Robert Woolcock and Secretary, Department of Social Services

[2015] AATA 340

[2015] AATA  340

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2014/5774
Re	Robert Woolcock
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Dr P McDermott RFD, Senior Member
Date	18 May 2015
Place	Brisbane

The decision under review is affirmed.

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Dr P McDermott RFD, Senior Member

CATCHWORDS

SOCIAL SECURITY  – pensions, benefits and allowances – rent allowance – change in circumstances – when applicant informed Centrelink – backdating of benefits – benefits backdated to date when Centrelink informed of change in circumstances – decision under review affirmed

LEGISLATION

Social Security (Administration) Act 1999 (Cth) s 68, 78, 108, 110, 237

CASES

Druett and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 333

REASONS FOR DECISION

Dr P McDermott RFD, Senior Member

12 May 2015

INTRODUCTION

1. I have to decide whether the applicant can be paid an increased rate of rent assistance from a date earlier than 25 February 2014.

   BACKGROUND

2. Since 7 April 2011 the applicant has been in receipt of a carer payment which includes rent assistance. The applicant has been living in supported housing where he was sharing accommodation with the person for whom he cares. The applicant has been paying half of the rent of the household.

3. From 13 March 2012 the rent in the supported housing was $474.85 per fortnight and his half share of the total cost was $237.42 per fortnight (or $118.71 per week). The applicant received rent assistance at the rate of $97.97 per fortnight. On 10 April 2012 and on 17 April 2012 letters were sent to the applicant to advise him that his carer payment included rent assistance of $97.97 per fortnight.

4. In April 2012 the applicant decided to provide assistance to Jason, a homeless man. On 19 April 2012, the applicant acted quite properly in advising the Department that Jason had commenced living in the household on 12 April 2012. He also advised that from 19 June 2012 the total rent of the household would increase to $510 per fortnight. 

5. On 20 June 2012, a letter dated 17 June 2012 was sent to the applicant to inform him of the changed amount of payment of rent assistance. The letter also informed the applicant that he was required to notify the Department of any changes which may affect his rent assistance. The applicant was advised as follows:

   Tell us if you stop paying rent or the amount of rent changes, start or stop sharing your accommodation or start to pay rent to a State, Territory or Commonwealth Housing Authority.

6. After the letter of 17 June 2012, letters were sent to the applicant on 4 October 2012, 26 March 2013 and 20 September 2013. These letters advised the applicant of the rate of rent assistance payments and of his obligation to notify the Department if the applicant believed any details were incorrect.

7. It was, however, not until 25 February 2014 that the applicant advised the Department that Jason had moved out on or around 26 May 2012. The applicant pointed out at the hearing that Jason had damaged property, had injured the applicant, and had to be removed by police.

   PREVIOUS DECISIONS

8. On 25 February 2014 a decision was made to pay the applicant a higher rate of rent assistance from that date but not earlier. On 12 June 2014 an authorised review officer (“ARO”) affirmed the decision. On 7 October 2014 the Social Security Appeals Tribunal affirmed the decision.

   LEGISLATION

9. This application is governed by the Social Security (Administration) Act 1999 (Cth) (“the Act”) which provides that the Secretary may give a person a notice requiring the person to give to the Department one or more statements about a matter that might affect the payment to the person of the social security payment.[1]

   [1] Social Security (Administration) Act 1999 (Cth) s 68(2)(b).

10. Section 78 of the Act provides:

    Rate increase determination

    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.

    A decision made by the Secretary under s 78 of the Act is defined by s 108 of the Act to be a “favourable determination”. This expression is also to be found in ss 109 and 110 of the Act. In particular, s 110(1) of the Act provides that if a favourable determination is made, the determination takes effect on the day that the person informed the Department, or on the day on which the event or change occurred, whichever is later.

    CONSIDERATION

11. I have to decide whether social security law allows the applicant to be paid an increased rate of rent assistance from a date earlier than 25 February 2014 when the applicant first advised the Department that Jason had moved out of the household.

12. During the hearing I pointed out that s 110(1) of the Act provides that the operation of this subsection was subject to the exceptions in ss 110(1A) - (11) inclusive. None of those exceptions have any bearing on the circumstances of the applicant. There is no other provision in the Act which confers authority on the Secretary to dispense with the operation of s 110(1) of the Act. I consider that the operation of s 110(1) of the Act has the consequence that the applicant can only be paid an increased rate of rent assistance from the date when he informed the Department of his change of circumstances.

13. The letter of 17 June 2012 that advised the applicant of the changed amount of payment of rent assistance is a decision that the applicant is deemed to have received under social security law by the operation of s 237 of the Act which provides that if a notice of a decision under the social security law is sent by prepaid post to the postal address of the person last known to the Secretary, then notice is taken to have been given to the person.

14. The tenor of one submission made by the applicant is that the Department had knowledge that Jason was receiving rent assistance for another property. However, under s 110 of the Act a favourable decision only takes effect on the day that the person informed the Department or on the day on which the event or change occurred, whichever is later. It is when the applicant provides information to the Department that a favourable decision takes effect.[2]

    [2] Druett and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 333 at [25].

    CONCLUSION

15. The applicant does not have any complaint with the actions of the Department as he has said: “I am not claiming Centrelink did the wrong thing!”[3] The main contention of the applicant is that social security law does not permit him to be paid the increased rate of rent assistance from earlier than 25 February 2014. However the social security law binds not only the Secretary but also this Tribunal which must apply the law that has been decided upon by the Parliament.

    [3] Exhibit H.

16. In my opinion the applicant has acted honestly in his dealings with Centrelink. When he advised Centrelink of his changed circumstances on 19 April 2012 he did so knowing that his rate of rent assistance would be reduced. 

17. The applicant has been quite properly advised by the respondent that he can make an application for an ex gratia payment having regard to his circumstances. In that application he should outline, for the consideration of the financial delegate, all of his circumstances.

    DECISION

18. I affirm the decision under review.

I certify that the preceding 18 (eighteen) paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott RFD, Senior Member

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Associate

Dated 12 May 2015

Date(s) of hearing	1 April 2015
Applicant	In person
Solicitors for the Respondent	Ms J Forsyth, Department of Human Services