Secretary, Department of Family and Community Services v Laurent

[2003] FCA 1017

FEDERAL COURT OF AUSTRALIA

Secretary, Department of Family & Community Services v Laurent

[2003] FCA 1017

SOCIAL SECURITY - rent assistance - whether rent assistance is a ‘social security payment’ - whether the applicant is entitled to rent assistance in arrears.

Social Security (Administration) Act 1999 (Cth)
Social Security Act 1991

BP Refinery (Westernport) Pty Ltd v Hastings ShireCouncil (1977) 180 CLR 266
Brown v Brook (1971) 125 CLR 275
Gibb v Federal Commissioner of Taxation (1966) 118 CLR 628
Commonwealth of Australia v Human Rights and Equal Opportunity Commission (1998) 76 FCR 513

SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES v NATHAN LAURENT
Q64 OF 2002

COOPER J
BRISBANE
25 SEPTEMBER 2003

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q64 OF 2002

BETWEEN:	SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES APPLICANT
AND:	NATHAN LAURENT RESPONDENT
JUDGE:	COOPER J
DATE OF ORDER:	25 SEPTEMBER 2003
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.The decision of the Administrative Appeals Tribunal given on 27 March 2002 to set aside the decision under review and to substitute its decision that arrears of rent assistance are to be paid to Nathan Laurent from 27 September 1999 be set aside.

2.The matter be remitted to the Administrative Appeals Tribunal for re-hearing according to law and these reasons.

3.The respondent pay the applicant’s costs of and incidental to the application, including reserved costs, if any, to be taxed if not agreed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q64 OF 2002

BETWEEN:	SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES APPLICANT
AND:	NATHAN LAURENT RESPONDENT

JUDGE:	COOPER J
DATE:	25 SEPTEMBER 2003
PLACE:	BRISBANE

REASONS FOR JUDGMENT

BACKGROUND

1. On 16 September 1999, Mr Laurent’s payment of Newstart Allowance benefit was cancelled by Centrelink.  The cancellation was due to an administrative error.  The Newstart Allowance benefit payment was restored with effect from 14 September 1999.

2. On 20 September 1999, Mr Laurent was sent a notice by Centrelink setting out the Newstart Allowance he was entitled to receive for the payment cycle 14 September to 27 September 1999.  The notice was for a sum of $392.18.  The notice stated that his normal payment from payday 12 October 1999 would be $392.70 which included ‘rent assistance’ of $76.00.

3. On 27 September 1999, Mr Laurent was sent a further notice by Centrelink setting out the Newstart Allowance he was entitled to for the period 14 September to 27 September 1999.  The amount was now stated to be $386.75.  The notice also stated that his normal payment from payday 12 October 1999 would be $316.70, which payment was net Newstart Allowance after payment of tax.  The calculation did not include any sum attributable to rent assistance.

4. On 28 September 1999, Centrelink sent to Mr Laurent, notice of immediate payment of Newstart Allowance for the period 14 September to 27 September 1999 in the sum of $386.75 and restated that the normal payment from payday 12 October 1999 would be $316.70.  The calculation of this payment did not include any provision attributable to rent assistance.

5. From 28 September 1999, Mr Laurent continued to receive Newstart Allowance and notification as to the applicable rate at which Newstart Allowance was being paid.  However, the payments made did not include any provision attributable to rent assistance.

6. On 16 January 2001, Mr Laurent advised Centrelink that he had not been paid rent assistance since August 1999 and requested that the matter be investigated.  A decision was made on 11 April 2001 to pay arrears of rent assistance to him from 16 January 2001.  By letter dated 4 May 2001, Mr Laurent sought review of the decision not to pay arrears of rent assistance from an earlier date.  On 22 May 2001, an authorised review officer determined that arrears of rent assistance be paid from 4 December 2000 only.

7. Mr Laurent sought review of the decision of Centrelink not to pay the arrears from an earlier date.  On 30 August 2001, the Social Security Appeals Tribunal (‘the SSAT’) determined to affirm the decision of Centrelink not to pay arrears of rent assistance from 28 September 1999 to 4 December 2000.  Mr Laurent sought further review of the decision of the SSAT.

8. On 27 March 2002, the Administrative Appeals Tribunal (‘the AAT’) set aside the decision of the SSAT and substituted its own decision that Mr Laurent be paid arrears of rent assistance from 27 September 1999.

9. The applicant appealed to this Court seeking to have the decision of the AAT set aside and that the matter be remitted for determination according to law.  The ground relied upon in its application was that the AAT erred ‘in holding that the payment of rent assistance constitutes a “social security payment” within the meaning of s 23 of the Social Security Act 1991’.

   THE ISSUES BEFORE THE AAT

10. Section 109 of the Social Security (Administration) Act 1999 (Cth) (‘the Administration Act’) deals with the date upon which a favourable decision made upon a review is to take effect. That section relevantly provides:

    ‘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.

    (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.

    (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.’
    (Original emphasis)

11. Centrelink argued before the AAT that rent assistance was merely a component of the Newstart Allowance and not a ‘social security payment’ in its own stead. Thus, no dissatisfaction as to the absence of the component was made until 16 January 2001, notwithstanding that since 27 and 28 September 1999 Mr Laurent had had written notice that rent assistance was not being included as a component in the calculation of his Newstart Allowance. Consequently, Centrelink submitted that the earliest date from which he could receive payment on the basis of his entitlement to rent assistance, was the date upon which the last notification of the calculation of Newstart Allowance was given, namely 4 December 2000. That is, review having been sought within thirteen weeks of the decision in respect of which review was sought, the case fell within s 109(1) of the Administration Act.

12. Mr Laurent argued before the AAT that rent assistance was a separate social security payment which Centrelink determined to terminate on 27 September 1999, of which decision no sufficient notice was given to him. Thus, he submitted s 109(3) applied and that the relevant date was 27 September 1999.

13. The term ‘social security payment’ is defined in s 23(1) of the Social Security Act 1991 (‘the Act’) as:

    ‘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.’
    (Original emphasis)

14. The expression ‘social security payment’ when used in the Act has the same meaning when used in the Administration Act: s 3(2) of the Administration Act.

15. The AAT held that rent assistance was an allowance within par (c) of the definition of ‘social security payment’ and further that no notice of the decision to cancel the payment had been given. Thus s 109(3) of the Administration Act operated to extend the relation back period for the payment of arrears until 27 September 1999.

    THE PROCEEDINGS IN THIS COURT

16. Counsel on behalf of the applicant submitted rent assistance was a matter dealt with in Ch 3 of the Act dealing with ‘General Provisions Relating to Payability and Rates’ in respect of ‘Pensions, Benefits and Allowances’ payable under Ch 2 of the Act.

17. It was submitted that except for par (f) of the definition of ‘social security payment’, which relates to the 1947 Act, each benefit, pension, allowance, or payment was one which was provided for and payable under Ch 2. It was contended that rent assistance is not provided for in Ch 2 of the Act, and accordingly rent assistance does not fall within the definition of ‘social security payment’.  The exclusion of ‘rent assistance’ from Ch 2 pensions, benefits and allowances was confirmed, it was submitted, by its limited use as a component or ‘module’ in the Rate Calculators contained within the Act..

18. The applicant submitted that the consequence of excluding rent assistance as a component was to make the relevant decision one to reduce the quantum of Newstart Allowance of which clear written notice was given to Mr Laurent on 27 and 28 September 1999. In those circumstances, the effective date for implementation of the review decision was not 27 September 1999, because Mr Laurent could not make out the circumstances specified in s 109(3) of the Administration Act.

19. Counsel on behalf of Mr Laurent submitted that rent assistance was subject to a separate set of qualification criteria to that applicable to Newstart Allowance, and that it served a different purpose to Newstart Allowance.  Further, she submitted it was accounted for separately to the recipient as an amount in addition to Newstart Allowance.  The contention of the applicant, Counsel submitted, required reading into par (c) of the definition of ‘social security payment’ the words ‘Chapter 2 of’ so that the paragraph read ‘an allowance under Chapter 2 of this Act’ (emphasis added).  It was further submitted that, as the legislation is beneficial, no such restriction ought to be read into its provisions:  BP Refinery (Westernport) Pty Ltd v Hastings ShireCouncil (1977) 180 CLR 266 at 280. As ‘allowance’ is not defined in the Act, it was submitted that its ordinary meaning as ‘a definite sum of money allotted or granted to meet expenses or requirements’ (Macquarie Dictionary (1981) at p 90) ought to be applied.  If that course was followed, ‘rent assistance’ falls within par (c) of the definition of ‘social security payment’ as ‘an allowance under this Act’.

    THE ACT

20. Chapter 2 of the Act is headed ‘Pensions, Benefits and Allowances’. The chapter is divided into parts. All parts other than Pt 2.1 deal with a specific pension, benefit (payment) or allowance. Each of the parts deals with eligibility and payability of the social security payment dealt with by the part. Rent assistance is not a payment which is dealt with separately under any Part of Ch 2. Chapter 2A deals with benefits and concessions other than payments under the Act. Chapter 2B deals with the Student Financial Supplement Scheme.

21. Newstart Allowance is dealt with under Pt 2.12 of Ch 2. Section 593 deals with the qualifications for the allowance. The rate of Newstart Allowance is dealt with in Div 4 of Pt 2.12. Section 643 provides:

    ‘643.    A person’s newstart allowance rate is to be worked out using Benefit Rate Calculator B at the end of section 1068.’

    Included within Div 4 are specific provisions dealing with reduction of a recipient’s maximum payment rate of Newstart Allowance, calculated using Benefit Rate Calculator B at the end of s 1068, due to activity test breach reductions or administrative breach reductions: see sub AA (Activity test breach rate reduction) and sub B (Administrative breach reductions) Div 4 of Pt 2.12.

22. Section 1068 and Benefit Rate Calculator B are found in Ch 3 of the Act. The chapter contains Rate Calculators, Modules, and Tables relating to payability and rates of payments dealt with by the Chapter. The statutory effect of Tables, Rate Calculators, and Modules is dealt with by s 39 of the Act. That section provides:

    ‘39(1)  For the purposes of this Act, a Table and a Key to a Table are to be taken to be part of:

    (a)if the Table occurs in a section containing subsections-the subsection immediately preceding the Table; and

    (b)if the Table occurs in a section that does not contain subsections-the section.

    (1A) For the purposes of this Act, a Note is to be taken to be part of:

    (a)if the Note immediately follows a section that does not contain subsections-the section; or

    (b)if the Note immediately follows a subsection-the subsection; or

    (c)if the Note immediately follows a point in a Rate Calculator-the point; or

    (d)if the Note immediately follows a Step in a Method Statement and is aligned with the text of the Step-the Step; or

    (e)if the Note immediately follows a Table-the Table; or

    (f)if the Note immediately follows a paragraph and is aligned with the text of the paragraph the paragraph; or

    (g)if the Note immediately follows a clause in a Schedule-the clause in the Schedule; or

    (h)If the Note immediately follows a subclause in a Schedule-the subclause in the Schedule.

    (2)      For the purposes of this Act, a Calculator (whether a Rate Calculator, a Lump Sum Calculator or any other Calculator) is to be taken to be part of the section immediately preceding the Calculator.

    (3)      Rate Calculators are divided into Modules (for example, Module A).

    (4)      A Module of a Rate Calculator is divided into points and some points are divided into subpoints.

    (5) The points in a Module are numbered as follows:

    (a)the initial number (followed by a dash) identifies the section that immediately precedes the Rate Calculator;

    (b)the letter following the dash is the letter allocated to the Module in which the point occurs;

    (c)the final number identifies the order of the point within the Module.

    Example:  point 1068-E8 is the eighth point in Module E of the Rate Calculator at the end of section 1068.

    Note: paragraph (5)(a) has been adopted so that if a reader is looking for a particular section of the Act and opens a page that happens to be in the middle of a Rate Calculator, the reader will know whether the section the reader is looking for is before or after that page.’

23. Section 1062 of the Act deals with the steps provided for under the Act in the rate calculation process. That section provides:

    ‘1062(1) The following are the usual steps in the rate calculation process:

    (a)start with a maximum basic rate;

    (b)add any additional amounts that are subject to income or assets testing;

    (c)       apply the income and assets tests;

    (d)add any additional amounts that are not subject to income or assets testing.

    (2)      The overall rate calculation process is usually described in an early Module of the relevant Rate Calculator.’

24. Part 3.6 of Ch 3 contains s 1068 and Benefit Rate Calculator B. Section 1068 specifies the rate of widow allowance, Newstart Allowance (18 or over), sickness allowance (18 or over), partner allowance and mature age allowance Pt 2.12B. Sub-section 1068(1) ends with the following note:

    ‘Note:  Module A of the Rate Calculator establishes the overall rate calculation process and the remaining Modules provide for the calculation of the component amounts used in the overall rate calculation.’

25. The Benefit Rate calculator B in respect of Module A provides:

    ‘MODULE A - OVERALL RATE CALCULATION PROCESS
    Method of calculating rate
    1068-A1
    The rate of benefit is a daily rate.  That rate is worked out by dividing the fortnightly rate calculated according to this Rate Calculator by 14.

Method statement

Step 1. Work out the person’s maximum basic rate using MODULE B below.

Step 2. Work out the amount per year (if any) of pharmaceutical allowance using MODULE D below.

Step 3. Work out the applicable amount (if any) for rent assistance (using MODULE F).

Step 4. Add up the amounts obtained in Steps 1 to 4:  the result is called the maximum payment rate.

Step 5. Apply the income test using MODULE G below to work out the income reduction.

Step 6. Take the income reduction away from the maximum payment rate:  the result is called the provisional fortnightly payment rate.

Step 7. The rate of benefit is the amount obtained by:

(a)      subtracting from the provisional fortnightly payment rate any special employment advance deduction (see Part 3.16B); and

(b)      if there is any amount remaining, subtracting from that amount any advance payment deduction (see Part 3.16A); and

(c)       except where the person is a CDEP Scheme participant in respect of the whole or a part of the period for which the rate of benefit is being worked out, adding any amount payable by way of remote area allowance (see Module J).

Note 1:  if a person’s rate is reduced under Step 8, the order in which the reduction is to be made against the components of the maximum payment rate is laid down by section 1210 (maximum basic rate first, then rent assistance).

Note 2: in some circumstances a person may also be qualified for a pharmaceutical allowance under Part 2.22.

Note 3: an amount of remote area allowance is to be added under Step 8 only if the person’s rate of benefit after Step 5 is greater than nil.’
[Original emphasis]

1. Module F - Rent assistance - so far as presently relevant provides:

   ‘MODULE F - RENT ASSISTANCE
   Rent assistance

   1068-F1         Subject to points 1068-F3 and 1068-F4, an amount to help cover the cost of rent is to be added to a person's maximum basic rate for a period if:

   (a)      the person is not an ineligible homeowner; and

   (aa)column 3B item 1 of Table B in point 1068-B1 of this Benefit Rate Calculator does not apply to the person; and

   (ab)the person is not an aged care resident; and

   (b)the person pays, or is liable to pay, rent (other than Government rent) in respect of the period; and

   (c)the rent is payable at a rate of more than the rent threshold rate; and

   (d)      the rent is in respect of premises in Australia throughout the period.
   (e)       the person does not have a partner with a rent increased pension; and
   (f)       either of the following applies:

   (i)if the person is not a member of a couple, or is a member of an illness separated couple, a respite care couple or a temporarily separated couple and is entitled to be paid family tax benefit-the person's maximum Part A rate of family tax benefit does not include rent assistance;

   (ii)if the person is a member of a couple other than an illness separated couple, a respite care couple or a temporarily separated couple, and the person or the person's partner is entitled to be paid family tax benefit-the maximum Part A rate of family tax benefit of the person, or the person's partner, does not include rent assistance.

   Note 1:  for rent, Government rent and ineligible homeowner see section 13.
   Note 2:  for rent threshold rate see point 1068-F1A.’

1. Section 1210 of the Act deals with reductions in the rate of social security pensions or benefits where the rate has been increased on account of the pharmaceutical allowance module or the rent assistance module of a rate calculator. The section provides:

   ‘1210(1)          If:

   (a)the rate of a social security pension or benefit applicable to a person is increased under the pharmaceutical allowance Module of a Rate Calculator or the rent assistance Module of a Rate Calculator; and

   (b)the rate of that pension or benefit is to be reduced under:

   (i)the income test Module or the assets test Module of the Rate Calculator; or

   (ii)section 1168 (compensation reductions);

   the reduction is to be applied:

   (c)first, to the rate of the pension or benefit apart from any increase under the pharmaceutical allowance Module or the rent assistance Module; and

   (d)then, to the amount of any increase under the rent assistance Module or Part 3.12B (residential care allowance); and

   (e)finally, to the amount of any increase under the pharmaceutical allowance Module.

   (2)      The following Table sets out details of the Modules relevant to subsection (1):

TABLE RELEVANT MODULES TABLE
column 1 Pension Rate Calculator	column 2 pharmaceutical allowance Module	column 3 rent assistance Module	column 4 income test Module	column 5 (Omitted)	column 6 assets test Module
Pension Rate Calculator A (section 1064) Pension Rate Calculator C (section 1066) Pension Rate Calculator D (section 1066A) Youth Allowance Rate Calculator (section 1067G) Austudy Payment Rate Calculator (section 1067L) Benefit Rate Calculator B (section 1068) Pension PP (Single) Rate Calculator (section 1068A) Benefit PP (partnered) Rate Calculator (section 1068B)	Module C Module C Module D Module C Module C Module D Module C Module E	Module D Module D Module EA Module EB Module D Not applicable Module F Module D Module F	Module E Module E Module F Module H Module D Module G Module E Module D	Module G Module G Module H Not applicable Not applicable Not applicable Not applicable Not applicable

1. It is clear from s 593, s 643, s 1062, s 1068 and s 1210 of the Act and from the operation of Benefit Rate Calculator B, that rent assistance, if any, is part of the benefit payable at the rate calculated as provided in s 1068 of the Act. That is, rent assistance, if payable, is part of the Newstart Allowance and is payable as ‘an amount to help cover the cost of rent’.  Importantly, it is to be added to a person’s ‘maximum basic rate’ using Module B, s 1068-B1, together with any applicable pharmaceutical allowance, using Module D, s 1068-D1, to obtain the person’s ‘maximum payment rate’: s 1068-A1 Steps 1, 2, 3 and 4. Rent assistance under s 1068-F1 payable in the circumstances and amounts specified in Module F has no independent existence from, and nor is it payable otherwise than as part of, a benefit to which s 1068 of the Act applies. For present purposes the relevant benefit is Newstart Allowance. Rent assistance under s 1068-F1 to s 1068-F18 has no relevant statutory operation other than as Step 3 in Module A of Benefit Rate Calculator B.

2. As appears from the table to s 1210, other Pension Rate Calculators which contain a rent assistance module make specific provision for the rent assistance module applicable to the individual Pension Rate Calculator. In each of the Pension Rate Calculators identified in Column 1, the rent assistance forms part of the social security pension or benefit to which the calculator relates.

3. Rent assistance is not a discrete sum of money payable under the Act as a pension, benefit or allowance. It is a notional amount to be added to a person’s maximum basic rate of pension, benefit or allowance to help cover the cost of rent. What is in fact payable and paid is the Newstart Allowance in a sum calculated in accordance with Benefit Rate Calculator B (s 1068) and that is the payment to which s 109(1)(a) of the Administration Act applies.

   THE DEFINITION OF ‘SOCIAL SECURITY PAYMENT’

4. The definition of the term ‘social security payment’ must yield to the context in which it appears:  Brown v Brook (1971) 125 CLR 275 at 278. Further, definitions are not to be treated as substantive provisions creating rights, obligations or interests under the Act. In Gibb v Federal Commissioner of Taxation (1966) 118 CLR 628 at 635, Barwick CJ, McTiernan and Taylor JJ said:

   ‘The function of a definition clause in a statute is merely to indicate that when particular words or expressions the subject of definition, are found in the substantive part of the statute under consideration, they are to be understood in the defined sense - or are to be taken to include certain things which, but for the definition, they would not include.  Such clauses are, therefore,  no more than an aid to the construction of the statute and do not operate in any other way.  As was said by Sutherland (Statutes and Statutory Construction, 2nd ed., vol. 2, p.687),

   “Such definitions can, in the nature of things, have no effect except in the construction of the statutes themselves”.

   Consequently the effect of the Act and its operation in relation to dividends as defined by the Act must, we think, be found in the substantive provisions of the Act which deal with “dividends”.’

5. In the present context, the operation of the Administration Act with respect to payments made under the Act as Social Security Payments is to be determined by the substantive provisions of the Act which deal with payments of benefits, pensions and allowances under the Act. The definition of ‘social security payment’ in s 23 of the Act cannot be used to create a category of payment not provided for by the substantive provisions of the Act. In any event, the common characteristic of each of the paragraphs in the s 23 definition is that it involves a payment being made and, save for par (f), the payment being made under the Act in respect of a pension, benefit or allowance falling within the description of one of pars (a) to (e) inclusive. For the reasons outlined above, rent assistance does not constitute a discrete payment payable under the Act; it does not fall within any of the paragraphs of the definition of ‘social security payment’.

6. In my opinion, the AAT erred in holding that ‘rent assistance’ fell within par (c) of the definition of ‘social security payment’ and that it was thereby a payment in its own stead for the purposes of s 109 of the Administration Act. For the purpose of s 109 of the Administration Act, the relevant decision was that made on 27 September 1999 with respect to the payment of Newstart Allowance. It was the decision to use Pension Rate Calculator B without including in the calculator anything for rent assistance as Module F.

7. The error of the AAT as to the nature of rent assistance was central to its reasoning that no sufficient notice was given to Mr Laurent of a decision to terminate the payment of rent assistance thereby requiring s 109(3) of the Administration Act to be applied to determine the date from which to restore payment of rent assistance. This appears from pars 44 and 45 of the AAT reasons, where it said:

   ‘44.     Applying the principles set out in both Austin and Rogers, I find that notice was not given to the applicant, either in the letter dated 27 September 1999 or the letters that followed.  In reaching that determination, regard was had to the following:

   ·    It would have been necessary for the applicant to have compared the letters to be aware of the fact that rent assistance was not being paid and this is contrary to the principles outlined in Austin and Rogers;  in particular, Austin required a clear statement that a decision had been made to cancel or suspend newstart allowance, as opposed to information from which an inference to one or other of those effects might be drawn.

   ·    The key issue is that the recipient of a notice should be advised that a decision has been made to change the rate of payment.  No mention was made of a change in payment of rent assistance;  the only advice conveyed was the amount of newstart allowance being paid;

   ·    That  as rent assistance is a separate payment to newstart allowance, (but for administrative purposes it is paid to the recipient at the same time as newstart allowance) in order to constitute notice of a decision regarding cancellation, it must do more than notify the recipient that an amount is payable in respect of newstart allowance.  Consequently, the letters do not contain the particularity required of “notices”. ’

   45. Accordingly, s 109(3) of the Administration Act is relevant to the applicant’s circumstances, in that he was not given notice of the original decision to cancel rent assistance. Consequently, the favourable determination (the decision to commence payment of rent assistance), as a result of his application for review takes effect on the day on which the original decision took effect.’
   (Original emphasis)

8. The existence of such an error requires that the decision be set aside:  see Commonwealth of Australia v Human Rights and Equal Opportunity Commission (1998) 76 FCR 513 at 519 and the cases cited therein.

9. Costs should follow the outcome of the application in the ordinary way.

I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cooper.

Associate:

Dated:             25 September 2003

Counsel for the Applicant:	M Swan
Solicitor for the Applicant:	Australian Government Solicitor
Counsel for the Respondent:	C Heyworth-Smith
Solicitor for the Respondent:	Welfare Rights Centre
Date of Hearing:	2 September 2002
Date of Judgment:	25 September 2003