Tuxworth and Secretary, Department of Social Services (Social security) - [2024] ARTA 323

Tuxworth and Secretary, Department of Social Services (Social security) [2024] ARTA 323 (9 December 2024)

Applicant/s: Miss Tuxworth

Respondent: Secretary, Department of Social Services

Chief Executive Centrelink

Tribunal Number: 2024/C189608
Tribunal: Member K Hamilton
Place:Brisbane
Date:9 December 2024

Decision:The Tribunal affirms the decision under review.

CATCHWORDS
SOCIAL SECURITY – rent assistance – change of address and first rent certificate completed and returned – second rent certificate not completed and returned – claim that letter not received – insufficient evidence to conclude that letter not delivered, and deemed to have been received – claim that circumstances had not changed – Centrelink’s ability to request information not limited to change of circumstances – reasonable request and sufficient notice – decision under review affirmed

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been omitted from this decision and replaced with generic information pursuant to subsection 201(1A) of the Social Security (Administration) Act 1999.

Statement of Reasons

BACKGROUND

This matter concerns a decision by Services Australia – Centrelink (Centrelink) to not pay Miss Tuxworth arrears of rent assistance for the period 31 January 2024 to 6 June 2024.
Miss Tuxworth was in receipt of youth allowance (YAL) from January 2021. On 14 August 2023 Miss Tuxworth contacted Centrelink to advise of a change of address.
Centrelink continued to pay Miss Tuxworth rent assistance as a component of her YAL.
On 2 January 2024 Centrelink issued a rent certificate to Miss Tuxworth requesting that Miss Tuxworth complete the rent certificate form and return it to Centrelink by 23 January 2024.
Centrelink ceased paying Miss Tuxworth rent assistance from 31 January 2024 as she had not returned the rent certificate. A statement issued to Miss Tuxworth on the same date showed her regular rate of YAL and did not include any component of rent assistance.
On 24 May 2024 Miss Tuxworth requested internal review of the decision to not pay her rent assistance. On 14 June 2024 a Centrelink authorised review officer (ARO) affirmed the decision to not pay rent assistance from 31 January 2024.
On 8 July 2024 Miss Tuxworth applied to the Administrative Appeals Tribunal (the AAT) for independent review of Centrelink’s decision.
From 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
A hearing was held on 21 November 2024. Miss Tuxworth participated in the hearing by telephone accompanied by her father, [Mr A]. The Tribunal had regard to relevant documents produced by Centrelink, numbered as pages 1–140.
Following the hearing of this matter, the Tribunal requested Centrelink provide further missing relevant material, namely a rent certificate provided by Miss Tuxworth on or around 22 August 2023. The requested document could not be located by Centrelink, however additional potentially documents were provided by Centrelink on 25 November 2024, and numbered by the Tribunal as C1-C11. These documents were provided to Miss Tuxworth and she was afforded an opportunity to provide any submissions or additional material in response. No further submissions or documents were received from Miss Tuxworth.

ISSUES

The statutory provisions relevant to this review are contained in the Social Security Act 1991 (the Act) and the Social Security (Administration) Act 1999 (the Administration Act).
The issues which arise in this case are:
·Was Miss Tuxworth eligible to be paid rent assistance as a component of her YAL?
·What is the date of effect of any decision to increase Miss Tuxworth’s rate of YAL by payment of rent assistance?

CONSIDERATION

Rent assistance is not a separate payment but is an additional amount incorporated into a person’s rate of social security payment if the person is qualified for rent assistance.
The qualification requirements for rent assistance are set out in Part 3.7 of the Act. It is not disputed that Miss Tuxworth satisfied the eligibility requirements for rent assistance in the period from 14 August 2023.
The primary issue to be determined is the correct date of effect for any increase in Miss Tuxworth’s rate of YAL to include a rent assistance component.
Miss Tuxworth told the Tribunal that she had moved into a share house in [Suburb] (ACT) in mid-2023. Centrelink’s records show that Miss Tuxworth contacted Centrelink on 14 August 2023 to advise of a change of address to the [Suburb] address.
Miss Tuxworth said that Centrelink provided her with a hard copy of a rent certificate to complete. She took this document home and had it signed by her landlord, then went back to Centrelink with the completed form. Centrelink’s records show a further attendance by Miss Tuxworth on 22 August 2023. Miss Tuxworth believes this to be the occasion on which she returned her completed rent certificate.
Miss Tuxworth explained to the Tribunal that the [Suburb] address was share accommodation. She was not named on the lease document but had a private rental agreement with the owner and was required to pay a bond to the landlord.
Centrelink was requested to produce a copy of the rent certificate supplied by Miss Tuxworth on or about 22 August 2023. Centrelink was unable to locate this document, however did produce to the Tribunal a copy of a written “room rental agreement” between [B] (as landlord) and Miss Tuxworth (as tenant). This document was provided to Centrelink on 14 August 2023. It confirms that Miss Tuxworth had commenced renting at the [Suburb] address paying $295 rent per week. It notes that a security deposit of $1,180 was required to be paid by 7 July 2023. The document specifies the length of agreement as “6 months (unless terminated prior)” and includes a handwritten notation “can be renew [sic] after”.
On 2 January 2024 Centrelink issued a further rent certificate to Miss Tuxworth, correctly addressed to Miss Tuxworth’s [Suburb] address, requesting that she return the completed rent certificate by 23 January 2024.
Where a document is sent by properly addressed, pre-paid post, a person is deemed to have received the document at the time at which it would have been delivered in the ordinary course of post, unless the contrary is proven: section 29 of the Acts Interpretation Act 1901.
Non-receipt of correspondence is not the same as non-delivery, and in order to prove non-delivery a person must be able to demonstrate that a letter was not delivered to them by providing evidence, for example, of a pattern of undelivered mail, theft or tampering with their mail (see Fancourt v Mercantile Credits Ltd [1983] 154 CLR 87, and Re the Repatriation Commission and JS Gordon, RA Arundel and FW Bell sitting as the Veterans’ Review Board and R Bongioletti [1990] 100 ALR 255).
Miss Tuxworth said that she did not receive this letter and therefore did not return the rent certificate as requested. Miss Tuxworth told the Tribunal that she would have been away in early January 2024 and her room-mates may have collected the letter and disposed of it. Miss Tuxworth confirmed in response to questions from the Tribunal that there had been previous occasions where she did not receive correspondence that had been sent to her, however said that she had not experienced issues with theft of her mail.
[Mr A] submitted that Miss Tuxworth was a young person and people of her generation are not used to receiving paper mail. She did not receive any notifications on the portal (presumably the Centrelink mobile app) advising her that a further rent certificate was required. Miss Tuxworth knew to do the right thing and advise Centrelink of any changes to her circumstances and would have responded had she been aware of Centrelink’s request.
I am satisfied that the letter issued by Centrelink on 2 January 2023 was a valid request for information issued under section 68 of the Administration Act. I am also satisfied that Centrelink’s letter of 2 January 2023 was sent to Miss Tuxworth’s correct address by pre-paid post and is deemed to have been received by her. I am not satisfied that there is sufficient evidence to conclude that this letter was not delivered to Miss Tuxworth’s [Suburb] address, as opposed to it not being received by her for a reason other than non-delivery. Therefore, Miss Tuxworth is deemed to have received Centrelink’s letter dated 2 January 2023 at the time when it would have been delivered in the ordinary course of the post.
Where a person being paid rent assistance is given a notice under section 68 of the Administration Act requesting provision of information or a document relating to their qualification for an amount of rent assistance payable, and the person does not comply with that requirement, Centrelink can determine that the person’s rate of social security payment be reduced: section 81A of the Administration Act.
If a person’s rate of social security payment is reduced pursuant to section 81A and, upon reconsideration, Centrelink is satisfied that the person is being paid at a rate less than they should be, then the Secretary must determine that the rate is to be increased to the rate provided for by the social security law: section 85A of the Administration Act.
The Administration Act, however, provides specific rules governing the date of effect of favourable determinations. A favourable determination includes a determination made under section 85A of the Administration Act.
Section 110 of the Administration Act relevantly provides as follows:
Date of effect of favourable determination
(1)Subject to subsections (1A) to (11A) (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.
Subsections (1A) to (11) of section 110 of the Administration Act do not apply in Miss Tuxworth’s circumstances.
Section 109 of the Administration Act further provides that where a person is given notice of a decision and does not seek review of that decision within 13 weeks, any favourable decision made on review takes effect from the day on which the person requested review.
Miss Tuxworth submitted that her rent assistance should not have been stopped by Centrelink as nothing had changed about her circumstances and she continued to pay rent at the [Suburb] address until May 2024. Miss Tuxworth told the Tribunal that her lease was open-ended with no fixed end date, however Centrelink had incorrectly recorded on its system an end date of 1 January 2024.
Section 68 of the Administration Act does not limit Centrelink’s ability to request information from a person to only when a change of circumstances occurs. Centrelink may request a person provide information or one or more statements about matters that may affect their payment at any time.
Although Miss Tuxworth considered her rental arrangements at the [Suburb] address to be open-ended, the room rental agreement provided by Miss Tuxworth to Centrelink indicates that it was for a term of 6 months. The agreement could of course be extended past this time by agreement, but equally it could be terminated early. I am satisfied that it was reasonable for Centrelink to have requested further confirmation of Miss Tuxworth’s rental arrangements, and in particular whether she was returning to the [Suburb] address and continuing her tenancy in the 2024 academic year.
I find that Miss Tuxworth did not return the rent certificate as requested and therefore Centrelink’s decision to reduce her rate of payment by not paying rent assistance from 31 January 2024 was correct: section 81A of the Administration Act.
Miss Tuxworth says that she left the [Suburb] address when she had to undertake a 6-week unpaid practical placement for her degree in mid-2024. She then commenced renting at her father’s address for the remainder of her degree. She provided a rent certificate to Centrelink on 11 June 2024 and was paid rent assistance from the start of this arrangement, 7 June 2024.
Pursuant to section 110 of the Administration Act, this means that any increase in Miss Tuxworth’s rate of payment to include a rent assistance component can only occur from 11 June 2024. The ARO noted that Miss Tuxworth had been paid rent assistance from 7 June 2024 and determined that decision should not be disturbed. I am satisfied that that is the preferrable decision.
Centrelink’s letter dated 31 January 2024 sets out Miss Tuxworth’s regular rate of payment for YAL and does not include any amount specified to be for rent assistance. This letter is to be contrasted with earlier notices provided to Miss Tuxworth (see for example, the letter issued to Miss Tuxworth on 8 December 2023) which notes her regular rate of payment for YAL and includes the statement “Plus Rent Assistance +123.20”.
[Mr A] submitted that Centrelink’s letter dated 31 January 2024 was merely a “statement” and was not adequate notice of any decision to “cancel” Miss Tuxworth’s rent assistance.
As noted above, rent assistance is not a separate social security payment but rather a component of a person’s rate of payment of their social security payment (such as YAL). In Secretary Department of Families and Community Services v Laurent [2003] FCA 1017, Mr Laurent was in receipt of newstart allowance and received notices from Centrelink advising of the amount he was to receive as his normal payment, which was specified to include a particular amount for rent assistance. Mr Laurent subsequently received a further notice from Centrelink advising that he would receive a lesser figure as his normal payment. That letter did not include any amount specified to be for rent assistance. The Federal Court set aside the decision of the AAT that had found that Mr Laurent did not receive proper notice of a decision to cease paying him rent assistance. The Court found that the decision was a decision to pay a particular rate of newstart allowance, observing:
30. 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.
Sufficient notice of a decision to pay a person at a particular rate is given, for the purposes of the social security law, if a person is advised of their rate of payment. What is required is a statement of the decision (that is, to pay the person at a particular rate) and it is not necessary for the notice to explain the reasons for that decision or include details of the method of calculation of the rate (see Secretary Department of Families and Community Services v Rogers [2000] FCA 1447; and Austin v Secretary Department of Families and Community Services [1999] FCA 938).
In Re Peura andSecretary Department of Families and Community Services [2003] AATA 1123, the AAT summarised what is required for a valid notice as follows:
37. From the reasoning of the Federal Court in both Austin and Rogers I think that the correct approach in considering whether the letters relied upon constitute notice of the relevant decision may be summarised as follows:
·the Tribunal should identify the decision of which notice is to be given;
·the letters should be construed objectively;
·the letters should be intelligible, that is they should inform the recipient of the making of the decision and the content of it;
·where the rate of pension is changed as a result of changed circumstances or the manner in which those circumstances are assessed, merely advising the recipient of the rate of his or her pension only constitutes advice of the effect of the decision; and
·the letters need not advise the reasons for the decision.
I find that Centrelink’s letter dated 31 January 2024, which sets out Miss Tuxworth’s regular rate of payment and does not include any component of rent assistance, amounts to sufficient notice informing her of a decision to pay her a particular rate of YAL that did not include any amount of rent assistance. Miss Tuxworth confirmed that this letter had been received in her myGov account.
Miss Tuxworth did not request review of her rate of payment until – at the earliest – she contacted Centrelink on 24 May 2024 to advise of a change of address. I am satisfied that Miss Tuxworth received appropriate notice of the decision to pay her a rate of YAL that did not include rent assistance, and she therefore cannot be paid arrears of rent assistance for any period earlier than the date on which she requested review: section 109 of the Administration Act. At this time, Miss Tuxworth was no longer renting at the [Suburb] address and had not yet commenced renting at her father’s property. The correct date from which Miss Tuxworth could be paid rent assistance was 11 June 2024, when she provided a completed rent certificate: section 110 of the Administration Act.
This means that Centrelink’s decision to not pay rent assistance to Miss Tuxworth for the period from 31 January 2024 to 6 June 2024 was correct.
As I have reached the same conclusion as the ARO, the decision under review will be affirmed.

DECISION
The decision under review is affirmed.

Date(s) of hearing:	Thursday, 21 November 2024
Representative for the Applicant:	[Mr A]