Re Garforth-Dankymeyer;
[2006] AATA 166
•3 February 2006
Administrative
Appeals
Tribunal
WRITTEN REASONS FOR ORAL DECISION [2006] AATA 166
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2005/575
GENERAL ADMINISTRATIVE DIVISION ) Re SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES Applicant
And
JOYCE GARFORTH-DANKYMEYER
Respondent
WRITTEN REASONS FOR ORAL DECISION
Tribunal Senior Member, Mrs Josephine Kelly Date 3 February 2006
Date of Written Reasons 24 February 2006
Place Sydney
Decision The decision under review is set aside and substituted therefore is the decision that Mrs Garforth-Dankmeyer is entitled to payment of Rent Assistance from 25 April 2003 and accordingly she is entitled to back-payments of Rent Assistance during the period 25 April 2003 to 13 September 2004.
[sgd] Senior Member, Mrs Josephine Kelly
CATCHWORDS
SOCIAL SECURITY – Rent Assistance – Rent Assistance part of Age Pension benefit - Whether entitled to payment of Rent Assistance in arrears – Notice not required for cancellation of Rent Assistance - What constitutes sufficient notice of social security payment - Rent Assistance not a ‘social security payment’ - – Decision set aside
LEGISLATION
Social Security Act 1991 (Cth) – Sections 23(1), 55, 299 & 1064, Chapter 2 Part 2.2
Social Security (Administration) Act 1999 (Cth) – Section 109
CASELAW
Secretary, Department of Family & Community Services v Laurent [2003] FCA 1017
Secretary, Department of Family & Community Services v Rogers [2000] FCA 1447Austin v Secretary, Department of Family and Community Services [1999] FCA 938
WRITTEN REASONS
1. At the conclusion of the hearing of this matter, the terms of the decision made and the reasons for that decision were stated orally. The Applicant requested the Tribunal to furnish a statement in writing of the reasons for its decision pursuant to sub‑section 43(2A) of the Administrative Appeals Tribunal Act 1975.
2. The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service, and edited only to the extent necessary to ensure clarity of expression, without in any way changing the reasons. The edited transcript comprises the reasons for the Tribunal’s decision and is annexed, and furnished to the Applicant and to the Respondent.
WRITTEN REASONS FOR ORAL DECISION
Senior Member, Mrs Josephine Kelly
Introduction
1. For the following reasons I set aside the decision under review and substitute therefore the decision that Mrs Garforth-Dankmeyer is entitled to payment of Rent Assistance from 25 April 2003 and accordingly she is entitled to payments of Rent Assistance during the period of 25 April 2003 to 13 September 2004.
Background
2. The Secretary, Department of Family & Community Services, (“the Secretary”), seeks the review of the decision of the Social Security Appeals Tribunal which set aside a decision not to pay arrears of Rent Assistance to Mrs Joyce Garforth-Dankmeyer for the period 23 May 2003 to 13 September 2004. The following is not in dispute.
3. Mrs Garforth-Dankmeyer moved from Pacific Parade, Dee Why to Wheeler Parade in the same suburb in October 2001. Her landlord at Wheeler Parade is her son-in-law Mr Wrightson, who appeared at the hearing of this matter to assist her. She had begun receiving aged pension and various associated payments including Rent Assistance in April of that year. She arranged with the post office for her mail to be forwarded to her Wheeler Parade address when she moved. On 25 April 2003 correspondence Centrelink had sent to her was "returned to sender not at this address” (T4, pg 32). Consequently her aged pension was cancelled.
4. On 21 May 2003 Mrs Garforth-Dankmeyer went into a Centrelink office, provided her new address and her aged pension was restored (T4, pg 32). A letter dated 21 May 2003 was sent to her at her Wheeler Parade address advising her about her aged pension. It said in part:
Immediate payment 25/04/2003 to 8/05/2003 due on 23/05/2003 $446.84. Payment from 9/05/2003 to 22/05/2003 due on 26/05/2003 $386.92. Regular payment from payday 9/06/2003 aged pension $374.84 plus pharmaceutical allowance $5.80. Total $385.64. Information used for calculating your regular payment, annual income $9,026.04. Important information, your aged pension will start again from 25 April 2003. (T5, p 33)
5. The letter went on to advise at length about what information that would affect pension entitlement must be provided within specified time limits. In relation to change of address it said:
If you change your address you should let us know straightaway. If your mail is returned to us because you are not at your address your payments may be stopped.
6. There was no mention of requiring information relating to Rent Assistance if there was a change of address to other rented premises. The letter also advised of "your rights" if you do not agree with the decision, including a review by an authorised review officer ARO and the right of appeal to the SSAT. It further stated:
Remember if you do not ask for the decision to be reviewed within thirteen weeks of being told about it you can only get back payment from the date you ask.
7. Unfortunately after her aged pension was restored in May 2003 Mrs Garforth-Dankmeyer failed to notice that her aged pension did not include Rent Assistance until 13 September 2004, about sixteen months later. On that date Centrelink received a letter from her in which she sought a review of "original decision for Aged Pension" which related to Rent Assistance (T6, pg 35). Mrs Garforth-Dankmeyer's letter was not in evidence. She lodged a rental certificate which has to be signed by the landlord. A Centrelink officer rang her landlord, Mr Wrightson who confirmed the information in that certificate and Rent Assistance was paid (T6, pg 35).
8. Mrs Garforth-Dankmeyer did not receive a back payment of Rent Assistance for the period April 2003 until 13 September 2004. She provided to Centrelink a statement dated 14 October 2004 in which she disputed the stopping of her Rent Assistance in that period (T7, pg 36). Following are relevant statements in that document:
It appears that my change of address was not recorded in October 2001. As a consequence correspondence from Centrelink was sent to previous address. This came to my attention in April 2003 and I subsequently notified Centrelink again of my change of address. From May 2003 Rent Assistance was not paid and this has only come to my attention in a recent review of my pension entitlement with the result being Centrelink has established that I have been overpaid aged pension and has sent a bill for $2384.94. I would like to claim the Rent Assistance due between May 2003 and September 2004.
9. A file note dated 15 October 2004 records that Mrs Garforth-Dankmeyer provided additional information on that day that she had never received any rent certificate or letter requiring her to provide rent verification (T8, pg 37). An ARO decided on 12 November 2004 that the decision not to backdate her Rent Assistance was correct (T10, pg 50). Mrs Garforth-Dankmeyer's appeal to the SSAT was successful.
Consideration of oral evidence
10. Mrs Garforth-Dankmeyer and Mr Wrightson gave evidence that went to the fairness of the decision. Mrs Garforth-Dankmeyer said that when she moved in 2001 she had gone to Centrelink's Brookvale office, stood in a long queue and advised a Centrelink officer of her change of address. She was not asked to fill out a form. She arranged for the post office to forward her mail to her new address but she was not sure how long that arrangement lasted, perhaps one year, eighteen months or two years. When she went back in May 2003 when her aged pension was cancelled and advised her new address again, she was not asked to provide information relevant to Rent Assistance.
11. She recalled receiving a number of statements from Centrelink about how much she earned and what she received on about four occasions, between October 2001 and April 2003. Mr Wrightson said that he believed he had filled out more than one rental certificate, possibly two or three but did not recall whether he filled out one when Mrs Garforth-Dankmeyer applied for the aged pension in 2001. Mrs Garforth-Dankmeyer takes a completed certificate to Centrelink herself. He only completes the certificates when Centrelink sends them out. During cross-examination he said that he could recall only two rent certificates.
12. In response to my request following the hearing Ms Watson, who appeared for the Secretary, provided a letter dated 2 February 2006 setting out information relating to rental certificates, Exhibit R2. It stated that Centrelink records showed that rental certificates had been provided by Mrs Garforth-Dankmeyer in September 2004 and March and October 2005, that they are stored in a warehouse, and would take three days to retrieve. She also said that she had been instructed that rental certificates are usually requested to demonstrate that a rental agreement exists where there is no formal lease arrangement or other documentation.
13. I have had no communication on behalf of Mrs Garforth-Dankmeyer in response to that letter which I directed be sent to Mr Wrightson. However, given the findings I make, the question of rental certificates and their provision does not have to be considered further.
14. The issue in these proceedings is whether section 109(2) of the Social Security (Administration) Act 1999 Commonwealth, (the “Administration Act”), applies to the decision made on 21 May 2003, such that Mrs Garforth-Dankmeyer is excluded from receiving payment of Rent Assistance from that date until the date she sought review of that decision on 13 September 2004. The legislation is set out below.
15. Section 109 of the Administration Act provides:
(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.
16. Social Security payment is defined in section 23(1) of the Social Security Act 1991 (Cth) (“the Act”):
"social security payment" means:
(a) a social security pension; or
(b) a social security benefit; or
(c) an allowance under this Act; or
(e) any other kind of payment under Chapter 2 of this Act; or
(f) a pension, benefit or allowance under the 1947 Act.
17. Section 55 in Chapter 2 of the Act provides:
A person's age pension rate is worked out:
(a) if the person is not permanently blind—using Pension Rate Calculator A at the end of section 1064 (see Part 3.2); or
(b) if the person is permanently blind—using Pension Rate Calculator B at the end of section 1065 (see Part 3.3).
18. The calculator relevant at the time that the letter was sent to Mrs Garforth-Dankmeyer is set out in ‘Attachment A’ to the Applicant's ‘Statement of Facts and Contentions’. The calculation may have included a number of components including pension supplement, pharmaceutical allowance and Rent Assistance. Rent Assistance in turn was calculated by the method set out in Module D which is ‘Attachment B’ to the Applicant's ‘Statement of Facts and Contentions’.
Consideration
19. The case for the Secretary relies on Justice Cooper’s decision in Secretary, Department of Family & Community Services and Laurent [2003] FCA 1017 which Ms Watson contends is indistinguishable from the present case, although it was concerned with Newstart Allowance. She argued that his Honour held that Rent Assistance was not a separate payment for the purposes of section 109 of the Administration Act and therefore the AAT had erred in finding that it was and consequently erred in finding that notice of cancellation of Rent Assistance required more than notifying a recipient that an amount was payable in respect of Newstart Allowance.
20. In summary the facts in Laurent were that due to an administrative error Mr Laurent's payment of Newstart Allowance benefit was cancelled on 16 September 1999 and then restored with retrospective effect from 14 September 1999. He was sent a notice on 20 September 1999 by Centrelink setting out the amount of his Newstart Allowance entitlement for the payment period 14 September to 27 September 1999 being $392.18 and stating that “his normal payment from payday 12 October 1999 would be $392.70 which included Rent Assistance of $76”.
21. On 27 September 1999 he was sent a further notice also setting out the Newstart Allowance entitlement for the period of 14 to 27 September 1999. The amount then stated was $386.75. The notice also stated that his normal payment for payday 12 October 1999 would be $316.70, being net Newstart Allowance after payment of tax. The calculation did not include any sum attributable to Rent Assistance.
22. A further notice was sent on 28 September 1999 giving notice of immediate payment of Newstart Allowance for the period 14 to 27 September 1999 in the sum of $386.75 and restated that the normal payment from payday 12 October 1999 would be $316.70 and again the calculation did not include any sum for Rent Assistance. Payments which did not include Rent Assistance continued. On 16 January 2001 Mr Laurent advised Centrelink that he had not been paid Rent Assistance since August 1999 and requested that the matter be investigated. He was successful in having Rent Assistance restored and arrears paid between 16 January 2001 and the date of the decision in April.
23. He thereafter sought review of the decision not to pay arrears from an earlier date. His applications for review were to the ARO, the SSAT and finally to the AAT which made a decision that he be paid in arrears from 27 September 1999.
24. The following legislative provisions apply to Aged Pension and Newstart Allowance. Aged Pension is dealt with in Chapter 2, Part 2.2 of the Act beginning at section 43. Newstart Allowance is in Chapter 2 at Part 2.12. As in the case of Age Pension, Newstart Allowance is to be worked out using a Benefit Rate Calculator, B, which is found at the end of section 1068, also in Chapter 3 of the Act.
25. Section 1210 in Chapter 3 deals with reductions in the rate of Social Security pensions or benefits under the income or assets tests, where the rate has been increased on account of the pharmaceutical allowance or the Rent Assistance module of a rate calculator, which includes, relevantly, both pension rate calculators for Aged Pension and Newstart Allowance.
26. Justice Cooper concluded that Rent Assistance was part of the benefit calculated, in that case Newstart Allowance. Similarly Rent Assistance is part of the benefit calculated in this case, that is Aged Pension.
27. His Honour held that Rent Assistance is not a discrete sum of money payable under the Act as a pension, benefit or allowance. What was paid in that case was Newstart Allowance and it was that payment to which section 109(1)(a) of the Administration Act applies (see paragraphs 29 to 33 of Laurent). In this case the payment to which section 109(1)(a) applies is Aged Pension. His Honour went on to find that the AAT erred in holding that Rent Assistance fell within paragraph C of the definition of Social Security payment in section 23 of the Act, and that that error was central to its decision that no sufficient notice had been given and therefore that section 109(3) of the Administration Act applied to determine the date from which to restore the payment of Rent Assistance. His Honour set aside that decision.
28. On the above analysis I find that I am bound to follow Cooper J’s decision in Secretary, Department of Family and Community Services v Laurent [2003] FCA 1017, that is that the payment to which section 109(1)(a) applies is Aged Pension. The question which follows is; was a notice of the decision made on 21 May 2003 given? Ms Watson referred to the following two cases. In Secretary, Department of Family & Community Services v Rogers [2000] FCA 1447 Cooper J held that the matter to be communicated by a ‘notice’, in a similar provision to section 109, was that there was the making of a decision in relation to a pension which is a reviewable decision. He stated at paragraphs 33 and 35:
That involves two elements, 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 contain 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 the provisions of section 299.
…
The requirement that a notice be intelligible does not introduce a requirement that reasons for the decision communicated by it be given. Nor does it require that sufficient information be given as to the basis upon which the decision was made to enable the recipient to decide whether to seek review of the decision.
29. In Austin v Secretary, Department of Family and Community Services [1999] FCA 938, Drummond J (at 36) found that notice regarding a Newstart payment was constituted either by:
A clear statement by the respondent that a decision has been made fixing the rate of payment of Newstart Allowance at a particular figure or that a decision has been made cancelling or suspending Newstart Allowance, as opposed to information from which an inference to one or other of those effects might be drawn, is, in my opinion, required before a communication can constitute a ‘notice’ within section 660K.
30. However, in Rogers, Cooper J made the following observation about that decision:
Although our reasons are substantially similar in excluding any requirement to provide reasons or information of the type found by the AAT to be necessary to constitute an intelligible notice, I would not limit the content of the notice to a communication to the benefit recipient that a decision has been made to pay him or her a particular allowance at a particular rate. Although that may well be the most common decision, I do not read, for the reasons I have given, the words "a decision …is made in relation to a sole parent pension" as being limited to a decision to pay the pension at a particular rate. Rather, I construe the phrase as meaning any decision capable of review under section 1240 of the Act which, upon review, leads to a favourable determination under section 293. (at 38)
31. In my view, applying Cooper J’s observation in Rogers, there was no notice given in the decision of 21 May 2003 that a decision had been made not to pay Rent Assistance, a component of the Age Pension, which Mrs Garforth-Dankmeyer had previously been receiving. That was a decision "in relation to" her Social Security payment, Age Pension, within the meaning of section 109(1)(a) of the Administration Act. The letter referred to the amount she would receive as immediate payments, effectively payments in arrears to 25 April 2003 and to the rate of pension in future which included the elements Age Pension and pharmaceutical allowance. There was no mention of Rent Assistance.
32. I accept Ms Watson's submission that there was no requirement to provide reasons for the cessation of Rent Assistance, but that is not the issue. Accordingly, I find that no notice was given to Mrs Garforth-Dankmeyer of a decision made on 21 May 2003 in relation to her Social Security, payment, that is to cease her Rent Assistance payment. Accordingly, section 109(3) applies and the favourable determination that she is entitled to Rent Assistance takes effect on the day on which the determination embodying the original decision took effect.
33. While my conclusion is, in principle, the same as that of the SSAT, I differ in relation to the date upon which the original decision took effect. The decision of 21 May 2003 took effect on 25 April 2003.
34. For the above reasons, I set aside the decision under review and substitute therefor the decision that Mrs Garforth-Dankmeyer is entitled to payment of Rent Assistance from 25 April 2003 and accordingly she is entitled to payments of Rent Assistance in arrears during the period 25 April 2003 to 13 September 2004.
I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member, Mrs Josephine Kelly
Signed: Miss Sacha Keady
AssociateDate/s of Hearing 2 February 2006
Date of Decision 3 February 2006
Date of Written Reasons 24 February 2006
Applicant Representative Represented by Family
Solicitor for the Respondent Australian Government Solicitor
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