Editors --- "Rent assistance: ineligible homeowner due to interest in principal home" [2006] SocSecRpr 50; (2006) 8(4) Social Security Reporter, Article 7

• VINES and SECRETARY TO THE DEWR
• Background
• Discussion
• Formal decision

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Rent assistance: ineligible homeowner due to interest in principal home

VINES and SECRETARY TO THE DEWR

Decided: 26th October 2006 by R.G. Kenny

Background

Vines received newstart allowance at various times from 1997 to 2004. He also received rent assistance at various times while he was living in a home which he partly owned.

Vines purchased the home at Thomas Road with his partner as tenants in common. He did so partly to provide some financial security for his two children and he had provided that address to Centrelink as his formal contact address and maintained it for that purpose from 3 February 1997 until 19 April 1999 when he moved to Sydney. From 1997 to 1999 he spent some time with his parents who lived nearby and at other times at the home in question. He remained in Sydney until July 2000 when he moved back to the Gympie area. From 23 October 2001 until 8 October 2004, he again provided the Thomas Road home as his formal Centrelink contact address and, during that time, he lived mainly with his parents but would stay from time to time at Thomas Road before returning to live in Sydney. When he was living in Sydney, Vines shared premises with a variety of people and became heavily involved in taking various forms of drugs. In his evidence, he said that he did not have specific recall of what he was doing or where he was living in that period because of the effect of the drugs.

On 12 July 2005, a Centrelink officer determined that he had been overpaid rent assistance totalling $3,333.07 and that this was a debt due to the Commonwealth. Both the ARO and the SSAT affirmed this decision.

Vines lodged an appeal to the AAT and prior to the hearing Centrelink varied the decision by reducing the amount of the debt to $2,211.44. Accordingly, the decision under review was the decision of the SSAT as varied by Centrelink in accordance with ss.180(1) of the Social Security (Administration) Act 1991 (the Act).

It was not disputed by Vines that he was paid rent assistance for the period under review, or that he was at all times, a co-owner of a house. Vines disputed the decision that he was overpaid because he was not always living in that house, because he was not aware of the amounts of the payments he received and because he had not made the applications for rent assistance. He considered that the debts should be waived in order to provide him with a fresh start after several years of excessive drug use.

Discussion

The AAT considered s. 1070C of the Act, which contains the common requirements for qualification for rent assistance.

Centrelink argued that Vines was an ineligible homeowner and did not meet those requirements because according to ss.11(4) of the Act he had a right or interest in his principal home which gave him reasonable security of tenure in the home. In the periods from 3 February 1997 until 19 April 1999 and from 23 October 2001 until 8 October 2004, Vines declared the Thomas Road address to be his principal home for social security purposes.

Vines contended that he stayed there from time to time and also used it as his residential address for his driver’s licence and for conducting his business as a tow truck operator.

The Tribunal considered the term principal home which is not defined in the Act but noted that some aspects of the term are described in ss.11(5) to (7). The Tribunal considered Samek and Secretary, Department of Social Security (1988) 16 ALD 295 at 296; (1988) 9 AAR 355 which considered the question of a person having more than one residence which constitutes a home. The Tribunal also considered Secretary, Department of Family and Community Services and Gledich (2005) 87 ALD 503; (2005) AATA 598 which discussed the status of a principal home even though the person was not there from time to time. The Tribunal concluded that during the relevant periods Vines’ principal home was at the Thomas Road address.

The Tribunal also considered that some of the periods when Vines was not living at Thomas Road (from 19 April 1999 to 22 October 2001 and after 8 October 2004) and that address was not provided to Centrelink as his formal contact address, fell within the ambit of ss.11(7)(a) of the Act:

11(7) A residence of a person is to be taken to continue to be the person’s principal home during:

(a) any period (not exceeding 12 months) during which the person is temporarily absent from the residence;...

Centrelink submitted that this provision was applicable to Mr Vines and that, therefore, Thomas Road continued to be his principal home for 12 months after he moved to Sydney on 19 April 1999 and for 12 months after he moved to Sydney on 18 October 2004. In those 12 month periods, Vines was not living at Thomas Road and there was some uncertainty in his mind as to whether he would return to reside there. The Tribunal considered that a home may still be regarded as a person’s principal home under ss.11(7)(a) of the Act in that situation as discussed in McDonald and Secretary, Department of Family and Community Services (2004) 86 ALD 704; [2004] AATA 1354. The Tribunal was satisfied that Vines’ principal home was at the Thomas Road address from 3 February 1997 until 19 April 2000 and from 23 October 2001 until 8 October 2005 and that he was a homeowner during those periods.

The Tribunal also considered the term ineligible homeowner as defined in ss.13(1) of the Act:

ineligible homeowner’ means a homeowner other than:

(a) a person who is a homeowner by virtue of paragraph 11(4)(c) (proceeds of sale of principal home disregarded for 12 months); or

(b) a person who:

(i) is absent from the person’s principal home, in relation to which the person is a homeowner; and

(ii) is personally providing a substantial level of care in another private residence for another person who needs, or in the Secretary’s opinion is likely to need, that level of care in a private residence for at least 14 consecutive days; and

(iii)has been absent from the principal home for less than 2 years while providing care as described in subparagraph (ii); or

(c) a person who is in a care situation but is not residing in a retirement village; or

(d) a person who pays amounts for the use of a site for a caravan or other vehicle, or a structure, that is the person’s principal home; or

(e) a person who pays amounts for the right to moor a vessel that is the person’s principal home;

As Vines’ circumstances did not fall within any of the exemptions in that provision the Tribunal was satisfied that he was an ineligible homeowner in the periods in question and therefore that according to ss.1070C(b) of the Act, Vines was not eligible for rent assistance during those periods. The Tribunal was satisfied that the debt as varied by Centrelink of $2,221.44 was a debt under ss.1223(1) of the Act to the Commonwealth as Vines was not qualified to receive those payments.

The Tribunal considered the write off and waiver provisions contained in s.1236 and s.1237 of the Act and concluded that write off was not appropriate as fortnightly deductions were being made out of Vines’ social security payments. The Tribunal also concluded that the debt did not arise out of sole administrative error on the part of Centrelink and was also not satisfied that the payments were received in good faith. This view was based on Vines’ evidence that he was aware that the payments were made into his account and there were also a series of application forms for rent assistance on file. Vines’ evidence was that he had not completed the documents or signed them and said his partner had done so without his knowledge. In the documents, it was falsely stated that Vines did not own a home. The Tribunal was not satisfied that Vines was unaware of the content of those application forms and that even if he did not complete the documents himself, he was aware of their contents. Evidence also included a rent receipt purporting that Vines was paying rent to someone at the Thomas Road address. At the hearing, Vines conceded that this was a false document.

The Tribunal considered that waiver of a debt in special circumstances under s.1237AAD of the Act required that the debt did not result wholly or partly from a debtor or another person knowingly making a false statement or false representation. The Tribunal was satisfied that, at all material times, a person, either Vines or his partner, falsely declared that Vines was not a homeowner and also falsified rent receipts so as to show that rent was being paid by Vines for accommodation at Thomas Road.

Formal decision

The Tribunal affirmed the decision under review.

[S.P.]