Administrative Appeals Tribunal of Australia|1989-08-16

Re Robert Dickeson and Secretary To the Department of Social Security [1989] AATA 190; 10 AAR 488 (16 August 1989)

And: SECRETARY TO THE DEPARTMENT OF SOCIAL SECURITY

Statutory Interpretation In Australia third edition D.C. Pearce

Geothermal Energy New Zealand Ltd v Commissioner of Inland Revenue (1979) 2 NZLR 324

Samek v Department of Social Security (1979) 9 AAR 355

Todd v Nichol (1957) 1 SASR 72

Hyland v Hyland 18 FLR 461

Inland Revenue Commissioners v Lysaght (1982) AE 575

Koitaki Para Rubber Estates Ltd v Federal Commissioner of Taxation [1941] HCA 13; 64 CLR 241

Helsham v Repatriation Commission (N85/492, Decision No 2741)

Buchanan v Repatriation Commission (V89/50, Decision 14 July 1989)

Someone is accredited with the expression "a man's home is his castle". I wonder whether those responsible for drafting section 4 of the Social Security Act 1947 ("the Act") contemplated whether a disused grain shed constitutes a "principal home".

2. This is an application brought by an 87 year old single man to review a decision of the Department of Social Security to reduce his rate of age pension having regard to the assets test provisions of the Act which, when calculating assets, take account of the value of any right or interest in relation to a "principal home". The Respondent in these proceedings argues that the premises in which the Applicant resides constitute the principal home within the meaning of section 4(1)(a)(i) of the Act.

3. "Principal home" is not defined by the Act nor are the words "principal" or "home". "Principal" was acknowledged by the representatives of the parties to refer to a situation of ownership or occupation of more than one place of residence and that place where one resides most frequently is the "principal home". For the purposes of these reasons, because the Applicant resides in one place of residence only, reference to "principal" is not relevant.

4. By reason of the Respondent finding that the premises in which the Applicant lives constitute a "principal home" the impact upon him has been that his pension has been reduced. He was, prior to 22 May 1985, classified as a non-home owner although he was living in the same premises being the subject of this review.

5. The Applicant lives upon farming land at Donald in the Wimmera Region of Victoria, comprising some 320 acres. He currently resides in a disused grain shed on the property which, for the purposes of this application, is said by the Respondent to be his principal home.

6. Historically the Applicant has lived on this farm all of his life. He initially lived with his parents in the original homestead but it subsequently burnt down. The Applicant and his deceased brother later built another house but that burnt down some 6 or 7 years ago, and the Applicant has since lived in the grain shed. The Applicant lived in the shed initially with his brother until his brother's demise, and he now lives in the shed alone.

7. Photographs tendered at the hearing depict a corrugated galvanised iron construction situate upon hollow steel posts filled with concrete. Attached to the shed is a galvanised iron rain water tank. The only means of access to the shed are by some steps which are constituted by some loose timber boards, situate upon cut down 44 gallon drums. It does not have any heating, or cooling appliances, and is not lined or insulated. It has no washing facilities and no space reserved for cooking. The only means of natural light to the shed are two fixed louvre windows being 9 feet from floor level located at either end of the shed. The shed does not have running water within it, nor does it have a toilet. The only means of obtaining water are by the Applicant leaving the shed and walking to the rain water tank located outside the shed. It was believed by witnesses, who gave evidence at the hearing, that the Applicant's toileting was conducted either somewhere outside or in an adjacent shed. There is one electric light located inside the shed and it is believed that the Applicant has at least one electric cooking utensil where meals can be prepared, but this was unclear from the evidence. The Applicant himself did not give evidence at the hearing. Photographs of the inside of the shed reveal premises which can at best be described as putrid and squalid. A bed is constituted by a filthy mattress without any bed linen at all, and blankets appear to be old hessian bags and a woollen jacket or overcoat. The whole of the floor seems to be littered with debris being empty (or full) food containers, wrappings, bottles and jars.

8. It would appear that the floor of the shed is timber but this is not distinct by the photographs having regard to the presence of food stuffs and waste upon the floor. There are holes in the floor which are deliberately not filled to allow access and egress to some cats, which are believed to be pets of the Applicant.

9. An examination of the outside of the premises from the photographs reveal the presence of loose fitting sheets of iron and it was suggested that this permitted entry of draughts and mice.

10. Some 50 metres from the shed is the remains of the fireplace and stove of one of the two previous homes which had been burnt and destroyed upon this farm and which was used previously by the Applicant to cook meals, but he has subsequently been persuaded by farm neighbours not to use it because of the risk of fire to them.

11. Mr Bell, on behalf of the Applicant, argued that the nature of the legislation, particularly that part which concerned itself with assets tests and the limits upon assets, demonstrated that those persons with the greatest need ought receive benefits prescribed by the Act and that the Act ought to be constructed accordingly.

12. In the absence of any precise definition of "home" or "principal home" within the Act, external aids ought be employed to assist in construction of the meaning of this part of the Act.

13. He relied on section 15AA of the Acts Interpretation Act 1901 and relied on pages from "Statutory Interpretation In Australia" third edition by D.C. Pearce. Section 15AA reads:

Act, a construction that would promote the

purpose or object underlying the Act (whether

that purpose or object is expressly stated in

th Act or not) shall be preferred to a

construction that would not promote that

purpose or object."

14. Mr Bell also relied upon Section 15AB of the Acts Interpretation Act which reads:

"Subject to sub-section (3), in the

interpretation of a provision of an Act, if

any material not forming part of the Act is

capable of assisting in the ascertainment of

the meaning of the provision, consideration

may be given to that material-

(b) to determine the meaning of the

provision when-

(i) the provision is ambiguous or

obscure; or

(ii) the ordinary meaning conveyed by

the text of the provision taking

into account its context in the

Act and the purpose or object

underlying the Act leads to a

result that is manifestly absurd

or is unreasonable."

15. I was invited to have regard to the Second Reading Speech of the Minister representing the Minister for Social Security to the House of Representatives upon the Social Security and Repatriation (Budget Measures and Assets Test) Bill 1984 (where by that speech) refernece was made to the existence of a needs based welfare system which takes account of financial resources of a person and need to have a fair form of assets test. That to regard this shed as a "home", it was put, is not fair to this Applicant.

16. There was evidence in the T documents filed that this farm has had its value eroded in recent years, because of lack of maintenance and decreasing prices of other farms in the district. It was conceded also by the Respondent that it was considered unreasonable to sell the farm or borrow against it. It was deemed by the Respondent that the Applicant was capable of earning income from his share farming which amounted to an average of $65 per week but there was no evidence that he did earn any income from the farm.

17. By reference therefore to the Acts Interpretation Act and the Minister's speech, it was put on behalf of the Applicant that a pension ought to be paid to those persons most in need of it.

18. I was invited also to apply a commonsense approach to the meaning of the word "home" and in the context of this case that word ought not be construed by its ordinary concept of it being a dwelling or a residence and that there is a special need to observe the premises themselves and to those premises attach a sensible interpretation of the word "home".

19. For the purposes of valuation, the shed was given a value of approximately $350.00 and the whole of the curtiledge comprising five acres (inclusive of the shed) was given a value of $17,000.

20. Mr Bell submitted that for the Applicant to be deemed to be a home owner it was in the circumstances unfair and unjust and places an absurd or ridiculous interpretation of the word "home" having regard to the circumstances peculiar to the Applicant. It was further put that it would be unfair and unjust to deem him to be a home owner because to do that, he then qualified for a lesser pension than someone who was not a home owner.

21. I was invited to depart from the common law approach to cases which had determined the use of the words "dwelling" or "home" or "residence" because those cases gave a notion of permanence and/or occupation as being decisive to determine whether a person had a "home".

22. Mr Bell put that in the event that these premises were deemed to be a home within the meaning of the Act there is no difference therefore between this Applicant and a person who lives in a rucksack on the ground or in a bark humpy or in a tent, because although those forms of dwelling might have an element of occupation they could not, within the meaning of the Act, be deemed to be a home. For reasons which follow, I find that what constitutes the elements of a "home" comprise much more than occupation only.

23. Mr Gunst, on behalf of the Respondent, argued that despite the shed being initially constructed for the purposes of grain storage, in the context of the New Zealand case of Geothermal Energy New Zealand Ltd v Commissioner of Inland Revenue (1979) 2 NZLR at 324, reference ought be made to the concept of a home as being something special and having an emotional element to it, and the Applicant should be deemed to be a home owner because what he lives in is what he has made as his home, despite it lacking the usual and commonly accepted indicia of what a home is if observed by its normal physical attributes.

24. It was put that this Applicant does live in a home which is his own home and which is located upon land owned by him. Historically the words "home", "house" and "dwelling" indicate both different origins and different meanings and further that the notion of the word "home" imports an element of permanency where a person usually dwells, sleeps, eats and performs ordinary domestic activities and that "home" is a concept broader simply than four walls and a roof.

25. The Respondent further argued that, despite the Applicant being an eccentric person, he is entitled to dignity and respect and if it is he who chooses these premises to be the place in which he lives permanently, then in those circumstances, those premises should be regarded as being a home for the purposes of the Act. He has lived upon this land all of his life and has resisted attempts made by others to have for him permanent accommodation elsewhere in a home especially catering for persons of his age. A determination of the premises themselves reveal that these premises are the axis of his life around which he revolves and that the structure is significant and permanent and has been there for years.

26. In attempting to reach the "correct and preferable" decision I confess to some difficulty in reaching a conclusion.

27. The words "home", "house", "residence" and "domicile" have all been extensively considered by the Courts, but derive their meaning only by reference to a particular subject whether it be Taxation, Family Law, Tenancy, Customs, Probate, or Social Welfare.

28. In assessing the criteria of what constitutes a "home" a substantial degree of occupation is persuasive (Herbert v Byrne (1964) 1 AE 882) whereas conversely occupation by occasional visiting is not (Beck v Scholz (1953) 1 AE 814), and living away from the family home in other premises causes the family home to no longer be the principal home (Samek v Department of Social Security (1979) 9 AAR 355). A "home" is likely to be a place where persons ordinarily eat, morning and night, and where they sleep, and in the case of adults have the characteristics of permanency (Todd v Nichol (1957) 1 SASR 72). It is a concept in nature and "it is the place where the centre of gravity of one's domestic life is to be found" (Geothermal Energy N.Z. Ltd v Commissioner of Inland Revenue (1979) 2 NZLR 324). Where one chooses to live is relevant (Hyland v Hyland 18 FLR 461 and a reference to a "home" requires an affinity to its location and usage by the occupier (Inland Revenue Commissioners v Lysaght (1928) AE 575 and Koitaki Para Rubber Estates Ltd v Federal Commissioner of Taxation [1941] HCA 13; 64 CLR 241. A home need not be a structure of four walls and a roof, but may be constituted by a caravan (Helsham v Repatriation Commission (N85/492, Decision No 2741) or a campervan (Buchanan v Repatriation Commission, V89/50, decision 14 July 1989) or a yacht (Re Koitaki Para Rubber Estates Ltd ibid).

29. I think that this structure is the home of the Applicant and is therefore his principal home within the meaning of the act. It has all the above elements which I find constitute a "home". The Applicant sleeps nightly at these premises and prepares and consumes most meals at these premises. It is fitted and furnished, however modest, for his needs and comfort. It is the place that he regards as his home.

30. I do not accept that this man lives in the shed by choice, that is, something chosen from a consideration of a number of differing options, and alternative places of accommodation. Indeed I believe that his choices are probably limited. However, in this application there was no evidence from the Applicant on affidavit or otherwise. One might speculate what his intentions are by living in this shed and it may be explained by his attachment to, and affinity with the land. I cannot discern however from the evidence heard or observation of the photographs that this accommodation is in any way temporary.

31. Speculation of the reasons why he is living in this shed might result in a different conclusion, but in the absence of his evidence, and on the evidence heard, and found within the T documents, I am unable to find for him. I am of the opinion that the decision of the Respondent, which found that the premises in which the Applicant resides constitute his principal home for the purposes of the Act, should be affirmed.

Interpretation Act 1901

Social Security Act 1947

Geothermal Energy New Zealand Ltd v Commissioner of Inland Revenue

At a glance

Court

Decision date

Source

Judgment (47 paragraphs)

Re Robert Dickeson and Secretary To the Department of Social Security [1989] AATA 190; 10 AAR 488 (16 August 1989)

Parties

Legislation Cited (2)

Cases Cited (1)