Real and Secretary, Department of Employment and Workplace Relations
[2006] AATA 881
•14 September 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 881
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2006/11
GENERAL ADMINISTRATIVE DIVISION ) Re MICHAEL REAL Applicant
And
SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Mr SC Fisher, Member Date14 September 2006
PlaceBrisbane
DecisionThe Tribunal:
(1)Affirms the decision of the Social Security Appeals Tribunal dated 18 January 2005.
(2) Sets aside the decision of the Social Security Appeals Tribunal dated 27 July 2005 and in substitution thereof decides that the Applicant is not subject to any administrative breach rate reduction for the period 18 November 2005 to 17 February 2006;
(3)Sets aside the decision of the Social Security Appeals Tribunal and in substitution thereof decides that the Applicant’s principal home after 22 November 2004 was his property at Toowoomba, in respect of which he has been paid rent assistance.
......[Sgd]......
SC Fisher
Member
Administrative
Appeals
Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2006/11
GENERAL ADMINISTRATIVE DIVISION )
Re MICHAEL REAL Applicant And
DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
CORRIGENDUM [2006] AATA 881
Tribunal
Mr SC Fisher, Member
Date
16 November 2006
PlaceBrisbane
The Written Reasons dated 17 October 2006, for the Oral Decision which was handed down by the Tribunal on 14 September 2006 is amended so that:
(a)paragraph (1) of the decision reads:
“affirms the decision of the Social Security Appeals Tribunal dated 18 January 2005”
It should read:
“affirms the decision of Centrelink dated 27 July 2005 as affirmed by the SSAT on 19 December 2005; and
(b)paragraph (2) of the decision reads:
“sets aside the decision of the Social Security Appeals Tribunal dated 27 July 2005”
It should read:
“sets aside the decision of Centrelink dated 18 January 2005, as affirmed by the SSAT on 19 December 2005.
[Sgd]
MEMBER
CATCHWORDS
SOCIAL SECURITY – Newstart Allowance - rent assistance - exemption from Newstart activity test on medical grounds – administrative breach rate reduction - meaning of “principal home”
Social Security Administration Act 1999 s 63(9)(b)
Social Security Act 1991 s 11(7), 13(2)(a)(i), 1070B, 603C
Administrative Appeals Tribunal Act 1975
Veterans’ Entitlements Act 1986 s 5R5(b)Secretary Department of Social Security v Murphy [1998] FCA 809; (1998) 52 ALD 268; (1998) 3 SSR 56
Ajka Pty Ltd v Australian Fisheries Management Authority (2003) 74 ALD 21; [2003] FCA 248
Bantick and Secretary, Department of Family and Community Services [2003] AATA 472
Bramwell v Repatriation Commission (1998) 158 ALR 623; (1998) 51 ALD 56
Collins v Minister for Immigration and Ethnic Affairs (1981) 58 FLR 407; (1981) 4 ALD 198; (1981) 36 ALR 598
Chowhan v Secretary, Department of Family and Community Services [2004] AATA 1236
Australian Tea Tree Oil Research Institute v Industry Research and Development Board [2002] FCA 1127; (2002) 70 ALD 1; (2002) 124 FCR 316
Jebb v Repatriation Commission (1988) 80 ALR 329
Attard v Secretary, Department of Family and Community Services [2000] AATA 1020
Samek v Secretary, Department of Social Security 16 ALD 295
Sewell v Repatriation Commission [2005] AATA 1128
Clarkson v Secretary, Department of Social Security 15 ALD 424
Koitaki Para Rubber Estates Ltd v The Federal Commissioner of Taxation (1941) 64 CLR 241
Dickeson v Secretary, Department of Social Security(1989) 18 ALD 58WRITTEN REASONS FOR ORAL DECISION
17 October 2006 Mr SC Fisher, Member INTRODUCTION
1. The Applicant is in receipt of various income support payments from Centrelink. The Applicant has appealed three decisions; the first decision was made by Centrelink on 18 January 2005 and involves rent assistance from 22 November 2004 in respect of a Toowoomba property. The second decision was made by Centrelink on 27 July 2005 and involves exemption from Newstart activity test on medical grounds. The third decision involves a decision to impose a 16% administrative breach rate reduction period from 18 November 2005 to 17 February 2006.
JURISDICTION
2. In a procedural sense, this Tribunal has jurisdiction in these appeals by virtue of Part IV, Division 5 of the Social Security Administration Act 1999 (“the Administration Act”), and I note that, in a substantive sense, the merits of these appeals are governed by the Social Security Act 1991 (“the Act”). The role of the Tribunal is to review the merits of decisions before it, and that is made clear by s 43 of the Administrative Appeals Tribunal Act 1975 and also by the decision of Secretary, Department of Social Security v Murphy [1998] FCA 809; (1998) 52 ALD 268; (1998) 3 SSR 56.
3. The Tribunal is guided by the normal standard that it should reach the correct or preferable decision on the basis of the material before it and, in that regard, I cite Ajka Pty Ltd v Australian Fisheries Management Authority (2003) 74 ALD 21; [2003] FCA 248 at 43. This Tribunal is required to stand in the shoes of the original decision-maker or review or appellate decision-makers, and consider all evidence anew, bearing in mind statutory provisions and any significant legal precedent. In that regard I refer to Bantick and Secretary, Department of Family and Community Services [2003] AATA 472 at 23.
4. The Tribunal proceeds de novo for which I cite Bramwell v Repatriation Commission (1998) 158 ALR 623 at 622; (1998) 51 ALD 56 at 60 per Weinberg J, and also I note that the Tribunal must base its decision upon material that is logically probative of the existence of facts that emerge from the evidence before it, and traditionally the authority cited in that regard is Collins v Minister for Immigration and Ethnic Affairs (1981) 58 FLR 407; (1981) 4 ALD 198; (1981) 36 ALR 598 at 601.
5. I am also mindful of the fact, as discussed by a Member of this Tribunal, Dr Christie, in his decision in Chowhan v Secretary, Department of Family and Community Services [2004] AATA 1236 at 32 and 33:
“The legislation is the only basis for the review of this administrative decision. Administrative decision-makers are not permitted to depart from the law. The Tribunal must make its decision on the merits of the case - but in accordance with the legal requirements imposed by the two Acts I’ve referred to, together with relevant legal principles that arise from decisions made by Australian courts.”
At paragraph 33, Dr Christie said:
“Administrative decision-makers are generally required to address the evidence before them and not confine themselves to evidence before a prior decision-maker whose decision is being reviewed unless the relevant legislation requires a decision to be based upon the circumstances at a particular point of time.”
In that regard, Dr Christie cites Australian Tea Tree Oil Research Institute v Industry Research and Development Board [2002] FCA 1127; (2002) 70 ALD 1; (2002) 124 FCR 316 at 324 to 326. Davies J in Jebb v Repatriation Commission (1988) 80 ALR 329 at 333 said:
“[generally a ‘continuum’ in which] …‘the tribunal considers the applicant’s entitlement from the date of application, or other proper commencing date, to the date of the tribunal’s decision.”
In practical terms, that can sometimes mean that circumstances that arise in the case of applicants, taking place after a decision below has been made, can be taken properly by this Tribunal into account. I note, parenthetically, that a court would not do so because the court’s remit or mandate is much more confined to the legality of a particular decision, be that as it may.
ISSUES
6. The issues are three-fold. The first issue was whether the applicant was entitled to rent assistance in respect of his Toowoomba property from 22 November 2004. The second issue is whether Mr Real should be exempted from the Newstart Allowance activity test on medical grounds. The third issue is whether the applicant’s entitlement to Newstart Allowance should be subject to an administrative breach rate reduction.
7. I will make findings of fact relative to each of the issues rather than to make them globally and then work my way through them. I will deal with what became the second issue on the papers, but is really the least important issue overall in this case, and that is the issue about the exemption from the Newstart activity.
NEWSTART ALLOWANCE ACTIVITY TEST EXEMPTION ISSUE
8. This is the least troublesome issue in this case, mainly because the Applicant made a concession. It was a very proper concession, that really the issue was no longer alive but, in deference to the fact it was the subject of evidence and also argued, I will say something about it, reasonably briefly. Section 593 of the Act provides the qualification for Newstart Allowance, and, essentially, to paraphrase s 593, it says that “ ….. a person is qualified for a Newstart Allowance in respect of….” a particular period of time if the person satisfies the Department, or Secretary, or Centrelink, through the relevant period, that is the period for which the claim was made, I interpolate – “…. that the person is unemployed”.
9. Not only must the claimant meet the requirements for unemployment or the status of s 593(1)(b), the claimant for Newstart Allowance must, throughout the period, or for each period within the period, satisfy the Department that he or she satisfies the activity test, or, alternatively, is not required to satisfy the activity test.
10. There are various consequential provisions which elaborate on how an activity test is satisfied. In that regard, I note that s 603C says (paraphrased):
“A person is not required to satisfy the activity test in respect of a period if:
(a)throughout the period the person is incapacitated for work because of sickness or accident;
(b)the incapacity is caused wholly, or virtually wholly, by a medical condition resulting from the accident or sickness;
(c) the incapacity is, or is likely to be of a temporary nature”
11. There are various other consequential provisions that are in s 603C(1) which I will not elaborate.
12. I find as a fact, and there was certainly no contest on the facts before me, that the Applicant suffers from medical conditions, and there were two that were of some significance. The first is that the Applicant has non-insulin dependent diabetes mellitus (NIDDM) and he also has bi-lateral tight Achilles tendon, and in that regard, I am satisfied that the Applicant meets the requirements of s 603C(1)(a). I am also satisfied that his incapacity is caused wholly by those two medical conditions, so that satisfies paragraph (b) of the provision, and the critical issue is whether or not the incapacity is or is likely to be of a temporary nature.
13. The medical evidence before me, and I’ll return to the evidence and the documents before me after this issue, establishes to my satisfaction that the incapacity that the Applicant suffers from is permanent and there are two reasons for that. First, his treating medical practitioner, Dr Colebatch, provided a medical certificate to that effect, where the doctor certifies the permanence of the condition and secondly, the Applicant, quite candidly and openly in his evidence, both in examination-in-chief and also in cross-examination, indicated that his condition is permanent.
14. That is enough to conclude the activity test exemption issue against the Applicant, and in his closing submissions, the Applicant formally abandoned that claim and I affirm the decision from the Social Security Appeals Tribunal. I might add that there was a very proper abandonment on the part of the Applicant which assisted in the ultimate economy with which this case can be disposed of.
15. The second issue I want to deal with was in fact the third issue argued, which happened to be the administrative breach rate reduction. I make findings of fact in this regard. I note that the Secretary imposed an administrative breach rate reduction for a 13 week period from 18 November 2005 to 17 February 2006. The basis for that breach was that, according to the respondent, the Applicant failed to attend an appointment with the Salvation Army Employment Plus on 6 September 2005.
16. The Respondent argued that the Applicant did not have a reasonable excuse for not attending, and, in that regard, the Respondent referred to and relied on a previous history of non-compliance with various other appointments made in respect of the Applicant, including, five work capacity assessments which the Applicant did not attend. I will return to the spirit of his compliance with his obligations at a later point in these reasons. The Applicant gave evidence before me that he was working on that particular date, which I accept.
17. Exhibit 8 was a Centrelink form completed by the Applicant. It is captioned “Application for Payment Form for Newstart Allowance” and the particular form is loosely called “Continuation Form” for the period 23 August 2005 to Monday 5 September 2005. In Question 3, in response to a question posed, “Did you look for work in this period?”, the Applicant gave four employers, the second of which was a surveying firm by the name of Saunders and Havill at Bowen Hills and he nominated his class of employment as surveyor.
18. The Respondent was caught by surprise by this particular piece of evidence and also by the fact that, as it emerged in evidence, that the Applicant had, in fact, worked on the relevant date he was supposed to be attending the Salvation Army Employment Plus job assistance interview, namely 6 September 2005. I do accept the Applicant as a witness of truth. Mr Real was very candid in his evidence and certainly it was not suggested by the Respondent that he in any way lied or misrepresented himself to the Tribunal.
19. I find that the Applicant is a credit-worthy witness and I find that where there is any difference in the evidence leading to facts, that I prefer the Applicant’s version of events to that of Centrelink. I do note, that there were no real significant factual issues that emerged once all the evidence was in. There may, of course, have been a variation in the perception of the issues on the part of the Respondent, but as will become very apparent, that fell away.
20. The significance of Exhibit 8 is that it provides corroborative evidence to support the Applicant’s contention that he did, in fact, work on 6 September 2005. I am prepared to find as fact, because I accept Mr Real’s evidence, that he did in fact work on that day and it stands to reason that if a Newstart claimant, such as Mr Real, indicates a week beforehand or so or a fortnight beforehand, that he is looking for work and nominates an employer, that it stands to reason he may in fact secure the work he claims he has looked for. I accept Mr Real’s word on this point, and his evidence, and it follows then that I am satisfied that Mr Real did, in fact, work on 6 September 2005.
21. What is the significance of that finding of fact? That locks the Tribunal, as the decision-maker, into s 63 of the Administration Act. I will not go through all the details of s 63, except to note a couple of key provisions. I note s 63(9)(b) which relevantly says, the Secretary, or with this decision-maker on review, may determine that an administrative breach rate reduction period does not apply to a person under paragraphs 4(e) or subsection 5:
“…. If the Secretary is satisfied that the person had a reasonable excuse for not complying with the requirement under subsections 2 or 3”
as the case requires, and, in this case, subsections 2 or 3 relevantly point the Tribunal in the direction of having to make a determination about when a social security payment is not otherwise payable.
22. The Respondent did argue, with some degree of persuasion, bordering on forcefulness, that Mr Real really should have checked his mail more regularly and, in that regard, the fact that he did not locate the letter that pointed him to this particular appointment is an indication that he does not have a reasonable excuse. For his part, Mr Real said that - the word that emerged in evidence and in discussion with myself - was that he was somewhat disdainful of receiving correspondence from Centrelink.
23. It is regrettable that Mr Real has such an attitude towards his Centrelink obligations because the relationship between Centrelink and Mr Real is based on reciprocity. Mr Real is an applicant for income support payment and benefits from the Department, ultimately funded by the taxpayers and the public debt of this country and I find it somewhat disconcerting that Mr Real has a cavalier attitude to his compliance responsibilities. True it is that Mr Real says, and I accept, that he is somewhat upset at the treatment he says that Centrelink has meted out to him, and he used words such as “mendacious” and “pernicious” to describe the level and tone of his dealings with Centrelink.
24. It is not necessary for me to second-guess Mr Real on that point, whether, in truth, that is an accurate label for his dealings, except I do notice what Mr Real subjectively believes in that regard. In any case, if Mr Real had been poorly treated by the Department, that does not excuse Mr Real’s persistent habit of non-compliance when it comes to obtaining his mail and that is significant because Mr Real is an itinerant worker. Although Mr Real is trained as a surveyor and does surveying work in the field, he is prepared to take a lot of other jobs, which, in fact, do take him around the country.
25. As I understand his evidence, he does not use a mobile phone and he does not rely on relatives to collect his mail for him. The immediate question then, is does Mr Real have a reasonable excuse for not attending the relevant interview on 6 September 2005? It was common ground between the parties that that was the critical date. I am of the opinion, and I make a finding, that the Applicant does have a reasonable excuse for not attending that interview.
26. It is quite clear that if the Applicant is working on the relevant day, he is doing exactly what a Newstart Allowance recipient is intended to do and is required to do, that is, not only look for work, but to take work when, in fact, it is on offer. So, in that regard, the formal decision I make is that the decision by the SSAT which affirmed Centrelink’s decision to impose a 16 per cent administration breach rate reduction should, in fact, be set aside and any consequential repayment made to the Applicant.
27. The most difficult issue in this case, is in fact, the third one and I will make reference to the evidence before me. The material before the Tribunal is as follows:
Exhibit 1 T documents filed by the Respondent
Exhibit 2 Decision of the SSAT in Appeal Number D20380, filed by the Respondent.
Exhibit 3 Electronic file note dated 16 August 2005, filed by the Respondent.
Exhibit 4 Electronic file note dated 18 August 2005, filed by the Respondent.
Exhibit 5 Electronic file note dated 2 September 2005, filed by the Respondent.
Exhibit 6 Screen capture of payments printed on 19 July 2006, filed by the Respondent.
Exhibit 7 Bundle of Applicant’s medical records, filed by the Applicant.
Exhibit 8 Application for Payment form, filed by the Respondent.
28. The Applicant was self-represented and the Respondent was represented by Ms S Dole, a departmental advocate. Ms Dole filed an outline of submissions in the shape of her Statement of Facts, Issues and Contentions, which, I found very helpful and very concise. It dealt with some extensive factual situations in a very summary and concise way. In terms of evidence, I note that the Respondent did not call any evidence.
29. Returning to issue number three which is the most difficult issue to deal with. To recast it or to state it once more, is whether the Applicant was not entitled to be paid or to receive rent assistance in respect of his Toowoomba property from 22 November 2004 onwards. The Applicant’s contention is that any reference by Centrelink to any period of time before 22 November 2004 was irrelevant and immaterial and should not be taken into account by any decision-maker.
30. That submission certainly has the virtue of simplicity. The Respondent argued that, partly because of s 11(7) of the Social Security Act 1991, this decision-maker should take into account prior periods of non-residence at the principal home of Mr Real in determining whether or not he, in fact, meets the residential qualification requirements. I will indicate the tortuous statutory provisions which lead to consideration of this issue, but I thought I would simply, at the outset, state the parties’ contentions.
31. Firstly, I want to consider the legislative framework. Section 1070B states the general rule for qualification for rent assistance:
“A person qualifies for rent assistance if the person satisfies:
(a) the common requirements contained in section 1070C; and
(b) any specific requirements.”
32. It is a bifurcated regime. If one moves on to s 1070C, there are four criteria enumerated in that provision which determine whether or not somebody is eligible to receive what is known as “rent assistance”. Two of the criteria are exclusionary and two of them are inclusionary. I do not need to worry about the exclusionary criterion in s 1070C(a) and (b). One, they were not relevant on the facts, and two, they were in contest. The critical one is paragraph (c) and I quote:
“The person pays, or is liable to pay, rent, other than government rent, in respect of a period in respect of premises in Australia.”
33. I do not need to worry about paragraph (d) of that provision because, again, it was not in contest that the fortnightly event was more than the rent threshold amount.
34. Having mentioned s 1070B and C, the next provision that one must turn to is, in fact, s 13 of the Act. The relevant provision is s 13(2)(a)(i) and, in particular:
“Amounts are rent in respect to the person, if:
(a) the amounts are payable by the person:
(i)as a condition of occupancy of premises or of part of premises occupied by the person as the person’s principal home.”
35. Reference to “principal home” sends the reader on to s 11 of the Act. Section 13(2)(a)(i) refers to the occupancy of premises and in that regard the definitions of occupancy contained in the text is, Black’s Law Dictionary Abridged 7th Edition, edited by Brian Garner, where, at page 883, the learned author gives four meanings in respect of the word “occupancy”. Only three of these are potentially relevant.
Meaning One:
“The act, state or condition of holding, possessing or residing in or on something, actual possession, residence or tenancy, especially of a dwelling or land.”
Meaning Two:
“The act of taking possession of something that has no owner, such as abandoned property, so as to acquire legal ownership.”
Meaning Three:
“The period or term during which one owns, rents or otherwise occupies a property.”
Meaning Four:
“The state or condition of being occupied.”
36. There are one or two other meanings I do not need to descend into. These meanings of “occupancy” will prove material as these reasons for decision will ultimately show.
37. Section 11 of the Act basically provides a lot of definitions that are used in conjunction with asset tests and various other qualifications for various income support payments under the Act and, in that regard, I note that s 11(1), in defining the term “principal home” refers the reader onto sections 11(5), 11(6) and 11(7).
38. Section 11(7)(a) says:
“A residence of a person is taken to continue to be the person’s principal home during:
(a)any period (not exceeding 12 months) during which the person is temporarily absent from their residence.”
39. The Applicant’s contention on the application of this provision has the virtue of simplicity. Mr Real says effectively this:
(a)The relevant period that we are assessing rent assistance from is 22 November 2004 onwards.
(b)Even if he was absent from his Toowoomba property during that time, it was certainly well short of the 12 month period that section 11(7)(a) refers to before a person ceases to no longer reside in their principal home.
40. Ms Dole said that the matter should be looked at more broadly. Ms Dole urged on the Tribunal to take a broader view of the facts and the circumstances of non-occupation of Mr Real’s Toowoomba property in properly interpreting and understanding this provision.
41. It became apparent at the end of closing addresses that the Applicant’s principal argument was that because the decision below referred to 22 November 2004 and not an earlier period of time, the Tribunal did in a sense, give Ms Dole leave to provide further submissions to the Tribunal and to the Applicant concerning the proper understanding of this provision.
42. Ms Dole referred to Attard v Secretary, Department of Family and Community Services [2000] AATA 1020 and to paragraph 26 in particular. Member Campbell of this Tribunal said:
“In analysing the intent of subsection 11(7)(a), the Tribunal concludes that, when the period exceeds 12 months of temporary absence, the residence of a person which was previously the principal home of the person does not continue to be the principal home. Further, it would appear to the tribunal that the particular circumstance nominated exceeding 12 months is both definitive and exhaustive, as it is for all of the circumstances defined in subsection 11(7) of the Act.
A contrary interpretation would, in the tribunal’s view, create a nonsense and defeat the intention of this provision, which is to create clearly defined circumstances in which continuation of principal residence exemption status can be maintained, despite the absence of residence.
Such a contrary interpretation could, in the tribunal’s view, create a situation in which it could be argued that a person’s principal home remained the principal home for this Act no matter how long the person remains non-resident in the home, and this could, in itself, lead to situations which would obviously be inconsistent with the purposes and objectives of the Act.”
43. Ms Dole relied upon paragraph 26 of Attard’s case and urged the Tribunal to make a finding that the Applicant had been absent from his Toowoomba home as the putative or purported principal home of his for longer than 12 months, therefore, he is, in effect disqualified from having that property as his principal home.
44. Earlier in the hearing, the Tribunal was referred to a couple of other decisions by Ms Dole, one of which is a decision often cited, but not always carefully, in this Tribunal. It is a decision of this Tribunal Samek v Secretary, Department of Social Security 16 ALD 295. It is an excerpt of a longer decision.
45. The passage urged on me by Ms Dole, in both her oral submissions and her written ones, was from the heading “The Principal Home”:
“The concept of the principal home assumes, however, that there is more than one property which is used as a home. If one moves from home to home, then the home which one spends most time would, logically, be the principal home. But the context in which it appears to talk of one home being a principal home and another being a secondary home, the respective homes must be property which can be valued for the purposes of the Act.”
I interpolate that this was the issue in that case.
“Thus, as between a city house and a holiday home owned by a retired couple in my earlier example, the city house would remain their principal home for as long as they spent the bulk of their time there. But once they spent the bulk of their time in their holiday house, it would become their principal home.”
That passage is often urged on this Tribunal in principal home decisions, but the following passage is often not referred to. Senior Member Hayes said this:
“A person who owns a residential property in the city and who is in the habit of living there, but who spends the bulk of his or her time travelling around the country living in hotels and pursuing business or recreational interests from those hotels and pursuing business or recreational interests from those hotels, can still be regarded as retaining the city property as his or her principal home. While the person spends more time each year in hotels than at home, he or she has no proprietary interest in the hotel room and so cannot be regarded as setting up a home which can be regarded as such as to make the city home a secondary one.”
46. I will now make some findings of fact which anchor the application of these provisions and the case law referred to. The applicant is in the habit of being an itinerant worker. He works predominantly as a surveyor, as I understood his evidence, but he also indicated that he took jobs in other occupations throughout Australia, including a job as a fruit picker in Darwin, a pyrethrum harvester in Tasmania and he also worked in Gladstone. These are just some of the places throughout Australia that the Applicant worked. I am well satisfied on the evidence before the Tribunal that the Applicant is an itinerant worker.
47. Mr Real said in his evidence, and I accept and find as a fact, that he regards his principal home as being Toowoomba, in a place called Unilink Village. Mr Real said that he is a share occupant of a house, described loosely as “a share house”, in which he has a part of that allocated to him. Mr Real said, and the Tribunal accepts and so finds, that he has many of his cherished personal possessions there; an extensive book collection, many of his other valuables, and also his music collection. He also keeps his car garaged there.
48. There are certainly indicators that Mr Real has his, as he sees it, centre of gravity in that particular location. Is that enough to make that his principal home? Mr Real does in fact travel the country extensively in search of work. Mr Real accepts that he has a personal obligation to work, to support himself, albeit assisted by Centrelink and it is in pursuit of that goal that has led Mr Real to continue to find work throughout the country instead of, as was suggested to him by the Tribunal during the hearing and also in written submissions by Ms Dole, he is working instead of finding himself on or applying for Disability Support Pension.
49. That is a private decision for the Applicant to make. It is not for the Tribunal to tell him what benefits he should either apply or not apply for. In terms of what a home is, “principal home”, “home” appears at various points in income support law. It appears in s 11 of the statute, in this case, the Act, the Social Security Act. In Sewell v Repatriation Commission [2005] AATA 1128, at paragraph 31, considering s 5R5(b) of the Veterans’ Entitlements Act 1986, I said:
“In my opinion, a home within that provision is a place where a person dwells or resides.”
Clarkson v Secretary, Department of Social Security 15 ALD 424 at paragraph 35 went on to say:
“Another way of expressing the same idea is that a home is a place where a person has their centre of gravity and where many of their important family and public and private social relationships are lived and carried out.”
50. The facts of that case were very different to this one so I do not want to use a finding of fact in an earlier case to make good a proposition of law. The piece of information I wanted to extrapolate from Sewell’s case is this notion of a centre of gravity and it was in fact a phrase I used, albeit inadvertently, during the hearing, and I noticed that Dr Christie in Chowhan’s case, cited earlier, the learned member also uses that expression in determining whether somebody does or does not have a principal home.
51. In that regard, I will refer to a couple of key passages that I think are helpful. At paragraph 35, Dr Christie said this in terms of working out whether or not something has risen to principal home. Dr Christie referred to the decision of the High Court of Australia in Koitaki Para Rubber Estates Ltd v The Federal Commissioner of Taxation (1941) 64 CLR 241 where the High Court acknowledged that a person may maintain a home or homes in which he or she resides, and concluded that the place of residence of an individual is determined by reference to where he eats and sleeps, and has settled or usual abode.
52. Dr Christie went on to refer to Dickeson v Secretary, Department of Social Security (1989) 18 ALD 58 and I will quote the relevant extra in full because I think it is helpful.
“In assessing the criteria of what constitutes a home, a substantial degree of occupation is persuasive…… whereas conversely, occupation by occasional visiting is not, and living away from the family home in other premises causes the family home to no longer be the principal home.”
53. In that case, Samek’s case is cited:
“A home is likely to be the place where persons ordinarily eat morning and night and where they sleep and, in the case of adults, have the characteristics of permanency. It is a concept of nature and it is the place where the centre of gravity of one’s domestic life is to be found. Where one chooses to live is relevant and a reference to a home requires an affinity to its location and usage by the occupier. A home need not be a structure of four walls and a roof, but may be constituted by a caravan, a campervan or, indeed, a yacht.”
54. Various examples are given. In summarising, a reference to somebody’s home is the place where their centre of gravity is and it is really a mixture of both objective and subjective criteria. In terms of the evidence, the evidence before me establishes that, subjectively, Mr Real believes that his Toowoomba base, his Toowoomba premises, is in fact his principal home. Mr Real’s evidence and his submissions urged on me to find that he is an itinerant worker, that he migrates, to use a loose word perhaps, around the country in search of work, but that he regards Toowoomba as his permanent base, and it is only because of his work activities that he, in fact, does travel around Australia.
55. Against that I need to place the objective indicators. The first is Mr Real clearly has long periods of time in which he is not physically situated at the Toowoomba property and Mr Real said quite openly and properly in cross-examination that that was so. Mr Real urged on me that the relevant period of time is, in fact, from 22 November 2004 onwards. This is the most troublesome aspect of the case and it comes down to a question of whether I should find that Mr Real’s principal home is in fact Toowoomba or in fact some other place.
56. I have thought carefully about this and I have come to the view that despite the decisions of decision-makers elsewhere, that the Applicant’s principal home is, in fact, Toowoomba. I have taken into account the fact that Mr Real is an itinerant worker and does not have any family members who reside at that home. He is on his own in life, if I might put it that way, with no disrespect to him. I take into particular regard and place, particular weight on the fact that his prized personal possessions are, in fact, in the Toowoomba property.
57. I take into account that the nature of the Applicant’s work as a surveyor, of necessity, must take him away from his Toowoomba home. The Applicant gave evidence, which I accept, that he does work as a cadastral surveyor, and that is the type of surveying work, which indeed, requires one to be in many different localities, according to where his employer, whether temporary or permanent, might in fact send him. The Applicant gave evidence, which I accept, that he wants to work instead of being on, or take the benefit of Disability Support Pension, and in his quest for work and to be as self supporting as is humanly possible, he takes work all around Australia. I have already instanced work in Brisbane, Darwin, Gladstone and Tasmania.
58. It is true that the evidence before me discloses that the Applicant does in fact stay for extended periods away from the home, but I do have regard to the fact that the critical date is in fact, 22 November 2004. To recap, Ms Dole urged the Tribunal to take into account a much longer period of non-attendance, to use a neutral phrase, on the Toowoomba property, but the Tribunal takes the view that that is not the correct characterisation of the issue to be determined. With regard to s 11(7)(a), that it is a provision that in fact provides an exception to what might be the common law result that if one is not at the home, one does not reside there.
59. The Tribunal does have regard to the fact that in Jebb v Repatriation Commission, cited previously, that the critical thing is for the Tribunal, as the decision-maker to consider the Applicant’s entitlement from the date of application or other proper commencing date to the date of the Tribunal’s decision.
60. I note two things in that regard. First, Newstart Allowance is assessed on a periodic basis and, indeed, the continuation forms, including exhibit A before me, demonstrate that, and indeed, it follows from the statute, not just administrative practice, that Centrelink assessed somebody’s eligibility for a Newstart Allowance on essentially a fortnight by fortnightly basis. To use an example, if the Applicant was qualified for a Newstart Allowance in, fortnight number one, but he then worked in fortnight number two in such a way as to take his income above the relevant cut-out amounts, the Applicant would not cease to be qualified for Newstart Allowance, save possibly because he was not unemployed any more.
61. It is the case from my understanding of Social Security law and entitlements, and having regard to what Davies J said in Jebb’s case, that in fact the relevant operative period I must have regard to is 22 November 2004.
62. In terms of the relevant period after that, it is much less than 12 months. Possibly four or five months after 22 November 2004 were at issue. Having regard to that length of time, it follows that the Applicant is not disqualified by virtue of the 12 month exception rule contained in s11(7)(a). In view of that finding, I make a decision that the decision below, in terms of the Applicant’s principal home, must be set aside and I am satisfied that the Applicant was resident in Toowoomba after 22 November 2004 for all material purposes.
63. The decision made by the Social Security Appeals Tribunal affirming Centrelink decisions that the Applicant is not exempted from the Newstart Allowance activity test on medical grounds because the Applicant does not satisfy the statutory criteria is affirmed. The Tribunal sets aside the decision that the Applicant is subject to a Newstart Allowance administrative breach rate reduction of 17 per cent over the period 18 November 2005 to 17 February 2006 and in substitution the Tribunal decides that the Applicant was not subject to any administrative breach rate reduction for that period. I further decide on the evidence before me that the Applicant’s principal home after 22 November 2004 was his property at Toowoomba, in respect of which he has been paid rent assistance.
I certify that the 63 preceding paragraphs are a true copy of the reasons for the decision herein of Mr SC Fisher, Member
Signed: Michelle Brazier
Legal Research OfficerDate/s of Hearing 20 July 2006, 14 September 2006
Date of Decision 14 September 2006
Written reasons for decision 17 October 2006
Applicant Mr Real represented himself
Respondent Ms S Dole, Departmental Advocate
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