Parker and Secretary, Department of Social Services (Social services second review) - [2020] AATA 4084

Parker and Secretary, Department of Social Services (Social services second review) [2020] AATA 4084 (24 September 2020)
Division:GENERAL DIVISION
File Number: 2020/3456
Re:Mr Graham Parker
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Ms A E Burke AO, Member
Date of decision: 24 September 2020
Date of written reasons: 9 October 2020
Place:Melbourne

For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal VARIES the decision under review so that arrears of rent assistance are payable to the Applicant for the following periods:
1. 30 January 2014 to 19 March 2014; and
2. 20 March 2019 to 23 April 2019.
The decision under review is otherwise affirmed.
....[sgd]...... ..............................................................
Ms A E Burke AO, Member
Catchwords
SOCIAL SECURITY –– oral decision – arrears for rental assistance – administrative error leading to underpayment – 13 week rule – decision under review varied
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Cases
Malone and Secretary, Department of Social Services [2018] AATA 4202
Threadgold and Secretary, Department of Social Services [2014] AATA 654
REASONS FOR DECISION
Ms A E Burke AO, Member
9 October 2020

Mr Parker (the Applicant) is seeking a second-tier review of the decision made by the Secretary of the Department of Social Services (the Respondent) that he could not be paid arrears for rental assistance for the period 7 March 2014 to 23 April 2019 as he had not sought a review prior to 24 April 2019.
The application was heard by telephone on 24 September 2020. Mr Parker was self-represented and Mr Brian Sparkes, a government lawyer in the Freedom of Information and Litigation Team of Services Australia, appeared for the Respondent.
The Tribunal provided an oral decision at the hearing providing that for 2 periods, being 30 January 2014 to 19 March 2014 and 20 March 2019 to 23 April 2019, arrears for rent assistance were payable but otherwise affirmed the original decision of 12 February 2020. Mr Parker has subsequently requested written reasons for the decision in accordance with section 43(2A) of the Administrative Appeals Tribunal Act 1975. These are those reasons.
BACKGROUND
On 29 December 2013, Mr Parker lodged a claim for the age pension. In his application he provided details of his financial situation, a rent certificate form and a copy of his Residential Tenancy Agreement.
On 10 March 2014, Centrelink advised Mr Parker that his application for age pension had been considered and approved for payment from 30 January 2014. The original notices itemised the following payments: Age Pension, Plus Clean Energy Supplement, Plus Pension Supplement, but did not mention rent assistance. The notice did not include details of appeal rights or time limitation periods in respect of review requests and payment of arrears.
On 4 December 2014, Centrelink advised Mr Parker in writing of a change to his age pension rate including the various components of the total amount to be paid. Rent assistance was not mentioned. The notice included details of appeal rights and importantly it told the Applicant that if he did not ask for a review within 13 weeks of the notice, then he “may only receive [his] entitlement from the date [he] requested a review.”
Mr Parker was notified in writing annually thereafter of changes to his age pension rate and was notified on each occasion of his appeal rights and the 13 week rule in relation to arrears.
On 24 April 2019 Mr Parker notified the Department of a change of address and was advised he was entitled to rental assistances. The Department discovered and notified Mr Parker of a coding error which had resulted in non-payment of rental assistance from 30 January 2014 to which he was entitled. Mr Parker requested arrears of back payment for rental assistances which the Department denied.
On 24 February 2020, a departmental Authorised Review Officer (ARO) reviewed the decision to not grant Mr Parker arrears for rental assistance:
You claimed Age Pension and were granted from 30 January 2014. In your claim you notified that you are not a home owner, live at… and that you pay private rent of… per month. You also verified your accommodation details by lodging a Rent Certificate form and Residential Tenancy Agreement.
The agency erroneously coded you as a homeowner on 3 January 2014. As a result of this, Rent Assistance was not paid to you.
The agency sent you letters on 4 December 2014, 22 December 2015, 3 December 2016, 13 October 2017, 23 February 2018 and 29 December 2018 which confirmed that no Rent Assistance was being paid to you.
When a person has not requested a review of the original decision within 13 weeks of the notification of the decision, then back payment can only be paid from the date that the review has been requested.
In your case, you were notified that Rent Assistance was not paid to you in the letters the agency sent to you on 4 December 2014, 22 December 2015, 3 December 2016, 13 October 2017, 23 February 2018 and 29 December 2018. You did not request a review of this decision until 24 April 2019. As 24 April 2019 is more than 13 weeks from the notifications being sent to you, no back payment of Rent Assistance can be paid.
This means I have found the agency’s decision to not pay you back payment of Rent Assistance is correct.
On 14 May 2020, the Social Services and Child Support Division of the Tribunal (AAT1) affirmed the decision of the ARO stating:
As the tribunal cannot identify any earlier request for a review for the payment of rent assistance prior to 24 April 2019, it follows arrears of rental assistance cannot be paid.
The tribunal was sympathetic to Mr Parker. Overall, he is not asking for anything more than what he would have been entitled to had he not encountered the administrative misadventures and delays and difficulties with connecting with Centrelink. Careful exploration of the Act confirmed no discretions exist to take such matters into account.
On 5 June 2020, Mr Parker sought a review of the AAT1 decision by this division of the Tribunal as he disagreed with the decision, stating in his claim:
With the greatest respect I believe that the findings of the Senior Member are incorrect in several ways. I refer to the document titled Decision and Reasons for Decision.
Paragraph 6 states "Mr Parker claimed rent assistance in 2014". This is incorrect. I did not submit any such claim. I was not aware that rent assistance applied to me. It is neither necessary nor possible for anyone to make a claim for rent assistance. Apparently if one is entitled then one automatically receives it.
Paragraph 6 states that 'a valid notice of a decision should clearly state that a decision has been made'. Centrelink claims that the letters referenced were valid notice but in not one of those letters is there any reference to rent assistance. There was no statement that a decision had been made. (See the letters in my 1st review submission Attachment D. The first of these is attached).
Paragraph 8 states that "He did not agitate any rejection or query the non-payment or the reasons for non-payment." I was in no position to do so when I was not even aware that a decision had been made.
Paragraph 8 states "Does not reflect his state of mind in 2014". The basis for the senior member understanding my state of mind in 2014 can only be my submissions that I "assume(d) that it did not apply to me" or the equivalent "I assumed that I was not entitled" . My state of mind was not that a decision had been made against me, but that I was unaware that a decision that applied to me had been made. Therefore I could not have been expected to query a decision of which I was not aware.
Paragraph 10 states "Careful exploration of the Act confirmed that no discretions exist to take such matters into account." As I stated in my 1st review submission, Section 109 (3) of the Social Security (Administration) Act 1999 clearly states that if no notice is given and a subsequent error is found (as it was in April 2019) then payment is backdated to the original erroneous decision date (2014).
(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.
Centrelink has readily admitted that they made a clerical error in 2014 and I should have received rent assistance from the date the age pension started, 30 January 2014. That is not in dispute.
Rent assistance is adjusted twice yearly for CPI. Since the current rate reflects the current value of money then any payments backdated to 30 January 2014 should be at the current rate.
ISSUE IN CONTENTION
The issues for determination before the Tribunal is whether arrears of rental assistance can be paid to Mr Parker for the period 7 March 2014 to 23 April 2019.
EVIDENCE
The evidence before the Tribunal included documents provided by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, referred to as the “T documents”. Mr Parker provided a written submission and oral evidence at the hearing.
Mr Parker has outlined a summary of the events which lead to his request for arrears of backpay in numerous documents as follows:
In 2014 I applied for the age pension and payments commenced from 30 January 2014. I did not know that I was entitled to receive rental assistance nor that I did not receive it because of a Centrelink error discovered in 2019. An Authorised Review Officer has rejected back payment. I contend that I was not notified of the original decision and the ARO's decision should be reversed.
These are the facts in chronological order:
26/2/2011 I sold my house (because I needed the money). Settlement was on 30/5/2011.
I have not owned any property since.
In 2014 I applied for and was granted the age pension in March, backdated to… 30/1/2014.
I submitted the Rent Certificate at the time
Receipt of that form was confirmed in 2014 and it was still on file in 2019.
The website said (and still does) nothing else needs to be done; if I am entitled to rent assistance I will automatically receive it.
I have trouble understanding Centrelink's Byzantine systems, and it is extremely difficult to get clarification, so since I did not receive it I assumed I was not entitled. This is explained in detail below
On 24/4/19 on a call to Centrelink to notify change of address a representative named Courtney confirmed they received the rent certificate in 2014. She discovered that Centrelink erroneously coded me as a home owner… I confirmed that I had not owned a home since 2011.
I was asked to submit a fresh Rent Certificate (for my new address), which I did immediately.
After the mistake was realised rent assistance payments began immediately with effect from the next regular payment.
Later that day on 24/4/2019 Courtney's supervisor Louis called me. He said that because the mistake goes back so far it requires an appeal. He said that in his opinion it must be approved. He told me that because of a backlog it would take about three months to complete the review and if I had not heard in four to five months I should call to follow it up. …..
On 19/8/2019 I called and Danielle told me that had been sent for appeal on 24/4/2019 but had not yet been allocated.
Mr Parker advised of the reason for his appeal of the ARO decision on 15 March 2020 in the following terms:
Before I applied for the age pension in 2014 I had not heard of rent assistance. When pension payments started there was no rent assistance component so I assumed I was not entitled. In 2019 Centrelink discovered that I had been wrongly coded as a home owner and was in fact entitled to rent assistance which began from that date. Because of the amount involved in a back pay to 2014 the review process was begun. It was assigned to an Authorised Review Officer 11 months later. She rejected it on the basis that I had not complained, but I was not aware that I should have received it. She argues that under Section 109 I have no claim because I did not appeal within three months. Her argument hangs on the wrongful claim that I had been notified of a decision when in fact I had not.
Mr Parker advised the Tribunal that fundamentally Centrelink had made a blatant error in incorrectly coding that he was a homeowner and that at no stage had he been notified he was not being paid rent assistance. He calculated he was entitled to a significant amount of backpay and disputed that he had ever received a valid notice in respect of being paid rent assistance.
The Respondent advised, in its written submissions:
As a result of an error the Department coded the Applicant as a home owner and as a consequence he was not paid rent assistance.
…
The Applicant was not aware that he was not being paid rent assistance. He may have concluded that he had no such entitlement to that add-on payment. Whatever the case the Applicant did not contact the Department about rent assistance.
The Applicant became aware that he was not receiving rent assistance in early 2019 when he contacted the Department and was told that he was entitled to that payment, and had been since the day age pension was granted.
There is no evidence of any earlier contact with the Department or anything in the nature of a request for a review of the initial, or any later, decision concerning the Applicant’s age pension.
The Applicant (understandably) asked the Department to pay him the rent assistance he would have been entitled to receive since being granted age pension in 2014.
This request to pay arrears of rent assistance (for the period 30 January 2014 to 23 April 2019 (from which time he was paid rent assistance)) was rejected by the Department.
RELEVANT LEGISLATION
Part 3.7 of the Social Security Act 1991 (Cth) outlines the provision of rent assistance designed to help cover the cost of rent which is added to a person’s social security payment:
Division 1—Operation of this Part
1070 When this Part applies
This Part applies if the rate of a person’s social security payment is to be calculated in accordance with any of the following Rate Calculators:
(a)Pension Rate Calculator A (carer payments and certain age and disability support pensions);
…
1070A Effect of this Part
If a person to whom this Part applies qualifies for rent assistance in accordance with Division 2, to help cover the cost of rent:
(a)if paragraph (b) does not apply—the amount per fortnight worked out in accordance with Division 3 is added to the person’s maximum basic rate for the social security payment; or
(b)if the rate of the person’s social security payment is to be calculated in accordance with Pension Rate Calculator A or D, or the Pension PP (Single) Rate Calculator—the amount per fortnight worked out in accordance with Division 3 is multiplied by 26 to calculate an amount per year and the amount per year is added to the person’s maximum basic rate for the social security payment.
Division 2—Qualification for rent assistance
1070B Qualification—general rule
A person qualifies for rent assistance if the person satisfies:
(a)the common requirements set out in section 1070C; and
(b)any specific requirement, set out in a later section of this Division, applicable to the person’s social security payment.
1070C Common requirements (about aged care residence, home ownership and rent)
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).
Section 109 of the Social Security (Administration) Act 1999 (Cth) (the Administration Act) outlines what is commonly referred to as the 13-week rule:
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.
(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
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.
(6) This section does not apply to determinations to which section 109A or 110A apply.
(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;
(c)then:
(d)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
(e)the notice is taken to have been given on the day on which the amount was so indexed or adjusted.
109A Date of effect of determination under section 78 resulting from review required by section 126A
If the Secretary makes a determination under section 78 (rate increase determination) as a result of a review required by section 126A (review of determination of youth allowance rate in relation to maintenance income), the determination takes effect:
(a)unless paragraph (b) applies—on the date that would give full effect to the decision on review; or
(b)if the date referred to in paragraph (a) is earlier than the first day of the income year before the income year in which the review decision was made—that first day.
CONTENTIONS

Mr Parker contended that he was entitled to the full and total arrears payment as it had been attributed solely to administrative error on behalf Centrelink: their coding error of his homeownership had led to the non-payment of rental assistance. He argued consistently that he had never appealed the non-payment of rental assistance as at no stage had he been advised by Centrelink that he was in fact not receiving rental assistance. Fundamentally he contended the advice is clear that one does not need to apply for rent assistance; it is automatically granted if a social security recipient is entitled. As he had submitted the correct forms, he relied upon Centrelink to correctly process this claim, which they did not, and therefore was not aware that he was entitled to rent assistance and subsequently could not possibly know he needed to make a claim for non-payment of rent assistance.
Mr Parker contended he was in no position to query non-payment of rent assistance as he was not even aware that a decision had been made. He quoted that ‘a valid notice of a decision should clearly state that a decision has been made’ and he had never received any letter from Centrelink which referenced rent assistance.
Mr Parker contended Centrelink had readily admitted they made a clerical error in 2014 and as such he should have received rent assistance from the date the age pension was granted on 30 January 2014. He argued that as he was unaware in 2014 that a decision had been made or even considered, there was no possibility of him “agitating” for a further review of a decision.
The Respondent contended that, although it is the case that the original decision to grant age pension absent rent assistance was wrong, the effect of the legislation is that arrears of rent assistance can only be paid to the Applicant for the period 30 January 2014 to 19 March 2014. Otherwise arrears of rent assistance cannot be paid because the date of effect of a favourable determination to increase the rate of age pension (to include rent assistance) cannot be before 23 April 2019 due to the operation of section 109(2) of the Administration Act.
The Respondent acknowledged the exception to this relates to the period 30 January 2014 to 19 March 2014. Section 109(3) allows arrears to be paid for this limited period for the reasons set out below.
·In relation to the period 30 January 2014 to 19 March 2014 the Secretary concedes that rent assistance is payable because the original notice (unlike every other subsequent notice) did not include a reference to the Applicant’s right of appeal and the 13-week period in which to lodge an appeal for payment of full arrears.
·For this reason, the Secretary concedes that the original grant notice was not a sufficient notice for the purposes of section 109, so section 109(2) does not apply but 109(3) does.
·However, the effect of section 109(7) is that the Applicant is deemed to have received a notice of the indexation increase to his age pension effected on 20 March 2014 in relation to which he did not ask for a review (under section 129).
·This then means that section 109(2) operates to limit on review the date of effect of a favourable determination and prevents arrears of rent assistance being paid from 20 March 2014.
The Respondent contended that the operation of section 109 of the Administration Act limits the payment of rent assistance arrears to the Applicant to the period 30 January 2014 to 19 March 2014, notwithstanding that the original decision was in error in not including rent assistance. The Respondent referred the Tribunal to the determination in Threadgold and Secretary, Department of Social Services [2014] AATA 654 where the Senior Member found:
Whether or not the decision to cancel was the correct decision is not a matter for this Tribunal to determine. The issue to the Tribunal is whether Ms Threadgold can be paid arrears of parenting payment between 15 May 2012 and 16 December 2012. The first date on which Ms Threadgold sought review of the decision to cancel her parenting payment was 17 December 2012. Subsection 109 (2) of the Administration Act provides that the earliest date from which payments could be made upon a favourable determination is the date upon which the application for review was made. This could not have occurred before 17 December 2012 when Ms Threadgold was re-granted parenting payment. Even if the decision to cancel Ms Threadgold’s parenting payment was made incorrectly, because she did not contact Centrelink or seek a review of the decision until 17 December 2012, the earliest date from which she could be paid parenting payment was in fact 17 December 2012.
The law does not permit any other outcome and for these reasons I determine to affirm the decision under review.
The Respondent contended that the failure of Mr Parker to ask for a review of any of the notified decisions of age pension rate increases within 13 weeks of receiving the respective notices brings into play section 109(2) of the Administration Act, which precludes payment of rent assistance arrears, notwithstanding the admitted error. The Respondent referred the Tribunal to the determination in Malone and Secretary, Department of Social Services [2018] AATA 4201 where the Member found:
The main concern Ms Malone expressed was that when she made her claim, she relied on Centrelink to take the information she provided and determine her full entitlements.
Ms Malone put to the Tribunal that she was not sure what her entitlement was and had no understanding of how it had been calculated. Centrelink’s notices to her gave no indication as to whether rent assistance payments had been included in either her Newstart Allowance or later her Austudy Student payments.
Ms Malone said that it was not until Centrelink reviewed her payments on 4 April 2017 that she became aware of her eligibility for rent assistance payments. It was only at this time, Ms Malone states, that she became aware she had not received the payments. She indicated that she immediately obtained and submitted a Rent Certificate.
When may Ms Malone have been eligible to claim rent assistance?
I accept Ms Malone’s evidence that she was paying rent from 1 July 2016, and that while that rent varied from time to time, she was eligible to apply for rent assistance for much of the period from 1 July 2016.
Was Centrelink required to inform Ms Malone about her potential entitlement to rent assistance?
It is Centrelink’s responsibility to provide general advice and information to the public about the availability of income support and social security payments rather than legal rights to payments or rates of payment. This is described succinctly in Murphy and Secretary, Families, Housing, Community Services and Indigenous Affairs [2010] AATA 115 [9]:
Centrelink is not required to advise claimants about their legal rights to any particular social security payment or the rate of payment.
Was the Department responsible to calculate Ms Malone’s rent assistance?
Ms Malone stated that she was assisted by representatives of the Department when submitting her claim for social security payments and that the Department was aware she was paying rent.
Rent assistance is not a pension or benefit but is a component of the rate of a social security payment.
Ms Malone’s Austudy Claim Submission of 13 September 2016 recorded that she was paying rent of $150 a week. Her Newstart claim submission of 6 May 2016 recorded that she was not paying rent.
Murphy and Secretary, Families, Housing, Community Services and Indigenous Affairs [2010] AATA 115, points out when Centrelink’s responsibility for the rent assistance calculation starts and ends:
Centrelink is not responsible for informing any member of the public at large that he or she may be entitled to a social security payment. The onus is on persons to make a claim. Only then does Centrelink become responsible for correctly processing that claim.
The Centrelink web site related to individuals Claiming Rent Assistance states:
You don’t need to submit a claim for Rent Assistance. We'll check if you're eligible when you claim another payment or move to a new address.
It is evident that Ms Malone correctly advised Centrelink on 13 September 2016, and on other occasions, that she was paying rent. It is also evident that Centrelink erroneously failed to include a rent assistance component in Ms Malone’s Newstart and Austudy payments.
What notice was Centrelink required to provide to Ms Malone about whether she was or was not receiving rent assistance?
As rent assistance is not a social security payment, but is a component of a social security payment, the notice required of Centrelink is the rate of the social security payment.
Ms Malone correctly points out that it was difficult for her to know either that she was entitled to rent assistance if she was not informed that she was, or whether she was receiving the rent assistance when the notices she received from Centrelink did not break down the calculation to show a rent assistance component.
…
When a person’s claim has been erroneously calculated, there are provisions for the decision to be reviewed. In this case, Ms Malone contends that it was impossible to know whether she was receiving a rent assistance payment because it was not mentioned on her notice, however, this raises the issue of how she knew to contest the decision.
Correspondence to Ms Malone from Centrelink titled “Your Austudy” dated 28 September 2016,[13] stated the amount of Austudy payment, plus the Energy Supplement, less repayments and fines. The notice went on to offer a range of information important to Ms Malone including:
If you do not agree with a decision we have made contact us so we can check the details and explain the decision.
Contact us and ask for a review of the decision. We will change it if it is wrong.
Contact the Administrative Appeals Tribunal (AAT) if you do not agree with the review officer’s decision.
If you do not agree with the decision of the AAT you may be able to appeal further. For more information about the AAT, please go to aat.gov.au
All of the above are free of charge.
If you do not agree with a decision we have made, contact us as soon as possible. It is important to ask for a review within 13 weeks of being notified about the decision. If your request is more than 13 weeks after being notified and the decision can be changed, you may only receive your entitlement from the date you requested the review.
It is clear from this notice that the 13 week threshold for reviewing decisions under s 109 of the Social Security (Administration) Act 1999 (Cth) (the Act) had been brought to Ms Malone’s attention.
The question remaining is whether the notice contained enough information to be considered notice.
At AAT1 the decisions of the Federal Court in Secretary, Department of Family and Community Services v Rogers [2000] FCA 1447 (Rogers) and Austin and Secretary, Department of Family and Community Services [1999] FCA 938 were both cited and are both relevant to this case. These cases point out that the Department is not required to detail the reasoning behind its decision. Cooper J in Rogers describes the two elements required to give notice:
...the fact that a decision has been made and the content of the decision. The subsections make no reference to any requirement that the notice contains reasons or sufficient information for the recipient of the notice to understand the main reason for the decision and so be in a position to know whether or not to exercise the person’s right to seek a review. Nor, in my view, do any principles of procedural fairness require that such a requirement be read into [relevant provision].
Several letters between 1 July 2016 and 4 April 2017 qualify as notice of Ms Malone’s entitlement. Each of these letters represents reviewable decisions where the reviewable decision was the rate of Ms Malone’s rent assistance.
Are arrears payable to Ms Malone based on the information she provided to the Department?
…
The series of letters Centrelink sent to Ms Malone including the letter of 8 February 2017 were valid notices of a favourable decision to pay Ms Malone Austudy. There were no other valid notices of favourable decisions within 13 weeks prior to Ms Malone’s provision of a Rent Certificate.
The earliest eligible payment date referred to in the letter of 8 February 2017 is 10 February 2017. Both the ARO and AAT1 found that 10 February 2017 is the earliest possible date that Ms Malone was entitled to receive rent assistance payments. The Tribunal accepts that these decisions were correct.
The Applicant is also deemed to have received notices of indexation rate increase decisions pursuant to section 109(7). He did not ask for a review of any of those decisions within 13 weeks of the deemed notice, so section 109(2) applies to limit/disallow rent assistance arrears.
CONSIDERATION
The Tribunal found, and all parties concurred, that Mr Parker was a renter on the day he became eligible for the age pension and was entitled to rent assistance. There is also no dispute that Mr Parker completed and submitted the appropriate rental certificate and provided his tenancy agreement as required for assessment of rental assistances.
The Respondent has conceded that the Department erroneously coded Mr Parker as a homeowner on 3 January 2014 and as a result rent assistance was not paid.
The Tribunal found and the parties agree, that on 24 April 2019 when Mr Parker notified Centrelink of a change of address the coding error was discovered and he commenced to receive rental assistances for which he had always been entitled.
The Tribunal concurred with Mr Parker that in practice it was impossible for him to know that he was not receiving a benefit, in this case rent assistance, for which he was entitled and therefore it was impossible to request a review of an unfavourable decision within 13 weeks. Mr Parker applied correctly for a benefit, for which he was and is undoubtably entitled, and, through an administrative error of the Department, he did not receive the benefit for a period of 5 years. The Tribunal was completely sympathetic to Mr Parker’s grievance.
Nevertheless, the Tribunal found that section 109 had been correctly applied to Mr Parkers situation except for the 2 periods for which it has determined arrears of rental assistance is payable. The Tribunal found that, in accordance with s 109(2) and relevant case law, Mr Parker had been given notice informing him of the original decision to grant him a social security payment. The Tribunal found Mr Parker had been granted age pension and appropriately notified from 19 March 2014 of that benefit. The fact that the notification did not specify the non-payment of rental assistance did not make the notice invalid. The Tribunal found that rent assistance is “a regular extra payment if you pay rent and get certain payments from [Services Australia]” as described by Services Australia, and, relying upon the matter of Malone and Secretary, Department of Social Services, concurred that:
As rent assistance is not a social security payment, but is a component of a social security payment, the notice required of Centrelink is the rate of the social security payment
Therefore, the fact that Services Australia had or had not notified Mr Parker of payment of rent assistance did not make his notices of payment invalid.
However, again the Tribunal was sympathetic to Mr Parker’s grievance noting the Services Australia’s website advises in relation to rent assistance:
You don’t need to submit a claim for Rent Assistance. We assess your eligibility when you claim a payment from us.
Again, the Tribunal concurred with Mr Parker’s assertion there was no possibility of him “agitating” for a further review of a decision when he was unaware of a decision being made based on this advice. Mr Parker had been provided all relevant information when he submitted his claim for age pension for Services Australia to determine he was entitled to rent assistance. The Tribunal found the operation of the Administration Act does not recognise that payment can be backdated because of an error of the Department alone, as Mr Parker had been in receipt of valid notices as outlined above.
The Tribunal found, and the Respondent conceded, that Mr Parker’s original notice of 10 March 2014 which advised that his application for age pension had been considered and approved for payment from 30 January 2014, was not a valid notice as it did not include details of appeal rights or time limitation periods in respect of review requests and payment of arrears. As such the Tribunal finds that section 109(3) of the Administration Act allows arrears to be paid for this limited period from the grant of age pension until the date a valid notice was received by Mr Parker, being 19 March 2014.
The Tribunal also found that Mr Parker had, in accordance with section 109(1)(c) of the Administration Act, applied, under section 129, to appeal non-payment of rental assistance, within 13 weeks after the notice had been given on 20 March 2019 of the original decision to increase his rate of age pension. As such he was entitled to arrears of rental assistance for the period from 20 March 2019 until 23 April 2019 when Services Australia commenced payment of rent assistance.
Given the genuine grievance that Mr Parker has in respect of this issue and that he has been precluded from receiving a benefit to which he was fully entitled for a period of 5 years, the Tribunal and the Respondent encouraged Mr Parker to pursue other options of redress available.
The Tribunal, whilst completely aware of the enormous volume of work Services Australia undertakes for the benefit of many in our community, requests that the Department ensure practices and procedures are in place so that such coding errors do not occur in the future resulting in individuals not receiving benefits to which they are entitled.
POSSIBLE RECOURSE FOR THE APPLICANT
The Tribunal addressed the prospect of Mr Parker seeking redress by making a claim for compensation under the Scheme for Compensation for Detriment caused by Defective Administration (CDDA), which is administered by the Department of Finance. Defective Administration is defined as:
a specific and unreasonable lapse in complying with existing administrative procedures; or
an unreasonable failure to institute appropriate administrative procedures; or
an unreasonable failure to give to (or for) an applicant, the proper advice that was within the officer's power and knowledge to give (or reasonably capable of being obtained by the officer to give); or
giving advice to (or for) an applicant that was, in all the circumstances, incorrect or ambiguous.
The Respondent advised Mr Parker he could pursue CDDA as an avenue to seek compensation and noted that relevant information needed to lodge a claim under the CDDA scheme had previously been provided to Mr Parker.
It was explained to Mr Parker that he could only pursue a claim for CDDA as an avenue of last resort when there is no other avenue of redress available.
Applications under the CDDA Scheme are discretionary, they are assessed on their individual merits, and a finding that a mistake has been made by an official does not automatically mean compensation is payable. The Tribunal advised Mr Parker that it had no jurisdiction in respect of perceived defective administrative matters of the Department and had no jurisdiction over the administration of the CDDA scheme.
Whilst the Tribunal advised Mr Parker that it had no way of assessing if his claims might be successful if he lodged a request, it nevertheless encouraged him to lodge an application as it was accepted by all parties that Mr Parker was at all times entitled to rental assistance and non-payment of this entitlement was the result of an administrative error by Services Australia coding his home ownership incorrectly.
DECISION
For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal VARIES the decision under review so that arrears of rent assistance are payable to the Applicant for the following periods:
1. 30 January 2014 to 19 March 2014; and
2. 20 March 2019 to 23 April 2019.
The decision under review is otherwise affirmed.

44. I certify that the preceding 43 (forty-three) paragraphs are a true copy of the written reasons for the decision of Ms A E Burke AO, Member

[sgd].........................................................
Associate
Dated: 9 October 2020

Date of hearing: 24 September 2020

Applicant: By telephone

Advocate for the Respondent:

Solicitors for the Respondent:

Mr Brian Sparkes

Services Australia