Zhang v Commissioner for Social Housing in the Act (Administrative Review)

[2015] ACAT 46

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

ZHANG & ANOR v COMMISSIONER FOR SOCIAL HOUSING IN THE ACT (Administrative Review) [2015] ACAT 46

AT 95 of 2014

Catchwords:              ADMINISTRATIVE REVIEW – social housing – review of rental rebate amount – applicants in Australia on s143 visa – assurance of support – income from overseas pension – respondent policy deems income to be equivalent to Newstart Allowance when actual income below this amount – whether respondent policy contrary to Human Rights Act 2004

Legislation cited:      ACT Civil and Administrative Tribunal Act 2008 (ACT) ss 67A, 68

Housing Assistance Act 2007 (ACT) ss 6,19, 22

Human Rights Act 2004 (ACT) ss 12(a), 28, 30, 40A, 40B

Social Security Act 1991 (Cth) ss 729

Subordinate

Legislation cited:      Housing Assistance Public Rental Housing Assistance Program 2013 (No.1) Disallowable Instrument 2013-52 clauses 9(4), 11, 25, 31(4)(b), 32

Cases cited:Chung and Commissioner for Housing [2007] ACTAAT 3

Harris v Commissioner for Social Housing; Towney-Kilby v Commissioner for Social Housing; Sullivan v Commissioner for Social Housing [2013] ACTSC 186

McGowan, Andrew and Karen and Commissioner for Housing [2000] ACTAAT13

Tribunal:                   Ms W. Corby - Senior Member

Date of Orders:  8 July 2015
Date of Reasons for Decision:         8 July 2015

ACT CIVIL & ADMINISTRATIVE TRIBUNAL          AT 95 of 2014

BETWEEN:

DONG QUAN ZHANG & YUHUA GUO

Applicant

AND:

COMMISSIONER FOR SOCIAL HOUSING

IN THE ACT

Respondent

TRIBUNAL:             Ms W. Corby - Senior Member

DATE:  8 July 2015

ORDER

The Tribunal orders that:

1. Pursuant to section 68 of the ACT Civil and Administrative Tribunal Act 2008 the reviewable decision dated 12 August 2014 is confirmed.

………………………………..

Ms W. Corby – Senior Member

REASONS FOR DECISION

1. Mr Dong Quan Zhang and Ms Yuhua Guo (the ‘Applicants’) have been social housing tenants since 15 July 2010 (T-Documents 17-18). The Commissioner for Social Housing (the ‘Respondent’) is the lessor of the property they tenant (the ‘property’). On 21 January 2014 the Applicants applied to the Respondent for a rental rebate in respect of rental payments. (T-documents 33-42).

2. On 12 August 2014 the Respondent’s delegate (the ‘reviewable decision maker’), on behalf of the Respondent, made the decision to accept the recommendation of the Housing and Tenancy Review Panel (‘HATRP’) that the Applicants were eligible for rental rebate (the ‘reviewable decision’). The effect of the reviewable decision was that for the period from:  

   (a)2 March to 12 June 2014 the rental rebate amount was calculated based on the Applicants’ ‘actual’ income; and

   (b)13 June 2014 until the end of the 12 month period (presumably until 1 March 2015 unless otherwise advised) for the purpose of calculation of rental rebate the Applicants’ income was deemed to be the equivalent of the amount payable for Centrelink Newstart Allowance.

3. The Applicants have applied to the ACT Civil and Administrative Tribunal (‘ACAT’) for review of that part of the reviewable decision whereby the Respondent took into account ‘deemed’ income rather than their ‘actual’ income for the purpose of the calculation of the rental rebate.

4. The Applicants submit that for the purpose of calculating their entitlement to rental rebate, the Respondent should only include as income the amount they each receive as a pension paid by their former employers in China.

5. In these reasons for decision, the term ‘Tribunal’ is used to refer to the individual ACAT member making the decision.

The hearing

1. This matter was first listed for hearing on 1 May 2015. On that date only one of the Applicants, Ms Guo, attended. She was accompanied by her son Wei Zhang. Mr Dong Quan Zhang, the other Applicant, did not attend. The Tribunal was informed that he was in China and was not due to return until about 26 May 2015.

2. The Respondent was represented by Ms Tarbet from the ACT Government Solicitor’s Office. She was instructed at the hearing by Mr Maling from the Respondent’s office.

3. Wei Zhang, who had been authorised to represent the Applicants, advised the Tribunal that as neither of the Applicants can speak or understand English, he was also to act as their interpreter. The Applicants both speak Chinese.

4. Ms Tarbet submitted that the Respondent was not comfortable proceeding with the hearing on 1 May 2015 for two reasons:

   (a)Wei Zhang is the sponsor of the Applicants who are residents in Australia pursuant to a s143 visa. This ‘sponsorship’ relationship may, from the Respondent’s point of view, be relevant to the Tribunal’s consideration of this matter and the Respondent intended to ask Wei Zhang, as sponsor, questions about the sponsorship arrangements and relationship. Accordingly, from the Respondent’s point of view, Wei Zhang’s role as representative and translator would make this difficult; and

   (b)Dong Quan Zhang, one of the Applicants, was not present, and evidence from him about his circumstances may be relevant to the consideration of this matter by the Tribunal.

   In these circumstances the Respondent sought to have the matter adjourned until after Dong Quan Zhang returned to Australia. The Respondent submitted that the Applicants should arrange for an alternative interpreter to be available at the next hearing date.

5. The Tribunal accepted the Respondent’s submissions.  The Tribunal adjourned the hearing to 29 May 2015. Wei Zhang asked if someone ‘from the community’ of people known to the Applicants could attend to act as interpreter on the next occasion. The Respondent did not object to this proposal and the Tribunal advised that this would be acceptable. The matter was adjourned part-heard to 29 May 2015.

6. Both of the Applicants attended at the rescheduled hearing on 29 May 2015. On this occasion, the Applicants’ son-in-law Mr Zhu attended to act as interpreter. Mr Zhu is married to the Applicants’ daughter Ms Jane Zhang. Mr Zhu and Ms Jane Zhang live in Canberra.

7. The Respondent raised concerns about Mr Zhu interpreting and translating for the Applicants. It was apparent from information available to the Respondent that there had been some issues in the relationship between the Applicants and Mr Zhu and Ms Jane Zhang. Consequently the Respondent questioned whether Mr Zhu could act as an independent and objective interpreter and translator. Mr Zhu ‘relayed’ the Respondent’s concerns to the Applicants. The Tribunal was advised by Mr Zhu that the Applicants understood the concerns but were happy for Mr Zhu to act as interpreter.

8. Wei Zhang again attended to act as ‘representative’ for the Applicants. Again the Respondent’s representative expressed some concerns about this given, as the Respondent had previously submitted, the visa sponsorship relationship between the Applicants and Wei Zhang may be relevant to the consideration of this matter by the Tribunal.

9. Whilst the Tribunal accepted that the Respondent’s concerns were understandable the Tribunal concluded that it would proceed to hear the matter with Mr Zhu acting as interpreter and Wei Zhang as representative of the Applicants.

10. Whilst ideally an independent interpreter would have attended the hearing, it was the Tribunal’s view that it would be difficult to conduct the entire matter with a telephone interpreter and the prospect of further delay was not desirable.

11. In the Tribunal’s view, the consideration of this matter rested primarily upon the interpretation of the relevant provisions of the Housing Program and how these operated in the particular circumstances which apply to these Applicants. Although the relationship between the Applicants, Wei Zhang and Mr Zhu may have resulted in the proceedings being conducted, and interpreted and translated to and from the Applicants, in a less than ideal way, the Tribunal concluded that it would be able to conduct a fair hearing and to gather sufficient relevant information to consider the matter. At the conclusion of the hearing on 29 May 2015, the Tribunal considered that this outcome had been satisfactorily achieved. The Tribunal reserved its decisions. These are the Tribunal’s reasons for the orders made today.

Information available to the Tribunal

1. The Tribunal had available to it the documents filed by the parties in the ACAT including:

   (a)the documents filed in the tribunal which the Respondent says are the documents relied on in making the reviewable decision (the ‘T-Documents’). When the T-Documents are referred to in these reasons, they will be identified by the page number/s appearing on the bottom right have corner of each document (e.g. T-Document 1);

   (b)the Facts and Contentions filed by the parties; and

   (c)the ‘Further Submissions’ filed by the Applicant on 15 May 2015.

2. At the hearing each of the Applicants, via the interpreter/translator Mr Zhu, provided some evidence in response to questions put by the Respondent’s representative and the Tribunal.

3. Wei Zhang gave evidence and answered questions asked by the Respondent’s representative and the Tribunal.

4. The parties’ representatives each made oral submissions during the hearings on 1 May and 29 May 2015.

5. Only one Exhibit was tendered:

   (a)Exhibit R1 – a letter from the Respondent to the Applicants dated 12 May 2015 about the Supportive Tenancy Service including an information brochure in English and a brochure (in English and Chinese) for the Translating and Interpreting Service. 

6. On 12 June 2015 the Tribunal requested and on 17 and 25 June 2015 the Respondent provided additional documents relating to a home visit to the Applicants by the Respondent on 24 June 2014. These documents, and specifically those identified as ‘folios 75 and 76’, are referred to in the T-Documents (e.g. at T-Documents page 80 in the HATRP report dated 12 August 2014).

Relevant legislative provisions

1. The full text of the relevant legislative and other provisions and of policy and other documents referred to in these reasons are set out in the attached Schedule.

2. The Housing Assistance Public Rental Housing Assistance Program 2013 (No.1) Disallowable Instrument DI2013-52 (the ‘HA Program’) is an approved housing assistance program made pursuant to section 19 of the Housing Assistance Act 2007 (the ‘HA Act’).

3. Pursuant to clause 9(4) of the HA Program a person receiving rental housing assistance and who is eligible pursuant to clause 25 of the HA Program, is eligible for a rent rebate.

4. Pursuant to clause 25(1) of the HA Program the Respondent has a discretion to provide a rent rebate to an eligible applicant.

5. The reviewable decision was made pursuant to clause 31(4)(b) of the HA Program. The reviewable decision maker accepted the recommendation of the Housing Assistance and Tenancy Review Panel (‘HATRP’) dated 1 August 2014.

6. Pursuant to clause 32 of the HA Program an application can be made for review by ACAT of a reviewable decisions made pursuant to clause 31(4)(b) of the HA Program.

7. The application to ACAT for review of the reviewable decision is conducted as a merits review. The Tribunal ‘stands in the shoes’ of the reviewable decision maker when considering the application and must either confirm, vary or set aside the reviewable decision (section 68 ACT Civil and Administrative Tribunal Act 2008 (the ‘ACAT Act’)).

8. The Tribunal must, when making its decision, ‘to the maximum extent practicable considering the resources available’ have regard to the objects set out in section 6 the HA Act.

9. There are non-legislative Policy and Instruction documents prepared by the Respondent and which relate to the rent rebate and housing assistance programs administered pursuant to the HA Act and HA Program including the:

   (a)Rental Rebate Policy (Attachment ‘S’ to the T-Documents pages 177-179);

   (b)Eligibility for Social Housing Assistance Policy Document (Attachment T to the T-Documents pages 190-207); and

   (c)‘Director Housing ACT – Instruction’ Reference HBC-14/285 dated 13 June 2014 concerning ‘Management of Sponsored Migrant Applications for Housing Assistance’ (Attachment ‘R’ to the T-Documents pages 175-176).

10. The Tribunal is obliged to interpret the relevant legislative provisions, so far as is possible, consistently with the Human Rights Act 2004 (ACT) (the ‘HR Act’ section 30).

11. In the context of its administrative review jurisdiction and in making this decision the Tribunal is obliged to give proper consideration to the Applicants’ human rights. Specifically, in the circumstances of this matter, not to have their home interfered with arbitrarily or unlawfully (sections 40, 40A and 12(a) of the HR Act).

Background

1. The Applicants have been in Australia since 2007. They reside in Australia pursuant to a s143 visa. The Applicants are ‘sponsored’ migrants. Their son, Wei Zhang, is their sole sponsor. Wei Zhang, his wife and their two children live in Canberra. The Applicants’ daughter, son-in-law and their child also live in Canberra.

2. Wei Zhang gave evidence that after the Applicants first arrived in Australia in 2007, he approached Centrelink to enquire, on behalf of the Applicants, about what benefits the Applicants were entitled to. Wei Zhang said he was advised about, and the Applicants took the necessary steps to obtain, benefits including a Health Care Card, access to Community Dental Care and some other benefits. Wei Zhang could not recall the details of all of the available benefits he was advised about. Wei Zhang gave evidence that the enquiries he made did not extend to asking about the Applicants’ eligibility for payment of any specific Centrelink pension or benefit amount. Wei Zhang gave evidence that subsequent to these enquiries, Wei Zhang did not make any further enquiries on behalf of the Applicants as to what Centrelink benefits the Applicants may have been eligible for or which may be available to the Applicants. Wei Zhang said that the Applicants could have, and may have, made enquiries themselves via an interpreter. 

3. When the Applicants first came to Australia they lived with Wei Zhang and his family. Subsequently Wei Zhang and his family moved. For various reasons, when this occurred, Dong Quan Zhang moved to live with the Applicants’ daughter’s family. Yuhua Guo moved with and remained living with Wei Zhang’s family.

4. Some issues arose in both of the households. As a result the Applicants, with Wei Zhang’s assistance, applied to the Respondent for social housing accommodation. On 11 December 2009 the Respondent approved their application and on 15 July 2010 the Respondent allocated to the Applicants their current social housing property (T-Documents 17-18).

5. In their application for social housing (T Documents 4-16) the Applicants nominated Wei Zhang as the alternative person whom the Respondent could contact in relation to matters involving the Applicants (T Documents 6 at question 15). The Applicants did not complete question 25 in the application for social housing which asked:

   25.    Do you receive any other income (e.g. overseas pension, interest on bank accounts, child support payments)? (T-Documents 8)

6. In answer to question 37 (T-Documents 11) on the application form each of the Applicants agreed that they were assisted in completing the application. However the Declaration, at questions 38 (T-Documents 38) which should have been made by the person who assisted the Applicants, was not completed. Based on the information provided at the hearing it is likely that it was Wei Zhang who assisted the Applicants to complete the application for social housing.

7. The Applicants signed the consent (T-Document 14) that authorises the Respondent and Jane Zhang (the Applicants’ daughter) to share information relevant to the Applicants’ registration for social housing.

8. The Applicants’ initial application for rent rebate was approved and commenced on 15 July 2010 (T-Documents 19). At that time the rent rebate was calculated on the basis that the Applicants had ‘Nil’ income. A subsequent rent rebate approval dated 6 September 2010 included as income for the Applicants overseas pension amounts (the ‘Chinese pensions’) of $49.01 for Yuhua Guo and $60.30 for Dong Quan Zhang. Their rent rebate and payable rebated rent amount was adjusted to reflect this income.

9. The subsequent rental rebate applications by the Applicants were all approved. With one exception, being the decision on 26 July 2012, the rental rebate calculations were based on the Applicants’ income of the overseas pension amount plus small amounts for interest earned in their Australian bank accounts (T-Documents 21-26; 32).

10. In the rental rebate assessment dated 12 July 2012 (T-Documents 27-28) the Applicants’ income, for the purpose of the rental rebate calculation, was deemed to be a ‘Pension Payment’ amount. This amount appears to reflect a ‘deemed’ Centrelink pension amount. It seems, from the evidence provided by Wei Zhang at the hearing, that the Applicants successfully challenged this assessment although there is no reference to this in the T-Documents. The rental history information provided to HATRP commences in 17 December 2012 (T-Documents 104). On 17 December 2012 the weekly rebated rent amount is noted to be $26.25 and suggests that the rent rebate calculation was based on Chinese pension amount rather than a ‘deemed’ income.  

11. Until their rent rebate application dated 21 January 2014 the Respondent assessed the Applicants’ income amount, for the purpose of calculating rent rebate, by reference to their Chinese pension plus Australian bank account interest amounts.   

12. On 21 January 2014 the Respondent received the Applicants’ application for rent rebate (T-Documents 33-41). At the time the Applicants were in receipt of a rent rebate that was due to expire on 1 March 2014. The Applicants provided, with the rent rebate application, documents to support their income as stated in the application, namely information about their Chinese pensions and Australian bank account interest.

13. There is no dispute that the Applicants each receive a pension from their respective former employers in China, these are the Chinese pensions. As at the date of the hearing the most recent information provided by the Applicants about the Chinese pensions were the ‘Certificates of Evidence’ dated April 2014 (T-Documents 72 and 73).

14. The Applicants also provided bank statements for their respective Australian bank accounts. In respect of each of the Applicants small amounts of interest had been paid from time. These amounts were recorded in the documents supplied with the rental rebate application and elsewhere in the T Documents.

15. From information they had previously provided to the Respondent by the Applicants,  and from the evidence provided at the hearing by the Applicants and Wei Zhang, it seems that the Chinese pension amounts are paid monthly into bank accounts held by each of the Applicants in China (the ‘Chinese bank accounts’).

16. Wei Zhang gave evidence that because of the small monetary amount of the Chinese pensions which are paid into the Chinese bank accounts, it would not be economical, after deducting currency conversion and transfer fees etc, to have the Chinese pensions transferred from the Chinese bank accounts to the Applicants’ Australian bank accounts on a regular basis. Consequently, the money accrues in the Chinese bank accounts and amounts are withdrawn from these accounts on an ad hoc basis by either:

    (a)relatives or friends of the Applicants who live in China; or

    (b)one of the Applicants in person, or Wei Zhang, or Wei Zhang’s wife, or the Applicants’ daughter’, or another relative or friend of the Applicants,  when any of these people visit China.

17. The funds withdrawn from the Chinese bank accounts are then converted to Australian currency in China. These funds are then delivered to the Applicants, in cash, in Australia.

18. Wei Zhang said that it was not possible, or extremely difficult, to get documentary evidence about the payments into and bank statements for the Chinese bank accounts. Wei Zhang said that the person who attends in China to withdraw the money (see paragraph 49 above) is shown, by the teller, the current account balance of the Chinese bank accounts. The person, being one of the Applicants or someone on their behalf, determines the amount to be withdrawn based on the available balance.

1. Neither the Respondent nor the Tribunal has been provided with any details about the Chinese bank accounts held by the Applicants. From the information available to the Tribunal relating to the Australian bank accounts that each of the Applicants hold, it does not appear that the ‘cash’ amounts obtained by or delivered to the Applicants for the Chinese pensions, after these are withdrawn from the Chinese bank accounts, are then deposited into the Applicants’ Australian bank accounts.

2. On 19 March 2014 the Respondent advised the Applicants that their application lodged 21 January 2014 for rent rebate had been accepted and that they would be required to pay a weekly rebated rent amount of $113.05 from 2 March 2014. The rebate was to operate for 12 months. The market rent for the property was at that time $310 per week. The rebate amount was calculated at $196.95. The rebate had been calculated on the basis that the Applicants’ income was assessed as being equal to the ‘Basic Newstart Allowance’ amount of $226.03 per week each plus a small amount of Australian bank interest received by Dong Quan Zhang ($0.20).

3. The Applicants applied for review of this decision. The Application was dated 30 March 2014 (T-Documents 63-64). It was ‘signed’ by Wei Zhang on behalf of Yuhua Guo. The Respondent received the application on 31 March 2014. In the application the Applicants advised the Respondent that they required an interpreter. They nominated Wei Zhang as their ‘Advocate/Helper’.

4. In the 30 March 2014 application for review the Applicant/s note that they do not receive Newstart Allowance, but state – “We are happy to pay if ACT Housing can assist us to get Newstart Allowance from Centrelink”.

5. On 28 April 2014 the Respondent advised the Applicants their application for review was ‘denied’ (T-Documents 65-66). The Applicants were advised that their rebated rental amount ‘from 25 May 2014’ would be $125.20. This amount was calculated on the basis of an income for each of the Applicants of the ‘Basic Newstart Allowance’ of $250.35 and again the $0.20 bank interest for Dong Quan Zhang. The market rent for the property was still $310 per week. Because there had apparently been an increase in the Newstart Allowance amount after 19 March 2014, the effect was that the rebate amount of $184.80 in the 28 April 2014 decision was slightly less than the rebate amount of $196.95 in the 19 March 2014 decision.

6. The Review of Decision form dated 28 April 2014 completed by the Respondent’s ‘Authorised Officer’ who made the 28 April 2014 decision and which was countersigned by the ‘Central Regional Manager’ (T-Documents 67-69) confirms that as at 28 April 2014 the Respondent had no ‘policy’ in relation to the calculation of rental rebate where the tenant or resident was under an ‘assurance of support as per class 143 visa’. The document recommends that the Respondent approve an instruction addressing this situation.

7. In the Review of Decision documentation (at T-Document 68) there is discussion about what the proposed response to such a situation should be. Although the information is a little confusing, based on the decision letter of 28 April 2014 (T-Document 65) the intention seems to be that if, when considering a rent rebate application, the ‘actual’ income of the sponsored migrant is below the Newstart Single Allowance amount, then the Newstart Allowance amount should be deemed to be the income amount for the applicant.

8. Although the Applicants’ request for review dated 30 March 2014 was denied, in the decision form completed by the Respondent (at T-Document 68) in response to the following question:

   If the appeal is denied what steps can the Department take to minimize the effects of the decision?

   The answer provided is:

   Appeal upheld.

9. The decision letter dated 28 April 2014 does not provide any direct response to the Applicants’ statement, set out in their application for review dated 30 March 2014, where they note that they are happy to pay the additional rent if the Respondent provides ‘assistance’ in them obtaining the Newstart Allowance from Centrelink (T-Document 64).

10. The Applicants made a further application dated 8 May 2014 for review of the Respondent’s 28 April 2014 decision. The Respondent received this application on 21 May 2014. The Application was signed by Yuhua Guo. The Applicants disputed the Respondent’s ‘policy’ of deeming their income to be equal to the Newstart Allowance amount. The Applicants asserted that they were unable to afford the weekly rebated rental amount of $125.20. Again the Applicants confirm that they need an interpreter. They nominate Wei Zhang as their ‘Advocate/Helper’ (T-Documents 70-71).

11. The Applicants also provided to the Respondent ‘Certificates of Evidence’ dated April 2014 in respect of their Chinese pensions (T-Documents 72 – 73). This is the most recent information about the Chinese pensions provided to the Tribunal. Yuhua Guo’s pension is 1,605 yuan and 30 cents per month. Dong Quan Zhang’s pension is 1,964 yuan and 50 cents per month. The Applicants’ application for review was referred to HATRP.

12. Yuhua Guo attended a meeting with officers from the Respondent’s office on 18 June 2014 to discuss rental arrears which had by that time accrued. There was also discussion about the rental rebate assessment and the Applicants’ application for review which was being processed. An interpreter was available. Via the interpreter an officer from the Support Tenancy Services (‘STS’) agreed to meet with Ms Guo to discuss STS’ role. Ms Guo was given an STS pamphlet and signed a consent form (T-Document 84).

13. On 24 June 2014 the Respondent conducted a home visit to the property. The purpose was to undertaking an inspection. The Respondent’s representative also spoke to Dong Quan Zhang, through a telephone interpreter, about rental arrears of $1,326.40 which had accrued. The Respondent’s record of what occurred is set out in a file note (Folios 75-76 – provided to the Tribunal and the Applicant by the Respondent on 17 and 25 June 2015, these folios are referred to in the HATRP report in particular at T-Documents page 80). The Respondent’s representative noted that if the arrears were not paid a Notice to Vacate may be issued. The Respondent’s representative suggested that the Applicants seek legal advice from Legal Aid and or seek assistance from STS.

14. At the home visit on 24 June 2015The Respondent’s representative tried to provide Dong Quan Zhang with a referral to STS which he was asked to sign. The ‘purpose’ of the form and the referral to STS was described to Dong Quan Zhang via the telephone interpreter. Mr Zhang responded that as the form was in English, he first wanted to discuss it with his son, Wei Zhang, who was not present. Dong Quan Zhang also said that he could not afford the increased rent amount and that he would take no further action nor seek legal advice until the Applicants’ request for review of the rent rebate decision had been processed.  

15. In relation to the Applicants’ 8 May 2014 request for review, on 1 August 2014 HATRP recommended (T-Documents 75-77) that:

    (a)for the period 2 March to 12 June 2014 the Applicants’ income for the purpose of their rental rebate application should be calculated on the basis of the ‘Respondent’s policy’ which at that time was by reference to their ‘actual’ income, being the Chinese pension and Australian bank interest amounts; and

    (b)for the period from 13 June 2014, in line with the Respondent’s ‘new policy’, the rebate should be calculated on the basis that the Applicants’ income would be deemed to be the Centrelink Newstart Allowance amount.  

16. The ‘new policy’ referred to in the HATRP recommendation is set out in the ‘Director Housing ACT – Instruction’ relating to ‘Management of Sponsored Migrant Applications for Housing Assistance’ (HBC-14/285) issued 13 June 2014 (the ‘Instruction’)(T-Documents 175-176). The Tribunal notes that the Instruction is not specifically referred to in the information provided to HATRP nor in the HATRP report of 1 August 2014 (T Documents 75-84).

17. It appears from the reviewable decision dated 12 August 2014 (T-Documents 74) that the Respondent has considered the Application for Review dated 8 May 2014 to be confined to the period 2 March 2014 to 12 June 2014. This is the period following the expiration of the previous rental rebate on 1 March 2014 and ends on the day before the Instruction came into effect.

18. The Tribunal accepts that the recommendations of HATRP and the reviewable decision accepting that recommendation, notwithstanding the letter of 12 August 2014 (T-Documents 74) operated so that the Applicants’ application for review was:

    (a)upheld in relation to the period 2 March to 12 June 2014; but

    (b)denied for the period 12 June until the end of the rental rebate period.

19. This interpretation is supported by the Respondent’s letter to the Applicants dated 1 September 2014 in which the Respondent confirms that the rebated rental amount from 13 June 2014 is $125.20 and is calculated based on the Applicants receiving a deemed income amount equivalent to the Newstart Allowance amount (T-Documents 85-86).

20. Using the 1 September 2014 rate to convert from Chinese to Australian currency, the Chinese pension amount set out in the April 2014 information provided by the Applicants results in an Australia dollar amount of:

    (a)$79.00 per week for Dong Quan Zhang (T-Documents 72 and 87); and

    (b)$64.56 per week for Yuhua Guo (T-Documents 73 and 90).

21. On 9 September 2014, Wei Zhang sent an email on behalf of the Applicants to the Respondent requesting an explanation for the letter of 1 September 2014 (T-Documents 94) and in particular:

    (a)why there had been a ‘rent rebate review’ effective 13 June 2014 when the original rent rebate assessment commencing 2 March 2014 was for 12 months;

    (b)on what basis the rent rebate assessment had been calculated as, notwithstanding the terms of the letter of 1 September 2014, it was based on neither the information provided by the Applicants nor on information provided by Centrelink; and

    (c)the Applicants asked for information about review options.

22. On 16 September 2014 (T-Documents 93) the Respondent’s officer responded stating:

    (a)the reviewable decision was that the rental rebate assessment was effective from 13 June 2014 based on the Rental Rebate Policy and Instruction which became effective on that date;

    (b)the Rental Rebate Policy and Instruction operated so that, because the Applicants’ ‘actual’ income was less than the Newstart Allowance, the Applicants’ income for the purpose of the rental rebate assessment would be ‘deemed’ to be the equivalent of the Newstart Allowance. Reference is made to the Rental Rebate Policy deeming provisions which apply when someone is entitled to Centrelink or suspended from receiving Centrelink payments; and

    (c)that because the reviewable decision is a 2^nd level review, this exhausts the review options within Housing ACT.

23. The Tribunal notes that the Respondent failed to provide a Reviewable Decision Notice in the decision of 12 August 2014 as required by section 67A of the ACAT Act even though, in part, the Applicants’ request for review had been denied.

24. As noted above, the reviewable decision was made pursuant to clause 31(4)(b) of the HA Program and is reviewable by ACAT (clause 32 HA Program).

Applicants’ submission

1. In the Statement of Facts and Contentions dated 3 March 2015, the Applicants assert that:

   (a)the Instruction is invalid;

   (b)even if valid, reliance on the Instruction without proper consideration of the Applicants’ individual circumstances and the operation of the HA Program is invalid in that it amounts to an abdication of the requirement to exercise the discretion and make a decision under Clause 25(1) of the HA Program; and

   (c)the Tribunal is obliged to interpret legislation consistently with the HR Act and, in its role as administrative decision maker, to make decisions consistent with the HR Act. The Applicants submit that a decision to deem the Applicants’ income to be equal to the Newstart Allowance in the circumstances of this matter where there is no dispute that their actual income is limited to their Chinese pension and the small amount of Australian bank interest, is in breach of their human right pursuant to section 12(a) of the HR Act because it places them in a situation where the rent payable puts them into a financially precarious position which impacts on their ability to afford their housing.

2. At the hearing Wei Zhang made oral submissions on behalf of the Applicants. The Applicants submit that the Instruction was created to be specifically directed at the Applicants. The Applicants say that the Respondent’s ‘intention’ was to decrease the rebate and thereby increase the Applicants’ rent so as to put the Applicants into a position of financial hardship such that they would be forced to apply for Centrelink Special Benefit payments. This would then create a situation where those Centrelink payments would be recovered from Wei Zhang, pursuant to the Assurance of Support which he had signed in respect of the Applicants. The Applicants submit that given this purpose the Instruction is invalid.

3. The Applicants assert that the rent rebate process requires the Respondent to make a decision in response to an application. The rent rebate if granted is then reviewed after 6 or 12 months. The reviewable decision which granted the Applicants a rent rebate at one rate from 2 March to 12 June 2014 and then at another rate from 13 June 2014 is contrary to the Respondent’s own processes and amounts to an ‘ad hoc’ and invalid decision.

4. The Applicants submit that it is not appropriate for the Respondent, by relying on the Instruction when making decisions pursuant to clause 11 and clause 25 of the HA Program, to ‘in effect’ deem the amount of support provided by the Assurer, under an Assurance of Support arrangement, to be equal to a Centrelink benefit amount.  The support by the Assurer, say the Applicants, is not ‘income’. The Assurance of Support is a guarantee that authorises the Commonwealth to recover from the Assurer any Centrelink amounts claimed by the Assurees.

5. The Applicants say that until the Respondent’s decision to decrease the rent rebate from 13 June 2014 based on the ‘deemed’ income amount, Wei Zhang, as the Assurer of Support to the Applicants, had provided the Applicants with sufficient support so that they could ‘survive’ in Australia. The Applicants did not need Centrelink support and they were not suffering financial hardship. The Applicants say they were only experience financial hardship if the ‘deemed’ income decision by the Respondent operates and the resulting increase in rent is payable. 

Respondent’s submissions

1. The Respondent submits that in making its decision the Tribunal must ‘have regard to’ the objects of the HA Act (section 6) and in doing so should take account, as is set out in section 6(2), of ‘the inevitable resource constraints’ faced by the Respondent.[1]

   [1] Harris v Commissioner for Social Housing; Towney-Kilby v Commissioner for Social Housing; Sullivan v Commissioner for Social Housing [2013] ACTSC 186 at 181

2. Clause 25 of the HA Program provides for a rent rebate program which is authorized by section 22(2) of the HA Act. The Respondent has a discretion to provide a rent rebate to an eligible applicant. Applicants are eligible for a rent rebate if they satisfy clause 9(4) of the HA Program.

3. The Applicants satisfy clause 9(4)(a) (as they are social housing tenants). In order to satisfy clause 9(4)(b) they must satisfy clause 25 of the HA Program.

4. Clause 25(2) of the HA Program sets out the process for calculating rent rebate by reference to the tenant’s ‘income’. ‘Income’ is defined in clause 11 of the HA Program and includes amounts the tenant ‘may be taken to have’ ‘become entitled to’ had they taken reasonable action which was reasonably open to them (clause 11 (1)(c) and 11 (3)(a) of the HA Program).

5. The Respondent has a discretion to ‘deem’ amounts as income pursuant to clauses 11(1)(c) and 11(3) of the HA Program. If the Respondent ‘considers’ that the tenant ‘might have… received or become entitled to the amount’ if they ‘had taken reasonable action’ and the action was ‘reasonably available to them’ then the person ‘may be taken to have...received or become entitled to’ the amount. The Respondent says the discretion in clause 11(3)(a) is not restricted as to amount and the Respondent can provide policy and other guidelines to assist in achieving consistency in the exercise of the statutory power provided these guidelines are consistent with the statutory scheme.

6. The Respondent submits that the minimum amount of Centrelink benefit payable to a person who is over 18 and the holder of a s143 visa is the equivalent of the ‘Newstart Allowance’ amount. This amount is the same as the minimum of a ‘Special Benefit’ payment.

7. The Respondent says that the Instruction is simply a ‘short cut’ method for enabling a decision maker to calculate the amount of income applicable to people, such as the Applicants, who are in Australian pursuant to an assurance of support sponsored migrant scheme. This income amount is then used to calculate the rent rebate amount.

8. The Respondent says that clause 11(3)(a) only requires the Respondent to ‘consider’ that the criteria in clause 11(3)(a) are met and that this conclusion is ‘reasonable’. The Respondent submits that this should be viewed as a ‘low threshold’ (Further Submissions by Respondent dated 15 May 2015 paragraph 10).

9. The Respondent submits (Further Submission by Respondent dated 15 May 2015 paragraphs 8, and 11) that:

   (a)there is no barrier to the Applicants applying to the Commonwealth Department of Social Services (‘Centrelink’) for a benefit or payment;

   (b)the Applicants’ financial circumstances, if their income is limited to the amount they receive from the Chinese pensions and Australian bank interest, is such that they would meet the ‘financial hardship’ test and would be eligible to apply for a Centrelink Special Benefit and may be eligible for other benefits;

   (c)to apply for a Special Benefit the Applicants need to satisfy an income and assets test, complete a form and provide supporting documentation;

   (d)the Applicants have not explored their eligibility for Special Benefits or any other Centrelink benefit;

   (e)the Applicants have not applied for a Special Benefit or for other Centrelink benefits;

   (f)the Respondent has tried to refer the Applicants to STS which among other support services, assists tenants in engaging with Centrelink to explore available benefits options. The Applicants were referred to STS on 24 June 2014 (see T-Documents 80 and 84) and the Respondent again wrote to the Applicants about STS on 12 May 2015 (Exhibit R1). The Applicants have not engaged with STS.

10. The Respondent submits that the Applicants are likely to be eligible for a Centrelink benefit, either Special Benefit and/or some other payment, and that making enquiries about and submitting an application to Centrelink for a Centrelink payment is reasonable action in relation to the payment that is reasonably available to the Applicants.  (Further Submissions of the Respondent dated 15 May 2015 paragraph 11)

11. The Respondent says that the Instruction is ‘in the nature’ of a policy document. Although the Tribunal must consider the circumstances of the matter in exercising the discretion and making its decision, in doing so the Tribunal may refer to the Instruction and give it the weight that in the particular circumstances of the matter the Tribunal considers appropriate (Further Submissions by Respondent dated 15 May 2015 paragraph 12 -15).

12. The Instruction can be ‘read down’ to the extent that it is inconsistent with applicable statutory provisions. The Respondent submits that in so far as the Instruction provides a ‘short cut’ to assess ‘the appropriate income comparator to use when assessing the rental rebate application of persons who are resident in the Territory under an Assurance of Support’ (Further Submissions by Respondent dated 15 May 2015 at paragraph 14) there is no inconsistency. By applying the Instruction to the current situation in this way does not amount to an ‘uncritical application of government policy’ and therefore abdication by the Tribunal of its responsibility to determine the ‘circumstances of the particular case before it’ and to make a decision (Further Submissions by Respondent dated 15 May 2015 paragraph 15).

1. Referring to the Applicants’ submissions that the Instruction is invalid, the Respondent says that the Instruction is valid. In any event the ‘validity’ of the Instruction is not a matter for determination by the Tribunal (Further Submissions by Respondent paragraph F.5.).

2. The Respondent submits that the Applicants’ circumstances meet the ‘criteria’ for the operation of clause 11(3)(a) of the HA Program. The Tribunal should therefore exercise the discretion in clause 11(3) to ‘deem’ the amount of the Applicants’ income for the purpose of calculation of rental rebate pursuant to clause 25(2)(a) of the HA Program. The Instruction provides a ‘tool’ at this point for the Tribunal to ‘quantify’ that ‘income’ amount.

3. The Respondent agrees with the Applicants’ submission that the Tribunal, like the Respondent, is obliged to interpret legislation and make decisions, as far as is possible, consistently with the HR Act. The Respondent submits that a decision concluding that the Applicants’ income for the purpose of calculation of the rent rebate amount is deemed to be equivalent to Newstart Allowance is consistent with the operation of clauses 11 and 25 of the HA Program and the objectives of the HA Act and HA Program. That decision is neither illegal nor arbitrary. Further, the decision to grant the Applicants a rent rebate calculated in accordance with these provisions may impact on the quantum of rent payable by the Applicants, but is neither an illegal nor arbitrary interference with their home and is not in breach of section 12(a) of the HR Act.

4. In oral submissions the Respondent pointed out that the evidence showed that the Applicants relied on Wei Zhang as their interface with the Respondent and other government services. Wei Zhang had on their behalf engaged with Centrelink, the Respondent and other government organisations to enquire about benefits available to and to obtain services for the Applicants. The failure by the Applicants to explore, through Wei Zhang, their eligibility for Centrelink Special Benefit or other payments, or to engage with STS which might have assisted the Applicants to explore these options, means that the Tribunal can rely on clause 11(3)(a) in exercising the discretion to deem the amount of their income as being equal to the amount of the Newstart Allowance.

5. The Respondent submits that from the information the Respondent has obtained (and provided to the Applicants and Tribunal as attachments to the Further Submissions by Respondent dated 15 May 2015) there is nothing to prevent the Applicants from being eligible for applying for Special Benefit. The amount of Chinese Pension the Applicants receive brings them within the Special Benefit criterion of ‘financial hardship’. The Special Benefit payment amount is the same as the Newstart Allowance amount.

6. The process of applying for the Special Benefit is both reasonably open to the Applicants and involves ‘reasonable action’. It is indeed less onerous than the process of applying for other benefits.[2]

Findings of fact and consideration of issues

[2] see Chung and Commissioner for Housing [2007] ACTAAT 3 at paragraph 40

1. Each of the Applicants receives a Chinese pension. Based on the information available to the Tribunal, and noting that the exchange rate fluctuates, as at September 2014 this was equal to:

   (a)    $79.00 per week for Dong Quan Zhang (T Documents 72 and 87); and

   (b)   $64.56 per week for Yuhua Guo (T Documents 73 and 90).

2. In the Applicants’ Statement of Facts and Contentions dated 3 March 2015 at paragraph 12, using conversion rates from February 2015, it seems this had increased slightly to:

   (a)$93.00 per week for Dong Quan Zhang; and

   (b)$75.92 per week for Yuhua Guo.

3. Either or both of the Applicants also receive, from time to time, a small amount for interest for funds held in their Australian bank accounts.

4. There is no information available as to what, if any, interest or other amounts are paid into or held in Chinese bank accounts held in the Applicants’ names. Each of the Applicants’ Chinese pension amounts are paid into the Applicants’ respective Chinese bank accounts.

5. Wei Zhang is the Applicants’ sponsor pursuant to an Assurance of Support. The Applicants are ‘sponsored migrants’ and have resided in Australia pursuant to s143 visas since 2007. The period of the Assurance of Support, which is for 10 years, ends in 2017.

6. The Applicants rely on Wei Zhang and perhaps other family members for financial support. Wei Zhang gave evidence that, as the Applicants are his parents, he would provide this support regardless of any obligation imposed by the Assurance of Support scheme. Wei Zhang was unable to provide any detailed assessment of the amount that he regularly spends in relation to the Applicants to pay for food, rent, electricity and other expenses, but estimated that a figure of $45 to $50 dollars per week which includes rent of $29.50 would be approximately correct.

7. The market rent for the property is $310 per week. A rebated rental amount of $29.50 translates to a rent rebate of $280.50 per week. The reviewable decision operates so that the rent rebate amount from 13 June 2014 is reduced to $184.80 per week and the rebated rent amount payable by the Applicants is increased to $125.20 per week.

8. The Applicants have advised the Respondent and the Tribunal that they are not eligible for Centrelink support for another two years. In other words, until after the period of the Assurance of Support ends in 2017. The Applicants provided to HATRP information confirming that, due to health issues and their age, neither is capable of working (see T-Document 78).

9. Wei Zhang gave evidence that when the Applicants first came to Australia in 2007 he had, on behalf of the Applicants, made enquiries at Centrelink about their entitlements to benefits, he has not since then made further enquiries.

10. At the hearing, in response to a specific question by the Tribunal, Dong Quan Zhang said that, because of his age, he could not recall having a conversation on 24 June 2014 with a representative of the Respondent in which he declined to engage with STS when, through an interpreter, the opportunity was offered.

11. Wei Zhang confirmed at the hearing that Yuhua Guo had mentioned to him receiving the Respondent’s letter of 12 May 2015 (Exhibit R1). In this letter the Respondent suggested that the Applicants contact STS for assistance. At the time that the 12 May 2015 letter (Exhibit R1) was received by Yuhua Guo, Dong Quan Zhang was in China. Wei Zhang gave evidence that because Wei Zhang and the Applicants were dealing with other information that had been provided by the Respondent which related to the application for rent rebate, after receiving the 12 May 2015 letter (Exhibit R1) neither Wei Zhang nor Yuhua Guo took any specific action in response to the letter. They did not contact STS or Centrelink.

12. The information provided to the Tribunal by the Respondent with the Further Submissions of the Respondent dated 15 May 2015 (at Attachments A2, A3 and A4) suggests that the Applicants may be eligible for payment of a Special Benefit pursuant to Part 2.15 of the Social Security Act 1991 (Cth) (the ‘SS Act’). If an ‘assurance of support’ applies a person may not be eligible (section 729(2)(h) of the SS Act) but there are circumstances in which this would not preclude eligibility (section 729(2C)).

13. Subject to section 729(2)(h) of the SS Act, it appears that the Applicants may meet the eligibility requirements for Special Benefit. If eligible, the amount of Special Benefit payable is, subject to the applicants’ circumstances, equal to at least the amount of Newstart Allowance (see Further Submissions by Respondent dated 15 May 2015 Attachment A4).

14. In relation to an ‘Assurance of Support’, the Assurer undertakes to provide support to the Assuree. There does not appear to be any process by which the Assuree can ‘enforce’ the Assurer’s undertaking to do so. Rather, if the Assurer does not provide ‘adequate’ support and the Assuree applies for and is paid a Centrelink amount, then the Commonwealth is authorised to recover from the Assurer the amount of any Centrelink payments made to the Assuree. If the Assurance of Support precludes eligibility for Centrelink, pursuant to section 729(2)(h) of the SS Act, then that is because the Assurer is willing and able to provide ‘an adequate level of support’ and ‘it is reasonable for the Assuree to accept that support’ (section 729(2C) of the SS Act).

15. The Applicants assert that:

    (a)if, pursuant to clause 25(2) of the HA Program, the amount of rent rebate is calculated by reference to a ‘deemed’ income amount equivalent to the Centrelink Newstart Allowance, rather than their ‘actual’ income being their Chinese pension plus Australian bank interest; then

    (b)they will be unable to afford the rebated rent amount (being the difference between the Market rent and the rent rebate).

16. The discretion to provide a rent rebate in clause 25 (1) of the HA Program arises after the applicant establishes their eligibility under clause 9(4) of the HA Program.

17. The Applicants are public housing tenants and satisfy clause 9(4)(a) of the HA Program.

18. Clause 9(4)(b) refers to clause 25. Before the exercise of the discretion in clause 25(1), and subject to clauses 25(3)-(5), the rent rebate amount must be calculated pursuant to clause 25(2). That calculation is based on the weekly income of the household (clause 25(2)(a) of the HA Program).

19. For the HA Program, and in this instance clause 25(2)(a), income is defined in clause 11 of the HA Program. The ‘meaning’ of ‘income’ is set out in clause 11(1)(a) and includes the amounts referred to in clauses 11(1)(b) and11(1)(c) and 11(1)(d) of the HA Program. The definition of ‘income’ in clause 11(1)(a) is very broad. A payment may come within the definition of ‘income’ in clause 11(1)(a) because of the operation of clause 11(1)(b) and or be ‘deemed’ to be included and for the amount determined by the operation of clause 11(1)(c) and 11(3) of the HA Program.

20. In addition to their Chinese pensions and Australian bank interest, the Applicants also receive the benefit of the regular payments made to or on their behalf by Wei Zhang, and perhaps other members of the Applicants’ family.

21. These payments may or may not be characterised as being ‘referable to’ the operation of the undertaking of Assurance of Support signed by Wei Zhang. They are however regular, relied on by the Applicants, and are payments made to or for the Applicants’ benefit. In the Tribunal’s view these payments fall within the meaning of ‘income’ in clause 11(1)(a) of the HA Program, perhaps because of clause 11(1)(b). Wei Zhang was unable accurately to quantify the amount of these payments. The Tribunal notes that the amount of the Chinese pension is also difficult to accurately ‘quantify’ because of the way that the payments are ‘obtained’ by the Applicants and because the currency exchange rate varies.

22. The Tribunal is satisfied that the Applicants may be eligible for a Special Benefit if they were to apply for it. If they were not eligible for the Special Benefit, then that is likely to be because an Assurance of Support is found to apply to them.

23. In the absence of the provision of a rent rebate, the Applicants would be obliged to pay market rent (section 22 of the HA Act). The evidence before the Tribunal the supports the conclusion that the regular payments by Wei Zhang and other members of the Applicants’ family extend to meeting payment for the Applicants’ rental obligation, plus the cost of food, electricity and other necessities.

24. The Tribunal accepts that there is no ‘action’ that the Applicants could take to ‘secure’ the payment of the ‘amounts’ by Wei Zhang pursuant to the Assurance of Support. So it is not appropriate to deem an amount to be included in the Applicants’ income either by the Assurer or as otherwise paid by Wei Zhang or other family members. However, the Applicants’ assert that if as a result of the operation of clause 11 their income is found to include amounts above the Chinese pension and Australian bank interest, and as a consequence their rent rebate amount is reduced and their payable rebated rent amount increases, then they will not able to pay this increased amount. The assumption the Applicants are making is that they will not be provided with ‘sufficient support’, either by their Assurer or family, to meet their rental obligation.

25. Based on the available evidence the Tribunal considers that the operation of clause 11(1) of the HR Program operates in this matter as follows:

    (a)the Applicants’ ‘income’ consists of the Chinese pensions, Australian bank interest and regular payments made to them or for their benefit by Wei Zhang and family members, either pursuant to the Assurance of Support or otherwise;

    (b)the amounts paid by Wei Zhang and family members is not specifically quantified but include payments for rent, food and other necessities such as electricity;

    (c)the Applicants are not precluded from making an application for Centrelink payments. Based on the amount of the Chinese pensions and Australian bank interest that they receive, the Applicants might be eligible to receive at least a Special Benefit and perhaps other benefit payments from Centrelink. The process for making the application for a Centrelink benefit is a ‘reasonable action which is reasonably available’ to the Applicants, either with the assistance of Wei Zhang, or with the assistance of STS. The Special Benefit amount is equal to the Newstart Allowance amount; and

    (d)if the Applicants are not eligible for Special Benefit payments then that is likely to be because the Assurance of Support operates or their income is such that they are not experiencing ‘financial hardship’.

26. Based on the available information, the Tribunal is satisfied that the Applicants’ income as set out in paragraph 123 above is not greater than the Special Benefit (which is the same as the Newstart Allowance) amount. The Tribunal considers that the Applicants:

    (a)are eligible to apply for Special Benefit and if they choose not to do so their income for the purpose of clause 11(1)(a) should be deemed pursuant to clauses 11(1)(c) and 11(3) to be equal to the Special Benefit (or Newstart Allowance) amount; or

    (b)are not eligible for the Special Benefit because the Assurance of Support applies so that their income because of the payments made by the Assurer is equal to the Special Benefit amount and is included in the Applicants’ income for the purpose of clause 11(a) of the HA Program.

27. This conclusion does not compel the Applicants to apply for a Centrelink benefit. It does enable to the Tribunal to attribute an amount to the Applicants’ as ‘income’ which best reflects what they are or could receive or become entitled to, and for the purpose of calculating their eligibility for rent rebate pursuant to clause 25(2) of the HA Program.

28. In interpreting the wording and exercising the discretion afforded by clause 11 of the HA Program it is necessary to consider:

    (a)the objects of the HA Act as set out in section 6;

    (b)the objects of the HA Program as set out in Clause 3; and

    (c)the description of rent rebate in the Rental Rebate Policy:

    What is a rental rebate?

    Rental rebate is an ACT Government subsidy which helps an eligible applicant meet the cost of renting social housing. It is the difference between market rent and the maximum rent a tenant is required to pay. The difference (rent rebate) is rent forgone by Housing ACT.

29. The objects of the HA Act require a balancing between responding to the needs of individuals and providing assistance in a way that maximizes ‘value for money’ so as to reflect available of resources.

30. The term ‘affordable housing’ is used in section 6(1)(a) and is defined:

    Affordable housing means housing that is affordable by people on low or moderate incomes.

    It is a general concept. The operation of the rent rebate subsidy is clearly aimed at addressing the objectives in section 6(1)(a) of the HA Act. The ‘formula’ in Clause 25(2) of the HA Program operates to ‘cap’ the rent amount payable by eligible tenants.

31. It is consistent with the objectives and purpose of the HA Act and HA Program that in assessing a tenant’s income when determining their eligibility for rent rebate pursuant to Clause 25(2)(a) and when applying Clause 11 of the HA Program, that the Respondent (and the Tribunal) take into account the income that the applicant does or could receive.

32. The Tribunal must balance the objectives of the public rental housing program, the rent rebate subsidy scheme and take into account the limited resources available to meet these objectives in the face of burgeoning demand for social housing. The Tribunal adopts the approach stated in the decision of the former ACT Administrative Appeals Tribunal in McGowan, Andrew and Karen and Commissioner for Housing [2000] ACTAAT13 at paragraph 9 (and referred to in the Respondent’s Statement of Facts and Contentions at paragraph 9 on page 3):

    If public housing funds are devoted to people who have capacity to support themselves but choose not to do, then there is less money available to assist those who are unable to assist themselves.

33. There was no dispute that the Chinese pension and Australian bank interest payments made to the Applicants should be included as ‘income’ for the purpose of calculating the Applicants’ ‘basic rent’. The evidence of the Applicants and Wei Zhang was that the Applicants use this ‘income’ to purchase some food and other items, a Chinese newspaper and medications. However, the Applicants and Wei Zhang gave evidence that the Applicants rely on their family, and Wei Zhang in particular, to pay regular living expenses such as rent, food and electricity.

34. The Applicants assert that they are not experiencing financial hardship. However, they have consistently asserted that they cannot afford to pay more than the current level of rebated rent. In other words, they are not suffering financial hardship because of the current level of rent rebate that they receive. The Applicants say that if the level of the rent rebate were to decrease, then they would not be able to pay their rent and would then experience financial hardship.

35. However, the evidence before the Tribunal is that it is not the Applicants who pay their current rent. In fact, it is Wei Zhang, or other members the Applicants’ family, who currently attend to payments for rent.

36. There was no evidence from the Applicants that they had made any attempt to enquire about their eligibility for Centrelink payments nor in support of their assertion that they are not eligible for Centrelink payments until 2017. The Tribunal accepts that based on the information provided by the Respondent, the Applicants may be eligible for payment of Centrelink payments. 

37. The Tribunal indicated at the end of the hearing on 29 May 2015 that, based on the consideration of the matter to that point, the Tribunal was inclined to consider that the Applicants’ income would include the Chinese pension, the Australian bank interest and an amount to reflect the regular payments made by Wei Zhang and other members of the Applicants’ family to, or for the benefit of, the Applicants. Although the Tribunal indicated that it may accept that this latter amount, ‘the payment by Wei Zhang and family’, to be the limited to the ‘estimate’ of $45 to $50 per week provided at the hearing by Wei Zhang, for the reasons set out above the Tribunal does not consider the inclusion of this ‘estimate’ would correctly reflect the Applicants’ income.

38. The Applicants’ assert that it was not open to the Respondent to ‘vary’ within the period that the rent rebate was approved, being the 12 months subsequent to 2 March 2014, to vary the rebate amount. However the discretion to provide a rent rebate pursuant to clause 25(1) is dependent on an applicant’s eligibility following the calculation in clause 25(2).[3] There are some limits imposed by clauses 25(3) and (4) which are not relevant here.

    [3] There are some limits imposed by clauses 25(3) and (4) which are not relevant here

1. The Tribunal accepts that the validity of the Instruction is not a matter for consideration by the Tribunal. However in the Tribunal’s opinion, although the Instruction did reflect a change in the Respondent’s policy, it did not involve any change to the proper interpretation of the HA Act or HA Program. Rather, the Respondent had adopted a policy approach until 12 June 2014 that limited calculation of the Applicants’ income for the purposes of calculating rent rebate pursuant to clause 25(2) of the HA Program to the amount of their Chinese pension plus Australian bank interest. This was an approach that had operated to the benefit of these Applicants to that date. The Tribunal accepts that the Instruction first became operative on 13 June 2014. It is reasonable for the Respondent, and the Tribunal, to restrict the operation of the policy change that the Instruction reflected to the period subsequent to 12 June 2014.

2. The letter dated 12 August 2014 (T-Documents 74) sets out the ‘reviewable decision’. The Tribunal accepts that the wording in the letter was unclear. The letter suggests that the Applicants’ request for review was limited to the period 2 March 2014 to 30 May 2014. The letter suggests that the Applicants’ request for review was ‘upheld’ although it was, in part, denied. The HATRP Report (T- Documents 75-82), which was enclosed with the 12 August 2014 letter, recommends that the Applicants’ income from 2 March 2014 to 12 June 2014 be assessed under the Respondent’s policy that applied prior to the change of policy reflected in the Instruction HATRP recommended that from 13 June 2014 the policy reflected in the Instruction should apply. This outcome was first clearly described to the Applicants in the Respondent’s letter of 1 September 2014 (T-Documents 85-86).  The 1 September 2014 letter identifies the amount of rebate to be provided and the amount of rebated rent payable by the Applicants from 13 June 2015.

3. As noted above, neither the 12 August 2014 letter (T-Documents 74) nor the further information provided by the Respondent to the Applicants when Wei Zhang made further enquiries following the 1 September 2014 letter (T Documents 85-86 and emails T-Documents 93-94) make clear that the Applicants’ were entitled to make an application to ACAT in relation to the reviewable decision (T-Documents 74). Whilst the Tribunal notes these matters, in the Tribunal’s view they do not impact on the question to be determined.

4. For the reasons set out above, pursuant to section 68 of the ACAT Act, the reviewable decision is confirmed.

   ………………………………..

   Ms W. Corby

   Senior Member

SCHEDULE OF LEGISLATIVE PROVISIONS

ACT Civil and Administrative Tribunal Act 2008

67AReviewable decision notice

(1)A person who makes a reviewable decision must take reasonable steps to give written notice (a reviewable decision notice) of the decision to any person whose interests are affected by the decision.

(2)Subsection (1) does not apply to a decision not to impose a liability, penalty or limitation on a person if the decision does not adversely affect the interests of another person.

(3)A regulation may prescribe—

(a)the time within which a reviewable decision notice must be given; and

(b)what a notice must or may contain; and

(c)any document or thing that must accompany a notice; and

(d)anything else in relation to a notice.

(4)A failure to comply with this section in relation to a reviewable decision does not affect the validity of the decision.

(5)In this section:

reviewable decision means a decision that, under an authorising law, is reviewable by the tribunal.

1. Review of decisions

   (1)This section applies if the tribunal reviews a decision by an entity.

   (2)The tribunal may exercise any function given by an Act to the entity for making the decision.

   NoteA reference to an Act includes a reference to the statutory instruments made or in force under the Act, including regulations (see Legislation Act, s 104).

   (3)The tribunal must, by order—

   (a)confirm the decision; or

   (b)vary the decision; or

   (c)set aside the decision and—

   (i)make a substitute decision; or

   (ii)remit the matter that is the subject of the decision for reconsideration by the decision-maker in accordance with any direction or recommendation of the tribunal.

   Housing Assistance Act 2007

2. Objects of Act

   (1)The main objects of this Act are—

   (a)to maximise the opportunities for everyone in the ACT to have access to housing that is affordable, secure and appropriate to their needs; and

   (b)to facilitate the provision of housing assistance for those most in need; and

   (c)to maximise value for money in the provision of housing assistance; and

   (d)to promote a choice of forms of housing assistance, and providers of housing assistance, for entities eligible for housing assistance; and

   NoteEntity includes a person—see the Legislation Act, dict, pt 1.

   (e)to facilitate the provision of rental housing that—

   (i)has adequate amenity, is of an adequate size and is appropriately located for employment opportunities and necessary services and facilities; and

   (ii)is coordinated with any support services (provided under other laws) required by consumers of housing assistance to live in the community; and

   (f)to facilitate the provision of an adequate supply of affordable home finance for people on low and moderate incomes; and

   (g)to promote the development of flexible and innovative financial arrangements to facilitate access to home ownership for people on low and moderate incomes; and

   (h)to promote the growth of a community housing sector as a viable alternative to public and private rental housing and home ownership; and

   (i)to promote the establishment of appropriate mechanisms and forums to allow input into housing policy by consumers, and potential consumers, of housing assistance and by representative non-government agencies involved in housing policy and provision.

   (2)A person administering this Act must have regard to the objects of the Act to the maximum extent practicable considering the resources available to the person.

1. Approved housing assistance programs

   (1)The Minister may approve a housing assistance program.

   (2)An approved housing assistance program is a disallowable instrument.

1. Approved housing assistance programs—market rent

   (1)If housing is being rented to an entity under an approved housing assistance program, the entity must be charged market rent for the housing.

   (2)However, an approved housing assistance program may provide for a rebate of rent in accordance with the program.

   (3)In this section:

   market rent, for housing, means the rent that would be charged by the lessor for the housing if the housing were rented by a willing lessor to a willing tenant—

   (a)dealing with each other at arm’s length; and

   (b)each of whom had acted knowledgeably, sensibly and without compulsion.

Human Rights Act 2004

1. Human rights may be limited

   (1)Human rights may be subject only to reasonable limits set by laws that can be demonstrably justified in a free and democratic society.

   (2)In deciding whether a limit is reasonable, all relevant factors must be considered, including the following:

   (a)the nature of the right affected;

   (b)the importance of the purpose of the limitation;

   (c)the nature and extent of the limitation;

   (d)the relationship between the limitation and its purpose;

   (e)any less restrictive means reasonably available to achieve the purpose the limitation seeks to achieve.

2. Interpretation of laws and human rights

   So far as it is possible to do so consistently with its purpose, a Territory law must be interpreted in a way that is compatible with human rights.

40AMeaning of function of a public nature

(1)In deciding whether a function of an entity is a function of a public nature, the following matters may be considered:

(a)whether the function is conferred on the entity under a territory law;

(b)whether the function is connected to or generally identified with functions of government;

(c)whether the function is of a regulatory nature;

(d)whether the entity is publicly funded to perform the function;

(e)whether the entity performing the function is a company (within the meaning of the Corporations Act) the majority of the shares in which are held by or for the Territory.

(2)Subsection (1) does not limit the matters that may be considered in deciding whether a function is of a public nature.

(3)Without limiting subsection (1) or (2), the following functions are taken to be of a public nature:

(a)the operation of detention places and correctional centres;

(b)the provision of any of the following services:

(i)gas, electricity and water supply;

(ii)emergency services;

(iii)public health services;

(iv)public education;

(v)public transport;

(vi)public housing.

40BPublic authorities must act consistently with human rights

(1)It is unlawful for a public authority—

(a)to act in a way that is incompatible with a human right; or

(b)in making a decision, to fail to give proper consideration to a relevant human right.

(2)Subsection (1) does not apply if the act is done or decision made under a law in force in the Territory and—

(a)the law expressly requires the act to be done or decision made in a particular way and that way is inconsistent with a human right; or

(b)the law cannot be interpreted in a way that is consistent with a human right.

NoteA law in force in the Territory includes a Territory law and a Commonwealth law.

(3)In this section:

human rights do not include the economic, social and cultural rights in part 3A.

public authority includes an entity for whom a declaration is in force under section 40D.

Social Security Act 1991 (Cth)

729  Qualification for special benefit

(1)  A person is qualified for a special benefit for a period if the Secretary determines, in accordance with subsection (2), that a special benefit should be granted to the person for the period.

Note:          Special benefit is a discretionary benefit and is available only to a person who is not able to get any other income support payment (see paragraphs (2)(a) and (b) below).

(2)  The Secretary may, in his or her discretion, determine that a special benefit should be granted to a person for a period if:

(a)  no social security pension is payable to the person during the period; and

(b)  no other social security benefit is payable to the person for the period; and

(bb)  the person is not disqualified for a benefit PP (partnered) for the period solely because of the operation of section 500C (unemployment due to industrial action); and

(bc)  the person is not disqualified from parenting payment for the period solely because of a failure to meet the requirement of paragraph 500(1)(c) or (1)(ca) (participation requirements); and

(bd)  if the person is qualified for parenting payment but the payment is not payable to the person for the period—that result is not produced because of the operation of subsection 42P(1) (serious failures) or 42S(1) (unemployment non‑payment periods) of the Administration Act; and

(c)  the person is not disqualified for a newstart allowance for the period because of the operation of section 596; and

(d)  if the person is qualified for a newstart allowance but the allowance is not payable to the person for the period—that result is not produced because of the operation of one or more of the following:

(i)  subsection 42P(1) of the Administration Act (serious failures);

(ii)  subsection 42S(1) of the Administration Act (unemployment non‑payment periods);

(iii)  section 631 of this Act (person failing to comply with notification requirement);

(iv)  section 633 of this Act (seasonal workers);

(v)  section 634 of this Act (move to area of lower employment prospects); and

(da)  the person is not disqualified for a youth allowance for the period because of the operation of:

(i)  section 541A (failure to satisfy the activity test); or

(ii)  section 544 (requirements relating to Youth Allowance Employment Pathway Plans); and

(db)  the person is not disqualified for an austudy payment for the period because the person fails to satisfy the activity test within the meaning of section 569; and

(dc)  youth allowance is not payable to the person for the period and that result is not because of the operation of:

(i)  section 550B (youth allowance participation failure); or

(ia)  section 551 (repeated failure); or

(ii)  section 553B (move to an area of lower employment prospects); or

(iii)  subsection 42P(1) (serious failures) or 42S(1) (unemployment non‑payment periods) or section 81 of the Administration Act; and

(dd)  austudy payment is not payable to the person for the period and that result is not because of the operation of:

(i)  section 576A (austudy participation failure); or

(ia)  section 577 (repeated failure); or

(ii)  section 81 of the Administration Act; and

(e)  the Secretary is satisfied that the person is unable to earn a sufficient livelihood for the person and the person’s dependants (if any) because of age, physical or mental disability or domestic circumstances or for any other reason; and

(f)  the person:

(i)  is an Australian resident; or

(v)  is the holder of a visa that is in a class of visas determined by the Minister for the purposes of this subparagraph; and

(g)  if the person is:

(i)  the holder of a visa included in a class of visas that is issued for temporary protection, humanitarian, or safe haven purposes and that is determined by the Minister to be a class of visas to which this subparagraph applies; and

(ii)  a person to whom subsection (2A) applies;

the person meets the additional criteria set out in paragraph (2B); and

(h)  an assurance of support does not apply to the person at any time during the period (see subsection (2C)).

Note:          ForAustralian resident see subsection 7(2).

(2A)  For the purposes of paragraph (2)(g), the holder of a visa included in a class of visas that is issued for temporary protection, humanitarian, or safe haven purposes and that is determined by the Minister to be a class of visas to which subparagraph (2)(g)(i) applies is a person to whom that first‑mentioned paragraph applies only if:

(a)  the person would not qualify for disability support pension under section 94 or 95 if the person were an Australian resident; and

(b)  the person has attained the minimum age for youth allowance as determined in accordance with subsection 543A(1) but has not attained pension age; and

(c)  the person:

(i)  claims, or has claimed, special benefit on or after 1 January 2003 that is not continuous with any previous grant of special benefit; or

(ii)  if the person had not attained the minimum age for youth allowance as defined by subsection 543A(1) before 1 January 2003—is receiving special benefit granted before, or continuous with special benefit granted before, that date.

(2B)  A person referred to in paragraph (2)(g) is qualified for special benefit in respect of a period only if, in addition to meeting any relevant requirement in paragraphs (2)(a) to (f):

(a)  throughout the period, and for each period within the period, the person either:

(i)  satisfies the activity test set out in section 731A; or

(ii)  is not required to satisfy the activity test; and

(b)  at all times (if any) during the period when a Special Benefit Employment Pathway Plan is not in force in relation to the person, the person is prepared to enter into such a plan; and

(c)  at all times during the period when a Special Benefit Employment Pathway Plan is in force in relation to the person, the person is prepared to enter into another such plan instead of the existing plan; and

(d)  if the person is required by the Secretary to enter into a Special Benefit Employment Pathway Plan in relation to the period or a part of the period, the person enters into that plan; and

(e)  while a Special Benefit Employment Pathway Plan is in force in relation to the person, the person satisfies the Secretary that the person is complying with the requirements in the plan.

(2C)  For the purposes of paragraph (2)(h), an assurance of support applies to a person at a particular time if:

(a)  an assurance of support is in force in respect of the person (the assuree) at that time; and

(b)  the person who gave the assurance was willing and able to provide an adequate level of support to the assuree; and

(c)  it was reasonable for the assuree to accept that support.

Note:          Forassurance of support see subsection 23(1).

(2D)  For the avoidance of doubt, if, at any time during the period for which special benefit is granted to a person, the person’s circumstances change such that, if the person were to be making a claim for special benefit on the basis of the changed circumstances, the person would not be qualified for special benefit, special benefit ceases to be payable.

(3)  The Secretary is not to determine that a special benefit should be granted to a person for a period if the Secretary is satisfied that the benefit is not payable to the person for that period.

(4)  For the purposes of paragraph (2)(d), a newstart allowance is to be taken to be not payable to a person for a period because of the operation of a provision if:

(a)  the person has claimed the allowance for the period and the allowance is not payable to the person because of the operation of the provision; or

(b)  were the person to claim the allowance for the period the allowance would not be payable to the person because of the operation of the provision.

(4A)  For the purposes of paragraph (2)(dc) a youth allowance is taken to be not payable to a person for a period because of the operation of a provision if:

(a)  the person has claimed the allowance for the period and the allowance is not payable to the person because of the operation of the provision; or

(b)  were the person to claim the allowance for the period the allowance would not be payable to the person because of the operation of the provision.

(4B)  For the purposes of paragraph (2)(dd), an austudy payment is taken not to be payable to a person for a period because of the operation of a provision if:

(a)  the person has claimed the payment for the period and the payment is not payable to the person because of the operation of the provision; or

(b)  were the person to claim the payment for the period, the payment would not be payable to the person because of the operation of the provision.

(6)  If:

(a)  a person was receiving a social security pension, a service pension or income support supplement; and

(b)  the person claims a special benefit within 14 days of the day on which the last instalment of the person’s pension was paid; and

(c)  the person becomes qualified for a special benefit at some time during the 14 day period but after the first day of that period;

the person is taken to be qualified for a special benefit for the whole of the 14 day period.

Note:          Subsection (6) operates when a person transfers from a pension to a special benefit and the person is not qualified for a special benefit immediately after the day on which the person’s last instalment of pension is paid. The subsection deems the person to be so qualified. As a result, the person may be paid a special benefit for the period beginning on the day after the day on which the person’s last instalment of pension was paid. The subsection aims to ensure that there is minimal disruption to a person’s payments when a person transfers from a pension to a special benefit.

HEARING DETAILS

FILE NUMBER:

AT 95 of 2014

PARTIES, APPLICANT:

Dong Quan Zhang &

Yuhua Guo

PARTIES, RESPONDENT:

Commissioner for Social Housing in the ACT

APPEARING FOR APPLICANT

Wei Zhang

SOLICITORS FOR RESPONDENT

Ms N. Tarbet, ACT Government Solicitors Office

TRIBUNAL MEMBERS:

Ms W. Corby

DATES OF HEARING:

1 and 29 May 2015