Editors --- "Assets test: principal home is a boat; whether a homeowner" [2013] SocSecRpr 7; (2013) 15(1) Social Security Reporter, Article 7

• HZDW and SECRETARY TO THE DFHCSIA
• Background
• Issues
• Legislation
• Formal decision

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Assets test: principal home is a boat; whether a homeowner

HZDW and SECRETARY TO THE DFHCSIA

(2013/66)

Decided: 13th February 2013 by R. Perton

Background

HZDW had been receiving disability support pension (DSP) before 2000 when portability limitations were introduced. For many years he had lived on a boat in the warm climate outside of Australia. The boat was sometimes moored and sometimes at anchor. He was entitled to on-going DSP because his absence overseas pre-dated the amendments. HZDW owned a house in Melbourne which he rented out. In May 2011, Centrelink valued his house in Melbourne at $300,000 less the $102,000 mortgage; at the same time his status was changed from non-homeowner to homeowner.

The house was revalued in September 2011 to $410,000 less the mortgage. HZDW did not dispute the value attributed to his assets but he did dispute that he was a homeowner for the purposes of the Social Security Act 1991 (Cth) (the Act) because under s.1064 a non-homeowner has a larger allowable asset limit than a homeowner.

Issues

The issue in this case is whether HZDW can be termed a homeowner if his security of tenure is a boat rather than real property.

Legislation

Section 11(1) of the Act sets out relevant definitions for the purposes of the assets test.

asset means property or money (including property outside Australia).

...

ss 11(4) sets out the meaning of the term homeowner:

11(4) For the purposes of this Act:

(a) a person who is not a member of a couple is a homeowner if:

(i) the person has a right or interest in the person’s principal home; and

(ii) the person’s right or interest in the home gives the person reasonable security of tenure in the home;...

Section 11A(10) addresses:

Reasonable security of tenure

(10) If a person has a right or interest in the person’s principal home, the person is to be taken to have a right or interest that gives the person reasonable security of tenure in the home unless the Secretary is satisfied that the right or interest does not give the person reasonable security of tenure in the home.

The AAT also looked at the policy in the Guide to the Social Security Law:

4.6.3.20 Determining Homeowners & Non- Homeowners

Definition of a homeowner

A homeowner is an income support recipient who has, or whose partner...has:

• a right or interest in the place they occupy, AND

• the right or interest gives them reasonable security of tenure.

Examples: An income support recipient is a homeowner if they are living in:

• a home owned or partly owned by themselves or their partner, OR

• a home to which they have legal title, OR

• a home which is owned by a company ... AND the company gives the income support recipient reasonable security of tenure in the home,

• a campervan, caravan, transportable home or boat owned or partly owned by themselves or their partner...

Home

The AAT considered other cases where reasonable security of tenure in premises other than a house had allowed the term homeowner to be applied.

In Wharton and Secretary, DFHCSA (2010) AATA 162 the applicant lived on a boat; in Robert Dickeson and Secretary to the DSS (1989) AATA 190, the applicant lived in a shed. The AAT cited paragraph 27 in Dickeson addressing the concept of ‘home’. The AAT found that a person did not have to live on land to be considered a homeowner.

The AAT decided that HZDW was correctly classified as a homeowner for the purposes of the Act.

Formal decision

The AAT affirmed the decision under review.

[M.R.]