Kidd and Secretary, Department of Families, Community Services and Indigenous Affairs

[2006] AATA 599

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 599

ADMINISTRATIVE APPEALS TRIBUNAL          № V2006/165

GENERAL ADMINISTRATIVE  DIVISION

Re:            gregORY RONALD kidd

Applicant

And:secretary,

Department of families, community services and indigenous affairs

Respondent

DECISION

Tribunal:       Mr Egon Fice, Member

Date:30 June 2006

Place:Melbourne

Decision:The Tribunal affirms the decision of the Social Security Appeals Tribunal dated 17 January 2006.

(sgd) Egon Fice

Member

CATCHWORDS – rent assistance – State/Territory public housing authority – incorrect cessation of payment – date of effect of back-payment

Social Security (Administration) Act 1999 s 109(2)

REASONS FOR DECISION

5 July 2006  Mr Egon Fice, Member

1.      Mr Gregory Ronald Kidd, a paraplegic, has received the disability support pension since March 2003.  Included in that pension was an amount for rent assistance.  On 10 January 2005, after he advised Centrelink, the agency acting on behalf of the Secretary, Department of Families, Community Services and Indigenous Affairs (the Secretary) that he had moved to a new address, the rent assistance component of his disability support pension was cancelled.  It was not until 23 August 2005 that Mr Kidd became aware that there may have been a mistake and he queried whether he was entitled to be paid rent assistance.  Centrelink decided that he was entitled to rent assistance and back‑dated the resumption of those payments to 25 May 2005. 

2.      Mr Kidd sought a review of that decision by an authorised review officer (ARO).  The ARO affirmed the decision.  Mr Kidd then sought review of the decision by the Social Security Appeals Tribunal (SSAT) which affirmed the decision of the ARO.  Mr Kidd now seeks a review of the SSAT decision claiming that payment of his rent assistance should be backdated to 10 January 2005 as it should never have been cancelled.

RELEVANT FACTS

3.      The facts in this matter are not in dispute.  Briefly, Mr Kidd began receiving the disability support pension on 4 March 2003.  A component for rent assistance was included in that pension.

4.      On or about 8 January 2005 Mr Kidd moved to a new address in Reservoir in Victoria and, in accordance with the requirements placed on recipients of social service payments, on 10 January 2005 he telephoned Centrelink to notify an officer of the change of address.  He was told that he was not eligible for rent assistance after moving to his new address.  In a letter dated 10 January 2005, Centrelink said:

We cannot pay you Rent Assistance because you are paying rent to a State/Territory public housing authority.

5.      Mr Kidd accepted the Centrelink officer’s advice given over the telephone and the information contained in the letter of the same date. 

6.      In about August 2005 Mr Kidd realised that the accommodation to which he had moved in January 2005 had nothing to do with a State/Territory public housing authority.  He obtained a letter, dated 18 August 2005, from the housing services manager of Yarra Community Housing Limited which said that all the tenants of Yarra Community Housing Limited had been eligible for Commonwealth rent assistance since its establishment in 1996.  The letter also stated that it had recently come to the attention of the housing services manager that some Centrelink staff did not understand that the tenants of Yarra Community Housing Limited do not pay rent to a government housing authority.  It pointed out that Yarra Community Housing Limited is a non‑government charitable organisation and that it is independent of any level of government.  As a consequence of that letter, Mr Kidd contacted Centrelink by telephone on 23 August 2005 pointing out the error.  He also wrote to Centrelink on that day repeating his complaint and stating that he had been misinformed about his eligibility for rent assistance.  Centrelink accepted that Mr Kidd was correct and immediately resumed payment of rent assistance.  Mr Kidd also requested that rent assistance be back-paid to 10 January 2005 as it should never have been discontinued.  However, Centrelink only agreed to pay arrears of rent assistance from 25 May 2005, which was within 13 weeks of the last rate letter issued to him advising him of his entitlements.

7.      Mr Kidd completed a request for review by an ARO on 3 September 2005.  The ARO affirmed the decision to “back‑pay” Mr Kidd’s rent assistance from 25 May 2005. 

8.      Mr Kidd appealed the ARO’s decision to the SSAT which, by a written decision made on 17 January 2006, affirmed the decision of the ARO.

DATE OF EFFECT OF FAVOURABLE DETERMINATION RESULTING FROM REVIEW

9. The only issue in this matter is whether the legislation permits Centrelink to make a payment to Mr Kidd by way of rent assistance to which he claims he was entitled between 10 January 2005 and 25 May 2005. There is no issue between the parties that the premises into which Mr Kidd moved on 8 January 2005 was not a State/Territory public housing authority property. He was entitled to rent assistance on an ongoing basis despite his change of residential address in January 2005. However, Mr Kidd’s problem is s 109(2) of the Social Security (Administration) Act 1999 which provides:

109 - Date of effect of favourable determination resulting from review

(1)       . . .

(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.

. . .

10.     There is no question that Mr Kidd received notification of the decision to cease his rent assistance payment in the letter dated 10 January 2005 from Centrelink.  Understandably, Mr Kidd accepted the Centrelink officer’s statement that he would be paying rent to a State/Territory public housing authority as a consequence of his change of residence.  He did not query the decision until 23 August 2005, which is more than 13 weeks after he received the 10 January 2005 notice.  Mr Kidd said, and I accept his evidence, that he simply relied on the Centrelink officer and thought that the information must be correct.  It was only much later that he became aware that all tenants of Yarra Community Housing Limited were eligible for rent assistance.  That is when he made formal enquiries and notified Centrelink of its error. 

11.     At the hearing, Mr Kidd directed my attention to a file note made as a result of a conversation he had on 14 February 2005 with a Centrelink officer.  Mr Kidd suggested that the conversation he had with the Centrelink officer on that day should be treated as a request for a review of the original decision.  Unfortunately for Mr Kidd, I do not agree with him.  The file note clearly states that as he was paying maximum rent, he was disturbed about an income and asset statement regarding funds said to have been placed in a family trust account.  His complaint to Centrelink was about his income and asset statement and not about the decision to cease paying rent assistance.

12.       Therefore, on all the available evidence, I cannot but come to the conclusion that it was more than 13 weeks after Mr Kidd received notice of the original decision that he made an application to the Secretary for a review of that decision.  The Secretary has treated the application for review of the original decision as having been made within 13 weeks of Mr Kidd receiving the notice dated 25 May 2005 regarding the amount of disability support pension which would be paid to him from 9 June 2005.  Therefore, Centrelink agreed to pay rent assistance in arrears from 25 May 2005.  In my opinion, that decision is correct.

13.     Although the decision to pay Mr Kidd rent assistance from 25 May 2005 is correct, the outcome clearly results in a serious injustice to Mr Kidd.  The Centrelink officer who made the decision to cease payment of rent assistance on 10 January 2005 clearly did not take sufficient care to determine the nature of the new accommodation to which Mr Kidd had moved.  As a matter of fairness, it seems to me that any Centrelink officer that makes a decision reducing or cancelling social security payments should make careful enquiries before taking that action.  Had proper enquires been made, it seems to me that Mr Kidd’s rent assistance would not have been cancelled on 10 January 2005.  I do not believe that Mr Kidd bears any responsibility for that error as he could not be expected to know who the ultimate recipient of his rental payments would be.  On the other hand, one would reasonably expect a Centrelink officer to know, or at least to make enquires as to whether or not the entity to which the rent was being paid was a State/Territory public housing authority.  Therefore, I would strongly recommend that Mr Kidd seek compensation for the loss of rent assistance between 10 January 2005 and 25 May 2005 from Centrelink under the Compensation for Detriment caused by Defective Administration (CDDA) Scheme. 

CONCLUSION

14.     The Tribunal affirms the decision of the SSAT made on 17 January 2006 not to pay Mr Kidd arrears of rent assistance prior to 25 May 2005.

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

Mr Egon Fice, Member

(sgd)       Catherine Lake

Clerk

Date of Hearing:  30 June 2006

Date of Decision:  30 June 2006

Date of Written reasons:              5 July 2006

Representative for the applicant:   NIL – self‑represented

Advocate for the respondent:       Mr W. Zita, Legal Services Branch, Centrelink