Miller v Commissioner for Social Housing

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.