PAMELA MACNAMARA and SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

[2012] AATA 40

[2012] AATA 40 

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2011/1880
Re	PAMELA MACNAMARA
APPLICANT
And	SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
RESPONDENT

DECISION

Tribunal	Hon R J Groom AO (Deputy President)
Date	27 January 2012
Place	Hobart

Decision Summary

The Tribunal sets aside the decision under review and in substitution decides:

(1)That the applicant’s St Helens property remained her “principal home” for the whole of the period on and from 6 February 2010 until 16 April 2011 and continues to be her “principal home”.

(2)That the matter be remitted to the respondent to assess, in accordance with this decision, the applicant’s entitlement to parenting payment single.

[Sgd Hon R J Groom]

Deputy President

Catchwords

SOCIAL SECURITY – parenting payment single – whether house is principal home and therefore an exempt asset – meaning of “principal home” for the purposes of section 1118(1) of the Social Security Act 1991 – factors relevant in determining whether the house was the applicant’s “principal home” – meaning of “temporary absence” in section 11A(9)(a) of the Act – decision under review set aside

Legislation

Social Security Act 1991, ss 11A, 500Q, 1118

Cases

Hafza v Director General of Social Security (1985) 60 ALR 674
Re Robert Clark and Secretary to the Department of Social Security [1986] AATA 342
Re Kirkman and Secretary, Department of Social Security [1990] AATA 66
Matula and Security, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 993
Herbert v Byrne [1964] 1 All E.R. 882
Inland Revenue Commissioners v Lysaght [1928] AC 234

REASONS FOR DECISION

Hon R J Groom AO (Deputy President)

27 January 2012

INTRODUCTION

1. This is a review of a decision of the Social Security Appeals Tribunal  (“SSAT”) of 3 May 2011 that Mrs MacNamara was not entitled to continue to receive parenting payment single (“PPS”) because her assets exceeded the assets limit.

2. The SSAT decided that the house Mrs MacNamara owned at St Helens in Tasmania was no longer her principal home and therefore not an exempt asset. Her assets then exceeded the assets limit. Under section 500Q of the Social Security Act 1991 (“the Act”) PPS is not payable if a person’s assets exceed the assets limit.

   THE ISSUES

3. The principal issue to be determined by the Tribunal is whether Mrs MacNamara’s property at St Helens (“the St Helens property”) continued to be her principal home from 6 February 2010 until she returned to live there on 16 April 2011 (“the relevant period”).  If it did remain her principal home during the relevant period then it would continue to be an exempt asset for the purposes of the assets test.

4. A further issue which the Tribunal is required to consider is whether Mrs MacNamara was “temporarily absent” from the property for a period in excess of 12 months within the meaning of section 11A(9)(a) of the Act.

5. The title to the property at St Helens was at all relevant times, and indeed continues to be, owned by Mrs MacNamara.  There are no encumbrances on the title to the property.  Although it is not in issue the Tribunal finds that Mrs MacNamara has a “right or interest” that gives her “reasonable security of tenure” in the St Helens property.

   THE FACTS

6. Mrs MacNamara was in receipt of PPS from 12 November 2004.

7. Her principal home was recorded as the St Helens property from 1 July 2005.  That property was therefore not then included as an asset in calculating her entitlement to PPS.

8. On 6 February 2010 Mrs MacNamara and her two daughters moved to rented premises in Launceston.  This was to enable her daughters to attend a private school in Launceston where both had gained scholarships.  Mrs MacNamara explained that the only reason she had moved to Launceston was because of the children’s education.  She said in evidence “I was only there because of the kids school” (Transcript page 24).

9. Although living in rental premises in Launceston Mrs MacNamara continued to own and occupy the St Helens property from 6 February 2010 until she and her daughters returned to reside in it on a full-time basis on and from 16 April 2011.

10. Mrs MacNamara took some of her furniture to Launceston but many of her belongings including most of her furniture remained at the St Helens property.  For example, she kept her own bed at St Helens (Transcript page 37).  She also had a lounge suite, table and chairs, coffee tables, tv sets, cutlery and plates and other furniture and belongings at St Helens.  Mrs MacNamara said she only took the “basic things” to Launceston.  A utility motor vehicle she owned also remained permanently at the St Helens property.

11. Throughout the relevant period Mrs MacNamara remained in possession of the St Helens property.  As mentioned most of her personal property was at St Helens.  She did not lease the property to any other person.  No other person other than herself and her daughters occupied the property rent free or on any basis at any time during the relevant period.  Mrs MacNamara continued to pay the rates and all other outgoings for the property.

12. During the relevant period Mrs MacNamara and her daughters returned frequently to the St Helens property.  The Tribunal accepts as reliable the evidence that Mrs MacNamara and her daughters returned approximately 35 times to reside at the St Helens property.  This was on most weekends and during school holidays including Easter and in June and September 2010. 

13. The Tribunal finds Mrs MacNamara to be a reliable and truthful witness.  Her evidence of frequent trips to spend time at her St Helens home was corroborated by Mrs Christine Dewar who completed a witness statement dated 21 April 2011 (an annexure to A1) and also gave oral evidence.  Again the Tribunal finds Mrs Dewar to be a truthful witness.  In  her witness statement Mrs Dewar said:

    “I also confirm that I have seen Pamela coming and going from (the St Helens Property)  on many occasions throughout the last year, especially during weekends and holidays.  Specific dates which come to mind are Easter 2010, the weekend of 7 and 8 August 2010 and the 2010 September school holidays. 

    Pamela has furniture in the house and other items outside and in, such as her lawn mower etc and her yellow utility station wagon at that address”.

14. In her oral evidence Mrs Dewar said she remembered Mrs MacNamara being at the St Helens property at Easter and in August and September 2010 but added that she was at the property “most weekends” and during “holidays”.

15. When asked by Mr Sparkes for the respondent about Mrs MacNamara leaving St Helens in February 2010 Mrs Dewar said:

    “Well, she didn’t actually leave.  From what I understood, she was staying part of the time in Launceston for the children’s education”  (Transcript page 43)

16. The evidence establishes that Mrs MacNamara had placed the St Helens property on the market prior to the move to Launceston. Her intention was that if it sold she would use the proceeds to build a house on a block of land she owned in Launceston. If she had sold the St Helens house and then built a house in Launceston it would become her new principal home and would then be exempt under the assets test. Prior to building a new house the proceeds of sale of the St Helens property would also be exempt for up to 24 months (see section 118(1B)(2) and (2B) of the Act).

17. Importantly, Mrs MacNamara informed Centrelink on the 16 February 2010 that she had commenced renting a property in Launceston.  The Centrelink officer noted (T15 page 116) that Mrs MacNamara had “temporarily vacated property” (that is the St Helens property) and “moved to Launceston” and “is renting a house because her kids are attending school in Launceston” and also the St Helens house “… is on the market” and she “… will move back into the house if it doesn’t sell in next 12 months”.  (Tribunal’s emphasis)

18. As explained by Mrs Kate Chapple, a local real estate agent, a number of factors were adversely impacting on the real estate market in the St Helens area at the time including three episodes of severe floods and also publicity about alleged polluting of the local water supply.  As a result of those factors, and possibly others, Mrs MacNamara was unable to sell her house.  Mrs MacNamara found that she could not afford to continue to rent premises in Launceston as well as maintain the St Helens property and, as she had predicted to Centrelink on 16 February 2010, she moved back to her St Helens property.  This was on 16 April 2011.  Mrs MacNamara’s daughters were then forced to leave their school in Launceston and return to live in St Helens and attend a local school.

19. Mrs MacNamara was adamant that her St Helens property “was always my house, my home”.  She said “it’s a lovely place to live”.  Mrs MacNamara described the Launceston premises as “… a rental house”.  She said she was only there for the children and added “… when you own a home you don’t deliberately go out and pay rent to someone else”.  (Transcript page 24).

    THE LEGISLATION

20. Section 1118(1)(a) of the Act provides as follows:

    “1118 Certain assets to be disregarded in calculating the value of a person’s assets

    (1)   In calculating the value of a person’s assets for the purposes of this Act (other than sections 198F to 198MA (inclusive), Division 1B of Part 3.10, Division 2 and sections 1133 and 1135A), disregard the following:

    (a)if the person is not a member of a couple – the value of any right or interest of the person in the person’s principal home that is a right or interest that gives the person reasonable security of tenure in the home;”

21. Under the heading “Effect of absences from principal home” section 11A(9) of the Act provides:

    “(9)  A residence of a person is to be taken to continue to be the person’s principal home during:

    (a)Any period (not exceeding 12 months or any longer period determined under subsection (9A) during which the person is temporarily absent from the residence …”

    DID THE ST HELENS PROPERTY CONTINUE TO BE MRS MACNAMARA’S PRINCIPAL HOME FROM 6 FEBRUARY 2010 UNTIL 16 APRIL 2011?

22. It is not in dispute that Mrs MacNamara moved to rental accommodation in Launceston on 6 February 2010 and that she moved back to live full-time in the St Helens property on and from 16 April 2011.

23. Further, it is conceded by the respondent that the move to Launceston was a temporary absence from the St Helens property and that section 11A(9)(a) applied to Mrs MacNamara until 5 February 2011. (See the respondent’s Statement of Facts and Contentions at paragraphs 4.25 and 4.26 and Mr Sparkes’ concession on this point – Transcript page 12)

    See also the definition of temporary vacation in the Social Security Guide 4.6.3.60 at page 1 which states:

    “Unless an income support recipient states a definite intention NOT to return to their principal home, an absence should generally be regarded as temporary”.

24. The respondent contends that as a result of the 12 month limit in section 11A(9)(a) of the Act the St Helens property can only be taken to have been Mrs MacNamara’s principal home from 6 February 2010 until 5 February 2011.

25. After a review of Mrs MacNamara’s circumstances Centrelink had determined that the 12 month exemption period had expired on 5 February 2011 and the St Helens property was then no longer her principal home.  Mrs MacNamara’s PPS was cancelled from 2 March 2011 as her total assets, which then were said to include the St Helens property, were in excess of the permitted asset limit for the purposes of calculating her entitlement.

26. The term “principal home” has not itself been defined in the Act although section 11A of the Act does set out some related definitions, for example, it defines the area of any adjacent land which is to be taken into account when determining the value of the principal home.

27. It is of course not surprising that the legislature would refrain from attempting to provide an exhaustive definition of “principal home”.  The applicable factual circumstances can be so varied that a satisfactory definition of the precise scope of the term would obviously be most difficult to draft.

28. The Courts and Tribunals, including this Tribunal, have been required to interpret the term as it applies to particular circumstances and in doing so have on occasions cited authorities which were in fact considering somewhat related but different terms such as “residence” or “ordinary residence”.  The decision of Wilcox J in Hafza v Director-General of Social Security (1985) 60 ALR 674 has often been cited. In that case His Honour was considering the phrase “usual place of residence”. (See Re Robert Clark and Secretary to the Department of Social Security [1986] AATA 342 and Re Kirkman and Secretary, Department of Social Security [1990] AATA 66).

29. I agree with the view expressed by Senior Member Britton in Matula and Secretary, Department of Families, Housing, Community Services [2009] AATA 993 (24 December 2009) that cases which have examined other similar terms can provide “useful guidance” when deciding what constitutes a “principal home”.

30. When considering the more general term “residence” rather than “usual place of residence” in portion of His Honour’s decision in Hafza Wilcox J said (at page 680):

    “Once a person has established a home in a particular place … a person does not necessarily cease to be resident because he or she is physically absent.  The test is whether the person has retained a continuity of association with the place … together with an intention to return to that place and an attitude that that place remains “home””.

31. The term “principal home” implies that the person may reside for part of their lives in a home other than the principal home.  For example, a person may retain a principal home yet spend most of their time staying in hotels or motels or for the purposes of their occupation may be living away from home on a ship or perhaps for weeks or months on end living in a mining settlement.

32. As Lord Denning MR said in Herbert v Byrne [1964] 1 All ER 882 at 886 in considering whether a tenant was in “personal occupation” of a house:

    “A sea captain may be away from his house for months at a time but it is none the less his house”.

33. It is important to recognise that section 1118(1) of the Act is concerned not with “residence” but essentially with ownership of a right or interest in the person’s home. Indeed section 11(4) refers to “home owner”. But clearly mere ownership of a home is not sufficient. The general purpose of the relevant provisions of the Act is to exempt the value of the person’s interest in the home if there is a sufficient ongoing continuity of association with the home to enable it to be properly described within the context of the Act as that person’s principal home.

34. As was said in Matula (and see also Inland Revenue Commissioners v Lysaght [1928] AC 234 (per Viscount Sumner, Lord Atkinson, Lord Buckmaster and Lord Warrington) whether a person’s property continues to be that person’s principal home is a question of fact to be decided after having regard to all of the relevant circumstances of the case.

35. It was contended on behalf of the respondent that it was at the rented premises in Launceston that Mrs MacNamara and her daughters lived for most of the relevant period.  That was the place where they spent most of their time.  It was where the family lived, ate, slept and washed.  The visits to the St Helens property, it was argued, were principally to maintain the St Helens property because it was then on the market.  The rented house in Launceston was set up as a home and in reality was Mrs MacNamara’s and her family’s principal home.  It was said by the respondent that this was where the family generally lived and carried out the usual activities of life.  Further it was contended that Mrs MacNamara’s original intention was not to return to St Helens but to sell that house and then build a house in Launceston.

36. Subject to a consideration of section 11A(9)(a) the Tribunal however finds that the material before it does strongly support the view that the St Helens property did continue to be Mrs MacNamara’s principal home throughout the relevant period. In reaching that view it finds the following factors to be particularly significant:

    (a)Mrs MacNamara’s proprietary interest in the St Helens property remained unchanged throughout the relevant period.

    (b)Not only did she continue to own that property but she also remained legally in occupation of it.

    (c)Most of Mrs MacNamara’s furniture including her own bed, plates, cutlery, tv sets etc and a motor vehicle she owned remained at St Helens throughout the period.

    (d)The St Helens property was not leased to anyone nor did any other person, other than Mrs MacNamara and her daughters, occupy the house at any time during the relevant period.

    (e)Throughout the relevant period Mrs MacNamara maintained a strong emotional attachment to the St Helens property.  She considered it to be her home.  This was in stark contrast to her attitude to the rented Launceston premises.  She said in evidence:

    “It was always my house, my home.  I raised the kids there on the beach, they sent to school there.  That was always my principal home.  It is a lovely place to live.  It’s a lovely place to bring up kids …”.  (Transcript page 13)

    When asked whether the house in Launceston was her house Mrs MacNamara            said:

    “No.  It was a rental house”.  (Transcript page 24)

    And later:

    “It was only a rental house and I was only there because of my kids schooling”.  (Transcript page 25)

    Mrs MacNamara was asked where she felt her home was.  She said:

    “Well, St Helens”.  (Transcript page 24)

    (f)The Tribunal finds that Mrs MacNamara travelled to the St Helens property approximately 35 times whilst she was living during the week at the Launceston house.  These were not occasional visits.  They were regular returns to the family home not only to maintain the house for the purpose of sale but to spend time there and to relax at home and keep up friendships and undertake various social activities in the St Helens area. 

    (g)Mrs MacNamara told Centrelink that if the St Helens property did not sell within 12 months she would return to live there.  The move to Launceston was for a particular purpose namely to advance the children’s education.  It was obviously very difficult for Mrs MacNamara to maintain both her house in St Helens and also pay the rent for the Launceston premises.

    (h)All of the expenses of ownership and maintenance of the St Helens property continued to be paid by Mrs MacNamara as well as the necessary rates, electricity and other outgoings.

37. In determining whether or not the St Helens property was Mrs MacNamara’s principal home throughout the relevant period it is necessary however to consider section 11A(9)(a) of the Act. That subsection clarifies the legislature’s intention that despite temporary absences a person’s principal home continues to be that person’s principal home if the person is temporarily absent from it for a period not exceeding 12 months.

38. Although the word “deemed” is not used 11A(9)(a) is in effect a form of deeming provision.  It permits the homeowner to be “temporarily absent” from the principal home during any period “not exceeding 12 months …”  In this subsection the legislature is allowing absences from the principal home but is also expressly placing a definite limit on permitted periods of temporary absence.  The person is allowed to be temporarily absent from the principal home for a full 12 month period.   It is made clear in the Social Security Guide 4.6.3.60 (Page 3) that if a person subsequently vacates the home again then a new continuous 12 month exemption period begins. 

39. The word “absent” should be given its ordinary meaning.  According to the Shorter Oxford English Dictionary (3^rd Edition) it means “away, not present”.  In the same dictionary “temporary” means “lasting for a limited time; existing or valid for a time (only); transient; made to supply a passing need”.

1. As previously stated it is not in dispute in this case that the absence was temporary.  This was the interpretation originally accepted by Centrelink.  Also as explained in paragraph 23 this issue was formally conceded by the respondent.  Mrs MacNamara had told Centrelink that if the St Helens property did not sell she would return to live there.  We now know that this in fact is what happened.  Because of prevailing circumstances the property did not sell and Mrs MacNamara then returned to live with her daughters in that property.  Sale of the St Helens property was an essential step before Mrs MacNamara could make a permanent move to Launceston.  The Tribunal finds in all the circumstances of the case that the move to Launceston to live in rental premises secured by a one year lease was a temporary absence interrupted on frequent occasions by return visits to the home Mrs MacNamara owned in St Helens.

2. Mrs MacNamara did not make merely occasional visits to the St Helens property for the purposes of extending the exemption period. (See Social Security Guide 4.6.3.60 Page 3). She and her daughters regularly undertook the two and a half hour trip by car to St Helens on most weekends and during holiday periods. These regular return visits were not at all onerous as a good portion of the family’s belongings remained at the St Helens property which they had continued to occupy. Because the evidence establishes to the Tribunal’s satisfaction that during the relevant period there had been some 35 visits at weekends and during holidays to spend time at St Helens it finds that Mrs MacNamara was not temporarily absent for any single period of 12 months. It was reasonable to imply from the evidence that the longest period of absence from the St Helens property was only a matter of weeks. Mrs MacNamara was certainly not temporarily absent from the principal home for any single period of 12 months as permitted by section 11A(9)(a). When Mrs MacNamara was at the St Helens property on her frequent visits she was not “absent” within the meaning of section 11A(9)(a).

3. Throughout the relevant period there was an unbroken continuity of association with, and involvement in, the St Helens property.   The frequent family visits were simply part of that continuum.  Mrs MacNamara believed very strongly that the property continued to be her real home.  Renting the house in Launceston was a transient arrangement.

   CONCLUSION

4. It is not in dispute that the St Helens property was Mrs MacNamara’s principal home prior to the 6 February 2010. The Tribunal finds that the property remained her principal home on and from 6 February 2010 until 16 April 2011 and that since then it has continued to be her principal home. By the operation of section 11A(9)(a) the St Helens property continued to be Mrs MacNamara’s principal home throughout the relevant period despite her periods of absence whilst residing in rented premises in Launceston.

   DECISION

5. The Tribunal sets aside the decision under review and in substitution decides:

   (1)That the applicant’s St Helens property remained her “principal home” for the whole of the period on and from 6 February 2010 until 16 April 2011 and continues to be her principal home.

   (2)That the matter be remitted to the respondent to assess, in accordance with this decision, the applicant’s entitlement to parenting payment single.

I certify that the preceding 44 (forty four) paragraphs are a true copy of the reasons for the decision herein of Hon R J Groom AO (Deputy President).

.................[Sgd R Hunt].......................................................

Administrative Assistant

Dated  27 January 2012

Date of hearing	23 November 2011
Counsel for the Applicant	Mr Irfan Yusef
Solicitors for the Applicant	Launceston Community Legal Centre
Counsel for the Respondent	Mr Brian Sparkes
Solicitors for the Respondent	Program Litigation and Review Branch