Yan and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2011] AATA 715

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 715

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2011/0498

GENERAL ADMINISTRATIVE DIVISION		)
Re		GUOPING YAN

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Brigadier Conrad Ermert (Retd), Member

Date8 September 2011

PlaceMelbourne

DecisionFor reasons given orally at the conclusion of the hearing, the Tribunal affirms the decision under review.

…………[signed]……………

Member

RENTAL ASSISTANCE – whether enquiry is application for review – application made more than 52 weeks after being given notice – date of effect – whether special circumstances – decision affirmed

Administrative Appeals Tribunal Act 1975 s 37

A New Tax System (Family Assistance)(Administration) Act 1999 s 22, s 109E

Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Lamotte [2009] AATA 978

Secretary, Department of Families, Community Services and Indigenous Affairs and Shaw [2007] AATA 1691

REASONS FOR DECISION

14 October 2011  Brigadier Conrad Ermert (Retd), Member

INTRODUCTION

1.      These reasons for decision are substantially the same as those given orally at the hearing on 8 September 2011. The material under the headings INTRODUCTION, THE HEARING and THE EVIDENCE has been added for completeness.

2.      Mr Yan, the applicant in this case, separated from his wife on 1 April 2005.  Before that, his wife was receiving family tax benefits for their son.  On 6 April 2005 Mr Yan contacted Centrelink, the agency acting on behalf of the respondent, to claim the family tax benefit.  Centrelink approved Mr Yan’s application, with effect from 1 April 2005. 

3.      

Mr Yan received notices about his family tax benefits on 5 May, 9 May and 3 November 2005, each of which contained conflicting statements about his rent assistance.  On 18 December 2007 Mr Yan contacted Centrelink, enquiring about his rent assistance.  A Centrelink officer told him that rent assistance had been paid with the family tax benefit and that he was receiving his full entitlement.  On 6 October 2010, prompted by discussions with others, Mr Yan contacted Centrelink to question the amount of rent assistance he was receiving.  He provided rent certificates and a lease agreement to Centrelink.  Centrelink officers determined that Mr Yan had not been paid his rent assistance entitlements and arranged for arrears to be paid from

1 July 2009.  Mr Yan requested a review of Centrelink’s decision not to pay arrears from 1 April 2005 to 30 June 2009.  A Centrelink Authorised Review Officer decided that there was no provision in the relevant legislation to pay arrears earlier than

1 July 2009 and affirmed the original decision.  That decision was affirmed, in turn, by the Social Security Appeals Tribunal (SSAT) on 13 January 2011.  The present matter is an application for review of the SSAT decision.

THE HEARING

4. Mr Yan appeared in person and gave oral evidence, assisted by an interpreter in the Mandarin language. Mr de Uray, a Centrelink advocate, represented the respondent. Mr Yan tendered a copy of a Centrelink file note of his telephone contact on 18 December 2007 (Exhibit A1), a notice from the Family Assistance Office dated 26 October 2007 (Exhibit A2) and his Statement of Facts and Contentions (Exhibit A3). The Tribunal also had before it the documents provided by the respondent in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the T documents) and the respondent’s Statement of Facts and Contentions.

THE ISSUE

5.      The issue to be determined is whether Mr Yan can be paid arrears of rent assistance from 1 April 2005 to 30 June 2009. 

THE EVIDENCE

6.      In his oral evidence, Mr Yan asserted that the information provided by Centrelink in the notices of 5 May, 9 May and 3 November 2005 was incorrect but he did not know it was incorrect at the time.  As he did not know the information was incorrect, he had no reason to request a reconsideration of his situation.  Mr Yan said that, at the time, he accepted what he was told by Centrelink.

7.      Mr Yan referred to the section of the notice of 5 May 2005 which stated, [w]e cannot pay you Rent Assistance because you are not entitled to more than the base rate of Family Tax Benefit Part A.  He then compared that with the statement from the notice of 9 May 2005 that [w]e cannot continue paying you Rent Assistance.  Mr Yan said that he considered the notice of 9 May 2005 to be an obvious mistake. 

8.      Mr Yan referred also to the notice of 3 November 2005 which stated [i]f you were paying private rent during the last financial year (ending 30 June 2005) you may have an entitlement to Rent Assistance.  He said that he disregarded this notice as the notice of 5 May 2005 had said that he was not entitled to rent assistance. 

9.      Mr Yan said that he had not changed his address throughout the entire period. 

10.     

Mr De Uray asked Mr Yan was  about his telephone call to Centrelink on

18 December 2007.  Mr Yan gave this account of the conversation:

Yan – What about my rent assistance?

Centrelink – You have already got it.  It has been paid in your family tax benefit.

Yan – Can you have a look for me please.  Have I got all entitlements I deserve?

Centrelink – You have got everything.  Is there anything else?

Yan – I want to inform you I am going to China tomorrow.

Centrelink – Fine.  That is noted.  You will need to report when you come back.  You can only leave Australia for three months.

11.     

Mr de Uray asked Mr Yan about his beliefs regarding his entitlements at the time of the telephone call.  Mr Yan said that before the call, he thought he was not entitled to rent assistance because of the 5 May 2005 notice.  After the call, he believed he was receiving rent assistance.  Mr Yan said that, in the period between

3 November 2005 and 18 December 2007, his payments changed and he had wanted to query what is happening now.  When Mr De Uray asked why he was not surprised at being told that Centrelink was not paying rent assistance with his family tax benefits, Mr Yan said that he trusted Centrelink.  He was happy that he was receiving everything, so no worries. 

12.     Mr Yan said he contacted Centrelink about his rent assistance in October 2010, after learning from friends in similar circumstances that they were receiving more benefits than he was.  Mr Yan said that he was upset when he was told that he had never been paid rent assistance.  He said he provided Centrelink with rent certificates and his original lease agreement on 13 October 2010.  As a result, Centrelink paid rent assistance to Mr Yan from 1 July 2009.  Mr Yan said that the Centrelink service officer told him that she did not have the power under the legislation to pay from an earlier date.  The Centrelink officer lodged an application to review her decision on Mr Yan’s behalf. 

13.     When the Tribunal asked Mr Yan what he did about the obvious mistake he saw in the notice of 9 May 2005, Mr Yan said that he disregarded it. 

14.     

Mr Yan submitted that Centrelink made a mistake in notifying him on 5 May 2005 that he was not entitled to more than the base rate of Family Tax Benefit

Part A.  He said that his acceptance of that statement caused him to make the wrong responses thereafter.  Mr Yan contended that this mistake caused his loss of rent assistance from 1 April 2005 to 30 June 2009 and that it was reasonable for him to seek financial compensation from Centrelink.

15.     Mr de Uray contended that the matter was not about Mr Yan’s entitlement to rent assistance.  It was about Mr Yan’s entitlement to arrears of rent assistance.  He submitted that Mr Yan’s first appeal over his rent assistance was contained in his telephone call of 6 October 2010.  Mr de Uray said that Mr Yan did not respond to the notices of 5 May, 9 May and 3 November 2005. Mr de Uray said that Mr Yan had disregarded the notices and had not exercised his appeal rights. 

16.     In regard to the telephone call of 18 December 2007, Mr de Uray submitted that Mr Yan raised the issue of rent assistance but he did not lodge an appeal.  Mr de Uray urged the Tribunal to question the reliability of Mr Yan’s account of the call and to prefer the contemporaneous file notes.  Mr de Uray submitted that Mr Yan did not ask a specific question about rent assistance during the telephone call.  He noted that there was no mention of rent assistance in the file note.  He referred the Tribunal to the reasons for decision in the matter of Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Lamotte [2009] AATA 978. Mr de Uray also pointed out that Mr Yan did not follow up the issue of rent assistance for three years after the telephone call.

17.     Mr de Uray submitted further that there were no special circumstances that prevented Mr Yan from making an application for review of the original decision.  He said that although there were errors in the advice provided in the notices, they still contained the offers of appeal rights.  Mr de Uray submitted that Mr Yan had disregarded the notices and did not appeal until 6 October 2010.

18.     

In response, Mr Yan reiterated that he had no reason to make an appeal because, after receiving the first notice, he believed that he was not entitled to rent assistance.  He also contended that his recollections of the telephone call of

18 December 2007 were sound.

CONSIDERATION

19.     The relevant legislation is contained in A New Tax System (Family Assistance)(Administration) Act 1999 (the Administration Act).

20.     Pursuant to section 22 of the Administration Act, the respondent was required to give the applicant notice of the determination that Centrelink made about his entitlements to be paid family tax benefits.  Section 22 also imposes a requirement to notify the applicant of his right to apply for a review of the determination.  There is no disagreement between the parties that the notices of 5 May, 9 May and 3 November 2005 constituted notices in accordance with the Administration Act.  Mr Yan also acknowledged that he had received and read the letters.

21.     Section 109E of the Administration Act provides for the determination of the date of effect following a review of the original decision:

Date of effect of certain decisions relating to payment of family tax benefit by instalment

(1)If:

(a)   a person applies under section 109A for review of a decision (the original decision) relating to the payment to the person of family tax benefit by instalment; and

(b)   the application is made more than 52 weeks after the person was given notice of the original decision; and

(c)    the Secretary or an authorised review officer decides, under subsection 109A(2), to vary the original decision ...

...

the date of effect of the review decision is:

(e)   unless paragraph (f) applies – the date that would give full effect to the review decision; or

(f)     if the date referred to in paragraph (e) is earlier than the first day of the income year before the income year in which the application was made – that first day.

22.     The first issue for the Tribunal to decide is the date of the first application for review of the original decision.  The first possible date is 18 December 2007 when Mr Yan made a telephone call to Centrelink.  Mr Yan gave a detailed account of the telephone call, which the Tribunal accepts as a reasonable account.  Mr Yan said the purpose of his call was to enquire about his rent assistance.  He asked whether he was receiving his entitlements and was satisfied when told that his rent assistance was being paid with his family tax benefits and that he was receiving his full entitlement. 

23.     Mr de Uray submitted that this conversation did not constitute an application for a review of the original decision and referred the Tribunal to Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Lamotte [2009] AATA 978. At paragraph 8 of the reasons for the decision, the Tribunal said:

While it is accepted that social security legislation is beneficial and should be construed generously and keeping in mind difficulties recipients can have with legislative provisions, there must be, at least, some evidence of communication by a person that they do not agree with a decision, are unhappy with the decision or believe it is incorrect.

24.     The Tribunal notes that Mr Yan’s account of the conversation contains no indication that he did not agree with his rent assistance situation, that he was unhappy with the original decision or that he believed it to be incorrect. 

25.     The Tribunal also considered Secretary, Department of Families, Community Services and Indigenous Affairs and Shaw [2007] AATA 1691, where the Tribunal stated at paragraph 53 that, I am satisfied there was no application/review for PPP [parenting payment partnered] requested in Ms Shaw’s letters of late 2005 which were just requesting clarification of her situation.  In this case, the Tribunal considers Mr Yan’s telephone call was also just a request for a clarification of the situation.

26.     Based on these considerations, the Tribunal finds that Mr Yan’s telephone call of 18 December 2007 was not an application for a review of the original decision.

27.     

Mr Yan’s next contact with Centrelink on the issue of rent assistance was on

6 October 2010.  Both parties agree that this contact constituted an appeal for a review of the original decision.  Mr Yan’s call was prompted by advice from friends who were apparently receiving greater benefits than he was.  The Centrelink officer’s record of this call stated that Mr Yan was upset that Centrelink had not assessed rent assistance since 2005, and that he discussed appeal options with the Centrelink officer.  The Tribunal accepts that the telephone call on 6 October 2010 was an application for review of the original decision in accordance with the provisions of section 109E of the Administration Act.  The Tribunal finds accordingly.

28.     As the application for review was made more than 52 weeks after Mr Yan was given notice of the original decision, applying the provisions of subsection 109E(1)(f), the earliest date of effect of the decision to vary the original decision is 1 July 2009.  Thus, 1 July 2009 remains the date of effect unless special circumstances as provided for in subsection (2) apply.  Subsection (2) provides:

(2)   The Secretary may, if he or she is satisfied that there are special circumstances that prevented the applicant from making an application under section 109A for review of the original decision within 52 weeks, determine that subsection (1) applies as if the reference to 52 weeks were a reference to such longer period as the Secretary determines to be appropriate.

29.     Mr Yan submitted that the Tribunal should consider the incorrect information in the notices as special circumstances.  He contended that he would have acted differently had Centrelink not given him incorrect information about his rent assistance. 

30.     

Mr Yan’s evidence was that he noted the errors in the notices of 9 May and

3 November 2005, which he described as obvious mistakes. However, he chose to disregard them.  From this evidence it is clear that Mr Yan could have exercised his appeal rights at those times or at any time thereafter.  He did not do so.  Accordingly, the Tribunal finds that there was nothing to prevent Mr Yan from making an application for review and finds that there are no special circumstances in this case. 

31.     The Tribunal has found that the date of effect for the payment of Mr Yan’s rent assistance is 1 July 2009 and that there are no special circumstances that could result in an earlier date of effect.  Accordingly, the Tribunal finds that Mr Yan’s rent assistance cannot be paid from 1 April 2005 to 30 June 2009.  The Tribunal affirms the decision under review, which means that Mr Yan’s application is unsuccessful.

32.     While the Tribunal can make no other decision under the law, it is clear that Mr Yan was entitled to rent assistance from 1 April 2005 to 30 June 2009.  That he was not paid this rent assistance is due to errors made by officers of Centrelink.  The Tribunal therefore suggests that Mr Yan make an application under the Scheme for Compensation for Detriment caused by Defective Administration. The Tribunal further suggests that the respondent give favourable consideration to any such application.

DECISION

33.     The Tribunal affirms the decision under review.

I certify that the thirty-three [33] preceding paragraphs are a true copy of the reasons for the decision herein of:
Brigadier Conrad Ermert (Retd), Member

Signed:................................[signed]......................................
  Clerk              Y Maker

Date of Hearing & Decision           8 September 2011
Date of Written Reasons                14 October 2011
Advocate for the Applicant             Self-represented

Advocate for the Respondent        Mr Tim de Uray, Centrelink Advocacy Branch