VRKR and Social security second review (Social security second review)
[2025] ARTA 334
•8 April 2025
VRKR and Social security second review (Social security second review) [2025] ARTA 334 (8 April 2025)
Applicant:VRKR
Respondent: Secretary, Department of Social Services
Tribunal Number: 2024/2123
Tribunal:Deputy President K Dordevic (second review)
Place:Sydney
Date:8 April 2025
Decision:The Tribunal:
1. Affirms the decision under review; and
2. Directs that information tending to reveal the identity of the Applicant in these proceedings is prohibited pursuant to subsection 70(1) of the Administrative Review Act 2024.
[SGD]
Deputy President K Dordevic
Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 201(1A) - 201(1B) of the Social Security (Administration) Act 1999.
Catchwords
AGE PENSION – homeowner – assets test – reduced rate – single homeowner – Applicant owns and lives in a caravan – Applicant sold his former home – rent assistance - decision under review affirmed
Legislation
Administrative Review Tribunal Act 2024 (Cth)
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Social Security Act 1991 (Cth)Social Security (Administration) Act 1999 (Cth)
Cases
Dickeson and Secretary, Department of Social Security [1989] AATA 90; (1989) 18 ALD 58
G v MIBP [2018] FCA 1229
Geothermal Energy NZ v Commission of Inland Revenue [1979] 2 NZLR 324
Guistino Di Primio v Secretary, Department of Social Security [1993] AATA 246
Re Buchanan and Repatriation Commission [1989] AATA 166; 10 AAR 433Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Secondary Materials
Guides to Social Policy Law – Social Security Guide
Statement of Reasons
On 25 March 2023 VRKR[1] (the Applicant) submitted a claim for age pension to Services Australia - Centrelink (Centrelink).
[1] Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 201(1A) - 201(1B) of the Social Security (Administration) Act 1999.
On 1 August 2023 Centrelink granted the Applicant’s claim for age pension from 25 March 2023 at a reduced rate, as the Applicant was assessed as a homeowner under the assets test. On 2 August 2023 the Applicant requested an internal review of the decision.
On 25 September 2023 an authorised review officer affirmed the decision to pay a reduced rate of age pension under the assets test, finding that the caravan in which the Applicant lived is a home and so the Applicant is a homeowner for the purposes of calculating his rate of age pension.
On 30 October 2023 the Applicant applied to the Social Security and Child Support Division of the Administrative Appeals Tribunal (AAT1) for an independent review of the authorised review officer’s decision.
On 6 March 2024 the decision of the authorised review officer was affirmed by AAT1.
On 10 April 2024 the Applicant lodged an application for review with that decision in the General Decision of the Administrative Appeals Tribunal. From 14 October 2024, the Administrative Appeals Tribunal became the Administrative Review Tribunal (the Tribunal). This decision and statement of reasons is made by the Tribunal. [2]
[2] Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT.
The hearing took place on 19 February 2025. Both parties participated by video. The Applicant was self-represented. The Secretary, Department of Social Services (the Respondent) was represented by Mr Matt Gauci of Hunt & Hunt Lawyers. Both the Applicant and the Respondent appeared by MS Teams video. The Tribunal had before it documents provided by the Respondent as well as the documentary evidence submitted by the Applicant on 13 February 2025. The Tribunal is also assisted by the Secretary’s Statement of Facts, Issues and Contentions and the Applicant’s submissions.
ISSUES
The statutory provisions relevant to this review are contained in the Social Security Act 1991 (the Act) and the Social Security (Administration) Act 1999 (the Administration Act).
The issue requiring determination in this matter is whether the Applicant is a ‘homeowner’ for the purposes of determining his rate of age pension.
CONSIDERATION
The relevant law
It is not in contention, and I so find, that the Applicant meets the qualification criteria for age pension set down in subsection 43(1) of the Act. Section 44 of the Act states that age pension is not payable if a person’s age pension rate would be nil.
The Pension Rate Calculator A outlined at section 1067-A1 of the Act outlines the method statement to determine a person’s age pension rate, including that the ‘income reduced rate’ (at Step 8) and the ‘asset reduced rate’ (at Step 10) must be compared. The lower of the two rates is the rate of pension (Step 11).
To determine the maximum basic rate, section 1064-B1 states that the person’s family situation must be determined. It is not in contention, and I so find, that the Applicant is single.
Section 1064-G1 outlines how to work out the effect of a person’s assets on the person’s maximum rate. Relevantly, section 1118 of the Act stipulates certain assets that are to be disregarded when valuing a person’s assets. Paragraph 1118(1)(a) of the Act states that if a person is single, then the value of any ‘right or interest of the person in the person’s principal home that is a right on interest that gives the person reasonable security of tenure in the home’ must be disregarded.
Paragraph 1118(1)(a) of the Act replicates the definition of the term ‘homeowner’ as defined in subsection 11(4) of the Act:
Homeowner
(4) For the purposes of this Act:
(a) a person who is not a member of a couple is a homeowner if:
(i) the person has a right or interest in the person's principal home;
and
(ii) the person's right or interest in the home gives the person
reasonable security of tenure in the home; and…
Principle home is defined in subsection 11A(1) of the Act:
Principal home
(1) A reference in this Act to the principal home of a person includes a reference to:
(a) if the principal home is a dwelling-house – the land adjacent to the dwellinghouse to the extent that:
(i) the land is held under the same title document as the land on which the dwelling-house is located; and
(ii) the private land test in subsection (3) is satisfied in relation to the land or, if the person is one to whom the extended land use test applies in relation to the land, the extended land use test in subsection (6) is satisfied in relation to the land; or(b) if the principal home is a flat or home unit – a garage or storeroom that is used primarily for private or domestic purposes in association with the flat or home unit.
‘Reasonable security of tenure’ is defined in subsection 11A(10) of the Act:
Reasonable security of tenure
(10) If a person has a right or interest in the person's principal home, the person is to be taken to have a right or interest that gives the person reasonable security of tenure in the home unless the Secretary is satisfied that the right or interest does not give the person reasonable security of tenure in the home.
The Guides to Social Policy Law – Social Security Guide (the Guide) aids decision-makers in implementing the law. Chapter 4.6.3.20 of the Guide provides assistance in determining if a person is a homeowner or non-homeowner, repeating the definition of homeowner as set down at paragraph 11(4)(a) of the Act and then goes on to list examples of a homeowner including a person who is living in a caravan that they own or partly own in which they have reasonable security of tenure. [3]
[3] >
While I may be guided by this policy, I am not bound to follow it: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634. In the more recent case of G v MIBP [2018] FCA 1229 the Federal Court observed that it is clear from earlier authorities, that in the absence of any statutory indication to the contrary, any lawful executive policy enacted to guide the exercise of a statutory power is a relevant factor for the Tribunal to take into account in performing its review task. I understand this to mean that I can take it into consideration but it is not determinative.
Relevant findings of fact
I make the following findings:
·the Applicant sold his principal home on 13 September 2022; and
·the Applicant has lived in his caravan, which he solely owns, since 17 September 2022.
Application of the law to the facts
The Applicant and Respondent take opposing positions. The Applicant contends that he is not a homeowner and the Respondent asserts that he is for the purposes of determining his rate of age pension.
In support of its position, the Respondent relies on Guistino Di Primio v Secretary, Department of Social Security [1993] AATA 246 (Di Primio) in which Deputy President Forgie determined that the term ‘principal home’ is not limited to a dwelling house, flat or unit[4] on the basis that this accords with the ordinary meaning of home[5] and the relevant provision is expressed in inclusionary terms and so does not exclude a caravan, boat or other structure that had been converted into a residence.[6]
[4] Di Primio, at [71]
[5] Ibid, at [72]
[6] Ibid, at [73]
The Applicant seeks to distinguish Di Primio by its facts.[7] He states that as he owns no real estate and is required to rent a site at caravan parks his case is distinguished, as the proper reading of section 11A(1) of the Act means that one’s principal home must be attached to land.[8]
[7] ST2, folios 114 to 116
[8] ST2, folio 116
There is no doubt that the Applicant’s circumstances are different to the factual matrix in Di Primio. Nevertheless, subsection 11A(1) of the Act is not an exhaustive list of dwellings that can constitute a principal home; rather it “includes” a dwelling house on land, as well as a flat, home unit. I am satisfied that the correct reading of this provision does not limit a principal home to a structure attached to land as the Applicant contends.
There is extensive case law in what constitutes a person’s ‘home’. In Dickeson and Secretary, Department of Social Security [1989] AATA 90; (1989) 18 ALD 58 (Dickeson) the Tribunal held that the tin shed without running water, cooking facilities and in an acute state of disrepair on the farm where the age pensioner lived was his home. In reaching this conclusion the Tribunal considered that a substantial degree of occupation was persuasive, as was whether the accommodation is the place where the person ordinarily eats, sleeps and has the characteristics of permanency as determined in Todd v Nichol [1957] 1 SASR 72. The Tribunal adopted the reasoning of the New Zealand case of Geothermal Energy NZ v Commission of Inland Revenue [1979] 2 NZLR 324 which referred to one’s home as the “centre of gravity of one’s domestic life” and determined that this can include a caravan or campervan.[9] In Re Buchanan and Repatriation Commission [1989] AATA 166; 10 AAR 433 the Tribunal also held that a campervan could be a home.
[9] Dickeson, at [61]
The Applicant’s oral testimony at hearing supports a finding that the caravan is the centre of gravity of his domestic life. I have reached this conclusion notwithstanding the fact that he never socialises in the caravan and prefers not to use its bathroom. The caravan is the location where he sleeps, prepares his meals and spends a large part of his days. Furthermore, as the sole owner of the caravan he has an undisputed right to reside in the caravan. I am satisfied that the Applicant’s caravan is his principal home for the purposes of subsection 11A(1) of the Act and so the first limb of paragraph 11(4)(a) of the Act is satisfied.
I next considered whether the Applicant’s right to the caravan gives him reasonable security of tenure. The Applicant states that he does not have security of tenure as he must relocate periodically due to limits on periods in which a person can rent a particular caravan site. He states to find otherwise would be equivalent to finding that those that are forced to live in their cars also have security of tenure. Instead, he submits that he can have no security of tenure without the right to tether the caravan to a piece of land. He further submits that finding he has security of tenure is being invented to reduce his rate of age pension.
As outlined above the term ‘reasonable security of tenure’ is provided for in subsection 11A(10) of the Act. I have already determined that the Applicant is the sole owner of the caravan. There is no evidence before me to suggest that there is a lien on the caravan or that the Applicant’s right to occupy the caravan is limited or restricted in any way. I am not persuaded that because certain caravan sites or local government areas stipulate the maximum period that a person may rent a site that this does not give the Applicant security of tenure; his right to occupy the caravan remains. I conclude that the Applicant has reasonable security of tenure of his principal home.
For these reasons I am satisfied that the Applicant is correctly characterised as a homeowner for the purposes of section 11(4) of the Act. Therefore, for the purposes of the assets test under section 1064-G1 the value of the Applicant’s caravan must be disregarded when working out the value of his assets.
The Applicant urges the Tribunal to make a brave decision by rejecting the Guide and find that he is not a homeowner. He contends that the definition of a non-homeowner in Chapter 4.6.3.20 includes a person who pays rent.[10] He submits that as he is required to rent a site for his caravan, and that he receives rent assistance, it is simply absurd that he is classified as a homeowner.
[10] Addendum to submissions filed on 11 November 2024, folio 4
I accept that the Applicant’s submission on this point reflects the commonly held binary view of residential accommodation; one is either a homeowner or renter. However, the Act provides that in certain circumstances, such as the Applicant finds himself in, that one can be a homeowner and also be eligible for rent assistance in respect of site fees.
It is not in dispute that the Applicant receives rent assistance in respect of site fees he is liable to pay when residing in his caravan at a caravan park. As a general rule, a person is qualified for rent assistance if they meet the common requirements set down in section 1070C of the Act.
However, relevant to this application, subsection 1070C(a) of the Act states that one common requirement is that the person is not an “ineligible homeowner”. Subsection 13(1) of the Act states that an “ineligible homeowner” is a homeowner other than a person who pays for the use of a site for a caravan that is the person’s principal home (amongst other exceptions).
This provision is reflected in Chapter 3.8.1.100 of the Guide. At hearing I put to the Applicant this part of the Guide. He reiterated his submissions that it is contradictory to find that he is both eligible for rent assistance and a homeowner.
I find that application of the law to the Applicant’s living arrangements means that he is not an ‘ineligible homeowner’ for the purposes of the Act. I conclude that there is nothing contrary or incompatible with the Applicant receiving rent assistance in respect of the site fees he must pay.
The Applicant also submits that as beneficial legislation the Tribunal should distinguish his circumstances. He contends that strict application of the law leads to an unreasonable result and is not in the spirit of the Act.
The Applicant’s characterisation of the Act and Administration Act as beneficial legislation is correct. However, careful review of the Act reveals no discretions that would allow the Tribunal to take into account the Applicant’s circumstances so as to permit him to be classified as a non- homeowner.
For all these reasons I conclude that the Applicant was correctly assessed as a single homeowner and his rate of age pension must be calculated accordingly.
DECISION
The Tribunal:
1.Affirms the decision under review; and
2.Directs that information tending to reveal the identity of the Applicant in these proceedings is prohibited pursuant to subsection 70(1) of the Administrative Review Act 2024.
Date of hearing: 19 February 2025 the Applicant: Self-represented Solicitors for the Respondent: Mr M Gauci, Hunt & Hunt Lawyers
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