry of her previous rent rebate.
It is necessary for the Tribunal to determine:
(a)Whether subclause 25(8)(a) of the Program operates in such a way to require the respondent to backdate the rent rebate to 29 October 2015?
(b)If the answer to (a) is ‘no’, is the applicant required to prove her circumstances are ‘unusual or out of the ordinary’ in order for the respondent to backdate the rent rebate pursuant to subclause 25(8)(d)? This requires the Tribunal to consider the applicant’s contentions that:
(i) the terms of the Guideline do not require the applicant to demonstrate that her circumstances are ‘unusual or out of the ordinary’[19]; and
(ii) having regard to the objects of the HA Act and the respondent’s obligations under the Human Rights Act 2004 (HR Act) the respondent is nonetheless empowered to backdate an application for rent rebate where such circumstances are not considered to exist;[20] and
(iii) to the extent that the Guideline purports to require that the applicant demonstrate ‘unusual or out of the ordinary’ circumstances the Guideline is ‘inconsistent with the HA Act and the Program and should be read down;[21] and
(iv) to interpret clause 25(8) in a way that does not maximise the period over which a rent rebate is provided amounts to an arbitrary interference with a person’s home under section 12(a) of the HR Act.[22]
(c)Whether the applicant’s circumstances are ‘unusual or out of the ordinary’ such that, under clause 25(8)(d), they warrant the respondent to backdate the rent rebate to 29 October 2015?
Consideration
[19] Respondent’s further submissions dated 29 November 2016 at [14]
[20] Applicant’s statement of facts and contentions dated 4 October 2016 at [6]; Respondent’s further submissions dated 29 November 2016, page 6 at [14]
[21] Applicant’s statement of facts and contentions at [7]; Respondent’s further submissions, page 6 at [15]
[22] Respondent’s further submissions page 6 at [17]
The application to the Tribunal for review of the reviewable decision is conducted as a merits review. In reviewing a decision the Tribunal is to be considered as being in the shoes of the person whose decision is in question.[23]
[23] Minister for Immigration and Ethnic Affair v Pochi [1980] FCA 85 at [10]
Kirby J and Hayne and Heydon JJ, in the High Court decision of Shi v Migration Agents Registration Authority[24] adopted the statements by Bowen CJ and Deane J in Drake v Minister for Immigration and Ethnic Affairs (Drake)[25] in relation to the question for the determination of the Tribunal:
The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether the decision was the correct or preferable one on the material before the Tribunal.
[24] [2008] HCA 31 at [35], [98]
[25] [1979] FCA 39 577 at 589
Kiefel J in the High Court decision of Shi v Migration Agents Registration Authority[26] (Shi’s Case) said:
[58] The object of the review undertaken by the Tribunal has been said to be to determine what is the“correct or preferable decision”. Preferable is apt to refer to a decision which involves discretionary considerations. A “correct” decision, in the context of review, might be taken to be one rightly made, in the proper sense.[27] (footnotes omitted)
[26] [2008] HCA 31 at [140],
[27] Drake v Minister for Immigration and Ethnic Affairs [1979] FCA 39 at 601
The Tribunal is authorised and required to review the actual decision, not the reasons for it.[28]
[28] Drake’s Case at 599, per Smithers J
The Tribunal concurs with the respondent’s submission[29] that in its determination it should have regard to the legislative scheme, the HA Act, the Program and the Guideline as well as the particular circumstances of the applicant’s case as found in the material before the Tribunal on 14 December 2016. As Smithers J said in Minister for Immigration and Ethnic Affair v Pochi[30] (Pochi):
Further in its proceedings [the Tribunal] is obliged to act judicially, that is to say with judicial fairness and detachment. It is subject to the same general restraints to which the administrative officer whose decision is under review was subject, namely that the relevant power must not be exercised for a purpose other than that for which it exists . . . that regard must be had as to the relevant considerations, and that matters absolutely apart from the matters which by law ought to be taken into consideration must be ignored", per Bowen C.J. and Deane J. in Drake v. Minister for Immigration and Ethnic Affairs (1979) 24 ALR, at p 589 . Thus natural justice must be afforded to the applicant.
[29] Transcript of Proceedings page 27 lines 21-23
[30] Minister for Immigration and Ethnic Affair v Pochi [1980] FCA 85 at [12]
The Tribunal is also obliged to interpret the relevant legislative provisions, as far as is possible, consistently with the HR Act and in the context of its administrative review jurisdiction and in making this decision the Tribunal is obliged to give proper consideration to the applicant’s human rights, specifically in this matter not to have her home arbitrarily interfered with.
The Tribunal turns to the issues for determination.
Whether subclause 25(8)(a) of the Program operates in such a way to require the respondent to backdate the rent rebate to 29 October 2015?
Subclause 25(8) of the Program provides for four separate dates of effect of a rent rebate. The applicant contends that the respondent has been operating under a misapprehension as to the effect of subclause 25(8) and this clause sets out a ‘schema’ to determine the date from which the rent rebate takes effect with the earliest date in subclause 25(8)(a), or (b) or (c) taking precedence unless a date earlier than any in subclause 25(8)(a), or (b) or (c) is sought in which event it is necessary for the respondent to exercise his or her discretion under clause 25(8)(d). The applicant contends that this interpretation is most consistent with section 139 of the Legislation Act 2001 and the objects of the HA Act.
Section 139 of the Legislation Act provides:
(1) In working out the meaning of an Act, the interpretation that would best achieve the purpose of the Act is to be preferred to any other interpretation.
The first two of the main objects in subsection 6(1) of the HA Act are:
(a) to maximise the opportunities for everyone in the ACT to have access to housing that is affordable, secure and appropriate to their needs; and
(b) to facilitate the provision of housing assistance for those most in need; and
...
The applicant also submitted that the Tribunal is required to interpret the Program consistently with section 30 of the HR Act.
The applicant submits that a consideration of section 12 of the HRA, that a person has the right not to have their home interfered with arbitrarily, and the objects of the HA Act requires subclause 25(8) of the Program be read so that a person who is eligible for a rent rebate receives it over the maximum possible timeframe as if the period of rental rebate was not maximised it would result in arbitrary interference with a person’s home. Any other interpretation, the applicant contends, exposes vulnerable public housing tenants like the applicant to being charged rent at an arbitrary rate that is far beyond what they can afford.
The Tribunal will return to the consideration of the HR Act later in the decision.
The respondent contends that subclause 25(8) of the Program should be read in its plain and ordinary meaning, that the clause is absent in hierarchy and that the date of effect is one of a number of dates, as provided for in (a) or in (b) or in (c) or in (d) of subclause 25(8).
Having considered the objects in section 6 of the HA Act the Tribunal is not satisfied that the objects support the applicant’s contention that subclause 25(8) has a hierarchy. While one of the main objects of the HA Act requires the maximisation of opportunities for everyone in the ACT to have access to housing that is affordable, subsection 6(2) of the HA Act requires that the person administering the Act consider the resources available to him or her. It states:
...
(2)A person administering this Act must have regard to the objects of the Act to the maximum extent practicable considering the resources available to the person.
The Tribunal has noted the statement by Cole JA in the decision of the NSW Court of Appeal in Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd[31] (footnote omitted):
Further, whilst regard may be had to an objects clause to resolve uncertainty or ambiguity, the objects clause does not control clear statutory language, or command a particular outcome of exercise of discretionary power.
[31] (1996) 91 LGERA 31
The language in subclause 25(8) of the Program is clear. The Tribunal concurs with the respondent that in this case the objects do not command a particular outcome of exercise of discretionary power.
If the Tribunal is wrong and there is a hierarchy in subclause 25(8) of the Program the applicant’s claim is that she would be eligible for the earliest of the alternate dates in subclause 25(8), namely (a) as she had a previous rent rebate which had come to an end.
The respondent contends that the previous rent rebate did not ‘expire’, rather it was ‘revoked’ by the respondent pursuant to clause 26 of the Program and, therefore, subclause 25(8)(a) does not apply.
The Tribunal does not agree with the interpretation of ‘expiry’ in subclause 25(8)(a) sought by the applicant, namely that a ‘revocation’ of a previous rent rebate is equivalent to an ‘expiry’ of the rent rebate. Subclauses 25(6) and (7) of the Program provide for a rent rebate period of six months or such other period decided by the respondent and for the respondent to extend, from time to time, by up to six months the period of rent rebate. Such decisions are subject to the respondent’s discretion in subclause 26(5) of the Program to suspend, amend or revoke the rent rebate. ‘Revoke’ is defined in the Oxford English Dictionary as ‘rescind’, withdraw’, ‘cancel’. ‘Expire’ is defined in the same Dictionary as ‘the end of the period for which something is valid’. If the respondent was required to do as the applicant contends, to backdate the rent rebate to the date of revocation of the previous rent rebate, this would unreasonably fetter the respondent’s discretion to revoke a rent rebate when not satisfied that the applicant is eligible and then to grant a new rent rebate at a future point in time when satisfied that the applicant satisfies the eligibility criteria.
The respondent’s letter to the applicant dated 29 October 2015 advised her that her rental rebate “has been cancelled from 29 October 2015.” The respondent stated[32] in the further submissions “that the rent rebate should have been revoked on 14 November 2015.” While the earlier letter from the respondent to the applicant dated 24 September 2015 stated “Your current rental rebate expires on 14 November 2015…” the Tribunal is satisfied and finds that the rent rebate was cancelled or revoked by the respondent and that it did not expire.
[32] At C.2
For the above reasons, the Tribunal finds that subclause 25(8)(a) of the Program does not operate to require or compel the respondent to backdate the rent rebate to 29 October 2015 or to the date when the rebate was revoked.
Is the applicant required to prove her circumstances are ‘unusual or out of the ordinary’ in order for the respondent to backdate the rent rebate pursuant to subclause 25(8)(d)?
This requires the Tribunal to consider the applicant’s contentions in [55(b)] above.
The applicant submits that the respondent can exercise his or her discretion under subclause 25(8)(d) of the Program even where such circumstances do not exist. To the extent that the Guideline purports to limit the respondent’s discretion in subclause 25(8) of the Program, the applicant says that limitation should be read down so as to have no effect on the Tribunal’s decision.
The applicant relies on subsection 21(1) of the HA Act which empowers the respondent to issue guidelines “outlining procedures for the management or operation of approved housing assistance programs”, subsection 21(2) of the HA Act which requires that the guidelines “must not be inconsistent with the Act (including approved housing assistance programs)” and subsection 43(1) of the Legislation Act 2001 which states:
A statutory instrument is to be interpreted as operating to the full extent of but not to exceed, the power given by the Act or statutory instrument under which it is made (the authorising law).
The applicant contends that the Guideline, read literally, states that the particular circumstances would ‘include’ circumstances that are unusual or out of the ordinary; not that the particular circumstances ‘require’ that they are unusual or out of the ordinary and the effect of the Guideline is only to provide further examples of what might constitute circumstances under subclause 25(8)(d) whereby a rebate could take effect from an earlier date.
The applicant also relies on the HR Act and submits having regard to the objects of the HA Act and the respondent’s obligations under the HR Act the respondent is, nonetheless, empowered to backdate an application for rent rebate where unusual or out of the ordinary circumstances are not considered to exist.[33] The Tribunal will return to consideration of the HR Act later in the decision.
[33] Applicant’s statement of facts and contentions [6]; respondent’s further submissions pages 5-6 at [14]
The decision under review is the respondent’s decision to accept the recommendation of HATRP. The respondent submits[34] and the Tribunal concurs that the applicant’s submissions invite the Tribunal to go beyond that decision and to examine the circumstances of the original decision as to whether the Guideline is consistent with the HA Act and the Program. In an earlier tribunal decision of Zhang & Anor v Commissioner for Social Housing in the ACT[35] the tribunal considered the ‘Director Housing ACT – Instruction’ relating to ‘Management of Sponsored Migration Applications for Housing Assistance’. That tribunal said at [137]:
The Tribunal accepts that the validity of the Instruction is not a matter for consideration by the Tribunal. However, in the Tribunal’s opinion, although the Instruction did reflect a change in the respondent’s policy, it did not involve any change to the proper interpretation of the HA Act or HA Program.
[34] Respondent’s further submissions page 6 at [18]-[23]
[35] [2015] ACAT 46
The role of the Tribunal is not to decide how the respondent’s discretion to enact the Guideline and prescribe its terms should be exercised. The validity of the Guideline is not a matter for consideration by the Tribunal.
The Guideline
The respondent is permitted to issue guidelines pursuant to section 21 of the HA Act for the management of approved housing assistance programs. The Housing Assistance Public Rental Housing Assistance Program (Rent Rebate) Operation Guideline 2008 (No 1) is a notifiable instrument. The Guideline, which has been issued, states that its Purpose is “To provide guidance on clause 25 – Rent rebate.” The Tribunal is satisfied and finds that this Guideline was put into effect to outline the management of clause 25 in the Program and, specifically, clause (8) of the Guideline was put in to effect in order to determine the ‘Date of effect’ or appropriate date to which a rental rebate may begin.
Clause 8 of the Guideline states:
Subclause 25(8) specifies the date of effect for granting a rent rebate. This includes provision for a date earlier than would normally apply where particular circumstances exist. There would include circumstances that are unusual or out of the ordinary, such as:
· where a tenant was unconscious in hospital and could not contact Housing ACT to make them aware of their situation; or
· where a tenant has been called away unexpectedly because of a death or serious illness of an immediate family member.
The respondent told the Tribunal that the ‘normal’ date of effect for granting a rebate was the date of the application. Clause 8 of the Guideline sets out the circumstances when a rent rebate may be backdated to a date earlier than the date of the application where particular circumstances exist. Clause 8 goes on to state that this includes circumstances that are unusual or out of the ordinary and sets out two examples.
The applicant contends that this Guideline is inconsistent with the HA Act when one considers that the HA Act objects are, inter alia, to maximise the opportunities for everyone in the ACT to have access to housing that is affordable. The applicant contends that, without a finding of unusual or out of the ordinary circumstances, her actual circumstances between 28 April 2015 and 22 March 2016 are deemed irrelevant and she is required to pay full market rent in circumstances where it was manifestly unaffordable.
The applicant further contends that:
…this departmental guideline has been applied inflexibly and in a manner that narrows the scope of the discretion conferred upon the commissioner, and now the tribunal by law, and we say that the commissioner has conflated the broad discretion afforded to it by the law with the test in the guideline. The guideline is not co-extensive with the discretion…there is no evidence that Housing was prepared to consider cases that fell outside the policy but within the discretion of the Act.[36]
[36] Transcript of proceedings page 19 lines 13 - 19
The applicant submits that the respondent’s decision paid no regard to the fact that she had no income, that she was not in a position to engage with her housing manager and if the requested back date of the rent rebate was denied the very serious consequences for her were that she would have rent arrears of approximately $6,500 which she was never in a position to pay and which would lead to her facing eviction. The applicant submits the respondent’s decision was non-responsive to the issues put to the respondent on behalf of the applicant by Canberra Community Law and focussed on the fact that the applicant did not engage with her housing manager.
The Tribunal is satisfied that the Guideline does not operate to fetter the respondent’s discretion; rather it provides guidance to when such a discretion should normally be exercised. Subclause 25(8)(d) of the Program gives the respondent a discretion when determining the date from which a rental rebate takes effect. The Tribunal is satisfied that the Guideline serves to elucidate the policy objectives in accordance with which the respondent acts in exercising his or her discretion under subclause 25(8)(d) and in accordance with the objects of the HA Act and the Program.
For these reasons the Tribunal does not accept the applicant’s contentions that the Guideline is inconsistent with the HA Act and the Program or that the terms of the Guideline do not require her to demonstrate that her circumstances are unusual or out of the ordinary.
Human Rights considerations
The applicant contends that in making the decision to accept the recommendation of HATRP not to backdate the rent rebate the respondent contravened both subsections 40B(1)(a) and (b) of the HR Act.
Canberra Community Law had specifically referred in its letter to the respondent dated 6 June 2016 requesting the second level review that, as a public authority, the respondent was required to take into account the applicant’s human rights and, in particular, her right under section 12 of the HR Act not to have her home arbitrarily interfered with. The HATRP report noted:
Ms McCormick further stated that Ms Miller has a right under section 12 of the Human Rights Act 2004 not to have her home arbitrarily interfered with. Ms McCormick explains that taking steps to evict someone on a debt largely accrued as a failure to provide an income statement, is an arbitrary interference on her home. [37]
[37] Statement of reasons page 45
Apart from noting the applicant’s solicitor’s submission (in the previous paragraph) the respondent did not refer to the HR Act or to section 12 in its Recommendation[38], Reasons for Recommendation[39] or in its decision letter to the applicant dated 29 June 2016.[40] The applicant asserts that there is no evidence, either formally by reference to the HR Act or by implication, in the documents provided that the respondent gave any consideration to the applicant’s relevant human rights or the effect that this decision could have to her security of her home in making the reviewable decision. The Tribunal concurs.
[38] Statement of reasons page 43, 47
[39] Statement of reasons page 47
[40] Statement of reasons page 59
The respondent is a ‘public authority’ within the meaning of subsection 40(1) of the HR Act and pursuant to section 30 of the HR Act it is subject to the duty to give proper consideration to relevant human rights when making its decisions.
The Tribunal, standing in the shoes of the reviewable decision maker, is required to give proper consideration to the applicant’s human rights when making its decision, specifically her right under section 12(a) of the HR Act not to have her home interfered with arbitrarily.
For what constitutes an ‘interference’ with the right to the home the applicant referred the Tribunal to the VCAT decision of Director of Housing v Sudi (Sudi) which concerned proceedings under the Victorian Residential Tenancies Act 1997 and the Charter of Human Rights and Responsibilities Act 2006 and where Bell J said:
…what amounts to an ‘interference’…is approached in a ‘simple and untechnical’ manner. This is Manfred Nowak … every invasion of that sphere paraphrased by the term “home” that occurs without the consent of the individual affected … represents interference. Evicting or seeking to evict someone living in social housing is interfering with their human rights relating to their home. Any attempt to do so, directly or indirectly or by process of law, constitutes such interference…[41]
[41] [2010] VCAT 328 at [34]
For determining whether such an interference is ‘arbitrary’ in human rights terms the applicant referred the Tribunal to the decision of the Victorian Supreme Court in Patrick’s Case [42] and to two tribunal decisions, Commissioner of Social Housing v “A” (CSH & A)[43] and Commissioner for Social Housing and Jones (CSH & Jones).[44]In Patrick’s Case Bell J said:
85. I therefore conclude that the human right…not to have your privacy, family, home or correspondence ‘arbitrarily’ interfered with extends to interferences which, in the particular circumstances applying to the individual, are capricious, unpredictable or unjust and also to interferences which, in those circumstances, are unreasonable in the sense of not being proportionate to a legitimate aim sought. Interference can be arbitrary although it is lawful.
[42] [2011] VSC 327, [85]
[43] [2015] ACAT 13 at [38], [42]-[43]
[44] [2016] ACAT 75 at [25]
In CSH & A Member Daniel (as she then was) said, in proceedings under the Residential Tenancies Act 1997:
...when a public authority brings an application under the RT Act, it is open to the tenant to argue that the making of the order would be disproportionate or unreasonable such as to amount to an arbitrary interference with their home, and that, given the nature of the particular provision of the RT Act relied upon and the individual circumstances of the case, the discretionary power to make the order should not be exercised. Where a substantive argument is raised, it is for the applicant lessor to satisfy the tribunal that, after a consideration of all the circumstances of the case (including whether or not the orders sought by the lessor impermissibly contravene the tenant’s rights under the HR Act), the orders should be made.
Senior Member Lennard referred, with approval, to the above passage in Commissioner for Social Housing & Jones, another proceeding under the Residential Tenancies Act 1997.
In the present case the applicant has argued that the respondent’s statutory role and the respondent’s obligations under the HR Act and the objects of the HA Act, empowered the respondent to backdate a rent rebate even where unusual or out of the ordinary circumstances are not found to exist.
The applicant contends that:
(a)to interpret clause 25(8) in a way that does not maximise the period over which a rent rebate is provided would be an arbitrary interference with her home under section 12(a) of the HR Act. The applicant relies on the interpretation of ‘arbitrary’ as ‘unreasonable’ or ‘disproportionate’ in Patrick’s Case and the earlier tribunal decision in CSH & A; and
(b)the failure to backdate her rent rebate amounts to an interference with her home; it is unreasonable and disproportionate to the legitimate aim sought and has placed the applicant at real risk of eviction.
The respondent submits that the respondent gave proper consideration to the applicant’s human rights in making his decision.[45]
Is a human right enlivened?
[45] Further Submissions of respondent page 20 at [36]
The right the applicant relies on is her right not to have her home interfered with unlawfully or arbitrarily as set out in section 12(a) of the HR Act.
The respondent denies that section 12 of the HR Act will prima facie be engaged by a decision of the respondent to accept a recommendation of HATRP not to backdate a rent rebate and submits that a decision in relation to whether to accept, vary or reject a recommendation of HATRP does not, on its face, amount to an interference with the applicant’s home.[46]
[46] Further submissions of respondent page 11 at [10]
Whether section 12 of the HR Act is engaged by a decision in relation to rent rebate will depend upon the effect of that decision on the tenant’s particular circumstances.
The applicant’s arrears of rent at the time of the reviewable decision were $9,356.11.[47] At the commencement of the tribunal hearing the parties reached agreement that the applicant’s arrears of rent were $6,507 based on market rent, and if the rent rebate was backdated as the applicant sought the applicant would be in credit in the amount of $1,603. It is an inevitable and stark conclusion that if the rebate is backdated, as the applicant seeks, that would have a material effect on whether eviction action is pursued.
[47] Statement of reasons at page 50
The Tribunal finds that the applicant’s human right in section 12(a) of the HR Act is engaged.
The respondent submits, if the Tribunal finds that the applicant’s human right in section 12(a) is engaged, the applicant’s right under that section is not absolute and is subject to reasonable limitations pursuant to section 28 of the HR Act which are demonstrably justified in a free and democratic society.
The respondent argues that the HA Act and the Program establish a scheme for the provision of rent rebates and the objects of the HA Act and the Program clearly contemplate there must be some limits to the provision of housing assistance, including rent rebates.
In this regard the respondent relies on the words “considering the resources available to the person” in subsection 6(2) of the HA Act as indicating that the legislature recognises that there must be a limit to the housing assistance the respondent can provide and the use of the word ‘eligible’ in the Program’s objects – “providing assistance to eligible people in the Territory who are most in need” – as indicating that the legislature intended that rent rebates are only provided to people who satisfy certain criteria in the housing assistance scheme.
Are these limits reasonable for the purpose of section 28 of the HR Act?
In determining this question the Tribunal has considered the ACT Supreme Court decision of Hakimi[48] in which Refshauge J set out and adopted the Attorney-General’s submissions in that matter in relation to the correct approach to issues raised by Part 5A of the HR Act, ‘Obligations of Public Authorities’, where a limitation is imposed by the decision on any of the rights protected under Part 3 of the HR Act. Included in the questions the Attorney- General said should be asked were the following questions:
3. Is the limitation reasonable, insofar as it can be demonstrably justified in a free and democratic society having regard, inter alia, to the factors set out in s 28(2) of the Human Rights Act? To put it another way, is the limitation proportionate?
4. Even if the limitation is proportionate, where the matter involves making a decision, did the decision-maker give proper consideration to the protected right?
[48] [2009] ACTSC 48 at [51]
In considering proportionality it is necessary to balance the general interest against the interest of the individual. The interference cannot have a disproportionately severe effect on the person to whom it applies.
The respondent says any limitation is reasonable and proportionate because the statutory scheme provides a clearly defined process as to the way in which rent rebates are to be applied for, considered and granted; it takes into account the needs of other public housing tenants and the commissioner’s limited resources; the commissioner’s decision was consistent with his statutory obligations which included administering the Public Housing program in a way that accords with the objects of the HA Act and this is a legitimate end which justifies the limitation on the applicant’s rights.[49]
[49] Transcript of Proceedings page 38, lines 15-22
The Tribunal is satisfied and finds that:
(a)the statutory scheme provides a clearly defined process as to the way in which rent rebates are to be applied for, considered and granted; and
(b)the scheme takes into account the needs of other public housing tenants and the Commissioner’s limited resources.
In considering whether the respondent’s decision was consistent with his statutory obligations to administer the public housing program in a way which accords with the objects of the HA Act and whether this demonstrated a legitimate end which justified the limitation on the applicant’s rights, the Tribunal is troubled by the fact that even if it were to find that the limitation was proportionate, given that the matter involved the respondent making a ‘decision’, the Tribunal cannot be satisfied, from all of the material before it, that the respondent gave proper consideration to the applicant’s protected right in the HR Act. There is simply no evidence that would enable the Tribunal to find that the respondent considered the possible impact of the decision on the applicant’s human right under section 12 of the HR Act.
In the Victorian Supreme Court decision of Castles v Secretary, Department of Justice[50] (Castle) Emerton J said:
... The consideration of human rights is intended to become part of decision-making processes at all levels of government. It is therefore intended to become a ‘common or garden’ activity for persons working in the public sector, both senior and junior. In these circumstances, proper consideration of human rights should not be a sophisticated legal exercise. Proper consideration should not involve formally identifying the ‘correct’ rights or explaining their content by reference to legal principles or jurisprudence. Rather, proper consideration will involve understanding in general terms which of the rights of the person affected by the decision may be relevant and whether, and if so how, those rights will be interfered with by the decision that is made. As part of the exercise of justification, proper consideration will involved balancing competing private and public interests. There is no formula for such an exercise, and it should not be scrutinised over-zealously by the courts.
While I accept that the requirements in s. 38(1) to give proper consideration to a relevant human right requires a decision-maker to do more than merely invoke the Charter like a mantra, it will be sufficient in most circumstances that there is some evidence that shows the decision-maker seriously turned his or her mind to the possible impact of the decision on a person’s human rights and the implications thereof for the affected person, and that the countervailing interests or obligations were identified.
[50] [2010] VSC 310 at [185] [186]
In considering the impact of the decision on the applicant’s human rights and the implications for her and the respondent’s countervailing interests or obligations in this review, the Tribunal cannot be satisfied, from the material before it, that the impact and implications would be slight. The respondent was aware at the time of the HATRP recommendation that on 26 February 2016 it had made an application to the tribunal in its residential tenancies jurisdiction seeking an unconditional termination and possession order with effect as a warrant for eviction.[51] The letter to the respondent from Canberra Community Law dated 22 March 2016 referred to the eviction proceedings in the tribunal.[52] The Tribunal cannot be satisfied from the material before it that the respondent did take into account all of the applicant’s circumstances. To have done so it would have had to have demonstrated that it had considered her rights under the HR Act.
[51] Statement of reasons at page 44
[52] Statement of reasons at page 28
Nor could the Tribunal find, in the documents provided, any material which showed that the respondent understood, in general terms, which of the rights of the applicant affected by the decision may be relevant and whether, and if so how, those rights will be interfered with by the decision that is made. It appears to the Tribunal that consideration of the applicant’s human rights was not a part of the respondent’s decision making process notwithstanding, as Emerton J said in Castle, that such consideration is intended to become ‘a common garden activity for persons working in the public sector, both senior and junior’.
In this regard, the Tribunal notes the following statement by Refshauge J in Hakimi:
95. Thus if the respondent had failed to advert to the human rights … this may have justified curial intervention.
The Tribunal finds that the link between the decision made under clause 31(4)(b) of the Program and the applicant’s rights under section 12(a) of the HR Act was not tenuous as argued by the respondent; it was causal. If the decision not to backdate the rent rebate had not been made the applicant would be in credit with her rent and, in all likelihood no longer facing the eviction proceedings in the residential tenancies jurisdiction of this tribunal.
In these circumstances, the Tribunal finds that the respondent’s decision to accept the HATRP recommendation and not to backdate her rent rebate was not proportionate to achieve the legislative aim; in the circumstances it clearly constitutes an unreasonable or arbitrary interference with her right to home in section 12(a) of the HR Act. This interference was not in accordance with the provisions, aims and objectives of the HR Act and, considering all of the circumstances, it was unreasonable. It was not the correct or preferable decision.
For these reasons, the Tribunal determines that the correct or preferable decision is to set aside the decision to accept the HATRP recommendation and to backdate the rent rebate to 14 November 2015. This will recognise the applicant’s human right to home under section 12.
Given the Tribunal’s decision above, it is not strictly necessary for the Tribunal to consider the second limb of the applicant’s claim under the HR Act. However, as it was raised and the parties’ dealt with it in their detailed written and oral submissions the Tribunal has considered it.
The applicant argues[53] that a decision that insists that the applicant be charged market rent for a period of time when she has no income and then to use the accrued rental arrears in that period as the basis for an eviction application also constitutes an arbitrary interference with the applicant’s home and should be set aside by the Tribunal.
[53] Applicant’s reply, at [11]
The respondent says market rent was charged as subsection 22(1) of the HA Act mandates that if housing is being rented to an entity under an approved housing assistance program, the entity must be charged market rent for the housing. Subsection 22(3) of the HA Act defines market rent. The HA Act requires that the term ‘rent’ in a tenant’s residential tenancy agreement must refer to market rent. When the applicant commenced her tenancy, she entered into a contract with the respondent in terms set out in Schedule 1 of the Residential Tenancies Act 1997 which provided that the rent she was to be charged for occupation of the tenancy was market rent. The tenancy agreement set this rent as $390.00. The applicant was contractually obliged to pay market rent.
The Tribunal concurs with the respondent’s submissions and is not satisfied that the respondent charging market rent was unreasonable or disproportionate. The Tribunal finds that charging market rent does not amount to an arbitrary interference with the applicant’s right to home under the HR Act.
Are the applicant’s circumstances unusual or out of the ordinary
Given the Tribunal’s decision in [122] above it is also not necessary for the Tribunal to consider this issue. However, as it was raised and the parties dealt with it in their detailed written and oral submissions the Tribunal has considered it.
While the applicant primarily contends that she is not required to demonstrate that her circumstances are ‘unusual or out of the ordinary’ she nonetheless contends that the Tribunal can be satisfied that her circumstances are ‘unusual or out of the ordinary’ because of the combination of (a) her personal difficulties and (b) the respondent’s representative’s failure to appropriately deal with her rebate application or to advise her how she might satisfy the respondent’s request for income information.
In the applicant’s witness statement she states the she is presently incarcerated and is actively seeking to be released on bail. If she is evicted from the premises she will face an extended period of incarceration as she will not have suitable accommodation to which she can be bailed. She then states:
I sincerely wish to re-enter the community after my difficult year [29 April 2015[54] – 4 February 2016[55]] of battling with multiple sclerosis (‘MS’) [which was diagnosed in 2014], handling police raids [which began in February 2015], and the removal of my daughters by Care and Protection Services (‘CYPS’) [in August or September 2015].
[54] Her Newstart Allowance was suspended with effect from 29 April 2015
[55] When she reapplied for Newstart Allowance and which was granted from 4 February 2016
She contends that these personal and unanticipated upheavals in her life in 2015/2016 resulted in her not managing her affairs. She said she did not feel equipped to deal with the rigorous demands of activities testing required under her Newstart job plan. She experienced periods of weeks in bed from her MS. She had claimed Newstart Allowance on 9 September 2015. On 23 September 2015 this claim was rejected as the applicant had failed to provide requested documentation, which she did not have.
The applicant did submit an application for rental rebate on 22 September 2015. When Centrelink advised the respondent at that time they could not, using the PICC form, verify the applicant’s income, the respondent did not process the rebate application, instead writing to the applicant on 24 September 2015 requesting her to provide an income statement from Centrelink.
The Homenet notes corroborate the applicant’s claim that she had told her Housing Manager on previous occasions that she was not in receipt of Newstart Allowance. The applicant submits it should have been apparent to the respondent that she was struggling to meet Centrelink’s requirements for her to receive payment and without Centrelink income she could not provide the respondent with the requested Centrelink income statement.
The respondent’s Homenet notes[56] show that after the applicant’s Centrelink payments were cancelled effective from 29 April 2015 the Housing Manager had spoken with the applicant on 20 May 2015, 2 September 2015, 16 October 2015 and 7 December 2015 and she had informed him on each of these occasions that she was not receiving Centrelink. On 20 July 2015 she told her Housing Manager that she has been ill and that was why she was not made rental payments since 20 June 2015. By the time the respondent had written to the applicant on 24 September 2015 the applicant had already informed the respondent twice that she was not in receipt of Newstart Allowance and that she had been ill.
[56] Applicant’s witness statement 4 October 2016 at Annexure C1
There was no evidence from the respondent which may have assisted the Tribunal to understand why no action was initiated by the applicant’s Housing Manager during the conversations in May 2015 or September 2015 or October 2015 or December 2015 to advise the applicant about how she might satisfy the respondent’s request for income information. The applicant should have been advised about the Program and, in particular, subclause 11(3) which provided for the respondent to deem her as being in receipt of Newstart Allowance. This should have enabled her rental rebate to be processed.
The applicant contends that “it would have been obvious to the Commissioner that Ms Miller was not in a position to provide such (an income) statement.”[57] While acknowledging that the applicant was sometimes not responsive to attempts to contact her the applicant contends that on the occasions when there was contact (see [133] above) her rental rebate was not raised with her and, at no time after the rebate was cancelled, did the respondent tell her that she was being charged market rent, an increase of nearly $300 per week, or suggest how she might resolve the situation.
[57] Applicant’s statement of facts and contentions at [41]
The Tribunal notes that while in the conversations with the applicant recorded in the Homenet notes the respondent may not have said that she was being charged market rent, the respondent did refer to the full weekly rent of $410.00 in its two letters to the applicant on 24 September 2015 and 29 October 2015.
The applicant did, however, attend a meeting with a Regional Manager and a Senior Manager of the respondent in the respondent’s office on 30 November 2015 and the record of that meeting[58] makes no mention of rental rebate, or of deeming her income or of market rent being charged, notwithstanding that the applicant’s Housing Manager’s Homenet note states that the meeting on 30 November 2015 was “scheduled…to discuss arrears, expired rebate, and high level of complaints.”
[58] Statement of reasons at page 20, 21
The respondent submits that it is not unusual or out of the ordinary for a recipient of statutory income to be cut off for failing to report or provide requested documentation. The Tribunal concurs.
However, the question is whether the applicant’s particular circumstances meet the test of unusual or out of the ordinary. The applicant contends that the most relevant inquiry in the exercise of the discretion in subclause 25(8)(d) about whether to backdate the rebate should revolve around the applicant’s income during the period for which she seeks the rental rebate be backdated and not whether there were unusual circumstances for, essentially, not completing a form.
The Tribunal finds that the applicant had been receiving Centrelink income for approximately 13 years, since the first of her children was born, and has lived at the premises since the tenancy commenced in June 2004 until she was incarcerated in June 2016. In 2011 she entered into the Perpetual Income Confirmation Consent which enabled the respondent to automatically obtain her income statement from Centrelink and to routinely determine whether she continued to be eligible for a rent rebate. During the currency of the PICC form it was not necessary for the applicant to complete applications for a rent rebate.
While the Tribunal agrees with the respondent’s submission that the respondent is not obliged under the statutory scheme to remind a tenant to re-apply for a rent rebate when the rent rebate period is coming to an end the Tribunal is satisfied that when, as in this matter, the applicant has completed a PICC form and the respondent has been routinely and for a number of years automatically renewing her rental rebate it was unusual or out of the ordinary for the applicant to be putting in an application for rental rebate and for the respondent to be seeking Centrelink income information from her, particularly when she had told the respondent that she was not receiving Centrelink. The Tribunal finds that she did not have a clear understanding of what was required of her during the processing of rebates and that she was not in a position to provide the respondent with her Centrelink income statement as she was not receiving Centrelink.
While she said that she was trying to get back on Centrelink so she could pay her rent her personal life was tumultuous in 2015/2016. She had been diagnosed with MS in 2014 which caused her to spend periods of weeks in bed, she had ongoing distressing and destabilising interactions with the AFP and her 12 and 13 year old daughters were suddenly removed from her care when they had been with her since their births. The respondent’s note of the home visit to the applicant on 11 December 2015 attests to the applicant’s distress in stating “The tenant discussed Care and Protection removing the children and the effect this had had on her, the tenant was visibly distressed.”
The Tribunal also noted that during the period the applicant was not receiving Centrelink income and not receiving rent rebate she made nine monthly lump sum payments which totalled $3,800 in an effort to maintain her tenancy. She told the Tribunal that she prioritized her rent payment after food and was able to do this by borrowing money from family and friends.
The Tribunal further notes that the following information was before HATRP[59]:
(a)on 29 July 2014 the tribunal granted a conditional termination and possession order against the applicant in the residential tenancy jurisdiction of the tribunal; and
(b)on 26 February 2016 the respondent made application to the tribunal in its residential tenancy jurisdiction seeking unconditional termination and possession order with effect as a warrant for eviction.
[59] Statement of reasons at page 44
The respondent submits[60] that in determining whether the applicant’s circumstances were unusual or out of the ordinary, the Tribunal should take into consideration the applicant’s evidence that in September 2015 she had applied to Centrelink for a Disability Support Pension (DSP) and find that her ability to lodge a comparatively more involved and complicated application during the period she submits she was unable to provide the further information requested by the respondent is not consistent with her evidence that, at that time, her circumstances prevented her from providing more information. The applicant was, apparently, unsuccessful in her DSP application.
[60] Closing submissions of respondent at [9]
The applicant told the Tribunal that 2015 was a bad time for her and it seems likely that her troubles in 2015, her MS, her trouble with the police, the cessation of her Newstart Allowance, the removal of her children and her inability to provide Centrelink income statements to the respondent may have impacted on her DSP application too.
The respondent has set out in submissions[61] the ‘normal’ date for a rental rebate to begin where circumstances are ‘unusual or out of the ordinary’:
...in circumstances that are unusual or out of the ordinary, then normally (respondent’s emphasis) the rental rebate would begin the date the last rebate expired/cancelled as guided by clause 8 Rental Rebate Operational Guideline.
[61] Submissions of the respondent filed 27 October 2016 at [21]
The Tribunal has looked at this matter anew. Having considered all of the facts and circumstances as set out in the material before it the Tribunal is not satisfied that, at the date of review, the decision under review is the correct or preferable decision.
Subclause 25(8)(d) of the Program gives the respondent the discretion to provide that a rent rebate takes effect from an earlier date. Clause 8 of the Guideline assists in interpreting subclause 25(8) by stating that ‘particular circumstances’ ‘include circumstances that are unusual or out of the ordinary’ and then gives examples such as ‘where a tenant was unconscious and in hospital and could not contact Housing ACT to make them aware of their situation or where a tenant has been called away unexpectedly because of a death or serious illness of an immediate family member’. While the examples have been described as “extremely serious examples and the seriousness of those examples indicates the high threshold an applicant’s circumstances must attain for the commissioner to be satisfied that the failure to apply for the rent rebate earlier is adequately justified”[62], the Tribunal finds that the examples are not exhaustive.
[62] Ms Storey for the respondent at Transcript of Proceedings page 62, lines 41 - 44
The applicant has been charged an extra $6507 in market rent for a period of time when she was in receipt of no income. Because of those arrears she is at risk of eviction in proceedings in the residential tenancies jurisdiction of the tribunal.
The Tribunal accepted her evidence in her witness statement and before the Tribunal. The applicant found herself in a situation where, not having had to apply for rental rebates for a number of years because of the PICC form, and being without Centrelink income, she was required to apply for a rental rebate when she was unable to provide a Centrelink income statement. At this time she had been diagnosed with MS and was not enjoying good health. She said that “[MS] just takes it out of me, like there’s times when I can’t leave the house and I can’t get out of bed, like can’t pick up a phone or hold a cup.”[63] She had told the respondent she was not receiving Newstart and instead of advising her that the respondent could ‘deem’ her income she was left trying to get back on Centrelink to be able to provide the income statement requested by the respondent. As well as her ill health, she was experiencing the distressing events referred to above. The Tribunal agrees with the applicant’s solicitor’s description of this being a tumultuous time for the applicant.
[63] Transcript of proceedings page 52 , lines 29 - 31
The Tribunal has taken into account all relevant considerations and all statutory instruments which guide the Tribunal in the exercise of a discretionary power. While the Tribunal accepts that it is not unusual or out of the ordinary for a recipient of statutory income to be cut off for failing to report the Tribunal finds that it is unusual or out of the ordinary for the respondent to continue to request income statements when, as in this case, the applicant has told the respondent’s representative on more than one occasion that she has been cut off from Newstart. The Tribunal agrees with the applicant that it would have been obvious to the respondent that the applicant would not be able to provide a Centrelink income statement when she was not receiving that income.
The Tribunal also finds that for a tenant who has been receiving automatic assessments of rent rebates through the respondent using the PICC form for some years it is unusual or out of the ordinary for her to be now making a rent rebate application and being asked to provide information she cannot provide. The respondent’s representative’s failure to appropriately deal with her rebate application or to advise her how she might satisfy the respondent’s request for income information also contributes to the Tribunal finding that the applicant’s circumstances do meet the test of unusual or out of the ordinary.
Finally, and importantly, the Tribunal finds that the applicant’s payments of $3,800 while not in receipt of any income and which, if her rebate is backdated to 14 November 2015, will place her $1,603 in credit with her rent is an unusual or out of the ordinary circumstance.
Considering all of the above matters the Tribunal is satisfied that the applicant’s circumstances are unusual or out of the ordinary and that the correct or preferable decision is that pursuant to subclause 25(8)(d) of the Program the date of effect of the applicant’s rent rebate is from 14 November 2015 being the date when her previous rebate was cancelled.
………………………………..
President G Neate AM
Delivered for and on behalf of the Tribunal
HEARING DETAILS
FILE NUMBER: | AT 45/2016 |
PARTIES, APPLICANT: | Erin Miller |
PARTIES, RESPONDENT: | Commissioner for Social Housing |
COUNSEL APPEARING, APPLICANT | N/A |
COUNSEL APPEARING, RESPONDENT | N/A |
SOLICITORS FOR APPLICANT | Canberra Community Law |
SOLICITORS FOR RESPONDENT | ACT Government Solicitor |
TRIBUNAL MEMBERS: | Presidential Member E Symons |
DATES OF HEARING: | 14 December 2016 |
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