Re Michael Laver Applicant And Secretary, Department of Families, Housing, Community Services and Indigenous Affairs Respondent

[2012] AATA 28

[2012] AATA 28

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2011/2462
Re	MICHAEL LAVER
APPLICANT
And	SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
RESPONDENT

ORAL DECISION

Tribunal	Ms A F Cunningham (Senior Member)
Date	19 January 2012
Date of written reasons	19 January 2012
Place	Hobart

The decision under review is affirmed.

[Sgd Ms A F Cunningham]

Ms A F Cunningham (Senior Member)

Catchwords

SOCIAL SECURITY  - disability support pension - rent assistance – whether arrears are payable – decision to pay rent assistance from date of application affirmed

Legislation

Social Security Act 1991, s 1070L

Social Security (Administration) Act 1999, s 78

WRITTEN REASONS FOR ORAL DECISION

Ms A F Cunningham (Senior Member)

19 January 2012

1. The applicant, Michael Laver, has sought the review of a decision which refused payment of rent assistance for the periods 29 November 2006 to 11 January 2008 and 13 July 2008 to 14 September 2010.

2. During this period Mr Laver was in receipt of disability support pension (DSP) and has been receiving this benefit since February 2000.  Mr Laver was paid rent assistance for several periods during this time.

3. The decision of the Authorised Review Officer made on 19 January 2011 which is contained in the T Documents at T8 indicates some of the periods during which Mr Laver was paid rent assistance upon the production of verification of the amount of rent he was then paying.  The Table contained in the decision indicates that Mr Laver was not paid rent assistance during the periods in question.

4. Mr Laver gave oral evidence before the Tribunal and read from a Statutory Declaration prepared by his landlord stating that he had been paying rent during the period. Although the document was not tendered in evidence, I have no reason to doubt its contents.  However whether Mr Laver was in fact paying rent during the relevant period is not the issue for this appeal.

5. The information contained in the T Documents confirms that with respect to the period in question, Mr Laver sought rent assistance on 15 September 2010.  His previous rent assistance payments, a component of DSP and not a separate benefit, ceased in November 2006 when he moved to government housing accommodation. 

6. There is no record or persuasive evidence that Mr Laver ever applied for a review of Centrelink’s decision to terminate his rent assistance payments.  He contended in his evidence that he believes that he had with the assistance of his then carer.  He explained that he was in and out of hospital at the time and suffers from memory loss.  He also contends that Centrelink loses documentation from time to time.

7. In the absence of persuasive evidence however, that Mr Laver either sought the review of Centrelink’s decision or made an application for rent assistance prior to 15 September 2010, I am unable to find that he did. 

8. I accept the respondent’s evidence that various notices were sent to Mr Laver from time to time regarding his DSP payments.  There is no record that Mr Laver disputed or sought the review of these payments with respect to rent assistance. 

9. Mr Laver does not contest the evidence that he sought rent assistance on 15 September 2010.  The claim was originally rejected but following a review by an ARO the payment was granted.  This was following the provision of rent certificates on 15 and 22 September advising that Mr Laver pays board and lodgings of $240.00 to his landlady, Lucy Baschke. 

10. The rent assistance was paid effective from the date requested by Mr Laver, being 15 September 2010.  Mr Laver seeks payment of rent assistance for periods that predate the 15 September 2010 and contends that he was paying rent during this time.

11. The issue for the Tribunal is whether payments of rent assistance can be made prior to the date of application which the Tribunal has accepted was 15 September 2010. 

12. Although I have no reason to doubt Mr Laver’s evidence that he was paying rent during this period, my decision must be made in accordance with the applicable legislation. In this case section 1070L of the Social Security Act 1991 states how rent assistance rates are calculated in addition to DSP.

13. Section 78 of the Social Security Administration Act 1999 provides that a social security payment can be increased where the legislation provides for such. However this payment can only be paid according to section 108 when a favourable determination has been made. In this case the favourable determination in accordance with section 109 is 13 September 2010, the date that I accept when Mr Laver sought rent assistance.

14. Rent assistance was paid to Mr Laver from this date and I have no discretion under the legislation to order that payments be made from any earlier date.  Accordingly the decision under review is affirmed and the appeal dismissed.

I certify that the preceding 15 (fifteen) paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Senior Member).

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Administrative Assistant

Dated 19 January 2012

Date(s) of hearing	19 January 2012
Applicant	In person
Counsel for the Respondent	Mr B Sparkes
Solicitors for the Respondent	Program & Litigation Branch