Jo Jo and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2012] AATA 651

[2012] AATA 651 

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2012/3790
Re	Jo Jo
APPLICANT
And	Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT

DECISION

Tribunal	Mr C Ermert, Member
Date of decision	18 September 2012
Date of written reasons	26 September 2012
Place	Melbourne

For the reasons given orally at the conclusion of the hearing, the Tribunal refuses the application for an extension of time to review the decision of the Social Security Appeals Tribunal made on 6 July 2012.

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

Mr C Ermert, Member

CATCHWORDS

Appeal from SSAT decision - delay in application - explanation for delay - no prejudice to respondent - whether merit in substantial application

LEGISLATION

Administrative Appeals Tribunal Act 1975 section 29(2)

Social Security Act 1991 sections 13, 1070B, 1070C

Housing Act 1983

CASES

Budd and Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1540

REASONS FOR DECISION

Mr C Ermert, Member

26 September 2012

INTRODUCTION

1. On 9 February 2012 Ms Jo applied to Centrelink for rent assistance. Centrelink delivers services for the Department of Families, Housing, Community Services and Indigenous Affairs (the respondent). Centrelink refused to pay Ms Jo rent assistance. The reason for the rejection was that Ms Jo pays rent to the Victorian Department of Human Services. Section 1070C(c) of the Social Security Act 1991 (the Act) precludes the payment of rental assistance where the person pays “Government rent”. On 5 March 2012 a Centrelink Authorised Review Officer (ARO) affirmed that decision. Ms Jo sought a review of the ARO’s decision by the Social Security Appeals Tribunal (SSAT). On 6 July 2012 the SSAT affirmed the ARO’s decision. On 16 August 2012 Ms Jo lodged an application for a review of the SSAT decision. This was outside the 28 days prescribed by s 29(2) of the Administrative Appeals Tribunal Act 1975.  Ms Jo therefore lodged an Application for an Extension of Time for Lodging Application for Review of Decision.

THE HEARING

1. The hearing was conducted by telephone.  Ms Jo represented herself.  Ms Ailsa Bramley, an advocate from the Centrelink Program Litigation and Review Branch, represented the respondent.

THE EVIDENCE

1. Ms Jo provided the details of her circumstances and the difficulties she faced in the absence of rent assistance.  She said that her accommodation and rental situation remained as shown in the SSAT’s reasons for decision. 

2. In regard to her application for an extension of time, Ms Jo said that she did not receive the SSAT’s written decision until 16 July 2012.  She submitted her application for review on 16 August 2012, which she said was within the 28 days from receipt of the decision.  Her reason for not submitting the application earlier was that she has trouble getting things done due to her medical condition. 

3. Ms Jo said that she was hoping her appeal might set a precedent to have the application of the Act changed for people in her circumstances.

4. Ms Bramley submitted that the respondent opposed the grant of an extension only because Ms Jo’s application for review of decision had no prospect of success.

CONSIDERATION

1. In considering whether to grant an extension of time, I referred to the Federal Court decision of Budd and Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1540 and considered each of the issues in turn.

Explanation for the delay

1. Ms Jo’s evidence was that she had trouble getting things done.  Considering the short delay and considering her general circumstances, I accepted this account as reasonable.

Action taken by the applicant

1. Due to the short delay involved, I considered this issue did not apply in this case.

Did the applicant rest on her rights

1. Ms Bramley accepted that this factor was not an issue in this case. I agree.

Prejudice to the respondent

1. Ms Bramley accepted that this factor was not an issue in this case.  I agree.

Fairness between the applicant and others in like position

1. Because of the short delay, I do not consider this factor to be an issue in this case.

Prejudice to the general public

1. Because of the short delay, I do not consider this factor to be an issue in this case.

Merits of the substantive application

1. Ms Jo agreed in her evidence that she paid Government rent and therefore did not meet the provisions of the Act.  She said she wanted to change the law.

2. Ms Bramley submitted that Ms Jo had no prospects of success as her circumstances were clearly precluded by the provisions of the Act. I insert the relevant sections of the Act for Ms Jo’s benefit.

3. Section 1071B of the Act sets out the general rule for qualification for rent assistance. It provides that:

   A person qualifies for rent assistance if the person satisfies:

   (a)  the common requirements set out in section 1070C; and

   (b)  any specific requirement, set out in a later section of this Division, applicable to the person's social security payment.

1. Section 1070C sets out the common requirements:

   (a)  the person is not an aged care resident, and is not taken to be an aged care resident for the purposes of the Rate Calculator concerned; and

   (b)  the person is not an ineligible homeowner; and

   (c)  the person pays, or is liable to pay, rent, other than Government rent, in respect of a period in respect of premises in Australia; and

   (d)  the person's fortnightly rent is more than the rent threshold amount (see section 1070T).

2. Section 13 of the Act defines Government rent.

   "Government rent" means rent payable to any of the following authorities:

   …

   (b)  the Director, within the meaning of the Housing Act 1983 of the State of Victoria;

   …

3. The facts of Ms Jo’s rental remain unchanged from those given at the SSAT hearing and there is no ambiguity in the relevant sections of the Act. Ms Jo provided a Rent Certificate to Centrelink dated 7 February 2012. The Certificate states that Ms Jo provides rent to the Department of Housing of the Department of Human Services (Victoria). The Tribunal is satisfied that Ms Jo pays rent to the Director of Housing within the meaning of the Housing Act 1983.

4. I accept that there is no merit in Ms Jo’s case.  Accordingly, there is no merit in proceeding with Ms Jo’s substantive application. 

Decision maker to be positively satisfied

1. The decision in Budd requires the decision maker to be positively satisfied that it is proper to grant an extension of time.  In this case, Ms Jo has no prospects of success in continuing with the application for review. Therefore, I am not positively satisfied that it is proper to grant an extension of time.  An extension of time in this case would cause considerable effort and expense to both parties with no prospect of a change in the decision.

DECISION

1. The Tribunal refuses the application for an extension of time to review the decision of the Social Security Appeals Tribunal made on 6 July 2012.

I certify that the preceding 22 (twenty-two) paragraphs are a true copy of the reasons for the decision herein of Mr C Ermert, Member.

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

Shivanthi Herath, Associate

Dated 26 September 2012

Date of hearing	18 September 2012
Date of decision	18 September 2012
Date of written reasons	26 September 2012
Applicant	In person
Advocate for the Respondent	Ms Ailsa Bramley, Centrelink Program Litigation and Review Branch