Robertson; Secretary, Department of Employment and Workplace Relations and

[2007] AATA 2025

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 2025

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/4617

GENERAL ADMINISTRATIVE DIVISION		)
Re		SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Applicant

And GAIL ROBERTSON

Respondent

DECISION

Tribunal M J Carstairs, Senior Member

Date5 November 2007

PlaceBrisbane (heard in Murwillumbah)

Decision For reasons given orally at the hearing, the Tribunal varies the decision under review to provide that arrears of rent assistance are payable only from 8 March 2007.

.................[Sgd].............................

Senior Member

CATCHWORDS

SOCIAL SECURITY – arrears of rent assistance – amendment deeming notice of decision where automatic rate adjustment – failure of Social Security Appeals Tribunal to take amendment into account in setting date of effect – decision varied.

Social Security (Administration) Act 1999 – s109, 129

Employment and Workplace Relations Legislation Amendment (Welfare to Work and Vocational Rehabilitation Services) Act 2007

Austin v Secretary Department of Family and Community Services (1999) 75 ALD 330

Secretary Department of Family and Community Services v Laurent [2003] FCA 1017

Re Secretary Department of Social Security and Marsh (1996) 2(5) SSR 64

WRITTEN REASONS FOR ORAL DECISION

6 December 2007   M J Carstairs, Senior Member

1.      On 14 August 2007 the Social Security Appeals Tribunal decided that Gail Robertson was entitled to be paid arrears of rent assistance from 7 September 2006.  On that day Mrs Robertson’s rate of wife pension increased as a result of an automatic adjustment without Centrelink sending her a letter advising the rate change.  The Secretary to the Department of Employment and Workplace Relations now seeks a review of the Social Security Appeals Tribunal decision on the grounds that in selecting this date the Tribunal failed to take into account an amendment made to the legislation during 2007.  According to the applicant, had the Social Security Appeals Tribunal applied the new amendment, the date 7 September 2006 could not be chosen. 

2.      I gave oral reasons at the hearing, varying the decision of the Social Security Appeals Tribunal.  The applicant has asked for written reasons and these reasons are in response to that request.

3.      The relevant amendment was one that resulted in the insertion of s 109(7) into the Social Security (Administration) Act 1999.  Section 109 of the Administration Act, in a general sense, deals with dates of effect when a person seeks review.  Under  s109 two key factors that will determine dates of effect are (a) whether a person has been given a notice of a decision and (b) whether or not they have sought review within 13 weeks of such a notice. 

4.      There is no need to set out in full the new provision, s 109(7). Suffice to say that it has the effect of deeming the giving of notice when an automatic adjustment is made to a social security payment. Such adjustments take place on a regular basis for Centrelink recipients throughout the year. In Mrs Robertson’s case she had two such adjustments that relevantly came into consideration by the Social Security Appeals Tribunal : one occurred on 7 September 2006 and one occurred on 8 March 2007.

5.      Mrs Robertson did not attend the hearing, but she had written to the Tribunal asking that her case be dealt based on her previous correspondence, and on the information set out in a letter to the Tribunal dated 4 October 2007[1]. 

[1]        Exhibit R1

6.      It is important to say something concerning the contents of Mrs Robertson’s letter, given that the matter was heard in her absence.  Firstly the letter mainly referred to a debt that Mrs Robertson had incurred in March 2005, a matter which forms no part of the decision that I am reviewing.  She has successfully had this debt reviewed and in October 2007 it was reduced from some $5000 to $9.64.  Mrs Robertson’s letter indicated that she believed that the references to her debt in the documentary materials had been included so as to put her in a bad light.  

7.      I am confident that that the documents referring to Mrs Robertson’s debt were not included with a view to influencing any outcome in the present matter, although Mrs Robertson is right to observe that a number of documents that referred to the debt were not relevant to the decision under review.  Departments are required to provide only relevant documents but in this instance, some material may have been included because Mrs Robertson was asking for review on her two matters at much the same time.  

8.      The matter on review, however, is limited to the question of rent assistance arrears.  It is useful to commence with an outline of the facts.  Briefly, Mrs Robertson was receiving rent assistance in 2006 when she telephoned Centrelink to say that her son had moved in and was paying part of the total rent.  Having given Centrelink that information, it seems that Mrs Robertson may have been required to complete a new rent certificate.  Centrelink could not verify that any letter had been sent asking her to provide such a certificate, and Mrs Robertson has no recollection of receiving such a letter.  Nevertheless Centrelink made a decision on 8 March 2006.[2] to reduce her fortnightly payments, because the rent certificate had not been returned.  As referred to above, the general rule is that Mrs Robertson had about 13 weeks if she wished to query this decision.  If she left it later than that, and obtained a favourable outcome, she would only be paid from the time that she had requested the review.

[2]        T4.

9.      Unfortunately Mrs Robertson did not realise that she had stopped receiving rent assistance until about May 2007.  She then made enquiries with Centrelink.

10.     The Social Security Appeals Tribunal examined these facts and concluded, correctly in my view, that the letter sent by Centrelink on 8 March 2006 was a proper notice that a decision had been made.  Applying Austin v Secretary Department of Family and Community Services (1999) 75 ALD 330, the Tribunal said that in general, a clear communication about a person’s rate of payment will be sufficient notice of a decision. The letter was also correctly addressed, and under this legislation, when a letter is properly addressed and prepaid this will be sufficient to satisfy the giving of notice. Proof of non-receipt is not proof of non-delivery of such a document. Furthermore it did not matter that the letter of 8 March 2006 made no specific reference to rent allowance, because rent allowance is only a component of the overall payment of the pension or allowance and did not require a separate advice: Secretary Department of Family and Community Services v Laurent [2003] FCA 1017.

11.     However the Social Security Appeals Tribunal concluded that some arrears were payable to Mrs Robertson, by applying another decision that has been widely followed in the Tribunal, namely Re Secretary Department of Social Security and Marsh (1996) 2(5) SSR 64, which concluded that a broad view should be taken of a what constitutes a request for review in this jurisdiction.

12.     The application of Marsh had relevance when the Social Security Appeals Tribunal came to address the circumstances where, during 2006 and 2007, Centrelink had made two other decisions to which I have referred, after the one notified in writing on 8 March 2006.  That is the automatic rate increase decisions of 7 September 2006 and  8 March 2007.

13.     The Social Security Appeals Tribunal observed that Mrs Robertson had not been sent notices in writing in either instance.  The significance of this is that where matters are reviewed under the Social Security Act, if a person is not notified in writing, there is no limit on backdating arrears: s 109(3) of the Act.  For this reason the Social Security Appeals Tribunal adopted the date of 7 September 2006 as the earliest date of effect to pay arrears of rent assistance and set aside the decision in those terms.

14. However the applicant submits that the date of 7 September 2006 was not open to the Social Security Appeals Tribunal for the reason that the effect of s 109(7) of the Administration Act is that where a decision results from an indexation or adjustment, notice is deemed from the date that the adjustment occurred. That is, it could not be said that the rate change that occurred on 7 September 2006 was not notified to Mrs Robertson.

15.     The applicant submitted that this provision applied when the Social Security Appeals Tribunal came to look at Mrs Robertson’s case because the amendment was intended to have effect in cases such as hers.  The amending Act[3] (at s 54) stated that where person has sought a review under s 129 of the Administration Act after the commencement of s 109(7) then s 109(7) applies. I agree with the submission that this meant that the new deemed notice provisions applied to some determinations that were made before the new provision came into force on 15 April 2007. This was the clear intention behind the insertion of s 54. Mrs Robertson’s application under s 129 of the Administration Act post-dated the commencement of the new provision and the Social Security Appeals Tribunal failed to consider the effect of the new provision.

[3]  Employment and Workplace Relations Legislation Amendment (Welfare to Work and Vocational Rehabilitation Services) Act 2007 Act No 65 of 2007

16.     I should observe that the Social Security Appeals Tribunal in all other respects applied the law correctly.  The decision acknowledged the operation of the 13 week rule.  That is, a person must seek review within 13 weeks of a decision being notified to them, if they are to take the benefit of arrears provisions.  The applicant conceded that Mrs Robertson is able to take advantage of backdating after the next automatic adjustment that occurred on 8 March 2007.  This is because when she sought review in May 2007, it was within the 13 weeks allowed under the legislation.  This means that the date of effect of any payment of arrears in this case is 8 March 2007 and not, as found by the Social Security Appeals Tribunal, 7 September 2006.

17.     Accordingly, I vary the decision under review to provide that arrears of rent assistance are payable only from 8 March 2007.

I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of  

Signed:         .....................................................................................
  Associate

Date/s of Hearing  5 November 2007
Date of Decision        5 November 2007
Written reasons for oral decision    6 December 2007
Counsel for the Applicant              Ms L Walker
Solicitor for the Applicant               Sparke Helmore
Respondent  Non attendance