Seymour and Secretary, Department of Social Services (Social services second review)

[2016] AATA 343

Seymour and Secretary, Department of Social Services (Social services second review) [2016] AATA 343 (27 May 2016)

Division	GENERAL DIVISION
File Number(s)	2015/4405
Re	Sylvana Seymour
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member A C Cotter
Date	27 May 2016
Place	Brisbane

The decision under review is affirmed.

........................[sgd]........................................

Senior Member A C Cotter

CATCHWORDS

FAMILY TAX BENEFIT – rent assistance – arrears payment – whether rent assistance could be back dated – powers of the Tribunal – where no special circumstances – decision under review affirmed

LEGISLATION

A New Tax System (Family Assistance) Act 1999 (Cth)

A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) ss 105, 106, 107, 109A, 109E
Administrative Appeals Tribunal Act 1975 (Cth) s 43

CASES

Andrews and Director-general of Social Security [1983] AATA 248

Angelakos v Secretary, Department of Employment and Workplace Relations (2007) 44 AAR 436
Dobson and Secretary, Department of Social Services [2015] AATA 892
Field and Secretary, Department of Social Services [2015] AATA 903
Groth v Secretary, Department of Social Security (1995) 40 ALD 541
Milroy and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 488
Re Beadle v Director-general of Social Security (1984) 6 ALD 1
Re Secretary, Department of Employment and Workplace Relations and Mitchell (2006) 92 ALD 201
Scott v Secretary, Department of Social Services (2000) 65 ALD 79
Totten and Secretary, Department of Social Services [2016] AATA 240

Wilson and Director-General of Social Services [1981] AATA 88

SECONDARY MATERIALS

Guide to Social Security Law

REASONS FOR DECISION

Senior Member A C Cotter

27 May 2016

INTRODUCTION

1. In February 2011, Ms Sylvana Seymour was receiving Parenting Payment (“PP”) at the single rate. She subsequently became partnered and advised Centrelink of that fact on 24 February 2011.[1] As her and her partner’s combined income exceeded the relevant income test threshold, her PP was cancelled.[2]

   [1] Exhibit 1, T Documents, T 8, page 66, Centrelink file notes dated 24 February 2011.

   [2] Exhibit 1, T Documents, T 2, page 5, Decision and reasons for decision of Social Services & Child Support Division (“SSCSD”), [1].

2. On 5 October 2011, Ms Seymour contacted Centrelink to advise that she had separated from her partner.[3] At the time, she was receiving Family Tax Benefit (“FTB”). There was no rental assistance component to her payment.[4]

   [3] Exhibit 1, T Documents, T 8, pages 65-66, Centrelink file note dated 5 October 2011.

   [4] Exhibit 2, Annexure 1 to Secretary’s Statement of Facts and Contentions dated 23 February 2016, pages 62-63.

3. On 13 October 2011, Centrelink wrote to Ms Seymour, confirming that PP would be paid to her from 2 October 2011 in the amount of $647.50 per fortnight. That payment included a component for pharmaceutical allowance, but here was no mention of rent assistance.[5]

   [5] Exhibit 1, T Documents, T 5, pages 43-45, letter from Centrelink to Ms Seymour dated 13 October 2011.

4. On or about 19 October 2011, Ms Seymour moved to a new address. She again contacted Centrelink, which updated its records, including the fact that she was renting.[6] A Rent Certificate was sent to Ms Seymour to complete and return, but there is no record of it having been returned by her.

   [6] Exhibit 1, T Documents, T 8, page 65, Centrelink file note dated 20 October 2011.

5. Over the course of the next three years, Centrelink sent Ms Seymour various notices regarding both PP and FTB payments. Those notices did not contain any reference to rent assistance being paid.[7]

   [7] Exhibit 1, T Documents, T 5, pages 15-54 and Exhibit 2, Annexure 1 to Secretary’s Statement of Facts and Contentions dated 23 February 2016, pages 5-61.

6. On 16 December 2014, Ms Seymour sent an email to Centrelink, inquiring if she was being paid rent assistance.[8] On 7 January 2015, she provided details in relation to her rent and requested payment of arrears in rent assistance.[9]

   [8] Exhibit 1, T Documents, T 8, page 65, Centrelink file note dated 16 December 2014.

   [9] Exhibit 1, T Documents, T 8, page 64, Centrelink file note dated 7 January 2015.

7. With effect from 3 January 2015, a rent assistance component of $ 149.52 was added to Ms Seymour’s FTB payments.[10] On 8 January 2015, a rent assistance arrears payment of $5,776.74 was paid to Ms Seymour in respect of the period 1 July 2013 to 2 January 2015.[11]

   [10] Exhibit 2, Annexure 1 to Secretary’s Statement of Facts and Contentions dated 23 February 2016, page 2.

   [11] Ibid page 1.

8. Ms Seymour subsequently applied for a review of the decision concerning the payment of rent assistance, saying that she should have been paid arrears dating back to November 2011 when she says she first sent her Rent Certificate.[12]

   [12] Exhibit 1, T Documents, T 6, pages 55-56, Ms Seymour’s Review of a decision form dated 3 February 2015.

9. Centrelink declined to pay further arrears on the basis that Ms Seymour’s request was out of time.[13]

   [13] Exhibit 1, T Documents, T 8, page 63, Centrelink file note dated 26 February 2015.

10. Ms Seymour first sought a review of Centrelink’s decision by an Authorised Review Officer (“ARO”).[14] As that was unsuccessful, she then sought a review by the Social Services & Child Support Division of this Tribunal (“SSCSD”).[15] That, too, was unsuccessful.

    [14] Exhibit 1, T Documents, T 9, pages 67-67-72, ARO’s letter to Ms Seymour and notes dated 22 April 2015.

    [15] Exhibit 1, T Documents, T 2, pages 4-7, Decision and reasons for decision of Social Services & Child Support Division dated 28 July 2015.

11. Dissatisfied with the outcome, Ms Seymour has applied to the General Division of this Tribunal for a review of the SSCSD’s decision.

    ISSUE FOR THE TRIBUNAL

12. The issue for my determination is whether Ms Seymour is entitled to a payment of rent assistance for the period 20 October 2011 to 30 June 2013.

    THE LEGISLATIVE FRAMEWORK

13. Ordinarily, where a person receives a social security payment (such as PP) and FTB at the same time, the rent assistance component is included with the FTB payment.[16] That is what happened in Ms Seymour’s case following her inquiry of December 2014 – the ongoing rent assistance was added to her FTB payments and the rent assistance arrears were paid as part of FTB.

    [16] Guide to Social Security Law, paragraph 3.8.1.10 Qualification for RA.

14. As such, any rent assistance  payable would have been paid  in accordance with the family assistance law contained in A New Tax System (Family Assistance) Act 1999 (Cth) and A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) (“Administration Act”).

15. As the legislation was worded at the relevant time (November 2011), s 109A of the Administration Act provided that a person affected by a certain decision could apply to the Secretary for a review of that original decision.

16. Where that occurred and the Secretary or an authorised review officer decided to vary the original decision or set it aside and substitute a new decision which would have the effect of creating or increasing an entitlement to be paid FTB by instalment, s 109E(1) of the Administration Act prescribed the date on which that new decision was to take effect. It provided:

    1If :

    (a)a person applies under section 109A for review of a decision (the original decision) relating to the payment to the person of family tax benefit by instalment; and

    (b)the application is made more than 52 weeks after the person was given notice of the original decision; and

    (c)the Secretary or an authorised review officer decides, under subsection 109A(2), to vary the original decision or to set aside the original decision and substitute a new decision; and

    (d)the decision of the Secretary or authorised review officer (the review decision) will have the effect of creating or increasing an entitlement to be paid family tax benefit by instalment;

    the date of effect of the review decision is:

    (e)unless paragraph (f) applies -  the date that would give full effect to the review decision; or

    (f)if the date referred to in paragraph (e) is earlier than the first day of the income year before the income year in which the application was made - that first day.

17. Subsection (2) of s 109E went on to afford the Secretary some discretion where special circumstances existed:

    The Secretary may, if he or she is satisfied that there are special circumstances that prevented the applicant from making an application under section 109A for review of the original decision within 52 weeks, determine that subsection (1) applies as if the reference to 52 weeks were a reference to such longer period as the Secretary determines to be appropriate.

    MS SEYMOUR’S CONTENTIONS

18. Ms Seymour attended the hearing and gave evidence by telephone. She also made a number of submissions.

19. Her primary submission was that in October 2011, she completed her Rent Certificate and did not think of it again. She said that she trusted Centrelink to then meet its obligation “to get the payments up and running”.[17] She denied that there was any “lack of duty of care” on her part in not noticing that she had not received the rent assistance payment (which she estimated equated to 15 percent of her income), saying that there was nothing in Centrelink’s notices to indicate she was not receiving that payment.

    [17] Exhibit 1, T Documents, T 6, pages 55-56, Ms Seymour’s Review of a decision dated 3 February 2015.

20. Ms Seymour explained that when she sent the Rent Certificate form to Centrelink, she had not thought of it again because of “poor memory amnesia”; she said it would be unfair to judge her legal entitlement based on a “mental dysfunction”.

21. She referred me to ss 105, 106 and 107 of the Administration Act (as they existed at the time) as being the more appropriate provisions of the legislation, rather than ss 109A and 109E mentioned above. She submitted that as there was no original decision, the provisions affording the Secretary the power to review decisions on his or her own initiative were more appropriate.

22. Finally, she contended that the social security law had changed since she first sent her Rent Certificate in October 2011, and so therefore, her entitlements should be paid in accordance with the legislation which existed at that time.

23. On that basis, Ms Seymour contended that she is also entitled to arrears of rent assistance for the period 20 October 2011 to 30 June 2013, totalling $ 5,777.00.

    THE SECRETARY’S POSITION

24. For the Secretary, it was contended that ss 105, 106 and 107 of the Administration Act were not applicable in this instance, and that ss 109A and 109E were the appropriate provisions. Applying those latter provisions meant that rent assistance could only be back paid to 1 July 2013.[18] In any event, it was said that even if Ms Seymour’s submission were correct, and ss 105, 106 and 107 applied, the practical result would still be the same.

    [18] Exhibit 2, Secretary’s Statement of Facts and Contentions dated 23 February 2016, [30].

25. The Secretary denied that there was evidence of “special circumstances” that prevented Ms Seymour from making an application for review prior to 16 December 2014, and therefore submitted that it was not open to pay arrears prior to 1 July 2013.[19]

    [19] Ibid [33]–[40].

26. During the course of his submissions, the Secretary’s representative, Mr McQuinlan, referred me to the decision of Senior Member P W Taylor SC in Totten and Secretary, Department of Social Services,[20] which was handed down a few days earlier. The latest in a series of conflicting decisions, Totten supports the proposition that, by virtue of s 43(6) of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”), the Tribunal has the discretion, where it varies or substitutes a decision, to “otherwise order” the date of effect of its decision. While the Secretary was still to consider the full implications of that decision, Mr McQuinlan submitted that it was nevertheless distinguishable from the present case as it concerned whether or not a carer payment was wrongly refused; in other words, it was dealing with a person who had care and responsibility for a disabled person. In any event, it was said that Totten served to highlight the fact that the discretion should not be lightly exercised. As such, the process was not dissimilar to that when considering whether the discretion under s 109E(2) should be exercised because special circumstances existed.

    [20] [2016] AATA 240.

    CONSIDERATION

27. I address the parties’ submissions below.

    The applicable statutory provisions and their operation

28. I do not agree with Ms Seymour’s submission that ss 105, 106 and 107 of the Administration Act are the relevant provisions for consideration. As I mentioned earlier, they apply to the situation where the Secretary reviews a decision on his or her own initiative. That did not occur in this instance. Rather, Ms Seymour initiated the Secretary’s review by inquiring in her 16 December 2014 email as to whether she was being paid rent assistance.[21] The necessary information was provided by Ms Seymour on 7 January 2015,[22] following which decisions were made to add a rent assistance component to her ongoing FTB payments and to pay her rent assistance arrears to 1 July 2013.

    [21] Exhibit 1, T Documents, T 8, pages 64-65, Centrelink file note dated16 December 2014.

    [22] Ibid page 64, Centrelink file note dated 7 January 2015.

29. In those circumstances, I believe that the appropriate provisions to be considered are ss 109A and 109E of the Administration Act.

30. During the three years from October 2011, Ms Seymour received various notices from Centrelink about her FTB payments.[23] They included, from time to time, notifications about variations in her payments, which detailed how those new payment figures were calculated. It was open to her during that time to seek a review of any of the relevant notifications on the ground that they did not include a component for rent assistance.

    [23] See Annexure 1 to Exhibit 2, Secretary’s Statement of Facts and contentions dated 23 February 2016, pages 5-61 and, for example, Centrelink letters of 14 October 2012 (pages 11-14), 16 September 2012 (pages 15-18), and 8 September 2012 (pages 19-22).

31. Consequently, when Ms Seymour finally sought a review in December 2014, that was more than 52 weeks after the original decision, without containing a rent assistance component, was made.

32. The Secretary’s subsequent review resulted in a variation of the original decision, in that provision was made for the payment of arrears of rent assistance.

33. Paragraph (f) of s 109E then operated to fix the date on which the review decision would take effect, namely the first day of the income year before the income year in which the application was made (2014/2015). The preceding income year being 2013/2014, the first day of that income year was 1 July 2013.

34. For the sake of completeness, I should note that the relevant wording of ss 107 and 109E are similar, such that the same practical result would be achieved with respect to the date of effect if the former section were employed.

35. On the above analysis, I consider that the Secretary was correct in limiting the payment of arrears to the period 1 July 2013 to 2 January 2015.

36. The question therefore arises as to whether there are special circumstances arising in this case which prevented Ms Seymour from applying for review within 52 weeks of the original decision being made without the inclusion of a rent assistance component. If so, the Secretary has a discretion, under s 109E(2), to further backdate the arrears.

    Totten and the Tribunal’s power to “otherwise order”

37. Before I address the question of special circumstances, I should briefly discuss the decision in Totten.

38. As I mentioned earlier, that decision was handed down a few days before the hearing in this matter. It is the latest in a line of conflicting decisions on the Tribunal’s power in s 43(6) of the AAT Act to “otherwise order” an alternative date from which the Tribunal’s decision varying or substituting a reviewed decision may take effect. Put simply in the context of the present matter, it raises the question of whether the Tribunal, by reason of that section, would have the ability to make an order to backdate the arrears beyond what s 109E of the Administration Act would otherwise permit. Senior Member Taylor in that matter concluded that such a discretion was open, and exercised it in that case. However, that is at odds with other decisions, such as that of Re Secretary, Department of Employment and Workplace Relations and Mitchell, in which Deputy President Jarvis effectively ruled that s 43(6) did not give a discretion at large.[24]

    [24] (2006) 92 ALD 201.

39. While I was told by Mr McQuinlan that the Department generally favoured the Mitchell decision, he acknowledged that the Totten decision was lengthy and complex and was under consideration by the Department. Consequently, no detailed submissions were made by him on the correctness or otherwise of the decision. Because Ms Seymour was appearing by telephone and was self-represented, I made directions at the conclusion of the hearing allowing her (and if necessary, the Secretary, by way of response) the opportunity to make submissions on Totten, Mitchell and their implications for the present matter. That opportunity was not, perhaps understandably, taken up. In the absence of any detailed submissions or argument on the issue, I am reluctant to venture into the debate in circumstances where it is unnecessary for me to do so. 

40. As Mr McQuinlan pointed out, Senior Member Taylor acknowledged that, even if such a discretion under the AAT Act were open, it should not be exercised lightly:

    The availability of the Tribunal’s power to “otherwise order” in relation to the date of effect of its decision setting aside or varying a reviewable decision is one thing. The circumstances that suffice to make the exercise of that power an appropriate decision in any particular case, are another.[25]

    After further discussion and consideration of the issue, the Senior Member summarised, not exhaustively, the matters that he considered would be relevant to the exercise of the discretion in that instance:

    (a)the claimant’s social security qualification, and the payability of the payment or pension, at the date relevant to the exercise of the “otherwise order” discretion;

    (b)the information provided by and to the claimant, both in relation to their claim qualifications, the basis of any decisions, and the potential review process;

    (c)the comparative responsibility for any erroneous decisions made in relation to the claim;

    (d)the length of delay in invoking a relevant review process, and the reasons for delay, including the comparative responsibility for the delay in reviewing the decision; and

    (e)the personal circumstances of the claimant, including both the financial hardship involved in the delayed recognition and acceptance of their claim, and any known disadvantage they may have had in pursuing the claim.[26]

    [25] [2016] AATA 240, [36].

    [26] Ibid [42].

41. A number of those matters overlap with, and are not greatly dissimilar to, those factors which may fall to be considered in the context of whether special circumstances exist for the purposes of exercising the discretion under s 109E(2). That leads me to consider that issue.

    Are Ms Seymour’s circumstances “special”?

42. In seeking payment of the arrears in rent assistance for the period 20 October 2011 to 30 June 2013, Ms Seymour said that she sent the completed Rent Certificate to Centrelink in November 2011. She contends that Centrelink’s position is unfair as it was, in reality, its obligation to “get the payments up and running”. She had no “duty of care” to ensure that she was receiving the correct payment.

1. Ms Seymour also contended that her failure to detect the non-payment of the rent assistance was due to a mental dysfunction, of “poor memory amnesia”.

2. She also said that the events in question pre-dated amendments to the FTB regime which affected back payments, and that she should be treated according to the system as existed before those changes.[27]

   [27] Exhibit 1, T Documents, T 6, pages 55-56, Ms Seymour’s Review of a decision form dated 3 February 2015.

3. The expression “special circumstances” is not defined in the Administration Act. However, the expression has been considered extensively by the courts and this Tribunal in the context of both this and various social services provisions. For present purposes, it is suffice to say that the term is often said to refer to circumstances that distinguish the particular case from others; there must be something that takes it out of the usual or ordinary case.[28]

   [28] See, eg, Groth v Secretary, Department of Social Security (1995) 40 ALD 541; Angelakos v Secretary, Department of Employment and Workplace Relations (2007) 44 AAR 436445, [33] (Besanko J); Re Beadle v Director-General of Social Security (1984) 6 ALD 1.

4. It has long been held that lack of knowledge of the law is not an unusual or uncommon experience that would constitute special circumstances for the purposes of the Administration Act.[29] Equally, it is well established that there is no obligation or general common law duty of care to advise recipients or potential recipients of benefits that might potentially be available under the Act,[30] or of changes in the law.[31]

   [29] See Wilson and Director-General of Social Services [1981] AATA 88; Andrews and Director-General of Social Security [1983] AATA 248.

   [30] See Milroy and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 488; Field and Secretary, Department of Social Services [2015] AATA 903; Scott v Secretary, Department of Social Services (2000) 65 ALD 79.

   [31] See Dobson and Secretary, Department of Social Services [2015] AATA 892, [20] (Deputy President Constance); Milroy and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 488.

5. I do not consider Ms Seymour’s circumstances to be “special” so as to warrant the exercise of the discretion in her favour. There was nothing so unusual or out of the ordinary which prevented her from making an application within 52 weeks of the original decision.

6. The only reason Ms Seymour was not paid rent assistance from October 2011 was because the Rent Certificate containing the necessary information verifying her rent obligations was not received by Centrelink. The Rent Certificate is integral to assessing and meeting a claim for rent assistance; as soon as it was received, in January 2015, the rent assistance component was paid. There was no fault by Centrelink. It had no obligation to pursue Ms Seymour to make a claim. In circumstances where she heard nothing by way of response from Centrelink, it was incumbent on her to follow up her request for rent assistance; if she wished to claim, she had the obligation to verify it by providing the necessary information on which her claim could be assessed. In any event, I note that in response to a question by a Centrelink officer as to why she had not supplied the certificate and verification, Ms Seymour responded that she “didn’t know (she) had to”.[32] She told me at the hearing that her comment at that time was directed to her having to lodge a separate rent assistance form, as there were none. That appears to be contrary to the “Review of a decision” form that she completed in February 2015,[33] and her assertion at the hearing that Centrelink lost the Rent Certificate.

   [32] Exhibit 1, T Documents, T 8, page 64, Centrelink file note dated 7 January 2015.

   [33] Exhibit 1, T Documents, T 6, pages 55-56, Review of a decision form dated 3 February 2015.

7. Ms Seymour did nothing to inquire about her rent assistance for three years. She blamed that on “poor memory amnesia”. However, no medical evidence was produced in support of that claim. Nor was her medical condition raised previously at either the SSCSD hearing or with the ARO. I am therefore not satisfied that there is sufficient evidence to establish special circumstances on that basis.

8. Nor do I think the changes made to the FTB regime had any effect on this issue. Unfortunately, Ms Seymour was not clear as to the amendments to which she was referring. As far as I can ascertain, they related to amendments to s 10 of the Administration Act which imposed new time restrictions for the lodgement of claims for lump sum FTB. Those amendments have no relevance to the present issue.

9. It therefore follows from what I have said that I am not satisfied that special circumstances prevented Ms Seymour from seeking a review of the original decision within 52 weeks. Accordingly, I do not consider grounds exist to further backdate the payment of arrears of rent assistance.

   CONCLUSION

10. I consider that the Secretary was correct in the application of s 109E of the Administration Act, in backdating the payment of arrears of rent assistance to 1 July 2013. There are no special circumstances in this instance which warrant the exercise of the discretion to further backdate the arrears.

11. Accordingly, the decision under review is affirmed. 

I certify that the preceding 53 (fifty -three) paragraphs are a true copy of the reasons for the decision herein of Senior Member A C Cotter

........................[sgd]..................................

Associate

Dated 27 May 2016

Date(s) of hearing	20 April 2016
Applicant	By phone
Solicitors for the Respondent	Department of Human Services