Romein; Department of Family and Community Services
[2001] AATA 252
•28 March 2001
DECISION AND REASONS FOR DECISION [2001] AATA 252
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V2000/1337
GENERAL ADMINISTRATIVE DIVISION )
Re SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Applicant
And CORNELIUS ROMEIN
Respondent
DECISION
Tribunal Mr J. T. C. Brassil, AM, Member
Date28 March 2001
PlaceMelbourne
Decision The Tribunal decides to set aside the decision of the Social Security Appeals Tribunal of 22 September 2000 and affirm the original decision to pay rent assistance to the respondent from 24 May 2000.
.........(Sgd) J. T. C. Brassil............
Member
CATCHWORDS
SOCIAL SECURITY – age pension – rent assistance – notice of a decision – whether review sought – decision of SSAT set aside
Social Security Act 1991 ss 68, 109, 110
Austin v Secretary, Department of Family and Community Services [1999] FCA 938
REASONS FOR DECISION
28 March 2001 Mr J. T. C. Brassil, AM, Member
This is an application for review of a decision made by the Social Security Appeals Tribunal (SSAT) varying a decision of a delegate of the applicant to pay rent assistance from 24 May 2000, the date of notification to Centrelink, which had the effect of refusing to backdate the payment to 15 October 1999 the date when the respondent commenced to pay rent. The decision was affirmed by an authorised review officer on 22 June 2000. The applicant appealed to the SSAT which decided on 22 September 2000, in a split decision, that rent assistance should be paid from the earlier date.
Following a stay of the SSAT decision being granted to the applicant by this Tribunal on 2 December 2000 the parties agreed that this appeal should be determined on the papers.
Documents submitted pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were available. These included the SSAT decision (T2).
FactsBoth the respondent and his wife were receiving the age pension in October 1999. They were also in receipt of social security pensions from Holland and this was known to Centrelink and their Australian pension adjusted accordingly whenever exchange rates varied.
On 21 July 1999 Centrelink sent the respondent a letter (T3) which informed him of his rate of pension and pharmaceutical allowance and included the list of events that he must tell Centrelink about within 14 days of occurrence. There were 9 occurrences related to income, 4 relating to assets and 8 others which did include whether he sells, rents out or disposes of the home in which he is living.
From August 1999 to May 2000 the respondent received four letters from Centrelink informing him of exchange rate variations in the Netherlands guilder which were taken into account in calculating how much pension he and his wife were receiving from overseas, thus varying the amount they were entitled to from Centrelink. The varied pension amount was not included in this correspondence. All letters were addressed to the applicant at Lot 59 Mercer Street, Teesdale.
The SSAT was satisfied that the applicant's pension rate varied on the paydays from 14 October 1999 to 25 November 1999 and from 23 December 1999 to 17 February 2000 and also from 16 March 2000 to 11 May 2000.
An allowance for rent assistance was included in the applicant's pension from 24 May 2000 as a result of the decision which led to this review.
The respondent and his wife had decided to sell their home and did so on 15 October 1999. They received the sum of $146,703. It was their intention to purchase land and have a home more suitable to their current needs, especially being closer to medical and emergency facilities. The land purchased was at 107 Woodvale Court, Bell Park Heights. A construction contract was entered into on 18 September 1999 with a building company trading as "Avonwood Homes Pty Ltd". The completion date in the contract was 14 April 2000.
They continued to live in the original home (also known as 90 Mercer Street) paying rent of $125.00 per week to the purchaser but did not approach Centrelink about the changed arrangements until 24 May 2000.
During this period the respondent was pressing Avonwood Homes to commence building beyond the slab that had been poured but was unable to obtain a satisfactory undertaking.
Soon after Avonwood Homes went into liquidation and the respondent had to negotiate from 12 May 2000 with the insurance company and find another builder. The lowest quote for completion was some $4,067 more than the original price, partly due to GST which was not previously applicable.
LegislationThe authority for the Secretary to give a notice requiring a person receiving a social security payment to inform of a specified event or occurrence or a change in circumstances which might affect that payment is now found in section 68 of the Social Security Administration Act 1999 ("the Act"). This provision was similar to sections 68 and 69 of the Social Security Act 1991 which was referred to in the letter of 21 July 1999 (paragraph 5, above). The new Act was proclaimed early in 2000 and applies in this matter.
The date of effect of a determination favourable to the recipient is determined by either sections 109 or 110 of the Act. The relevant subsections are as follows:
"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 decision 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.
110(1) Subject to subsections (2) to (11) (inclusive) if a favourable determination is made following a person having informed the Department of the occurrence of an event or change of circumstances, the determination takes effect:
(a)on the day on which the person so informed the Department; or
(b)on the day on which the event or change occurred;
whichever is the later."
Issues before the Tribunal
The issue which divided the SSAT was whether sections 109 or 110 of the Act applied to Mr Romein. This will be determined on whether the decision resulted from a review or whether from a response to a valid section 68 notice. Hence the issue for consideration by the Tribunal is whether the respondent, Mr Romein, on one hand sought a review or, on the other, he received a section 68 notice and made a report to Centrelink.
SubmissionsThe applicant submitted a more detailed statement of the Secretary's position requesting that the minority view of the SSAT be accepted. The Secretary's position was that the approach by Mr Romein on 24 May 2000 could not be characterised as a request for review of a decision notified but rather it was a response to a section 68 notice but out of time. Hence the Secretary submitted that subsection 110(1) should be applied.
The applicant rejected the view of the Presiding Member of the SSAT that the respondent's pension had changed, due to the overseas component, on all but two of the paydays in the relevant period and the applicant had failed to give him proper notice under section 68 of these changes. The Secretary preferred the view that subsection 109(3) could not be applied when a section 68 notice had not been given unless a review has been requested pursuant to section 129.
Consideration of the IssuesIn the respondent's approach to the SSAT he stated that he and his wife knew from friends that they had a year to expend funds obtained from the sale of his house on a substitute principal residence without having their pensions affected. His view was that if he had moved after the sale he would have to notify but, as he had remained and rented his previous home from the purchaser, did not believe he was required to inform the Department. It appears that if there had not been the financial difficulty following the collapse of Avonwood Homes he may never have considered applying for rent assistance.
The Presiding Member of the SSAT relied on the decision of Drummond J in Austin v Secretary, Department of Family and Community Services [1999] FCA 938 to conclude that the four notices sent about the exchange rates were not valid section 68 notices even though they each had the effect of telling the respondent, by implication, that his rate of pension was varied. This Tribunal would have to agree with the Presiding Member that if these were to be valid then, following Drummond J, they need to be specific and they were not. This appears to be an administrative error that the applicant should seek to avoid in the future.
However it is the view of this Tribunal that if these were not valid section 68 notices they do not necessarily invalidate or suspend the operation of the section 68 notice of 21 July 1999. The responsibility of the respondent would be continuing.
It is the view of the Tribunal that even if these later notices were taken to be failure to give proper notice of a decision to vary a pension and thus satisfy paragraph 109(3)(b) it is still necessary to satisfy paragraph 109(3)(c) that the person has applied for review under section 129.
This Tribunal is not of the view that such a review was requested but rather that there was a notification that a new situation had arisen which should now be taken into consideration. In these circumstances subsection 109(3) cannot apply.
The minority view of the SSAT was that the application made on 24 May 2000 was, in effect, a response to the section 68 notice given on 21 July 1999 and should be characterised as notification of the sale of the home. This then would, in the view of the minority, "prevent payment of arrears of rent assistance to Mr Romein".
Having considered all the circumstances of the matter and having found no section 129 review was requested, the Tribunal finds that a valid section 68 notice, given on 27 July 1999, was operative and the respondent had a duty to notify Centrelink of the sale of the home within 14 days of 15 October 1999. Therefore the required notification was not effected until the approach on 24 May 2000 seeking payment of rent assistance and while eligible for payment the date of effect will be determined pursuant to subsection 110(1), the later of these dates.
ConclusionThe Tribunal finds that the SSAT was in error in applying subsection 109(3) and thus deciding that rent assistance could be paid from 15 October 1999. The Tribunal will affirm the original decision to pay the rent assistance from 24 May 2000.
I certify that the twenty-five (25) preceding paragraphs are a true copy of the reasons for the decision herein of
Mr J. T. C. Brassil, AM, Member
Signed: .....................................................................................
Personal AssistantDate/s of Hearing Decision made on the papers
Date of Decision 28 March 2001
Solicitor for the Applicant Ms C. McInnes, Centrelink
The Respondent Self-represented
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