Spiel and Secretary, Department of Family and Community Services

[2005] AATA 298

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 298

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   S2003/514

GENERAL ADMINISTRATIVE DIVISION		)
Re		BENJAMIN SPIEL

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Senior Member L Hastwell

Date5 April 2005

PlaceAdelaide

Decision The Tribunal affirms the decision under review.

(Signed)

L HASTWELL    

(Senior Member)

CATCHWORDS

SOCIAL SECURITY – pensions, benefits and allowances – Rent Assistance – date of effect of decision – decision affirmed

Social Security (Administration) Act 1999 s 110(1)

Social Security Act 1991 s 1064-D1

REASONS FOR DECISION

5 April 2005	Senior Member L Hastwell
introduction

1.      On 3 January 2003 the applicant in a telephone contact with the respondent (the Department) made a claim for Rent Assistance.  He subsequently lodged a Rent Certificate within 14 days, in which he asserted he had been paying rental since 16 September 2000.

2.      A decision was made on the 20 January 2003 to grant Rent Assistance, which was backdated to 3 January 2003.  On 5 March 2003 the applicant requested a review of that decision by an Authorised Review Officer (ARO).  On 18 March 2003 the ARO affirmed the decision under review.  The applicant lodged an appeal to the Social Security Appeals Tribunal (the SSAT) on 16 June 2003.  The SSAT heard the matter on 24 July 2003, and affirmed the decision under review.  In that decision the SSAT noted that there were no rent records or book statements to verify the rent payments to the applicant’s mother, nor did any taxation records exist of rental payments.  The SSAT noted that they were unable to verify the rental payments from the relevant date, nor could they verify the contact with the Department that the applicant alleged took place in September 2000 when he said he had advised of his change of circumstances, and was told that he could not receive Rent Assistance as he was renting from a parent.  In the circumstances, the Tribunal was of the opinion that no arrears of rent amounts could be paid for the period prior to 3 January 2003.  The SSAT affirmed the decision under review.

3.      The applicant applied to this Tribunal for a review of the decision. 

issues for determination and legislative background

4.      The issue to be determined by the Tribunal is the date from which Rent Assistance is payable to the applicant.  To determine that issue, the Tribunal must determine the date upon which the Department received the information sufficient to enable it to make a decision.

5. The relevant legislation is contained in s 110 of the Social Security (Administration) Act 1999 (the Act), which provides the date of the effect of a favourable decision such as a rate increase following receipt of either information or a statement about a person’s circumstances. The favourable decision takes effect on the day on which the matter was advised to the Department, or on the day on which the event or change occurred whichever is the later. Section 110(1) provides:

“(1)Subject to subsections (1A) 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.”

background and discussion of the evidence

6.      The applicant represented himself and gave oral evidence.  The Department was represented by Ms Pugsley.        

7.      It was common ground between the parties that the applicant would have been eligible for Rent Assistance from the time his mother moved out of the premises on 9 September 2000, or alternatively he would have been eligible for assistance from the time that he was granted a Disability Support Pension (DSP) in February 2002, had he made the appropriate notification to the Department.

7.        There has been a recommendation that a payment of Compensation for Detriment caused by Defective Administration (CDDA) be made.  That offer is to pay arrears for the period 5 February 2002 to 2 January 2003.  The applicant has not accepted this offer.

8.      Each of the parties tendered exhibits, which will be referred to where relevant.  The documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975  (the T documents) were admitted into evidence.

9.      The applicant was born on 23 August 1978, and is currently aged 26 years.  He was a recipient of Newstart Allowance from 1999, and he was granted DSP from 4 February 2002.  The applicant’s evidence was that in 1999 he advised the Department that he was living with his mother.  At that stage he was not entitled to Rent Assistance as he was under 25 years of age, he was a recipient of Newstart Allowance, and he was living with a parent. 

10.     The applicant’s mother became engaged, and married in September 2000.  His evidence was that he negotiated with his mother that he would rent her premises once she married and moved to live with her new husband.  He said that she owned the property freehold, and after some discussions with a financial adviser it was decided that he would pay her $120 per week in rent.  His mother married on 16 September 2000 and had moved out of the unit prior to that date.  The applicant said that he started paying rent to his mother effectively from 16 September 2000.

11.     The applicant acknowledged that the rent was high relative to his income, but he said that he was also in receipt of WorkCover benefits, which he has been receiving since he was 10 years of age, due to the death of his father.  This additional benefit was $48.50 per week, and this assisted him to pay this rental.

12.     In September 2000 the applicant said his life was hectic.  He was assisting his mother to pack up to move to her new home.  He was packing for her, and helping her to organize the wedding.  He was also dealing with some other issues with the Department about compliance and whether he was working or not.  He was not working, but the receipt of his WorkCover benefits caused some confusion.  During that period he was required to lodge forms every 12 weeks.  Those forms are no longer available because they have been destroyed, and there is no evidence that he completed any change of circumstances, nor can he recall that he noted any change of circumstances on the forms.

13.     The applicant claims to specifically recall a phone call which he made to a Centrelink Call Centre on or around 14 September 2000.  He said that he mentioned his mother moving out, and that he was paying rent and he was advised that he was ineligible for Rent Assistance as he was paying rent to a parent. 

14.     The applicant’s evidence was that he had no idea until January 2003 that he had any entitlement to Rent Assistance.  He continued to pay regular rent to his mother in cash sums.  He acknowledged that she does not declare the rental as income for taxation purposes.

15.     The applicant was invited to apply for DSP which was granted from March 2002 backdated to February 2002.  He lodged 12 weekly reports, and underwent medical reviews as required.  In February 2002, in a contact with Mary Collins at Centrelink, who was assisting him to fill in a DSP form by phone, when he got to the section in which he had to report any change of circumstances he recalls mentioning his rent payments to her in passing, but he said that he immediately volunteered that he knew that he was not eligible for Rent Assistance as his mother owned the property.  The computer system confirms that Ms Collins did not access that portion of his file relating to accommodation during that conversation.  There is no independent record of the phone call with Ms Collins.

16.     The applicant then discovered, when searching the internet, that he may be eligible for Rent Assistance.  He made contact with the Department on 3 January 2003 by telephone, and was sent a Rent Certificate to complete.  He phoned the Department on 15 January 2003 and the Call Centre person told him that he should have been paid since he had been a pension recipient.  He lodged the form on 16 January 2003.  Initially he was granted Rent Assistance from 16 January 2003, but once the contact with the Call Centre was confirmed he was back paid to 3 January 2003. 

17.     The applicant continues to live on his own.  He said that he pays rent to his mother either by giving it to her directly, or passing it through his grandparents who live nearby and assist him.  He is currently being investigated for chronic fatigue syndrome, and his mother takes him to the doctor once a month, so sometimes he gives her the rent on that occasion or at other times if he sees her more regularly. 

18.     The applicant confirmed that the call he made in September 2000 was about compliance and not specifically about Rent Assistance.

19.     A number of exhibits were tendered by the applicant.  In Exhibit A3, which was prepared in the context of a CDDA recommendation, it is confirmed that the applicant did make contact with Centrelink via the Bendigo Call Centre on 14 September 2000, and that the Call Centre operator reviewed previous recorded documents on his file during this conversation.  The screens containing information about accommodation and rate of payment (including Rent Assistance) were not accessed during this discussion.  Further examination of electronic documentation of other contacts made in September 2000 show no reference to Rent Assistance being discussed.

20.     The applicant has produced, in the context of his CDDA claim, a Telstra report that confirms his contact with the Department on 5 February 2002 and on 26 February 2002.  However, on his own evidence he confirms that the contacts related to obtaining assistance to fill in his DSP form, and that when it came to the section regarding Rent Assistance he volunteered that he was not eligible.  Centrelink records confirm that Ms Collins did not access the applicant’s records at all on 5 February 2002.

consideration

21. Section 110(1) of the Act provides that the date of effect of a favourable decision such as a rate increase is the day on which the person informed the Department of that change of circumstances or the day on which the event or change occurred, whichever is the later.

22.     The Tribunal finds that the event in question occurred when the applicant’s mother married and moved out of the premises, leaving him to pay rent to her in September 2000.  The Tribunal notes the lack of independent verification that rent was being paid at that time. However, there is no reason to disbelieve the applicant on this point.  He presented as a credible witness.

23.     The Tribunal finds that because of the applicant’s own incorrect understanding of his eligibility, or lack of it, he did not inform the Department or make any claim as to change of circumstances that would allow the Department to make a decision in his favour prior to January 2003. 

24.     The applicant himself recalls making a phone call in September 2000 to the Department where he “mentioned” that he was paying rent.  There is no way to independently verify this phone call and no positive information was recorded on the Centrelink file of the applicant.  The applicant’s own evidence to the SSAT was that this call was about compliance, and not Rent Assistance.

25.     In February 2002 the applicant, in a contact with the Department, says that he mentioned his rent payments, but volunteered that he was not eligible as he was paying rent to a parent.  This contact was in the context of him completing a DSP form, and not an application for Rent Assistance.  This is confirmed by the fact that the customer service officer in question did not access that part of the applicant’s record that relates to Rent Assistance.

26.     In January 2003 the applicant informed the Department of his rental position, and made a claim for Rent Assistance, including lodging the appropriate form.  It was only at that point that sufficient information was provided that the Department was able to make a decision with respect to Rent Assistance.  It was also only at that point that they were asked to make a decision with respect to Rent Assistance by the applicant.

27. The Tribunal is satisfied that although the applicant may have mentioned in the context of other discussions with the Department that he was paying rent, he did not formally provide information about his change of circumstances until January 2003. Prior to January 2003 the Department was not provided with the information that it would require to make a determination that Rent Assistance was payable to the applicant pursuant to s 1064-D1 of the Social Security Act 1991. 

28. The Tribunal is not satisfied that the mere passing reference to paying rent in earlier discussions with the Department is sufficient to comply with what s 110(1)(a) requires. The Tribunal would also want independent verification of these conversations if any weight at all was to be attached to them. No independent verification exists.

29.     At no stage prior to January 2003 was the Department provided with the specific information that was required to enable it to make a determination with respect to Rent Assistance.  The applicant’s own misunderstanding as to his entitlement is regrettable, but resulted in him not providing information such that a determination could be made until January 2003.

30.     In the circumstances, the Tribunal affirms the decision under review, and this means that the application is unsuccessful.

I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member L Hastwell

Signed:         .............J Coulthard .......................................
  Associate

Date of Hearing  8 February 2005
Date of Decision  5 April 2005
Counsel for the Applicant         In person
Solicitor for the Applicant          -
Counsel for the Respondent     Ms A Pugsley
Solicitor for the Respondent     Centrelink Service Recovery Team