Thompson v Commissioner for Social Housing in the Act
[2014] ACAT 34
•20 June 2014
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
THOMPSON v COMMISSIONER FOR SOCIAL HOUSING IN THE ACT
(Administrative Review) [2014] ACAT 34
AT 80 of 2013
Catchwords: ADMINISTRATIVE REVIEW – eligibility for rental rebate under housing assistance program – lump sum payment of workers’ compensation by way of out of court settlement - treatment of lump sum payment for assessing or reassessing rental rebate assistance – lump sum spent - lack of clarity, and absence of communication, about information used in relation to impact of lump sum on Applicant’s eligibility for rental rebate – some assessments and reassessments of Applicant’s rental rebates based on incorrect figures and dates - deeming of interest income from investment of lump sum – whether lump sum payment is on account of lost income or diminished earning capacity - whether outcome of accruing of rental arrears which Applicant could not pay would interfere with Applicant’s right to home – housing assistance program must be interpreted not inconsistently with a right to home – reassessment of rental amounts would require consideration of Applicant’s right to home to be without unlawful or arbitrary interference – if decision is considered to interfere with Applicant’s right whether that limit is lawful - lump sum payment may have impact on Applicant’s rental account or rental rebate eligibility – object of rental rebate program – considering that 50% of the lump sum payment is on account of income is reasonable where out of court settlement did not provide how it was to be apportioned – calculation of the compensation for loss of income component and investment income – rental rebate assessment or reassessment should commence from date of the reviewable decision
Legislation:ACT Civil and Administrative Tribunal Act 2008, s 68
Housing Assistance Act 2007, ss 6, 18, 19, 20 and 21
Human Rights Act 2008, ss 11, 12, 28, 30, 40, 40A and 40B
Subordinate
Legislation:Housing Assistance Public Rental Housing Assistance Program 2013 (No 1) DI2013-52, clauses 9, 11, 25, 26, 31 and 32
Housing Assistance Public Rental Housing Assistance Program (Exempt Income and Assets) Determination 2012 (No 1) NI2012-644
Housing Assistance Public Rental Housing Assistance Program (Meaning of income) Operation Guideline 2008 (No 1) NI2008-172
Housing Assistance Public Rental Housing Assistance Program (Rent Rebate) Operation Guideline 2008 (No 1) NI2008-179
Housing Assistance Public Rental Housing Assistance Program (Rent Rebate – Reassessment of eligibility) Operation Guideline 2008 (No 1) NI2008-180
Texts/Papers: Fact Sheet - Rental Rebate for public housing tenants – important information from Housing ACT (undated) (Tribunal document 22),
Rental Rebate Policy (undated) (Tribunal document 23) align="left">Tribunal: Ms W. Corby – Senior Member
Date of Orders: 20 June 2014
Date of Reasons for Decision: 20 June 2014
ACT CIVIL AND ADMINISTRATIVE TRIBUNAL AT 13/80
BETWEEN:
CHERYL THOMPSON
Applicant
AND:
COMMISSIONER FOR SOCIAL
HOUSING IN THE ACT
Respondent
TRIBUNAL: Ms W. Corby – Senior Member
DATE:20 June 2014
ORDER
The Tribunal Orders that:
Pursuant to section 68 of the ACT Civil and Administrative Tribunal Act 2008;
(a)the reviewable decision is set aside in so far as it relates to the weekly income amount and rent rebate commencement date; and
(b)the reviewable decision is affirmed in so far as it reverses the debit adjustment of $8,713.92 applied to the Applicant’s rent account on 3 April 2013.
Pursuant to clauses 11(1)(c) and 11(3)(b) of the HA Program, the amount of the Applicant’s weekly income for the purpose of rent rebate assessment or reassessment, referable to the lump sum workers’ compensation payment received by the Applicant on or before 15 July 2011, is $461.66.
The commencement date for the rent rebate assessment to include the weekly income amount of $461.66 referable to the lump sum workers’ compensation payment, is 15 October 2013.
The matter is remitted to the Respondent to:
(a)calculate, in accordance with Tribunal’s directions set out in the reasons for decision, the last date on which the weekly income amount of $461.66 referrable to the lump sum payment is to be included in the Applicant’s rent rebate assessments. The Respondent is to advise the Applicant of this date and how it was calculated;
(b)undertake a calculation of the Applicant’s rent account for the period 7 April 2013 until 15 October 2013 based on the Applicant’s income of $0 in relation to the worker’s compensation payment. This calculation is needed to reflect the impact of order 3 of these orders. The Tribunal notes that during this period there may be other relevant income for the Applicant or the other members of the household that needs to be included in the calculation. The Tribunal confirms that the Applicant received no investment income amount relating to the lump sum workers’ compensation payment during this period. The Applicant is to be advised of the details of this calculation and the status of her rent account as at 15 October 2013 once this calculation has been undertaken by the Respondent.
………………………………..
Ms W. Corby - Senior Member
REASONS FOR DECISION
The Applicant seeks review by the ACT Civil and Administrative Tribunal (the ‘Tribunal’) of a decision by the Respondent’s delegate, Ms Bronwen Overton-Clarke (the ‘decision maker’), made on 15 October 2013 (the ‘reviewable decision’). The Applicant seeks review of that part of the reviewable decision that concluded that the Applicant continue to be deemed to have an income of $584 for the purpose of assessment of her rental rebate.
The Respondent made an original decision as to how a lump sum workers’ compensation payment made to the Applicant on or before 15 July 2011 should be treated for the purpose of assessing and/or reassessing her rent rebate entitlement (the ‘original decision’). The original decision was made by the Respondent at some time before the Respondent’s letter to the Applicant dated 30 March 2012.[1] After receiving this letter the Applicant, effectively, on 30 May 2012 sought review of this decision by the Respondent.[2] The matter was referred to the Housing Assistance and Tenancy Review Panel (‘HATRP’) on or about 4 September 2013,[3] pursuant to clause 31(4)(b) of the Housing Assistance Public Rental Housing Assistance Program 2013 (No 1) DI2013-52 (the ‘HA Program’). The HA Program is an approved program pursuant to section 19 of the Housing Assistance Act 2007 (the ‘HA Act’).
[1] T document 7
[2] T document 9
[3] T document 19
The reviewable decision maker accepted[4] the reasons for and recommendations made by HATRP in the HATRP’s report dated 27 September 2013 (the ‘HATRP report’) that Housing ACT reverse the debit adjustment of $8,713.92 processed on 3 April 2013 from the Applicant’s rent account; apply a weekly rebated rent of $206.90 (the Applicant’s portion is $146, and her son’s portion is $60.90) effective from 7 April 2013; and make an application to the Tribunal seeking an unconditional Termination and Possession Order to take effect as a Warrant for Eviction. The HATRP report was enclosed with the delegate’s letter of 15 October 2013 to the Applicant advising of the reviewable decision.
[4] See clause 31(4)(b), HA Program
Under section 18(c) of the HA Act, the HA Program may provide for how decisions are to be reviewed. Decisions made pursuant to clause 31(4)(b) of the HA Program are, on application, reviewable by the Tribunal (clause 32 of the HA Program).
The Applicant seeks review of that part of the reviewable decision that the Applicant’s weekly income will be taken to include the amount of $583.90, which relates to the lump sum payment made to her in July 2011, for the purpose of her rent rebate entitlement from 7 April 2013.
The Applicant says that, for the purpose of the calculation of her rent rebate:
(a)for the period 7 April 2013 until 12 December 2013 inclusive – her weekly income should be assessed as $0 per week; and
(b)from 13 December 2013, when she became eligible for the payment of a Disability Support Pension by Centrelink, the calculation of her weekly income should be restricted to that Centrelink payment.
The Tribunal notes that the income of other household members may impact on the calculation of the rent rebate amount: however, for the purpose of the application to the Tribunal, only the income of the Applicant is relevant.
The Hearing
The matter was heard on Monday 31 March 2014. Ms Anya Aidman, solicitor, from Welfare Rights and Legal Centre (Welfare Rights), appeared for the Applicant. The Applicant attended in person with a support worker from Welfare Rights. The Applicant’s daughter, Ms Heidi Hobbs, also attended the hearing.
The Respondent was represented by Ms Madelin Bayer from the ACT Government Solicitor’s office (ACT GSO), who was assisted by Ms Aditi Mohindra from ACT GSO. Mr Christopher Phillipson from the Respondent’s office also attended the hearing.
The Applicant and her daughter were available to give evidence, however, much of the hearing concentrated on submissions by the legal representatives of the parties. Those submissions were directed at how the Tribunal should, standing in the shoes of the original decision maker, approach the question of the calculation, and deeming, of the Applicant’s income for the purpose of the Rental Rebate Program, given the lump sum payment that she received on or before July 2011.
The Applicant’s Statutory Declarations, declared on 7 February 2014[5], and Ms Heidi Hobbs’ Statutory Declaration, declared on 21 August 2013[6], were tendered at the hearing. Both had been provided to the Respondent prior to the hearing. It was the Respondent’s view that the issues in this matter do not depend on the facts of the Applicant’s financial position as at and subsequent to 7 April 2013, but rather on how the lump sum payment received by the Applicant on or before 15 July 2011 should impact on the calculation, or deeming, of her income and the processing of her past and future rent rebate applications.
Information considered by Tribunal
[5] Exhibit A1
[6] Exhibit A2
In deciding this matter the Tribunal has had regard to –
(a)the various documents filed in the Tribunal by the parties including:
i. the Tribunal Documents (the ‘T Docs’) filed by the Respondent prior to the hearing; and
ii. the further documents (which the Tribunal will refer to as the ‘Supplementary T Docs’) filed by the Respondent on 7 May 2014 in response to a request by the Tribunal;
(b)the evidence and submissions made by or on behalf of the parties at the hearing; and
(c)the authorities, legislation and policy documents that the Tribunal was referred to by, and which were relied on, by the parties.
Background
The Applicant is a public housing tenant of premises in the ACT. Her tenancy commenced on 1 October 1995. The Applicant was employed at a nursing home when in about 2003 she was injured at work. The Applicant received workers’ compensation payments following the work injury.
At all relevant times the Applicant was eligible for a rent rebate amount pursuant to the Rental Rebate Program operated by the Respondent. With some minor exceptions, this program operates so that eligible tenants do not pay more than 25% of their gross ‘household’ income in rent. The difference between the 25% payable by eligible tenants and the actual rent amount is the rent rebate amount.
Until 10 August 2010, the workers’ compensation payments made to the Applicant in relation to the 2003 work injury, were equal to the amount she would have earned as her wage. However, the operation of the workers’ compensation scheme meant that from 10 August 2010 her payments were reduced. As a result, the Applicant’s income was lower. This impacted on the calculation of her rent rebate amount, which was therefore increased.
There was no dispute that the Applicant was advised and understood that in the event she received a workers’ compensation payment which included an amount to compensate her for part or all of the reduction in her income referrable to her workplace injury, and that payment related to any period during which her reduced income had increased her rent rebate amount, then the Applicant would need to advise the Respondent about this payment. The relevant part of the workers’ compensation payment to the Applicant would then be included in a reassessment of her rent rebate during that period. This reassessment could result in the need for the Applicant to reimburse the Respondent for any additional rebate amount that had been granted to her during this period.
The Applicant did make a workers’ compensation claim. The workers’ compensation claim was resolved by an out of court settlement and a lump sum payment of compensation. The Applicant was paid the lump sum amount on or before 15 July 2011 (the ‘lump sum payment’).
In her rental rebate application dated 15 July 2011,[7] the Applicant advised the Respondent that she had received the lump sum payment and provided information relating to this payment. That information did not identify any portion of the lump sum payment as being on ‘account of lost income’. On 25 July 2011, the Respondent’s officer contacted the office of the solicitor who had acted for the Applicant in the workers’ compensation claim (‘the workers’ compensation solicitor’).[8] The Respondent was advised that no specific portion of the lump sum payment was identified as being for ‘loss of income’.
[7] T document 3
[8] T document 3
The Respondent concluded, initially, that after various amounts for legal costs, disbursements and repayments to Centrelink and Medicare, were deducted from the settlement amount, the Applicant received a lump sum payment of $312,680.37.[9] Using this lump sum amount the Respondent then assessed the Applicant’s weekly income at $258.13. The Respondent identified this amount as ‘Savings/Investment Interest (deemed for monies received as compensation)’[10]. The amount was calculated on the basis of investment of $312,680.37. The Respondent wrote to the Applicant on 4 August 2011[11] advising that her ‘rebated rent’ from 15 July 2011 was assessed at $64.80. The rebate amount allowed was $305.50 on full rent of $370.00 per week.
[9] T document 3
[10] T document 4
[11] T document 4
The Tribunal has reviewed in detail the T Docs and Supplementary T Docs to determine what further information concerning this matter was provided by and to the Respondent between 4 August 2011 and 15 October 2013. So far as is relevant for the purpose of review of this matter by the Tribunal, the Tribunal’s consideration of those documents suggests the following:
(a)at no time subsequent to her rental rebate application dated 15 July 2011[12] and until she received the HATRP report with the reviewable decision letter of 15 October 2013, was the Applicant provided with details about the figures used and calculations made by the Respondent in arriving at the various decisions made subsequent to July 2011, as to the impact of the lump sum payment on the Applicant’s eligibility for rental rebate;
(b)the figures used for, and relevant periods of, calculations made by the Respondent during the period 15 July 2011 and 15 October 2013 vary and are at times incorrect;
(c)although the Respondent did recognise that errors were made, and these were in some instances corrected, the Applicant was not given an explanation when amended information was provided to her. Even when providing the Supplementary T Docs to the Tribunal the Respondent acknowledged that the conclusion as to the weekly income figure it had determined in the reviewable decision was incorrect;
(d)notwithstanding the further assessments and decisions made by the Respondent after 4 August 2011, no additional information relating to the lump sum payment was sought or received by the Respondent after the telephone conversation that the Respondent’s officer had with the workers’ compensation solicitor on 25 July 2011.
The Legislation and Programs
[12] T document 3
The relevant provisions of the HA Act, the various Disallowable and Notifiable Instruments relating to the HA Program, and the Human Rights Act2004 (the Human Rights Act), that are referred to in these reasons for decision, are set out in the Schedule attached to these Reasons.
In administering the HA Program, a person must have regard to the objects of the HA Act ‘to the maximum extent practicable’.[13] The objects of the HA Act are set out in section 6(1). Most relevant for the purpose of the Tribunal’s decision are the objects of maximising the opportunity for access to “affordable” housing (section 6(1)(a)); facilitating “the provision of housing assistance to those most in need” (section 6(1)(b)); and, possibly, promoting “a choice of forms of housing assistance, for entities eligible for housing assistance” (section 6(1)(d)).
[13] See section 6(2) of the HA Act
The reviewable decision relates to the Applicant’s eligibility, under the HA Program, for a rent rebate. In order to be eligible for a rent rebate an applicant must satisfy clause 9(4) of the HA Program. There was no dispute that the Applicant, a public housing tenant, at all relevant times was receiving ‘rental housing assistance’ and so satisfied clause 9(4)(a).
The issue for the Applicant is the operation of clause 25, which is the second ‘limb’ of the eligibility criteria for a rent rebate (clause 9(4)(b)). Clause 25 sets out the procedure for calculating the rent rebate, if any, payable. Clause 25(1) says that the Respondent ‘may provide’ a rent rebate to ‘the tenant of a public housing dwelling ... provided that the tenant satisfies the eligibility criteria’.
Although it may be arguable that the Respondent ultimately has a discretion whether or not to grant a rent rebate, given the objects of the HA Act, the Tribunal considers that a rent rebate would be granted to an eligible applicant for a rent rebate.
In this matter, the Applicant had been in receipt of a rent rebate for some years. The Applicant does not dispute that she understood that she was obliged to advise the Respondent when she was paid the lump sum amount at the conclusion of the workers’ compensation proceeding she was involved in (and which is discussed above).
The Applicant did not dispute that, to the extent that the lump sum payment included an amount for past or future economic loss, the receipt by her of the lump sum payment might impact on her rent rebate assessment for the periods covered by that component of the compensation paid.
The HA Program provides, logically, that for the time that the Applicant’s income was reduced, because of her injury, then her income, for the purpose of rent rebate assessment, would be based on that ‘reduced income’ amount. If the Applicant instituted proceedings in relation to the workers’ compensation claim and this was resolved by a lump sum payment to the Applicant, she was obliged to advise the Respondent. Pursuant to the HA Program, the Respondent would then need to consider to what extent the lump sum payment ‘compensated’ the applicant for the reduction in her income, and to what extent that impacted on past and future rent rebate applications by the Applicant.
The lump sum amount had the potential to impact on the Applicant’s eligibility for a rent rebate in the following ways:
(a)any amount included as compensation for ‘past’ loss of income may be taken into account by the Respondent in ‘reassessing’ (for clause 26 of the HA Program) the rent rebate amount that had been granted to the Applicant for periods covered by the compensation payment. If the effect of this reassessment was to ‘increase’ the Applicant’s income for those periods, it would decrease the rent rebate amount applicable and may result in the Applicant being liable to repay an amount to the Respondent;
(b)any amount included for future loss of earning capacity could result in the Respondent, for a period into the future, ‘deeming’ that the Applicant’s weekly income for that period would include an amount calculated by reference to the lump sum payment;
(c)any interest income generated by the Applicant’s investment of all or part of the lump sum amount would be included in the Applicant’s weekly income for so long as she retained those funds. The Respondent can also ‘deem’ an income amount in relation to such investment.
The Applicant’s workers’ compensation claim was resolved by an out of court settlement and payment to her of a lump sum amount on or before 15 July 2011. No amount of the lump sum was specified as relating to any particular ‘head of damage’. The Applicant advised the Respondent of the lump sum payment in her rental rebate application dated 15 July 2011. The Applicant provided, with that rental rebate application, information from her workers’ compensation solicitor about the payment. The Respondent contacted the workers’ compensation solicitor on 25 July 2011 to ask whether any part of the lump sum payment could be identified as relating to ‘loss of income’. Neither the Applicant nor her workers’ compensation solicitor provided further details about how the lump sum payment had been calculated. In a file note the Respondent’s officer records that the workers’ compensation solicitor described it as a ‘global settlement’ and therefore a ‘figure for loss of income does not exist’.[14]
[14] T document 3
Clause 11 of the HA Program sets out what is, or is deemed to be, ‘income’ for the purpose of the HA Program.
The questions for consideration are, in light of the lump sum payment, should any, and if so what, amount be included in the Applicant’s weekly income for any, and if any, which, periods in the past and future. Subject to the answers to these questions, there may need to be a reassessment of the rent rebate amounts granted to the Applicant in the past. In relation to the future, both the amount to be included and the period that it will apply need to be determined.
The Tribunal notes that the HATRP recommendations, relied on when the Respondent’s officer made the reviewable decision, address the following two issues:
(a)HATRP was primarily asked to consider the Respondent’s action in relation to the tenancy, namely whether or not to proceed with an application to the Tribunal for an unconditional termination and possession order. That is not the subject of the application before this Tribunal.
(b)HATRP was also asked to consider the Respondent’s treatment of the lump sum payment. It is this aspect of HATRP’s recommendations that is relied on in the reviewable decision and is relevant to the Tribunal’s consideration of this matter.
The reviewable decision adopted HATRP’s recommendation that the ‘reassessment’ debit amount of $8,713.92, payable by the Applicant as at 7 April 2013, should be reversed. At the hearing, the Respondent’s representative explained this aspect of the reviewable decision by saying that it amounted to a decision, pursuant to clause 25(8)(d) or clause 26(6)(c)(iii) of the HA Program, as to when the reassessed rent rebate was to commence.
Even though the reassessment of the Applicant’s rental rebate, referable to the lump sum payment, would have included a period prior to 7 April 2013, the Respondent decided, in effect, to forgo any amount which would otherwise have been payable for that earlier period. The Respondent says that this decision reflects the Respondent’s response to the matters referred to in the submissions made by Welfare Rights on behalf of the Applicant,[15] which describe the particular circumstances of this matter.
[15] T document 18
The HATRP recommendations in the HATRP report[16] set out the result of a recalculation of the reassessment undertaken by HATRP. The HATRP report does not provide details of how this recalculation was made. HATRP concluded that the Applicant’s ‘portion’ of the rebated rental amount was $146. Neither the HATRP report[17] nor the reviewable decision letter advise the Applicant of the ‘deemed weekly income amount’ referable to the lump sum, nor for how long the Respondent will continue to include it in the assessment of her future rental rebate applications.
[16] T document 19
[17] T document 19
It appeared that HATRP, in reviewing the calculations that had been undertaken by several of the Respondent’s officers (e.g.,T documents 6, 8 and 10), had come to the conclusion that these calculations, to varying degrees, were incorrect. Although at the hearing the T docs, being those documents that are relevant to the Respondent’s decision, were available, it became clear to the Tribunal in considering this matter after the hearing that some documents that had been relied on by HATRP were missing from the T docs. The Tribunal formed the view that without access to these documents it was not possible for the Tribunal to adequately consider the matter.
The Tribunal therefore requested that any further relevant information be provided. In making that request, the Tribunal identified some specific matters which, in the Tribunal’s view, needed to be clarified. On 7 May 2014, the Respondent’s representative provided to the Tribunal, and to the Applicant, information in response to the Tribunal’s request along with an explanation of some of the information provided. As set out above, the Tribunal will refer to this further information as the ‘Supplementary Tribunal Documents’ (the Supplementary T Docs).
The Tribunal has considered the Supplementary T Docs. Those documents indicate that HATRP accepted the lump sum calculation made by the Respondent’s officer, Ms Amaro[18], before the rental rebate decision of 4 August 2011.[19] HATRP’s conclusion that the Applicant’s portion of rebated rent payable was $146 was based on its conclusion that her deemed weekly ‘income’ was $584.04, calculated by adding weekly income of $461.66 (relating to the income component of the lump sum) plus ‘deemed’ interest on investment as at 7 April 2013 of $122.38 per week. In the covering email to the Supplementary T Docs, the Respondent’s representative advises that the Respondent concedes no deemed interest component should have been included after 7 April 2013 and the weekly income amount to be ‘attributed’ to the lump should be restricted to $461.66.
Submissions by Applicant
Exercise of discretion under clause 11 HA Program
[18] T document 3
[19] T document 4
The Applicant says that the Respondent has a discretion under clause 11 of the HA Program whereby the Respondent could conclude that the lump sum payment does not include any component for ‘income’ for the purpose of calculation of rent rebate pursuant to clause 25. The Applicant says that, in the circumstances of this matter, the Respondent should exercise the discretion in this way. The need for the Respondent to deem an amount as ‘income’ for periods in the past and future, for the purpose of assessment or reassessment of Applicant’s rent rebate, would then not arise.
The Applicant asserts that the Respondent has taken too long to advise the Applicant of the impact on her rent rebate assessment (past and future) of the lump sum payment to her. In addition, by February 2013 the Applicant had expended all of the lump sum payment she had received and it is not, therefore, appropriate for the Respondent to consider any part of the lump sum payment as ‘income’.
Determination regarding clause 11(2) HA Program
The Applicant further, or in the alternative, asserts that the Respondent is authorised, pursuant to clause 11(2)(a) of the HA program, to determine that an amount which might otherwise be ‘income’ for the purpose of clause 11(1), is not income. The Applicant asserts, given the circumstances of this matter, that is what the Respondent should do in relation to any amount which might be ‘considered’ income for the purpose of clause 11(3)(b) in relation to the lump sum payment.
Breach of human rights
Under section 12 of the Human Rights Act the Applicant has the right not to have her home “interfered with unlawfully or arbitrarily”.
The Applicant says that, given the Applicant’s circumstances, if the Tribunal decides that a portion of the lump sum payment is on account of lost income, and, therefore, a weekly amount should be included in the Applicant’s income for the purpose of rent rebate assessments, the result will be that the Applicant continues to accrue arrears which she cannot pay. This may lead to her eviction.
The Respondent’s policy, set out in the undated document titled ‘Rental Rebate Policy’[20], is that, in the absence of a specified apportionment, 50% of the lump sum payment is ‘assumed’ to be ‘on account of lost income’. The Applicant says the Respondent provides no other explanation for this figure. The Applicant says this policy is arbitrary.
[20] T document 23; available at >
The Tribunal is undertaking an administrative review and therefore stands in the shoes of the original decision maker. Pursuant to sections 40 and 40A of the Human Rights Act, the Tribunal is to be regarded as a ‘public authority’ undertaking a ‘function of a public nature’, namely, determining matters relating to the provision of rent rebate to a public housing tenant.
In that context, it is unlawful for the Tribunal to fail to give proper consideration to a relevant human right, unless the law requires the act to be done or decision to be made in a way that is inconsistent with a human right, or the law cannot be interpreted in a way that is consistent with the right (section 40B of the Human Rights Act). Section 30 of the Human Rights Act requires that ACT laws be interpreted, so far as is consistent with their purpose, in a way that is compatible with human rights. Section 28 of the Human Rights Act permits a law to place ‘reasonable limits’ on a human right, provided the reasonable limits can be ‘demonstrably justified in a free and democratic society’.
The Applicant asserts that the Tribunal can, and is obliged to, interpret the relevant program in a way that is compatible with an outcome whereby the Applicant’s home would not be ‘interfered with’: namely, exercise the discretion afforded by clause 11 of the HR Program to:
(a)either:
i. determine that the relevant part of the lump sum is not income for the purpose of clause 11(1); or
ii. decide that it does not ‘consider’ any part of the lump sum as being ‘on account of income lost or foregone’ (for clause 11(3)(b) of the HA program); and, in any event
(b)not apply the arbitrary policy figure of 50% to the lump sum payment.
Respondent’s submissions
The Respondent submits that the Respondent’s decision as to the impact of the lump sum payment, pursuant to clauses 11(1)(c) and 11(3)(b) of the HA Program, occurs once. Based on that decision, calculations are made. The impact of the lump sum is not something that is revisited by the Respondent each time the Applicant makes a rent rebate application subsequent to receiving the lump sum payment or as her situation changes.
The Respondent says that the Applicant is asking the Tribunal to take account of the Applicant’s actual financial position from time to time. Whereas, the decision should be made by reference to whether, based on the legislation, program and policy, the payment of the lump sum gives rise to the conclusion that an amount is ‘considered’ to be ‘on account of income’ pursuant to clauses 11(1), 11(3)(b) and 11(4) of the HA Program.
The Respondent does not dispute that the Human Rights Act is relevant to the Tribunal’s consideration of the matter, but says that the 50% to be applied to the lump sum in the absence of apportionment reflects a policy position taken and percentage amount which is used by many other government organisations, including the Department of Human Services (formerly Centrelink), to deal with situations of this kind.
Consideration by Tribunal
Determination regarding clause 11(2) HA Program
Pursuant to section 20 of the HA Act the Respondent may, by notifiable instrument, make determinations such as those envisaged by clauses 11(2)(a) and (b) of the HA Program. The Respondent, in response to a request by the Tribunal at the conclusion of the hearing, has confirmed that no determination has been made pursuant to clause 11(2)(b) of the HA Program. However, a determination has been made in relation to clause 11(2)(a) – the Housing Assistance Public Rental Housing Assistance Program (Exempt Income and Assets) Determination 2012 (No 1) (NI2012-644). Relevantly, on page 4 of the Determination, at dot point 4 under the heading ‘Other types of payments, assistance, allowances or expenditure’, the Determination states that what will be excluded are:
‘Insurance policy or similar payments for loss or damage to property or for personal injury, except for compensation for loss of income’
The Tribunal is satisfied that the Respondent has made a determination pursuant to clause 11(2)(a) of the HA Program. That determination does not exclude from ‘income’ any portion of the lump sum payment to the Applicant that the Respondent ‘considers’ to be ‘income’ pursuant to clauses 11(1)(c) and 11(3)(b) of the HA Program.
The Tribunal is not satisfied that, independent of the process of notifiable instrument, the Respondent has discretion to ‘determine’, on a case by case basis, that income of an individual which is not otherwise excluded is not to be included. As noted above, no determination has been made with regard to clause 11(2)(b) of the HA Program.
Operation of clause 11, HA Program – ‘income’
Reading together clauses 11(1)(a), 11(1)(c), 11(3)(b) and 11(4) of the HA Program, the Respondent will ‘consider’ as ‘income’ that part of the lump sum amount which the Respondent ‘considers’ is ‘on account of income lost or foregone’ (for clause 11(3)(b)). That amount then needs to be converted into ‘equal weekly payments’ (clause 11(4)). This process will result in a weekly amount which is to be included in the assessment or reassessment of a person’s rent rebates and will provide an ‘end date’ for the inclusion of those amounts.
The Respondent is authorised, by section 21 of the HA Act, to issue ‘housing operation guidelines’ by way of notifiable instrument. These guidelines are intended to outline ‘procedures for the management or operation of approved housing assistance programs’. The Respondent has issued the following guidelines relevant to consideration of this matter:
(a) Housing Assistance Public Rental Housing Assistance Program (Meaning of income) Operation Guideline 2008 (No 1) (NI2008‑172) (the ‘Income Guideline’);
(b) Housing Assistance Public Rental Housing Assistance Program (Rent Rebate) Operation Guideline 2008 (No 1) (NI2008-179)(the ‘Rent Rebate Guideline’).
The Income Guideline is intended to ’outline how income is to be treated’ for the purpose of the HA Program, including rental rebates. In effect the guideline refers to clause 11 of the HA Program. From the Tribunal’s point of view, the guideline adds little to the Tribunal’s understanding of the approach that should be taken in determining the Applicant’s income for the purpose of a rent rebate.
The purpose of the Rent Rebate Guideline is to ‘provide guidance on clause 25’ of the HA Program which relates to rent rebate applications. As is apparent from clause 25 of the HA Program, broadly speaking, rebated rent is capped at 25% of ‘assessable household income’.
The Rent Rebate Guideline provides, at paragraph 5, in relation to lump sum payments:
...Lump sum payments include payments made in settlement of a worker’s compensation claim and other payments which include a component of income lost or foregone [sic].
Paragraph 8 of the Rent Rebate Guideline notes that the Respondent has, pursuant to clause 25(8) of the HA Program, the opportunity to specify a date on which the rental rebate takes effect. Given the circumstances of this matter, the Tribunal considers that clause 26(6)(c)(iii), which relates to reassessment, is also relevant.
The Rent Rebate Guideline refers to an operation guideline relating to reassessment of eligibility for rental rebate, which is the Housing Assistance Public Rental Housing Assistance Program (Rent Rebate - Reassessment of eligibility) Operation Guideline 2008 (No 1) (NI2008-180) (the ‘Rent Reassessment Guideline’). The following provisions of the Rent Reassessment Guideline seem to cover the Respondent’s actions in relation to the Applicant:
Purpose
To provide guidance on the procedure to be adopted when a tenant's entitlement to receive or to continue to receive a rent rebate is reassessed.
The procedure in this guideline is to be adopted where the housing commissioner thinks, for any reason, that the tenant is or was not eligible for a rent rebate or is or was eligible for a different amount of rent rebate.
Relevant provision of the Program
Clause 26 – Rent Rebate – Reassessment of eligibility
1...
If, as a result of the reassessment it is determined that the tenant is, or was not eligible for a rent rebate, or is or was eligible for a different amount of rent rebate, their existing rebate may be suspended, amended or revoked.
...
Lump sum payment
3.In relation to subclause 26(6)(c)(iii) a typical situation arises where an applicant receives a lump sum payment such as worker's compensation. Where the lump sum payment includes an amount for income lost or foregone during a period for which a rent rebate has already been assessed, a reassessment of the tenant's entitlement for that period is to be undertaken, taking into account the relevant income that has been identified as lost or foregone.
The reassessment would usually result in an adjustment over the relevant period, which could date back to the time the person's income reduced. The reassessment would relate to the period during which the income was lost or foregone.
Further details are available from the general Rent Rebate policy on the departmental website.
Other circumstances
4. Other circumstances in which [re clause 26(6)(c)(iii) of the HA program] a date earlier than the assessment date might be appropriate include:
...
(d) an assessment error by Housing ACT exacerbated by a failure of a tenant to notify Housing ACT of the error in the calculation of their rebate where the error should be obvious to them, e.g. the non-inclusion of a form of income that has been assessed in all previous rebates; and(e) an assessment error on the part of Housing ACT where the information provided by the applicant is not fully clear, correct or complete even though the assessing officer may not have made appropriate enquiries to clarify the matter.
General provisions
Further information
5. If the applicant provides additional information which may further establish their need to be considered as an eligible applicant, the application can be reassessed.
To provide guidance on the procedure to be adopted when a tenant's entitlement to receive or to continue to receive a rent rebate is reassessed.
The relevant parts of the Rental Rebate Policy, which is a document with neither page nor paragraph numbers and so must be referred to by heading, are included in the attached Schedule. Under the heading Income – Tenant and Household the relevant sub-headings, for the purpose of this matter, are the following:
(a)Worker’s Compensation – the policy sets out that where a person is in receipt of workers’ compensation, then for the period that their income reduces, their eligibility for a rent rebate will be reassessed on the basis of the actual amount they are paid. If settlement of the workers’ compensation claim occurs, then a reassessment will be undertaken. The tenant will be required to:
...repay the difference between the current rebated rent and the rebate assessed on the basis of the settlement, for the period covered by the settlement. For rent rebate purposes the period commences from the date the person’s income reduces, which may or may not coincide with the date of the accident/incident;
(b)Out of Court Settlement – where the lump sum payment does not include an apportionment:
Housing ACT will assume that 50% of the total lump sum received is for the loss of income at the level the person was receiving at the time the income reduces . Rental income will be calculated on that level of income.’
The Applicant’s workplace injury occurred, apparently, in 2003. However, the amount of the Applicant’s workers’ compensation payments did not ‘reduce’ until about August 2010 when, presumably in line with the workers’ compensation scheme, the period of payment of ‘full’ compensation amounts ended and, thereafter, the Applicant was only paid, if at all, a portion of the income she would have received if she had not been injured.
The reassessment after the ‘settlement’ will take account of that portion of the settlement payment that relates to loss of income, past and future. Although payments for ‘pain and suffering’ will not be included in this calculation, the interest earned – or deemed to be earned – on investment of lump sum amounts, including for pain and suffering will also be included in assessment of the Applicant’s rental rebate applications subsequent to the payment of the lump sum.
Chronology of Respondent’s decisions
The Applicant advised the Respondent, as she was required to do, in her rent rebate application on 15 July 2011, about the lump sum payment. She did not complain when the Respondent included, in the rent rebate assessment dated 4 August 2011[21], an income amount of $258.13 identified as ‘Savings/Investment interest (deemed for monies received for compensation received as compensation)’. In that document the Respondent specifically notes that the rent rebate application ‘is approved, following notification of [the Applicant’s] compensation settlement’.
[21] T document 4
The Respondent’s next notice of rent rebate was dated 30 March 2012[22]. The notice stated that the rent rebate amount assessed was to commence on 9 March 2012. The rent rebate amount was apparently based on the calculations set out in the File Note dated 23 March 2012[23] and a further amount – identified as ‘Work Care Payment’ – of $923.32 is included in the calculation of the Applicant’s weekly income.
[22] T document 7
[23] T document 6
Both of these documents[24] were, apparently, prepared for or by Ms Jeanette Kosalka, the then Team Leader, Rebate Support Unit of the Respondent’s office. The amount of $923.32 used by the Respondent in assessing the weekly ‘Work Care Payment’ was in fact a fortnightly amount and, thus, incorrect.
[24] T documents 6 and 7
A revised assessment by the Respondent dated 5 July 2012, this time signed by Ms Stella Vongdara, [25] was sent with a reduced weekly figure of $461.66. A ‘Savings/investment’ figure of $156.91 was included in both T doc 7 and T doc 11. The reduction in this amount between the assessment of 4 August 2011[26] and the assessments in March[27] and July[28] 2012 reflected the reduced amount of the lump sum payment that the Applicant had invested. Presumably, this figure was based on the Applicant’s bank information obtained/provided around the time of the Applicant’s Application for a rent rebate received by the Respondent 14 December 2011.[29]The ‘interest component’ is then further reduced in subsequent rental rebate assessments to reflect the reduced amount of the lump sum remaining (see, for example, T doc 14 dated 24 September 2012).
[25] T document 11
[26] T document 4
[27] T document 7
[28] T document 11
[29] T document 5
In the rental rebate assessment dated 10 April 2013,[30]the Respondent does not include any amount for ‘interest’. Presumably, this reflects the Respondent’s conclusion that by this date no amount of the lump sum was invested, or that no amount should be included as deemed interest. By this date, the Applicant says that the lump sum had been expended.
Supplementary T Documents provided by Respondent subsequent to the hearing
[30] T document 17
The Tribunal is required to assess the impact of the payment to the Applicant of the lump sum, on the Applicant’s eligibility for a rent rebate. It became apparent to the Tribunal, subsequent to the hearing that, based on the available information, the Tribunal was not able to make the necessary calculations, nor assess the calculations made by the Respondent. The Tribunal requested that the Respondent provide additional details about the HATRP recommendations that were adopted by the decision maker. The Respondent then provided the Supplementary T Docs.
In relation to the Supplementary T Docs, the Tribunal notes as follows:
(a)in addition to the HATRP report in the T docs[31] the Respondent has now provided a file note and a spreadsheet setting out or explaining the calculations made relating to the Applicant and which were relied on by HATRP when making its recommendations;
(b)the file note – entitled ‘HATRP REVIEW Thompson Compensation’ - sets out calculations and refers to documents, some of which are in the T documents and others which were included in the Supplementary T Docs;
(c)the spreadsheet – entitled ‘C Thompson Working’ - sets out the following:
i. in the absence of any apportionment of the lump sum payment to the Applicant, the Respondent is working on a figure of $155,811.23, being 50% of the lump sum payment received by the Applicant and which is, according to the Rental Rebate Policy (under the heading ‘Out of Court Settlement’) to be assumed as the amount paid to the Applicant on account of ‘loss of income at the level the person was receiving at the time the income reduces’;
ii. the Applicant’s gross fortnightly income, prior to the reduction in her ‘income’ in August 2010, was $923.32 (being $461.66 per week). The figure of $923.32 per fortnight used by the Respondent was based on information provided by the Applicant’s former employer in 2009. The Tribunal notes that no more recent figure is available and, therefore, the Tribunal accepts this figure;
(d)the Respondent has ‘deemed’ interest on the income, using a ‘ready reckoner’[32]. It is unclear, since the Applicant has provided bank account and term deposit information, why this deeming has occurred.
[31] T document 19
[32] See the note on the Term Deposit document dated 14 Dec 2011 in T document 5
The Tribunal accepts that the difference between the ‘pre reduction’ income and ‘post reduction’ income of the Applicant, from 11 August 2010 and during the time that she continued to receive workers’ compensation payments, was $113.54. The effect of this was to increase the rent rebate amount that she received during this period by $28.38 per week.
For some of the time prior to receiving the lump sum payment in July 2011 the Applicant was in receipt of no income (for example, the Applicant’s rent rebate application dated 4 February 2011). HATRP accepted, and the rent rebate letter of 24 March 2011 confirms[33], that the Applicant was considered for the purpose of her rent rebate application to be in receipt of $0 income between 4 February and 15 July 2011.
[33] T document 1
From 30 May 2012, after receiving the rental rebate letter of 30 March 2012[34], the Applicant queried the impact of the lump sum payment on the calculation of her income for the purpose of her rent rebate eligibility.
[34] T document 7
As at the time of its consideration of the matter in September and October 2013, it appears that HATRP accepted that the Respondent did not provide the Applicant with details about how the ‘income’ amount was calculated. HATRP further accepted that some of the information relied on and calculations made were incorrect. No start or end date in relation to the effect of the lump sum payment had been provided.
Although:
(a)differing amounts appear in rent rebate notices sent to the Applicant; and
(b)amounts were discussed in meetings the Applicant had with the Respondent’s officers; and
(c)arrears in the amount of $10,927.76 appeared in a Notice to Vacate on 4 May 2013 (which followed the notice of arrears dated 18 March 2013 for $1,288.59, and the Notice to Remedy dated 28 March 2013 for $591.09);
it is likely that the Applicant would have been most uncertain about her position.
The information provided to the Applicant about HATRP’s recommendation, to ‘reverse’ the amount of $8,713.92 and about the relevant rent rebate amount, does not further inform the Applicant about the fundamental calculations which had been made, nor the impact of these – for the purpose of past and future rent rebate calculations – on her entitlement to, or obligations to repay, rent rebate amounts.
The Tribunal has spent considerable time reviewing documents, figures, dates, calculation and explanations for the various assessments undertaken by the Respondent, or HATRP, in this matter. The Tribunal has concluded that no one approach adopted, adequately or correctly, deals with the Applicant’s circumstances.
Although the Tribunal is aware that, standing in the shoes of the decision maker, it is up to the Tribunal to arrive at the correct or preferable decision, the Tribunal did seek to adopt, where appropriate, information that had already been obtained by, or provided to, the Respondent. It became apparent to the Tribunal that the only way to adequately respond to the application was to provide the information necessary so that the Respondent can undertake the various calculations which are required.
Consideration and findings of fact
The Tribunal agrees with HATRP and the conclusion in the reviewable decision that the debit processed in April 2013 in the sum of $8,713.92 should be reversed. In the Tribunal’s view, this figure is not an accurate reflection of a reassessment of the Applicant’s tenancy rental position following payment to her of the lump sum. In the Tribunal’s view the payment of the lump sum should have no impact on the Applicant’s rent account nor her eligibility for rental rebate prior to 11 August 2010.
The Applicant received a lump sum payment of workers’ compensation in about July 2011. The payment was by way of an out of court settlement. The Applicant did not provide, and the Respondent after enquiry was unable to determine, how the lump sum payment was apportioned. Specifically, no amount relating to income loss was identified.
The Tribunal accepts that neither the opening paragraph of clause 11(3), nor clause 11(3)(b), of the HA Program compels the Tribunal to conclude that a lump sum payment includes a component for ‘income lost or foregone [sic]’. Even if the Tribunal considers that clause 11(3)(b) applies, the Tribunal is not compelled to include this amount for the purpose of clause 11(1)(c). However, given the nature of the lump sum payment, the Tribunal concludes that it is appropriate to ‘consider’, pursuant to clause 11(3)(b) and for the purpose of clause 11(1)(c) of the HA Program, that part of the lump sum payment to the Applicant was ‘on account’ of lost income or diminished income earning capacity.
In coming to this conclusion, the Tribunal accepts that it is required to consider the relevant provisions of the Human Rights Act. It is the Tribunal’s view that a decision as to the impact of the lump sum payment on the assessment of the Applicant’s rent rebate applications for a period of time does not ‘interfere’ with the Applicants right to a home pursuant to section 12 of the Human Rights Act.
Whilst the Tribunal accepts that it is possible that, because of the Applicant’s particular situation, she may not be able to make certain payments of reassessed rent amounts, it is this consequence, and not the Tribunal’s decision, which might result in action by the Respondent which would require consideration of her right to a home without unlawful or arbitrary interference.
The Rental Rebate Program and policy is operates so that during any period when a public housing tenant’s income is reduced while in receipt of workers’ compensation, the rent rebate is assessed using this reduced amount. However, in the event that a tenant is later compensated, so as to reimburse them for the amount that their income was reduced, and if they are compensated for amounts to reflect loss of income in the future, then the Respondent will take these compensation amounts into account.
The object of the Rental Rebate Program is that no eligible applicant pays more than 25% of their gross income in rent. The way in which the lump sum amount is treated by the Respondent is, in the Tribunal’s opinion, consistent with this object.
The difficulty in the current matter is that it is in an out of court settlement and no apportionment of the lump sum payment is provided. The Applicant does not dispute that part of the lump sum payment was on account of lost income. In circumstances where the Applicant does not provide details of the apportionment of the lump sum payment, the Tribunal considers it is reasonable to ‘consider’, in line with the Rental Rebate Policy, that 50% of the payment was on account of income.
Given the policy and program information relating to the Applicant’s situation, the Tribunal accepts that it is necessary to make a decision about certain matters in order to undertake the calculations which flow from this conclusion.
Calculation of the ‘compensation for loss of income’ component
In relation to the calculation of the component of the lump sum payment attributable to ‘compensation for loss of income’, the Tribunal makes the findings set out in paragraphs 90 to 94 below.
The start date for the rent rebate period impacted by the lump sum payment is 11 August 2010, being the date on which the Applicant’s weekly income (workers’ compensation payments) reduced to $348.12. The Tribunal accepts that the workers’ compensation insurer incorrectly referred to the fortnightly payment of $696.24 as being a weekly payment.
The ‘pre-reduction’ income amount, being the Applicant’s gross weekly income before the reduction, was $461.66. The Applicant’s former employer advised that her fortnightly income as at 14 May 2009 was $923.32, and no more recent information is available to the Tribunal.
After subtracting, from the out of court settlement amount, the relevant amounts for legal costs, disbursements and repayment of amounts to Medicare and Centrelink (now the Department of Human Services), the Applicant received a lump sum payment of $355,862.02.[35] This is the starting point for several other calculations. The Tribunal notes that various other amounts for the lump sum payment amount were used in calculations made by the Respondent and HATRP. The Tribunal reviewed these other lump sum compensation amounts. The Tribunal is satisfied that the figure of $355,862.02 best reflects the actual amount paid to the Applicant.
[35] T document 8
The Tribunal accepts that it is reasonable to consider that part of the lump sum payment made to the Applicant was on account of loss of income or income earning capacity. In the absence of specific details about this amount, the policy is that 50% of the lump sum amount, i.e. $177,931.01, is assumed to be ‘on account’ of loss of income. The Tribunal adopts this figure.
In order to determine the period over which the weekly income amount of $461.66 will impact on the Applicant’s rental rebate applications, the Tribunal finds that it is necessary to undertake the following steps:
(a)review the income amount included in the Applicant’s rental rebate assessments for the period 11 August 2010 to 14 July 2011;
(b)using the income figure of $461.66 per week, calculate the difference between $461.66 and the actual weekly income included in the Applicant’s rent rebate assessments for the period 11 August 2010 to 14 July 2011 inclusive. Add together the total for each week and subtract this figure from the amount of $177,931.01; using this figure,
(c)divide this figure by $461.66. This will provide the number of weeks subsequent to 15 July 2011 in which the weekly income amount of $461.66 will be added to any other income amount to be included in the assessment of the Applicant’s rental rebate applications, pursuant to clauses 11(1)(c), 11(3)(b) and 11(4) of the HA Program.
Investment income
The Tribunal’s review of the decision as to what portion of the lump sum is ‘on account of income’ for the purpose of clause 11(3)(b) of the HA Program does not involve a review of the amounts of ‘investment income’ which the Respondent included, from time to time, in the Applicant’s rental rebate assessments.
However, by way of comment, the Tribunal accepts that the lump sum payment to the Applicant by the workers’ compensation insurer via the workers’ compensation solicitor, after reduction of certain amounts, was $355,862.02. The Tribunal does not consider that all of this amount was available to, nor used by, the Applicant for investment. Information provided by the Applicant in submissions to the Respondent confirms that the Applicant repaid to her mother and sister $63,327 from the lump sum, being amounts that she had borrowed during the period before the resolution of her workers’ compensation claim.
In addition, the amount of $45,000 was initially sent to Medicare, of which $43,018.40 (it appears) was ultimately returned to the Applicant. It is not clear if this amount was returned to the Applicant by 15 July 2011. For some of the period prior to the payment of the lump sum to the Applicant, she was not working and was not receiving either income, workers’ compensation nor social security payments. The Tribunal accepts that the Applicant would have used some of the lump sum amount for daily living, purchases of goods and services, etc.
In assessing the Applicant’s rent rebate application made 03 April 2013[36], the Respondent appears to accept that the Applicant had no investment income from that date. In the Tribunal’s view, that conclusion appears to be correct.
[36] T document 16
Unlike the ‘one time’ decision in relation to the ‘compensation for lost income component’ of the lump sum – which is the subject of this review - the Tribunal accepts that ‘investment income’ should be considered as part of the assessment of each rent rebate application. Only amounts relevant to the particular assessment should be included as investment income for the purpose of clause 11(1) of the HA Program. The Tribunal accepts that deeming provisions may apply to this aspect of income in the HA Program.
Hardship – clause 10 of the HA Program
The Tribunal accepts that the Respondent may exercise the discretion under clause 10 of the HA Program in relation to hardship. The Tribunal was advised that the Applicant has not made an application under this provision. The Tribunal does not have jurisdiction to exercise the discretion in clause 10 of the HA Program, and was not asked to do so. If a decision had been made under clause 10 by the Respondent, the Tribunal is not authorised to review that decision (see clause 30(1) of the HA Program).
Conclusions
The Tribunal is satisfied that the debit adjustment to the Applicant’s rent account of $8,713.92 made on 3 April 2013 should be reversed.
It is clear that some of the assessments and reassessments of the Applicant’s rent rebates in the period from 15 July 2011 to 13 October 2013 were based on incorrect figures and dates. At times the Applicant has been assessed as having twice the income she had or could be ‘considered’ to have had.
The Tribunal considers that it would have been reasonable for the Applicant, having received the rent rebate assessment letter of 4 August 2011,[37]to assume the Respondent had concluded the impact on her weekly income related to the lump sum payment was a ‘deemed’ weekly amount of $258.13. This assessment was in response to the Applicant’s rent rebate application of 15 July 2011[38] in which she had advised of the lump sum payment. The assessment letter refers to the lump sum payment.
[37] T document T4
[38] T document T3
It appears that at no stage, until the reviewable decision letter of 15 October 2013 enclosing the HATRP report, did the Applicant receive a written explanation of how the impact of the lump sum was processed by the Respondent. She is still not aware for how long the lump sum amount will continue to impact on her rent rebate applications.
In the Tribunal’s view, there are some errors in the conclusions reached by HATRP which were then adopted by the reviewable decision maker: for example, the conclusion in the HATRP decision that an ‘interest amount’ should be included in the weekly income figure.
Because of –
(a)the delay that has occurred in the Respondent making the reviewable decision;
(b)the lack of, and/or inaccuracy of, information provided to the Applicant by the Respondent since July 2011; and
(c)the fact that since 25 July 2011 the Respondent has had available the information about the payment of the lump sum that was used to make decisions:
i.about the impact of the lump sum payment on the Applicant’s rent rebate eligibility; and
ii.for the purpose of undertaking reassessments since 11 August 2010;
the Tribunal considers that, pursuant to clauses 25(8)(d) and 26(6)(b) of the HA Program, the rent rebate assessment or reassessment of the Applicant’s rental rebate to take account of the workers’ compensation lump sum payment should commence from 15 October 2013, being the date of the reviewable decision.
Human rights considerations
The Applicant submitted that the Tribunal must interpret legislation and make decisions taking into account sections 28, 30 and 40B(1)(b) of the Human Rights Act. The Applicant submits the relevant human right is in section 12(a) of the Human Rights Act. The Tribunal does not consider that any aspect of the Tribunal’s decision, which relates to the Applicant’s entitlement to rent rebate, interferes with the Applicant’s family or home.
If the Tribunal is wrong in this conclusion, the Tribunal does not consider that the operation of the HA Program or the Rental Rebate Program, as it impacts on this decision, is arbitrary or unlawful. The Tribunal does not accept that the Rental Rebate Policy, which the Tribunal has adopted, in order to assume that 50% of the lump sum amount paid to the Applicant is referable to ‘loss of income’ is arbitrary. The Policy is only adopted in those situations where no apportionment is made. Neither the Applicant, nor her representative, has provided any guidance to the Respondent or the Tribunal in this regard.
The Applicant knew that resolution of her workers’ compensation claim might impact on her eligibility for rental rebate. The Applicant could readily have investigated, in the time before she received the lump sum payment, how that payment might be viewed in relation to her eligibility for rent rebate. In the Tribunal’s view, the legislation and program documentation provides guidance in this regard. Further, the Applicant is entitled, as she has done, to seek internal and Tribunal review of the Respondent’s decisions.
It is the Tribunal’s view that if the Tribunal’s decision were to be considered to ‘interfere with’ the Applicant’s human right to ‘home’ set out in section 12(a) of the Human Rights Act, the Tribunal considers that the decision is consistent with the interpretation of the relevant legislative provisions and instruments.
The Tribunal does not consider that any alternative interpretation, from that adopted by the Tribunal, of the relevant legislative and program provisions is available. The Tribunal does not have jurisdiction to consider the validity of the relevant legislative provisions under section 28 of the Human Rights Act. Thus, section 40B(2)(b) of the Human Rights Act would operate.
Other matters
The Tribunal notes that the T Docs and Supplementary T Docs demonstrate that the Respondent made several decisions in the period from 15 July 2011, when the Applicant first advised of the lump sum payment, until the reviewable decision made on 15 October 2013. Some of these decisions were clearly in relation to the lump sum payment and how it would be treated for the purpose of the Applicant’s rent rebate applications pursuant to clauses 11(1)(c) and 11(3)(b) of the HA Program. As submitted by the Respondent at the hearing, and accepted by the Tribunal, this should be a decision which is made once.
Whilst the Tribunal accepts that the Respondent is authorised to correct errors or undertake reviews as appropriate, it is the Tribunal’s view that the Respondent should have provided the Applicant with written details of the decisions, and an explanation for the changes, that were made. It is the Tribunal’s view in this matter that simply providing the outcome of these decisions in rent rebate assessment letters without further explanation was insufficient to advise the Applicant about these decisions.
It is the Tribunal’s view that for much of the time between 15 July 2011 and 15 October 2013, the Applicant would not have had a clear understanding of what information the Respondent had taken into account in making a decision, how the Respondent had reached a decision, or what decision the Respondent had reached about the matters relevant to clauses 11(1)(c), 11(3)(b) and 11(4) of the HA Program in relation to the lump sum compensation payment made to the Applicant on or before 15 July 2011.
………………………………..
Ms W. Corby – Senior Member
SCHEDULE
HOUSING ASSISTANCE ACT 2007
Part 2Objects and important concepts
Objects of Act
(1)The main objects of this Act are—
(a)to maximise the opportunities for everyone in the ACT to have access to housing that is affordable, secure and appropriate to their needs; and
(b)to facilitate the provision of housing assistance for those most in need; and
(c)to maximise value for money in the provision of housing assistance; and
(d)to promote a choice of forms of housing assistance, and providers of housing assistance, for entities eligible for housing assistance; and
NoteEntity includes a person—see the Legislation Act, dict, pt 1.
(e)to facilitate the provision of rental housing that—
(i)has adequate amenity, is of an adequate size and is appropriately located for employment opportunities and necessary services and facilities; and
(ii)is coordinated with any support services (provided under other laws) required by consumers of housing assistance to live in the community; and
(f)to facilitate the provision of an adequate supply of affordable home finance for people on low and moderate incomes; and
(g)to promote the development of flexible and innovative financial arrangements to facilitate access to home ownership for people on low and moderate incomes; and
(h)to promote the growth of a community housing sector as a viable alternative to public and private rental housing and home ownership; and
(i)to promote the establishment of appropriate mechanisms and forums to allow input into housing policy by consumers, and potential consumers, of housing assistance and by representative non-government agencies involved in housing policy and provision.
(2)A person administering this Act must have regard to the objects of the Act to the maximum extent practicable considering the resources available to the person.
Approved housing assistance programs
(1)The Minister may approve a housing assistance program.
(2)An approved housing assistance program is a disallowable instrument.
Note1 Power given under an Act to make a statutory instrument (including a program) includes power to amend or repeal the instrument (see Legislation Act, s 46 (1)).
Note 2A disallowable instrument must be notified, and presented to the Legislative Assembly, under the Legislation Act.
Approved housing assistance programs—determinations
(1)An approved housing assistance program may provide for the housing commissioner to make determinations for the program.
(2)A determination under subsection (1), and each amendment (if any) of a determination, is a notifiable instrument.
NoteA notifiable instrument must be notified under the Legislation Act.
Approved housing assistance programs—operational guidelines
(1)The housing commissioner may issue guidelines (housing operation guidelines) outlining procedures for the management or operation of approved housing assistance programs.
(2)Housing operation guidelines—
(a)may deal with matters also dealt with elsewhere under this Act; but
(b)must not be inconsistent with this Act (including approved housing assistance programs).
NoteA reference to an Act includes a reference to the statutory instruments made or in force under the Act, including any approved housing assistance program or regulation (see Legislation Act, s 104).
(3)A housing operation guideline, and each amendment (if any) of a guideline, is a notifiable instrument.
NoteA notifiable instrument must be notified under the Legislation Act.
HUMAN RIGHTS ACT 2004
Privacy and reputation
Everyone has the right—
(a)not to have his or her privacy, family, home or correspondence interfered with unlawfully or arbitrarily; and
Human rights may be limited
(1)Human rights may be subject only to reasonable limits set by laws that can be demonstrably justified in a free and democratic society.
(2)In deciding whether a limit is reasonable, all relevant factors must be considered, including the following:
(a)the nature of the right affected;
(b)the importance of the purpose of the limitation;
(c)the nature and extent of the limitation;
(d)the relationship between the limitation and its purpose;
(e)any less restrictive means reasonably available to achieve the purpose the limitation seeks to achieve.
Interpretation of laws and human rights
So far as it is possible to do so consistently with its purpose, a Territory law must be interpreted in a way that is compatible with human rights.
Meaning of public authority
(1)Each of the following is a public authority:
(a)an administrative unit;
(b)a territory authority;
(c)a territory instrumentality;
(d)a Minister;
(e)a police officer, when exercising a function under a Territory law;
(f)a public employee;
(g)an entity whose functions are or include functions of a public nature, when it is exercising those functions for the Territory or a public authority (whether under contract or otherwise).
NoteA reference to an entity includes a reference to a person exercising a function of the entity, whether under a delegation, subdelegation or otherwise (see Legislation Act, s 184A (1)).
(2)However, public authority does not include—
(a)the Legislative Assembly, except when acting in an administrative capacity; or
(b)a court, except when acting in an administrative capacity.
40AMeaning of function of a public nature
(1)In deciding whether a function of an entity is a function of a public nature, the following matters may be considered:
(a)whether the function is conferred on the entity under a territory law;
(b)whether the function is connected to or generally identified with functions of government;
(c)whether the function is of a regulatory nature;
(d)whether the entity is publicly funded to perform the function;
(e)whether the entity performing the function is a company (within the meaning of the Corporations Act) the majority of the shares in which are held by or for the Territory.
(2)Subsection (1) does not limit the matters that may be considered in deciding whether a function is of a public nature.
(3)Without limiting subsection (1) or (2), the following functions are taken to be of a public nature:
(a)the operation of detention places and correctional centres;
(b)the provision of any of the following services:
(i)gas, electricity and water supply;
(ii)emergency services;
(iii)public health services;
(iv)public education;
(v)public transport;
(vi)public housing.
40BPublic authorities must act consistently with human rights
(1)It is unlawful for a public authority—
(a)to act in a way that is incompatible with a human right; or
(b)in making a decision, to fail to give proper consideration to a relevant human right.
(2)Subsection (1) does not apply if the act is done or decision made under a law in force in the Territory and—
(a)the law expressly requires the act to be done or decision made in a particular way and that way is inconsistent with a human right; or
(b)the law cannot be interpreted in a way that is consistent with a human right.
NoteA law in force in the Territory includes a Territory law and a Commonwealth law.
Housing Assistance Public Rental Housing Assistance Program 2013 (no 1)
Eligibility criteria for assistance
An applicant is eligible for rental housing assistance if the applicant satisfies each of the following criteria —
…
An applicant is eligible for a rent rebate if the applicant satisfies each of the following criteria:
(a)the applicant is receiving rental housing assistance from the housing commissioner under this program; and
(b)the applicant is eligible for a rent rebate in accordance with clause 25.
Hardship
(1)If the housing commissioner is satisfied that, relative to the circumstances of eligible applicants generally, an applicant is suffering severe hardship that cannot be alleviated by any other means, the housing commissioner may, in his or her absolute discretion, disregard any criteria mentioned in clause 9 (other than paragraph 9 (1) (d)) in deciding whether the applicant is eligible for assistance.
(2)This provision includes any eligibility criteria (not including age criteria) determined under clause 9 (1B).
Meaning of income
For this program, income, for a person—
(a)means personal earnings, valuable consideration, profits or any other amounts the person has earned, derived, received or become entitled to, for the person’s own use or benefit, by any means from any source; and
(b)includes a periodical payment or benefit by way of gift or allowance to the person; and
(c) includes an amount taken to be earned, derived or received by the person under subclause (3); and
(d) includes an entitlement forgone as part of a salary packaging arrangement or any arrangement which has the effect of reducing the person’s taxable income.
Example for par (d)
Where a person forgoes part of their income by salary sacrificing the payments on the lease of a motor vehicle or computer the amounts sacrificed are part of the income of that person.
Rent rebate
The housing commissioner may provide the tenant of a public housing dwelling a rent rebate provided that the tenant satisfies the eligibility criteria in clause 9(4) and this clause.
NoteThe definition of tenant includes both tenants under residential tenancy agreements and occupants under occupancy agreements as defined in the Residential Tenancies Act 1997.
The rent rebate for a tenant is calculated as the amount by which the weekly rent payable by the tenant under the tenancy agreement is more than the total of the following (the basic rent) -
(a) 25% of the weekly income of the household, other than—
(i)the weekly income of all members of the household (other than the tenant) who are under 18 years old; and
(ii)dependent child payments;
(b)10% of the weekly income (other than dependent child payments) of all members of the household (other than the tenant) who are independent people under 18 years old;
(c)10% of dependent child payments payable to any member of the household;
(d)any component of the rent that is—
(i)in relation to water consumption charges, central heating, garages or other facilities; and
(ii)decided by the housing commissioner to form part of the basic rent.
However, the rebate must be reduced by any amount necessary to result in a weekly rent payable by the tenant (after deduction of the rebate) of at least $5.
Also, the housing commissioner must not provide a rent rebate if the amount of rent rebate to which the tenant would be entitled, but for this subclause, is less than $5.
Subject to subclauses (3) and (4), the housing commissioner may round an amount of rent rebate up or down to result in the weekly rent payable by a tenant (after deduction of the rent rebate) being rounded to the nearest 5 cents.
Subject to subclause (7) and clause 26, the housing commissioner may provide a rent rebate to a tenant for a period of 6 months or such other period decided by the housing commissioner.
The housing commissioner may, from time to time, extend by up to 6 months the period of rent rebate provided.
Provision of a rent rebate takes effect from—
(a)the expiry of any previous provision of a rent rebate; or
(b)the date of application for the rent rebate; or
(c)if the tenant was receiving a rent rebate immediately before the application and the housing commissioner determines that the rent rebate has increased—a date, decided by the housing commissioner, not more than 2 weeks before the date of application; or
(d)from an earlier date in circumstances decided by the housing commissioner.
Example for par (d)
The applicant was physically or mentally incapacitated and thereby prevented from completing the application form for a rent rebate.
Despite anything else in this clause, unless the housing commissioner decides otherwise, a tenant is not entitled to a rent rebate or the continuing provision of a rent rebate if the tenant—
(a)is subletting the dwelling the subject of the tenancy agreement; or
(b)stops living at, or is absent from, the dwelling without the consent of the housing commissioner; or
(c) is absent from the dwelling for a period longer than 3 months.
In this clause:
dependent child payments means—
(a)family tax benefit part A paid under the A New Tax System (Family Assistance) Act 1999 (Cwlth); or
(b)any part of a service pension payable under the Veterans’ Entitlement Act 1986 (Cwlth) in relation to a child;
worked out as the lesser of the total amount payable and the total amount that would be payable in relation to 3 children at the maximum rate available.
Rent Rebate - Reassessment of eligibility
The housing commissioner may, from time to time, reassess a tenant’s entitlement to receive or to continue to receive a rent rebate.
Where the housing commissioner seeks to reassess a rent rebate provided to a tenant the housing commissioner must notify the tenant in writing of the assessment date, which may be a date before or after the provision of the rent rebate.
The housing commissioner may, at any time, ask a tenant who is receiving a rent rebate to give the housing commissioner further stated information to enable a reassessment by the housing commissioner.
The tenant must give the housing commissioner any further stated information requested by the housing commissioner at the relevant assessment date to enable a reassessment of the tenant’s eligibility for continuing assistance by way of a rent rebate.
Note If the information is not given in accordance with a notice under section 24(3) or section 25(2) of the Act the application may be refused.
If the housing commissioner thinks, for any reason, that the tenant is or was not eligible for a rent rebate or is or was eligible for a different amount of rent rebate, the housing commissioner may suspend, amend or revoke the provision of a rent rebate.
A suspension, amendment or revocation of the provision of a rent rebate takes effect from—
(a) the relevant assessment date; or
(b)if the tenant notified the housing commissioner of a relevant change in circumstances and the housing commissioner has decided that the tenant’s rent rebate has increased—a date earlier than the relevant assessment date, decided by the housing commissioner, not more than 2 weeks before the date of notification; or
Note See clause 15 for meaning of relevant change in circumstances.
(c)a date earlier than the relevant assessment date as decided by the housing commissioner if—
(i)the tenant failed to provide full and correct information under clause 8(1) or when asked by the housing commissioner under subclause (4);
(ii)the tenant failed to advise the housing commissioner of a relevant change in circumstances; or
(iii)the housing commissioner considers it appropriate having regard to the circumstances of the case.
Example for par (c)(iii)
The tenant has received a lump sum payment (by compensation or otherwise) which the housing commissioner considers wholly or partly accounts for income lost or forgone by the person during a period.
ACAT review
Application may be made to the ACT Civil and Administrative Tribunal for review of a decision under clause 31 (4)(a) or a decision to accept vary or reject a recommendation under clause 31(4)(b).
Housing Assistance Public Rental Housing Assistance Program (Exempt Income and Assets) Determination 2012 (No 1)
Other types of payments, assistance, allowances or expenditure
Insurance policy or similar payments for loss or damage to property or for personal injury, except for payments relating to compensation for loss of income;
Housing Assistance Public Rental Housing Assistance Program (Rent Rebate) Operation Guideline 2008 (No 1)
Meaning of income
Clause 11, in defining income, provides for a range of types of income which do not necessarily "fit" the general income types. For example, deemed income and income derived from a lump sum payment. Deemed income includes a Centrelink benefit for which a person, although entitled, does not apply. Lump sum payments include payments made in settlement of a worker's compensation claim and other payments which include a component of income lost or foregone.
Date of effect
Subclause 25(8) specifies the date of effect for granting a rent rebate. This includes provision for a date earlier than would normally apply where particular circumstances exist. These would include circumstances that are unusual or out of the ordinary, such as:
· where a tenant was unconscious in hospital and could not contact Housing ACT to make them aware of their situation; or
· where a tenant has been called away unexpectedly because of a death or serious illness of an immediate family member.
Reassessment of rent rebate
Clause 26 of the Program provides for a range of alternatives for the date of effect of a rebate review.
Further details are provided in a separate operation guideline relating to 'Rent rebate - reassessment of eligibility'.
Review
A decision made under clause 25 of the Program is a reviewable decision in terms of clause 30 of the Program.
Any reference to "Housing ACT" in an operation guideline is a reference to Housing ACT being a section of the Department of Disability, Housing and Community Services representing the housing commissioner.
Relevant provision of the Program
Clause 26 – Rent Rebate – Reassessment of eligibility
Clause 26 provides that the housing commissioner may, from time to time, reassess a tenant's entitlement to receive, or to continue to receive, a rent rebate. A tenant who is receiving a rent rebate may be asked to provide further information to enable a reassessment to be undertaken.
If, as a result of the reassessment it is determined that the tenant is, or was not eligible for a rent rebate, or is or was eligible for a different amount of rent rebate, their existing rebate may be suspended, amended or revoked.
In most cases the suspension, amendment, or revocation would take effect from the assessment date. However, subclause 26(6)(c) provides for an earlier date of effect in the following circumstances:
(i)the tenant failed to provide full and correct information under clause 8 or when asked by the housing commissioner under subclause 26(4);
(ii)the tenant failed to advise the housing commissioner of a relevant change in circumstances; or
(iii)the housing commissioner considers it appropriate having regard to the circumstances of the case.
Lump sum payment
In relation to subclause 26(6)(c)(iii) a typical situation arises where an applicant receives a lump sum payment such as worker's compensation. Where the lump sum payment includes an amount for income lost or foregone during a period for which a rent rebate has already been assessed, a reassessment of the tenant's entitlement for that period is to be undertaken, taking into account the relevant income that has been identified as lost or foregone.
The reassessment would usually result in an adjustment over the relevant period, which could date back to the time the person's income reduced. The reassessment would relate to the period during which the income was lost or foregone.
Further details are available from the general Rent Rebate policy on the departmental website.
Other circumstances
Other circumstances in which a date earlier than the assessment date might be appropriate include:
(a)provision by an applicant of incorrect or incomplete information intentionally, that is fraudulently;
(b)failure of an applicant to provide full and correct information, inadvertently;
(c)failure of a tenant to notify Housing ACT of a change of circumstances, such as an addition to their household, which impacts on their entitlement;
(d)an assessment error by Housing ACT exacerbated by a failure of a tenant to notify Housing ACT of the error in the calculation of their rebate where the error should be obvious to them, e.g. the non-inclusion of a form of income that has been assessed in all previous rebates; and
(e)an assessment error on the part of Housing ACT where the information provided by the applicant is not fully clear, correct or complete even though the assessing officer may not have made appropriate enquiries to clarify the matter.
General provisions
Further information
If the applicant provides additional information which may further establish their need to be considered as an eligible applicant, the application can be reassessed.
ACT Civil and Administrative Tribunal Act 2008
Review of decisions
(1)This section applies if the tribunal reviews a decision by an entity.
(2)The tribunal may exercise any function given by an Act to the entity for making the decision.
NoteA reference to an Act includes a reference to the statutory instruments made or in force under the Act, including regulations (see Legislation Act, s 104).
(3)The tribunal must, by order—
(a)confirm the decision; or
(b)vary the decision; or
(c)set aside the decision and—
(i)make a substitute decision; or
(ii)remit the matter that is the subject of the decision for reconsideration by the decision-maker in accordance with any direction or recommendation of the tribunal.
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