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

[2021] AATA 1097

Giansiracusa and Secretary, Department of Social Services (Social services second review) [2021] AATA 1097 (30 April 2021)

Division:GENERAL DIVISION

File Number:          2020/6570

Re:Maria Giansiracusa

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member R West

Date:30 April 2021

Place:Melbourne

The Tribunal affirms the decision under review.

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

Member R West

CATCHWORDS

SOCIAL SECURITY – carer payment – rent assistance – payment of arrears – s.109 Social Security (Administration) Act 1999 – decision affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

Social Security Act 1991 (Cth)

Social Security (Administration) Act 1999 (Cth)

CASES

Austin v Secretary, Department of Family and Child Support (1999) 92 FCR 138

Secretary, Department of Family and Child Support v Rogers (2000) 104 FCR 272

REASONS FOR DECISION

Member R West

30 April 2021

1. This matter concerns an application for review of the decision of the Administrative Appeals Tribunal (Social Services & Child Support Division) dated 13 October 2020 affirming the decision of the Department of Social Services not to pay the Applicant arrears of rental assistance prior to 2 July 2020.

2. A hearing in relation to the application was held by telephone on 19 March 2021.  The Applicant was self-represented.  The Respondent was represented by Mr Brian Sparkes, a solicitor with Services Australia.

3. The hearing was conducted in the context of restrictions placed on the community in response to the COVID–19 pandemic. These restrictions necessitated that the hearing not be conducted in person or be deferred until the restrictions were lifted. The Tribunal determined pursuant to section 33A of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) to conduct the hearing on 19 March 2021 by telephone.

4. In conducting the Review, the Tribunal has had regard to the documents produced by the Respondent pursuant to section 37 and section 38AA of the AAT Act (T Documents and Supplementary T Documents), and the oral evidence of the Applicant.

5. The factual basis for the Applicant’s claim is largely uncontested and on the basis of admissions made by both parties, the Tribunal makes the following findings of fact: 

   a.On 29 November 2018 the Applicant made a claim for carer payments in accordance with the Social Security Act 1991 (Cth) (Act).  In making her claim the Applicant provided sufficient supporting documentary evidence to enable the Respondent to properly assess her entitlement, including all relevant details of her accommodation status. 

   b.On 30 March 2019 the Respondent advised the Applicant in writing,[1] of the grant of carer payments effective from 29 November 2018, including the rate of payment, various components of the payment and the basis upon which it was calculated (Written Advice).

   c.The Applicant was entitled to rent assistance as a component of her carer payment but it was not included in the carer payments granted to the Applicant due to an error by the Respondent in that it incorrectly coded the Applicant as a home owner.  Rent assistance was not mentioned in the Written Advice.

   d.The Applicant did not become aware that she was not receiving rent assistance until 2 July 2020 when she sought a review of her entitlement.

   e.The Respondent acknowledged its administrative error and paid the Applicant rental assistance from 2 July 2020.

   [1] T Documents, T8 at p.61.

6. The sole issue between the parties is the date from which the rent assistance should have been paid to the Applicant. The Applicant argued that it should have been paid from the date she became entitled to the carer payments on 29 November 2018. The Respondent stated, while acknowledging that the Applicant would have been entitled to the rent assistance from 29 November 2018 had it not been for its error, that it was constrained by section 109(2) of the Social Security (Administration) Act 1999 (Administration Act) and was bound to pay the rent assistance from 2 July 2020.

7. Sub-section 109(2) of the Administration Act relevantly provides:

   (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)  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.

8. Section 108 defines a "favourable determination" to mean a determination under section 78, 85, 85AA or 85A.  Relevantly in this case, section 78 provides that:

   If the Secretary is satisfied that the rate at which a social security payment is being, or has been, paid is less than the rate provided for by the social security law, the Secretary must:

   (a)  determine that the rate is to be increased to the rate provided for by the social security law; and

   (b)  specify the last-mentioned rate in the determination.

9. The original decision in relation to the Applicant’s claim for carer payments was notified to the Applicant by letter dated 30 March 2019.[2] The Applicant acknowledged receiving the letter in her oral evidence. The letter did not refer to rental assistance as the Respondent had incorrectly determined that no rental assistance was payable. The Tribunal is satisfied that the letter of 30 March 2019 was proper notice for the purpose of section 109(2). It informed the Applicant that a decision had been made and set out each component of the payments to be made.[3]  Although it did not expressly refer to rental assistance, the reference to other components of the payment would reasonably enable a person in the Applicant’s position to know that there was no payment to be made for rental assistance. The letter also invited the Applicant to contact Centrelink if she had any questions or required more information.  A contact number was provided.  The letter provided sufficient information for the Applicant to make a decision whether or not to seek a review of the decision.[4]

   [2] T Documents, T8 at p.61.

   [3] Austin v Secretary, Department of Family and Child Support (1999) 92 FCR 138.

   [4] Secretary, Department of Family and Child Support v Rogers (2000) 104 FCR 272.

10. The Applicant’s entitlement was reviewed by the Respondent on 2 July 2020, more than 13 weeks after the initial decision.

11. The Applicant gave oral evidence regarding the circumstances giving rise to the review.  She said that she was unaware that she was not being paid rental assistance and that she raised concerns regarding the adequacy of her payments generally with Centrelink staff on a number of occasions between 30 March 2019 and 2 July 2020.  The Applicant was unable to give precise dates upon which she contacted Centrelink or to identify the officers to whom she spoke.  She was, in addition, unclear as to the nature of the concerns she raised.  Centrelink records only record two occasions upon which the Applicant raised general queries regarding her financial position and the adequacy of her carer payments during this period. The Centrelink record[5] indicates that on 23 and 31 May 2019 the Applicant raised a concern regarding the early release of superannuation due to hardship.

    [5] T Documents, T7 at pp. 50 and 51.

12. The Applicant gave evidence that when she contacted Centrelink on 2 July 2020, the officer reviewed her entitlement on the computer and noted that she was not receiving rental assistance.  The Applicant said that this was the first time she realised that this was the case.  She stated that the officer informed her that there had been a coding error when her claim was processed and on the basis of the information she had provided at the time she made her original claim she should have been receiving rental assistance.   The Applicant’s entitlement was then re-assessed and rental assistance was paid to her effective from 2 July 2020.

13. On the basis of this evidence, the Tribunal cannot be satisfied that the Applicant had sought the review of the original decision at any time before becoming aware that she was not being paid the rental assistance on 2 July 2020. Accordingly, section 109(2) compels the Tribunal to come to the same conclusion reached in the decision under review, and as unfair to the Applicant as it is, the Tribunal has no alternative but to affirm that decision.

    Decision

14. The Tribunal affirms the decision under review.

I certify that the preceding 14 (fourteen) paragraphs are a true copy of the reasons for the decision herein of Member R West

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

Associate

Dated: 30 April 2021

Date of hearing:

19 March 2021

Advocate for the Respondent:

B. Sparkes

Solicitors for the Respondent:

The Applicant:

Services Australia

By phone