Jones and Secretary, Dept of Families, Housing, Community Services and Indigenous Affairs
[2011] AATA 482
•6 July 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 482
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2011/2041
GENERAL ADMINISTRATIVE DIVISION ) Re Edward Jones Applicant
And
Secretary, Dept of Families, Housing, Community Services and Indigenous Affairs
Respondent
DECISION
Tribunal Senior Member Jill Toohey Date of Decision 6 July 2011
Date of Written Reasons 8 July 2011
Place Sydney
Decision The application for an extension of time in which to lodge an application for review with the Tribunal is refused.
.................[sgd].............................
Senior Member
CATCHWORDS
SOCIAL SECURTY – rent assistance – Centrelink failed to record details of applicant’s rent payments – errors acknowledged by Centrelink – whether arrears payable
PRACTICE AND PROCEDURE – application for extension of time –whether extension of time should be granted – little prospect of success of substantive application – application for extension of time refused
Social Security Act 1991, s 92H
Social Security (Administration) Act 1999, s 109
Administrative Appeals Tribunal Act 1975, s 29
Secretary, Department of Family and Community Services v Laurent (2003) FCA 1017
Hunter Valley Developments Pty Limited v Cohen [1984] FCA 176
Secretary, Department of Family and Community Services v Laurent (2003) FCA 1017
Secretary, Department of Family and Community Services v Rogers (2000) 65 ALD 185
REASONS FOR DECISION
8 July 2011 Senior Member Jill Toohey 1. This matter concerns an application for an extension of time to seek review of a decision that Rent Assistance is not payable in arrears. For the reasons set out below, I have concluded that the extension of time should not be granted.
2. The failure to pay Rent Assistance to the applicant in the first place arose as a result of administrative errors which Centrelink acknowledges it made. The applicant has indicated he may seek compensation for defective administration. I have set out the background to the application in some detail.
Background
3. In September 2009, Mr Edward Jones, who had been receiving an age pension for some years, advised Centrelink that he had sold his home and that he and his wife had moved to a residential village at Valla Beach on the north New South Wales coast.
4. On 23 September 2009, Mr Jones completed an Income and Assets Update form sent to him by Centrelink. He included on the form the information that he and his wife were paying $110 per week rent at the residential village.
5. Centrelink failed to record that Mr Jones was paying rent. As a result, his age pension was not adjusted to take into account the Rent Assistance payment to which he was now entitled.
6. Rent Assistance is not a separate pension or benefit under the Social Security Act 1991 (the SS Act). It is part of a benefit payable to an eligible person: Secretary, Department of Family and Community Services v Laurent (2003) FCA 1017. A person is not required to make a separate claim for Rent Assistance; eligibility is assessed along with eligibility for another payment: see Centrelink website
7. Centrelink acknowledges that, but for its administrative error, Mr Jones would have been paid Rent Assistance from 23 September 2009. However, it says, s 109 of the Social Security (Administration) Act1999 (the SSA Act) precludes payment of arrears to that date.
Centrelink’s letter about Rent Assistance
8. On 14 December 2009, Centrelink sent Mr Jones a letter headed “Your Centrelink Payment”. The relevant parts state:
1. Your Centrelink statement
This gives you information about your payments, income and other details. You need to let us know if any of these details change to ensure you are receiving your correct entitlement.
2. What you have to tell Centrelink
This lists the changes you must tell us about. You do not need to contact us if you have no changes
…
3. Your rights if you do not agree with a decision Centrelink has made
Contact us so we can explain the decision and change it if appropriate (this step is optional). Contact us and ask for an independent Authorised Review officer to look at your case.
….
Please check the information on this statement carefully. If the details on this statement are correct there is no need for you to contact Centrelink. If your circumstances have changed please contact us within 14 days.
9. Mr Jones says he was not aware that he may be entitled to Rent Assistance. He had received a letter in July 2009 from the manager of the residential village which advised: Pension recipients may also be eligible for rent assistance. Please contact Centrelink regarding this matter. He apparently overlooked this advice but nothing really turns on this.
10. I note that information currently on Centrelink’s website concerning Rent Assistance, which was also current at 14 December 2009, states:
Claiming
You do not need to lodge a separate claim for Rent Assistance. We will assess your eligibility when you make a claim for another payment.
…
Claim outcome
We will send you a letter to tell you if your claim has been successful. (italics added). If you are eligible for a payment from us, we will also tell you if you are eligible for Rent Assistance, when your payment will start and how much you will get.
11. Centrelink’s letter of 14 December 2009 made no reference to Rent Assistance. Nothing in the letter suggests that a claim has been successful or not. Mr Jones says he was not aware that anything in it concerned Rent Assistance; he took it to be his “normal statement of earnings” from Centrelink.
12. Mr Jones was prompted to contact Centrelink about Rent Assistance when he learned, some months later, from other residents at the village that they were receiving Rent Assistance.
Mr Jones’ request to Centrelink for review
13. On 17 August 2010, Mr Jones contacted Centrelink and queried his entitlement to Rent Assistance. By further error, the officer who dealt with his inquiry treated it as a new claim for age pension, even though Centrelink records should have shown that Mr Jones was already receiving the age pension. Applying s 92H of the SS Act, which allows for backdating of payment 13 weeks, Centrelink increased Mr Jones’ age pension to include Rent Assistance with effect from 18 May 2010, being three months before he was taken to have made the new claim.
14. When Mr Jones again queried why he was not paid arrears to 23 September 2009, an Authorised Review Officer (ARO) reviewed his file. The ARO identified the error in treating his inquiry on 17 August 2010 as a new claim and treated it as a request for review of a decision on 14 December 2009 not to pay Rent Assistance. Having reviewed the matter, she decided that, as his request for review was made more than 13 weeks after the decision on 14 December 2009, s 109 of the SSA Act precluded payment of arrears before 17 August 2010.
15. Mr Jones sought review of the ARO’s decision with the Social Security Appeals Tribunal (SSAT).
Section 109
16. Section 109 of the SSA Act deals with the date upon which a favourable decision made upon a review takes effect. It 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) 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.
(3) If:
(a)a decision (the original decision) is made in relation to a person's social security payment; and
(b) the person is not given notice of the original decision; and
(c)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.'
17. The effect of s 109 is that, if the letter dated 14 December 2009 was a notice informing Mr Jones of the original decision, and if he failed to apply for review of that decision until 17 August 2010, then that was the earliest date from which he could be paid Rent Assistance.
Mr Jones’ applications to the SSAT and AAT
18. On 6 April 2011, the SSAT affirmed the decision that s 109 had the effect that Mr Jones was not entitled to arrears of rent assistance for the period 23 September 2009 to 16 August 2010.
19. The SSAT noted that Centrelink had acknowledged that it had failed to correctly record Mr Jones’ rental payment and pay him Rent Assistance from 23 September 2009. It noted that this error was compounded by the error in treating his inquiry on 17 August 2010 as a new claim for age pension. However, applying s 109 of the SSA Act, it concluded that arrears were not payable before 17 August 2010 when Mr Jones sought review of the original decision.
20. The SSAT decision was dispatched to Mr Jones on 15 April 2011. Allowing seven days for him to receive the decision, his application to this tribunal should have been received by 22 May 2011: Administrative Appeals Tribunal Act 1975 s 29 (2) (AAT Act). It was not received until 27 May 2011.
Should Mr Jones be granted an extension of time
21. The Tribunal may extend the time for making an application for review if it is satisfied that it is reasonable in all the circumstances to do so: s 29 (7) of the AAT Act.
22. The principles by which a decision whether to grant an extension of time should be guided are set out in Hunter Valley Developments Pty Limited v Cohen [1984] FCA 176. They include but are not limited to:
(a) whether there is an acceptable explanation for the delay;
(b)whether the applicant rested on their rights or made the decision-maker aware they contest the finality of the decision;
(c) any prejudice to the respondent;
(d)public considerations including the unsettling of others and established practices;
(e) the merits of the substantive application;
(f) fairness between the applicant and others in a like position; and
(g) whether it is fair and equitable in all the circumstances to extend time.23. Mr Jones says he was away from home when the SSAT’s decision and arrived and he was unable to send his application within 28 days. The Secretary concedes that the delay is not significant.
24. However, the Secretary contends, the effect of s 109 of the SSA Act is that Mr Jones’ substantive application has no prospects of success and an extension should therefore not be granted.
25. It is arguable that the letter of 14 December 2009 did not constitute a notice given to Mr Jones informing him of the original decision as required by s 109. In Secretary, DFCS v Rogers (2000) 65 ALD 185, Cooper J said (at 196) that the requirement to give notice does not demand that a matter be brought to a person’s understanding or knowledge but it does require that the matter of which a person is to have knowledge must be clearly brought to his or her attention; both the fact of a decision and the content of a decision must be communicated. The Court was satisfied in that case that notice had been given.
26. The Secretary contends that the letter of 14 December 2009 constituted an original decision. As already noted, it makes no reference to Rent Assistance. It is not clear that it contains any decision regarding Mr Jones’ Rent Assistance and, in reality it did not, because Centrelink had overlooked the fact that he was paying rent. It is understandable that Mr Jones read it as nothing more than a statement of his pension. Nevertheless, such letters are the means by which Centrelink communicates decisions, and they are routinely taken to constitute an original decision. I accept, taking into account the decision in Rogers (above), that an argument that the letter was not a notice of an original decision has limited prospect of success.
27. The starting position in an extension of time application is that an extension should be the exception rather than the rule. On balance, as there is little prospect of success in the substantive application, I am satisfied that the extension should not be granted.
Centrelink errors
28. Centrelink has acknowledged, properly, that it made errors in dealing with Mr Jones’ rent assistance payments.
29. In a Decision Statement dated 16 December 2010, the ARO acknowledged that Mr Jones had provided details of his rent in the Income and Assets Update form but “When this information was processed the rent you were paying was overlooked.” She acknowledged “you were eligible for payment of rent assistance when you returned the form to Centrelink on 23 September 2009. However, your rent details were not recorded correctly when the form was processed”.
30. The ARO also acknowledged the second error in treating Mr Jones’ application for review as a new application and paying him back to May 2010.
31. Mr Jones did what was required of him. He notified Centrelink that he was moving house and he correctly advised of his rent payments. He quite reasonably did not understand the letter of 14 December 2009 to convey any decision concerning his Rent Assistance. When he realised he might be entitled to Rent Assistance, he contacted Centrelink.
32. Section 109 is triggered by an application for review of a Centrelink decision. It is not itself a bar to payment of arrears. It is fair to assume that administrative errors occur from time to time in payment of benefits and that, when Centrelink realises such errors, it corrects them by adjusting the payment and, where appropriate, backdating payment. There is no guarantee that Centrelink would have realised its error in Mr Jones’ case but, unfortunately for him, in questioning his Rent Assistance, he brought himself within s 109.
33. Mr Jones has indicated that he may seek compensation under the Government’s Compensation for Detriment for Defective Administration scheme. In the circumstances, it would seem appropriate that he do so.
Conclusion
34. For the reasons set out above, the application for an extension of time in which to lodge an application for review with the Tribunal is refused.
I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Jill Toohey
Signed: ................[sgd]...............................................................
Diana Weston, AssociateDate of Hearing 6 July 2011
Date of Decision 6 July 2011
Date of Written Reasons 8 July 2011
Applicant Self-representedRespondentMr G Lozynsky, Centrelink Program Litigation & Review Branch
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