Edenborough and Secretary, Department of Social Services (Social services second review)

[2023] AATA 2604

Edenborough and Secretary, Department of Social Services (Social services second review) [2023] AATA 2604 (18 August 2023)

Division:                  GENERAL DIVISION

File Number:          2022/3236

Re:Caitlin Edenborough

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Mrs J C Kelly, Senior Member

Date:18 August 2023

Place:Sydney

The reviewable decision is affirmed.

.................................[sgd]......................................

Mrs J C Kelly, Senior Member

CATCHWORDS

FAMILY ASSISTANCE – family tax benefit – rent assistance – whether the decision to cease payment of rent assistance was correct – whether the applicant had been notified that rent assistance had ceased – whether there were special circumstances preventing the applicant from making an application for review within 52 weeks of being notified of the original decision – reviewable decision affirmed

LEGISLATION

A New Tax System (Family Assistance) Act 1999 (Cth)

A New Tax System (Family Assistance) (Administration) Act 1999 (Cth)

Acts Interpretation Act 1901 (Cth)

Evidence Act 1995 (Cth)

CASES

Angelakos and Secretary, Department of Employment and Workplace Relations [2007] FCA 25

Dranichnikov v Centrelink [2003] FCAFC 133

SECONDARY MATERIALS

Department of Social Services, ‘Family Assistance Guide’ Guides to Social Policy Law

REASONS FOR DECISION

Mrs J C Kelly, Senior Member

18 August 2023

Introduction

1. Ms Edenborough, the Applicant, is seeking to receive a payment of Rent Assistance (RA) in arrears, for the period 13 December 2019 to 30 June 2020 (the relevant period). In summary, she moved from Kellyville Ridge to an address in Castle Hill (Castle Hill 1) in October 2019 but according to Services Australia (the Agency) she did not provide proof of the rent she was paying and on 11 December 2019 the decision was made to cease paying RA from 13 December 2019 (the original decision). She did not seek review of that decision until 3 September 2021. Her application was successful to the extent that she received arrears from 1 July 2020.

   Ms Edenborough’s case

2. There are three aspects to Ms Edenborough’s case.

3. First, during the hearing, the question arose whether on 25 October 2019 Ms Edenborough had uploaded onto the Agency’s system a rental agreement for Castle Hill 1. Arguably if she had, the decision to cease payment of her RA was incorrectly made.

4. Secondly, Ms Edenborough denies ever receiving a letter at the end of 2019 or beginning of 2020, or at any time, advising her that her RA had ceased and therefore she did not have the opportunity to seek review of the decision.

5. Thirdly, Ms Edenborough says that special circumstances prevented her from applying for review of the 11 December 2019 decision with the consequence that the arrears are payable from 13 December 2019.

   The regulatory framework

6. The relevant law is found in the following Commonwealth laws:

   ·A New Tax System (Family Assistance) Act 1999 (Cth) (the FA Act);

   ·A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) (the FA Administration Act);

   ·Evidence Act 1995 (Cth); and

   ·Acts Interpretation Act 1901 (Cth).

7. The Guides to Social Policy Law (the Guide) may also provide assistance.

8. Where a person receives Family Tax Benefit (FTB), the RA component is included if the person is paying private rent.

9. RA is payable in accordance with the family assistance law contained in the FA Act and the FA Administration Act.

10. Clause 38C of Schedule 1 to the FA Act is about eligibility for RA, which include having at least one RA child and paying rent, other than Government rent.

11. The Agency’s Family Assistance Guide sets out verification requirements before RA can be paid at 3.1.4.30. It includes by a current ‘lease’ or written tenancy agreement or a rent verification document determined by the Agency, in this case a rent certificate.

12. Ms Edenborough did not assert that she did not have to provide verification.

13. The FA Administration Act sets out an applicant’s review rights in Part 5, Division 1, Subdivision B. Ms Edenborough had a right to seek review of the original decision pursuant to section 109A of that Act.

14. Section 109D(1)(b) of the FA Administration Act requires that applications for review must be made no later than 52 weeks after the applicant is notified of the decision.

15. Section 109E of the FA Administration Act prescribes the date of effect of certain decisions. Where an application is made more than 52 weeks after the person was given notice of the original decision, as in this case, and the authorised review officer decides to set aside the original decision and substitute a new decision that increases an entitlement to FTB by instalment, the date of effect of that ‘review’ decision is the start of the income year before the income year in which the application for review was made.

16. Ms Edenborough applied for review in September 2021. Therefore, the date of effect of the decision granting her arrears RA was 1 July 2020. 

17. In this case, it is only if the Secretary is satisfied that special circumstances prevented Ms Edenborough from making an application for review of the original decision within 52 weeks of being notified of it, that a longer period may be determined, as appropriate.

18. The Agency’s records show that the decision to cancel RA on 11 December 2019 was the consequence of the Applicant contacting the Agency in relation to FTB for a newborn and advising new contact details, including a new address.

19. The letter which advised Ms Edenborough that RA had ceased, was sent on that day. It comprised three pages. Following is a copy of the relevant information on the first page and the first part of the second page.

    Reference: (omitted)

    Miss Caitlin P Edenborough

    …………………..

    11 December 2019

    $1,595.32

     
    YOUR FAMILY ASSISTANCE

    Payment from 13/11/2019 to 11/12/2019 paid on 13/12/2019 

    Family Tax Benefit Part A	$585.20
    Plus Energy Supplement Part A	+ $11.00
    Plus Rent Assistance	+ $33.00
    Plus Newborn Supplement	+ $406.12
    Plus Newborn Upfront Payment	+ $560.00
    Total	$1,595.32

     
     
    

    Regular Payment from payment date 20/12/2019

Family Tax Benefit Part A	$744.80
Plus Family Tax Benefit Part B	+ $158.34
Plus Energy Supplement Part A	+ $14.00
Plus Energy Supplement Part B	+ $2.80
Plus Newborn Supplement	+ $258.44
Total	$1,178.38

Payment for	Care %
(Child 1)	100
(Child 2)	100
(Child 3)	100
(Child 4)	100

 

Information used for calculating your

regular payment

(Includes child support received)

FTB Part A No Income required

FTB Part B No Income required

Continued on the back

Continued from previous page

ImportantInformation

·We cannot continue paying you Rent Assistance because we do not have proof of the amount of rent you pay. If you want to apply for Rent Assistance again, please complete the Rent Certificate form and return it to us. You also need to attach your current lease or tenancy agreement. If you do not have this, your landlord or authorised representative needs to sign this form.

1. On page two, clearly set out under various headings, is the requirement under family assistance law to advise the Agency ‘as soon as possible after’ or becoming aware of ‘these things’ being likely to happen, including ‘stop paying rent or the amount you pay changes’, and ‘change address’.

2. On page three, clear advice is set out under clear headings about “What to do if you think this decision is wrong” and ‘If you do not agree with a decision we have made’. It states:

   If you do not agree with a decision we have made, contact us as soon as possible.  It is important to ask for a review within 52 weeks of being notified about the decision. If your request for a review is more than 52 weeks after being notified and the decision can be changed, you may only receive your entitlement from the date you requested the review.

   Correspondence from January 2020 on which the Respondent relies

3. The Respondent provided letters it claims were sent to Ms Edenborough from 29 January 2020 to 2 July 2020. All were addressed to her mother’s address, included the details of her payments for a particular period in a similar format to the letter of 11 December 2019 and notification of her obligations to advise changes in her circumstances and her review rights, as set out above.

4. The notices were dated 29 January 2020, 12 February 2020, 4 March 2020, 27 March 2020, 28 April 2020, 6 May 2020, 18 May 2020, 20 May 2020, 18 June 2020, and 2 July 2020.  None of them included payment of RA.

5. In addition, on 2 July 2020, the Agency issued a notice to the Applicant advising her of her FTB entitlement for the 2019/2020 financial year. It also reminded the Applicant of her review rights.

   Events from September 2021

6. When Ms Edenborough moved again in August 2021 to another address in Castle Hill (Castle Hill 2), she did provide proof of the rent she was paying: the complete lease agreement.

7. On 2 September 2021, the Agency issued a notice to the Applicant advising her of her family tax benefits from 26 August 2021 which included RA. It also set out her notification obligations and appeal rights.

8. On 3 September 2021, the Applicant made enquiries with the Agency, including about the non-payment of RA for a number of years. She was sent a new Rent Certificate to complete.

9. Ms Edenborough was dissatisfied with how she was treated by the Agency on 6 September 2021 because she believed that she was told that she would receive arrears from 19 October 2019. However, the following is clear:

   ·Ms Edenborough provided to the Agency a Rent Certificate for the Castle Hill 1 premises where she was paying $520.00 per week. The document was marked ‘Return this form by 2021 September 24’ and included the heading ‘Your accommodation details as at 19 Oct 2019’.

   ·She was paid arrears of RA to 1 July 2020, that is, it was backdated to the beginning of the last financial year, 2020-2021. The arrears were limited to that start date because Ms Edenborough had not sought review of the change in her rate of payment of RA within 52 weeks of being notified of the change in the rate to $0 on 11 December 2019. 

   ·She requested review of the decision not to pay RA from 19 October 2019 to 30 June 2020.

10. On 1 October 2021, the Authorised Review Officer affirmed the decision not to pay RA prior to 1 July 2020 because Ms Edenborough did not request a review of her rate of payment within 52 weeks of being notified of the decision.

11. On 22 December 2021, Ms Edenborough lodged an appeal with the Social Services and Child Support Division of this Tribunal (AAT1) which on 25 March 2022, affirmed the decision under review.

12. On 21 April 2022, the Applicant lodged an application for review of the decision of AAT1 with the General Division of this Tribunal (AAT2). AAT1’s decision is the reviewable decision.

    Did Ms Edenborough upload a copy of the Castle Hill 1 lease on 25 October 2019?

13. I accept that at the time of the hearing, Ms Edenborough believed that she had uploaded a copy of the Castle Hill 1 lease when she moved in October 2019. 

14. The Tribunal appreciates the assistance of Mr Lozynzky who appeared for the Respondent in relation to this question.

15. During the hearing, Mr Lozynzky accessed the Agency’s system to see what documents had been uploaded on various dates and provided them and screenshots showing the computer screen he was accessing, to the Tribunal and to Ms Edenborough. The screenshot set out columns which allowed access to documents and set out details of the document that had been uploaded, including its ID, Form Title, Capture and Receipt Dates, and its source, for example ‘MOB’, ‘WEB’ and ‘scan’.

16. I am satisfied that on 25 October 2019 Ms Edenborough uploaded pages 1, 10, and parts of page 7 and two other pages, of the Kellyville Ridge lease which was for 24 months starting ‘03/06/2017’. She had uploaded a complete copy of that lease and a rent certificate on 18 July 2017. By comparing the lease documents, I was able to come the conclusion I have.

17. On 11 December 2019 when the Agency decided to cease payment of RA to Ms Edenborough, she had not provided proof of the rent she was paying for Castle Hill 1. 

    Was Ms Edenborough notified of the decision made on 11 December 2019 to cease payment of RA?

18. Ms Edenborough accepts that the address on all the correspondence from the Agency was correct in that it was the address she had provided, that is, her mother’s residential address.

19. In support of her claim that she had not received the letter of 11 December 2019 or any other letter or notification that her RA had ceased or that she had to provide more documents, Ms Edenborough relied in part on her mother’s written statement dated 11 September 2022.

20. Her mother’s evidence was as follows. Ms Edenborough had authorised her mail to be delivered to her mother’s address for more than six years so that she could check the correspondence and alert Ms Edenborough to what needed further action, such as paying bills or following up information.

21. Ms Edenborough confirmed that she relies on her mother to read and organise her correspondence into different categories in expanding files and to alert her to matters Ms Edenborough must attend to, but in response to a question during her oral evidence, she said that she goes through her mail with her mother.

22. Her mother ‘confirmed’ that no mail from Centrelink addressed to Ms Edenborough had arrived at her residential address regarding RA or any other matter ‘in the last two and a half years’ (that means no mail since about March 2020). During her oral evidence, Ms Edenborough said that her mother was wrong and it was from December 2019. She said that she did receive a letter in November 2019 from Medicare stating that one of her twins had been left off the form.

23. I accept that Ms Edenborough’s mother is approximately correct, because during her oral evidence, Ms Edenborough said that since about May 2020, she receives letters online through MyGov. She has an app. She created a new ‘ID’. I infer that Ms Edenborough made that change because of the constraints which were imposed by governments during COVID-19 from March 2020. I infer that she made that change sometime around March to May 2020. For the purposes of this case, precisely when does not matter. In December 2019 correspondence from the Agency was sent to the address of Ms Edenborough’s mother.

24. Ms Edenborough’s mother stated that Ms Edenborough had contacted the Agency on many occasions during the last two and a half years. She had been with Ms Edenborough late in 2019 when she rang the Agency multiple times to clarify that she had given birth to twins and not to one baby and at no stage did the person on the telephone mention her needing to supply a rent certificate which Ms Edenborough believed had already been processed when she moved in October 2019.  

25. Ms Edenborough accepted that she had contacted the Agency about a debt and vaccinations in January 2020.

26. Section 224 of the FA Administration Act provides that notice of decisions under the family assistance law are taken to have been given to the person if the notice is sent by post to the address of the person last known to the Secretary.

27. Taken together, sections 28A and 29 of the Acts Interpretation Act 1901 provide that if a letter is sent by prepaid post to the person’s last known address, it is taken to be received at the time it would normally be delivered in the post. 

28. Section 160 of the Evidence Act 1995 provides that it is presumed ‘unless evidence sufficient to raise doubt about the presumption is adduced’ that a postal article sent by prepaid post to a person at a specified address in Australia is received on the seventh working day after having been posted.

29. I am satisfied that the letter of 11 December 2019 was posted to the last address known to the Secretary by prepaid post and was received at that address. Notice of the decision is taken to have been given to Ms Edenborough pursuant to section 224 of the FA Administration Act.

    Special circumstances

30. Ms Edenborough’s mother outlined the circumstances that led to the mail arrangement.  They included Ms Edenborough’s mental health conditions. She observed that Ms Edenborough had had difficulty keeping in regular clinical contact with her clinical psychologist over the last two years due to government restrictions relating to COVID-19 and her extensive family responsibilities. Both Ms Edenborough’s two older children had been diagnosed with mental health conditions.  

31. Ms Edenborough’s mother also described Ms Edenborough’s circumstances towards the end of 2019. The following is an amalgam of hers and Ms Edenborough’s evidence.

32. When Ms Edenborough moved to Castle Hill 1 in October 2019, she was heavily pregnant with her twins and had two young daughters aged five and three. It was an extremely difficult pregnancy. Ms Edenborough gave birth to the twins by emergency caesarean section on 13 November 2019 and remained in hospital for seven to 10 days. She had expected the father of the twins to move in and help her, but he provided no support to her. Her wound became seriously infected and was not appropriately treated for several weeks. COVID-19 arrived in Australia around March 2020 leading to lockdowns. Ms Edenborough shopped online, and occasionally her mother would drop off groceries.

33. Ms Edenborough suffers from severe asthma and was inordinately impacted by extreme bush fires across Sydney over several months at the end of 2019. All those circumstances took a huge toll on Ms Edenborough’s mental and physical health and left her struggling with her many responsibilities. Her primary focus from March 2020 had been the care of her four children and her own health. During 2020 she did not physically leave the house. If she did, her second daughter would run off. She had the twins in a pram. It was difficult to get the children in and out of the car.

34. In those circumstances, Ms Edenborough and her mother thought it was entirely unreasonable for the Agency not to have followed up with her about her RA stopping.

35. There was no medical evidence before the Tribunal. When asked about that, Ms Edenborough said that she did not realise that she needed to provide such evidence. She had advised her obstetrician and psychiatrist that someone might call.  

36. The phrase ‘special circumstances’ is not defined in the FA Administration Act. The Respondent referred to cases where the phrase ‘special circumstances’ has been considered in other legislation. The following two examples are sufficient.

37. In Dranichnikov v Centrelink [2003] FCAFC 133, the Full Federal Court stated:

    66…what is required will be circumstances which distinguish the case in consideration from the usual case. There will be a requirement that the circumstances are such that takes the case out of the ordinary…

    57.     In Angelakos and Secretary, Department of Employment and Workplace Relations [2007]

    FCA 25, the Federal Court stated:

    33.…There is less overstatement if the words "unusual" or "uncommon" are emphasised. Those words indicate, correctly in my view, the fact that there must be something that distinguishes the case from the ordinary or usual case…

38. Subsection 109E(2) of the FA Administration Act requires that the Secretary is satisfied that special circumstances prevented Ms Edenborough from making an application for review of the original decision within 52 weeks of being notified of it,  that a longer period may be determined, as appropriate. (Emphasis added.)  To be ‘prevented’ from applying for review is a high threshold to establish.

39. Ms Edenborough was not aware of the decision that RA had ceased because neither she nor her mother noticed it in the letter of 11 December 2019. That she was able to contact the Agency about other aspects of her entitlement around the same time strongly weighs against her being ‘prevented’ by her circumstances from seeking review of the 11 December 2019 decision. 

1. In addition to receiving the letter of 11 December 2019 which showed on the first page that RA was not going to be paid in the future and the explicit reference to the decision on the second page and what she had to do, she received several letters from January 2020 to July 2020 that did not include a payment for RA. I note that from March or May 2020 she was receiving the letters through MyGov. That she was not being paid RA simply escaped her notice. I understand that she was facing real hardship and was struggling to deal with her own health, two newborns and two young daughters who have been diagnosed with mental health conditions. However, those circumstances did not prevent her from seeking review.

   DECISION

2. For the above reasons, the reviewable decision is affirmed.

I certify that the preceding 61 (sixty-one) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

....................................[sgd]....................................

Associate

Dated: 18 August 2023

Date of hearing:	14 July 2023
Date final submissions received:	19 July 2023
Applicant:	In person
Solicitors for the Respondent:	Mr G Lozynsky, Services Australia