Trotter v Department of Family and Community Services [2005] FCA 929

FEDERAL COURT OF AUSTRALIA

Trotter v Department of Family and Community Services [2005] FCA 929 A R TROTTER v DEPARTMENT OF FAMILY AND COMMUNITY SERVICES SAD 159 OF 2004 MANSFIELD J 30 JUNE 2005 ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY SAD 159 OF 2004

BETWEEN: A R TROTTER

APPLICANT

AND: DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

RESPONDENT

JUDGE: MANSFIELD J

DATE OF ORDER: 30 JUNE 2005

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay to the respondent costs of the application. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY SAD 159 OF 2004

BETWEEN: A R TROTTER

APPLICANT

AND: DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

RESPONDENT

JUDGE: MANSFIELD J

DATE: 30 JUNE 2005

PLACE: ADELAIDE

REASONS FOR JUDGMENT 1 This is an application by way of appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (the AAT Act) from a decision of the Administrative Appeals Tribunal (the Tribunal) made on 28 May 2004. The Tribunal affirmed a decision of Centrelink first made on 20 January 2003, affirmed internally on 12 February 2003 and affirmed again by the Social Security Appeals Tribunal (the SSAT) on 4 June 2003. 2 The decision was that the applicant was not qualified for rent assistance under the Social Security Act 1991 (Cth) (the Act). 3 At the time of both the Tribunal and the SSAT decisions, qualification for rent assistance for persons such as the applicant who is receiving disability support pension was set out in subs 1064-D1 of the Act. It provided: 'An additional amount to help cover the cost of rent is to be added to a person's maximum basic rate if: (a) the person is not an ineligible homeowner; and (b) the person is not receiving incentive allowance; and (c) the person pays, or is liable to pay, rent (other than Government rent); and (d) the rent is payable at a rate of more than the rent threshold; and (e) the person is in Australia. …' Subclause (c) of that provided is critical to the determination of this appeal. 4 The term 'government rent' is defined in s 13(1) of the Act. It means rent payable to any of a number of state or territory housing authorities, including relevantly the South Australian Housing Trust (the SAHT). 5 The applicant is 60 years old. He is in receipt of a disability support pension under the Act. He lives by himself in rental accommodation in Millicent. The Tribunal found that the rental accommodation in which the applicant resides is owned by the SAHT and that he pays rent to the SAHT. Consequently, the Tribunal decided that the applicant is paying government rent, and so did not satisfy the qualification criterion in subcl (c) of subs 1064-D(1) of the Act to receive rent assistance. 6 The appeal to this Court from that decision is confined to appeal on a question of law: see s 44 of the AAT Act. The notice of appeal identifies the question of law raised on the appeal as in the following terms: 'Interpretation of what constitutes discrimination regarding term "government rent" and the policy thereof.'