Dixon and Secretary, Department of Employment and Workplace Relations

[2006] AATA 872

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 872

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   N2005/1059

GENERAL ADMINISTRATIVE   DIVISION		)
Re		PETER DIXON

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Ms N Bell, Senior Member

Date12 October 2006  

PlaceSydney

Decision The decision under review is affirmed

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

Ms N Bell
  Senior Member

SOCIAL SECURITY - Rent Assistance – Notice of Cessation of Payment – Applicant Has No Fixed Address – No Notices Received – Notice Deemed to Have Been Given - Request for Arrears – Request Not Made Within 13 Weeks From Notice – Entitlement From Date of Application For Review – Decision Under Review Affirmed

Social Security (Administration) Act 1999, s27, s109, s237

Acts Interpretation Act 1901

Repatriation Commission v Gordon and Others (1990) ALR 255

Fancourt v Mercantile Credits Ltd (1993) 154 CLR 87

S, DFCS v Laurent [2003] FCA 1017

REASONS FOR DECISION

11 October 2006 Ms N Bell, Senior Member

1.      Mr Dixon is, to use his own term, itinerant.  To spend more than a few days in one place is unusual for him. Consequently, he has no fixed address.  He receives a disability support pension, a component of which is a rent assistance payment. Mr Dixon says he ought to have received rent assistance payments between 10 February 1997 and 24 May 2005.  He maintains that he pays rent or lodgings of about $100 a week and has always done so.  Because he does not receive mail it was not until 24 May 2005, when visiting a Centrelink office, that Mr Dixon became aware that rent assistance was not included as part of his disability support pension.

2.       Mr Dixon’s contention is straightforward; he pays rent therefore he is entitled to receive rent assistance.  The fact that his itinerant lifestyle may create administrative problems for Centrelink, he says, should in no way affect his right to receive the payment. 

3.      Centrelink’s reasoning is also clear.  Mr Dixon’s disability support pension was suspended in December 1996 because he had failed to respond to a notice.  On 10 February, Mr Dixon visited a Centrelink Office to find out why his pension had not gone into his bank account.  Mr Dixon’s disability support pension was reinstated that day and was confirmed by letter.  His pension did not include rent assistance because, Centrelink says, Mr Dixon did not advise Centrelink that he was paying rent.

4.      Notices were sent to Mr Dixon concerning changes in the rate of his disability support pension on 10 February 1997; 19 March 1997; 24 December 1997; 5 February 1998; 21 May 1999; 10 November 1999; 7 September 2001 and 7 September 2002.  Mr Dixon did not request a review of his rate of disability support pension within 13 weeks of any of these notices being sent.  It is on this basis Centrelink maintains no arrears of rent assistance are payable from 10 February 1997.  Instead, arrears of rent assistance are only payable from the date he made an application for review.

5.      On 2 June 2003, Mr Dixon advised of a change of address and accommodation details, and subsequently was entitled to a new rate of pension for the period 21 May 2003 to 3 June 2003 which included a rent assistance component. 

issue

6. The first issue to be determined is whether Mr Dixon was given notice of Centrelink’s decision to stop rent assistance payments on 10 February 1997. Section 237 of the Social Security (Administration) Act 1999 (“the Act”) relevantly provides:

237(1)“If notice of a decision under the social security law is:

(a)       delivered to a person personally; or

(b)       left at the address of the place of residence or business of the person last known to the Secretary; or

(c)       sent by prepaid post to the postal address of the person last known to the Secretary;

Notice of the decision is taken, for the purposes of the social security law, to have been given to the person.”

237(2) “Notice of a decision under the social security law may be given to a person by properly addressing, prepaying and posting the document as a letter.”

237(3) “If notice of a decision is given in accordance with subsection (2), notice of the decision is taken to have been given to the person at the time at which the notice would be delivered in the ordinary course of the post unless the contrary is proved.”

7. The second issue for me to consider is whether Mr Dixon can be paid arrears of rent assistance back to 1997. Section 109 of the Act governs the date of effect of a favourable determination resulting from a review and provides relevantly:

“109(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)       a 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.”

109(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.

the notices sent to mr dixon

8.      The notices, referred to above, all show that no rent assistance was being paid as a component of Mr Dixon’s disability support pension.  A Centrelink “on line document” notes that Mr Dixon, when visiting the Ashfield Centrelink Office on 10 February 1997, asked that an address in Victoria be used.  The documents before me show that the next change of address advised by Mr Dixon was in October 2004 and then again in July 2005.

9.      At the Hearing Mr Dixon, in answer to a question about how he receives mail, said “I don’t get mail”.  Mr Dixon said that he sometimes calls Centrelink, but will usually go to a Centrelink office when he needs to get a new interim pension card, the issue of which is not recorded electronically.  When asked how long, over the last 10 years, he has remained at one address, Mr Dixon said that his most recent address would be the one he has remained at the longest because he has “been waiting for this hearing”. 

10.     Mr Dixon was asked whether he has always told Centrelink of an address where he can be contacted or whether he had suggested to Centrelink a way it could get their letters to him.  Mr Dixon said “The reality is by being honest, not being there, they can’t either (sic) contact me by letter”.  Also at the Hearing Mr Dixon said, in relation to being sent a pension card, “the reality is they don’t because they can’t because I am itinerant.  The reality is your Department…cannot cope with someone being itinerant”. 

11.     Mr Dixon is correct.  Unless he places a call to Centrelink or visits a Centrelink office he has no way of being informed of his pension payments and any changes that may be made to them.  The address the notices went to was the last known address Centrelink had on file for Mr Dixon.  These notices were not received by Mr Dixon because, as he said, he does not get mail.

12. However, the effect of section 237(1) of the Act is that, if a notice is sent by prepaid post to the postal address of the person last known to the Secretary, then it is deemed to have been given to the person. I note that section 237(3) provides for notice to be taken to have been given at the time at which it would be delivered in the ordinary course of the post unless the contrary is proved.  A similar provision, with that qualification, is contained in the Acts Interpretation Act 1901.  In Repatriation Commission v Gordon and Others, (1990) 100 ALR 255, Spender J considered that the qualification in this deeming provision is not restricted to proving a time of delivery different from the ordinary time at which a letter would be delivered, but extends to the proof that the letter was never delivered at all. I accept that Mr Dixon did not receive the notices. However, that does not mean they were not delivered. In Gordon, Spender J canvassed this distinction by reference to the High Court’s decision in Fancourt v Mercantile Credits Ltd, (1983) 154 CLR 87:

In Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 ; 48 ALR 1, the High Court was concerned with s 39(1) of the Queensland Acts Interpretation Acts 1956–1962, which is equivalent to s 29 of the Acts Interpretation Act 1901 (Cth). The court (Mason, Murphy, Wilson, Dean and Dawson JJ) said (CLR at 96–7; ALR at 8):

There is a line of cases, commencing with R v County of London Quarter Sessions Appeals Committee; Ex parte Rossi [1956] 1 QB 682, which deal with the effect of proof of non-delivery where service by post is permitted and used, having regard to s 26 of the Interpretation Act 1889 (UK). That section is the equivalent of s 39(1) of the Queensland Acts Interpretation Acts. The effect of the cases appears to be that proof of non-delivery means that service cannot be deemed to have taken place under the second limb of the section at the time of delivery in the ordinary course of the post and cannot be established as having taken place at any other time. The consequence is that where it is necessary to establish service at a particular time, proof of non-delivery is as effective as proof of non-service, notwithstanding that service by post is in the circumstances permitted and the requirements of the Interpretation Act are observed: see Beer v Davies [1958] 2 QB 187; Hewitt v Leicester Corporation [1969] 1 WLR 855 ; [1969] 2 All ER 802; Saga Ltd v Avalon Promotions [1972] 2 QB 325n; A/S Cathrineholm v Norequipment [1972] 2 QB 314; cf Lombard Australia Ltd v Mohrwinkel (1973) 21 FLR 277 ; 1 ACTR 57. It may be thought that there is an anomaly in such a result because it means that, notwithstanding the adoption of a permitted means of service, the service is nevertheless ineffective if there is proof of non-delivery. It is, however, unnecessary to pursue these decisions here save to remark that they are all cases in which delivery was disproved. Despite remarks in the judgments about non-receipt, it was non-delivery which was significant because the second limb of s 26 of the Interpretation Act refers to proof of the contrary of delivery. As the present case shows, delivery may be different from receipt by the intended recipient and, provided that delivery is not disproved, the fact of non-receipt does not displace the result that delivery is deemed to have been effected at the time at which it would have taken place in the ordinary course of the post. There is here no evidence of non-delivery…

13.     Similarly there is no evidence, in this application, of non-delivery.

14.     I am satisfied that Centrelink gave Mr Dixon notice of the decision to remove the rent assistance component of his disability support pension.

payment of arrears

15.     Mr Dixon requested rent arrears on 24 May 2005 and that, in effect, the decision to remove the rent assistance component from his disability support pension on 10 February 1997, be reviewed (T 45).  I am satisfied, for the reasons noted above, that Mr Dixon was given notice of the decision dated 10 February 1997.  It is settled law that rent assistance is a component of payment and not a discrete pension, benefit or allowance requiring a separate notice (SDFCS and Laurent [2003] FCA 1017). It follows that the notice given to Mr Dixon, setting out the components of his disability support pension and making no reference to rent assistance, was sufficient notice of the decision to remove rent assistance as a component of his pension payment. Unfortunately for Mr Dixon, because he did not seek review of the decision until 24 May 2005, due to the operation of section 109(2) of the Act, he cannot receive arrears dating back to 10 February 1997.

other matters raised by mr dixon at the hearing

16.     In addition to Mr Dixon’s claim for arrears of rent assistance, he raised a number of other concerns.  His concerns were that his Centrelink records are incomplete, particularly in relation to the issuing of interim pension cards to Mr Dixon, as well as having been provided with interim pension cards for periods that exceed the prescribed 14 days.  I note these concerns but do not have jurisdiction to make a decision in relation to them. 

17.     On 3 March 2006, Mr Duri on the Secretary’s behalf advised that he had requested Mr Dixon’s file from one of the Centrelink Offices Mr Dixon said he frequented.  This information, consisting mainly of bank account statements, was received by the Tribunal on 6 March and forwarded to Mr Dixon, at an address he provided at the hearing on 9 March. 

18.     Some time later Mr Dixon made contact with the Tribunal by telephone to confirm receipt of these additional documents and noted that he wanted to provide further written material himself but stated this material may take him some time to collate.  Mr Dixon was told that he could have a reasonable amount of time to do this and was asked to keep the Tribunal advised of his progress. 

19.     On 15 May 2006 Mr Dixon contacted the Tribunal to advise that he was hoping to obtain and provide some hospital records but had found out he would have to approach the hospitals concerned individually.  He noted that this was too arduous a task and asked whether he could simply provide a written statement.  On 27 July 2006, with the Respondent’s knowledge and consent, Mr Dixon provided a further statement to the Tribunal.  In his statement Mr Dixon noted a wide range of hospitals that he had attended during the period 1996 to 2003.  He stated the hospitals would have a record of his address current at the times of his admission.  Mr Dixon reiterated in his statement that he paid for accommodation all the while and was not in receipt of rent assistance.  I accept his further evidence but note that it does not assist his application.  The evidence does, however, provide further proof of his itinerant lifestyle. 

decision

20.     The decision under review is affirmed.

I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member

Signed:         ……………… [ Sanjiv Shah ]………………
   Associate

Date of Hearing  1 March 2006
Date of Decision  12 October 2006

Representative for the Respondent        Alan Duri