Walters and Secretary, Department of Family and Community Service S
[2003] AATA 1234
•5 November 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 1234
ADMINISTRATIVE APPEALS TRIBUNAL ) No. N2003/768
)
GENERAL ADMINISTRATIVE DIVISION )
Re
SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Applicant
And
MARK WALTERS
Respondent
DECISION
Tribunal Senior Member M D Allen
Date5 November 2003
PlaceSydney
ADMINISTRATIVE APPEALS TRIBUNAL ) Nos N2003/768
)
GENERAL ADMINISTRATIVE DIVISION )Re: SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Applicant
And: MARK WALTERS
Respondent
DECISION
Tribunal Senior Member M D Allen
Date 5 November 2003
Place Sydney
DecisionFOR the reasons given orally at the conclusion of the hearing in this matter, the decision of the Social Security Tribunal is
SET ASIDE and the Tribunal remits this matter to the Applicant with the direction that the rent payable by the Respondent was the sum $278.25 payable per fortnight.
(Sgd) M.D. Allen
..............................................
Senior Member
CATCHWORDS
SOCIAL SECURITY – whether total fees paid to a charity by a severely disabled person amounted to “rent” or whether “rent” was restricted to the amount allocated to purpose.
Social Security Act 1991 – ss. 13(3); s.1064-D1
Blunn v. Cleaver (1993) 47 FCR 111
Secretary, Department of Social Security v. Knight (1996) 72 FCR 115
Secretary, Department of Social Security v. Montgomery (1997) 73 FCR 9
Secretary, Department of Social Security v. Ellis (1997) 46 ALD 1
REASONS FOR DECISION
1. At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. After service upon the Applicant of a copy of the decision that was in fact made, the Applicant pursuant to sub‑section 43(2A) of the Administrative Appeals Tribunal Act1975 requested the Tribunal to furnish to the Applicant a statement in writing of the reasons of the Tribunal for its decision.
2. The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.
3. The said transcript is annexed hereunto and furnished to the Applicant and to the Respondent as it is the reasons for the Tribunal's decision.
I certify that this and the preceding page are a true copy of the decision and reasons for decision herein of:
Signed: (K. Wong)
....................................................................................……………………………….Associate
Date of Hearing 5 November 2003
Date of Decision 5 November 2003
Representative for Applicant Ms H Schuster, Department of Family and Community Services
Counsel for Respondent Mr M B Smith
Solicitor for Respondent Mr J Dagnall, Legal Aid Commission
DRAFT DECISION
ADMINISTRATIVE APPEALS TRIBUNAL
By MR M.D. ALLEN, SENIOR MEMBER
Matter No 03/768
SECRETARY, DEPARTMENT OF FAMILY AND
COMMUNITY SERVICES -v- WALTERSSYDNEY, WEDNESDAY, 5 NOVEMBER 2003
MR ALLEN: By application made the seventh day of May 2003 the applicant, being the Secretary of the Department of Family Community Services, sought review of a decision made by a Social Security Appeals Tribunal on 7 April 2003 and varied by a further decision made 1 May 2003 that the respondent in this matter, Mr Mark Walters, should be paid rent assistance on the basis that rent payable by him was in the amounts of $32.30 plus $55.00 per fortnight and a debt due and owing to the Department of Family and Community Services should be waived. The particular point before me is really a short point of statutory interpretation. The facts are relatively straightforward.
The respondent is a severely disabled man who is resident in a group residence home in the Sydney suburb of Miranda. As I understand it there are four residents in the home and provision is made by the charity which runs the home for 24 hour care. As a condition of entry into the home the respondent, or more accurately, his mother acting on his behalf, entered into what is termed a residential services accommodation and service agreement. The home is maintained by the Handicapped Children's Centre New South Wales. In this particular agreement, which is to be found at document T30 of the documents prepared for the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act (1975) the responsibilities of the resident are set forth and state inter alia:
You will pay your share of the rent to Silvendale on a fortnightly basis in advance. You will be required to pay in advance your share of household costs, refer attachment 2, including food, rent, telephone, electricity, gas and any water usage, septic tank pump out, garbage and sanitary usage charges. If your home has a designated vehicle you will be required to pay your share of vehicle running costs, vehicle insurance, vehicle maintenance. You will also be required to make regular monthly contribution to a vehicle replacement fund. You will be expected to contribute equally with the other residents in the replacement of communal furniture, white goods and other household items necessary.
As a schedule the various fees and charges are set out and amounts as allocated to various headings are stated therein. As I understand from Mr White, who is the General Manager of the Handicapped Children's Centre New South Wales, the charity is entitled to charge up to 75 per cent of any pension received by an
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occupant of the residential facility but in the instant case in order to make the expenditure more transparent to the carers of those who were admitted to residency the break up of the sum charged is set out.. In this matter there is a total sum of $278.25 per fortnight paid on behalf of the respondent and the actual break up is set out at document T31.
It would have been open, as I understand it, for the charity to simply state that our costs are $278.25 and if I understand Ms Schuster, who appeared for the applicant, correctly, in such a circumstance then the applicant would apply what is generally termed a two third rule to calculate rent assistance. The difficulty apparently in this case is that the charity in an attempt to be transparent has set out how the sum of $278.25 is allocated. The bottom line to me however is the evidence by Mr White who clearly stated that the inmates of the residential facility were charged a fee at the percentage of their pension and if a prospective resident was not prepared to pay that fee then they would not be in a position to accept them as a resident.
In approaching the interpretation of the Social Security Act (1991) I would keep in mind as was pointed out by the Full Court of the Federal Court in Blunn v Cleaver 47 FCR 112 at 127 that the professed aim of the drafting of the act was to make it more accessible to persons without legal training and that it had been written in so-called plain English. The starting point of this matter is section 1064-D1 under the heading, module D rent assistance. It therein states that qualification for rent assistance is:
An additional amount to help cover the cost of rent is to be added to a person's maximum basic rate if
And various qualifications are therein set out. The term rent is defined in section 13 of the Social Security Act. In Secretary Department of Social Security v Knight 72 FCR 115 at page 123 Tamberlain J said that the references to section 1147 and 1150 of the Social Security Act:
Do not provide any indication that the word rent when used in section 1064-D1 is to be read otherwise than in terms of the definition contained in sub-section 2 of section 13.
One starts therefore with sub-section 3 of section 13 which reads:
Sub-paragraph 2A(ii)-(v) inclusive do not limit the generality of sub-paragraph 2A(i).
Of that Tamberlain J said in Knight supra:
The latter sub-section supports the view that the term rent is to be given a broad construction.
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©Auscript Pty Ltd 2003Indeed to use the words from the customs jurisdiction it is very much a section that “otherwise requires”..
That is to say as Tamberlain J pointed out, the term rent such is given a broad construction. At page 123 in Knight supra his Honour said:
Furthermore if it had been intended that the expression rent in section 1064-D1 should exclude periodic payments relating to an entry contribution it would have been a simple matter to insert a qualification to that effect in the section in relation to rent. This was not done. The clear intention of the parties as evidenced by the licence agreement and the correspondence in evidence before the Tribunal is that in substance the contribution payments were meant to be a condition of occupation of the premises.
(Citations excluded.)
Further, the periodic contribution payments were to cease upon cessation of occupancy with no resultant residual debt or financial obligation subsisting on the part of either party. Moreover the fault in meeting the contribution payments would amount to breach of the licence agreement with the consequence that the licensor is entitled under clause 14 of the Licence Agreement to terminate the licence and the occupancy under it.
That it seems to me is very similar to here where if one is not prepared to pay the full amount then there is no admission to the facility. Para 13.2.1 reads:
As a condition of the occupancy of premises or as part of the premises occupied by the person as a person's principal home is rent.
I have referred to Tamberlain J. To me that those costs for occupancy are rent are made clear by the decision of Nicholson J in Secretary Department of Social Security v Montgomery 44 ALD 291 at 297 where his Honour distinguished Knight but said:
The facts at issue in Knight's case provide the basis by which it may be distinguished from the present case. Mrs Knight was obligated pursuant to the licence agreement applicable to her to pay the balance of the incoming costs by instalments of certain amounts at certain periods. The obligation to make those payments and the periodicy of such payments lay at the foundation of Tamberlain Js reasons and conclusion.
Again I revert to here where there is a certain fortnightly payment to be made for occupancy of the premises. The term “occupancy” it seems to me being used in a so-called “Plain English” act bears its ordinary English meaning and as is given in meaning 2(b) of the Oxford English Dictionary on line:
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©Auscript Pty Ltd 2003Occupancy is to reside and use a place as its tennant or regular inhabitant.
I would say, as an aside that the various meanings of the word occupancy or occupier can be ascertained by even a quick reference to works such as Stroud's Judicial Dictionary, 5th edition. For example, cited in Silbers v Southwark London Borough Council (1978) 76 LCR 42 it is said:
The word occupied in the phrase occupied by persons who do not form a single household in the Housing Act should be construed as being synonymous with lived in and not to be restricted to mean occupied by exclusive possession.
Compare that to Soldiers ‘Sailors’ and Airmens’ Families Association v Merton London Borough Council (1967) 1 WLR 127 where a block of flats owned by a charity but let to soldiers’ widows or dependents at a peppercorn rent was nevertheless occupied by the charity for the purposes of the Rating and Valuation Act.
All that means to me is that where one refers to occupancy of premises in paragraph 13(2)(a)(1) it means that the person is there in the premises and as I said to do that he pays a certain amount per fortnight. It seems to me therefore that the rent paid by the respondent in this matter is the sum of $278.25 a fortnight.
The only other matter which I really do not need to deal with is the question of whether any overpayment should be waived. In view of the decision relating to rent I do not need to decide that. Suffice it to say that in the circumstances that where the payment was originally granted by the applicant department and then later over-ruled and given the severe disablement of the respondent and the good faith with which those acting for him acted, it would seem to me that applying the tests as set out by Carr J in Secretary Department of Social Security v Ellis 24 AAR 535 at 539, special circumstances do exist and in particular it would seem that to use the words of Keiffel J in Growth v Secretary Department of Social Security 40 ALD 541 at 545:
It could be said that it was unfair or unjust to seek the amount back from the respondent.
The decision of the Social Security Appeals Tribunal will be set aside and this matter remitted to the applicant with the direction that the rent payable by the respondent was the sum of $278.25 per fortnight.
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