"Z" AND COMMISSIONER FOR HOUSING
[2007] ACTAAT 12
•29 May 2007
AUSTRALIAN CAPITAL TERRITORY
ADMINISTRATIVE APPEALS TRIBUNAL
CITATION:“Z” AND COMMISSIONER FOR HOUSING [2007] ACTAAT 12 (29 MAY 2007)
AT06/90
Catchwords: Housing assistance – review of decision removing application for assistance from housing register – whether applicant meets eligibility criteria – whether applicant exceeds income barrier – whether Tribunal can exercise discretion under the Program
Administrative Appeals Tribunal Act 1989, ss 34, 38
Housing Assistance Act 1987, ss 3A, 8, 12
Human Rights Act 2004, ss 11, 30
“Y” v Commissioner of Housing [2007] ACTAAT 9 (4 May 2007)
Tribunal:Ms S Tongue, Senior Member
Date:29 May 2007
AUSTRALIAN CAPITAL TERRITORY )
ADMINISTRATIVE APPEALS TRIBUNAL ) NO: AT06/90
GENERAL DIVISION )
RE: “Z”
ApplicantAND: COMMISSIONER FOR
HOUSING
Respondent
DECISION
Tribunal : Ms S Tongue, Senior Member
Date : 29 May 2007
Decision : The decision under review is affirmed.
…………………………..
Senior Member
AUSTRALIAN CAPITAL TERRITORY )
ADMINISTRATIVE APPEALS TRIBUNAL ) NO: AT06/90
GENERAL DIVISION )
RE: “Z”
ApplicantAND: COMMISSIONER FOR
HOUSING
Respondent
REASONS FOR DECISION
29 May 2007 Ms S Tongue, Senior Member
The decision under review
The applicant (“Z”) seeks review of a decision made by a delegate of the Commissioner for Housing ACT (“the respondent”), who rejected the recommendation of the Housing Review Committee (“the HRC”) to accept the applicant’s appeal against the removal of her application for housing assistance from the Housing Register (“the Register”) pursuant to clause 12(1) of the Public Rental Housing Assistance Program 2006 (No 2) (“the Program”) on the grounds that she did not meet the eligibility criteria for housing assistance as her income exceeded the income level at which the house could be provided (the “income barrier”).
Confidentiality order
2. Because of the nature of some of the evidence, including the medical condition of the applicant’s teenage child, the Tribunal (differently constituted) was satisfied that it was desirable to make an order pursuant to section 34 of the Administrative Appeals Tribunal Act 1989 (“AAT Act”) with the effect of prohibiting disclosure of the applicant’s identity. That order was issued on 27 April 2004. At the hearing in this matter the Tribunal decided not to vary the order and it remains in effect.
Facts
3. The facts are not in dispute. The applicant is a tenant of Housing ACT who lives with her husband and four children in a three bedroom house. She seeks a larger house in the same area, mainly because of the medical condition of her eldest child, aged 13, who requires a separate bedroom. Two other children of the same sex share the main bedroom of the house and a fourth child has the other bedroom. The bedroom area of the applicant and her husband is a curtained area of the living room. There is no dining or family room.
4. In July 2004 the applicant sought early allocation housing for a four bedroom house but this was denied. The applicant then sought review of that decision and a consent decision of this Tribunal resulted in her placement on the Early Allocation Category 1 waiting list with a priority date of 20 July 2004. At that time her weekly income was below the income barrier.
5. On 10 August 2006 the applicant was told that a four bedroom house had become available and was asked to provide details of her current family weekly income which was $1182.96. On 11 August 2006 the applicant was told the offer had been withdrawn. On 14 August 2006 the applicant was advised her application for housing assistance had been cancelled as her income exceeded the income barrier by $241.00 per week. A new income barrier had been introduced one month before, on 18 July 2006, and purportedly applied to her application. The applicant was advised that the respondent had a “special discretion to disregard one or more of the eligibility criteria if satisfied that the applicant is suffering severe hardship that cannot be alleviated by any other means” and “you may wish to take into account the above discretion in providing details of the grounds on which you seek the review”.
6. On 14 August 2006 the applicant sought review of the cancellation decision and on 23 August 2006 submissions in support of the application for review were provided. On 13 September the original decision was affirmed. The notification of the decision suggested that the applicant apply for mutual exchange or seek private rental accommodation. Bond assistance can be sought from the respondent to help with upfront costs of private rental.
7. On 21 September the applicant sought second level review and on 27 October the application was referred to the HRC, which is an advisory committee established by the Minister to consider decisions under the Program. It considers decisions and makes recommendations to the respondent. The HRC met on 13 November 2006 and recommended that the respondent exercise discretion to approve a transfer under clause 24(1)(a) of the Program and disregard the income of the family pursuant to clause 7(2) of the Program.
8. The delegate of the respondent “disagreed” with the HRC decision and wrote to the applicant on 23 November advising that the application for transfer had been cancelled and the applicant’s name had been removed from the Register. It is this decision that is the subject of appeal to the Tribunal.
9. On 24 January 2007 the Tribunal (differently constituted) directed, pursuant to section 38 of the AAT Act, that the respondent lodge an additional statement containing further and better particulars in relation to its findings on material particulars of fact, the evidence or other material on which those findings were based and the reasons for the decision. This was provided on 2 February 2007.
10. In summary, at the time of the decision under review, the applicant and her family had been waiting for two years for a transfer to a larger house. Medical and other evidence describes a family in need of larger accommodation. For some months, the applicant had been at the top of the list for allocation of the next available larger house. During this time her income level had been relatively constant and below the income barrier. She was advised a house had become available. Then she was told the income barrier had been lowered one month earlier and she was now ineligible for the larger house. The decision on ineligibility is the basis of the decision to remove from the Register that is the subject of this review.
Applicable law and policy
11. The Housing Assistance Act 1987 (“the Act”) makes provision for the supply of publicly-owned rental housing to those in need. Among its objects are:
3A
(a)to maximise the opportunities for everyone in the ACT to have access to housing that is affordable, secure and appropriate to their needs;
(b) to facilitate the provision of housing assistance for those in most need;
………….
(e) to facilitate the provision of rental housing that—
…………..
(i)has adequate amenity, is of an adequate size and is appropriately located in relation to employment opportunities and necessary services and facilities;
……….
12. Section 8 of the Act provides for the appointment of a Commissioner whose functions are, inter alia, to administer programs for the delivery of housing assistance in the ACT. Section 12(1) provides for the Commissioner to prepare a Housing Assistance Program and section 12(2)(d) provides for review by this Tribunal of specified decisions made under the Program.
13. The current housing agreement, Housing Assistance (Commonwealth/State Housing Bilateral Agreement) 2004 (No 1) was made between the Territory and the Commonwealth for the period 1 July 2003 to 30 June 2008 and notified as Notifiable Instrument N12004-284 on 6 August 2004 (“the Agreement”). The Program is Disallowable Instrument D12006-178 and clause 4 provides that the Agreement applies to the Program.
14. The Program authorised under section 12 of the Act is administered by Housing ACT. The current Program was signed by the respondent on 4 July 2006 and by the Minister on 7 July 2006 and commenced on 18 July 2006.
15. The object of the Program is to provide rental accommodation to eligible people in the ACT who are in extraordinary need and are unable to obtain adequate and appropriate housing (clause 3).
16. The respondent’s decision under section 7 of the Program is reviewable by the AAT by virtue of clauses 27(1)(b), 28, and 30 of the Program.
17. Under the Program a person must apply for housing assistance. This is clear from clause 8 which provides:
Application for assistance
A person may apply, in writing, to the commissioner for assistance under this program...
18. Clause 5 provides:
application means an application under this program-
(a)for assistance; or
(b)for a transfer from housing provided by way of assistance to other housing provided by way of assistance; or
(c)for a rent rebate; or
(d)to have a person’s name returned to the register.
eligible applicant means a person who has applied for and is eligible for assistance under this program.
register means the register kept under clause 11.
A definition applies except so far as the contrary intention appears.
19. Clause 9 sets out the criteria for eligibility for assistance based on weekly income.
20. Once a person has applied for assistance and been assessed as eligible they are placed on a register. The register is established under clause 11.
11 Register
the commissioner must keep a register of all eligible applicants
the commissioner must enter the names of eligible applicants on the register in the order in which their applications are received by the commissioner...
21. In practice two registers are maintained. One is the Housing Register which is, in effect, the waiting list for housing. The other register is the Transfer Register for people who already have housing assistance and wish to transfer to other accommodation. This is, in effect, a “sub-register” of the main register and is managed in accordance with the principles followed for the main register. It has no separate specific legislative basis. Clause 23 establishes a system for request for transfer and clause 24 provides for the Commissioner to require transfer in some circumstances.
23 Applications for transfer
A tenant may apply to the commissioner to transfer to other housing provided by way of assistance.
This program applies to the application as if it were an initial application for assistance...
22. The effect of subclause 23(2) is that an application for transfer places a tenant who has secured housing back on the Register as an applicant.
23. At any time clause 25 applies to anyone seeking assistance under the Program:
25 Further information
The commissioner may at any time ask an applicant for further information in relation to the application.
The application is taken to have been withdrawn by the applicant if the information requested is not given to the commissioner within 28 days after the request is made or any further time that the commissioner allows.
24. An application for assistance must be removed from the Register in certain circumstances:
12 Removal from the register
If an applicant whose name is entered on the register ceases to be an eligible applicant, the commissioner must remove the applicant’s name from the register.
If an application is taken to have been withdrawn under clause 25(2) the name of the applicant must be removed from the register...
25. The clause under which assistance is provided is clause 13.
13 Provision of assistance
This clause is subject to the availability and suitability of housing to be provided by way of assistance.
The commissioner may provide rental housing assistance to an eligible applicant.
Unless the commissioner determines otherwise in relation to a particular needs category, the order in which the commissioner provides assistance to eligible applicants is to be determined by the needs category given to each applicant and the order of the applicants’ names on the register.
At the Commissioner’s absolute discretion, the commissioner may, in extreme circumstances, provide assistance earlier than it would have been provided under subclause (3)...
26. The Commissioner determines priorities according to needs categories pursuant to clause 10.
27. Eligibility for assistance is determined mainly by income level and the Program outlines how it is determined.
7 Working out weekly income
(1) 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 is appropriate in the circumstances of the application.
28. At the time of the decision under review clause 9(1)(i) of the Program set the income level at $941.00 per week. Prior to that change it was set at $1410 per week.
29. Clause 9A of the Program provides the decision-maker with discretion when determining eligibility:
9A 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.
30. A decision exercising discretion under clause 9A is not reviewable by the Tribunal (Clause 27(1)).
31. There is provision for internal review of decisions and Clause 28(7)(b) provides that the Commissioner must accept, vary or reject a HRC recommendation. (This is why it was unusual for primary decision maker to notify the applicant that they “disagree(d)” with the HRC recommendation. However the Tribunal interprets this as meaning the recommendation was rejected which led to the removal from Register under review).
32. The policy giving effect to the Program was described to the Tribunal and is available on the respondent’s website.
33. “Transitionals” is a term used to describe provisions in legislation or policy to cover arrangements for people directly - often negatively - affected by amendments to legislation or policy. For example, the impact of an abrupt change may be ameliorated for a designated period, whether by formal rules or guidelines. Clause 32 of the Program provides:
Transitional
A person who is an eligible applicant, as at the commencement date pursuant to D12005-281 and D12006-90 shall have their application reassessed under this Program and may be allocated in accordance with the need category given under this program.
Notwithstanding this program, until 1 October 2006 the commissioner may allocate assistance to eligible applicants under this program who have a demonstrated need for Housing and a capacity to maintain a tenancy notwithstanding they have not been assessed for a needs category under this program.
34. The applicant was covered by this provision as she was an eligible applicant at the commencement dates of the two disallowable instruments referred to in subclause 1 (16 December 2005 and 7 June 2006 respectively). She was also covered by previous disallowable instruments D12005-164 and D1989-51 but they are not referred to in subsequent transitional provisions.
35. The Human Rights Act 2004 (“HRA”) section 30 provides for the interpretation of laws and human rights.
(1)In working out the meaning of a Territory law, an interpretation that is consistent with human rights is as far as possible to be preferred.
(2) Subsection (1) is subject to the Legislation Act, section 139.
(3) In this section:
"working out the meaning of a Territory law" means—
(a) resolving an ambiguous or obscure provision of the law; or
(b) confirming or displacing the apparent meaning of the law; or
(c)finding the meaning of the law when its apparent meaning leads to a result that is manifestly absurd or is unreasonable; or
(d) finding the meaning of the law in any other case.
36. Section 11 of the HRA provides for protection of the family and children.
(1) The family is the natural and basic group unit of society and is entitled to be protected by society.
(2)Every child has the right to the protection needed by the child because of being a child, without distinction or discrimination of any kind.
The applicant’s submissions
37. The applicant was represented before the Tribunal by the Welfare Rights and Legal Centre and Mr Fergus Thomson.
38. Medical evidence was provided about the family’s health. The applicant’s husband and father of her four children was injured at work in 2002 and cannot undertake certain duties although he is employed full time. The applicant receives a disability pension due to chronic pain from an accident. She has other debilitating conditions and recently suffered a stroke requiring surgical intervention. The applicant’s eldest child, aged 13, has obsessive-compulsive disorder, anxiety disorder and has self-harmed in the past. The medical evidence states that these conditions are improved by the child having personal space.
39. Through a combination of her husband’s wages, the disability pension and family assistance the family’s income is $1182.96 per week. The applicant has received assistance with budgeting and provided the Tribunal with a detailed breakdown of the family’s budget allocation.
40. The applicant argues three main grounds.
41. First the applicant argues that, in making a decision regarding her eligibility for housing, the Commissioner should exercise discretion pursuant to clause 9A of the Program. The Tribunal’s decision in “Y” v Commissioner of Housing [2007] ACTAAT 9 (4 May 2007) was cited. In that case the Tribunal set aside the decision to remove an applicant from the Housing Register under clause 9A of the Program. The Tribunal substituted a decision to allocate a three bedroom house in an area of that applicant’s choice on a priority needs basis.
42. Secondly, the applicant argues that clause 7(2) of the Program should be construed and applied so that any amount of the applicant’s income may be disregarded if it is appropriate in the circumstances. The Explanatory Memorandum for the clause was provided in support of this argument.
43. Thirdly, the applicant argues that the HRC recommendation to approve a management transfer pursuant to clause 24 of the Program should be accepted. It was argued that the family suffers chronic health issues that cannot be met by other reasonable means.
The respondent’s submissions
44. The respondent was represented before the Tribunal by Mr Sharwood.
45. The respondent argues that the Tribunal has no jurisdiction to review the discretion under clause 9A. In any event the respondent argues there is no material to show there was severe hardship and it could not be alleviated by other means.
46. The respondent argues that any exercise of discretion must be consistent with the objects of the Program which aims to “provide rental accommodation to eligible people in the ACT who are in extraordinary need and are unable to obtain adequate and appropriate housing”. The applicant is not eligible because her income exceeds the income barrier and she can only become eligible if the discretion is exercised in her favour.
47. The respondent notes the demand for housing in the ACT and provided comparative information about people in need. The Tribunal declined to hear that information because this decision relates to eligibility in this particular case.
48. The respondent argues that the applicant could be eligible for income assistance from Centrelink which may increase her weekly income by $90. This would mean her expenditure on rent would be approximately one third of her income. The respondent provided the Tribunal with information about current average rent prices for the area where the applicant seeks accommodation. Information was also provided about the accepted tolerable ratio of rent payments as a percentage of income. That is, a person is generally deemed likely to experience difficulty in meeting their financial obligations if they are paying 50% or more of their income in rent. A tolerable level is seen as 30% of income or below.
49. The Tribunal sought information about the exercise of the discretion in relation to “transitionals”. That is, there will be people like the applicant who have a legitimate expectation that when they progress to the top of the list, while maintaining an income below the income barrier, they will be allocated housing. A house became available to this applicant during the period covered by the transitional period, before 1 October 2006. The Tribunal asked whether an applicant in that position, who finds the income barrier has shifted and they are ineligible, might reasonably expect some latitude in the exercise of the discretion. It appears that the discretion is not applied in that way. The Tribunal was told that applicants are aware that the income barrier is subject to change. When the income barrier is changed persons on the list are advised of the change and the change is publicised. The respondent said that the discretion was needed to respond to people who did not strictly comply with the income test. Examples were given of the exercise of discretion but they all related to comparatively small deviations from the income barrier.
50. In relation to clause 7 the respondent argues that clause 7(2) allows either clause 7(1)(a) or clause 7(1)(b) to be disregarded but not both. To do otherwise would subvert the object of the Program. Clause 7(2) is a provision that enables consideration of circumstances where strict application of the formula may exclude an applicant. For example, an applicant may have a weekly income during the relevant period that is exceptional and unlikely to be repeated. To interpret clause 7(2) in the manner argued by the applicant, it was argued, would circumvent its intended scope.
51. In relation to clause 24 of the Program the respondent argues that it does not apply in this case. It is argued that it is limited in operation and only applies where the condition of the dwelling is likely to cause serious harm to the health and safety of household members or the public.
Consideration of the issues
52. The decision under review is whether the applicant, whose name is entered on the Register, ceased to be an eligible applicant so that her name should be removed from the Register. The Tribunal is in the shoes of the decision maker who made the decision on 23 November 2006. It has to make the decision applying the words of the Program in the relevant instrument.
53. The way the Program operates is clear. A person applies for housing assistance and their eligibility can be assessed at various points, including, in particular, at the time of entry onto the Register and at the time a house becomes available. This is logical because eligibility requirements and people’s circumstances change. With a limited number of houses and high demand eligibility has to be tested at the time of allocation.
54. “Z” is an “applicant” because she applied for transfer pursuant to clause 5(b). Her name was entered on the Register maintained by the respondent pursuant to clause 11. A suitable four bedroom house became available in the relevant area and her name was at the top of the Transfer Register. Thus the provisions of clause 13(1) are satisfied and, under clause 13(2), the respondent “may” provide housing to her if she is an eligible applicant. This triggers the application of the eligibility requirements in clause 9.
55. Government programs delivering benefits according to applications and satisfaction of income and other requirements usually stipulate with certainty the nature of the application and the timing of the test. This is why, for example, the Program provides for approval of forms. As a matter of fairness, income tests that are subject to change cannot be randomly imposed as any scope for manipulation can bring the law and administration into disrepute.
56. The representatives for the applicant and respondent explained the provisions of the Program. They agreed that the provisions for testing at time of allocation are not as clear as they might be. However the respondent argues the eligibility testing does occur at the time the house becomes available. This is the way the Program works and it is argued that it comes about through a combination of the provisions of clauses 5, 7, 8,10, 11, 12, 13, 23 and 25.
57. Applicants for assistance are, in effect, perpetual applicants once they seek admission to the Register and for the duration of their presence on the Register. They can be asked for information and tested for eligibility at any time. The respondent’s powers are broad. They “may” provide a house to an eligible applicant and they “must” remove an applicant’s name from the Register if the applicant ceases to be eligible.
58. The interpretation of who is an eligible applicant is coloured by the definition of applications. Applications are defined in clause 5 as being of four types and these definitions do not define applications as including applications for transfer to a particular house, that is, an application for allocation. The Tribunal has identified at least six types of applications in practice but the list may not be exhaustive:
An initial application for housing assistance to get on the Register. This is as an application for assistance (clause 5(a)) and triggers the assessment of eligibility for entry onto the Register.
An “application” when a house becomes available. Although eligibility has been decided, circumstances may have changed in the interim and eligibility is again assessed. This “application” is a revival or perpetuation of the original application and is, in effect, an “application” for allocation of initial housing.
An application if a transfer is sought (clause 5(b)). This is, in effect, an application to be on the Transfer Register. Pursuant to clause 23(2) this application is treated as though it were an initial application for assistance although “the applicant” is in an ongoing landlord/tenant relationship with the respondent. (Interestingly the applicants are not referred to as “tenant transfer applicants,” not treated as a distinct group and the Transfer Register is not separately designated).
An “application” for transfer to a particular house – an application for allocation to another house - which will trigger an assessment of eligibility such as occurred in this case.
An application for a rent rebate (clause 5(c)).
An application to return to the Register (clause 5(d)).
59. Although the definition of application could be clearer, to put beyond doubt that the income testing applies at the time of allocation, the Tribunal accepts that it must test at time of allocation using the income test in force at that time. Clauses 7, 10 and 13 operate to have this effect. The Tribunal was told that the new income test was publicised and those on the Register understand that the test is applied to their eligibility at the time of allocation. This is notified on the website. The clear evidence is that the applicant’s income is above the income barrier applicable at the time of the test.
60. The transitional provision does not assist the applicant as it relates to the need category and she was already in category 1. It does not include any special measures for applicants in circumstances such as those faced by “Z”.
61. The determination of weekly income under clause 7 requires statutory interpretation of that provision. Since the provisions of clause 7(2) are ambiguous the use of extrinsic materials is justified. The Explanatory Memorandum states that clause 2 was inserted because:
The previous arrangements required the Commissioner to treat a person’s income as the greater of current gross weekly income and average gross weekly income over the previous 26 weeks. That approach provided no flexibility for a range of applicants who are not in regular employment with a consistent pattern of salary or wage payments, or people whose circumstances, for some other reason, do not fit the normal pattern.
62. The Tribunal was urged to include the applicant’s circumstances among the “some other reason(s)” for not fitting the normal pattern. Since the applicant and her husband have regular income they appear to be outside the scope envisaged by the provisions of clause 7(2). The heading and surrounding provisions support the explanation that the provision is designed for use in cases where income is uneven due to work patterns.
63. The Tribunal considered the operation of clause 24 of the Program and the HRC’s recommendation that the respondent approve a transfer under clause 24(1)(a). The Tribunal interprets the words “condition of the dwelling” in their ordinary sense of meaning the physical condition of the dwelling. The section does not appear to be intended to apply in circumstances where the dwelling lacks a fourth bedroom.
64. The Tribunal notes that the respondent follows a two stage process for exercise of the discretion. First a decision is made about the income test and then, if the applicant fails the income test they are asked to provide details of hardship so the exercise of the discretion can be considered. The discretion in relation to severe hardship is exercised under clause 9A. Review of a decision under that clause is excluded under clause 27(1) of the Program.
65. The Tribunal considered the arguments that ambiguity in the Program allows the use of the HRA to assist with interpretation. On balance, for the reasons given above, the Tribunal finds there is insufficient ambiguity to invoke the HRA.
66. The Tribunal also had regard to the need for administrative justice. It has considerable sympathy for the applicant and her family. If the exercise of the discretion had been open to the Tribunal it would have considered not only the range of variance from the income test but also the objects of the Act and Program. However, it is clear that the decision relating to the exercise of discretion is not reviewable.
Conclusion
67. Following the review of the facts and the submissions the Tribunal affirms the decision under review.
FORM 33
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Member's Staff
________________________________________________________________________
PART A FILE NO: AT06/90
APPLICANT: “Z”
RESPONDENT: COMMISSIONER FOR HOUSING
PARTY JOINED: N/A
COUNSEL APPEARING: APPLICANT: MR F THOMSON
RESPONDENT: MR W SHARWOOD
PARTY JOINED:
SOLICITORS: APPLICANT: WELFARE RIGHTS & LEGAL CENTRE
RESPONDENT: ACT GOVERNMENT SOLICITOR
PARTY JOINED:
OTHER:APPLICANT:
RESPONDENT:
PARTY JOINED:
TRIBUNAL MEMBER/S: MS S TONGUE, SENIOR MEMBER
DATE/S OF HEARING: 10 MAY 2007 PLACE: CANBERRA
DATE OF DECISION: 29 MAY 2007 PLACE: CANBERRA
_______________________________________________________________________
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION (X)