Warwick Hunter and Secretary, Department of Education, Employment and Workplace Relations
[2013] AATA 244
[2013] AATA 244
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/4998
Re
Warwick Hunter
APPLICANT
And
Secretary, Department of Education, Employment and Workplace Relations
RESPONDENT
DECISION
Tribunal Ms N Isenberg, Senior Member
Date 24 April 2013 Place Sydney The decision under review is affirmed.
.................................[sgd].......................................
Ms N Isenberg, Senior Member
CATCHWORDS
SOCIAL SECURITY - Cancellation of rent assistance for specified period - consideration of whether applicant is entitled to rent assistance for specified period - whether Applicant was given notice of decision to cancel rent assistance - s 237 Social Security (Administration) Act 1999 - Applicant was given notice - late application for review. Decision under review affirmed
LEGISLATION
Social Security (Administration) Act 1999 - ss 109(2), 110(1), 237
CASES
Caspersz and Secretary, Department of Family and Community Services [2003] AATA 1300
Bagh and Secretary, Department of Education, Employment and Workplace Relations [2011] AATA 128
REASONS FOR DECISION
Ms N Isenberg, Senior Member
24 April 2013
DECISION UNDER REVIEW
The decision of the Respondent not to pay Rent Assistance to Mr Hunter from 14 October 2011 until 17 April 2012.
BACKGROUND
Mr Hunter has been paid Newstart Allowance since December 2008. As part of his Newstart Allowance he has been paid rent assistance.
On 15 September 2011, Centrelink wrote to Mr Hunter and asked him to confirm his rent details. The letter stated that if he did not respond to the letter by 13 October 2011, his rent assistance would be stopped. Centrelink did not receive a response.
On 14 October 2011 Centrelink again wrote to Mr Hunter that he would be paid a reduced rate of Newstart Allowance due to the cancellation of his Rent Assistance.
On 17 April 2012, Mr Hunter provided his rent details to Centrelink, and Rent Assistance was paid from that date.
On 18 June 2012, Mr Hunter requested a review of that decision, asking that Rent Assistance arrears be paid to him from 14 October 2011. The decision was affirmed on review and subsequently by the Social Security Appeals Tribunal (SSAT).
ISSUE BEFORE THE TRIBUNAL
Whether Mr Hunter is entitled to Rent Assistance arrears for the period 14 October 2011 to 17 April 2012.
CONSIDERATION
The letters of 15 September and 14 October 2011
From perusal of Centrelink records provided in the T documents, I am satisfied that Centrelink sent a letter to Mr Hunter’s home address on 15 September 2011 asking him to confirm his rent details. The letter stated that if he did not respond to Centrelink by 13 October 2011, his Rent Assistance would be stopped.
I am also satisfied that Centrelink sent a letter to Mr Hunter’s home address on 14 October 2011 advising him of his reduced rate of Newstart Allowance.
Mr Hunter said he did not receive either letter. He said that if he had received them he would have gone to Centrelink straight away, as this is his practice when he receives mail that requires attention. In cross-examination he said he did not know if he had previously received any letters from Centrelink.
He said that at the time he was experiencing problems with his mail and thought that there must have been a new postman. When Mr Hunter was asked when he experienced those problems he said he had complained to Australia Post in September/October 2012. He thought he had also experienced problems a couple of months earlier – in about July/August 2012 – and had complained then too. He relied on a letter from Australia Post, dated 19 October 2012, that it had been unable to locate his missing mail. He agreed that he had sought Australia Post’s assistance only when the consequences of the present matter became apparent.
Section 237 of the Social Security (Administration) Act 1999 (the “Administration Act”) sets out how Centrelink may give notice of its decisions. Included in the ways in which a person may be given a notice is for the notice to be posted to the person at the last address Centrelink has for them. In those circumstances, notice of the decision is taken to have been given to the person at the time at which the notice would be delivered in the ordinary course of the post, unless the contrary is proved.
Centrelink contended that the letter from Australia Post is not sufficient evidence to suggest that either of these important Centrelink letters was not delivered to Mr Hunter. The letter does not indicate for what mail Australia Post was asked to search, although Mr Hunter claimed he had asked Australia Post to look for a letter from Centrelink sent in October 2011. More telling, in my view, was Mr Hunter’s evidence that he was experiencing problems with his mail in July/August and September/October 2012. I clarified with him a number of times that he intended to refer to 2012, that is about the time he sought assistance from Australia Post, and not 2011, which is when the letters which he claims not to have received were sent.
Mr Hunter was also recorded as saying to the SSAT that he had been preoccupied with his health problems at the time of the letters. He told me he was very unwell at the time with Hepatitis C. His treatment also made him very unwell. He had to take medication and attend his doctor weekly for an injection. He told me he contracted the condition in December 2011 from a needle stick injury in the backyard. He agreed his treatment was in 2012. He therefore was not suffering from the condition during the period he was sent the letters.
Mr Hunter was also recorded as saying to the SSAT that he had been preoccupied with legal proceedings at the time of the letters. He told me that in June/July 2011 he had a 4-day hearing, trying to get his children back, and again a couple of months later. He lost the case and is considering appealing. I accept he may well have been pre-occupied with those proceedings. However, that does not mean the letters were not delivered to him.
I find that it has not been proved that notice of the decision was not given to Mr Hunter at the time at which the notice would be delivered in the ordinary course of the post.
Request for Review
The letter of 14 October 2011, that informed Mr Hunter of his reduced rate of Newstart Allowance, also advised that he had 13 weeks in which to ask for a review of the decision and, if he did not do so, any change to his decision could only be made from the date he requested such a review, and the consequence of a late application for review was that he may not receive his full entitlement if the decision were changed.
Mr Hunter told me he only became aware that he was not receiving rental assistance on about 14 April 2012. He said he must have been at Centrelink. I discussed whether he had noticed a decrease in his Centrelink payments in October 2011 when his rental assistance ceased. He said he just gives all his Centrelink money to his landlord so does not know how much he receives, so did not notice he was getting less than previously. When asked what he lives on otherwise if he gives all his money to his landlord, he said that he lives on charity or borrows from others. As it is, his rent is more than what he receives from Centrelink.
Where a notice is given to the person informing the person of a decision and, more than 13 weeks after the notice is given, the person seeks review of the original decision and a 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: s 109(2) of the Administration Act. If a favourable determination is made following a person having advised Centrelink of the occurrence of an event or change of circumstances, the determination takes effect on the day on which the person informed Centrelink, or on the day on which the event or change occurred: s 110(1) of the Administration Act.
An enquiry about the rate of payment may sometimes be characterised as both a request for review and the giving of information about changed circumstances: Caspersz and Secretary, Department of Family and Community Services [2003] AATA 1300
Mr Hunter said he went to Centrelink offices – Blacktown and Parramatta (twice) but was told he was too late to lodge an appeal against the decision. He could not recall when this was or to whom he spoke. Centrelink’s records do not note any enquiry earlier than 17 April 2012, but do record discussions in June 2012 about an application for review. On his own evidence he only found out he was not receiving rental assistance on about 14 April 2011.
Mr Hunter confirmed his rent details with Centrelink on 17 April 2012, but did not request a review of the original decision to cancel his Rent Assistance until 18 June 2012. Applying Caspersz, and accepting that his confirmation of his rent details could be characterised as a request for review, the earlier date of effect is 17 April 2012.
Regardless of the particular circumstances, a claim can only be backdated where a request for review has been made within 13 weeks and that request is ultimately successful. There are no exceptions, nor is there discretion to backdate a claim where a review has not been sought within 13 weeks, even for good reasons: Bagh and Secretary, Department of Education, Employment and Workplace Relations [2011] AATA 128.
Although Mr Hunter has provided reasons – discussed above – for not requesting a review of the decision within 13 weeks of receiving notice of the decision, nor confirming his rent details within the 13 week timeframe specified, the legislation does not provide for any exceptions to this rule, and payments cannot be backdated to 14 October 2011.
For the above reasons Mr Hunter cannot be paid Rent Assistance arrears for the period 14 October 2011 to 17 April 2012.
DECISION
The decision under review is affirmed.
I certify that the preceding 26 (twenty-six) paragraphs are a true copy of the reasons for the decision herein of Ms N Isenburg, Senior Member ..............................[sgd]..........................................
Associate
Dated 24 April 2013
Date(s) of hearing 11 April 2013 Applicant In person Solicitors for the Respondent Kate Martini, Department of Human Services
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