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

[2020] AATA 734

Holland and Secretary, Department of Social Services (Social services second review) [2020] AATA 734 (7 April 2020)

Division:GENERAL DIVISION

File Number:2019/6724          

Re:Christine Holland  

APPLICANT

Secretary, Department of Social ServicesAnd  

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member

Date:7 April 2020

Place:Sydney

The Tribunal affirms the decision under review.

.

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

Dr L Bygrave, Member

CATCHWORDS

SOCIAL SECURITY – rent assistance – whether the applicant is entitled to arrears for rent assistance – where rent certificate issued but not received by applicant – 13 week review period – where Tribunal has no discretion under the Administration Act – decision under review affirmed

LEGISLATION

Social Security (Administration) Act 1999 (Cth)

REASONS FOR DECISION

Dr L Bygrave, Member

7 April 2020

INTRODUCTION

1. The applicant, Miss Christine Holland, has been in receipt of rent assistance from 13 July 2018. This application to the General Division of the Administrative Appeals Tribunal (the Tribunal) relates to whether Miss Holland is entitled to be paid rent assistance in the period from 13 November 2015 to 12 July 2018.

2. Miss Holland’s application was heard on 27 March 2020; she attended the hearing and provided oral evidence by teleconference.

   RELEVANT LEGISLATION

3. Section 109 of the Social Security (Administration) Act 1999 (Cth) (the Administration Act) relevantly provides:

   Date of effect of favourable determination resulting from review

   (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) within 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 determination embodying the original decision took effect.

   (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)  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.

4. Subsections 109(1) and 109(2) refer to section 129 of the Administration Act, which states:

   Application for review

   (1)  …a person affected by a decision of an officer under the social security law may apply to the Secretary for review of the decision.

5. Section 237 of the Administration Act sets out that notice of a decision made under social security law and delivered to the postal address last known by the Secretary is taken to have been given to a person.

   CONSIDERATION

6. Miss Holland moved address on 12 September 2015. She contacted Centrelink on 15 October 2015 to advise her change of address and Centrelink, on this same date, posted a ‘Rent Certificate’ to her new address. The ‘Rent Certificate’ was a form that she was required to complete and return to Centrelink immediately.

7. On 13 November 2015, Centrelink sent a letter to Miss Holland to her new address. This letter included the following statements:

   Your Age Pension – Rent Assistance has been cancelled

   We recently requested specific information in relation to your eligibility for Rent Assistance. As you have not provided this information, a decision has been made to cancel your Rent Assistance from 13 November 2015. This will reduce your payment. Information about what to do if you think this decision is wrong is on the back of this letter.

   …

   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 13 weeks of being notified about the decision. If your request for a review is more than 13 weeks after being notified and the decision can be changed, you may only receive your entitlement from the date you requested the review. [emphasis in original][1]

   [1] Exhibit T-T5, pages 23 and 25.

8. Pursuant to section 237 of the Administration Act, the correspondence from Centrelink dated 15 October 2015 and 13 November 2015 are taken to have been received by Miss Holland.

9. Miss Holland told the Tribunal she never received the ‘Rent Certificate’ sent by Centrelink on 15 October 2015 or the Centrelink letter dated 13 November 2015. She said she had experienced a difficult time at her accommodation prior to her new address, and was later unwell and in hospital. Miss Holland advised that she did not know her rent assistance was cancelled from 13 November 2015 until July 2018. I accept Miss Holland’s evidence.

10. On 13 July 2018, Centrelink sent a further ‘Rent Certificate’ to Miss Holland, which she completed on 24 July 2018 and returned to Centrelink. She was subsequently paid rent assistance from 13 July 2018.

11. On 1 August 2018, Miss Holland wrote to Centrelink advising that she was unaware she did not have rent assistance in place with her current landlord and requesting ‘back pay of rental assistance from on or about 20 November 2015’.[2] This was received by Centrelink on 2 August 2018.

    [2] Exhibit T-T6, page 26.

12. I am satisfied that Miss Holland sought a review of her rent assistance payment on 2 August 2018 and not before. As this was outside 13 weeks of the date of the original decision dated 13 November 2015 to cancel Miss Holland’s rent assistance, I find no arrears can be paid to Miss Holland pursuant to the operation of section 109 of the Administration Act.

13. While I accept Miss Holland’s circumstances may have impeded her seeking an earlier review, there is no discretion in the Administration Act to extend the 13 week review period to take into account her circumstances.

    DECISION

14. The decision under review is affirmed.

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

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

Associate

Dated: 7 April 2020

Date of hearing:	27 March 2020
Applicant:	In person
Solicitors for the Respondent:	Dr Stephen Thompson, Services Australia