"Y" AND COMMISSIONER FOR HOUSING
[2007] ACTAAT 9
•4 May 2007
AUSTRALIAN CAPITAL TERRITORY
ADMINISTRATIVE APPEALS TRIBUNAL
CITATION:“Y” AND COMMISSIONER FOR HOUSING [2007] ACTAAT 9
(4 MAY 2007)
AT06/82
Catchwords: Housing assistance – review of decision removing applicant from housing register – whether applicant suffering severe hardship
Administrative Appeals Tribunal Act 1989, s 43
Housing Assistance Act 1987
Matusiak and Commissioner for Housing [2002] ACTAAT 25 (14 June 2002)
Tribunal:Dr E McKenzie, Senior Member
Date:4 May 2007
AUSTRALIAN CAPITAL TERRITORY )
ADMINISTRATIVE APPEALS TRIBUNAL ) NO: AT06/82
GENERAL DIVISION )
RE: “Y”
ApplicantAND: COMMISSIONER FOR
HOUSING
Respondent
DECISION
Tribunal : Dr E McKenzie, Senior Member
Date : 4 May 2007
Decision :
The decision under review is set aside and substituted with a decision that the applicant be allocated 3 bedroom housing in her area of choice on a priority needs basis.
…………………………..
Senior Member
AUSTRALIAN CAPITAL TERRITORY )
ADMINISTRATIVE APPEALS TRIBUNAL ) NO: AT06/82
GENERAL DIVISION )
RE: “Y”
ApplicantAND: COMMISSIONER FOR
HOUSING
Respondent
REASONS FOR DECISION
4 May 2007 Dr E McKenzie, Senior Member
The decision under review
The applicant is seeking review of a decision made by a delegate of the respondent, the Commissioner for Housing ACT who accepted the recommendation of the Housing Review Committee (“HRC”) to deny the applicant’s appeal against the removal of her application for housing assistance from the Housing Register on the grounds that she did not meet the eligibility criteria for housing assistance as “she was not suffering severe financial hardship which cannot be alleviated by other means”.
Confidentiality order
2. Because of the nature of some of the evidence including the applicant’s fears for her personal safety and that of her family, the Tribunal is satisfied that it is prudent to make an order pursuant to section 34 of the Administrative Appeals Tribunal Act 1989 to prohibit publication of the applicant’s name or of any evidence or information that might enable the applicant or her family to be identified.
The applicable law
3. The current relevant instrument providing guidelines for carrying out the allocation of public housing is the Public Rental Housing Assistance Program 2006 (2) (“the Program”) made under the Housing Assistance Act 1987.
4. Clause 9 of the Program sets out nine criteria to be used in determining eligibility for public housing and includes such matters as lawful residency in Australia and length of residence in the ACT, age of the applicant, lack of interest in real estate property, value of assets and income. The criterion relating to income, sub-clause 9(1)(i), is set out in the following terms:
If the household is made up of more than 2 people, the weekly income of the applicants plus 10% of the combined weekly income of all other independent people in the household is not more than 75% of AAWE plus 10% of AAWE for each person in the household in excess of 2 people.
5. Thus, this criterion defines eligibility in terms of an applicant receiving weekly income in a sum less than an amount determined by reference to the Australian average weekly earnings (the “income barrier”). For the purpose of this matter, the relevant amount of the income barrier, by reference to sub-section 9(1)(i) of the Program, is $720 per week.
6. Clause 7 defines weekly income:
For this program, the weekly income of an applicant is the greater of -
(a)the person’s gross income each week as at the day the application is made; and
(b)the average gross weekly income of the person in –
(i) the 26-week period immediately before the day when the application is made; or
(ii) another period decided by the commissioner as appropriate in the circumstances of the application.
(2)However, the commissioner may disregard an amount for subclause 1(a) or (b) if the commissioner considers it appropriate in the circumstances of the application.
7. Clause 9A of the Program provides the decision-maker with a discretion when determining eligibility:
Hardship
If the commissioner is satisfied that an applicant is suffering severe hardship that cannot be alleviated by any other means, the commissioner may disregard any criteria mentioned in clause 9(1) (other than paragraph 9(1)(d)) [which relates to minimum age] in deciding whether the applicant is eligible for assistance.
The applicant’s case
8. The applicant presented the evidence for her case in statements and documents provided to the respondent and the Tribunal and in oral evidence given at the hearing before the Tribunal. A single mother with two children, a daughter 9 and a son, 4, she first made an application for housing assistance in July 2004. In early August 2004 her application for early allocation of housing assistance was denied but she was placed on the Standard Allocation housing assistance list for a 3 bedroom house.
9. She again applied for early allocation of housing in November 2005, when her landlord sold her rented property and she was unable to find another property to rent. After she had attempted to rent properties and not been chosen, she told the Tribunal that she was informed by real estate agents that renting was at the discretion of landlords who believed that her single family income was not sufficient to meet rental payments. With nowhere else to go, she reluctantly returned with her two children to live in her parents’ 3 bedroom house where both her parents and her older sister with her young son also lived, a total of four adults and three children in a 3 bedroom house.
10. She and her two children then shared a bedroom with her mother who, in addition to suffering from rheumatoid arthritis, was also recovering from a second operation following a recurrence of breast cancer.
11. The living situation was made more difficult because the applicant’s son, in addition to being a severe asthmatic, suffers from a disruptive sleep disorder, medically diagnosed as “confusional arousals”, a type of parasomnia, which causes him to scream and shout in his sleep, throw himself around and become inconsolable about 2 hours after going to bed. During this behaviour which the applicant described as resembling a noisy temper tantrum, her son’s confusion while asleep means that he is not responsive to his family during these episodes which can last for up to 20 minutes. There is nothing that can be done to stop the episode once it begins. To wake him is not a solution because it can increase his confusion.
12. The close proximity of the applicant’s son to other members of the family meant that the others in the house were considerably disrupted because their sleep was disturbed and they were unable to help in any way. This caused additional stress for the applicant’s mother. The applicant provided documentary medical evidence to Housing ACT about the medical condition of mother and son that supported her claims.
13. An additional serious concern for the applicant was her alcoholic father’s swearing at and verbal tormenting of her children. As a child, she had experienced his abusive behaviour until she left home at 18, with no intention of ever returning to her parent’s home, and she became very upset when her father in turn abused her children.
14. In January 2006 she was approved for early allocation housing assistance. The applicant told the Tribunal that, in order to avoid her father, she and her children spent as much time out of the family home as possible and returned only to eat and sleep. However her father’s continual verbal abuse of her children eventually forced her to try to find other accommodation, because, she said, she could no longer handle her father’s abuse of her children. In June 2006 she found temporary supported accommodation with the Communities @ Work Women’s Housing Program (WHP) to tide her over until she was allocated public housing. The 12 month period for WHP accommodation is due to cease in June 2007 and she has no alternative accommodation.
15. The applicant also told the Tribunal that she was forced to change from one WHP property to another because a former partner, the father of her son, harassed and verbally abused her, calling her names, following her home from work, driving past her place of work and waiting for her outside her house, standing outside her house in the middle of the night, interrogating her children about her behaviour, causing property damage, sending excessive numbers of text messages and issuing threats. He turned up at her daughter’s school and her son’s day care in defiance of a court order. He has twice been charged with breaching a domestic violence order, he has broken bail conditions, and he has spent time in custody pending a court appearance. The applicant is hopeful he does not know her present address but continues to fear for the safety of her children and herself.
16. In July 2006, when her housing application was re-assessed she received the news that her application for housing assistance had been cancelled because a recent revision of the Program resulted in a reduced income limit and her gross income was now found to exceed the qualifying income barrier. She sought a review of that decision. When she was questioned about her weekly income she explained to Housing ACT, and eventually to the HRC, her reasons for entering into an arrangement to make car payments through salary sacrificing and also explained that to cancel this contract would leave her with a large payout that she could not afford. The applicant’s appeal against the decision to deny her housing assistance was unsuccessful.
17. The applicant said that while it would have been easier to avoid all her current problems by staying at home and living on welfare benefits, she wanted to work to set a good example to her children. She informed the Tribunal that she has been with her present employer working as an assistant in administration for over 4 years. Before seeking housing assistance in July 2004, she had arranged for the lease of a car, a Toyota Corolla, because this was the only way she could get her son to and from day care, her daughter to and from school and still be at work by 8:30 am. The car she had owned previously had become too costly to keep running and was not safe to use. She had replaced the gearbox, the clutch and the alternator, but it used excessive amounts of oil and brake fluid, and when she was advised to replace the engine, she had been quoted $2500. She could not afford to pay this and despite enquiring at a range of lending institutions, she was unable to obtain a car loan. She wanted to continue to work but she could not do this without a car, and, unable to afford a replacement vehicle, and having been refused a car loan, the only option left to her was to lease a car under a salary package arrangement available to members of the workforce. Because she could not sell her previous car, she gave it away when she received her new car.
18. In response to cross-examination, the applicant explained that when she first entered into the leasing agreement, she was expected to drive 25,000 kilometres per year. The leasing company was not prepared to grant a lease unless payments were less than 50% of her salary. The maximum term for a lease had been set at 5 years and she had chosen this period to keep her payments as low as possible. After a time, she had realised she would not be able to drive 25,000 kilometres per year and when she received a salary increment she varied the lease. For an additional weekly cost she arranged for fuel and maintenance to be included. The applicant said that the lease agreement expires in 2009 and, should she break the lease before that time, she would be liable for the balance of the price of the car valued at the time of entering into the lease. Documentary evidence was provided to the Tribunal that the current pay out figure is $16,300.
19. The applicant was cross-examined about what enquiries she had made about actions she could take to release herself from the contract. She was asked if she had investigated what she would receive if she sold the car. She said that she had enquired about this and had been quoted a figure of $12,000 to $12,500. She was then asked whether she had examined the possibility of selling the car and obtaining a loan to pay out the rest of the balance, perhaps adding a further sum to cover the cost of purchasing a second-hand car. The applicant told the Tribunal that she had not carried out those specific enquiries but that several months ago she had enquired about a personal loan which had been refused. As she had been refused a car loan before she originally leased the car and had been refused a personal loan recently, she assumed she would still be unable to obtain a car loan.
20. During cross-examination about her need for a car, it was suggested to the applicant that she could send her children by bus across a number of suburbs to school and day care. In response, the applicant pointed out that her son was four years old. Asked about sending her daughter to school by bus she replied that there is no bus service from where she lives to her daughter’s school. She did not believe her daughter, just turned nine, was responsible enough to use bus transport to school and be safe. Questioned further about this matter, the applicant said if she worked her children would have to wait at bus stops alone before and after school. She said she would have concerns about the safety of her children travelling by bus on their own.
21. Asked whether she had investigated other work options such as finding another position where she could use the skills she had learned, perhaps one with longer hours where she could earn more, the applicant replied that she had been in her current position as an assistant in the administration area of her place of work for less than a year and was still acquiring certain skills; for example, she had never before used a computer and the computer program used was specific to her current employer. She explained that her work conditions include school hours and school holidays and any extra income from changing to another position with longer hours would be taken up with additional child care payments.
22. The applicant agreed that her income is currently $839.41, the car lease payments are $229.08 per week, and the qualifying income barrier is $720 per week.
23. Mr F Thomson, counsel for the applicant, submitted that the delegate erred in failing to exercise her discretion under clause 9A to disregard one of the eligibility criteria if satisfied that the applicant was suffering severe hardship unable to be alleviated by any other means. If the lease were to be cancelled, the applicant would have a large payout, and no account had been taken of the severe hardship this would cause the applicant. It was submitted that having regard to the applicant’s current financial circumstances together with her family situation, the applicant is not in a position to pay out the car lease and there are “no other means” reasonably available to her to alleviate that hardship.
24. Mr Thomson contended also that when assessing the applicant’s income, the delegate failed to take into account the impact of the car lease arrangement of $229.08 per week upon the applicant’s take-home pay and the fact that the arrangement was entered into in order to have a car available for essential family purposes.
25. His alternative submission was that, in assessing the applicant’s weekly income, the delegate failed to exercise the discretion under clause 7(1)(a) if she “considers it appropriate in the circumstances of the application.” Mr Thompson submitted that the test applicable under clause 7(2) is considerably less stringent and narrow than the test under clause 9A and provided not only for “extreme hardship” as in clause 9A but also for other circumstances making it appropriate to disregard an amount in calculating weekly gross income as defined, that is, the circumstances pertaining to the leasing of the car.
The respondent’s case
26. The respondent offered no evidence in addition to documents provided to the Tribunal before the hearing. Ms C Besemeres, counsel for the respondent, submitted that the discretion in clause 9A to disregard some of the eligibility criteria in section 9 exists only for exceptional circumstances. She submitted that the applicant’s claim is, in effect, that the decision of the Commissioner not to grant assistance constitutes the hardship because the income test has been applied without taking into consideration the fact that a salary-packaging arrangement has been put in place and she does not receive her gross income directly because some has been allocated towards repaying a vehicle and associated costs.
27. Ms Besemeres contended this did not constitute severe hardship, and would only be so if the applicant were locked into the arrangement. She contended that the applicant had not provided evidence that she could not get out of the arrangement; indeed, on one occasion, she had varied the conditions of the lease, and furthermore, she had not investigated the possibility of selling the vehicle and taking out a loan to cover the amount that would still be owing plus, possibly, an additional amount to buy a second-hand car. The use of the leased car was of benefit to her and her family, and the arrangement had been entered into voluntarily. Severe hardship that could not be alleviated by any other means had therefore not been demonstrated by the applicant and the discretion available under clause 9A therefore not enlivened.
28. Ms Besemeres also drew the Tribunal’s attention to the objectives of the Housing Assistance Act which include providing assistance for those most in need, and maximising value for money from the public purse. She submitted that to assist someone in the position of the applicant would not meet those objectives.
29. With regard to the applicant’s contention that a discretion also exists under clause 7, she contended that this very limited discretion which applied to a matter of income should not override careful restrictions to clause 9A which defined eligibility. She cited the matter of Matusiak and the Commissioner for Housing [2002] ACTAAT 25 (14 June 2002)[46], in which the Tribunal disapproved of an approach by the decision-maker that would use as a starting point the examination and possibly the adjustment of the income limit in certain cases.
Consideration of the evidence and reasons for decision
30. There is agreement about the applicant’s weekly gross income ($839.41), the cost of the car lease per week ($229.08), the weekly income barrier ($720) and the car lease payout figure ($16,300). The applicant’s family circumstances as set out in the applicant’s evidence were not challenged.
31. In relation to the applicant’s alternative submission that the less stringent discretion under clause 7(2) should be exercised, it is not clear whether it is the intention of this discretion to disregard as an amount a discreet part of the income, or whether it is directed at a proportion of the overall income. Given the conclusion reached, (see paragraph 43), it is not necessary to address this issue.
32. With regard to the applicant’s submission that the decision-maker should exercise the discretion under clause 9A to disregard one of the eligibility criteria, the question for the Tribunal is whether there is an evidentiary basis for finding that the applicant is suffering severe hardship that cannot be alleviated by any other means despite her gross income exceeding the current income barrier.
33. The delegate’s decision used the wording of the HRC to frame the decision, that is, the applicant did not meet the eligibility criteria because she was “not suffering severe financial hardship which cannot be alleviated by other means”. (Emphasis added). The respondent’s statement of facts and contentions provided to the Tribunal, in paragraph 13, also uses the words “severe financial hardship” in a discussion of the decision.
34. Clause 9A of the Program does not include the word “financial” and thus the discretion is not limited in that way. This discretion applies to eight of the nine sub-clauses in clause 9, not all of which deal with matters pertaining to finance. Consequently, “severe hardship” can be interpreted with a broader meaning than “severe financial hardship”.
35. As a consequence of the decision, the applicant suffers the uncertainty and insecurity of knowing that in two months she and her two young children will be homeless when her term in a WHP property comes to an end. I accept the applicant’s evidence that she will not be able to rent in the private market. There is no reason to believe that the availability of rental housing properties has improved since she last unsuccessfully tried to find a property to rent. No evidence was offered by the respondent’s representative to the contrary and there was no evidence presented to demonstrate that rental properties are likely to become available for the applicant.
36. Returning to live in the family home, if this remains a possibility, is not an acceptable option because she and her children would be subjected to her alcoholic father’s abuse. The size of the home and the number of residents would entail living once more in overcrowded conditions. Her son’s disruptive sleep disorder limits options for temporary shared accommodation. The applicant is now in a very insecure and vulnerable situation which is made worse by fears for the safety of herself and her children as the result of a former partner’s abusive behaviour. While the decision to cancel her housing application did not create this latter difficulty, it adds an extra dimension to the stress and suffering of the applicant in her present situation. I note that the Tribunal in Matusiak and the Commissioner for Housing, (previously cited), a case concerning quite different circumstances, found that a situation in which the applicants in that matter suffered a lack of security regarding their current premises, and which were for reasons specific to that case unsafe and unsuitable, constituted severe hardship that could not be alleviated by any other means.
37. As noted above, the respondent unnecessarily added “financial” to “severe hardship” and attention was focussed in the respondent’s case upon the applicant’s financial situation, in particular, the issue of the car leasing arrangement. Ms Besemeres contended the applicant would only suffer severe hardship if she were locked into the arrangement, argued that the applicant had entered into it voluntarily, and suggested that the applicant had not explored all options available for her to leave the arrangement. She then proceeded to explore with the applicant whether various strategies had been considered that would enable her to exit the car leasing agreement or otherwise improve her financial situation.
38. With regard to Ms Besemeres’ submission that the applicant investigate obtaining a loan to cover the shortfall between selling the car and paying out the remainder of the agreement, approximately $4,300, and also possibly borrowing a further amount to cover the cost of a replacement vehicle, there is no evidence to indicate that the applicant would be able to obtain a loan to cover these costs. The applicant entered into the arrangement in the first place because she could not borrow money for a car. She was recently refused a personal loan. No evidence was brought to demonstrate that the applicant would be able find the financial resources to cover the cost of the debt that would be owed to the leasing company or to refinance a substitute vehicle. This proposal appears unachievable.
39. The suggestion that the applicant consider using buses to transport her children to and from day care and school is not, in my view, a safe or prudent option. In order for the applicant to arrive at her place of work by 8:30 am, her children would travel unsupervised to and from day care and school and would wait alone at bus stops. The applicant said that she questions the readiness of her young children to travel unsupervised safely across suburbs to day care and school. In particular, I would share the applicant’s concern about the safety of her four year old asthmatic son travelling unaccompanied to and from day care every day. Furthermore, this suggestion is currently impossible because there is no service available for her daughter to travel by bus to school.
40. With regard to the suggestion that the applicant consider increasing her income by applying for a higher paid job with longer hours, the evidence indicates this is not a viable option. Working longer hours in order to increase her salary would not benefit the applicant as the additional income would be swallowed up in extra child-minding payments.
41. Ms Besemeres emphasised that the applicant entered the arrangement voluntarily. The reason for the applicant having entered into this arrangement is very pertinent to this matter. The applicant’s evidence indicates that she saw no other option if she was to work and yet meet her children’s needs for transport to and from day care and school. She is unable to leave the arrangement voluntarily without suffering a considerable penalty.
42. On the basis of the evidence, I find the above options suggested by the respondent’s representative to be unachievable, undesirable or not viable. Unable to break the car leasing contract without suffering a financial penalty of $16,300 which she does not have the means to pay and cannot cover with a loan, the applicant is effectively locked into the car leasing agreement and thus meets Ms Besemeres’ criterion for “severe hardship”.
Conclusion
43. The Tribunal acknowledges that there is a heavy demand for public housing and there is a concern that housing assistance is provided to those applicants most in need. In this matter, the applicant does not meet one of the eligibility criteria because her gross income exceeds the income limit. The applicant strongly wishes to work and not to depend entirely upon welfare payments. In order to get her children to day care and school and also be on time for work she needs a vehicle and is now effectively locked into a car leasing arrangement. The evidence has shown that as a result of the cancellation of her housing application, the applicant suffers from the uncertainty and insecurity of knowing that in less than two months she and her children will be homeless. The evidence demonstrates that she is unable to rent in the private rental market and the only other housing option previously available was the family home which is overcrowded and where she and her children were subjected to verbal abuse from an alcoholic father. There are thus no housing options left for her to explore. Her situation is exacerbated by the abusive behaviour of a former partner which causes the applicant to fear for the safety of herself and her children. Under the provisions of clause 9A of the Program the discretion exists to disregard the applicant’s failure to meet the criterion in question. The totality of the applicant’s situation leads me to conclude that she is suffering severe hardship that cannot be alleviated by any means other than by assistance under the Program and that therefore the discretion available in clause 9A of the Program should be exercised.
44. I therefore determine that the correct and preferable decision is that the decision under review is set aside and substituted with a decision that the applicant be allocated 3 bedroom housing in her area of choice on a priority needs basis.
FORM 33
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Member's Staff
________________________________________________________________________
PART A FILE NO: AT06/82
APPLICANT: “Y”
RESPONDENT: COMMISSIONER FOR HOUSING
PARTY JOINED: N/A
COUNSEL APPEARING: APPLICANT: MR F THOMSON
RESPONDENT: MS C BESEMERES
PARTY JOINED:
SOLICITORS: APPLICANT: WELFARE RIGHTS & LEGAL
CENTRE
RESPONDENT: ACT GOVERNMENT SOLICITOR
PARTY JOINED:
OTHER: APPLICANT:
RESPONDENT:
PARTY JOINED:
TRIBUNAL MEMBER/S: DR E MCKENZIE, SENIOR MEMBER
DATE/S OF HEARING: 3 APRIL 2007 PLACE: CANBERRA
DATE OF DECISION: 4 MAY 2007 PLACE: CANBERRA
_______________________________________________________________________
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION (X)
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