Editors --- "Rent assistance arrears: valid notice of decision" [2006] SocSecRpr 12; (2006) 8(2) Social Security Reporter, Article 1

• SECRETARY TO THE DFaCS and GARFORTH-DANKYMEYER
• Background
• The issues
• The law
• Discussion
• Formal decision

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Rent assistance arrears: valid notice of decision

SECRETARY TO THE DFaCS and GARFORTH-DANKYMEYER

Decided: 3rd February 2006 by J. Kelly

Background

Garforth-Dankymeyer began receiving age pension in April2001. She also began receiving rent assistance at this time.

In October 2001,Garforth-Dankymeyer moved house. She arranged with Australia Post to have her mail redirected. She also attended a Centrelink office to advise that she had changed address.

On 25 April 2003 Centrelink wrote to Garforth-Dankymeyer at her old address. The letter was returned to Centrelink marked: ‘Returned to sender not at this address’. Centrelink subsequently cancelled Garforth-Dankymeyer’s age pension. On 21 May 2003,Garforth-Dankymeyer went in to a Centrelink office and again gave them her new address. Her age pension was restored and she was sent a letter dated 21 May 2003 at her new address advising her about her age pension, as follows:

Immediate payment 25/04/2003 to8/05/2003 due on 23/05/2003 $446.84. Payment from9/05/2003 to 22/05/2003 due on 26/05/2003 $386.92. Regular payment from payday 9/06/2003 aged pension $374.84 plus pharmaceutical allowance $5.80.Total $385.64. Information used for calculating your regular payment, annual income $9026.04. Important information, your aged pension will start again from25 April 2003.

The issue of payment of rent assistance was not addressed. It was not until 13 September2004, some sixteen months later, that Garforth-Dankymeyer discovered that her age pension did not include rent assistance.

Garforth-Dankymeyer sought a back payment of rent assistance for the period April 2003 to 13 September 2004. An Authorised Review Officer decided on 12November 2004 that the decision not to backdate rent assistance was correct. Garforth-Dankymeyer appealed to the SSAT and was successful.

The issues

The main issue in this matter was whether section 109(2) of the Social Security (Administration) Act 1999 applied to the decision made on 21 May 2003 such that Garforth-Dankymeyer was excluded from receiving rent assistance from 21 May2003 until she sought review of the decision on 13 September 2004.

The law

Section 109(2) of the Social Security (Administration) Act 1999provides that:

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.

Discussion

The AAT referred to the decision in Secretary, Department of Family and Community Services v Laurent [2003] FCA 1017where it was held that rent assistance is not a discrete sum of money payable under the social security law as a pension, benefit or allowance. The relevant payment in the Laurent decision was newstart allowance. Justice Cooper in that case decided that it was that payment to which section 109(1)(a) of the Social Security (Administration) Act 1999 applied.

The AAT in the current case decided that she was bound to follow the decision in Laurent so that the payment to which section 109 (1)(a) applied was the age pension. The Tribunal then posed the question, ‘was a valid notice of the decision made on 21 May 2003 given?’

The AAT found that no notice had been given to Garforth-Dankymeyer in the letter dated 21 May 2003 that a decision had been made not to pay rent assistance, a component of the age pension, which Garforth-Dankymeyer had previously been receiving. The AAT said:

In my view, applying Cooper J’s observation in Rogers, there was no notice given in the decision of 21 May 2003 that a decision had been made not to pay Rent Assistance, a component of the Age Pension, which MrsGarforth-Dankmeyer had previously been receiving. That was a decision ‘in relation to’ her Social Security payment, Age Pension, within the meaning of section 109(1)(a) of the Administration Act. The letter referred to the amount she would receive as immediate payments, effectively payments in arrears to 25 April 2003 and to the rate of pension in future which included the elements Age Pension and pharmaceutical allowance. There was no mention of Rent Assistance.

I accept Ms Watson’s submission that there was no requirement to provide reasons for the cessation of Rent Assistance, but that is not the issue.

(Reasons, paras. 31-32)

The AAT reached the same conclusion as the SSAT, in principle, but decided that the date of effect had been incorrectly determined by the SSAT.

Formal decision

The decision of the SSAT was set aside and it was decided that Garforth-Dankymeyer was entitled to rent assistance from 25 April 2003 to13 September 2004.

[A.W.]