Darren Burgess and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2012] AATA 783
•12 November 2012
[2012] AATA 783
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/3761
Re
Darren Burgess
Applicant
And
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
Respondent
DECISION
Tribunal Mr P Wulf, Member
Date 12 November 2012 Place Brisbane The Tribunal affirms the decisions under review.
[Sgd]
Mr P Wulf, Member
CATCHWORDS
SOCIAL SECURITY – Pensions, benefits and allowances – Disability support pension – Rent assistance – Definition of rent – Maximum amount of rent assistance payable – No entitlement to extra rent assistance – Pensioner concession card – Start date of concession card – Expiry date of concession card – Details correctly recorded – Decisions under review affirmed
PRACTICE AND PROCEDURE – Reviewable decisions – Claim for review of compensation entitlement under Victims Support and Rehabilitation Act 1996 (NSW) – No jurisdiction for review
PRACTICE AND PROCEDURE – Reviewable decisions – Claim for payment for Emergency Medical Equipment Payment – Date of commencement of provisions relating qualification for payment – Claim for payment made prior to commencement – No decision to reject claim able to be made at that time – No reviewable decision made
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 34J
Clean Energy (Household Assistance Amendments) Act 2011 (Cth) sch 2
Social Security Act 1991 (Cth) ss 13, 23, 917B, 1061ZA, 1070C, 1070L
Social Security (Administration) Act 1999 (Cth) ss 11, 12, 24A
Victims Support and Rehabilitation Act 1996 (NSW)
CASES
Burgess v Secretary of Department of Family and Community Services [2004] FCA 136
Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 41 FCR 82
Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634
SECONDARY MATERIALS
Guide to Social Security Law
REASONS FOR DECISION
Mr P Wulf, Member
12 November 2012
INTRODUCTION
Mr Burgess, the applicant,[1] was granted disability support pension (“DSP”)
by Centrelink effective from 16 April 2002 and has remained in receipt of that pension. In addition to his regular fortnightly DSP payment, Mr Burgess has also been receiving the maximum fortnightly amount of rent assistance and is the holder of a Pensioner Concession Card.
[1] Exhibit 1, T-Document 1, pp. 1-6.
On 3 February 2012, an authorised review officer (“ARO”) affirmed a number of decisions that Mr Burgess was not entitled to an additional amounts for rent assistance, that his pensioner concession card’s start date was correct and that it was correct to record an expiry date. In that decision, the ARO also decided that a decision had not been made in regard to Mr Burgess’ claim for Emergency Medical Equipment Payment (“EMEP”) as the legislative provisions had not yet commenced at the time of the claim being made.
While the ARO’s “Decision Statement” makes no mention of a claim by Mr Burgess for $3,318,000 under the “Support and Rehabilitation Act 1996”, the letter sent to him enclosing the decision of 3 February 2012, informs him that the ARO has decided that there is no power for him to review any decision under that “Act”.
On 22 August 2012, the Social Security Appeals Tribunal (“SSAT”) affirmed the ARO’s decisions. Mr Burgess now seeks review of those decisions by this Tribunal.
In accordance with s 34J of the Administrative Appeals Tribunal Act 1975 (Cth),
the parties have consented to forgo a hearing and have the application decided by consideration of the documents lodged with the Tribunal. Therefore, the application will be determined “on the papers”.
ISSUES
The issues for this Tribunal to determine are whether:
(a)There is jurisdiction to make a decision in regard to payment of compensation under the “Support and Rehabilitation Act”;
(b)A reviewable decision has been made in regard to a claim for payment of the EMEP;
(c)Mr Burgess’ amount of rent assistance has been correctly calculated; and
(d)Mr Burgess’ Pensioner Concession Card’s start date is correctly recorded and if it should have an expiry date.
Payment of Compensation
The SSAT considered the claim made by Mr Burgess that he should be paid $3,318,000.00 for injuries under the “Support & Rehabilitation Act”.[2] Mr Burgess, in his application to this Tribunal on 24 August 2012, also seeks review for that claim.[3]
[2] Exhibit 1, T-Document 7, p. 24.
[3] Exhibit 1, T-Document 1, pp. 1-6. The actual amount quoted varies marginally but it appears from documents provided to Centrelink by the applicant that he has calculated the amounts based upon a claimed amount of $6,076.92 per fortnight owing since 1991 (e.g. T-Document 5, pp. 20-21).
It appears from documents provided by the applicant to Centrelink on 8 October 2012, that the SSAT correctly identified the legislation the applicant is referring to as the basis of his claim as the Victims Support and Rehabilitation Act 1996 (NSW).[4] It would appear from handwritten markings on the copy of that Act provided to the Tribunal that the amount mentioned refers to a claim for compensation for “brain damage”,
“medical illness”, “domestic violence” and “psychiatric disorder”.
[4] Exhibit 2.
As identified by the SSAT, unless there is cross vesting legislation, a Commonwealth Tribunal has no jurisdiction in relation to that New South Wales enactment. Section 25(1) of the Administrative Appeals Tribunal Act 1975 (Cth) provides for review of decisions made under an enactment which provides for review by the Tribunal. Neither the Secretary nor its delegates have jurisdiction to make a decision on any claim made by Mr Burgess under the Victims Support and Rehabilitation Act 1996 (NSW).
This Tribunal has no jurisdiction in relation to that Act and, therefore, it can give no further consideration to Mr Burgess’ substantive claim for compensation.
Emergency Medical Equipment Payment
On 13 October 2011, Mr Burgess contacted Centrelink requesting, among other things, that he be paid $140 due to the increase in his electricity bill because of medical equipment. It has been assumed by Centrelink, the ARO and the SSAT, that Mr Burgess was referring to the EMEP, introduced by the Commonwealth as compensation for the additional power costs of maintaining medical equipment in the home after the introduction of the carbon pricing legislation.
Payment of the EMEP is provided for in s 917B of the Social Security Act 1991 (Cth) (“the Act”). It was inserted into the Act by Schedule 7 of the Clean Energy
(Household Assistance Amendments) Act 2011 (Cth). That Act, relevantly, provides fors 917B of the Act to commence operation on 14 May 2012.
It should be noted that while Mr Burgess’ application for review by this Tribunal makes considerable statements in regard to his other contentions, he does not expressly refer to the payment of the EMEP. However, he does state that he does not agree with the “decisions” of the SSAT[5] and, therefore, the Tribunal accepts that he has applied for this decision to also be reconsidered.
[5] Exhibit 1, T-Document 1, p. 1.
Mr Burgess made his claim for the EMEP on 13 October 2011. This was some
seven months prior to the commencement of s 917B of the Act. It follows then that a decision could not have been made by Centrelink, at that time of making the claim,
for payment of the EMEP. Therefore, Centrelink did not have any authority to make a decision and, accordingly, the Tribunal also has no jurisdiction to consider this particular claim for EMEP by Mr Burgess as there is no reviewable decision.
While the claim cannot be reviewed as there was never a decision made within the confines of the statute, this clearly does not preclude Mr Burgess from making a claim for the EMEP now or at any other time in the future while the relevant provisions of the Act operate. It would then be a case for the respondent to consider that claim on its merits and whether Mr Burgess qualifies for the payment.
Issues the Tribunal may consider
The only issues which this Tribunal may consider are whether:
(e)Mr Burgess’ amount of rent assistance has been correctly calculated; and
(f)Mr Burgess’ Pensioner Concession Card’s start date is correctly recorded and if it should have an expiry date.
BACKGROUND
On 25 August 2011, Mr Burgess contacted Centrelink and claimed that, as he was renting a storage shed[6] in addition to his place of residence, he should be paid an additional amount of rent assistance as well as a lump sum amount for any arrears.[7]
On 13 October 2011, Mr Burgess again contacted Centrelink claiming that his rent assistance should be calculated on the combined rent he pays for his accommodation and the storage shed.[8]
[6] Exhibit 1, T-Document 5, p. 22.
[7] Exhibit 1, T-Document 4, p. 18.
[8] Exhibit 1, T-Document 6, p. 23.
On 15 December 2011, Mr Burgess wrote a letter to Centrelink claiming that the start date of 16 April 2002 on his pensioner concession card was wrong. On the basis of his letter, it seems that he was making submissions that the start date for the card should have actually been sometime in 1991. In that letter it also appears that he takes issue with the fact the card has an expiry date.
CONSIDERATION
Rent Assistance
There is no dispute that Mr Burgess is entitled to receive rent assistance from the respondent under Part 3.7 of the Act for the house he rents as his residence. Relevantly, s 1070C(c) states that to receive rental assistance the person “pays, or is liable to pay, rent … in respect of premises in Australia”.
While a person may be able to receive rent assistance for a premises under s 1070(c) of the Act, there are two other sections which either restricts the circumstances for which it is payable or places a maximum amount of rent assistance a person can receive regardless of the amount of rent they actually pay.
Payment of rent assistance is restricted by the definition of “rent” in s 13(2) of the Act, which reads:
(2) Amounts are rent in relation to the person if:
(a) the amounts are payable by the person:
(i) as a condition of occupancy of premises, or of a part of premises, occupied by the person as the person's principal home; or
(ia) as a condition of occupancy of premises, or of a part of premises, occupied by the person to allow him or her to provide personally a substantial level of care in a private residence for another person who needs, or in the Secretary's opinion is likely to need, that level of care in a private residence for at least 14 consecutive days; or
(ii) for services provided in a retirement village that is the person's principal home; or
(iii) if the person is in a care situation and the place where the person receives the care is the person's principal home or would be the person's principal home apart from subsection 11A(8) or (9)-for accommodation in the place where the person receives care; or
(iv) for lodging in premises that are the person's principal home; or
(v) for the use of a site for:
(A) a caravan or other vehicle; or
(B) a structure;
occupied by the person as the person's principal home; or
(vi) for the right to moor a vessel that is occupied by the person as the person's principal home; and
...
What is clear from the definitions of what constitutes “rent” for the purposes of receiving rent assistance, is that it must be an amount of money paid to another so as to allow the person to occupy the “premises” as their “principal home”. Mr Burgess is currently receiving rental assistance for the premises he occupies as his principal home.
He submits that the amount of rent for the “storage shed” should also be considered for rent assistance. However, the storage shed are not premises he occupies as his
“principal home” and therefore any amount he pays for its use cannot be considered to be rent for the purposes of receiving rent assistance.
The amount of rent assistance a person can receive, when in receipt of DSP, is restricted to a maximum amount by s 1070L of the Act. Relevantly, it reads:
…
(2) … This is the person’s rate of rent assistance per fortnight but only up to the person’s maximum rent assistance rate. ... (My emphasis added)
The respondent submitted that Mr Burgess currently receives the maximum amount of rent assistance that is payable under the Act. Section 5.1.7.10 of the Guide to Social Security Law[9] (“the Guide”) states that the current maximum amount of rent assistance available to a person is $121.00 per fortnight. Centrelink records indicate that
Mr Burgess is currently receiving the full amount of $121.00 rent assistance.[10]
Therefore, Mr Burgess is precluded from receiving any additional rent assistance, whether for the premises he occupies as his residence or for the storage shed he rents.
[9] For the appropriateness of a Tribunal’s reliance on the Guide, see Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634 at 639-645 per Brennan J (President), and Hneidi v Minister for Immigration and Citizenship [2010] FCAFC 20).
[10] Exhibit 3, Annexure B, p. 7.
Pensioner Concession Card
Mr Burgess asserts that the card start date of 16 April 2002 on his pensioner concession card has been incorrectly recorded and that it also should not have any expiry date of 28 February 2013. He appears to argue that the commencement date should have been sometime in 1991 while there should in fact be no expiry date recorded at all; the card should be issued to him for his “lifetime”.
Subsection 1061ZA(1)(a) of the Act provides that a person is qualified for a pensioner concession card “on a day” if they are in receipt of a “social security pension”. Subsection 23(1) defines “social security pension” as including disability support pension.
Mr Burgess was receiving newstart or job search allowance from April 1992, but these types of social security payments are not defined as “social security pensions” under sub 23(1) of the Act. At the time of the decision under review, the Act also provided for situations whereby newstart recipients could receive a pensioner concession card. However, at the time of his being granted a pensioner concession card and previous to that time, the only newstart recipients that qualified for a pensioner concession card was those aged over 60 year.[11] Mr Burgess is not over 60 years of age.
[11] See s 1061ZA of the Act as it then was.
According to Centrelink records, Mr Burgess commenced receiving DSP on 16 April 2002.[12] However, on 24 October 2003, Mr Burgess appealed to the Federal Court against a decision of this Tribunal rejecting his claim that the date of commencement of his DSP should have been in 1992, as he was then qualified.
[12] Exhibit 3, Annexure B, p. 1.
In Burgess v Secretary of Department of Family and Community Services,[13] Wilcox J
set aside the decision of this Tribunal and remitted it back for re-determination.
His Honour held that s 12 of the Social Security (Administration) Act 1999 (Cth)
(“the Administration Act”) allowed for backdating of Mr Burgess claim for DSP to 1992, if he could demonstrate that he was entitled to DSP at that time, as he was already then in receipt of newstart allowance. However, whether Mr Burgess qualified for DSP at an earlier date was never determined by the Tribunal as he reached a confidential settlement with the respondent. As such, this Tribunal has no option other than to determine that
Mr Burgess was not qualified for DSP until 16 April 2002 and, thus, this is the correct start date for his DSP as there is no material before it that would demonstrate that any other day is applicable.
[13] [2004] FCA 136.
Under sub 11(2) of the Administration Act, a claim for a concession card is not needed, relevantly, once a person qualifies under s 1061ZA of the Act. According to s 1.2.8.20
of the Guide, the pensioner concession card is automatically issued to a person once they commence receiving a pension, such as disability support pension. Therefore, the first date that Mr Burgess was entitled to receive a pensioner concession card was the first day he was entitled to start receiving disability support pension; that is 16 April 2002.
The start date on Mr Burgess’ pensioner concession card is correctly recorded.
Subsection 240A(2)(b) of the Administration Act allows for the inclusion of an expiry day in a concession card. Under s 3.9.2.20 of the Guide, the pensioner concession card “is issued for a period of 12 months and is re-issued annually around the time of a cardholder’s birthday”, subject to their continued qualification for the card.
The SSAT noted in its decision that, notwithstanding the expiry date on Mr Burgess’ card, he will continue to receive the benefit of the card while he remains in receipt of DSP. This Tribunal agrees with that statement and cannot accept Mr Burgess’ submission that the card should not have an expiry date and instead be issued for his “lifetime”.
CONCLUSION
The Tribunal agrees that there is no jurisdiction for review of Mr Burgess’ claim to compensation under the Victims Support and Rehabilitation Act 1996 (NSW). Nor was there a reviewable decision made in regard to payment of EMEP.
The Tribunal is only able to consider the merits of the decisions made in regards to the amount of rent assistance payable to Mr Burgess and his request that the start date and expiry date on his pensioner concession card be altered. The Tribunal finds that he currently receives that maximum amount of rent assistance available to him and that the dates on his pensioner concession card are correctly recorded.
DECISION
The Tribunal affirms the decisions under review.
I certify that the preceding 34
(thirty four) paragraphs are a true copy of the reasons for the decision herein of Mr P Wulf, Member.....................[Sgd]..............................................
Associate
Dated 12 November 2012
Date of hearing on the papers 23 October 2012
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