Trotter and Secretary, Department of Family and Community Services

[2004] AATA 547

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 547

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S2003/241

GENERAL ADMINISTRATIVE DIVISION		)
Re		ANTHONY TROTTER

Applicant

And SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES

Respondent

DECISION

Tribunal Mr D J Trowse

Date28 May 2004

PlaceAdelaide

Decision The Tribunal affirms the decision under review.

Mr D J Trowse
  (Signed)

Member

CATCHWORDS

Social Security - Rent Assistance - Government Rent - Alleged unfairness - Decision Affirmed

Social Security Act 1991 - SS 13(1) S1064-D1

Cooper Brookes (Wollongong) Pty Ltd v FCT (1981) 147 CLR 297

REASONS FOR DECISION

28 May 2004 Mr D J Trowse  (Member)  

1.      The applicant, Mr Anthony Trotter who is in receipt of a Disability Support Pension, has appealed to this Tribunal against a decision of the Social Security Appeals Tribunal (SSAT) that he is not qualified to receive rent assistance.  In doing so, the SSAT confirmed the decision made by Centrelink on 20 January 2003.  The applicant is of the view that the denial of this assistance is discriminatory and grossly unfair, and, on that basis, looks to the Tribunal to correct the injustice suffered by him.

2. The Tribunal had before it the documents lodged pursuant to S 37 of the Administrative Appeals Tribunal Act 1975. At the hearing the applicant represented himself.  The Respondent was represented by Ms S Cerone.

3. Subsection 1064-D1 of the Social Security Act 1991 (the Act) provides that persons in receipt of government funded support pensions may in certain circumstances receive additional amounts to help cover the cost of domestic rent.  Needless to say, this entitlement is only payable to persons paying rent for his or her accommodation and, yet, as will be seen there are exceptions.  One of the exclusions is where the person is paying Government rent.  Put succinctly, a person paying Government rent is not entitled to receive the rental assistance offered by the subsection.

4.      The term Government rent is defined in subsection 13 (1) of the Act as meaning rent payable to several authorities including the South Australian Housing Trust.

5.      On the information before it, the Tribunal makes the following findings –

·The applicant is aged 58 years and lives by himself in rental accommodation in the country town of Millicent.

·The applicant is in receipt of a Disability Support Pension from Centrelink.

·The unit where the applicant resides is owned by the South Australian Housing Trust (the Housing Trust).

·The unit is of the old style where a home of normal dimensions is divided into two separate living areas.

·The rent payable by the applicant to the Housing Trust is at the rate of $106 per fortnight.

6.      Clearly, the payment of rent to the Housing Trust disqualifies the applicant from receiving rent assistance and thus the Tribunal has no alternative but to affirm the decision made by the SSAT on 4 June 2003.  Like the respondent, the Tribunal is required to apply the legislation passed by the Parliament.  There is no ambiguity in the section now under consideration and therefore it must be given its literal meaning.  Authority for this approach is to be found in the judgement of Gibbs CJ in the case of Cooper Brookes (Wollongong) Pty Ltd v FCT (1981) 147 CLR 297.

7.      In view of the length and intensity of the submissions made by the applicant on his perception of the unfairness of the system, the Tribunal feels obligated to offer some comment.  In taking this course, the Tribunal commences with an acceptance of the concept that, inter alia, persons paying rent to the nominated authorities are disqualified from receiving assistance because of the belief that they are already benefiting from a rental charge that is less than the commercial rate.

8.      The applicant’s first complaint related to the suggestion that there is lack of parity between the rent being charged on the unit occupied by him and its true commercial worth.  In an effort to establish that he is paying rental at a commercial rate, the applicant referred to recent sales and re-leasings of like homes formerly owned by the Housing Trust and located in close proximity.  In comparing the rentals being charged by the new non-government owners with that being paid by himself, the applicant is satisfied that the rent he is paying represents full market value.  The fact that the tenants of the units formerly owned by the Housing Trust are receiving assistance to his exclusion is in his opinion discriminatory.

9.      Secondly, the applicant is critical of a system whereby the Housing Trust raises its rentals whenever there is an increment in government benefit.  As this disadvantage does not extend to pensioner tenants in the non-government arena, the gap between tenants of the two kinds is further widened.  Additionally, the applicant maintains that these regular rental increases by the Housing Trust ensure that the amounts being charged represent full value.

10.     Thirdly, the applicant expressed his disapproval of an alleged generous attitude adopted by the Housing Trust towards its prospective tenants who, while awaiting Housing Trust accommodation, are paying high rates of rental in the private sector.  According to the applicant such tenants are reimbursed for all rental payments exceeding $340 per fortnight.  In his opinion, the payment of $60 per fortnight by the Housing Trust to supplement a rental of $400 per fortnight is an extravagant misdirection of scarce resources.  This was particularly so when the waiting period for Housing Trust accommodation could be anything up to 20 years.

11.     Finally, the applicant complains that, at the time of entering into the tenancy arrangement, he was not informed by the respondent that leasing with the Housing Trust would negate his entitlement to rental assistance.  He claims that, had such advice been forthcoming, he may have sought and found a more economic outcome in the private sector.  On this issue, the representative for the respondent undertook to provide the applicant with information regarding a possible claim under the Compensation for Detriment Caused by Defective Administration Scheme.

12.     As pointed out to the applicant at the hearing, these matters are outside the purview of the Tribunal.  However, if one was to accept the factual correctness of the applicant’s claims, it might be concluded that the relevant legislation and practices adopted may need revisiting.

13.     For the reasons stated, the Tribunal affirms the decision of the SSAT dated 4 June 2003.

I certify that the 13 preceding paragraphs are a true
copy of the reasons for the decision herein
of Mr DJ Trowse (Member)

Signed:         ...................................
  Associate

Date/s of Hearing  27 April 2004
Date of Decision  28 May 2004
Counsel for the Applicant         In person
Solicitor for the Applicant          -

Counsel for the Respondent     Ms S Cerone

Solicitor for the Respondent     Centrelink Service Recovery Team