Tanner and Secretary, Department of Family and Community Services

[2005] AATA 907

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 907

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2005/42

GENERAL ADMINISTRATIVE DIVISION

Re:         SUZANA TANNER

Applicant

And:       SECRETARY,
  DEPARTMENT OF FAMILY AND

COMMUNITY SERVICES

Respondent

DECISION

Tribunal:       Regina Perton, Member

Date:             19 September 2005

Place:            Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) Regina Perton

Member

SOCIAL SECURITY – arrears of rental assistance – lack of awareness of Centrelink letter – whether backdating possible

Social Security (Administration) Act 1999 s 109(1), 109(2)

Acts Interpretation Act 1901 ss 28A, 29

Freedom of Information Act 1982

REASONS FOR DECISION

19 September 2005  Regina Perton, Member

1.      Mrs Suzana Tanner has been receiving carer payment since 3 August 2000.  In January 2002, she and her husband moved from a home owned by her husband’s brother into a rental property.  Mr and Mrs Tanner notified Centrelink of the move Centrelink administers social security payments for the Department of Family and Community Services.   Centrelink determined that Mrs Tanner was eligible for rent assistance, an additional payment available to recipients of carer payment who are renting in the private market.  On 7 January 2002, Centrelink paid two weeks’ rent assistance and sent Mrs Tanner a form to be completed, to enable payments to continue.  Centrelink did not receive the completed form by the due date and cancelled payment of rent assistance.  On the same day, Centrelink wrote to Mrs Tanner advising her that she had 13 weeks to apply for review of the decision to cancel rent assistance.  Mr and Mrs Tanner did not see the letter or form.   They only became aware that they had missed out on rent assistance after they notified Centrelink in January 2004 of a move to another property which they had purchased.

2.      Mrs Tanner made a claim for arrears of rent assistance for the 23 months between late January 2002 and December 2003.  Centrelink and, subsequently, an authorised review officer, decided that she could not be paid any arrears due to the lateness of her claim.  On 17 December 2004, the Social Security Appeals Tribunal (SSAT) found that Mrs Tanner could be paid for part of the period between January 2002 and December 2003, namely 19 June 2002 to 22 October 2002, 12 March 2003 to 17 June 2003 and 10 September 2003 to 22 December 2003.  

3.      Centrelink conceded that, as a carer renting in the private rental market on the income disclosed, Mrs Tanner appeared to have been eligible for rent assistance during the total 23-month period.  Centrelink also conceded the SSAT’s assessment of the case was appropriate and did not seek to overturn the SSAT’s orders directing payments for part of the period.     However, Centrelink maintained that decision‑makers are limited in how far they can ameliorate the situation due to the timing of Mrs Tanner’s request for review of the cancellation.

4.      The issue before the Tribunal is whether it is able to direct that the applicant be paid rent assistance for the full 23-month period of eligibility.

EVIDENCE

5.      Mr and Mrs Tanner are adamant that they did not receive the letter from Centrelink, dated 7 January 2002, containing the form to be completed for ongoing rent assistance.  They also indicated that they were not aware of Centrelink’s subsequent letter, dated 21 January 2002, informing them of the cancellation of the rent assistance and their review rights. 

6.      Mr Tanner told the Tribunal that Centrelink should have been pro-active in advising his wife of her eligibility for rent assistance when they sent her letters informing her of increases in carer payment.  He pointed out that he and his wife kept Centrelink informed of changes in their address and income and stressed their commitment to supplying the agency with required data.

7.      Mr Sean Meehan, an advocate who represented Centrelink, provided records indicating that letters had been sent to Mrs Tanner on 7 January 2002 and 21 January 2002.   The letters were addressed to Mrs Tanner at the post office box specified by Mr and Mrs Tanner.   Mr and Mrs Tanner confirmed that the address was correct but indicated that they could not understand how the mail had gone missing.  Mr Tanner described the methodical way in which his wife dealt with mail.  There was a lengthy discussion about the computer systems Centrelink and its subcontractors use to record information and despatch mail.    

8.      Prior to the hearing, Mr and Mrs Tanner had sought access to certain documents held by Centrelink pursuant to the Freedom of Information Act 1982. They were provided with the material sought only a few minutes before the hearing.  The Tribunal offered Mr and Mrs Tanner the opportunity to put in further written submissions after the hearing given their brief perusal of the documents.   However, after an extension of time due to illness, Mrs Tanner decided not to submit anything further.

CONSIDERATION OF THE ISSUE

9.      It is not disputed that Mrs Tanner would have qualified for rent assistance between 21 January 2002 and 23 December 2003, had she returned the required document to Centrelink by its due date and/or responded to Centrelink’s invitation to seek review within 13 weeks of cancellation. 

10. In looking at whether payment is available to the applicant to the date of cancellation, the Tribunal is bound by s 109 of the Social Security (Administration) Act 1999 (the Act). Section 109 provides differing outcomes where a favourable decision is made after review, depending on when the person affected by a Centrelink decision sought the review. Section 109 provides that:

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.

109.(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.

11. Centrelink sent a letter to Mrs Tanner on 21 January 2002 advising her of the cancellation of rent assistance, her right of review and the consequences of failing to seek review within 13 weeks. That letter constituted notice of the original decision to cancel the rent assistance. Mr and Mrs Tanner gave evidence that they could not recall receiving the letter. Section 28A and s 29 of the Acts Interpretation Act 1901 directs that an assumption is to be made that if Centrelink sends a notice by prepaid post to the last known address of a person, the person is deemed to have been given the notice.  Notice is deemed to be given even if the intended recipient did not see the letter, as occurred in this case.  Based on Centrelink’s records, the Tribunal is satisfied that Centrelink notified Mrs Tanner of the decision to cancel rent assistance in January 2002.   She did not contact Centrelink about claiming arrears of payment until after her eligibility for the allowance ceased, well after the 13 weeks had expired.   The Tribunal is also satisfied, on the basis of the legislative provisions, that Mrs Tanner was notified that she had to fill in a rent assistance form. 

12.     The SSAT, by looking at increases in carer payment that were made to Mrs Tanner of which she was not notified, was able to find that she was eligible for rent assistance during part of the 23‑month period. Centrelink accepted that approach. The SSAT found that Mrs Tanner had notice of other rate increases and found that the payments cannot be backdated for those periods due to the time limits in s 109 of the Act.

13.     The Tribunal does not have the authority to overrule the legislative requirement that review must be sought within 13 weeks of a decision for a person to be entitled to be paid arrears.  Therefore, the Tribunal has no option but to affirm the decision under review.   

DECISION

14.     The Tribunal affirms the decision under review.

I certify that the fourteen [14] preceding paragraphs are a true copy of the reasons for the decision of:

Regina Perton, Member

(sgd)       Catherine Thomas

Clerk

Date of hearing:   2 May 2005
Date of decision:  19 September 2005
Advocate for applicant:                Self‑represented
Advocate for respondent:            Mr Sean Meehan, Centrelink