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

[2021] AATA 4291

Vazquez and Secretary, Department of Social Services (Social services second review) [2021] AATA 4291 (19 November 2021)

Division:GENERAL DIVISION

File Number(s):      2021/0070

Re:Mercedes Vazquez

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member

Date:19 November 2021

Place:Sydney

The Tribunal affirms the decision under review.

.............................[SGD]....................................

Dr L Bygrave, Member

CATCHWORDS

SOCIAL SECURITY – rent assistance – increase of rent – date of effect of favourable determination – decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth) pt 3.7 and s 1070C

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

REASONS FOR DECISION

Dr L Bygrave, Member

19 November 2021

INTRODUCTION

1. The applicant, Mrs Mercedes Vazquez, is in receipt of age pension and rent assistance.

2. On 7 January 2021, Mrs Vazquez made an application to the General Division of the Administrative Appeals Tribunal (the Tribunal) to review whether she is entitled to be paid an increased amount of rent assistance prior to 2 October 2019.

3. The matter was heard by the Tribunal in Sydney on 15 November 2021. Mrs Vazquez attended the hearing and provided oral evidence by teleconference with the support of her son, Mr Sebastian Perez, and the assistance of an interpreter of the French language.

   RELEVANT LEGISLATION

4. The legislation relevant to this matter is the Social Security Act 1991 (Cth) (the Act) and the Social Security (Administration) Act 1999 (Cth) (the Administration Act).

5. Part 3.7 of the Act outlines the statutory provisions for rent assistance: Division 2 sets out the qualification criteria for rent assistance, which include that a person satisfies the ‘common requirements’ in section 1070C. There is no dispute that Mrs Vazquez, during all relevant periods, meets the qualification criteria to receive rent assistance.

6. Section 110 of the Administration Act states the date of effect of a favourable determination: subsection 110(1) relevantly provides:

   Date of effect of favourable determination

   (1) … 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. [emphasis added]

   CONSIDERATION

7. Based on the undisputed evidence before the Tribunal, I make the following findings of fact:

   ·Mrs Vazquez has received age pension since 7 April 2018.

   ·On 29 May 2018, Mrs Vazquez provided a rent certificate to Centrelink that declared her share of rent was ‘$210.08 per fortnight’.[1] This rent certificate also stated that her son was paying a share of the rent.

   ·From 15 November 2018, Mrs Vazquez was paid rent assistance on the basis that her share of rent was ‘$106.06’ per week.[2]

   ·On 23 April 2019, Community Housing Ltd (CHL) wrote to Mrs Vazquez to advise that her household income had been reviewed and, effective from 15 May 2019, her rent will be ‘$351.62’ per fortnight.[3]

   ·Mrs Vazquez provided a copy of the CHL letter to a Centrelink office on 2 October 2019.

   ·On 2 October 2019, Centrelink wrote to Mrs Vazquez to advise she will receive more rent assistance because she is ‘no longer in shared accommodation’.[4]

   [1] Exhibit T-T4.

   [2] Exhibit R1.

   [3] Exhibit T-T5.

   [4] Exhibit T-T6.

8. At the Tribunal hearing, Mrs Vazquez provided oral evidence that she attended a Centrelink office prior to 2 October 2019 to advise about her increase in rent but the information was not recorded. Mrs Vazquez was unable to provide any details, such as the date or period of time, when she attended the Centrelink office. She also later said she first told Centrelink about her rent increase on 2 October 2019 because she was unsure whether her son was living with her or had moved out.

9. Centrelink records show the following contact between Mrs Vazquez and Centrelink:

   ·8 April 2019: Mrs Vazquez attended a Centrelink office to obtain an income statement.[5]

   ·30 and 31 May 2019: Mrs Vazquez contacted Centrelink by telephone and spoke about issues that were not related to Centrelink or rent/accommodation matters.[6]

   ·2 October 2019: Mrs Vazquez attended a Centrelink office and provided a copy of the CHL letter dated 23 April 2019.[7]

   ·3 October 2019: Mrs Vazquez requested a review of the decision to pay her increased rent assistance from 2 October 2019 as she wanted the rent assistance backdated to 15 May 2019.[8]

   ·30 July 2020: Mrs Vazquez advised the authorised review officer at Centrelink that she delayed informing Centrelink about the change in her rent because she was not sure whether or not her son was living with her.[9]

   [5] Exhibit R2.

   [6] Exhibit T-T17, page 100.

   [7] Exhibit T-T5 and T-T17, page 101.

   [8] Exhibit T-T17, pages 102-103.

   [9] Exhibit T-T13, page 57.

10. Mrs Vazquez’s son, Mr Perez, gave oral evidence to the Tribunal. He explained that he had permanently moved out from sharing accommodation with Mrs Vazquez on 30 September 2018. He said that he subsequently contacted CHL for the relevant residency agreement and reminded Mrs Vazquez on a daily basis that she needed to inform Centrelink about the change in her rent and accommodation. He said he also attended a Centrelink office with Mrs Vazquez in early 2019; however, there is no record of any relevant documents being provided to Centrelink at this time.

11. I am satisfied there is no evidence before the Tribunal to show Mrs Vazquez provided the CHL letter dated 23 April 2019 (containing relevant information about her change from shared accommodation and increase in rent) to Centrelink prior to 2 October 2020. In making this decision, I note that I have placed limited weight on the oral evidence of Mrs Vazquez as her statements were vague, contrary and unsubstantiated by documentation.

    CONCLUSION

12. In accordance with subsection 110(1) of the Administration Act, I am satisfied an increase in the amount of rent paid by Mrs Vazquez occurred on 15 May 2019 (‘the day on which the event or change occurred’) and Mrs Vazquez informed Centrelink about this increase in rent on 2 October 2019 (‘the day on which the person so informed the Department’) when she provided Centrelink with the CHL letter dated 23 April 2019. As 2 October 2019 is the ‘later’ of these days, I find the date of effect for Mrs Vazquez to be paid an increase in rent assistance (the ‘favourable determination’) is 2 October 2019.

    DECISION

13. The Tribunal affirms the decision under review.

I certify that the preceding 13 (thirteen) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

...............................[SGD]....................................

Associate

Dated: 19 November 2021

Date(s) of hearing:	15 November 2021
Applicant:	In person
Solicitors for the Respondent:	Ms Lyn James, Services Australia