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

[2019] AATA 2037

Hall and Secretary, Department of Social Services (Social services second review) [2019] AATA 2037 (22 July 2019)

Division:GENERAL DIVISION

File Number(s):      2018/5803

Re:Blake Hall

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:The Hon. R Baldwin, Member

Date:22 July 2019

Place:Sydney

The decision under review is affirmed.

..........................[SGD]..............................................

The Hon. R Baldwin, Member

CATCHWORDS

SOCIAL SECURITY – rent assistance – where rent assistance cancelled – payment in arrears – whether applicant sought review of the decision within 13 weeks of being notified of the decision – where applicant sought review of decision not to pay rent assistance outside the 13 week period – decision affirmed

LEGISLATION

Social Security (Administration) Act 1999 (Cth) ss 109, 123C, 123D

REASONS FOR DECISION

The Hon. R Baldwin, Member

22 July 2019

ISSUES

1. The issue before the Tribunal is whether the Applicant can be paid Rent Assistance (RA) in arrears from 18 April 2017 to 17 September 2017. This requires consideration of whether the Applicant sought review of the decision to not include RA in his rate of payment within 13 weeks of being notified of that decision.

   BACKGROUND

2. Mr Blake Hall (the Applicant) lodged an appeal on 2 September 2018[1] seeking a review of the decision made by the Administrative Appeals Tribunal (Social Services and Child Support Division) (AAT1) on 13 August 2018.[2]

   [1] Exhibit T1.

   [2] Exhibit T2.

3. In that decision, the AAT1 affirmed a decision made by the Department of Human Services (the Department) that the Applicant was not able to be paid arrears of RA from 18 April 2017 to 17 September 2017.  The reason for that decision was that the Applicant failed to seek a review of the decision not to pay him RA within 13 weeks of the suspension of that benefit.

4. On 18 April 2017, RA was ceased when the Applicant left a Salvation Army facility (the first Salvation Army facility); it recommenced on 18 September 2017 when the Applicant began residence at another Salvation Army facility (the second Salvation Army facility).

5. The matter was heard at the Sydney Registry on 17 June 2019.  The Applicant did not attend, but was represented by his mother, Ms Tiziana Hall (Ms Hall).

6. On 23 February 2017, the Applicant lodged an unsuccessful claim for disability support pension (DSP) in respect of his ADHD, Oppositional Defiant Disorder and Depression.[3] In addition, the Applicant lodged a form authorising his mother, Ms Hall, as both his payment and correspondence nominee.[4]

   [3] Exhibit T4, p16-43.

   [4] Exhibit T4, p45-46.

7. In that claim, the Applicant indicated that he was residing with Ms Hall at the Peakhurst Heights address and paid rent of $100 per week and had done so since 1 January 2015.[5] 

   [5] Exhibit T4, p17, 29, 32.

8. On 3 April 2017, the Department wrote to the Applicant, granting him newstart allowance (NSA) with effect from 23 February 2017, the date of his DSP claim.[6] Included in the letter was a customer declaration form stating the Applicant had an obligation to complete, sign and return this form and to advise the Department of any changes to the Applicant’s circumstances within 14 days. The form indicated that the Applicant resided at the Peakhurst Heights address, that he was not a home-owner, that he was not paying rent and that he was living with his parents.[7] The letter also nominates Ms Hall’s bank account as the payment destination.  The Department has no record of this declaration form being returned.

   [6] Exhibit T10, p76.

   [7] Exhibit T12, p135.

9. As payment nominee, Centrelink paid the Applicant’s benefits into Ms Hall’s bank account, as at 3 April 2017, and again from 20 April 2017.[8]

   [8] Exhibit T12, p135, p164, ST5, p232.

10. On 7 April 2017, the Applicant advised the Department that he was a resident with the first Salvation Army facility and that he authorised the Salvation Army to act as both payment and correspondence nominee.[9]  On 18 April 2017 the Applicant left the first Salvation Army facility.[10]  

    [9] Exhibit T5, p50-51.

    [10] Exhibit T10, p79-80.

11. On 19 April 2017, the Applicant lodged a form authorising Ms Hall as his payment and correspondence nominee.[11] The payment nominee authorisation was effective immediately, however Ms Hall was not appointed as correspondence nominee by the Secretary until 25 May 2017.  A letter to that effect was sent to the Applicant[12] and Ms Hall[13] at the Peakhurst Heights address.  At the hearing Ms Hall contended she never received the letter.

    [11] Exhibit T6, p53-54.

    [12] Exhibit ST6, p234.

    [13] Exhibit ST7, p237.

12. On 20 April 2017, the Department wrote to the Applicant at the PO Box address and Salvation Army Albion Street address to advise that his nominee arrangement with the first Salvation Army facility had ended the at the facility’s request.[14] The Department also wrote to the Applicant and Ms Hall at the Peakhurst Heights address and advised that Ms Hall had been approved as the Applicant’s payment nominee.[15]

    [14] Exhibit T12, p166-167 and ST4, p230-231.

    [15] Exhibit T12, p164-165 + ST5, p232-233.

13. The Department decreased the Applicant’s NSA rate, ceasing the RA with effect from the 18 April 2017 when he vacated residence at the first Salvation Army facility. The Applicant was sent a notification letter to the Peakhurst Heights address on 2 May 2017 advising that there would be no RA included in the Applicants NSA rate.  The 13-week cut-off date for a review of that decision was 1 August 2017.[16]

    [16] Exhibit T12, p173-175.

14. A second notification letter was sent to the Peakhurst Heights address on 15 May 2017 clearly stating that the only benefits to be paid were NSA, Energy Supplement & Pharmaceutical Allowance.  There was no RA included in the benefit list in that letter.  The 13-week cut-off date for a review of that decision from the date of that notice was the 15 August 2017.[17]

    [17] Exhibit T12, p178-179.

15. On 24 May 2017, the Applicant’s claim for DSP was rejected. On 25 May 2017, Ms Hall requested review of the decision.[18]  Subsequently, on 22 September 2017, an Authorised Review Officer granted the Applicant DSP with effect from 23 February 2017.

    [18] Exhibit T10, p87.

16. On 3 October 2017, the Department sent a DSP rate notice to both the Applicant and Ms Hall at the Peakhurst Heights address advising the Applicant he would receive an immediate payment of $5,207.16 for the period from 23 February 2017 to 3 October 2017.[19] This amount included rent assistance arrears of $150.41 for the period from 23 February 2017 to 6 April 2017.[20]

    [19] Exhibit T12, p186-188 and ST8, p239-241.

    [20] Exhibit T11, p126.

17. The Applicant recommenced residence at the second Salvation Army facility on 18 September 2017. On 11 October 2017 the Applicant was paid RA arrears for the period 18 September 2017 to 4 October 2017.[21]

    [21] Exhibit T9, p60-63.

18. In the Appeal Application the Applicant wrote the reason the decision was wrong was because “proof rent certificate sent to Centrelink 15 January 2018”. [22]  The Rent Certificate showed the Applicant had commenced living at the Peakhurst Heights address on the 20 December 2017 and that he was paying $150.00 per week in rent. [23] RA arrears were paid for the period 19 December 2017 to 1 January 2018 following lodgement of this document.[24] The Tribunal finds this document has no relevance to the issue to be decided in this appeal as it is outside the period under consideration being 18 April 2017 to 17 September 2017.

    [22] Exhibit T1, p3.

    [23] Exhibit T7, p55.

    [24] Exhibit T8, p57.

19. The records show that the Applicant, through Ms Hall, first sought a review of the RA cessation decision on 10 October 2017,[25] which is outside the 13-week period.

    [25] Exhibit T10, p107 & T8, p57.

20. The Secretary contends that subsection 109(2) the Social Security (Administration) Act 1999 (Cth) (the Administration Act), in particular paragraph 109(2)(c) applies as the Applicant failed to seek review within the 13 weeks following the date a notice was sent to the Applicant on the 2 May 2017:

    If… more than 13 weeks after the notice is given, the person applies to the Secretary, under section 129, for a review of the original decision….

    The favourable determination takes effect on the day on which the application for review was made.

21. The Applicant’s contention is that the Applicant’s correspondence nominee, Ms Hall, was not notified of the decision to not pay the Applicant RA from 18 April 2017 and that paragraph 109(3)(b) of the Administration Act must apply that as notice was not given to Ms Hall, the correspondence nominee:

    If… the person is not given notice of the original decision and the person applies to the Secretary, under section 129, for review of the original decision 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.

22. The question for the Tribunal now to determine is whether the Department sent written notification to “the person” as required under section 109 of the Administration Act.

23. The Tribunal finds that letters of 2 May 2017 and 15 May 2017[26] to the Applicant are evidence that the Department has satisfied their obligation to notify “the person” in relation to changes in their benefit payment.

    [26] Exhibit T12, p173 -179.

24. The question now for the tribunal to determine is whether Ms Hall was “the person” as at 2 May 2017 and 15 May 2017 for purposes of notification by the Department.

25. On the 19 April 2017, the Applicant lodged a form nominating Ms Hall to be both his payment and correspondence nominee.[27] 

    [27] Exhibit T6, p53-54.

26. Ms Hall became the payment nominee on 19 April 2017.

27. Sections 123C and 123D relate to the appointment of a correspondence nominee. They provide as follows:

    123C Appointment of correspondence nominee

    Subject to section 123D, the Secretary, may (emphasis added) in writing, appoint a person (including a body corporate) to be the correspondence nominee of another person for the purposes of the social security law.

    123D Provisions relating to appointments

    1A person may (emphasis added) be appointed as the payment nominee and the correspondence nominee of the same person.

    2The Secretary must not appoint a nominee for a person (the proposed principal) under section 123B or 123C except:

    (a)with the written consent of the person to be appointed; and

    (b)after taking into consideration the wishes (if any) of the proposed principal regarding the making of such an appointment.

    3The Secretary must (emphasis added) cause a copy of an appointment under section 123B and 123C to be given to:

    (a)the nominee; and

    (b)the principal.

    4The Secretary must not appoint a payment nominee for a person who is the holder of a concession card but is not receiving a social security payment.

28. Ms Hall was appointed the correspondence nominee on 25 May 2017.  

29. It follows that paragraph 123D(3)(a) and (b) of the Administration Act require that both the nominee and the principal (the Applicant) be provided letters of the appointment of correspondence nominee. Letters to the Applicant[28] and Ms Hall[29] are evidence that the Secretary has satisfied the obligation

    [28] Exhibit ST6, p234.

    [29] Exhibit ST7, p237.

30. Section 123I of the Administration Act states:

    1Any notice that the Secretary is authorised or required by the social security law to give to a benefit recipient may (emphasis added) be given by the Secretary to the benefit recipient's correspondence nominee.

    2The notice:

    (a)must, in every respect, be in the same form, and in the same terms, as if it were being given to the benefit recipient; and

    (b)may be given to the correspondence nominee personally or by post or in any other manner approved by the Secretary.

31. The Secretary was under no obligation under section 123I of the Administration Act to give the notices to the correspondence nominee on 2 May 2017 and 15 May 2017.

    CONCLUSION

32. On the evidence before the Tribunal and for the reasons outlined above, the Tribunal finds that the Applicant did not have an appointed correspondence nominee under section 123C of the Administration Act on 2 May 2017 and 15 May 2017.

33. On the evidence before the Tribunal and for the reasons outlined above, the Tribunal rejects the Applicant’s claim that paragraph 109(3)(b) of the Administration Act must apply. The letters sent to the Applicant on 2 May 2017 and 15 May 2017 precede the date of Ms Hall being appointed the correspondence nominee on 25 May 2017 by the Secretary under Part 3A of the Administration Act sections 123C and 123D.

34. The Tribunal does not accept that Ms Hall, as payment nominee, could not have been aware of the differing amount of benefit payment being made to the applicant as Ms Hall’s bank account was the recipient of the Centrelink benefits on behalf of the Applicant prior to 7 April 2017 and again from 20 April 2017.  It is reasonable that Ms Hall would have been aware of the difference in deposits within the same month.

35. On the basis of all of the evidence before the Tribunal, and for the reasons outlined above, the Tribunal finds that the Applicant, being correctly notified on 2 May 2017 and 15 May 2017, did not seek review of the decision to cease RA to the Applicant within 13 weeks of being notified as required under section 109(2) of the Administration Act.

36. Therefore, the decision under review is affirmed.

I certify that the preceding 36 (thirty -six) paragraphs are a true copy of the reasons for the decision herein of The Hon. R Baldwin, Member

..........................[SGD]..............................................

Associate

Dated: 22 July 2019

Date(s) of hearing:	17 June 2019
Advocate for the Applicant:	T Hall
Solicitors for the Respondent:	E Ulrick, Department of Human Services