Cates and Secretary, Department of Education, Employment and Workplace Relations

[2008] AATA 234

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 234

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S 200600369

GENERAL ADMINISTRATIVE DIVISION		)
Re		JENNIFER CATES

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Senior Member L Hastwell

Date27 March 2008

PlaceAdelaide

Decision The Tribunal affirms the decision under review.

..............................................

L HASTWELL
  (Senior Member)

CATCHWORDS

SOCIAL SECURITY – pensions, benefits and allowances – Rent Assistance – whether entitled to payment of Rent Assistance in arrears – can Rent Assistance be characterised as a separate benefit or allowance under the Social Security Act 1991 - Rent Assistance not a separate social security payment, benefit or allowance within meaning of the Act – Rent Assistance is part of rate of benefit or allowance as calculated under Rate Calculators in Chapter 3 of the Act – notification of rate of Newstart Allowance was notification that Rental Assistance not payable – no specific notice with respect to Rent Assistance required –request for review outside 13 week time frame – arrears not payable under the Act – decision affirmed

Social Security Act 1991 s 23(1)

Social Security (Administration) Act 1999 s 109

Secretary, Department of Family and Community Services v Laurent [2003] FCA 1017

REASONS FOR DECISION

27 March 2008   Senior Member L Hastwell  

1.      The application for review was heard on the papers with the consent of both parties.

2.      This case involves a determination as to whether arrears of Rent Assistance are payable to Jennifer Cates (the applicant).

3.      The applicant attended a Centrelink office on 3 April 2006 and applied for Newstart Allowance.  At the time she was renting accommodation, but had no proof with her of her rental payments at that interview.  She was told by a Centrelink officer that if she brought in to Centrelink some documentary proof of her rental payments then she may be eligible for Rent Assistance.

4.      The applicant returned to the same Centrelink office the following day and brought with her the further information requested, including her rental agreement.   She understood that the officer to whom she had handed the documents had then photocopied them and returned them to her.  It appears that no record was kept of the rental agreement and she was not granted Rent Assistance.

5.      It was not until July 2006 that she became aware that she was not receiving a Rent Assistance component in her Newstart Allowance payments.  She took a rent certificate to Centrelink in July 2006 and she then commenced receiving some Rent Assistance as part of her Centrelink payment.  Nevertheless, she was not granted any arrears to the date in April when she first took her rental agreement to Centrelink.

6.        She sought review of the decision not to grant any arrears and on 29 August 2006 an Authorised Review Officer affirmed that decision.  She sought review of that decision to the Social Security Appeals Tribunal (SSAT). 

7.      On 12 October 2006 the SSAT affirmed the decision under review.  She seeks review of that decision to this Tribunal.

relevant legislation

8.      The relevant legislation is found in the Social Security Act 1991 (the Act) and the Social Security (Administration) Act 1999 (the Administration Act).

9. Section 23(1) of the Act defines a Social Security payment in the following terms:

“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.”

10. Section 109 of the Administration Act governs the date on which a determination under the Act will take effect in the following terms:

“109     Date of effect of favourable determination resulting from review

(1)      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)within 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 determination embodying the original decision took effect.

(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.

…

(5)If:

(a)a decision (the original decision) is made in relation to a person’s social security payment; and

(b)the person is given a notice informing him or her of the original decision; and

(c)the Secretary reviews the decision under section 126 without any application under section 129 for review of the decision having been made; and

(d)as a result of the review, the favourable determination is made more than 13 weeks after notice of the original decision was given to the person;

the favourable determination takes effect on the day on which the review was begun by the Secretary.

…”

issues

11.     The issue to be determined in this case is whether arrears of Rent Assistance are payable to the applicant for the period 3 April 2006 to 29 July 2006 (the relevant period).

12. This involves a consideration of whether Rent Assistance falls within any of the paragraphs of the definition of Social Security payment as set out in the Act. Is it a discrete payment in its own right or is it a component of another payment made under the Act?

hearing on the papers

13.     The Tribunal had regard to the following documents in reaching its decision:

·the T documents;

·the applicant's submissions with annexures received by the Tribunal on 7 November 2007;

·a letter from Welfare Rights Centre to Special Claims and Land Policy Branch dated 22 August 2007; and

·the respondent's statement of facts and contentions received by the Tribunal on 20 November 2007.

discussion of the evidence

14. Rent Assistance is payable under the Act. It can be paid as an additional component in a Social Security benefit. It is common ground that during the relevant period the applicant had an entitlement to payment of Rent Assistance under the Act.

15.     The matter was heard on the papers and the Tribunal did not hear oral evidence from the applicant.  The applicant did give evidence before the SSAT (T2).  The SSAT made the following comments about her presentation and credibility:

“… the Tribunal found Ms Cates to be credible in her evidence that she wrote down the details of the further information required by Centrelink in order to consider her eligibility for rent assistance and took her proof of tenancy agreement into the Centrelink office the day after her appointment, namely on 4 April 2006.  The Tribunal also found her credible in her evidence that the woman at the counter then took the document from her in order to take a copy and pass it on to ‘Mohinder’.  The Tribunal accepts that these events occurred, as described by Ms Cates.”

16.     Both parties consented to the matter being dealt with on the papers.  The respondent does not challenge the applicant's credibility.

findings of fact

17.     After considering all documentary evidence and submissions, the Tribunal makes the following findings of fact on the balance of probabilities:

·The applicant made application for Newstart Allowance on 3 April 2006.  Her claim form (T6) stated that she was a non home owner and was paying $165 per week in rent.  As she had no proof with her of her rental obligation, she was advised to provide a copy of her tenancy agreement in order to be granted Rent Assistance.

·On that same date she was given a Newstart Allowance Grant Advice (T7) which set out the regular basic payment that she could expect to receive, not including Rent Assistance.

·Centrelink wrote to the applicant on 3 April 2006 (T9) confirming her immediate and next payments.  This letter included a notice regarding her review rights.  It stated that if a request for the decision to be reviewed was not made within 13 weeks of being told about the decision then back payment may only be allowed from the date that the review was requested (T9/89).

·On the following day (4 April 2006), the applicant returned to the same Centrelink office and provided them with the documents that they had requested which included a copy of her rental agreement.  It appears that the counter officer did not take a copy of the rental agreement and did not make any assessment of her entitlement to Rent Assistance.  Copies of the other documents were taken and kept on her file. 

·At that point in time the applicant reasonably believed that she had done all that was required to make application for Rent Assistance.

·The applicant was working during the relevant period on a part-time basis and regularly declaring her income to Centrelink.  The rate of her Newstart Allowance fluctuated because of variations in her earnings and it was not until July 2006 that she became aware that she was not receiving any Rent Assistance in her Newstart Allowance.

·Her request for a review of the rate at which her Newstart Allowance had been granted was made on 10 July 2006, being a date that was 99 days after the date that the applicant was given notice of the rate of her allowance. 

application of the law

18. It is not disputed that the applicant had an entitlement to some Rent Assistance during the relevant period. If the decision to grant Newstart Allowance on 3 April 2006 was also a decision not to grant rent relief, then the applicant had 13 weeks from that date in which to seek review of the decision not to grant Rent Assistance. Had she sought review within that time and had she been successful with respect to that review, then arrears of Rent Assistance would have been paid to her from the date of the original decision (s 109(1)(d) of the Administration Act). If, however, her application for review fell outside the 13 week timeframe, then a favourable determination would take effect on the day on which the application for review was made, which in this case was 10 July 2006 (s 109(2) of the Administration Act).

19.     In the Federal Court Decision of Secretary, Department of Family and Community Services v Laurent [2003] FCA 1017, the Court considered whether Rent Assistance arrears were payable under the provisions of s 109 of the Administration Act in the particular circumstances of that case. The Court first noted that s 109 and its provisions as to the date when a determination shall take effect, applies to “a decision made in relation to a person's Social Security payment”.

20. To ascertain how s 109 of the Administration Act applies with respect to Rent Assistance entitlements, the Court considered whether Rent Assistance is a Social Security payment in its own right, ie a discrete payment in relation to which a specific decision must be made or whether it was merely a component of another Social Security benefit.

21. Justice Cooper reached the conclusion that Rent Assistance is not a discrete payment or allowance as defined by s 23 of the Act but it is a component of a Social Security payment. He characterised Rent Assistance as being a part of a benefit that becomes payable under the Rate Calculators set out in Chapter 3 of the Act:

“It is a notional amount to be added to a person’s maximum basic rate of pension, benefit or allowance to help cover the cost of rent.”

22.      He commented at paragraph 32 as follows:

“32. … The definition of ‘social security payment’ in s 23 of the Act cannot be used to create a category of payment not provided for by the substantive provisions of the Act. In any event, the common characteristic of each of the paragraphs in the s 23 definition is that it involves a payment being made and, save for par (f), the payment being made under the Act in respect of a pension, benefit or allowance falling within the description of one of pars (a )to (e) inclusive. … rent assistance does not constitute a discrete payment payable under the Act; it does not fall within any of the paragraphs of the definition of ‘social security payment’.”

23.     The Tribunal is bound by this decision and it follows from this decision that the notice of 3 April 2006 to grant Newstart Allowance to the applicant at a certain rate (which did not include Rent Assistance) was effectively a decision not to grant Rent Assistance.  

24. Because Rent Assistance is not a discrete payment but merely part of the rate of the Social Security benefit as defined, the 13 week review period within which arrears can be paid, pursuant to s 109 of the Administration Act, commenced on that date. Had the applicant sought review of the rate of payment within 13 weeks of 3 April 2006, then arrears could have been granted had she been successful in her application for review.

25.     The SSAT was correct in their finding that the law as it stands does not allow for payment of arrears of Rent Assistance to be paid to the applicant in the circumstances of this case.  The Tribunal affirms the decision under review. 

26. The Tribunal has sympathy with the position that the applicant now finds herself in. It is reasonable for a person to expect to receive a breakdown of how a rate of benefit is calculated. The Rate Calculators under the Act do not make for easy reading. Nevertheless, it appears all the information as to the rate calculation is not routinely provided when notice is given as to the rate at which an allowance will be paid.

27.     The applicant assumed that she was receiving a rate that included Rent Assistance as she had done all that was required of her to ensure that component would be included in her benefit.  As a result of what appears to be a clear error by a Centrelink officer, she has suffered financial detriment.

28.      The Tribunal notes the suggestion for further action contained at the conclusion of the SSAT decision (T2/11).  The applicant has suffered economic loss as a result of the failure of a Centrelink officer to process the application for Rent Assistance. 

29.     This would appear to be an appropriate case for either a payment of Compensation for Detriment caused by Defective Administration or for an Act of Grace payment.  The Tribunal has no jurisdiction to authorise or direct such payments and can only suggest that the applicant take the matter further with the appropriate authorities.

I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member L Hastwell

Signed:         .....................................................................................
  Associate

Date of Hearing on papers       23 November 2007
Date of Decision  27 March 2008