Karaka and Secretary, Department of Social Services (Social services second review)
[2017] AATA 40
•23 January 2017
Karaka and Secretary, Department of Social Services (Social services second review) [2017] AATA 40 (23 January 2017)
Division:GENERAL DIVISION
File Number(s): 2016/4094
Re:James Karaka
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Mr Conrad Ermert, Member
Date:23 January 2017
Place:Melbourne
The Tribunal affirms the decision under review.
[sgd].. ...................................................................
Mr Conrad Ermert, Member
SOCIAL SECURITY - pensions, benefits, allowances - disability support pension - rent assistance component of disability support pension - request for review of determination - favourable determination made on review - entitlement to backdated payment of rent assistance - date of effect of favourable determination - deemed notice of determination - decision affirmed
LEGISLATION
Social Security (Administration) Act 1999 (Cth)
Employment and Workplace Relations Legislation Amendment (Welfare to Work and Vocational Rehabilitation Services) Act 2007 (Cth)
CASES
Re Cameron and Secretary, Department of Family and Community Services (2007) 93 ALD 772
Re Secretary, Department of Family and Community Services and Garforth-Dankymeyer [2006] AATA 166
REASONS FOR DECISION
Mr Conrad Ermert, Member
23 January 2017
INTRODUCTION
Mr James Karaka, the Applicant, has received Disability Support Pension (DSP) and rental assistance payments since February 2012.
On 10 March 2016 Mr Karaka lodged with Centrelink a copy of his Tenancy Agreement recording, amongst other matters, that from 20 October 2015 his weekly rental had increased. Centrelink is the service provider for the Department of Social Services, the Respondent. Consequent upon the advice of the increased rental Centrelink increased the level of rental assistance with effect from the date of notification.
Mr Karaka requested a review of the decision seeking back payment of his rental assistance to 20 October 2015, the date on which the cost of rent increased. On 2 May 2016 an Authorised Review Officer (ARO) determined that the rental assistance could not be backdated and that the start date for Mr Karaka’s increased rental assistance was 10 March 2016.
Mr Karaka sought review of the ARO decision. On 13 July 2016 the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) affirmed the decision made by the ARO. On 4 August 2016 Mr Karaka lodged an application for review of the AAT1 decision.
HEARING
At the hearing Mr Karaka represented himself and gave evidence under affirmation by telephone. Mr Mark Hester represented the Respondent, also via the telephone.
I had before me the documents provided by the Respondent in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the T-Documents and Supplementary T-Documents). Mr Karaka advised that he had provided the Respondent with copies of the following Tribunal decisions in support of his case:
·Re Cameron and Secretary, Department of Family and Community Services (2007) 93 ALD 772; and
·Re Secretary, Department of Family and Community Services and Garforth-Dankymeyer [2006] AATA 166.
For the Respondent I took in for consideration the Secretary’s Statement of Issues, Facts and Contentions dated 12 August 2016.
LEGISLATION
The relevant legislation is contained in the Social Security (Administration) Act 1999 (Cth) (the Act). Part 3, Division 9, Subdivision B of the Act sets out the framework for calculating the date of effect of particular types of determinations, including a determination to increase a rate of payment under section 78 of the Act.
Section 109 of the Act provides relevantly:
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.
…
(7) For the purposes of this section, if:
(a)the Secretary makes a decision constituted by a determination made under section 78 to increase the rate at which a social security payment is being, or has been, paid; and
(b)the determination is made because an amount has been indexed or adjusted by the operation of Part 3.16 of the 1991 Act;
then:
(c)each person whose rate of social security payment is, or was, affected by the determination is taken to have been given notice of the determination and of the increased rate; and
(d)the notice is taken to have been given on the day on which the amount was so indexed or adjusted.
EVIDENCE
In his evidence Mr Karaka stated that the cost of his rent had increased from date of the change in the tenancy agreement. He said that as a result of his health condition he was not able to understand many things that he was supposed to do. His condition also affects his memory. He confirmed his description of the effects of the condition provided in his application for review in this case.
Mr Karaka said he was not aware of the requirement contained in the Centrelink notices that changes in circumstances must be notified within 14 days. He cannot remember such details and is unaware of many things he has to do. He said he finds the details of the law to be confusing. Mr Karaka described how he received assistance in finding Tribunal decisions to support his case.
Mr Karaka contended that he is entitled to the back payment of his rent assistance. He stated that he needs the money. He said he is living at Horsham only because it is affordable for him.
TRIBUNAL CONSIDERATIONS
As noted above, Mr Karaka contends that he was entitled to an increase in rental payments. Rent assistance payments made under Part 3.7 of the Social Security Act 1991 are not separate social security payments, but are paid as part of another benefit. In this case, the relevant benefit is Mr Karaka’s DSP.
The Tribunal accepts that this is a case where a decision has been made in relation to a social security payment, namely in relation to the calculation of Mr Karaka’s DSP payment. The Applicant, Mr Karaka, then requested a review of that decision based on his updated residence agreement. There is no dispute that 10 March 2016 was the first occasion on which Mr Karaka notified Centrelink of the increase in his rental payments. This is accepted by both parties as the earliest date Mr Karaka requested a review of his rental assistance.
Mr Karaka’s request for the review ended ‘favourably’, in that a determination was made resulting in an increase of the rental assistance component of his DSP. The issue in this matter is then whether the date of effect of that determination should be the date on which 10 March 2016 (the date Mr Karaka notified Centrelink) or on an earlier date.
Section 109 of the Act provides for the determination of the date of effect of a favourable determination resulting from a review of a decision affecting a person’s social security payment. In this case two decisions were made to increase DSP benefits, including the rental assistance payments, following increases in the consumer price index (CPI). The decisions were promulgated by Centrelink in editions of A Guide to Australian Government Payments dated 20 March 2015 and 20 September 2015.
The next issue is whether a notice was given to Mr Karaka informing him of these decisions. The Respondent concedes that Mr Karaka was not issued with notices regarding these increases and relies on the provisions of subsection 109(7) of the Act as deeming that Mr Karaka received notice. Subsection 109(7) provides:
For the purposes of this section, if:
(a)the Secretary makes a decision constituted by a determination made under section 78 to increase the rate at which a social security payment is being, or has been, paid; and
(b)the determination is made because an amount has been indexed or adjusted by the operation or Part 3.16 of the 1991 Act; then:
(c)each person whose rate of social security payment is, or was affected by the determination is taken to have been given notice of the determination and of the increased rate; and
(d)the notice is taken to have been given on the day on which the amount was so indexed or adjusted.
Applying the provisions of subsection 109(7) of the Act I find that:
·determinations were made on 20 March 2015 and 20 September 2015 to increase the rates payable for Mr Karaka’s DSP, including his rental assistance; and
·the determinations were made because the amounts were indexed by the CPI as provided for in subsection 109(7)(b); therefore
·Mr Karaka is deemed to have been given notice of the determination according to subsection 109(7)(c); and
·notice is taken to have been given on 20 March 2015 and 20 September 2015 respectively according to subsection 109(7)(d).
As notice is deemed to have been given according to subsection 109(7), the Tribunal is required to apply either subsection 109(1) or 109(2) of the Act.
Subsection 109(1) of the Act applies where the request for review was made within 13 weeks of notice being given, and determines that the favourable determination takes effect on the day on which the determination embodying the original decision took effect. Subsection 109(2) of the Act applies where the request for review was made more than 13 weeks after notice being given, and determines that the favourable determination takes effect on the day on which the application for review was made.
The time interval between the notice dates and 10 March 2016 is greater than 13 weeks in both cases. Therefore, the relevant subsection is subsection 109(2) of the Act.
Applying these findings to subsection 109(2) of the Act I find that:
·Decisions were made in relation to Mr Karaka’s DSP payments, which included a rental assistance component; and
·Notice is taken to have been given to Mr Karaka; and
·Mr Karaka applied for a review of the decision on 10 March 2016, which is more than 13 weeks after the notice was given; and
·A favourable determination was made to increase the rental payments; therefore
·The determination takes effect on the date of the application for review, being in this case 10 March 2016.
Mr Karaka sought to invoke the Tribunal’s decisions in Cameron and Garforth-Dankymeyer to support his case. A key finding in both cases is that no notice was given to the person informing them of the original decision. Unfortunately for Mr Karaka, these cases do not assist him as the Act has been changed since Cameron and Garforth‑Dankymeyer were decided (1 February 2007 and 3 February 2006, respectively).
Subsection 109(7) of the Act commenced on 15 April 2007, having been inserted into the Act by the Employment and Workplace Relations Legislation Amendment (Welfare to Work and Vocational Rehabilitation Services) Act 2007. Cameron and Garforth‑Dankymeyer were therefore not affected by this provision, and the fact that notices were not issued lead to the respective claims being backdated.
The Secretary concedes that Mr Karaka was not issued with notices but instead relies on deemed notice according to subsection 109(7). Cameron and Garforth-Dankymeyer may have some factual similarities with Mr Karaka’s case, but the introduction and effect of subsection 109(7) since these decisions were made means that the Tribunal cannot reach the same conclusion in Mr Karaka’s case.
In his application for review of the AAT1 decision Mr Karaka requested that his medical condition should be taken into consideration as the reason for the delay in updating his rental information. Unfortunately the legislation provides no avenue for the exercise of discretion in determining the date of effect. There are no provisions in the Act that allow for the consideration of special circumstances that may have caused a delay in the notification of the increased rental payments.
Absent any discretionary powers in this case I find that the date of effect of increase of Mr Karaka’s rental assistance cannot be back-dated earlier than 10 March 2016. This means that the decision of the AAT1 is correct.
DECISION
I affirm the decision under review.
I certify that the preceding 28 (twenty-eight) paragraphs are a true copy of the reasons for the decision herein of Mr C Ermert, Member
[sgd]..........................................................
Associate
Dated: 23 January 2017
Date(s) of hearing: 18 February 2017 Applicant: In person Advocate for the Respondent: Mr Mark Hester Solicitors for the Respondent: Department of Human Services,
Freedom of Information & Litigation Branch
Key Legal Topics
Areas of Law
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Appeal
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Judicial Review
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Procedural Fairness
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Statutory Construction
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