Tennant and Secretary, Department of Social Services
[2014] AATA 174
•31 March 2014
[2014] AATA 174
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/4162
Re
David Tennant
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal RM Creyke, Senior Member
Date 31 March 2014 Place Canberra The decision under review is set aside and varied.
.............[sgd].................................
RM Creyke, Senior Member
Catchwords
SOCIAL SECURITY – Newstart allowance - single person not sharing accommodation – Guide to Social Security Law
Legislation
Social Security Act 1991 (Cth) (Act) sections 5A, 13(1) and 1070Q(2)
Administrative Appeals Tribunal Act 1975 (Cth) section 34J
Cases
Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355
Rodda v Repatriation Commission (2006) 156 FCR 227
Ward v Williams (1955) 92 CLR 496
Secondary Materials
Guide to Social Security Law, Department of Social Services
REASONS FOR DECISION
RM Creyke, Senior Member
Mr David Tennant sought review of a decision that he be paid rent assistance as a single person sharing accommodation.
That decision was made by Centrelink and was set aside on review by the Social Security Appeals Tribunal (SSAT) on 12 July 2013. The SSAT decided that Mr Tennant should be paid rent assistance as a single person not sharing accommodation and therefore be paid at a higher rate.
Mr Tennant was not satisfied with the date chosen for payment to him of rent assistance at the single non-sharer rate and sought further review by the Tribunal. The Tribunal is satisfied that it has jurisdiction.
The matter was ‘heard’ on the papers on 28 November 2013 in accordance with section 34J of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act).
Mr Tennant also raised an issue concerning confidentiality. An interlocutory hearing on that issue was held on 28 January 2014. Finalisation of these reasons was delayed until after the appeal period against the decision on the interlocutory matter expired. That has occurred and the Tribunal now publishes its reasons in the substantive matter.
Background
Mr Tennant was granted newstart allowance on 3 December 2012, backdated to 21 November 2012. He was also granted rent assistance from 21 November 2012. At the relevant time Mr Tennant lived with his parents. The dwelling in which the family lived was rented at $330.00 per week.
On 3 December 2012 Mr Tennant made a general enquiry concerning newstart allowance. The Centrelink officer had recorded under ‘rent verification’ that ‘customer queried difference between LOD [lodgings] and BOA [board], customer pays parents $135.00 per week and this includes food, therefore assessed as BOA’.
On 10 December 2012, Centrelink received a rent certificate from Mr Tennant dated 6 December 2012 indicating he was paying ‘lodgings (accommodation only)’ of $270.00 per fortnight and had been doing so since 21 November 2012.
The question in the rent certificate form as to ‘board and lodgings (meals and accommodation only)’ noted ‘If you only pay lodgings or can separate lodging from board and lodging, record below’. The reference to ‘record below’ was to the entry for ‘Lodgings (accommodation only)’ shown on the form. There is no space in the form for listing an amount paid for ‘board’, that is, meals only.
Following receipt of his rent certificate, on 10 December 2012, Centrelink decided that Mr Tennant should be paid rent assistance as a single person sharing accommodation. His rent assistance was assessed as a single ‘sharer’ at $80.67 per fortnight, payable from 20 December 2012. This increased the amount he had initially been granted for rent assistance of $54.45 per fortnight. Accordingly arrears were paid to him from 12 December 2012 covering the period 21 November 2012 to 5 December 2012.
Mr Tennant requested a review of that decision by email on 13 December 2013, followed by a letter to the same effect dated 20 December 2012. The letter from Mr Tennant said that as he was paying board and lodging to his parents, he should not be considered a ‘single person sharing accommodation’ as described in the Social Security Act 1991 (Cth) section 5A(2)(a). Mr Tennant did not detail in the letter the amount he was paying his parents in board and lodging. He did contend that his rent assistance should be assessed on the basis that he was single and that he should be paid rent assistance at the higher single non-sharer rate of $121.00 per fortnight.
On 21 December 2012, Centrelink advised Mr Tennant that he was considered a ‘sharer’ and the sharer rules were explained to him. On 26 February 2013 a Centrelink officer spoke again with Mr Tennant and explained the difference between ‘lodging’ and ‘board and lodging’. In response to a question concerning board, Mr Tennant said he had listed $135.00 per week as the amount he paid for lodging, but that he was also paying $15.00 per week for board. However, as there was no separate box for him to itemise this amount on the rent certificate, ‘he had done what the rent certificate asked and identified the component that was lodging so he should be assessed as a single under Sec 5A’.
The decision to categorise Mr Tennant as a ‘sharer’ was upheld on review by an authorised review officer on 27 February 2013. The authorised review officer said that on the evidence provided it was ‘not clear if [the $15.00 per week paid by Mr Tennant to his parents] covers the provision of regular meals’. On that basis she was not convinced that Mr Tennant was a boarder and lodger and affirmed the decision.
The $15.00 per week paid by Mr Tennant to his parents was corroborated by bank records provided by Mr Tennant showing separate amounts paid to his parents fortnightly as board and as lodging. The record shows transfers of $270.00 from Mr Tennant’s account to his father’s account commencing on 30 November 2012. The transfers of $270.00 were labelled ‘Lodgings Money Dad’.
The records also showed transfers of $30.00 commencing on 20 December 2012. Two amounts of $30.00 were transferred on 20 December 2012. The first stated ‘BoardMoney 30Nov12’ and the second stated ‘BoardMoney 14Dec12’. Thereafter, except for a period from late February until early April 2013, the bank statement shows regular fortnightly $30.00 payments until 21 May 2013, when an amount of $15.00 only is recorded as ‘BoardMoney 24May13’.
On 12 July 2013, the SSAT set aside the decision of the authorised review officer and substituted a decision that Mr Tennant was not a single person sharing accommodation from 30 November 2012 and hence he should be paid rent assistance at the higher single non-sharer rate from that date. On 21 August 2013, Mr Tennant lodged an application for review with the Tribunal. Mr Tennant contends that he commenced paying board and lodging from 21 November 2012 and should be assessed for rent assistance at the single non-sharer rate from that date.
Legislation
The relevant legislation is the Social Security Act 1991 (Cth) (Act). No additional claim is required in order to receive rent assistance for a person in receipt of newstart allowance.
The calculation of the rate of rent assistance is found in a table referred to in section 1070Q(2) of the Act. Other relevant provisions are: section 5A of the Act which defines who is a ‘single person sharing accommodation’; section 13(1) which defines ‘board’ in the expression ‘board and lodging’ as ‘the provision of meals on a regular basis in connection with the provision of lodging’; and section 13(6) which provides for rent assistance in circumstances in which board could not be separately identified from the amount paid for lodging, in which circumstance a deemed rate is set for lodging of two-thirds of the total.
Issues
The sole issue is whether Mr Tennant should be treated as a single person not sharing accommodation in the period from 21 November 2012 to 30 November 2012.
Consideration
Mr Tennant was granted newstart allowance on 3 December 2012 with a start date of 21 November 2012. The payment also included an amount for rent assistance based on his payment of ‘board and lodging’. Following receipt of his rent certificate dated 6 December 2012 stating he was paying $270.00 per fortnight for lodgings only, he was reassessed as a single sharer. Mr Tennant’s rent assistance was adjusted upwards from 12 December on that basis.
Mr Tennant contends he should have been assessed at the single non-sharer rate for rent assistance, not the single sharer rate, from 21 November 2012. He further submitted that the error in calculating his eligibility for the higher rate was due to reliance on the policy document, a Guide to the Social Security Law (Guide), the relevant section of which contained an error.
Rate of payment of rent assistance
Section 5A defines who is a ‘single person sharing accommodation’. The provision, as relevant states:
5A(1) For the purposes of this Act, a person is to be treated as a single person sharing accommodation if the person:
(a) is not a member of a couple; and
(b) has no dependent children; and
(c) has, in common with one or more other people, the right to use at least one major area of accommodation.
(2) A person is not to be treated as a single person sharing accommodation if the person:
(a) pays, or is liability to pay amounts for the person’s board and lodging.
Section 1070 of the Act sets out how the rate of rent assistance is to be calculated including for a single person sharing accommodation. The Guide explains that a single boarder and lodger is classed as a private lodger and may be assessed as a sharer if they can separately identify the costs of accommodation from the costs of meals and are sharing a major area of accommodation with others.
Mr Tennant on 21 November 2012 was single, and had no dependent children. He was at that time living with his parents and had a right to use at least one major area of accommodation in his parents’ home. A ‘major area of accommodation’ is a bathroom, a kitchen or a bedroom.[1] These facts are not contested.
[1] Social Security Act 1991 (Cth) (Act) s 5A(6).
The authorised review officer had found Mr Tennant to be a single boarder and lodger classed as a private lodger, who was to be assessed as a sharer on the basis that the costs of his accommodation and meals could be separately identified and he was sharing a major area of accommodation with others.
The Social Security Appeals Tribunal set this decision aside and found that Mr Tennant was entitled to be paid rent assistance as a single person not sharing accommodation from 30 November 2012, that being the date in Mr Tennant’s submitted bank statement which showed he transferred $30.00 per fortnight for board to his father, to whom he also paid $270 per fortnight for lodging.
Section 5A(2) provides exceptions to classification as a single person sharing accommodation, the criteria for which are set out in section 5A(1). Section 5A(2) states one such exception is the following:
‘A person is not to be treated as a single person sharing accommodation if the person:(a) pays, or is liable to pay, amounts for the person’s board and lodging’.
Section 13(1) of the Act provides that ‘board’, when used in the expression ‘board and lodging’, means the provision of meals on a regular basis in connection with the provision of lodging. No evidence was provided as to whether Mr Tennant had meals provided on a regular basis. Nonetheless, the Tribunal has inferred that since he was living with his parents, it is reasonable to assume, given normal family practice, that meals would be provided regularly to their son by his parents. Mr Tennant’s bank statements also indicate, with the exception of a period between late February and early April, that he made regular payments for board. The omission of payments for the period from late February suggest that he was only paying board while he was actually receiving meals, and given the amount was the same each week, that he was receiving meals for the payment on a regular basis.
Mr Tennant initially advised a Centrelink officer in a telephone conversation on 3 December 2012 that the $135.00 he was paying his parents was for both board and accommodation. His rent certificate, however, stated that $270.00 per fortnight was for lodging only. Mr Tennant lodged the rent certificate following the conversation with a Centrelink officer on 3 December 2012 who explained the difference between ‘board’ and ‘lodging’. So although the record of that conversation indicates that Mr Tennant had said the $135.00 per week paid to his parents included food, the Tribunal infers that following the advice in that conversation, he advisedly lodged his rent certificate showing that $135 per week was for lodging only. The Tribunal accepts that completion of a form requires a more considered response than a telephone conversation and accordingly that the payment of $135.00 a week or $270 per fortnight was for lodgings only.
The Tribunal finds accordingly that Mr Tennant was paying amounts for board and lodgings and was receiving meals on a regular basis. On that basis he was entitled to fall within section 5A(2) of the Act and be classified as a single, non-sharer for rent assistance purposes.
Date for commencement of payment of rent assistance
The bank statement provided by Mr Tennant noted he had transferred $30.00 for board to his father on 20 December 2012 with the notation ‘30Nov12’. Accordingly, the Social Security Appeals Tribunal decided that the date from which Mr Tennant should be entitled to rent assistance at the single rate was 30 November 2012. It is not clear from that notation whether the date shown is the commencement date of the fortnightly payment, or refers to the end date for a payment in arrears.
The entries for payment of lodgings have no equivalent date notation. However, the first of those transfers was made on 30 November 2012, suggesting that it was paid in arrears. Mr Tennant stated at question 10 in his rent certificate that he commenced paying lodgings of $270.00 per fortnight from 21 November 2012 and this date has been accepted as correct by Centrelink and by the SSAT.
Although the date of the first transfer of $270.00 was 30 November 2012, Centrelink paid Mr Tennant rent assistance at the single sharer rate from 21 November 2012, in apparent acceptance that his payments had commenced on that date. Mr Tennant had stated at question 10 in his rent certificate that he commenced paying lodgings of $270.00 per fortnight from 21 November 2012. Centrelink recognises payments made after a due date and will pay arrears in those circumstances, relying on the terms of section 5A(2) which covers a person who ‘pays, or is liable to pay’ (emphasis added) amounts for board and lodging.
The notation of ‘30Nov12’, taken by the Social Security Appeals Tribunal to be the first date from which payment of board was made, could equally have been a reference to the date of first transfer of the amount for lodgings, being a payment in arrears, rather than a payment commencing on 30 November 2012. To so find would be consistent with the Secretary’s treatment of Mr Tennant’s payment of rent.
The Secretary was prepared to pay Mr Tennant newstart allowance and rent assistance in recognition that he was paying board and lodgings, from the date in his rent certificate that he claimed the arrangement commenced, namely, 21 November 2012. This was despite the fact that the date of first transfer of funds for rent was 30 November 2012. In other words, the Secretary accepted that the payment represented a payment from 21 November 2012 and was in arrears.
Although Mr Tennant did not specifically indicate in his rent certificate in response to Question 9 that he was also paying board, the note indicates that his completion of the ‘lodgings’ box could be either because he was paying lodgings only or he was able to separate his payments for lodging from board. Both possibilities are open from his answer to question 9. In these circumstances there is no reason why Centrelink would equally not recognise payment of board from 21 November 2012, that is, in arrears, also.
These matters discussed in the previous three paragraphs were apparently accepted also by the Secretary who stated that:
… the evidence is equivocal as to whether the Applicant’s payment of ‘board money’ on 30 November 2012 represented board for the period commencing 21 November 2012 or the 30 November 2012. However, for the purpose of this application, the Secretary is prepared to accept that the Applicant commenced paying board from 21 November 2012.
On this basis the Secretary accepts that the Applicant falls within subsection 5A(2) of the Act and should not be treated [as] a single person sharing accommodation for the period from 21 November 2012 to 29 November 2012.[2]
[2] Secretary’s Statement of Facts & Contentions
That means the Secretary accepts, as too does the Tribunal, that Mr Tennant was paying board and lodging from 21 November 2012, that he was single and in the terms of section 5A(2) he was ‘not to be treated as a single person sharing accommodation’.
Accuracy of Guide to Social Security Law
Mr Tennant claims the examples relating to rent assistance in the Guide is not a correct reflection of section 5A(2). Mr Tennant claims this has adversely affected decisions made in his case. For example, the decision of the authorised review officer on 27 February 2013 which had affirmed payment of rent assistance to him as a single sharer had stated:
… a single boarder and lodger is classed as a private lodger, and may be assessed as a sharer if they can separately identify the costs of accommodation from the costs of meals, and are sharing a major area of accommodation with others. I have found this is the case in your situation.
The implication from this statement is that the decision to pay rent assistance at a single or at the single sharer rate was discretionary. That inference is apparent from the text of the Guide to Social Security Law (Guide).
The Social Security Guide at clause 3.8.1.110 states that a single boarder and lodger is classed as a private lodger and may be assessed as a sharer if they can separately identify the costs of accommodation from the costs of meals and that they are sharing a major area of accommodation (emphasis added).
The Social Security Appeals Tribunal noted simply that the examples did not reflect Mr Tennant’s circumstances, indicating by implication that the examples were not comprehensive. The SSAT had stated on this issue:
The Tribunal considered the Guide to Social Security Law, policy 3.8.1.110 Sharers Provisions for RA, including the Boarders and Lodgers section, referred to by both the authorised review officer and Mr Tennant and the Tribunal concluded that the examples referred to in this section of the policy document were not similar to Mr Tennant’s circumstances and therefore were not applicable in his case.
The Secretary in his Statement of Facts and Contentions for the purposes of the Tribunal hearing did not address the issue of the accuracy of the relevant examples in the Guide to Social Security policy document.
The Tribunal notes that the terms in which section 5A(2) are couched are imperative in nature (‘is not to be treated’), whereas the Guide treats the terms as discretionary (‘may be assessed as a sharer’). Statutory expressions expressed in the imperative, in accordance with ordinary principles of statutory interpretation, are to ‘operate according to their ordinary natural meaning’.[3] That is a prima facie rule. That rule applies even in the case, such as income support law, which has a beneficial purpose when the impact of that interpretation is to disadvantage an applicant.[4]
[3] Ward v Williams (1955) 92 CLR 496 at 505.
[4] Rodda v Repatriation Commission (2006) 156 FCR 227 at 238.
Nonetheless, the courts maintain that the prima facie meaning is not conclusive and interpretation must always be subject to the scope and object of the statute, its specific language, the intention that can be discerned as to the meaning to be accorded to any statutory expression in its statutory context, and the impact of the prima facie meaning in the context of the statutory scheme.[5]
[5] Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at 388-9.
As the matter was not addressed specifically by both parties, the Tribunal is not prepared to provide an opinion on the accuracy of the examples. The Tribunal notes, however, that in the absence of argument as to the impact of the prima facie meaning the Tribunal takes as part of the context that there is an intention to benefit newstart allowance recipients by also contributing to their legal obligations to pay rent.
Conclusion
In conclusion, the Tribunal finds that Mr Tennant was entitled to payment of rent assistance at the higher, single rate from 21 November 2012. The decision under review is set aside only insofar as the date from which Mr Tennant’s single status was recognised did not commence on 30 November 2012, but on 21 November 2012.
I certify that the preceding 45 (forty five) paragraphs are a true copy of the reasons for the decision herein of RM Creyke, Senior Member. .............[sgd]...........................................................
Associate
31 March 2014
Date of hearing 28 November 2013 Applicant Self represented Advocate for the Respondent Stephen Davidson Solicitors for the Respondent Department of Human Services
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