Knight and Secretary, Department of Social Services (Social services second review)

Knight and Secretary, Department of Social Services (Social services second review) [2019] AATA 311 (1 March 2019)
Division:GENERAL DIVISION
File Number: 2018/3170
Re:Megan Knight
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member D K Grigg
Date:1 March 2019
Place:Brisbane

The Tribunal affirms the decision under review.
............................[SGD]..........................................
Member D K Grigg
CATCHWORDS
SOCIAL SECURITY – Rent Assistance – whether eligible – whether can be paid rent assistance from a date earlier than the date of the review request - decision under review affirmed.
LEGISLATION
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
CASES
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Hneidi and Others v Minister For Immigration And Citizenship (2010) 265 ALR 292; [2010] FCAFC 20
SECONDARY MATERIALS
Guides to Social Policy Law, released 4 February 2019
REASONS FOR DECISION
Member D K Grigg
1 March 2019
INTRODUCTION AND CLAIM HISTORY

At all relevant times Ms Megan Knight has been the recipient of the Newstart allowance (“NSA”).[1]
[1] Exhibit 1, T Documents, T18, page 100, Centrelink records.
On 20 March 2015, Ms Knight applied for Rent Assistance (“RA”).[2] In her application,
Ms Knight advised the Department of Human Services (“Centrelink”) that:[3]
(a)as of 16 March 2015 she had no fixed address;
(b)prior to 16 March 2015 she lived with a friend; and
(c)between 29 October 2013 and 16 March 2015 she paid her friend rent ranging between $100 and $150 per week.
[2] Exhibit 1, T Documents, T4, pages 36-45, Letter from Ms Knight and RA Form completed by Ms Knight on 20 March 2015.
[3] Exhibit 1, T Documents, T4, pages 36-45, Letter from Ms Knight and RA Form completed by Ms Knight on 20 March 2015.
With her RA claim, Ms Knight also provided copies of some withdrawal receipts from her bank account which she says represented the amount she paid to her friend for rent.[4]
[4] Exhibit 1, T Documents, T4, pages 38-42, Bank account withdrawal receipts.
On 24 March 2015, Ms Knight contacted Centrelink to verify that her Rent Certificate and MC (“medical certificate”) had been received.[5]
[5] Exhibit 1, T Documents, T19, page 125, Centrelink records.
On 30 March 2015, Ms Knight updated her address/accommodation details online.[6]
[6] Exhibit 1, T Documents, T19, page 126, Centrelink records.
Ms Knight also provided a second rent certificate form on 30 March 2015 which indicated that:[7]
(a)from 29 March 2015 she lived in a unit at Coolum with a flatmate and her flatmate’s child;
(b)her share of the rent for the first 2 weeks was $175 per week and thereafter $190 per week; and
(c)the total rent for the property is $525 per week.
[7] Exhibit 1, T Documents, T5, pages 46-47, RA Form completed by Ms Knight on 20 March 2015.
On 28 July 2015, Ms Knight updated her home address online.[8]
[8] Exhibit 1, T Documents, T19, page 130, Centrelink records.
On 14 January 2016, Ms Knight contacted Centrelink by telephone and updated her address, accommodation and sharers details.[9] A Centrelink record indicates that a Centrelink officer worked through a number of scenarios with Ms Knight and what would be the greatest benefit to her - namely either to pay rent and receive rent assistance or to live rent free and contribute to bills. The Centrelink records indicate that it was determined with Ms Knight that she would benefit more if she just contributed to household bills.[10]
[9] Exhibit 1, T Documents, T19, page 131, Centrelink records.
[10] Exhibit 1, T Documents, T19, page 134, Centrelink records.
On 31 March 2016, Ms Knight advised a social worker that she was living in a car. A housing support letter was provided to Ms Knight to assist her to obtain public housing.[11]
[11] Exhibit 1, T Documents, T19, page 135, Centrelink records.
On 6 May 2016, Ms Knight advised Centrelink that she was receiving fortnightly deposits of $300 from her daughter, pending an expected payout from Workcover. Ms Knight stated that these amounts were loans as she was in a “dire position”. Ms Knight also indicated that she was staying “short-term” with a friend and paying $200 a fortnight for rent and bills.[12]
[12] Exhibit 1, T Documents, T6, page 48, letter from Ms Knight to Centrelink dated 6 May 2016.
On 31 May 2016 and 13 June 2016, Ms Knight contacted Centrelink concerning her NSA and participation requirements given her medical and financial conditions.[13]
[13] Exhibit 1, T Documents, T19, pages 136-137, Centrelink records.
A Centrelink record dated 29 June 2016 indicates that a social work file assessment had been conducted by Centrelink and that the suggested intervention was to follow up with Ms Knight about whether she had submitted the housing support letter to the Department of Housing or whether she otherwise had stable accommodation.[14]
[14] Exhibit 1, T Documents, T19, page 138, Centrelink records.
On 20 July 2016, Centrelink sent Ms Knight a notice confirming the amount of Newstart allowance, energy supplement and pharmaceutical allowance she was being paid. It was clear from this notice that no RA was being paid to Ms Knight.[15]
[15] Exhibit 1, T Documents, T20, pages 191 – 192, letter from Centrelink to Ms Knight dated 20 July 2016.
On 6 December 2016, Ms Knight:
(a)updated her address details online;[16] and
(b)advised Centrelink that she had checked her Mygov account and noticed that she was still listed as having no fixed address and not paying any rent. She confirmed that she had been living in stable accommodation since 24 April 2016 and that she had informed Centrelink at that time. She stated that she wanted to confirm that she had been paying $80 rent per week and $20 per week for bills since
[16] Exhibit 1, T Documents, T19, page 141, Centrelink records.
[17] Exhibit 1, T Documents, T7, page 49, Letter from Ms Knight to Centrelink dated 6 December 2016.
5 May 2016.[17]
Centrelink issued a rent certificate to Ms Knight on 13 January 2017 requiring her to verify the rental payments.[18]
[18] Exhibit 1, T Documents, T20, page 193, Rent certificate form issued 13 January 2017; T19, page 142, Centrelink record.
Centrelink records indicate that on 3 February 2017, Ms Knight telephoned Centrelink and advised that she was not returning the rent certificate.[19]
[19] Exhibit 1, T Documents, T19, page 146, Centrelink records.
On 5 September 2017, Ms Knight updated her address details in MyGov.[20]
[20] Exhibit 1, T Documents, T19, page 170, Centrelink records.
Centrelink issued a further rent certificate to Ms Knight on 30 October 2017.[21]
[21] Exhibit 1, T Documents, T20, page 199, Rent certificate issued to Ms Knight on 30 October 2017.
Ms Knight provided a further rent certificate form on 9 November 2017 which indicated that:[22]
(a)since 14 October 2017 she had been living in original and share accommodation with 2 other people;
(b)she had been paying $100 per week in rent; and
(c)the total rental for the property was $550 per week.
[22] Exhibit 1, T Documents, T8, pages 50–51, RA Form completed by Ms Knight on 9 November 2017.
Ms Knight has been paid RA since 14 October 2017.[23]
[23] Exhibit 1, T Documents T18 , pages 202-204, Centrelink records, details of Newstart Allowance dated 30 October 2017, confirming Rent Assistance paid for period 26 October 2017 to 8 November 2017.
On 29 November 2017, Ms Knight contacted Centrelink and is recorded to have said that she had submitted a rent certificate in May 2016; however it was not processed and rent assistance not paid.[24]
[24] Exhibit 1, T Documents, T19, page 178, Centrelink records.
On 30 November 2017, Ms Knight requested a review of the decision not to pay her rent assistance from May 2016.[25]
[25] Exhibit 1, T Documents, T19, page 179, Centrelink records.
On 1 December 2017, Ms Knight wrote to Centrelink and stated that:[26]
[26] Exhibit 1, T Documents, T9, pages 52-56, letter from Ms Knight to Centrelink dated 1 December 2017.
(a)she had attended a Centrelink office in Maroochydore the day before and initiated an appeal regarding the missing rent receipt that she states she personally delivered to a Centrelink office in May 2016;
(b)in late April 2016 she had spent 2 nights sleeping in her car due to homelessness caused by financial challenges;
(c)she “most likely delivered the rent certificate to the Noosa [Centrelink] office” as she had continued to deal with that office for some weeks after moving to Buderim;
(d)the rent certificate in question covered the period 5 May 2016 to 13 October 2017 when she was paying rent of $160/fortnight in a share accommodation in Maroochydore;
(e)she manually handed the rent certificate in to Centrelink because she did not have access to the Internet but she failed to keep a copy;
(f)she was given incorrect information in May 2016 that she was not eligible for rent assistance and did not believe she had anything to follow-up;
(g)in December 2016 she noticed on her MyGov account that she was still listed as having no fixed address despite having given Centrelink her address and rent details in May 2016;
(h)she made changes on her MyGov account and followed it up with phone calls to Centrelink and reiterated that no one at Centrelink mentioned that she should have been receiving rent assistance;
(i)she had not stated that she would not send in the rent certificate as per the Centrelink file note and that that record is “INCORRECT and misleading”;
(j)when she moved to an alternative address in Maroochydore on 14 October 2017 and was provided a new rent certificate she then began receiving rent assistance;
(k)she telephoned Centrelink and enquired why, given that her rent had gone up $40 per fortnight, she was suddenly receiving $60 per fortnight rent assistance. She says that a Centrelink officer informed her that there was no scanned rent certificate for May 2016 and that she had been eligible for rent assistance of around $30 per fortnight during that period; and
(l)Centrelink had lost any and all information from May 2016 regarding her new address and the accompanying rent certificate she had provided and she was therefore claiming missing rent assistance payments of $31.65 per fortnight from
5 May 2016 to 13 October 2017.
Shortly after making her claim for arrears of RA , Ms Knight again contacted Centrelink to advise that she had vacated the Maroochydore property on 14 December 2017 after being given notice by the leaseholder to vacate. Ms Knight said she had served a breach notice on the lease holder because of unacceptable noise levels and that this resulted in her being given the notice to vacate. Ms Knight says that as a result she was once again at no fixed address until further notice.[27]
[27] Exhibit 1, T Documents, T10, pages 57–59, Letter from Ms Knight Centrelink dated 15 December 2017.
On 19 December 2017, Centrelink received a screenshot of Ms Knight’s Centrelink online account upload history since 21 August 2017.[28]
[28] Exhibit 1, T Documents, T11, pages 60–61, Upload history.
On 20 March 2017, Centrelink determined that Ms Knight was not eligible for RA.
On 20 March 2017, there was an increase in Ms Knight’s NSA due to cost-of-living increase.[29]
[29] Exhibit 6, Respondent’s Statement of Issues, Facts and Contentions dated 27 September 2018 at [51].
Ms Knight requested a review of Centrelink’s decision by an Authorised Review Officer (“ARO”) on 30 November 2017. The ARO reported that they had carefully checked
Ms Knight’s records and could not see any record that Ms Knight:
(a)had been issued a rent certificate, or returned a rent certificate around the time of her letter of 6 May 2016; or
(b)had provided a change of address at that time.
The ARO says Centrelink’s records were not updated until 6 December 2016 when
Ms Knight changed her address. As a result of this contact a rent certificate was then issued to Ms Knight on 13 January 2017 requesting verification of rent. The ARO explained that because she had not verified her rental payments she was not paid RA. The ARO noted that because Ms Knight’s request for review of the rate of NSA was over 13 weeks after the deemed notice dated 20 March 2017, the earliest date she could be paid rent assistance is the date the review was requested which was
[30] Exhibit 1, T Documents, T12, pages 62–73, ARO decision and notes dated 19 December 2017.
30 November 2017.[30]
Ms Knight then lodged an application for review with the Social Services and Child Support Division (“SSCSD”) of this Tribunal on 31 January 2018.[31] Ms Knight contends that:
(a)in May 2016 Centrelink staff told her she was not eligible for RA and therefore she did not follow up;
(b)she handed in her rent certificate at the Noosa Centrelink office but it has gone missing;
(c)in December 2016 she saw her address was incorrect on Mygov and telephoned Centrelink to say that she had changed her address in May 2016 and had handed in the rent certificate at that time to ensure all was correct;
(d)The Centrelink officer told her that her rent certificates automatically generate and to ignore it as they already had the original with the details that were supposed to be updated;
(e)in October 2017 she initiated an enquiry with Centrelink and had moved with the landlord to new premises. While her rent only went up $40 per fortnight she suddenly received $60 rent assistance;
(f)she has done everything correctly; and
(g)Centrelink is the sole cause of her not seeking a review any earlier.
[31] Exhibit 1, T Documents, T15, pages 80–82, Request for statement dated 31 January 2018.
The SSCSD affirmed the ARO’s decision on 1 May 2018.[32]
[32] Exhibit 1, T Documents, T2, pages 8–14, SSCSD’s Decision and Reasons for Decision dated 1 May 2018.
On 7 June 2018, Ms Knight sought a review of the SSCSD’s decision by the General Division of the Tribunal.[33]
[33] Exhibit 1, T Documents, T1, pages 1–7, Application for Review dated 7 June 2018.
ISSUES FOR DETERMINATION
The issues to be determined are whether Ms Knight:
(a)was qualified for rent assistance from 24 April 2016 to 14 October 2017 (“the Period”); and, if yes
(b)can be paid rent assistance from a date earlier than 30 November 2017.
QUALIFICATION FOR RENT ASSISTANCE
The rates at which people (who are not permanently blind) are paid NSA is determined using the Benefit Rate Calculator B at the end of section 1068[34] of the Social Security Act 1991 (Cth) (“Act”) and is affected by, among other things, a person’s income and the value of their assets.[35] The maximum basic rate payable varies depending upon a person’s family situation.
[34] Section 643, Social Security Act 1991 (Cth) (“Act”).
[35] Section 55(a), Act.
Rent assistance is a component of a person's NSA entitlement. If you are not receiving a social security payment you cannot be qualified for RA: section 1070B of the Act. A decision to pay or not pay RA, is a decision made in relation to a person’s rate of payment for NSA.
Relevantly here, Ms Knight will qualify for RA for the Period if she satisfies the common requirements set out in sections 1070C and 1070H of the Act. Section 1070C of the Act provides:
The common requirements are that:
(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).
It is not in contention that Ms Knight satisfies the common requirements in section 1070C(a)-(b) of the Act and the requirements in section 1070H(2) of the Act.
Was Ms Knight liable to pay rent during the Period in excess of the rent threshold amount? (section 1070C(c)-(d) of the Act)
The Secretary contends that there is insufficient objective evidence of Ms Knight’s rent obligations during the Period.
The Secretary referred the Tribunal to the Guides to Social Policy Law, released
4 February 2019 (“Guide”) which is used by Centrelink as a Guide on the application of the social security law.
The Tribunal is not bound to apply the Guide, but it may, and it should, apply it in exercising its discretion unless it is unlawful or “tends to produce an unjust decision”.[36]
[36] ReDrake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 645.
Brennan J explained the relevance of an adopted policy to decision-making in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 640 (“Drake”):[37]
Decision-making is facilitated by the guidance given by an adopted policy, and the integrity of decision-making in particular cases is the better assured if decisions can be tested against such a policy. By diminishing the importance of individual predilection, an adopted policy can diminish the inconsistencies which might otherwise appear in a series of decisions, and enhance the sense of satisfaction with the fairness and continuity of the administrative process.
[37] See also Singh v Minister for Immigration and Citizenship (2012) 199 FCR 404; [2012] FCAFC 12.
The Full Federal Court in Hneidi And Others v Minister For Immigration And Citizenship (2010) 265 ALR 292; [2010] FCAFC 20 set out the four propositions which emerge from Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 (“Drake”) when considering the entitlement of an administrative decision-maker to take into account a statement of governmental policy:
[41]…The first is that the decision-maker is entitled, in the absence of specifically defined criteria for the exercise of the discretion, to take into account “government policy”. Thus, where the tribunal is not under a statutory duty to regard itself as bound by the policy, it is entitled to treat the policy as a relevant consideration.
[42] Second, in the absence of a specific statutory provision (which would no doubt be unusual) the tribunal is not entitled to abdicate its function of determining whether the decision under review was, on the material before the tribunal, the correct or preferable one, to a more passive function of determining whether the decision conformed to the relevant policy.
[43] Third, it is not desirable to frame a general statement of the part which government policy should ordinarily play in the determinations of the tribunal. That is a matter for the tribunal to determine in the context of the particular case, informed by considerations of the desirability of consistency of administrative decisions but balanced against the ideal of justice in the individual case.
[44] Fourth, the borderline between cases in which the tribunal has abdicated its functions to those of an unthinking application of “government or ministerial policy” to the facts may sometimes be blurred. But where the tribunal considers that the correct or preferable decision results from the application of such a policy, it should make it clear that:
… it has considered the propriety of the particular policy and expressly indicates the considerations which have led it to that conclusion.[38]
[38] Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, at 421.
In Drake, Brennan J (as President of the AAT) noted that:
·“…an argument against the policy itself or against its application in the particular case will be considered, but cogent reasons will have to be shown against its application”.[39]
·“The Tribunal’s duty is to make the correct or preferable decision in each case on the material before it, and the Tribunal is at liberty to adopt whatever policy it chooses, or no policy at all, in fulfilling its statutory function”.[40]
·Further, consistency with comparable cases and decisions is “[o]ne of the factors to be considered in arriving at the preferable decision… and one of the most useful aids in achieving consistency is a guiding policy”.[41]
[39]    Drake at 645.
[40]    Drake at 642.
[41]    Drake at 643.

The Guide sets out in section 2.2.13.20 that an applicant for RA should verify their rent by providing Centrelink with a copy of a current lease or tenancy agreement, a rent certificate or a rent declaration. Rent certificates and declarations are required to be signed by a person’s landlord as verification of the details provided by an applicant.
Centrelink notices sent to applicants also make reference to the sort of information required to verify the rent payable by an applicant for RA. By way of example, the Secretary referred the Tribunal to a letter from Centrelink to Ms Knight on 30 October 2017 setting out the breakdown of her NSA and RA payments. Under the section headed important information it provides “to pay you Rent Assistance we need proof of how much rent you pay. If you have a current lease or tenancy agreement, we need to see it by
20 November 2017. If you do not have a current lease or tenancy agreement, please complete a Rent Assistance Questionnaire (Rent Certificate) and return it by
[42] Exhibit 1, T Documents, T20, page 202, letter from Newstart to Ms Knight dated 30 October 2017.
20 November 2017. Your landlord or their authorised representative must sign the Rent Assistance Questionnaire (Rent Certificate).”[42]
Ms Knight was adamant at the hearing that when she provided the May 2016 letter to Centrelink, Centrelink issued her with a rent certificate. She says she completed the rent certificate and took it into a Centrelink office and gave it to a Centrelink officer. She then says the Centrelink officer told her she was not eligible for RA. As a result of that advice she says she did nothing further and did not believe she could appeal the decision.[43] She says it was not until October 2017, when she began receiving RA, even though she was paying more rent at that time than during the Period, that she sought a review.
[43] Exhibit 1, T Documents, T15, page 80, Ms Knight’s submissions.
There is no dispute that the letter of 6 May 2016 was received by Centrelink. Centrelink was aware from the May 2016 letter that Ms Knight was paying $200 per fortnight to her friend for rent and bills. The exact amount being paid for rent was not specified. At the relevant time in March to June 2016 the relevant minimum rent threshold for a single person with no dependent children was $116.[44] It was not until Centrelink received
[44] See A Guide to Australian Government Payments (20 March – 30 June 2016).
[45] Exhibit 1, T Documents, T18, page 108, Centrelink record.
Ms Knight’s letter of 6 December 2016 that it became aware that Ms Knight had been paying $80 rent per week since 5 May 2016. This amount is in excess of the relevant minimum rent threshold. Centrelink records indicate that the rental amount was “NVE”, that is “not verified”.[45]
Once Centrelink became aware of the exact rent Ms Knight was paying Centrelink issued a rent certificate.[46]
[46] Exhibit 1, T Documents, T20, page 193, Rent certificate form issued 13 January 2017; T19, page 142, Centrelink Record.
There is no Centrelink record of Ms Knight being issued with a rent certificate upon receipt of the May 2016 letter. This is not surprising given that that letter did not specify the exact amount of rent payable.
The first record Centrelink has of contact with Ms Knight after 6 May 2016 was on
31 May 2016 regarding medical certificates. There is no record of Ms Knight following up with Centrelink regarding her rent certificate or querying her rate of NSA.
There is nothing in Centrelink records to indicate that a rent certificate was issued to
Ms Knight in May 2016. There is also no record that a rent certificate was returned by
Ms Knight in May 2016.
Other than Ms Knight’s oral and written submissions, Ms Knight provided:
(a)a Tenancy Application Form completed by her and dated 29 July 2016;
(b)bank statements that disclose fortnightly payments of $200 described as "MK rent-bills”; and
(c)a copy of an email exchange she had with Ms Robyn Unicomb on
30 November 2017.
The Tenancy Application form indicates that Ms Knight had been renting a room from Ms Unicomb since April 2016. The Tenancy Application form was not signed until July 2016, which is after the date Ms Knight says she handed in a rent certificate. The Application form is not a Tenancy Agreement. There is no evidence of a Tenancy Agreement having been signed or sent in to Centrelink. The Tenancy Application Form is not evidence which objectively verifies the rent payments being made by Ms Knight during the Period. The bank statements show that Ms Knight was paying rent and bills of $200.00. It is not clear to who that money is being paid or what component of that amount is rent.
Ms Knight also sought to rely on a document which is purportedly a copy of an email sent to her from her landlord Robyn Unicomb. The email was dated 30 November 2017 and provided that:[47]
My recollections are as you have stated, I recall you receiving a rent certificate and I signed it as per $80 rent ($20 utilities). I handed it back to you on the landing and I recall you advising that you were going to hand deliver to Centrelink.
[47] Exhibit 1, T Documents, T9, page 56, Email from Robyn to Megan dated 30 November 2017.
This email was in response to an email from Ms Knight to Ms Unicomb asking her to check her records in January 2017.[48] Ms Knight emailed:
[48] Exhibit 7, Correspondence from Ms Knight to Centrelink, Litigation Department, dated 15 August 2018.
1Would you please send me a return email with your recollections about this. My recollections are:
* I asked you to fill in rent cert which you did
* we clarified at that time that $80 was rent and $20 was bills
·you gave me the completed rent cert…
·I delivered to centrelink which I may or may not have discussed with you
·I remember being told I was not eligible for rent assistance
·… A rent cert was issued to me in Jan 2017 so maybe that was the rent cert we filled in tho [sic] I believe I was told that one didn’t needed to be handed in as my circumstances had not changed
2 Would you please check your records in Jan 2017, just in case
…
It was generous of Ms Unicomb to write this email to Ms Knight and assist her, given that four (4) days earlier she had given Ms Knight a notice to vacate her property and
Ms Knight has given her a breach notice for breaching her peace comfort and privacy.[49] It is unclear what period Ms Unicomb is referring to in the email, although it is more likely to be January 2017. It is unclear when Ms Unicomb clarified with Ms Knight that the rent component was $80. Ms Unicomb was not called to give evidence at the hearing. The Tribunal cannot assign any weight to the document where:
(a)it is not apparent that it relates to the Period in question; and
(b)the contents are otherwise unable to be tested.
[49] Exhibit 1, T Documents, T10, pages 57-59, Letter from Ms Knight to Centrelink dated 15 December 2017
enclosing copy of a breach notice.
The email from Ms Knight indicates that she was not entirely sure whether Ms Unicomb completed a rent certificate in May 2016 or January 2017.
CONCLUSION
The Tribunal is not satisfied on the evidence that Ms Knight provided Centrelink with verification of her rent, in terms of a rent certificate, declaration or tenancy agreement, during the Period. The first record of Ms Knight providing any verification of her rental income after May 2016 is when she provided a rent certificate on 9 November 2017.
There is also insufficient objective evidence to determine whether Ms Knight qualified for RA at that time.
Even if the Tribunal was satisfied that a rent certificate, or appropriate verification, had been lodged with Centrelink, Ms Knight cannot be paid RA any earlier than 30 November 2017. The Social Security (Administration) Act 1999 (Cth) (“the Administration Act”) sets out in sections 78 and 108 that an increase in the rate of a social security payment, is a “favourable determination”. After May 2016, Ms Knight received three (3) notices concerning the rate of her NSA, on 20 July 2016, 6 April 2017 and 30 October 2017.
Ms Knight is also deemed to have been notified of indexed rate increases that occurred on 20 March and 20 September in each calendar year pursuant to subsection 109(7) of the Administration Act.[50] The earliest written decision made after May 2016 is the 20 July 2016 determination. Ms Knight does not dispute receiving the 20 July 2016 notice. The date Ms Knight requested a review was not until November 2017 which is more than 13 weeks after the 20 July 2016 notice, and therefore, pursuant to section 109(2) of the Act, the earliest that Ms Knight can be paid RA is
[50] See sections 1190 and 1191 of the Act.
[51] Section 109, Administration Act.
30 November 2017. The request for review was also after the date a decision was made to grant her rent assistance (on 30 October 2017), therefore there is no RA arrears payable.[51]
Ms Knight contended that being told she was not eligible on the day she handed in her rent certificate constitutes a request for review. The Tribunal does not agree given that there is no evidence that Ms Knight complained about that advice until
29 November 2017 or handed in a rent certificate in May 2016.
Even if Ms Knight received verbal advice in May 2016 from a Centrelink officer that she was ineligible for RA, this does not constitute a decision under the Act because decisions must be in writing.[52] Even if that were not the case, the time at which arrears can be payable from a favourable determination are still dependent on the date a review of a decision was made. There is no evidence of any request for a review prior to
[52] Section 236, Administration Act.
30 November 2017.
In written submissions provided subsequent to the hearing Ms Knight states that she was dealing with medical and personal issues at the time which impacted on her ability to follow up with Centrelink. That is understandable, but it does not change the outcome of this decision.
Ms Knight submitted that it was Centrelink’s obligation to follow her up and that when she sent in the May 2016 letter Centrelink should have followed her up. There is no legal obligation on Centrelink to follow applicants up in relation to the information they provide.
Even if it was assumed that there had been defective administration, this would have no impact on this decision. There is no discretion to order that Ms Knight be paid arrears at an earlier date in time. If someone has been impacted by Centrelink’s advice, Centrelink has a compensation scheme to which impacted applicants can apply. Ms Knight has lodged an application for compensation.
DECISION
The Tribunal affirms the decision under review.

I certify that the preceding 66 (sixty-six) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg

.............................[SGD]......................................
Associate
Dated: 1 March 2019

Date of hearing:
29 November 2018

Date reserved: 14 January 2019

Applicant: In person

Advocate for the Respondent: Ms Jacky Vetter, Seconded Lawyer

Solicitors for the Respondent: Department of Human Services

[2019] AATA 311

1 March 2019

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Appeal

Date of hearing:	29 November 2018
Date reserved:	14 January 2019
Applicant:	In person
Advocate for the Respondent:	Ms Jacky Vetter, Seconded Lawyer
Solicitors for the Respondent:	Department of Human Services