Rigg and Secretary, Department of Family and Community Services

[2006] AATA 9

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 9

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No W2005/55

GENERAL ADMINISTRATIVE DIVISION		)
Re		DENIS BASIL RIGG

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Deputy President S D Hotop

Date9 January 2006

PlacePerth

Decision The Tribunal sets aside the decision of the Social Security Appeals Tribunal dated 19 July 2004 and, in substitution therefor, decides that arrears of carer payment – comprising the total amount of unpaid rent assistance that was payable as a component of the total amount of the applicant’s carer payment as from 20 March 2003 (and not from an earlier date) – are payable to the applicant under Part 2.5 of the Social Security Act 1991 (Cth).

..........(sgd S D Hotop)..........

Deputy President

CATCHWORDS

SOCIAL SECURITY - carer payment - rent assistance - applicant paid rent - applicant granted carer payment - rate of carer payment did not include amount of rent assistance - applicant subsequently applied for internal review of decision not including amount of rent assistance in rate of carer payment - decision made to include amount of rent assistance in carer payment - arrears of carer payment, being amount of unpaid rent assistance for part of period applicant in receipt of carer payment, payable to applicant - decision under review set aside

Social Security Act 1991 (Cth) s 23(1), s 198, s 210, s 1064, s 1190, and s 1191

Social Security (Administration) Act 1999 (Cth) s 3(2), s 78, s 83, s 108, s 109, s 111, s 129 and Sch 1

Secretary, Department of Family and Community Services v Laurent (2003) 132 FCR 211

Secretary, Department of Family and Community Services v Rogers (2000) 104 FCR 272

REASONS FOR DECISION

9 January 2006 Deputy President S D Hotop         

Introduction

1.      The applicant had, until 3 April 2002, been receiving newstart allowance which included an amount by way of rent assistance. On 4 April 2002, however, the applicant was notified by Centrelink that his newstart allowance had been cancelled with effect from that date.

2.      On 9 April 2002 the applicant informed Centrelink that he intended to claim carer payment, and he lodged a claim for carer payment with Centrelink on 22 April 2002. In that claim form the applicant indicated that he was paying $130.00 per week rent for his present accommodation.

3.      On 23 April 2002 the applicant was notified by Centrelink that he had been granted carer payment, with effect from 9 April 2002, at the rate of $421.80, plus pharmaceutical allowance of $5.80, per fortnight - a total amount of $427.60 per fortnight. There was no reference to rent assistance in that notice.

4.      On 2 March 2004, following a review by Centrelink of his case, the applicant was informed by a Centrelink officer that, for the period that he had been paid carer payment, he had not been paid rent assistance. He requested that arrears of rent assistance, as from 9 April 2002, be paid to him but that request was refused. Instead, it was decided that he be paid arrears of rent assistance as from 2 December 2003 (being 13 weeks prior to 2 March 2004) in accordance with the social security law. That decision was subsequently affirmed by an Authorised Review Officer within Centrelink.

5.      On 19 July 2004, however, the Social Security Appeals Tribunal (“SSAT”) decided that the applicant was entitled to be paid arrears of rent assistance, as part of his carer payment, as from 7 March 2003.

6. The applicant has applied to this Tribunal for a review of the decision of the SSAT. At the request of the parties the Tribunal agreed, pursuant to s 34J of the Administrative Appeals Tribunal Act 1975(Cth), to review the SSAT’s decision by considering the material lodged with the Tribunal and without holding a hearing.

The Issue and the Tribunal’s Determination

7.      The issue for the Tribunal’s determination is whether arrears of carer payment, comprising an amount of unpaid rent assistance, are payable to the applicant and, if so, the date from which they are payable.

8.      For the reasons which follow, the Tribunal has determined that arrears of carer payment, comprising an amount of unpaid rent assistance, are payable to the applicant, and that the earliest date from which such arrears are payable to him is 20 March 2003.

The Relevant Legislation

Social Security Act 1991 (Cth)

9. Part 2.5 (ss 197-246) of the Social Security Act 1991 (Cth) (“the Act”) deals with carer payment. Section 198 sets out the requirements of qualification for carer payment, and s 210 provides that the rate of carer payment is calculated using Pension Rate Calculator A at the end of s 1064.

10. Pension Rate Calculator A sets out the method for calculating the rate of carer payment. That method includes the calculating of the person’s “maximum basic rate” and “the amount per year (if any) for rent assistance”. Pension Rate Calculator A (as in force prior to 1 July 2004) provided that the rate of rent assistance was to be calculated using “Module D” (since repealed - see now Part 3.7 of the Act) which, in s 1064-D1, described rent assistance as an “additional amount to help cover the cost of rent” which was “to be added to a person’s maximum basic rate”.

11. Section 23(1) of the Act contains various general definitions including the following:

“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;

social security pension means:

(a) an age pension; or

(b) a disability support pension; or

(c) a wife pension; or

(d) a carer payment; or

(e) a pension PP (single); or

(ea) a sole parent pension; or

(f) a bereavement allowance; or

(g) a widow B pension; or

(ga) disability wage supplement; or

(i) a mature age partner allowance; or

(k) a special needs pension;”.

Social Security (Administration) Act 1999 (Cth)

12.     The Social Security (Administration) Act 1999 (Cth) (“the Administration Act”) relevantly provides:

“78 If the Secretary is satisfied that the rate at which a social security payment is being, or has been, paid is less than the rate provided for by the social security law, the Secretary must:

(a) determine that the rate is to be increased to the rate provided for by the social security law; and

(b) specify the last-mentioned rate in the determination.

…

83 (1) If:

(a) payment of a social security payment is based upon data in a computer; and

(b) the rate of the payment is increased or reduced, or the payment is cancelled or suspended, because of the operation of a computer program used under the control of the Secretary; and

(c) the program causes the change for a reason for which the Secretary could make the change by determination;

the change is taken to have been made by the Secretary by determination for that reason.

83(2) A determination that is taken, by virtue of subsection (1), to have been made is taken to have been made on the day on which the computer program caused the change to be made.

…

108 In this Subdivision:

favourable determination means a determination under section 78, 85 or 85A.

109(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.

109(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.

109(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.

…

111 If:

(a) the Secretary makes a determination under section 78; 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;

the determination takes effect on the day on which the amount was so indexed or adjusted.

…

129(1) Subject to subsections (3) and (4), a person affected by:

(a) a decision of an officer under the social security law; or

…

may apply to the Secretary for review of the decision.

…

129(4) A person may not apply under subsection (1) for review of:

(a) a decision made by the Secretary himself or herself; or

…

129(5) A reference in this section to a decision of an officer under the social security law includes a reference to a determination that the Secretary is taken, by virtue of a provision of the social security law, to have made.”

13. The reference in s 111(b) to Part 3.16 of the Act is a reference to the provisions of the Act which provide for the indexation of specified amounts in line with increases in the Consumer Price Index. Pursuant to ss 1190 and 1191 of the Act the “maximum basic rate” of carer payment, and the rate of rent assistance, are indexed on 20 March and 20 September each year.

14. Finally, s 3(2) of the Administration Act provides:

“Unless a contrary intention appears, an expression that is used in the 1991 Act has the same meaning, when used in this Act, as in the 1991 Act.”

The reference to the “1991 Act” is a reference to the Act: see Sch 1 to the Administration Act.

Analysis and Findings

15. It is common ground that the determination of the abovementioned issue depends on the application of s 109 of the Administration Act to the circumstances of the present case. It is also common ground that rent assistance is not a “social security payment” (as defined in s 23(1) of the Act) for the purposes of s 109 of the Administration Act: Secretary, Department of Family and Community Services v Laurent (2003) 132 FCR 211. Accordingly, the only relevant “social security payment”, for the purposes of s 109 of the Administration Act, in the present case is the applicant’s carer payment.

16. The critical findings to be made in the present case, for the purposes of s 109 of the Administration Act, are:

·whether notices were given to the applicant informing him of the relevant decisions made in relation to his carer payment; and, if so

·the date(s) of such notice(s).

Factual Background

17.     The following background facts appear from the material before the Tribunal.

18.     By letter dated 23 April 2002 the applicant was notified by Centrelink of the decision to grant him carer payment with effect from 9 April 2002, and of the total fortnightly payment ($427.60) and the components thereof ($421.80 plus pharmaceutical allowance of $5.80), and of his right to request a review of the decision if he did not agree with it.

19.     Following receipt of a request by the applicant that a taxation deduction of $20.00 per fortnight be made from his carer payment, Centrelink notified the applicant, by letter dated 2 October 2002, that, as from 7 October 2002, his total fortnightly net payment would be $415.20 ($429.40 plus pharmaceutical allowance of $5.80 less taxation deduction of $20.00), and that he had the right to request a review of the decision if he did not agree with it.

20.     Thereafter the applicant received a gross amount of $435.20 (a net amount of $415.20) per fortnight until 10 March 2003.

21.     On 24 March 2003 the rate of the applicant’s carer payment increased to $435.98 (gross) ($415.98 net) per fortnight, and from 7 April 2003 the applicant received a gross amount of $446.10 (a net amount of $426.10) per fortnight until 22 September 2003.

22.     By letter dated 23 June 2003 an officer of Centrelink, in response to a request by the applicant, supplied to him an Income Statement setting out the type and rate of payments currently received by him from Centrelink as follows:

carer payment   $423.80

GST component  $16.50

pharmaceutical allowance            $5.80

and stating that a taxation deduction of $20.00 was made from his “gross entitlement” (as set out above).

23.     On 6 October 2003 the applicant’s rate of carer payment increased to $457.71 (gross) ($437.71 net) per fortnight, and from 20 October 2003 the applicant received a gross amount of $458.60 (a net amount of $438.60) per fortnight until 23 February 2004.

24.     Following a telephone contact from the applicant on 24 February 2004, Centrelink sent to him a “Rent Certificate” form for completion and return.

25.     On 2 March 2004 the applicant provided information to Centrelink that he was paying private rent of $130.00 per week, and a decision was made to backdate payment to him of rent assistance to 2 December 2003 (13 weeks prior to the date of receipt of the abovementioned information from the applicant).

26.     By letter dated 2 March 2004 the applicant was notified by Centrelink that, as from 22 March 2004, his total fortnightly net payment would be $533.00 ($452.80 plus pharmaceutical allowance of $5.80 plus rent assistance of $94.40 less taxation deduction of $20.00), and that he had the right to request a review of the decision if he did not agree with it.

27.     By letter dated 3 March 2004 to Centrelink, the applicant requested a review of the decision not to backdate payment to him of rent assistance to 9 April 2002 (when he commenced to receive carer payment). That letter was received by Centrelink on 4 March 2004.

28.     On 11 March 2004 an officer of Centrelink notified the applicant by letter that the decision to pay him arrears of rent assistance from 2 December 2003 was correct and would be implemented.

29.     Following a further inquiry by the applicant, an officer of Centrelink notified the applicant, by letter dated 17 March 2004, that the previous decision to pay him arrears of rent assistance was incorrect and that no arrears of rent assistance were payable to him.

30.     On 19 May 2004 an authorised Review Officer within Centrelink decided that the original decision to pay the applicant arrears of rent assistance from 2 December 2003 (and not from an earlier date) was correct.

31. On 19 July 2004, however, the SSAT decided that, pursuant to s 109(3) of the Administration Act, arrears of rent assistance were payable to the applicant from 7 March 2003 on the basis that a decision to change the rate of his carer payment, with effect from that date, had not been notified to him by Centrelink.

Parties’ Contentions

32.     The applicant’s contentions in essence were as follows:

·Centrelink’s failure correctly to calculate the amount of carer payment payable to the applicant, by omitting the amount of rent assistance to which the applicant was also entitled under the Act, was a decision made in relation to his social security payment (namely, carer payment), and the applicant was not given notice of that decision;

·similarly, Centrelink’s erroneous failure to pay rent assistance to the applicant as part of his carer payment was a decision made in relation to his social security payment (namely, carer payment), and the applicant was not given notice of that decision;

·accordingly, pursuant to s 109(3) of the Administration Act, a favourable determination made as a result of an internal review pursuant to s 129 of the Administration Act – namely, a determination that arrears of rent assistance are payable to the applicant – takes effect on 9 April 2002, being the day on which the determination embodying the decision not to pay the applicant rent assistance as part of his carer payment took effect;

·the applicant is, therefore, entitled to be paid arrears of rent assistance from 9 April 2002.

33.     The respondent’s contentions in essence were as follows:

·a decision was made in relation to the applicant’s social security payment (namely, carer payment) on 23 April 2002 and on 2 October 2002, and notice was given to the applicant informing him of each of those decisions by letter of the same date;

·each of those letters stated the total amount of carer payment that would be paid to the applicant, the components of that total amount, and the date from which that amount would be paid to him, and informed him of his right to request a review of the decision if he did not agree with it;

·each of those letters constituted a “notice” informing the applicant of the relevant decision, for the purposes of s 109(2) of the Administration Act;

·on 20 March 2003 the respondent made a determination under s 78 of the Administration Act that the rate of the applicant’s carer payment be increased by reason of indexation in line with the Consumer Price Index, with effect from 20 March 2003;

·that determination constituted a “decision” within the meaning, and for the purposes, of s 109 of the Administration Act;

·the applicant was not given notice of that decision;

·because the applicant was not given such notice, the date of effect of that favourable determination is, pursuant to s 109(3) of the Administration Act, the day on which the determination embodying the original decision took effect, namely, 20 March 2003;

·accordingly, arrears of rent assistance are payable to the applicant from 20 March 2003 (and not from an earlier date).

Findings

34.     The Tribunal accepts in substance the analysis set out in the contentions of the respondent. The Tribunal’s analysis and findings are as follows.

35. The Tribunal finds that each of the letters sent by Centrelink to the applicant, dated 23 April 2002 and 2 October 2002 (referred to in paragraphs 18 and 19 above), was a “notice” given to him informing him of a decision made in relation to his “social security payment” (namely, his carer payment), for the purposes of s 109 of the Administration Act, because each of those letters communicated to the applicant that such a decision had been made and the content of that decision: Secretary, Department of Family and Community Services v Rogers (2000) 104 FCR 272 at 284.

36. The Tribunal notes that, on the paydate of 24 March 2003, the rate of the applicant’s carer payment increased, and it accepts the respondent’s contention that that increase occurred by reason of indexation in line with the Consumer Price Index, with effect from 20 March 2003. It is not clear, however, from the material before the Tribunal how that rate increase was effected. Although it was contended on behalf of the respondent that that rate increase was effected by a determination made by the respondent under s 78 of the Administration Act on 20 March 2003, the Tribunal regards it as more likely, and finds, that that rate increase was effected by “the operation of a computer program used under the control of the [respondent]”, for the purposes of s 83(1) of the Administration Act, and that, pursuant to that subsection, that rate increase is “taken to have been made by the [respondent] by determination”. That being the case, the determination taken to have been made by the respondent that the rate of the applicant’s carer payment be increased with effect from 20 March 2003 was internally reviewable under s 129 of the Administration Act: see s 129(5).

37.     It is common ground that the applicant was not given specific notice of the abovementioned determination increasing the rate of his carer payment with effect from 20 March 2003.

38. It is also common ground that the applicant subsequently applied under s 129 of the Administration Act for an internal review, but the date on which he first did so is unclear. It appears from the material before the Tribunal that the applicant contacted Centrelink by telephone on 24 February 2004 following which Centrelink sent to him a “Rent Certificate” form for completion and return by him. He returned that form containing the relevant information to Centrelink on 2 March 2004 and on that date a decision was made to increase the rate of his carer payment by including an amount of rent assistance. By letter dated 3 March 2004, and received by Centrelink on 4 March 2004, the applicant stated:

“…

Last week (24/2/04) Centrelink performed a review on my claim and it was noted that I was not receiving any rent assistance which I believed that I was receiving. This belief was based on the fact that I applied for rent assistance at the time of my carer’s payment claim and that I complied with and satisfied any requests for documents and evidence pertaining with (sic) this rent assistance and carers payment applications.

After speaking with Centrelink staff on the phone I was sent a rent assistance form to complete and to present [to] my local Centrelink office for consideration and processing. This I did on the 2/3/04 at Cannington Centrelink. I was (sic) also asked about a back payment for the rent assistance that had not been paid to date. The Centrelink officer at the counter claimed that she could not make such a payment and refused to consider my request. She told me to appeal her decision if I did not like her decision. This I wish to do with this letter…”

On the basis of the abovementioned material, the Tribunal is prepared to find that the applicant applied under s 129 of the Administration Act for an internal review on 24 February 2004 on the basis that, on that day, the applicant first queried with Centrelink the fact that he had not been receiving rent assistance as part of his carer payment.

39. In order to apply s 109 of the Administration Act in this case, it is necessary for the Tribunal to identify the decision(s) of which the applicant applied under s 129 of that Act for an internal review: see Secretary, Department of Family and Community Services v Rogers (above) at 286-287.

40. In the Tribunal’s opinion, when the applicant queried with Centrelink on 24 February 2004 the fact that he had not been receiving rent assistance as part of his carer payment, he was in effect applying under s 129 of the Administration Act for an internal review of each and every previous decision of a Centrelink officer in relation to his carer payment in which rent assistance was not included as a component of the total fortnightly amount of carer payment that was payable to him pursuant to that decision. According to the material before the Tribunal there were 3 such decisions, namely:

·     the decision of 23 April 2002;

·     the decision of 2 October 2002; and

·     the determination taken to have been made, with effect from 20 March 2003, because of indexation in line with the Consumer Price Index (see paragraph 36 above).

41. As regards the decisions of 23 April 2002 and 2 October 2002, the Tribunal has found that notice (within the meaning of s 109 of the Administration Act) was given to the applicant informing him of each of those decisions. Notwithstanding the giving of such notice – which, in each case, clearly indicated (albeit by omission) that the total fortnightly amount of carer payment that was being paid to the applicant did not include an amount of rent assistance – the applicant did not query with Centrelink, or apply for an internal review of, either of those decisions until 24 February 2004 at the earliest – that is, more than 13 weeks after the notice of each decision was given to him. Accordingly, by s 109(2) of the Administration Act, the relevant “favourable determination” – that is, the determination of 2 March 2004 that rent assistance was payable to the applicant as a component of the total rate of his carer payment – takes effect on 24 February 2004.

42. As regards the determination taken to have been made with effect from 20 March 2003, however, it is common ground that the applicant was not given notice of that determination for the purposes of s 109 of the Administration Act. The applicant, nevertheless, on 24 February 2004 (as the Tribunal has found) also in effect applied under s 129 of the Administration Act for a review of that determination. In those circumstances s 109(3) of the Administration Act is applicable and, by that subsection, the abovementioned “favourable determination” of 2 March 2004 “takes effect on the day on which the determination embodying the original decision took effect” – namely, 20 March 2003.

Conclusion

43.     It follows from the preceding paragraph that arrears of carer payment – comprising the total amount of unpaid rent assistance that was payable as a component of the total amount of the applicant’s carer payment as from 20 March 2003 (and not from an earlier date) – are payable to the applicant, and the Tribunal so finds.

44.     The Tribunal notes that this finding is less favourable to the applicant than the decision of the SSAT of which he applied for a review by this Tribunal. It seems to the Tribunal, however, that its reasoning in this case is similar in substance to that of the SSAT, and that the basis of the SSAT’s finding that arrears of carer payment were payable to the applicant as from 7 March 2003 seems to have been a simple error of fact, namely, that the relevant determination in March 2003 to increase the rate of the applicant’s carer payment, of which notice was not given to the applicant, took effect on 7 March 2003. As the Tribunal has found in this case, in accordance with the respondent’s contention, the correct date of effect of that determination was 20 March 2003, being the date of effect of the relevant indexation in line with the Consumer Price Index.

Decision

45. For the above reasons the Tribunal sets aside the decision of the SSAT dated 19 July 2004 and, in substitution therefor, decides that arrears of carer payment – comprising the total amount of unpaid rent assistance that was payable as a component of the total amount of the applicant’s carer payment as from 20 March 2003 (and not from an earlier date) – are payable to the applicant under Part 2.5 of the Act.

I certify that the 45 preceding paragraphs are a true copy of the reasons for the decision herein of DEPUTY PRESIDENT S D HOTOP

Signed:         (sgd E M Jordan)           .....................................................................................

Associate