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[2010] ACAT 53
respondent. 1. The respondent is entitled to charge the rent under the Agreement dated 31 July 2006; 2. The Commonwealth Rent Assistance clause in the Agreement is valid and such assistance may legally form...
The ACT Tribunal found that a community housing provider (Havelock) validly charged rent under a written tenancy agreement that included a clause allowing Commonwealth Rent Assistance to be applied to rent. The Tribunal held that CRA can legally form part of rent under such an agreement and that CRA should not be treated as the tenant's income for the purpose of assessing how much rent she must pay. The Tribunal therefore upheld the respondent's entitlement to the rent charged.
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1,891 words · generated 27/07/2026
This case concerned a dispute between a community housing tenant, Ms Leonie Peisley (the applicant), and her housing provider, Havelock Housing Association Incorporated (the respondent). The parties had a written tenancy agreement dated 31 July 2006. Under that Agreement Havelock applied the tenant's Commonwealth Rent Assistance (CRA) towards the rent and also charged the tenant 25% of her income. The tenant disputed the validity of the clause in the Agreement that required (or permitted) CRA to be applied to rent and argued CRA should be treated as part of her income for the purpose of determining rent payable. The applicant relied on provisions of the Social Security Act 1991 (Cth), including ss 13(8D), 1070B and 1070C, and also referenced s 15 of the Residential Tenancies Act 1997 (as amended), which restricts the consideration a lessor may require or accept to 'rent or bond'.
4 cited instruments linked from this judgment.
The dispute was heard in the ACT Civil & Administrative Tribunal (ACAT). The Tribunal (Mr W G Stefaniak, Presidential Member) concluded that: (1) the respondent was entitled to charge the rent in the Agreement, (2) the CRA clause in the Agreement was valid and CRA could legally form part of the rent charged, and (3) the CRA received by the tenant was not part of her income for the purpose of assessing the rent payable to the respondent. Those orders are recorded in the Tribunal's formal disposition (Orders 1–3).
Hearing dates and procedural notes are recorded: the matter was heard across several dates and the substantive decision was delivered 30 July 2010, with written reasons provided 12 August 2010.
The Tribunal's reasoning rests on three interlocking points.
Existence and effect of the written Agreement: The Tribunal accepted there was a valid contract between the tenant and the respondent. On the evidence the Havelock Housing Association was the responsible manager of the property and acted pursuant to the Agreement. The parties' contractual allocation of responsibility and rent entitlements therefore governed the legal rights of the parties. The Tribunal therefore concluded Havelock was entitled to charge the rent specified by the Agreement (Order 1).
Statutory provisions did not prohibit CRA being applied to rent: The Tribunal examined the relevant provisions of the Social Security Act and the Residential Tenancies Act that had been relied upon by the applicant. The Tribunal placed weight on the definition in s 13(8D) of the Social Security Act that, for the purposes of the Act, 'rent assistance means an amount paid or payable under this Act to help cover the cost of rent'. The Tribunal found nothing in ss 1070B, 1070C, or s 13 which legally precluded CRA from being applied by community housing providers to rent, or prohibited the parties from contracting for CRA to be applied to rent. In short, CRA's statutory character as an assistance payment to help cover the cost of rent did not prevent a contractual arrangement whereby the assistance was applied directly to rent charged by a community housing provider (reasons at [4]).
Interpretation of s 15 (Residential Tenancies Act): The applicant had argued s 15 precluded anything other than 'rent' or 'bond' being required as consideration, and relied on the statutory text to suggest CRA could not be accepted as rent. The Tribunal disagreed. It read s 15 as broad but not limiting the definition of 'rent' to certain narrow forms: the statutory provision even treats tenant-performed alterations and repairs as a form of consideration amounting to rent (s 15(3) example). From that the Tribunal reasoned that rent is not restricted in its definition; therefore money provided by the Commonwealth to help cover rent may be treated as part of the rent payable where the parties so agree (reasons at [4.3–4.4]). The Tribunal therefore concluded the CRA clause was not contrary to s 15 and was valid (Order 2).
Finally, and arising from the above, the Tribunal addressed whether CRA should be treated as the tenant's 'income' for assessing rent payable. It concluded that CRA was not part of the tenant's income for that purpose. The Tribunal relied on the statutory characterisation in the Social Security Act and the Agreement's terms; there was no legal basis to convert CRA into the tenant's income for rent assessment (Order 3, reasons at [4]).
The Tribunal also made some factual and policy observations: there had been some confusion about ownership/management of the property, but the Tribunal found no significant detriment to the tenant; community housing can be beneficial and functions as an adjunct to public housing (obiter at [3], [4.5–4.6]).
Before this decision, there was some uncertainty in practice about whether community housing providers could contractually require or accept a tenant's Commonwealth Rent Assistance as part of the rent, and how CRA should be treated for rent assessment purposes. Those uncertainties arose because CRA is a social security payment made under Commonwealth law, and there are often detailed rules about the use and treatment of welfare payments. Additionally, statutory provisions like s 15 of the Residential Tenancies Act can be read in various ways about what counts as permissible consideration in a tenancy.
After this decision, at least within the ACAT's jurisdiction and given its reasoning, the Tribunal established that:
The decision therefore affirms the contractual autonomy of community housing providers and tenants to agree that CRA will be applied to rent, subject to any higher-order statutory or regulatory constraints not present in the facts. The Tribunal's reasoning also clarifies that s 15 of the Residential Tenancies Act cannot be read to categorically exclude non-cash or third-party contributions from being treated as rent where the statute itself acknowledges non-monetary acts as rent-like consideration.
Quoted passage 1 (Order): "The Commonwealth Rent Assistance clause in the Agreement is a valid clause and such assistance provided to the applicant by the Commonwealth may legally form part of the rent charged." (Order 2)
Plain-English translation: The Tribunal says plainly that the part of the tenancy contract requiring CRA to be used for rent is legally enforceable; the government payment can be used to pay the tenant's rent under that contract.
Quoted passage 2 (Reasons): "I found that the Commonwealth Rent Assistance was not part of income for the purposes of this case." (Reasons)
Plain-English translation: The Tribunal decided CRA should not be treated as the tenant's personal income when calculating how much rent she must pay under the housing provider's rules.
Quoted passage 3 (Reasons on s 15): "In my view, section 15 is broad and clearly indicates that a lessor can only require a tenant to accept rent or a bond. Rent, however, is not restricted in its definition." (Reasons)
Plain-English translation: The Tribunal recognises the statute limits what a landlord can demand to rent a place to rent or a bond, but the law does not narrowly define what 'rent' must be, rent can include various forms, including payments or assistance that cover rent.
Quoted passage 4 (Obiter): "Community housing serves a very important need for vulnerable people in our community. It is an adjunct to public housing." (Reasons)
Plain-English translation: The Tribunal remarks that community housing plays an important, often complementary, role to public housing, and that contractual arrangements should be viewed in that social-policy context.
This decision is directly relevant where:
In short, any dispute where a provider seeks to receive CRA as rent, and the tenant challenges the contractual or statutory validity of that mechanism, will engage the reasoning in this decision.
The text provided does not contain later appellate treatment or citation history. The Tribunal's decision is a single-instance ACAT ruling. It therefore stands as persuasive authority within the ACT jurisdiction for similarly situated disputes before ACAT or other tribunals, unless and until a higher court (or future ACAT decision) departs from it. Practitioners should check subsequent ACAT, ACT Supreme Court or relevant appellate decisions and any updated legislative or regulatory amendments to Social Security or tenancy law before relying on this decision as precedent.
Several practical and legal questions remain open or are only partially addressed by the Tribunal's reasoning:
Interaction with Social Security Act conditions and administrative rules: The Tribunal relied on the statutory characterisation of CRA as assistance to help cover rent, and found no express bar to CRA being applied to rent. However, the Tribunal did not undertake a detailed analysis of all Social Security Act administrative rules or guidance that might impose constraints on the assignment, receipt, or use of CRA by third parties. Questions remain about whether administrative practice, Centrelink rules, or contractual mechanics might limit the way CRA can be remitted.
Limits on contractual terms and fairness: The Tribunal accepted the Agreement terms as valid, but it did not assess in depth whether such terms could be unconscionable, procured by misinformation, or otherwise subject to consumer-protection or tenancy-fairness doctrines. Different facts (for example, lack of informed consent, deception about management arrangements, or vulnerability exploited) might lead to a different outcome.
How CRA interacts with means-testing and income-based rent bands: The Tribunal concluded CRA is not 'income' for purposes of assessing rent under this Agreement, but there may be complex cases where statutory definitions or subsidy schemes rely on income measures that treat welfare payments differently. Further authoritative rulings would be required to map the precise boundaries between 'income' for rent-assessment rules and 'assistance' under social security.
Applicability outside community housing or across jurisdictions: This decision is an ACAT decision within the ACT. Other jurisdictions may have different statutory drafting in their tenancy legislation or community housing schemes; the decision's reasoning may need adaptation when applied elsewhere.
Scope of s 15 interpretation: The Tribunal read s 15 broadly to allow non-monetary consideration to count as rent. Whether more restrictive readings of s 15 (or differently worded tenancy statutes) would produce a contrary result remains an open question that would be resolved by higher courts or statutory amendment.
Practical takeaway for practitioners: ensure tenancy agreements are express about the treatment of CRA, confirm compliance with Centrelink administrative requirements, document tenant consent and understanding, and be alert to potential consumer-protection or unconscionability issues that could arise in different factual matrices.
LEONIE PEISLEY v HAVELOCK HOUSING ASSOCIATION INCORPORATED (Residential Tenancies) [2010] ACAT 53
Catchwords: RESIDENTIAL TENANCIES - community housing - Commonwealth Rent Assistance - payment of rent by alterations, improvements and repairs
List of legislation: ACT Civil and Administrative Tribunal Act 2008
Housing Assistance Public Rental Housing Assistance
Social Security Act 1991 (Cth), ss.13(8D), 1070B and 1070C.
Tribunal: Mr W G Stefaniak, Presidential Member
CIVIL & ADMINISTRATIVE TRIBUNAL ) RT 236 of 2010
TRIBUNAL: Mr W G Stefaniak, Presidential Member
I did accept that there would be some potential confusion to the tenant and indicated I was mindful of not granting the respondent the $1200 rent owed as a result of the possible confusion and any possible detriment that may have had on the tenant. My reasons are elaborated on in the attached transcript. I doubt if there was any significant detriment to the tenant but it would appear that the tenant should have known who she was dealing with. There could have been some potential detriment as indicated by me in my oral judgment of the 30th of July. Accordingly, I indicated I would not give the $1200 were it sought. It became academic as the respondent, quite properly, did not seek it.
The tenancy agreement she signed clearly indicated that she would have to seek Commonwealth Rent Assistance with a view to help covering the cost of her rent.
Ms Johannessen also mentioned (and I neglected to deal with this in my reasons on the 30th of July that), in her view, the arrangement contravenes section 15 of Residential Tenancies Act 1997 as amended.
Section 15 deals with rent or a bond only. Section 15(1) states "In consideration for giving a tenant a right to occupy premises, a lessor may only require or accept rent or a bond". Another relevant part, in my view, of that section, is subsection (3) which states "For subsection (1), a requirement that a tenant makes alterations, improvements or repairs to the premises is taken to be consideration". The section also deals in subsection (4) with a bond and in subsections (5) and (6), it states that it does not prevent a public housing authority, namely, the Housing Commissioner, from requiring a tenant to pay an outstanding amount owed to the Commissioner in relation to a previous tenancy as consideration for giving the tenant a right to occupy premises providing the ACAT has endorsed the same.
In my view, section 15 is broad and clearly indicates that a lessor can only require a tenant to accept rent or a bond. Rent, however, is not restricted in its definition. I specifically mention subsection (3) above to indicate that rent can include a tenant agreeing to make alterations, improvements or repairs as part of the payment or indeed as a whole payment to be calculated as rent or part of rent, as the case may be. Clearly in my view rent assistance from the Commonwealth is not precluded from the arrangements envisaged in
section 15. I go back to section 13(8D) of the Social Security Act which again states "In this section, rent assistance means an amount paid or payable under this Act to help cover the cost of rent". That is self explanatory. The rent assistance helps to cover the cost of rent just like if the tenant does repairs to the premises or makes some alterations or improvements this can be counted towards the rent paid. Section 15 is broad. I do not believe it assists in
As can be seen from my comments on the 30th of July, Ms Peisley is in no different situation to a person who lives in a government house. She is paying exactly the same amount of rent she would pay if she lived in a government house. She perhaps has the additional benefits of living in community housing in terms of it being a better property for her needs. Indeed, (although not so much in this case) in other community housing situations tenants with like minded needs are often grouped together in community housing which is much more beneficial to the tenants than what they might find in public housing.
Community housing serves a very important need for vulnerable people in our community. It is an adjunct to public housing. It is different. But at the end of the day in terms of Ms Peisley's arrangements she is in no way worse off than she would be in public housing. She effectively pays the same rent she would pay if that property she was in was owned by ACT Housing.
I do not believe there is any further I really need to add. These comments are somewhat more erudite I would hope than my more loquacious comments made on the 30th of July. Hopefully, it will assist in clarifying what I said on that date.
RESPONDENT: HAVELOCK HOUSING ASSOCIATION INCORPORTED
SOLICITORS: APPLICANT: Ms J Johannessen, Welfare Rights & Legal Centre
TRIBUNAL MEMBER/S: Mr W G Stefaniak, Presidential Member
DATE/S OF HEARING: 4 may 2010, PLACE: CANBERRA
DATE OF DECISION: 30 July 2010 PLACE: CANBERRA
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )
LEONIE PEISLEY
HAVELOCK HOUSING ASSOCIATION INCORPORATED
1. The respondent is entitled to charge the rent under the Agreement dated 31 July 2006; 2. The Commonwealth Rent Assistance clause in the Agreement is valid and such assistance may legally form part of the rent; 3. Commonwealth Rent Assistance received by the applicant is not part of her income for the purpose of assessing rent payable to the respondent.