Plohberger v Commissioner for Social Housing (Administrative Review)

[2009] ACAT 22

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

PLOHBERGER v COMMISSIONER FOR SOCIAL HOUSING (Administrative Review) [2009] ACAT 22

AT 99 of 2008

Catchwords:             HOUSING ASSISTANCE – Review of decision declining application for housing assistance – eligibility criteria for assistance – asset eligibility limit – interest in residential property

Housing Assistance Act 2007 (ACT), s19(1)

Housing Assistance Public Rental Housing Assistance Program 2008 (No 1), Clauses 9(1)(e), 9(1)(f) & 9(3)

Tribunal:Brian Hatch, Member

Date of Hearing:       19 June 2009

Date of Decision:      14 July 2009

AUSTRALIAN CAPITAL TERRITORY            )
CIVIL & ADMINISTRATIVE TRIBUNAL       )          AT 99 of 2008

MONIKA HELENE PLOHBERGER

Applicant

AND

COMMISSIONER FOR SOCIAL HOUSING

Respondent

Tribunal:                   Mr B. Hatch

Date of Order:          14 July 2009

ORDER

The decision under review is affirmed.

…………………………
B Hatch, Member

AUSTRALIAN CAPITAL TERRITORY            )
CIVIL & ADMINISTRATIVE TRIBUNAL       )  AT 99 of 2008

MONIKA HELENE PLOHBERGER

Applicant

AND

COMMISSIONER FOR SOCIAL HOUSING

Respondent

REASONS FOR DECISION

1. The Applicant seeks a review of the Decision by the Delegate of the Commissioner for Social Housing.  The Delegate agreed with the recommendation of the Housing Assistance and Tenancy Review Panel that in accordance with Clause 9(1)(e) of the Housing Assistance Public Rental Housing Assistance Program 2008 (No 1) that the Applicant be denied housing as she is the current owner of residential property in Victoria.  That review was completed on 29 October 2008 and the Delegate made his decision on 5 November 2008.

FACTS
FINDINGS

2. The evidence before the Tribunal is that the Applicant moved to the ACT with her two sons in December 2007.  Her sons are now 10 and 13 years of age.  The move to Canberra followed the making of a Family Court Order on 28 November 2007.  That Court Order permitted the Applicant to move from where she was then living at Mount Beauty in Victoria to Canberra. 
3. A further part of the Family Court Order which is relevant is that the Applicant was restrained by those orders from allowing her sons to be in contact with certain named people.  The background to these orders is that the Applicant had been involved in a relationship which proved to be abusive in a number of ways towards her sons.
4. From the documents filed, and during the Hearing, the Applicant gave evidence that this matter is clearly something involving great distress to the Applicant and her family.  Since moving to Canberra she has not been able to secure permanent accommodation.  For sometime she was living with her adult daughter and that daughter’s partner.  The Applicant described her daughter and partner’s relationship as volatile, which was itself adding problems to that cramped accommodation.  In addition, as a result of circumstances surrounding the Applicant’s relationship in Mount Beauty, she has been suffering from a psychological impairment. She was receiving treatment for that in Victoria but since moving to the ACT has not been able to afford treatment with a psychologist.  She has been discussing the possible need for further treatment with her medical practitioner.
5. The Applicant owns a house in Mount Beauty.  The Applicant’s evidence is that Mount Beauty is a small town and in order to escape from the relationship she had in that town she needed to leave the area.  I accept that evidence.  The Applicant moved to Canberra with her children as she has a daughter living here together with other relatives.  The house in Mount Beauty was initially given a value of about $160,000.00.  Evidence was tendered at the Hearing to show that the value of the house is more now in the order of $200,000.00 to $220,000.00.  I accept that evidence.  The Applicant has now placed that house on the market but gave evidence that the agent she was using to sell the house considered there were certain difficulties in getting the house sold as it was in some disrepair.  The house had been rented but the Tenant caused some damage to the house.  That tenant has now gone but the house needs repairs.
6. The Applicant gave evidence that the mortgage on the house is approximately $27,000.00 which was a figure not disputed by the Respondent.  The Applicant owes in the order of nearly $10,000.00 to the legal aid authorities in Victoria which is a debt arising from her family law proceedings.
7. Upon moving to the ACT the Applicant attempted to secure housing from the Respondent.  That request has not been granted and the matter now falls to me to make a decision.

1. This Application comes to being as a result of the Housing Assistance Act 2007 (ACT). Pursuant to Section 19(1) of that Act the Housing Assistance Public Rental Housing Assistance Program 2008 (No 1) was approved by way of a disallowable instrument on 13 May 2008. The eligibility criteria for assistance are set out in clause 9(1). The two relevant criteria for these purposes are as follows:

   (e)none of the applicants has any interest in residential real property in Australia;

   (f)the combined value of assets of the applicants is not more than the asset eligibility limit;

1. In relation to clause 9(1)(e) the Applicant clearly has an interest in residential property in Australia. That was initially the basis upon which the Respondent disallowed the Application for Housing Assistance. Clause 9(3), however, provides exceptions to subparagraph (e).  The Applicant clearly falls within the terms of Clause 9(3).  Clause 9(3) states as follows:

   Also, subclause (1)(e) does not apply to property in which an applicant has an interest if-

   1. the housing commissioner decides it is not reasonable for the applicant to live in the property having regard to the following:

   i.the nature or location of the property;

   ii.the nature of the applicant’s interest in the property;

   iii.any restraining order, protection order or other order of a similar kind that affects the applicant’s ability to live in the property; or

   iv.any pending or anticipated action under the Family Law Act 1975 (Cwlth) which may result in the property being the subject of an order under that Act; and

   2. the housing commissioner is satisfied that the applicant has made or is making reasonable efforts to dispose of the applicant’s interest in the property.
   10. The Applicant gave evidence, which the Respondent accepted, that the house at Mount Beauty is now for sale and therefore subparagraph (b) of Clause 9(3) is satisfied.
   11. The Applicant’s difficulty with this Application for Review is Clause 9(1)(f).  The asset eligibility limit is defined in the program as an amount determined by the commissioner or where no determination has been made at $40,000.00.
   12. Assets are also defined in the program as follows:

   assets, of a person, means all assets owned by the person –

   a.   including assets in which the person has a contingent or beneficial interest; but

   b.   not including assets of a kind that the housing commissioner has determined are not assets for the purpose of this definition.

13. The Applicant’s interest in her house at Mount Beauty clearly falls within the definition of assets under the program.  The evidence is that the Applicant’s house is worth $200,000.00 to $220,000.00.  At an earlier stage the Applicant had considered that her house may have been worth only $160,000.00. 
14. The Applicant’s evidence is that she has a mortgage of about $27,000.00 and owes a further $10,000.00 approximately to Legal Aid in Victoria.  Even taking the lowest possible value of the house at Mount Beauty the Applicant’s assets easily exceed $40,000.00.
15. This case is unfortunately like many cases that come before the Tribunal in relation to Housing Assistance.  The Applicant has, together with her sons, faced enormous difficulties in the last few years which has culminated in Court Orders which effectively allowed her to flee an abusive domestic situation in Victoria and come to the relative safety of Canberra where other members of her family live. Since coming here the Applicant has been unable to secure stable accommodation.  Mr Adkins, for the Respondent, made submissions that there are about 2,000 people on the waiting list for housing.  Such housing is in short supply.  This is not a matter where the Tribunal can make a decision based on what I consider to be in the best interests of the Applicant.  My decision is based on the Law.  In these matters the law is designed to help those most in need taking into account the shortage of housing available for these purposes.  In the circumstances, this Application must be dismissed.
16. I affirm the Decision under Review.

…………………………
B Hatch, Member

PUBLICATION DETAILS

TO BE PUBLISHED

To be completed by Tribunal Staff

PART A  FILE NO:      AT 08/99

APPLICANT:                MONIKA HELENE PLOHBERGER

RESPONDENT:            COMMISSIONER FOR SOCIAL HOUSING

COUNSEL APPEARING:       APPLICANT:          

RESPONDENT:      MR C ADKINS

SOLICITORS:  APPLICANT:          

RESPONDENT:      

OTHER:  APPLICANT:          MS M PLOHBERGER

RESPONDENT:      

TRIBUNAL MEMBER:            MR B HATCH

DATE OF HEARING:   19 JUNE 2009   PLACE: CANBERRA

DATE OF DECISION:  14 JULY 2009   PLACE: CANBERRA

PART B

RECOMMENDATION:

FULL REPORT ( )        CASE NOTE ( )        UNREPORTED DECISION ( )

COMMENTS: