First Home Owner Grant and Home Buyer Schemes Act 2000 (referral)

Cases we can hear

Only the Commissioner can refer a decision about a first home owner grant to VCAT for review.

Referrals are usually made to VCAT when, sometime after the grant has been paid, the Commissioner investigates the situation and decides the person who received the grant was not entitled to it and must repay it. The person may object to that decision and the Commissioner makes a determination on the objection.

The Commissioner will refer the matter to VCAT if an applicant is dissatisfied with the determination and asks the Commissioner to refer the matter to VCAT.

Legislation that gives VCAT the power to hear these applications

Section 33 of the First Home Owner Grant Act 2000.

Time limits

Your request to the Commissioner to refer the matter to VCAT must be made within 60 days of receiving the Commissioner’s decision. VCAT can't extend the time for making this request.

You can also ask the Commissioner to refer the matter to VCAT if the Commissioner hasn't determined your objection within 90 days of receiving your objection.

The Commissioner must usually refer the matter to VCAT within 60 days of receiving your request. But extra time is allowed if the Commissioner requires you to give further information about your objection. If you don't provide this within 30 days, the Commissioner will not refer the matter.

What can VCAT order?

We may confirm or vary the decision of the Commissioner. 

If the applicant doesn't appear before VCAT, we must confirm the decision. But if good cause is shown and application is made within the allowed time, VCAT may reopen and review the matter.

Additional information

The following gives some background information to the issues that often arise in these referrals. Be aware that the law can change and seek legal advice if you are unsure of your legal rights.

The residence requirement

To qualify for a first home owner grant, the applicant for the grant must meet the five criteria in the First Home Owner Grant Act 2000. See sections 8 to 12 of the Act.

Most referrals to VCAT involve the residence requirement – section 12 of the Act. This requires the applicant of a first home owner grant to occupy the home listed on their application as their principal place of residence for a continuous period of 12 months, commencing within the first 12 months after the eligible transaction.

The first home owner grant is paid under the assumption the applicant will comply with the residence requirement. If the applicant does not comply with the residence requirement, they must give written notice to the Commissioner and repay the grant. See section 20 of the Act.

Generally, VCAT considers the following when determining whether the applicant has met the residence requirement:

• the words 'principal place of residence' should be given their ordinary meaning in the context in which they appear
• consideration of whether a person has been residing or occupying the premises as their principal place of residence is to be assessed objectively in the light of the circumstances relating to the actual occupation of the dwelling
• the intention of the person concerned gauged objectively is relevant but not determinative of the issue to occupy a home as his or her principal place of residence, a person’s occupation must have a degree of permanence to it, a connection to a place of residence of a transient, temporary or contingent or passing nature is not sufficient, nor is occupation for some other purpose
• the short length of a person’s residence while relevant is not determinative of the issue
• the reason for a person’s departure from the home must be both reasonable and adequately explained when considered objectively in the light of their personal circumstance.

Am I bound by the grounds of objection?

Your case is limited to the grounds of the objection and the Commissioner’s case is limited to the grounds on which the objection is disallowed, unless VCAT orders otherwise.

Who has the onus of proof on review?

You have the onus (responsibility) of proving your case. The evidence VCAT will consider includes:

• the material gathered by the Commissioner during their investigations, which they must submit at the time of the referral (known as the T Documents)
• any other evidence that you submit in compliance with VCAT’s directions.

Compulsory conferences

Compulsory conferences are rarely held for first home owner grant cases as VCAT can only schedule a compulsory conference if the Commissioner consents. If you consider that a compulsory conference may help to resolve your matter, you should first ask the Commissioner if they agree to it. 

Apply

We can explain the application process and what the form is asking you for. Contact us to get support.

We can't give you legal advice. This means we can't tell you what to write in your application or recommend how to get the outcome you want.

Seek legal help if you're unsure about your options or need advice about your application.

Do I need a lawyer or professional representative?

You don't need to have legal or other professional representation to appear at VCAT. If you want to be represented by a lawyer or a professional advocate, usually you must ask for VCAT's permission.

Be aware that the regulatory body in most cases uses legal representation.

Find legal services that may be able to assist you.

Access and privacy

VCAT hearings and files are usually public.

VCAT has limited authority to restrict who can access cases and files but, in certain circumstances, you can apply for confidentiality.