Laurent and Secretary, Department of Family and Community Services
[2004] AATA 612
•18 June 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 612
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2003/936
GENERAL ADMINISTRATIVE DIVISION ) Re NATHAN LAURENT Applicant
And
SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Ms J Cowdroy, Member Date18 June 2004
PlaceBrisbane
Decision The Tribunal affirms the decision under review. ...................[Sgd]......................
J Cowdroy
Member
CATCHWORDS
SOCIAL SECURITY – benefits and entitlements – rent assistance – arrears – department failed to reinstate payments of rent assistance after cancelling applicant’s newstart allowance in error – whether completion of fortnightly forms amounted to request for review - request for review of decision made more than 13 weeks after initial decision – date from which arrears of rent assistance payable – decision affirmed
Social Security Act 1991
Social Security (Administration) Act 1999
Re Laurent and Secretary, Department of Family and Community Services [2002] AATA 202
Laurent v Secretary, Department of Family and Community Services [2003] FCA 1017
Re Secretary, Department of Family and Community Services and Rogers [2001] AATA 94
Re Frost and Secretary, Department of Social Security (AAT No 10360, 17 August 1995)REASONS FOR DECISION
18 June 2004 Ms J Cowdroy, Member 1. The applicant seeks review of a decision of the Social Security Appeals Tribunal (the SSAT) dated 21 August 2001, which upheld the respondent’s decision not to pay arrears of rent assistance to the applicant for the period 28 September 1999 to 4 December 2000.
2. This matter originally came before this Tribunal for hearing on 30 January 2002. By decision dated 27 March 2002 (Re Laurent and Secretary, Department of Family and Community Services [2002] AATA 202), the Tribunal set aside the decision under review and substituted its decision that arrears of rent assistance be paid from 27 September 1999. The Tribunal found that rent assistance was a social security payment, in that it was an allowance under the Social Security Act 1991 (the Act) and therefore fell within the definition of “social security payment” in section 23(1) of the Act. The Tribunal further found that section 109(3) of the Social Security (Administration) Act 1999 (the Administration Act) operated to entitle the applicant to arrears of rent assistance from 27 September 1999. The respondent appealed this decision to the Federal Court.
3. On 25 September 2003, Cooper J delivered a decision in the appeal (see Secretary, Department of Family and Community Services v Laurent [2003] FCA 1017). His Honour set aside the Tribunal’s decision and remitted the matter to the Tribunal for re-hearing. The Court found that rent assistance has no independent existence from, nor is it payable otherwise than as a part of, a benefit to which section 1068 of the Act applies. The Court said:
“30. Rent assistance is not a discrete sum of money payable under the Act as a pension, benefit or allowance. It is a notional amount to be added to a person’s maximum basic rate of pension, benefit or allowance to help cover the cost of rent. What is in fact payable and paid is the Newstart Allowance in a sum calculated in accordance with Benefit Rate Calculator B (s 1068) and that is the payment to which s 109(1)(a) of the Administration Act applies.”
4. Further, the Court held:
“33. In my opinion, the AAT erred in holding that ‘rent assistance’ fell within par (c) of the definition of ‘social security payment’ and that it was thereby a payment in its own stead for the purposes of s 109 of the Administration Act. For the purposes of s 109 of the Administration Act, the relevant decision was that made on 27 September 1999 with respect to the payment of Newstart Allowance. It was the decision to use Pension Rate Calculator B without including in the calculator anything for rent assistance as Module F.
34. The error of the AAT as to the nature of rent assistance was central to its reasoning that no sufficient notice was given to Mr Laurent of a decision to terminate the payment of rent assistance thereby requiring s 109(3) of the Administration Act to be applied to determine the date from which to restore payment of rent assistance. …
35. The existence of such an error requires that the decision be set aside…”
5. The application for review was re-heard by the Tribunal on 8 March 2004. The applicant was represented at the re-hearing by Ms Heyworth-Smith of Counsel and the respondent was represented by Mr Ffrench. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T documents) from the original Tribunal file (Q2001/840) as well as the exhibits and evidence presented at the earlier hearing. No additional exhibits were tendered at the re-hearing and the Tribunal received no further oral evidence. Both parties made submissions to the Tribunal at the re-hearing.
Review of Evidence from Original Hearing
6. The evidence given at the original hearing of this application for review is set out in the Tribunal’s earlier decision ([2002] AATA 202]. Pursuant to section 23B of the Administrative Appeals Tribunal Act 1975, the Tribunal has had regard to the evidence given at the earlier hearing of this case. The following is a review of the evidence presented to the Tribunal at the earlier hearing.
7. Mr Laurent was in recept of newstart allowance and rent assistance until 16 September 1999 when Centrelink cancelled his payments on the basis he had failed to respond to their requests for information. It turned out that the respondent had sent their correspondence to an incorrect address. They realised their error when the correspondence was returned undelivered.
8. On 20 September 1999, the respondent updated its records with the applicant’s correct address and restored his newstart allowance. A letter was sent to the applicant on that day advising him that his payments from 12 October 1999 would be $392.70, which included an amount of $76.00 for rent assistance.
9. On 27 September 1999, the respondent wrote to the applicant advising that his payments for the period 14 September 1999 to 27 September 1999 would be $386.75. No mention was made of rent assistance.
10. Between 28 September 1999 and 4 December 2000, the applicant was sent a number of letter advising of his rate of payment. These letters did not mention rent assistance. Throughout this period the applicant lodged a number of “Application for Payment of Newstart Allowance” forms.
11. The applicant contacted the respondent on 16 January 2001 advising that he had not been paid rent assistance since August 1999. The decision under review came about as a result of that contact. The respondent (and later the SSAT) determined that arrears of rent assistance could only be paid to 4 December 2000, which is the date of the last letter sent by the respondent setting out its decision as to the rate of pension payable to the applicant.
Consideration
12. Section 109 of the Administration Act provides for the payment of arrears of a social security benefits to an applicant. It states:
“(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.
(4) If:
(a)a decision (the original decision) is made in relation to a person’s social security payment; and
(b)the person is given a notice informing him or her of the original decision; and
(c)the Secretary reviews the decision under section 126 without any application under section 129 for review of the decision having been made; and
(d)as a result of the review, the favourable determination is made within 13 weeks after notice of the original decision was given to the person;
the favourable determination takes effect on the day on which the determination embodying the original decision took effect.
(5)If:
(a)a decision (the original decision) is made in relation to a person’s social security payment; and
(b)the person is given a notice informing him or her of the original decision; and
(c)the Secretary reviews the decision under section 126 without any application under section 129 for review of the decision having been made; and
(d)as a result of the review, the favourable determination is made more than 13 weeks after notice of the original decision was given to the person;
the favourable determination takes effect on the day on which the review was begun by the Secretary.”
13. As has been made clear in Cooper J’s decision in Laurent, rent assistance is not a “social security payment” as defined in section 23(1) of the Act. It is not an independent payment. It is a notional amount to be added to a person’s maximum basic rate of pension (Laurent at par 30). The relevant social security payment in this case is newstart allowance and it is clear the applicant was notified, via letters from the department sent during the period 20 September 1999 and 4 December 2000, of the respondent’s decisions as to his entitlement to newstart allowance. Therefore, the Tribunal is satisfied that the applicant was notified of those decisions and section 109(3) of the Administration Act has no application in this case.
14. The issue remaining in this case, therefore, is whether the lodging of the “Application for Payment of Newstart Allowance” forms by the applicant, on a fortnightly basis during the period 28 September 1999 to 4 December 2000, amounted to requests for a review, under section 129 of the Administration Act, of the respondent’s decisions regarding the non-payment of rent assistance. If this issue is determined favourably to the applicant, he will be entitled to arrears of rent allowance during the period 28 September 1999 to 4 December 2000 by virtue of section 109(1) of the Administration Act. If the issue is determined unfavourably to the applicant, section 109(2) will operate to deny him the payment of arrears during the relevant period.
15. Requests for review of decisions of the respondent can be made under section 129 of the Administration Act. That section provides:
“(1) Subject to subsections (3) and (4), a person affected by:
(a)a decision of an officer under the social security law; …
may apply to the Secretary for review of the decision.”
16. Decisions can also be reviewed under section 126 of the Administration Act, which provides:
“(1) The Secretary may review:
(a)subject to subsection (2), a decision of an officer under the social security law; …
if the Secretary is satisfied that there is sufficient reason to review the decision.
(2) The Secretary may review a decision:
(a)whether or not any person has applied for review of the decision; and
(b)even though an application has been made to the Social Security Appeals Tribunal or the Administrative Appeals Tribunal for review of the decision.
(3) The Secretary may:
(a) affirm a decision; or
(b) vary a decision; or
(c) set a decision aside and substitute a new decision.”
17. Sections 109(4) and 109(5) may have some application in this case if the Tribunal is of the view that the fortnightly forms did not amount to applications for review under section 129 of the Administration Act, but the consideration of them amounted to reviews under section 126 of the Administration Act. If these sections do become relevant, it is important to note that they would not change the outcome of the decision under review, as the respondent did not make a “favourable determination” as to the rent review issue during the period 28 September 1999 to 4 December 2000. The first “favourable determination” regarding rent assistance was made when the department reviewed Mr Laurent’s case in January 2001 following his telephone call.
18. The first question for determination therefore is whether the fortnightly forms amounted to requests for review under section 129 of the Administration Act.
19. Each fortnight during the relevant period, Mr Laurent lodged “Application for Payment of Newstart Allowance” forms. The information provided on these forms was utilised by the respondent in determining whether the allowance should be paid and, if so, at what rate. The Tribunal accepts that each time an application form was lodged, the respondent was obliged to consider the information in the application and make a fresh determination as to whether Mr Laurent was entitled to newstart allowance and, if so, the rate of allowance payable to him.
20. In Re Secretary, Department of Family and Community Services and Rogers [2001] AATA 94, Senior Member Beddoe considered the purpose of Sole Parent Review forms completed by the applicant in that case. The Senior Member said (at pars 60-61):
“60. It is clear enough that the review form was in effect a requisition for information. To not comply with the requirement was to risk the sanction in section 285(5) but of more immediate concern would be the risk of suspension of pension payments. The effect was that a person, such as the respondent, who believed they were entitled to payment of pension would be under a perceived obligation to supply the relevant information, as the respondent did.
61. It is reasonable, in my view, to infer that a person returning a completed Sole Parent Review form to the applicant would expect that the person’s entitlement to a pension was being reviewed. I have difficulty in understanding that any other perception as to the purpose of the form is open. The word ‘Review’ appears in the bold type heading of the form. Review was its stated purpose. What was being reviewed? The answer must be the person’s entitlement to a pension, whether the pension was payable and the amount payable.”
21. The applicant contends that the absence of the word “review” from the title of the “Application for Payment of Newstart Allowance” form does not change its nature, it merely makes its review function less obvious. In this regard the applicant relied on the decision of the Tribunal in Re Frost and Secretary, Department of Social Security (AAT No 10360, 17 August 1995). The Tribunal considers however, that the applicant is mistaken as to the nature of the application form in this case.
22. The “Application for Payment of Newstart Allowance” is not an application for review of a prior decision of the respondent. Following the reasoning of Senior Member Beddoe in Rogers, it is fair to say that a person completing an “Application for Payment of Newstart Allowance” form would expect that their entitlement to newstart allowance was being reviewed. The Tribunal accepts that the respondent would review the information provided in the form to decide whether the person is entitled to the allowance, whether the allowance was payable and the amount that was payable. Whilst the respondent may look back to its previous decision regarding a person’s entitlement to the allowance it would not be reconsidering that decision – it would be making a fresh decision as to the person’s entitlement to the pension as at that date based upon the information contained in the application form.
23. Given that the respondent is making a fresh decision in relation to a person’s continuing eligibility and entitlement to a pension upon the receipt and consideration of each fortnightly “Application for Payment of Newstart Allowance” form, it is hard to see how these forms could be considered requests for review, pursuant to section 129 of the Administration Act, of previous decisions of the respondent as to the rate of pension payable to the person.
24. As such, the Tribunal does not accept that the lodging of the “Application for Payment of Newstart Allowance” forms by the applicant, on a fortnightly basis during the period 28 September 1999 to 4 December 2000, amounted to requests for a review, under section 129 of the Administration Act, of the respondent’s decisions regarding the non-payment of rent assistance.
25. The applicant’s first request for a review of the decision not to pay rent assistance was made in the telephone call of 16 January 2001. Pursuant to section 109(2) of the Administration Act, the earliest date that arrears of rent assistance is payable to the applicant is 4 December 2000, being the date of the last decision of the respondent as to the rate of newstart allowance payable to the applicant.
26. As mentioned earlier, there may be an issue as to whether the consideration of the “Application for Payment of Newstart Allowance” forms amounted to reviews under section 126 of the Administration Act. However, in this case, the answer to that question is irrelevant to the outcome of the application for review, as the respondent did not make a “favourable determination” as to the rent review issue during the period 28 September 1999 to 4 December 2000 when it considered the applicant’s fortnightly forms. The first favourable determination regarding rent assistance was made when the respondent reviewed Mr Laurent’s case in January 2001 following his telephone call. That telephone call amounted to an application for review under section 129, so there is little benefit in the Tribunal determining whether the consideration of the forms amounted to reviews under section 126 of the Administration Act in this case.
Decision
27. The Tribunal affirms the decision under review.
I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Ms J Cowdroy, Member
Signed: Sarah Oliver
AssociateDate of Hearing 8 March 2004
Date of Decision 18 June 2004
Counsel for the Applicant Ms Heyworth-Smith
Solicitor for the Applicant Welfare Rights Centre
For the Respondent Mr T Ffrench, Departmental Advocate
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