HOMPSON Applicant And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2010] AATA 368

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 368

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/0020

GENERAL  ADMINISTRATIVE  DIVISION		)
Re		RICHARD THOMPSON

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS  

Respondent

DECISION

Tribunal Mr B H Pascoe, Senior Member  

Date19 April 2010

PlaceMelbourne

Decision For reasons given orally at the hearing, the Tribunal affirms the decision under reviews.

(sgd) B H Pascoe

Senior Member

Social Security (Administration) Act 1999

REASONS FOR DECISION

19 April 2010 Mr B H Pascoe, Senior Member  

1.      This is an application to review a decision of the respondent to pay the applicant a higher rate of rent assistance from 17 August 2009 and not from any earlier date.

2.      At the hearing the applicant Mr R Thompson was unrepresented.  The respondent was represented by Mr T Tran of Centrelink Legal Services.  The decision was affirmed for reasons given orally.  On 6 May 2010, Mr Thompson requested a statement of written reasons.

3.      Mr Thompson has been in receipt of disability support pension (DSP) since 25 August 1999 with the inclusion of a component for rent assistance.  On a quarterly basis, Mr Thompson has been sent letters from Centrelink advising him of his current rate of DSP and the component of rent assistance included.  This latter amount has varied from $26.02 to $29.77 over the period from December 2007 to May 2009.  Each of these letters informed Mr Thompson that he should advise Centrelink of any changes in rent paid.  It advised, further, that any request for increased rent assistance outside 13 weeks of the date of the letter setting out the current rate of payment would result in an increased payment from the date of request only. 

4.      Mr Thompsons’ rent increased to $138.80 per fortnight from 24 July 2008.  Advice of that increase was provided by way of a rent certificate signed by the landlord on 20 August 2009 and lodged with Centrelink on 25 August 2009.  On 26 August 2009, Centrelink advised Mr Thompson that his rent assistance would be increased from 17 August 2009.  Review of this decision was sought on the basis that the increase should have been backdated to 24 July 2008, the date of the rent increase.  On 27 October 2009 an authorised review officer affirmed the decision.  On 24 November 2009 the decision was affirmed by the Social Security Appeals Tribunal (SSAT).

5.      Mr Thompson maintained that he went to Centrelink at the time that his rent increased and was told that he did not have to do anything as his rent assistance would be automatically adjusted.  Only in July 2009 did he again go to Centrelink to query the fact that rent assistance had not increased.  Eventually he was given a rent certificate form which was signed and returned.  There is no Centrelink record of an appearance by Mr Thompson in July 2008 other than on 14 July 2009 when he advised that he was no longer working.  The only recorded date of an appearance relating to rent was for 17 August 2009 when Mr Thompson was provided with a rent certificate form.

6. Under s 109 of the Social Security (Administration) Act 1999 (the Administration Act) arrears of any social security payment as a result of a favourable determination following a request for review of a decision can take effect from the date of the original decision if the request for review was made within 13 weeks of that decision. Here the latest decision prior to 25 August 2009 was conveyed to Mr Thompson by letter of 19 May 2009, outside the required 13 week period. In these circumstances, subsection (2) of s 109 provides that the favourable determination can take effect only from the date of the request for review.

7. Section 110 Of the Administration Act provides that, where a person informs the respondent of a change in circumstances, any favourable determination takes effect from the later of the date on which the person informs the respondent or the date of the change in circumstances.

8.      Under either of these sections, Mr Thompson is entitled to arrears of rent assistance only from the date of his request for an increase in August 2009.  The legislation provides no discretion to the decision maker to pay arrears from any earlier date.

9.      While Mr Thompson may well have believed that as a tenant in public housing, there was some automatic advice of rent increases by the Whitehorse City Council, the manager of his rented accommodation, this is clearly not the case and there is no record or evidence of him advising Centrelink of any rent increase prior to August 2009.  It is clear that he was advised regularly over the period in four separate letters after the date of actual rent increase of no change in rent assistance and the need for him to advise of any increase in rental paid. 

10.     It follows from the foregoing that the decision under review should be affirmed as the legislation does not permit the payment of arrears prior to 17 August 2009.

I certify that the ten [10] preceding paragraphs are a true copy of the reasons for the decision herein of
Mr B H Pascoe, Senior Member

Signed:         Dianne Eva
  Clerk

Date of Hearing  19 April 2010
Date of Decision  19 April 2010
Advocate for the Applicant       Self Represented 
Advocate for the Respondent   Mr T. Tran