Cameron and Secretary, Department of Family and Community Services
[2007] AATA 1039
•1 February 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1039
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2006/695
GENERAL ADMINISTRATIVE DIVISION ) Re STEPHEN CAMERON Applicant
And
SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Senior Member, Ms Robin Hunt Date1 February 2007
PlaceNewcastle
Decision The decision under review is set aside and substituted is the decision that Mr Cameron is entitled to payment of rent assistance from 15 December 1999. Accordingly, he is entitled to back payments of rent assistance from that date to 14 June 2005.
[sgd] Senior Member, Ms Robin Hunt
CATCHWORDS
SOCIAL SECURITY – Rent Assistance – Rent assistance part of partner allowance – Entitlement to payment of rent assistance in arrears – No notice of determination about rent assistance – What constitutes sufficient notice of determination – Rent assistance not a ‘social security payment’ – Decision set aside
LEGISLATION
Social Security Act 1991 (Cth) – Sections 23(1), 55, 299, 1068, 1070A, 1070B, 1070C, Chapter 2 - Pensions, benefits and allowances, Part 2.15A, s 771HA, s 771MC (repealed).
Social Security (Administration) Act 1999 (Cth) – Section 109, 110
CASELAW
Secretary, Department of Family & Community Services v Laurent [2003] FCA 1017
Secretary, Department of Family & Community Services v Rogers [2000] FCA 1447Austin v Secretary, Department of Family and Community Services [1999] FCA 938
DSS & Garforth-Dankymeyer [2006] AATA 166 (3 February 2006)REASONS FOR DECISION
1 February 2007 Senior Member, Ms Robin Hunt Summary of decision
1. For the following reasons I set aside the decision under review and substitute the decision that Mr Cameron is entitled to payment of rent assistance from 15 December 1999. This means he is entitled to payment of rent assistance for the period commencing on 15 December 1999 and up to 14 June 2005, when Centrelink started to include a component of rent assistance in Mr Cameron’s social security payments.
Background
2. It is not disputed that Mr Cameron and his wife moved to new premises in May 1999. Mr Cameron gave evidence that they had to re-locate because their previous residence was about to be pulled down. They continued to live at the second premises throughout the rest of 1999 until they left during 2005.
3. The Centrelink documents before me show that Mr Cameron applied for partner allowance on 15 December 1999. He declared at box 24 that he had previously been receiving the newstart allowance. Mr Cameron’s completed form of application for partner allowance provides details of his rental accommodation. He provided these particulars where indicated on the form at box 31. The information he set out includes the name of the person to whom he paid rent, her address and telephone number and the amount he paid each week. He did not provide any rent receipts, rent certificate, rent declaration or other proof of rent with the application.
4. The claim form says at box 31 that rent assistance may be available to an applicant. However, Mr Cameron did not receive rent assistance until 2005 and this review is concerned with his entitlement from 15 December 1999.
5. Further Centrelink records before me show that Centrelink first created a document noting that Mr Cameron had some questions about rent assistance on 17 August 2005 (T28, 82 and T29, 83). He was then issued with a form described as a “SU336(M) rent declaration for use in extreme circumstances only”. Neither the form nor the letter accompanying it are before the tribunal but an electronic record shows that a letter was sent with the form and that it was regarded by the Centrelink officer who created the record as “an information notice given under the social security law”. Mr Cameron was subsequently interviewed on 6 September 2005 and was granted rent assistance from that date. A file note at T32, 86 sets out that rent verification was obtained from a rent declaration and that Mr Cameron queried why Centrelink did not give him this option before.
6. Further records show Mr Cameron several times queried after he made the rent declaration why he was not told about this option previously and why arrears were not paid to 15 December 1999. A Centrelink record made on 28 September 2005 shows that Mr Cameron wanted a reconsideration of the decision not to pay him arrears of rent assistance. Reconsideration took place and an authorised review officer (ARO) decided that the decision not to backdate his rent assistance was correct.
7. Mr Cameron's subsequent appeal to the SSAT from the ARO’s decision was successful in part. The SSAT decided his rent assistance should be backdated to 14 June 2005, the date it found Mr Cameron attended at Centrelink with proof of payment of rent in the form of money orders made out for the landlady.
8. The respondent disagreed that Mr Cameron was entitled to arrears from 14 June 2005 but had paid arrears from this date in accordance with the SSAT decision and did not seek to overturn that part of the SSAT decision.
Consideration of oral evidence
9. Mr Cameron explained that, on 14 June 2005, he took to Centrelink copies of a letter from his landlord ejecting him from the rental premises and copies of money orders to demonstrate he was continuing to pay the rent as he had been claiming since December 1999. These documents did not form part of the Centrelink file before me but Mr Cameron provided the original letter from the landlady giving him notice to vacate and copies of some money orders issued in 2005.
10. Mr Cameron was adamant that, until he sought advice from a family assistance office in 2005, he was never asked to provide any verification relevant to rent assistance other than receipts or a rent certificate from the landlord. He was never told about the possibility of making a rent declaration. It was not until he and the landlord fell out in 2005 that he made enquiries at a family assistance office and was informed that this option was available where it was not possible to obtain receipts or a certificate.
11. Mr Cameron claimed he had asked his landlady for receipts many times and that she always refused. He said Centrelink had also given him the forms described as ’rent certificates’, which the landlord was expected to complete, but that the landlady declined to sign these as well. His wife, Mrs Judith Cameron gave sworn evidence to the same effect. Both Mr and Mrs Cameron gave evidence that they were aware throughout the period that they were paying rent from 15 December 1999 onwards that they were entitled to rent assistance. Whenever they attended an interview in connection with the partner payment Mr Cameron was receiving, which occurred about four or five times during the period, the person interviewing them told them they had this entitlement. Each time they explained that they could not obtain receipts or a rental certificate from the landlady. They were left under the impression that this prevented their receiving the payment. Mr Cameron produced an undated and unsigned form of rent certificate which had his name and social security number written in the space provided. Mr Cameron gave evidence that the writing was not in his hand. Mr Cameron said a Centrelink officer had handed him this type of form twice. He had never been offered a rent declaration form.
12. Mr Cameron gave evidence that he and his wife responded to a newspaper advertisement placed by a Mrs Hoffman. Mr Cameron produced Mrs Hoffman’s advertisement in a newspaper dated 24 April 1999. He said they came to an agreement with Mrs Hoffman and moved in May 1999.
13. The former landlady, Mrs Hoffman, attended the tribunal hearing in response to a summons issued by Mr Cameron and gave oral testimony about her recollection of the rental arrangements between her and Mr and Mrs Cameron. She explained that she had converted her garage to a granny flat to accommodate extended family. When she no longer needed this space because the older children left home and Mr Hoffman passed away, Mrs Hoffman said she started to take students as boarders. She said they paid a modest amount to her to cover expenses. Mr and Mrs Cameron later moved into the granny flat.
14. Mrs Hoffman had difficulty recalling some details of her arrangement with Mr and Mrs Cameron but gave evidence to the effect that she declined to issue receipts unless Mr Cameron was prepared to pay more rent. She further said that Mr Cameron’s son had lived in her premises for some time. He had paid her only $20 per week because she expected him to cover just the cost of electricity for doing his washing and the like. Mrs Hoffman thought that Mr and Mrs Cameron had lived in her granny flat for about 5 ½ years but could not remember exactly when they moved in.
15. Mr and Mrs Cameron and Mrs Hoffman all said their accommodation agreement had been cordial until some time in 2005. Mrs Hoffman said she became unhappy when the Camerons started to complain about the neighbours and sometimes called the police. She did not like having police come to the house. She also was annoyed when she found they were storing a lounge chair in her garage without permission. She discovered it after her son moved out and she wanted to clear the space. She asked them to move the chair and there was an argument. The last straw for her was when Mr Cameron took proceedings against her in the NSW Consumer, Trader and Tenancy Tribunal (CTTT). She then served a letter on them telling them to vacate her premises. Mr Cameron produced this letter, dated 10 June 2005. Mrs Hoffman verified orally that this was her letter.
16. It was this letter and photocopies of some money orders that Mr Cameron told the tribunal that he took to Centrelink on 14 June 2005. After the CTTT proceedings, he thought the money orders might be acceptable verification of his rental arrangement for the purposes of the rent assistance payment he was seeking. He gave evidence that a Centrelink officer made photocopies of the letter and the money orders and returned them to him. However, he was told these were not sufficient proof for rental assistance and never heard any more from Centrelink about them. There are no copies of these documents on the tribunal documents furnished by Centrelink.
17. I accept the evidence of Mr Cameron and that of Mrs Cameron as truthful. Further, Mrs Hoffman confirmed that Mr and Mrs Cameron had been paying her rent for about 5 ½ years and that she had not been prepared to give them receipts up to the time of the CTTT proceedings in 2005. I further find, on balance, that Mr Cameron was not informed about the rent declaration option until he contacted the family assistance office and someone at Bunbury advised him about this option and arranged for him to be sent the form.
Analysis and findings
18. In the partner allowance claim form filled out by Mr Cameron on 14 December 1999 and received by Centrelink on 15 December 1999, Mr Cameron sets out, under box 31 for accommodation details, particulars of his rental accommodation where indicated. Within box 31, there is a Centrelink statement that rent receipts or proof of rent must be provided. As noted above, Mr Cameron did not provide any rent receipts or proof of rent with the application. He has explained that he was not able to obtain rent receipts or a rent certificate from the landlady and that these were the only forms of proof of which he was made aware until August 2005 when he spoke to the officer at Bunbury who told him about rent declarations. I note in passing that the claim form does not expand on what is acceptable proof of rent payment.
19. On 17 August 2005, Centrelink recorded Mr Cameron’s complaint made on that day about his not being paid rent assistance. The Centrelink documents before me show that two Centrelink entries about Mr Cameron were created on that day. One shows that, at the Charlestown office, Mr Cameron came in person with some questions about rent assistance at 15.15. On the same day, at 18.42, another Centrelink document shows that Mr Cameron spoke to someone at CC Bunbury about the partner allowance and that he was issued with a rent declaration form. A further Centrelink document shows the form was mailed to Mr Cameron with a letter that asked him to return it to Charlestown. The records show he returned the completed rent declaration form on 6 September 2005 and Centrelink paid Mr Cameron rental assistance from that day.
20. Mr Cameron queried why the payment was not backdated to 15 December 1999. Then, on 2 March 2006, a Centrelink ARO varied the decision to pay him from 6 September so that he was paid the allowance from 17 August 2005. The ARO’s written reasons for decision explained he was not granted arrears from 15 December 1999 because he did not query non-payment within 13 weeks of this date when Centrelink issued a letter setting out his rate of payment of the partner allowance. The letter sent to Mr Cameron on 12 September 2005 added a component of rent assistance to the partner payment calculation. This occurred once his rent declaration was furnished and acknowledged in the system.
The application for review
21. At issue in these proceedings is whether s109(2) of the Social Security (Administration) Act 1999 Commonwealth, (the “Administration Act”), operates to prevent backdating of Mr Cameron’s rental assistance payments from 15 December 1999. The legislation is set out below. Section 109 of the Administration Act provides, in part:
109 Date of effect of favourable determination resulting from review
…
(2)If:
(a) a decision (the original decision) is made in relation to a person's social security payment; and
(b) a notice is given to the person informing the person of the original decision; and
(c) more than 13 weeks after the notice is given, the person applies to the Secretary, under section 129, for review of the original decision; and
(d) the favourable determination is made as a result of the application for review;
the favourable determination takes effect on the day on which the application for review was made.
…
22. Mr Cameron did not seek formal review of any decision until 2005 although I accept his evidence that he enquired about his rent assistance entitlement previously. This was more than 13 weeks after the determination of 15 December 1999 and means his circumstances come within subsection (2). A determination about his partner allowance was made on 15 December 1999 and written notification was sent to him on that day setting out his rate of payment. Similar determinations and notifications were sent to him on later dates as well. It follows that, if Mr Cameron was given notice of the original decision of which he presently seeks review and this decision concerned a social security payment, s 109(2) precludes Mr Cameron from claiming any earlier date of application of a favourable determination than the date of the application for review. The date found by the SSAT and reluctantly accepted by the Department is 14 June 2005.
Is rent assistance a ‘social security payment’?
23. Section 109(2) applies to applications for review of a decision about a “social security payment”. The term “social security payment” is defined in s23(1) of the Social Security Act 1991 (“the Act”):
23 General definitions
…
Social security payment means:
(a) a social security pension; or
(b) a social security benefit; or
(c) an allowance under this Act; or
(e) any other kind of payment under Chapter 2 of this Act; or
(f) a pension, benefit or allowance under the 1947 Act.
…
24. As can be seen, a social security payment includes a social security benefit. The term “social security benefit” is also defined in s 23(1) and includes the partner allowance. Section 771HA in Chapter 2 of the Act sets out the qualifications for partner allowance. In addition, ensuing provisions say that the person's rate of partner allowance is worked out using the Benefit Rate Calculator B at the end of s1068 unless certain other provisions apply. Section 1068 contains a module for calculating the allowance. The calculation of Mr Cameron’s entitlement may have a number of components including partner allowance and rent assistance.
25. As well, the rate is not to exceed the rate at which youth allowance, austudy payment or newstart allowance would be payable to the person. Mr Cameron gave evidence that he had been receiving newstart previously. He had no rent assistance entitlement while receiving newstart.
26. The Secretary takes the view that rent assistance is not a social security payment and therefore not reviewable except as part of a review of the social security payment to which it was an add-on. Although the definition of “social security payment” is very broad and includes “an allowance under this Act”, the Secretary relies on Justice Cooper’s decision in Secretary, Department of Family & Community Services and Laurent [2003] FCA 1017. This case was concerned with newstart allowance whereas the present case concerns partner allowance and added on rent assistance. Cooper J held that the AAT was incorrect in deciding rent assistance was a social security payment within paragraph (c) of the definition of that term in s23. His Honour held that rent assistance was not a separate payment.
27. The present case is similar in that Mr Cameron’s rate of partner payment was affected by possible addition of rental assistance and Centrelink advised him of its calculation of the partner allowance. The further question, if an earlier date is appropriate for commencement of rent assistance, is whether Mr Cameron was given adequate notice of a decision not to pay him rent assistance.
Was Mr Cameron given appropriate notice of the original decision not to pay him rent assistance?
28. The original letter of 15 December 1999, advising Mr Cameron of Centrelink’s calculations of partner payment, contained no mention of rent assistance. The letter was described as a “Recipient Notification Notice under section 771MC” of the Act. This section is no longer current but previously provided that the Secretary may give a person to whom a partner allowance is being paid a notice that requires the person to inform the Department if a specified event or change of circumstances occurs. The early part of the letter informed Mr Cameron of the rate of payment Centrelink calculated for payment to him of partner allowance. It went on to set out in what circumstances Mr Cameron must contact Centrelink about any events or changes affecting his payment.
29. Later letters to Mr Cameron do not refer to s 771MC but give a similar warning about Mr Cameron’s obligations to Centrelink. The letters also advised Mr Cameron that he might phone or come in to see someone at Centrelink if he thought the decision was wrong. The writers of the letters undertook to look into any concerns and to show Mr Cameron how to appeal to an ARO or the SSAT if he still thought their decision was wrong.
30. In the case of Secretary, Department of Family & Community Services v Laurent [2003] FCA 1017, Mr Laurent's payment of newstart allowance was cancelled due to an administrative error then restored with retrospective effect. He was sent a letter on 20 September 1999 by Centrelink setting out the amount of his newstart allowance entitlement for the payment period 14 September to 27 September 1999 being $392.18 and stating that “his normal payment from payday 12 October 1999 would be $392.70 which included rent assistance of $76”.
31. On 27 September 1999 he was sent a further notice also setting out the newstart allowance entitlement for the period of 14 to 27 September 1999. The amount then stated was $386.75. The notice also stated that his normal payment for payday 12 October 1999 would be $316.70, being net newstart allowance after payment of tax. The calculation did not include any sum attributable to rent assistance. A further notice sent on 28 September 1999 gave notice of immediate payment of newstart allowance for the period 14 to 27 September 1999 of $386.75 and restated that the normal payment from payday 12 October 1999 would be $316.70. Again the calculation did not include any rent assistance. Payments which did not include rent assistance continued.
32. On 16 January 2001, Mr Laurent requested investigation of his non-receipt of advised rent assistance since August 1999. As a result, his rent assistance was restored and arrears paid between 16 January 2001 and the date of the decision in April. Mr Laurent than sought review of the decision not to pay arrears from an earlier date. After the usual tiers of review, the AAT decided that he should be paid arrears from 27 September 1999. On appeal to the Federal Court, Cooper J found that the AAT’s error about rent assistance being a separate payment for the purposes of s109 was central to its decision that no sufficient notice had been given to the applicant. Cooper J held that Mr Laurent had been given sufficient notice of the decision about his social security payment.
33. Regarding sufficiency of notice, Drummond J in Austin v Secretary, Department of Family and Community Services [1999] FCA 938, at paragraph 36, found that a notice was:
A clear statement by the respondent that a decision has been made fixing the rate of payment of Newstart Allowance at a particular figure or that a decision has been made cancelling or suspending Newstart Allowance, as opposed to information from which an inference to one or other of those effects might be drawn, is, in my opinion, required before a communication can constitute a ‘notice’ within section 660K.
34. In Secretary, Department of Family & Community Services v Rogers [2000] FCA 1447, Cooper J held that the matter to be communicated by a ‘notice’, in a similar provision to s109, was that there was the making of a decision in relation to a pension which is a reviewable decision. He stated, at paragraphs 33 and 35:
That involves two elements, the fact that a decision has been made and the content of the decision.
The subsections make no reference to any requirement that the notice contain reasons or sufficient information for the recipient of the notice to understand the main reason for the decision and so be in a position to know whether or not to exercise the person's right to seek a review. Nor, in my view, do any principles of procedural fairness require that such a requirement be read into the provisions of section 299.
…
The requirement that a notice be intelligible does not introduce a requirement that reasons for the decision communicated by it be given. Nor does it require that sufficient information be given as to the basis upon which the decision was made to enable the recipient to decide whether to seek review of the decision.
35. Cooper J made a further observation in Rogers, at paragraph 38:
Although our reasons are substantially similar in excluding any requirement to provide reasons or information of the type found by the AAT to be necessary to constitute an intelligible notice, I would not limit the content of the notice to a communication to the benefit recipient that a decision has been made to pay him or her a particular allowance at a particular rate. Although that may well be the most common decision, I do not read, for the reasons I have given, the words "a decision …is made in relation to a sole parent pension" as being limited to a decision to pay the pension at a particular rate. Rather, I construe the phrase as meaning any decision capable of review under section 1240 of the Act which, upon review, leads to a favourable determination under section 293.
36. In SDFCS and Garforth-Meyer [2006] AATA 166, the tribunal examined the reasoning in the above judgments when forming a view about whether notice given to a claimant for rent assistance. Senior Member Kelly found that a decision to cancel the addition of rent assistance to ongoing payments of a social security payment had not been communicated to the applicant although notices setting out the calculation of her social security payment had been sent to her. The present case involves no cancellation decision but simply a lack of consideration of a possible entitlement. Senior Member Kelly applied Cooper J’s decision in Rogers when making a finding that there was no notice given of a decision made not to pay rent assistance. The letter Centrelink sent to the applicant referred to the amounts she would receive immediately and in the future. The letter also referred to elements included in her pension but it made no mention of rent assistance.
37. There is no requirement to provide reasons for non-payment of rent assistance but that is not the issue in the present case nor was it in the Garforth-Myer case. I agree with Senior Member Kelly that there is an important distinction between not giving notice of a decision not to pay a particular allowance and the non-provision of reasons for making such a decision.
38. No notice was given to Mr Cameron that a decision had been made not to pay him rent assistance. As Cooper J explained in Rogers, the words "a decision …is made in relation to a sole parent pension" is not limited to a decision to pay the pension at a particular rate. In the same way, a decision made not to include a particular component, here rent assistance, as a component of the partner allowance, is an additional or different decision from one made to pay an allowance at a particular rate. In Mr Cameron’s case, he was notified of a rate but not of the decision not to add rent assistance in his partner allowance.
39. Applying Drummond J’s observations in Austin and those of Cooper J in Rogers, I find Mr Cameron was not put on notice on 15 December 1999 that Centrelink had decided not to pay him rent assistance. The letter of that date and later letters updating the amount of partner allowance he would receive made no mention of a decision not to pay him rent assistance. No decision specifically addressed Mr Cameron’s entitlement to rental assistance until his complaint on 17 August 2005 was considered. No reviewable decision was made until 2 March 2006. Before this, Mr Cameron was never notified in any manner about rejection of his rental assistance expectations.
40. Centrelink documents at T28 and following clarify some matters which are consistent with Mr Cameron’s oral evidence about what occurred in August and September 2005. The letter or notification sent to Mr Cameron on 12 September 2005 resembles the earlier letters setting out the rate of partner payment but, for the first time, adds information about rent assistance. Below the calculation of partner payment are added the words “plus rent assistance … $57.30”.
41. The file note says that Mr Cameron contacted Charlestown CSC with questions about rent assistance and that he was issued with a rent declaration form from another source, namely the Bunbury Call Centre. This information accords with Mr Cameron’s evidence that he found out about the rent declaration option when he called a family assistance centre.
42. I note further that the rent declaration form is described in Centrelink internal records before me as “SU336 (M) RENT DECLARATION FOR USE IN EXTREME CIRCUMSTANCES ONLY”. This description suggests that it is not a commonly used option and is reserved for highly unusual cases. This may explain why Mr and Mrs Cameron were not made aware of the option sooner.
43. I am satisfied that Mr Cameron was not given notice of a decision not to pay him rent assistance. It follows that Mr Cameron is not prevented by subs109(2) from pursuing review. The correct subsection to apply is subs(3), which reads:
109 Date of effect of favourable determination resulting from review
…
(3)If:
(a) a decision (the original decision) is made in relation to a person's social security payment; and
(b) the person is not given notice of the original decision; and
(c) the person applies to the Secretary, under section 129, for review of the original decision; and
(d) the favourable determination is made as a result of the application for review;
the favourable determination takes effect on the day on which the determination embodying the original decision took effect.
…
44. As Mr Cameron had no notice of the original decision not to pay him rent assistance made on 15 December 1999, and he applied to the Secretary for review which resulted in a favourable determination in 2005, the determination takes effect on 15 December 1999. My conclusion backdates Mr Cameron’s entitlement further than found by the SSAT largely because I was assisted by the evidence of the landlady, Mrs Hoffman, in establishing earlier proof of the payment of rent as claimed by Mr Cameron.
Date of effect of favourable determination
45. In the alternative, it may be that Mr Cameron is entitled to earlier payments of rent assistance under s 110(1) of the Administration Act, which provides that a favourable determination may take effect on the day on which an applicant informed the Department of an event or change in circumstances. Mr Cameron advised the Department in his claim form on 15 December 1999 that he had previously been receiving newstart allowance but his entitlement to this had ceased and he and was now claiming to a different allowance. However, it is not necessary for me to consider his claim under s110(1) as I have already found in Mr Cameron’s favour under s 109(3).
DECISION
46. The decision under review is set aside, and substituted is the decision that Mr Cameron is entitled to payment of rent assistance from 15 December 1999. Accordingly, he is entitled to back payments of rent assistance from that date to 14 June 2005.
I certify that the 46 preceding paragraphs are a true copy of the reasons for the decision herein of
Signed: [sgd]
AssociateDate/s of Hearing 16 January 2007
Date of Decision 1 February 2007
Representative for the Applicant Self-represented
Advocate for the Respondent George Lozynsky
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