The Applicant and Respondent take opposing positions. The Applicant contends that he is not a homeowner and the Respondent asserts that he is for the purposes of determining his rate of age pension.
In support of its position, the Respondent relies on Guistino Di Primio v Secretary, Department of Social Security[1993] AATA 246 (Di Primio) in which Deputy President Forgie determined that the term 'principal home' is not limited to a dwelling house, flat or unit[4] on the basis that this accords with the ordinary meaning of home[5] and the relevant provision is expressed in inclusionary terms and so does not exclude a caravan, boat or other structure that had been converted into a residence.[6]
The Applicant seeks to distinguish Di Primio by its facts.[7] He states that as he owns no real estate and is required to rent a site at caravan parks his case is distinguished, as the proper reading of section 11A(1) of the Act means that one's principal home must be attached to land.[8]
There is no doubt that the Applicant's circumstances are different to the factual matrix in Di Primio. Nevertheless, subsection 11A(1) of the Act is not an exhaustive list of dwellings that can constitute a principal home; rather it "includes" a dwelling house on land, as well as a flat, home unit. I am satisfied that the correct reading of this provision does not limit a principal home to a structure attached to land as the Applicant contends.
There is extensive case law in what constitutes a person's 'home'. In Dickeson and Secretary, Department of Social Security[1989] AATA 90; () the Tribunal held that the tin shed without running water, cooking facilities and in an acute state of disrepair on the farm where the age pensioner lived was his home. In reaching this conclusion the Tribunal considered that a substantial degree of occupation was persuasive, as was whether the accommodation is the place where the person ordinarily eats, sleeps and has the characteristics of permanency as determined in The Tribunal adopted the reasoning of the New Zealand case of which referred to one's home as the "" and determined that this can include a caravan or campervan. In ; the Tribunal also held that a campervan could be a home.
The Applicant's oral testimony at hearing supports a finding that the caravan is the centre of gravity of his domestic life. I have reached this conclusion notwithstanding the fact that he never socialises in the caravan and prefers not to use its bathroom. The caravan is the location where he sleeps, prepares his meals and spends a large part of his days. Furthermore, as the sole owner of the caravan he has an undisputed right to reside in the caravan. I am satisfied that the Applicant's caravan is his principal home for the purposes of subsection 11A(1) of the Act and so the first limb of paragraph 11(4)(a) of the Act is satisfied.
I next considered whether the Applicant's right to the caravan gives him reasonable security of tenure. The Applicant states that he does not have security of tenure as he must relocate periodically due to limits on periods in which a person can rent a particular caravan site. He states to find otherwise would be equivalent to finding that those that are forced to live in their cars also have security of tenure. Instead, he submits that he can have no security of tenure without the right to tether the caravan to a piece of land. He further submits that finding he has security of tenure is being invented to reduce his rate of age pension.
As outlined above the term 'reasonable security of tenure' is provided for in subsection 11A(10) of the Act. I have already determined that the Applicant is the sole owner of the caravan. There is no evidence before me to suggest that there is a lien on the caravan or that the Applicant's right to occupy the caravan is limited or restricted in any way. I am not persuaded that because certain caravan sites or local government areas stipulate the maximum period that a person may rent a site that this does not give the Applicant security of tenure; his right to occupy the caravan remains. I conclude that the Applicant has reasonable security of tenure of his principal home.
For these reasons I am satisfied that the Applicant is correctly characterised as a homeowner for the purposes of section 11(4) of the Act. Therefore, for the purposes of the assets test under section 1064-G1 the value of the Applicant's caravan must be disregarded when working out the value of his assets.
The Applicant urges the Tribunal to make a brave decision by rejecting the Guide and find that he is not a homeowner. He contends that the definition of a non-homeowner in Chapter 4.6.3.20 includes a person who pays rent.[10] He submits that as he is required to rent a site for his caravan, and that he receives rent assistance, it is simply absurd that he is classified as a homeowner.
I accept that the Applicant's submission on this point reflects the commonly held binary view of residential accommodation; one is either a homeowner or renter. However, the Act provides that in certain circumstances, such as the Applicant finds himself in, that one can be a homeowner and also be eligible for rent assistance in respect of site fees.
It is not in dispute that the Applicant receives rent assistance in respect of site fees he is liable to pay when residing in his caravan at a caravan park. As a general rule, a person is qualified for rent assistance if they meet the common requirements set down in section 1070C of the Act.
However, relevant to this application, subsection 1070C(a) of the Act states that one common requirement is that the person is not an "ineligible homeowner". Subsection 13(1) of the Act states that an "ineligible homeowner" is a homeowner other than a person who pays for the use of a site for a caravan that is the person's principal home (amongst other exceptions).
This provision is reflected in Chapter 3.8.1.100 of the Guide. At hearing I put to the Applicant this part of the Guide. He reiterated his submissions that it is contradictory to find that he is both eligible for rent assistance and a homeowner.
I find that application of the law to the Applicant's living arrangements means that he is not an 'ineligible homeowner' for the purposes of the Act. I conclude that there is nothing contrary or incompatible with the Applicant receiving rent assistance in respect of the site fees he must pay.
The Applicant also submits that as beneficial legislation the Tribunal should distinguish his circumstances. He contends that strict application of the law leads to an unreasonable result and is not in the spirit of the Act.
The Applicant's characterisation of the Act and Administration Act as beneficial legislation is correct. However, careful review of the Act reveals no discretions that would allow the Tribunal to take into account the Applicant's circumstances so as to permit him to be classified as a non- homeowner.
For all these reasons I conclude that the Applicant was correctly assessed as a single homeowner and his rate of age pension must be calculated accordingly.
[2]
Directs that information tending to reveal the identity of the Applicant in these proceedings is prohibited pursuant to subsection 70(1) of the Administrative Review Act 2024.
[3]
[1] 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.
[4]
[2] Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT.