Decision: The Tribunal affirms the decision of Centrelink made on 15 March 2024 to refuse the applicant's claim for rent assistance.

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 201(1A) - 201(1B) of the Social Security (Administration) Act 1999

SOCIAL SECURITY - rent assistance - objection to documents obtained under section 192 of the Social Security (Administration) Act - principal home - decision under review affirmed

A New Tax System (Family Assistance) Act 1999 (Family Assistance Act) (Cth)

Administrative Review Tribunal Act 2024 (Cth)

Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)

Privacy Act 1988 (Cth)

Social Security Act 1991

Social Security (Administration) Act 1999

Hafaz v Director-General, Social Security [1985] FCA 164 27

1. This is an application for second review of a decision made by Services Australia - Centrelink (Centrelink).
2. By way of background, the applicant lodged a claim for family tax benefit on 3 February 2023. In that claim she listed an address at Revesby (social housing property) as her home and noted that she lived in public housing and paid $100.00 per week in rent. On 15 March 2024 the applicant requested that she be paid rent assistance. She provided Centrelink with an updated address at Hammondville (private rental) and a residential tenancy agreement for the private rental property. On 15 March 2024 Centrelink refused to pay the applicant rent assistance because she was paying Government rent for her principal home being the social housing property. The applicant is seeking review of the decision made on 15 March 2024 that she was not eligible to be paid rent assistance.
3. From 14 October 2024, the Administrative Appeals Tribunal became the Administrative Review Tribunal and under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth), applications for review to the Administrative Appeals Tribunal that were not finalised before 14 October 2024 are taken to be an application for review to the Administrative Review Tribunal.
4. Pursuant to s 131D of the Administrative Review Tribunal Act 2024 (Cth), a person whose interests are affected by an ART social services decision may apply to the Tribunal for second review of the decision. An ART social services decision includes an eligible social services decision which has been affirmed by the Tribunal; s 131D(3)(a). An eligible social services decision includes a decision made under the Social Security Act 1991; s 131C(g). Section 131J of the Administrative Review Tribunal Act, provides that an application for second review must be made within the time prescribed under s 18 of the Administrative Review Tribunal Act. Relevantly, s 18 provides that a second review application must be made within 28 days of the party receiving the decision.
5. The decision made by the Tribunal on first review on 21 May 2024 is an eligible social services decision and the applicant's interest are affected by the decision. The second review application was made on 21 June 2024. In that application the applicant states (and the Tribunal accepts) that the applicant received the decision on 28 May 2024. On that basis, the second review application has been made within time.
6. The parties appeared at the hearing in person. The respondent appeared through a representative who is legally qualified. The respondent provided a joint tender bundle of the evidence. The joint tender bundle was provided in 4 parts and included the applicant's material, the respondent's material, the documents which had been produced by Centrelink at first review and further documents which had been produced by the respondent under s 25 of the Administrative Review Tribunal Act 2024. The joint tender bundle was collated and made up 970 pages.
7. Prior to providing the joint tender bundle the respondent sought the views of the applicant as to whether everything she relied on was included in the joint tender bundle. The applicant raised objections to the documents which formed part 4 of the bundle and were produced under s 25 of the Administrative Review Tribunal Act. After considering the submissions of both parties at the hearing the Tribunal dismissed the applicant's objection and informed her that reasons for allowing the documents would be provided as part of this substantive decision. Those reasons have been provided below.
8. The Tribunal has considered the documents contained in the joint tender bundle, the oral evidence of the applicant given at the hearing and the oral submissions made by the parties in coming to its decision.

Applicant's objection to documents obtained under section 192 of the Social Security (Administration) Act

1. As stated above, the applicant raised a preliminary issue regarding documents which the respondent had obtained under section 192 of the Social Security (Administration) Act 1999. They formed part 4 of the joint tender bundle. The applicant submits that the obtaining of that information breached the Privacy Act 1988. After considering the submissions of both parties at the hearing the Tribunal dismissed the applicant's objection and informed her that reasons for allowing consideration of the documents were be provided as part of this substantive decision.
2. Part 5, Division 1 of the Social Security (Administration) Act sets out the legislative framework about information gathering. Section 192 of the Social Security (Administration) Act sets out the general power of the Secretary to obtain information and relevantly provides as follows:

The Secretary may require a person to give information, or produce a document that is in the person's custody or under the person's control, to the Department if the Secretary considers that the information or document may be relevant to one or more of the following: > > (a) the question whether a person who has made a claim for a social security payment is or was qualified for the payment; > > ...

3. Section 196 of the of the Social Security (Administration) Act provides that written notice must be made if a requirement is made to comply with Division. Section 196 relevantly provides:

(1) The notice: > > (a) may be given personally or by post or in any other manner approved by the Secretary; and > > (b) must specify: > > > (i) how the person is to give the information or produce the document to which the requirement relates; and > > > > (ii) the period within which the person is to give the information or produce the document to the Department; and > > > > (iii) the officer (if any) to whom the information is to be given or the document is to be produced; and > > > > (iv) that the notice is given under this section. > > (2) The period specified under subparagraph (2)(b)(ii) must not end earlier than 14 days after the notice is given. > > ...

4. The respondent provided four notices which had been issued to various entities to produce documents under section 192 of the Social Security (Administration) Act. The notices had been produced to:

(i) Quest Realty Group.[1] That notice required documents from the real estate agent for the landlord relating to the applicant's tenancy and occupation of the private rental property including:

(a) all tenancy agreements

(b) all rent payment records

(c) all termination notices

(ii) NSW Department of Communities and Justice - Homes NSW:[2] That notice required documents from the relating to the social housing property at the social housing property including:

(a) all tenancy agreements

(b) all rent payment records

(c) all termination notices

(iii) Westpac Banking Corporation.[3] The information required was:

(a) All transactions for the specified account for the period of 2023 to 2025 (inclusive).

(b) a copy of documents showing all transactions for any other account(s) conducted by [the applicant], whether solely or jointly with another or to which [the applicant] is a signatory, in the period of 2023 to 2025 (inclusive).

(iv) Commonwealth Bank of Australia.[4] The information required was:

(a) documents showing all transactions for [the relevant account] in the period of 2023 to 2025 (inclusive).

(b) documents showing all transactions for [the relevant account] in the period of 2023 to 2025 (inclusive).

(c) a copy of documents showing all transactions for any other account(s) conducted by [the applicant], whether solely or jointly with another or to which [the applicant] is a signatory, in the period of 2023 to 2025 (inclusive).

(v) Australian and New Zealand Banking Group Limited (ANZ Bank).[5] The information required was:

(a) documents showing all transactions for account no. [..] in the period of 2023 to 2025 (inclusive).

(b) documents showing all transactions for any other account(s) conducted by [the applicant], whether solely or jointly with another or to which [the applicant] is a signatory, in the period of 2023 to 2025 (inclusive).

1. The tenancy records are relevant to what was in place in relation to her place of residence and the account details are relevant to what payments were being made toward any rent and information regarding her principal place of residence. The Tribunal was satisfied that each of the requests to produce the information was relevant to the question of whether the applicant is or was qualified for rent assistance, as is set out in s 192(a) of the Social Security (Administration) Act. The Tribunal was also satisfied that written notices were provided as is required by s 196 of the of the Social Security (Administration) Act.
2. The Tribunal has also considered whether the general power contained in s 192 of the Social Security (Administration) Act is limited by the provisions that follow and in particular s 195 relating to obtaining information to verify a claim under s 195. Having considered the application of ss 193, 194 and 195, the Tribunal is not of the view that they limit the general power contained in s 192, but rather they are additional provisions that apply to specific circumstances not covered by s 192. On that basis, the Tribunal is not satisfied that they have any application to the documents sought by the respondent in these proceedings.
3. The applicant did not specify what provisions of the Privacy Act 1988 have been breached and the Tribunal is not aware of any provision in the Privacy Act which would prevent compliance with s 192 of the Social Security (Administration) Act.
4. After the applicant was told of the Tribunal's decision regarding the objection to the documents at the hearing, she indicated that she did not want to proceed and wanted the matter adjourned. Although, the applicant did not make a formal application for me to recuse myself, I did not consider that I should recuse myself on the basis that I had decided to allow the documents for consideration. After making the decision to allow the documents the applicant initially indicated that she did not want to proceed to participate in the proceedings. I informed her that if she refused to participate or answer questions then it may affect the weight I could give to her evidence. The applicant subsequently participated in the hearing and agreed to be cross examined. It should be noted that the applicant did not have the joint bundles of documents with her at the hearing. She was asked at hearing if she needed time to consider the documents and the applicant said she was aware of what had happened in the matter. The various documents she was asked about in cross examination were shown to the applicant.

1. As noted above the applicant had lodged a claim for family tax benefit on 3 February 2023.[6] On 15 March 2024, the applicant made the application for rent assistance. At that point she had only made an application for family tax benefit. On 18 March 2024, the applicant lodged a claim for jobseeker payment, and she noted that she paid $860.00 weekly to a private landlord.[7]
2. The qualification criteria for rent assistance are contained in Chapter 3, Part 3.7, Division 2 of the Social Security Act 1991 for income support payments (including job seeker payments) and Schedule 1, Part 5, Division 2B of the A New Tax System (Family Assistance) Act 1999 (Family Assistance Act) for family assistance payments (including family tax benefit payments).
3. To qualify for rent assistance, s 1070C of the Social Security Act relevantly provides that a person pays or is liable to pay, rent, other than Government rent, in respect of a premises in Australia. Similar provisions are contained at paragraph 38C(1)(e) of the Family Assistance Act.
4. Subsection 13(2) of the Social Security Act defines 'rent' as amounts payable by a person

as a condition of occupancy of premises, occupied by the person as the person's principal home.

5. 'Rent' is defined in the same way under s 3 of the Family Assistance Act.
6. 'Government rent' is defined in subsection 13(1) of the Social Security Act as rent payable to a relevant state or territory housing authority and is considered 'rent'. It has the same meaning under the Family Assistance Act.
7. For the purposes of meeting the requirement for rent under s 13(2) of the Social Security Act it is necessary from the outset to determine the applicant's principal home as at the time she made the claim for rent assistance.
8. The term 'principal home' for rent assistance purposes is not defined in the legislation. However, the term is defined at 4.6.3.30 of the Social Security Guide as the home in which a person lives for the greatest amount of time each year.
9. In Hafaz v Director-General, Social Security [1985] FCA 164 27, while considering the definition of "place of residence", Wilcox J stated at [13]

There is a plethora of decisions, arising in various contexts but predominantly matrimonial causes and revenue cases, relating to the legal concept of residence. As a general concept residence includes two elements: physical presence in a particular place and the intention to treat that place as home; at least for the time being, not necessarily forever. The concept was explained in a taxation case, Koitaki Para Rubber Estates Limited v The Federal Commissioner of Taxation [1941] HCA 13; (1941) 64 C.L.R. 241 at p.249, by Williams J.: > > "The place of residence of an individual is determined, not by the situation of some business or property which he is carrying on or owns, but by reference to where he eats and sleeps and has his settled or usual abode. If he maintains a home or homes he resides in the locality or localities where it or they are situate, but he may also reside where he habitually lives even if this is in hotels or on a yacht or some other abode." > > Physical presence and intention will co-incide for most of the time. But few people are always at home. Once a person has established a home in a particular place -- even involuntarily : see Commissioners of Inland Revenue v. Lysaght (1928) AC 234 a p 248 and Keil v Keil (1947) VR 383 -- a person does not necessarily cease to be resident there because he or she is physically absent. The test is whether the person has retained a continuity of association with the place -- Levene v. Inland Revenue Commissioners [1928] UKHL 1; (1928) AC 217 at p 225 and Judd v. Judd (1957) 75 WN (N.S.W.) 147 at p 149 -- together with an intention to return to that place and an attitude that that place remains "home" -- see Norman v Norman (1969) 16 F.L.R. 231 at p.236 It is important to observe firstly, that a person may simultaneously be a resident in more than one place -- see the facts of Lysaght and the reference by Williams J. to "a home or homes" -- and, secondly, that the application of the general concept of residence to any particular case must depend upon the wording, and underlying purposes, of the particular statute in relation to which the question arises. But, where the general concept is applicable, it is obvious that, as residence of a place in which a person is not physically present depends upon an intention to return and to continue to treat that place as "home", a change of intention may be decisive of the question whether residence in a particular place has been maintained.

10. The Court in that case was considering "place of residence" and not "principal home", however the principles are applicable.
11. Having considered the evidence and submissions of the parties the Tribunal finds that the applicant's home at the time of making the application was the social housing property.
12. In cross examination at the hearing the applicant confirmed that she had lived in the social housing property for 14 years. She stated that the house was very small and inadequate for her children and their diverse needs. She stated that when her care arrangements changed, and she had full time care of her children she decided to accommodate for them at the private rental property. She stated her children lived at the private rental property and she was going back and forth between the two properties more than she wanted to. She stated her goal had been to become a homeowner and provide adequate accommodation for her children. The applicant also stated that the Tribunal should take into consideration the fact that she has not been assisted by NSW Housing in relation to the social housing property. She stated she was waiting for the social housing property to be fixed up.
13. The applicant gave evidence that it was her intention to move into the private rental property temporarily. She stated that her children moved into the private rental property at the commencement of the lease and that she would come and go. She stated she did not relinquish the social housing property as she had ideas to build and renovate the property.
14. The applicant has also provided photographs of the children's rooms at the private rental property.
15. The applicant stated at hearing that she often had family gatherings at the social housing property, but that she had not done so in the last year because of issues. At hearing the applicant also agreed that she ran a cleaning company. She stated that most of her workers were migrant workers, and they would often attend at the social housing property because it was close to the station.
16. Having considered the evidence, the Tribunal finds that the applicant's principal home at the time of making rent assistance claim and since was the social housing property. At the time the applicant made her claim for family tax benefit on 3 February 2023, she listed her home address as the address of the social housing property and noted she paid $100.00 per week in rent.[8]
17. At the time when the applicant initially made her application for rent assistance on 15 March 2024, the social housing property was still recorded as her home with Centrelink. Centrelink records note that the applicant contacted Centrelink to make the claim for rent assistance on 15 March 2024. The records note:[9]

Customer contacted PERTH SMART CENTRE on 15 MAR 2024 regarding General Enquiry for Family Tax Benefit. Information was obtained via Phone Call. Document created by LOL551 on 15 MAR 2024. Customer called as she had uploaded lease agreement and wanted to check how long it would take her to be paid rent assistance. SO tried to clarify with customer the details and what she was requesting and stated she will only deal with her case manager Margaret and wanted to know how long the turnaround was for her to get her RA. > > Contacted Margaret (who is an ARO dealing with her appeal regarding care) and she advised she provided advise but cannot assess RA. Explained to customer again that SO could assist her with her RA and tried to clarify the details. Customer had already advised that [the social housing property] was her home but she goes and stays at [the private rental property] sometimes as this is where her children live. SO advised she is unable to be paid RA for a home that is not her principle home even if she does pay the rent at the other home. She then advised that SO was to make [private rental property] and pay her RA on that address. SO tried to clarify that as she is in government housing and receiving subsidised rent on the property (making her ineligible for RA) it is not appropriate to pay her RA on a second address she does not live at. > > ...

18. The Tribunal is of the view that the applicant changed her position as to where she lived for the purposes obtaining rent assistance on the private rental property because she could not receive it on the social housing property as she was paying government rent.
19. That is supported by the fact that after the applicant was told she could not receive rent assistance regarding the social housing property she sought change the records. The applicant subsequently filed a document on 15 March 2025 in which she requested to change her home address from the social housing address to the private rental address. That was after she was told she could not obtain rent assistance government rent.
20. In the claim which the respondent subsequently made on 18 March 2024 she noted that her home address was private rental address and that she had lived there since 2 December 2023. However, her postal address remained recorded as the social housing address.
21. The rental ledger for the private rental property indicates a tenancy start date of 7 September 2022.[10] However, the applicant's payment history on that ledger records that she last paid rent for the property on the 27th of March 2024, and she stated that the property was vacated on the 3rd of April 2024.
22. The evidence demonstrates a consistent use of the social housing property as the applicant's home address both prior to making the application and after making the application. Up until 15 March 2024, when the applicant made the application for rent assistance, she had been consistently recorded the social housing property as her home address. That includes in a medical certificate after she made the claim dated 16 May 2024.[11] The Tribunal accepts that the applicant may have moved between residences at times, but it was always her intention in the way she conducted her affairs that the social housing property was her principal home.
23. While the Tribunal accepts that the applicant's children resided at the private rental property and that she travelled and stayed there sometimes, the Tribunal does not accept that it was her principal home.
24. The Tribunal finds that the applicant's principal home was the social housing property.
25. The residential tenancy agreement in relation to the social housing property is dated 13 March 2010.[12] The agreement is with NSW Land and Housing Corporation. The fixed term was extended until 18 May 2025.[13] In that letter it states that:

FACS Housing acting for the NSW Land & Housing Corporation has reviewed your eligibility to remain in public housing and by this notice is extending your lease for a further fixed term.

26. Also contained in the documents is a rental subsidy application in relation to the social housing.[14] The Tribunal is satisfied that the applicant was paying 'Government rent' on the social housing property. The Government housing statements demonstrate that the applicant had arrangements in place for deductions to be taken from her payments.[15]
27. The applicant could only be paid rent assistance for rent for the occupation of her principal home. However, the applicant pays 'Government rent' to occupy the social housing property and under s1070C of the Social Security Act and on that basis_,_ she did not qualify for rent assistance on either the social housing property. She could not qualify for rent assistance on the private rental property as it was not her principal home.
28. The applicant also submitted that she believed that the Centrelink decision to reject her rent assistance claim was made too quickly and that the decision maker breached obligations contained in the Public Service Act 1999. She states that the decision maker did not do his due diligence and take care. The applicant submits that the Tribunal should have regard to the broader aims and intentions of Australia's social security system in considering her eligibility for rent assistance and her circumstances. The legislation does not provide for such am approach. That matter raised by the applicant fall outside of the legislative and policy framework for considering eligibility for rent assistance, including any purported breach of the Public Service Act.
29. The applicant also raised complaints about the state of repair of the social housing property, however those matters are not relevant to the consideration for whether the applicant is entitled to rent assistance.

1. The Tribunal finds that for the relevant period of the claim the applicant's principal home was the social housing property and that the applicant paid Government rent for the occupation of the social housing property. Even though the applicant paid private rent for the private rental property, that was not her principal home, and she did not qualify for rent assistance on that property. Her claim for rent assistance was properly rejected.

The Tribunal affirms the decision of Centrelink made on 15 March 2024 to refuse the applicant's claim for rent assistance.