Repatriation Commission v Clarke, L.B

[1991] FCA 518

Re: REPATRIATION COMMISSION
And: LAURENCE BERNARD CLARKE
No. V G73 of 1991
FED No. 518
Veterans' Entitlements
14 AAR 33
(1991) 31 FCR 62

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIAN DISTRICT REGISTRY
GENERAL DIVISION
Heerey J.(1)

CATCHWORDS

Veterans' Entitlements - application for rent assistance - s.55 Veterans' Entitlements Act 1986 - whether hostel is "residential premises the accommodation in which is primarily intended for persons who are at least 55 years old" - s.35 Veterans' Entitlements Act 1986.

Veterans' Entitlements Act 1986: ss.35, 55

Aged and Disabled Persons Homes Act 1954: s.2

Social Security Act 1947: s.25(1)

HEARING

MELBOURNE

#DATE 16:8:1991

Counsel for the Applicant: Mr N.J.D. Green

Solicitors for the Applicant: Australian Government Solicitor

Counsel for the Respondent: Mr I.H. Munro

Solicitors for the Respondent: Legal Aid Commission of Victoria

ORDER

The application be dismissed with costs including reserved costs.

2 September 1991 be fixed as the relevant date for the purposes of O.52 r.15(1)(a)(iii) of the Federal Court Rules.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

In my opinion this application should be dismissed. The point raised is a narrow one. The complex legislative setting in which that point arises has been clearly described and explained in the decision of the Administrative Appeals Tribunal and I shall not repeat it. The point is whether the Glendale Aged Care Hostel ("the hostel") is "residential premises the accommodation in which is primarily intended for persons who are at least 55 years old" within the meaning of the definition of "retirement village" in s.35 of the Veterans' Entitlements Act 1986.

1. If the answer to that question is no, the respondent and his wife, who have lived at the hostel since 4 March 1990 after selling their home, will be eligible for rent assistance under s.55 of that Act.

2. In my opinion, as counsel for both sides accepted, this is essentially a question of fact. The intention referred to is that of the person or persons who have the power to decide who shall be admitted to residence in the premises. In the present case that is IOOF Community Villages Friendly Society, the operator of the hostel.

3. I think "primarily intended" here means principally, chiefly or mainly intended. The evidence shows that the hostel is described by its operator as an aged care hostel. The "maintenance fees" payable by residents, which include payment for all meals, cleaning, linen and other services, are fixed as a percentage of age pensions payable under the Social Security Act 1947. The qualifying age for such a pension is 60 for females and 65 for males: s.25(1). The hostel receives subsidies under the Aged and Disabled Persons Homes Act 1954. Under that Act an aged person is one who has attained the age of 60 years: s.2. The reference to 55 years of age in the Veterans' Entitlements Act is explicable on the ground that an entitlement to a female veteran's pension arises at that age. I was told that pensions under that Act are payable in the same amount as age pensions but the entitlement arises five years earlier. There was in evidence a copy of material provided by the operator for all residents on or prior to admission to the hostel. This refers to age pensions but makes no mention of veterans' pensions. Also one can assume, I think, that persons entitled to the former would be much more numerous than those entitled to the latter. I conclude that the operator of the hostel is primarily concerned with providing accommodation for those who meet the criterion for age pensions, that is to say for those who are at least 60.

4. I do not think that conclusion is altered by the argument that an intention which embraces people who are 60 or more must include those who are at least 55 because people who are 60 must be over 55. I think rather that the definition in the Veterans' Entitlements Act is directed towards an intention to apply a particular age criterion to residents who are to be accommodated. That criterion is one of being at least 55 years old. The criterion in the case of the hostel is, or rather primarily is, being at least 60 years old. It is therefore in my opinion not a retirement village within the meaning of s.35.

5. The reasoning I have adopted may be illustrated by an example where the age criterion is a maximum rather then, as here, a minimum. If a school has an Under 16 football team, a talented lad of 14 might play in the team. But the team would not answer the description of a team primarily intended for boys under 15.

6. In my view that the Tribunal was entitled to take into account the definition of aged person in the Aged and Disabled Persons Homes Act, not of course for the purpose of importing that definition into the Veterans' Entitlements Act but rather as part of the circumstances which one must look at in answering the question as to what the primary intention of the operator of the hostel in fact was.

7. The application will be dismissed with costs including reserved costs.