CJCY and Secretary, Department of Social Services (Social services second review)
[2020] AATA 4939
•4 December 2020
CJCY and Secretary, Department of Social Services (Social services second review) [2020] AATA 4939 (4 December 2020)
Division:GENERAL DIVISION
File Number: 2019/3419
Re:CJCY
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:R Cameron, Senior Member
Date:4 December 2020
Place:Melbourne
The Tribunal affirms the decision under review.
...............................[sgd].........................................
R Cameron, Senior Member
Catchwords
SOCIAL SECURITY – DSP - overpayment receiving single rate when partnered – debt due to the Commonwealth – whether recovery of debt should be written off or waived – debt not attributable solely to error made by Centrelink –special circumstances – back payment of rental assistance - rental assistance not payable for rent outside of Australia -failure to advise Centrelink of change of circumstances.
Legislation
Social Security (Administration) Act 1999 (Cth)
Social Security Act 1991 (Cth)REASONS FOR DECISION
R Cameron Senior Member
4 December 2020
INTRODUCTION-TIMELINE
There are two matters before the Tribunal which it is fair to say have had some procedural history. It is appropriate to briefly outline that history
On 7 August 2018 the Respondent made a decision, the substance of which was that the Applicant was a member of a couple and had been incorrectly paid the Disability Support Pension (“DSP”) at the single rate. Accordingly, by reason of this decision a debt was raised against the Applicant of $6,795.88 (“the DSP decision”).
The Second matter before the Tribunal arose from a decision in September 2018 to grant the Applicant Rent Assistance from 5 January 2018. The Applicant contended that he was eligible to be paid back Rent Assistance from 16 June 2016 to 4 January 2018 (“the Rent Assistance decision”).
Both the DSP and the Rent Assistance decisions were after a request by the Applicant, considered by an Authorised Review Officer of the Appeals Branch of the Respondent. On 7 December 2018 the Authorised Review Officer of the Respondent affirmed both the DSP and the Rent Assistance decisions[1].
[1] Both decisions of the Authorised Review Officer form document T 9 of the T documents.
The Applicant applied to this Tribunal for review of the decisions of the Authorised Review Officer made on 7 December 2018.
The Social Services & Child Support Division of this Tribunal (“AAT 1”), by decision made on 22 May 2019, affirmed the decisions of the Respondent’s Authorised Review Officer made on 7 December 2018.
The Applicant then sought further review of the findings made on review by AAT 1 by an application to the General Division of this Tribunal.
Written reasons were given on that application by a Member of the General Division on 7 January 2020. The findings of the General Division were to set aside the DSP decision and remit it to the Respondent to waive $2,000.00 from the Applicant’s total debt as special circumstances were found, and to affirm the Rent Assistance decision (“the General Division decision”).
The Applicant then appealed to the Federal Court of Australia against the General Division decision on 3 January 2020. That appeal was subsequently transferred to the Federal Circuit Court of Australia and heard by a Judge of that Court.
On 20 May 2020 a Federal Circuit Court Judge gave written reasons making the following orders:
(a)The Appeal be allowed; and
(b)The decision of the Administrative Appeals Tribunal (General Division) made 13 December 2019 be set aside and the matter be remitted for rehearing according to law.
The contents of the written reasons of the Federal Circuit Court Judge are referred to in their entirety. It is useful for the disposition of this matter to refer to certain aspects of those reasons.
Helpfully, the Federal Circuit Court Judge reproduced the three questions of law framed by the Applicant in his Notice of Appeal to that court. Those questions of law are reproduced in their entirety as follows:
Should the appellant receive the single rate of Disability Support Pension (“DSP”) during the period of April 2017 until 28 April 2019 based on special circumstances? (“the first legal question”)
On the basis of those special circumstances, should the debt be waived in the period of April 2017 until 26 February 2018? (“the second legal question”)
Should rent assistance be paid to the appellant during the period of January 2016 until February 2018, due to special circumstances? (“the third legal question”)
The Federal Circuit Court found that the grounds of appeal identified in the first and third legal questions were established by the Applicant.
However, he found that the Applicant had not demonstrated any error on the part of the Tribunal concerning the second legal question which it should be recalled related to the Rent Assistance decision.
In accordance with the decision of the Federal Circuit Court Judge, the matter returned to this Tribunal constituted before a different member.
SOME EVENTS POST THE DECISION OF THE FEDERAL CIRCUIT COURT
There have been developments following the decision of the Federal Circuit Court which have a bearing upon the disposal of this matter.
The matter was fixed for hearing before the General Division of the Tribunal on 5 October 2020.
On 15 September 2020 the Respondent’s lawyers, being the Australian Government Solicitor (“AGS”), sent a letter to the Applicant advising that it would at the hearing of this application seek a decision from the Tribunal that the discretion contained in section 24 (1) (c) of the Social Security Act 1991 be exercised so as to treat him as not being a member of a couple in relation to the period between 5 April 2017 and 16 April 2018. As was pointed out in that letter, the effect of such a concession is that the Applicant was entitled to the single rate of the DSP during the relevant period, namely 5 April 2017 and 16 April 2018.
Further, by reason of such an entitlement to the single rate DSP due to the concession, there is no debt of $6,795.88 due to the Commonwealth of Australia.
Enclosed with the letter from the AGS to the Applicant on 15 September 2020 was a document headed “Application for Decision by Agreement”. The Respondent sought to have the Applicant sign the document so as to enable the Tribunal to make appropriate orders setting aside the decision of AAT 1 made 22 May 2019, and substituting it with a decision giving effect to the concession made in the covering letter that the discretion contained in section 21 (1) (c) of the Social Security Act 1991 be exercised so as to treat the Applicant as not being a member of a couple in relation to the period between 5 April 2017 and 16 April 2018. Lest it needs to be repeated, the effect of this proposal was that there would not be a debt due to Commonwealth by the Applicant.
On 1 October 2020 the Applicant in response to the letter from the AGS forwarded a letter to the Tribunal in very intemperate terms making several incorrect accusations against the conduct of the lawyer at the AGS. For the record, the Tribunal finds that there was absolutely nothing in either the letter, or any other aspect of the conduct on the part of the lawyer at the AGS, that warranted any such criticism or comment. It was a sensible attempt to resolve the matter by a dedicated and responsible practitioner. Particularly, one acting for a model litigant such as the Respondent.
THE HEARING
The DSP decision
This concession made by the AGS in the letter of 15 September 2020 was repeated in open hearing before the Tribunal on 5 October 2020 by the Respondent’s lawyer Ms Heffernan. Therefore, she submitted that the Tribunal should act on the concession and make an appropriate decision in the terms of that suggested in its letter to the Applicant on 15 September 2020 and in terms of the operative parts being paragraphs 2 and 3, of the draft document that was enclosed with that letter being the “Application for Decision by Agreement”.
The Applicant did not make any submission one way or the other concerning this submission by Ms Heffernan on behalf of the Respondent. He did in the course of dialogue with the Tribunal refer to his “Outline of submissions” that were filed and served by him on 14 April 2020 in the Federal Circuit Court for the purposes of the hearing of his appeal from the decision of the General Division of the Tribunal made on 7 January 2020 (“the Federal Circuit Court Submissions”). The Tribunal has read and considered the Federal Circuit Court Submissions.
It should be noted that the Applicant was asked if he wished to make any further submissions or give evidence to the Tribunal. He stated that he did not. The Tribunal informed him that it would make a decision based upon the material before it. The Applicant agreed with this approach.
Given that no constructive alternative contention was put by the Applicant to the Tribunal concerning the subject matter and substance of the concession, there is no reason not to accept the concession repeated by Ms Heffernan as an admission concerning the DSP decision.
In accepting the concession as an admission for all purposes it is useful nonetheless to reproduce section 24 (1) (c) of the Social Security Act 1991.
“PART 1.3—DETERMINATIONS HAVING INTERPRETATIVE EFFECT
24 Person may be treated as not being a member of a couple (subsection 4(2)) (1)
Where:
(a) a person is legally married to another person; and
(b) the person is not living separately and apart from the other person on a permanent or indefinite basis; and
(c) the Secretary is satisfied that the person should, for a special reason in the particular case, not be treated as a member of a couple;
the Secretary may determine, in writing, that the person is not to be treated as a member of a couple for the purposes of this Act.”
As can be seen from an examination of the language used in section 24 (1) (c), an exercise of the discretion in favour of the Applicant as proposed by reason of the concession amply justifies setting aside the DSP decision, having the effect that the Applicant was entitled to the single rate of the DSP during the period of 5 April 2017 and 16 April 2018. It is this timespan which is covered by the decision of the Authorised Review Officer on 7 December 2018. The effect of that decision was to hold that the Applicant was paid $6,795.88 more by way of the DSP that he was eligible to receive during that period.
In the circumstances, and by reason of the admission made on behalf of the Respondent by its lawyer Ms Heffernan, the Tribunal is satisfied that the correct and preferable decision is to set aside the decision of the Authorised Review Officer of the Respondent made on 7 December 2018 concerning the Applicant’s entitlement to the DSP for the period 5 April 2017 to 16 April 2018 (forming part of document T 9 of the T documents[2]) and that in substitution for that decision there be a decision that:
“The discretion in section 24 (1) (c) of the Social Security Act 1991 be exercised so as to treat the Applicant as not being a member of a couple in relation to the period between 5 April 2017 and 16 April 2018 (“the relevant period”)”; and
“The Tribunal notes that the effect of this decision is that the Applicant was entitled to the single rate of the DSP during the relevant period and as such, does not have a DSP debt to the Commonwealth of Australia of $6,795.88.”
[2] The T Documents are the bundle of documents lodged by the Respondent under section 37 of the Administrative Appeals Tribunal Act 1975. The DSP decision of 7 December 2018 is found at pages 43 to 46 inclusive of the T documents.
The Rent Assistance Decision.
Respondent argued that the Applicant’s appeal in the Federal Circuit Court concerning the Rent Assistance decision was unsuccessful. Therefore, having been rejected by the Judge, in the absence of any appeal by the Applicant, the Tribunal is bound by the decision of that court.
The Tribunal cannot accept this contention. The decision of the General Division of this Tribunal was set aside and remitted for rehearing on all grounds. There were no directions by the Circuit Court on now the rehearing is to be conducted other than according to law. It did not prevent the matter being considered again. Therefore, all issues before it can be reconsidered. The Tribunal will do so.
The facts in this case are not in controversy. There is no reason also not to accept the facts as found by the Federal Circuit Court. Many of the relevant facts also readily emerge from the contents of the T documents in evidence before the Tribunal, the authenticity of which the Applicant did not challenge. Nor were there any grounds to do so.
Some of those facts will be recited. On 29 November 2012 the Applicant was granted the DSP. With the DSP was included an allowance for Rent Assistance, relating to rental for the premises situated at 115 Creswick Street, Footscray.[3]
[3] These details are contained in document T 17 of the T documents which is a screenshot from a database maintained by the Respondent in which entries are made in the course of undertaking the Respondent’s activities. It is analogous to a business record admissible under the “Business Records” provisions of the Uniform Evidence Acts. Whilst the Tribunal is not bound by the rules of evidence there is no reason not to apply them in settings such as the admissibility of business records in which entries are made in the ordinary course of a department or agencies’ activities. Such activities like those of the Respondent in this application are a vital public service.
On 17 December 2015 the Applicant left Australia.
His Rent Assistance was cancelled on or about 14 June 2016. The reason for the cancellation was his continuing absence from Australia for a period in excess of 26 weeks. Section 1216 of the Social Security Act 1991 provides in effect that portability of such payments ceases 26 weeks after the period of absence from Australia commenced.
The Respondent notified the Applicant in writing to his Australian address (as he had requested prior to his departure from Australia[4]) of the cancellation of his Rent Assistance. Further, he was informed on 3 occasions in writing, that if he disagreed with the decision to cancel his rent assistance it was important that he ask for a review within 13 weeks of being notified about the decision. The notice also informed him that if his request for a review was more than 13 weeks after being notified, he may only receive his entitlement from the date he requested such review.
[4] An entry in the Respondent’s database recorded those details. Page 216 of the T documents.
The Applicant did not seek review of the decision to cancel his Rent Assistance in June 2016. He returned to Australia on 16 February 2017. Upon his return he did not advise the Respondent that he had changed his address or that he was paying rent.
Following his return to Australia, the Applicant received several letters from the Respondent on 20 February 2017, 21 February 2017 and 15 December 2017 advising him that the DSP that he was in receipt of did not include Rent Assistance.
As observed by the Federal Circuit Court Judge it appears to have been only on 15 January 2018 that the Applicant informed the Respondent that he had moved to Seddon and had been paying rent for such property since 2 February 2018. Rent Assistance was restored to the Applicant as and from 15 January 2018.
On 7 November 2018 the Applicant sought review of the decision to restore Rent Assistance only from 15 January 2018. In discussion with the officer of the Respondent he stated that he disagreed with the decision and believed that Rent assistance should have been backdated from January 2016 “as he was paying rent and therefore should be eligible for rent assistance”.[5]
[5] The details of the conversation with the Applicant recorded in its database by the officer of the Respondent is found at page 190 of the T documents.
The crux of the problem for the Applicant was addressed by the Federal Circuit Court Judge. It arises by reason of the limitation on the backdating of benefits including rent assistance, imposed by the combined operation of sections 109 (2) and 110 (1) of the Social Security (Administration) Act1999. It is not necessary for the purpose of these reasons to reproduce these sections in full or embark upon any significant excursion as to their construction and application.
On their true and proper construction, sections 109 (2) and 110 (1) of the Social Security(Administration) Act 1999 limit the effect of a favourable determination made upon a review of a decision in favour of an Applicant to the day on which such review was requested. In this matter, because the Applicant did not inform the respondent that he was paying rent on the Seddon property until 15 January 2018 by operation of section 110 (1) the earliest date that rental assistance could have been paid was that day.
There are other matters that are appropriate to refer to as they were addressed in the Applicant’s submissions to the Federal Circuit Court, which were produced to the Tribunal on the hearing of this application. Some mention should also be made about the provisions of section 1070C of the Social Security Act 1991. It was also addressed by the Federal Circuit Court Judge. The Applicant in paragraph 3 of his submissions sought to develop a contention that such section applied to his situation. He argued that the section, as he put it, clearly deals with rent assistance and because he was liable to pay rent in respect of premises in Australia, and because his fortnightly rent was more than the threshold amount during the period of February 2017 until January 2018, he satisfied the requirements of that section and an entitlement to Rent Assistance arose.[6] The way this submission was put by the Applicant misconstrues the language concerned. As was found by the Federal Circuit Court Judge in his reasons, there is no evidence that the Applicant was paying rent in Australia at the relevant time. On that note, rental assistance could only be payable for rent to occupy premises in Australia as a principal place of residence. He could not have been paid rent assistance for the period he was living overseas in Bangladesh.
[6] For the sake of completeness, the Tribunal refers to the entirety of part 3 of the "Applicant’s submissions pursuant to the order made by His Honour 1 April 2020" that were produced to the Tribunal at the hearing of this application. It is a difficult submission to comprehend. However, the Tribunal has done its best to distil its key aspects.
There was also no evidence that the Applicant had informed the Respondent that he was paying rent in Australia at the relevant time and for the premises in Seddon. The judge further observed that an obstacle to development of this contention arose by reason of the fact that the Applicant’s DSP appeared to have been restored on 8 January 2016 after he had commence studying in Bangladesh. It was only in the middle of 2016 after the Applicant had been absent from Australia for 26 weeks that his Rent Assistance was cancelled.
Finally, as noted earlier Federal Circuit Court Judge was not persuaded that the Applicant had demonstrated any error on the part of the General Division of this Tribunal concerning the third legal question which addressed the Rent Assistance decision. The Tribunal agrees with his analysis.
On this question, the Tribunal should also address the substance of a submission made by the Applicant without leave on 8 October 2020,after he had closed his case and the hearing of the application had finished..[7] The essence of this submission insofar as it can be understood, was that on a proper construction of section 1218 of the Social Security Act 1991, given that a he was entitled to “receive full DSP rate” (as now conceded by the Respondent) his claim for rent assistance could not be cancelled. Alternatively, by reason of such section his entitlement to Rent Assistance should have continued while he was a full-time student outside of Australia.
[7] The Respondent was given the opportunity to make further submissions in writing. The Tribunal should also observe that after this time the Applicant sought to file further material. The Tribunal was not prepared to accept it.
The Tribunal cannot agree with this submission. The language adopted in section 1218 of the Social Security Act 1991 does not make it applicable to the recipients of Rent Assistance payments. It specifies a variety of different payments including, amongst other things the DSP, widow’s allowance, parenting payment, austudy payment allowance and partner allowance. Rent Assistance payments are not included.
Also, in his submission on 8 October 2020, the Applicant in a negative way asserted that there was no legislation that could be relied upon by the Respondent in deciding not to pay him a pensioner education supplement. Insofar as this contention is put positively, that he has an entitlement to it, the Tribunal also rejects it. The principal reason it does so is that the issue of any entitlement to the pensioner education supplement was not a matter considered and determined by AAT 1 in its decision made on 22 May 2019. Therefore, the Tribunal in this application has no jurisdiction to adjudicate on the question.
Further, by way of completion on the issue of any entitlement to the pensioner education supplement, the Tribunal makes another observation. The Respondent cancelled the Applicant’s pension education supplement by a decision made on 27 February 2018. The Applicant did not seek review of that decision. This is another reason why the Tribunal does not have any jurisdiction concerning this question.
Finally, the Federal Circuit Court judge, at paragraph 36 of his reasons, did briefly canvass the question of the pension education supplement entitlements. He also observed that the question had not been subject of a specific objection or claim. He did raise the question of whether it may be a matter that could be considered in terms of the exercise of the discretion as to waiver on remittal to the Tribunal. This question was not canvassed at the hearing or in the Applicant’s submissions. There was no evidence before the Tribunal in any event that would justify, let alone enable, the Tribunal to make the decision that the Applicant seeks.
For these reasons the Tribunal affirms the decision of AAT 1 made on 22 May 2019 that concerning the decision of the Respondent’s Authorised Review Officer made on 7 December 2018 with respect to the Rent Assistance decision.
CONCLUSION AND ORDERS.
The Tribunal orders:
(a)The decision of the Authorised Review Officer of the Respondent made on 7 December 2018 concerning the Applicant’s entitlement to the DSP for the period 5 April 2017 to 16 April 2018 (forming part of document T 9 of the T documents[8]) is set aside.
[8] The DSP decision of 7 December 2018 is found at pages 43 to 46 inclusive of the T documents.
(b)That in substitution for that decision there be a decision that:
(i)“The discretion in section 24 (1) (c) of the Social Security Act 1991 be exercised so as to treat the Applicant as not being a member of a couple in relation to the period between 5 April 2017 and 16 April 2018 (“the relevant period”)”; and
AND THE TRIBUNAL NOTES: that the effect of this decision is that the Applicant was entitled to the single rate of the DSP during the relevant period; and as such, does not have a DSP debt to the Commonwealth of Australia in the sum of $6,795.8
(c)The decision of AAT 1 made on 22 May 2019 concerning the decision of the Respondent’s Authorised Review Officer made on 7 December 2018 with respect to the Rent Assistance decision is affirmed.
I certify that the preceding 51 (fifty-one) paragraphs are a true copy of the reasons for the decision herein of R Cameron, Senior Member
.......................[sgd].................................................
Associate
Dated: 4 December 2020
Date of hearing: 5 October 2020 Applicant: By videoconference Advocate for the Applicant: Self-represented Advocate for the Respondent: Peta Heffernan Solicitors for the Respondent Australian Government Solicitor
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