Editors --- "Rent assistance: arrears, adequacy of notice" [2007] SocSecRpr 22; (2007) 9(2) Social Security Reporter, Article 9

• CAMERON and SECRETARY TO THE DFaCS
• Background
• Legislation
• The issues
• Notice of decision
• Findings

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Rent assistance: arrears, adequacy of notice

CAMERON and SECRETARY TO THE DFaCS

(2007/1039)

Decided: 1st February 2007 by R. Hunt

Background

In May 1999 Cameron and his wife moved into residential accommodation where they lived during the period under review. In December 1999, Cameron applied for partner allowance, advising Centrelink that he had previously received newstart allowance. On that form he also provided his rental details.

A decision was made to pay partner allowance, but no rent assistance component was included. At a series of review meetings between 1999 and 2005, there were discussions regarding rent assistance. Cameron explained he was unable to obtain rent receipts from the landlady, nor was he able to obtain her signature on a Centrelink form verifying that she was his landlady and he her tenant. On each occasion, he was advised he was not eligible for rent assistance without proof of tenancy documentation.

Rent assistance was paid from 6 September 2005, following an interview some two weeks after Cameron provided a completedSU336(M) form headed, ‘rent declaration for use in extreme circumstances only’. The form does not require the landlord’s certification.

It appears the extreme circumstances form was not suggested at the earlier interviews. Consequently, at the same time as he lodged the SU336(M), Cameron requested consideration of payment of arrears of rent assistance, backdated to the original application in 1999. This request was rejected.

Asking in September 2005 for review by an ARO, Cameron was advised that the decision was correct. On application to the SSAT, payment was backdated to 14 June 2005, the date Cameron provided copies of money orders made out to the landlady together with her signed notice to vacate.

Legislation

Section 23(1) of the Social Security Act 1991 (the Act) defines ‘social security payment’ as a social security pension or benefit or allowance or;

(e)any other kind of payment under Chapter 2 of this Act.

Section 109 of the Social Security (Administration) Act 1999 (the Administration Act), headed, ‘Date of effect of favourable determination resulting from review’ provides that where a request for review takes place more than thirteen weeks after notice of a 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.

If no notice of decision is given,s.109(3) provides that ‘the favourable determination takes effect on the day on which the determination embodying the original decision took effect’.

A person’s rate of partner allowance is worked out using the Benefit Rate Calculator B at the end of s.1068 of the Act. Section 1068 contains a module for calculating the allowance. The calculation of entitlement may have a number of components including partner allowance and rent assistance.

The issues

The Secretary argued that rent assistance is not a social security payment and therefore not reviewable except as part of a review of the social security payment to which it was an add-on. Cameron’s rate of partner payment was affected by possible addition of rental assistance and Centrelink advised him of its calculation of the partner allowance in various letters sent to him from December 1999 onwards.

The issue addressed by the Tribunal was whether Mr Cameron was given adequate notice of the decision not to pay him rent assistance, such that s.109(2) precluded him from claiming any earlier date of application of a favourable determination than the date of the application for review. This date was accepted by the Secretary as being the date found by the SSAT, 14 June 2005.

Notice of decision

The Tribunal followed Justice Cooper’s determination in Secretary to the DFaCS and Laurent [2003] FCA 1017, that rent assistance is not a separate social security payment to which the usual notice obligations apply for the purposes of s.109 of the Administration Act. In that case Laurent’s payment of newstart allowance was cancelled due to an administrative error. On restoration Laurent sought arrears back to the date of cancellation. He was sent a letter on 20 September 1999 by Centrelink setting out the amount of his newstart allowance and stating that ‘his normal payment from payday 12 October 1999 would be $392.70 which included rent assistance of $76’. Further notices, however, gave only the rate of newstart allowance payable and did not refer to rent assistance. Cooper J held that Laurent had been given sufficient notice of the decision about his social security payment in the later letters sent to him. As he did not seek review of the decision about his rate of newstart allowance within 13 weeks of those letters,s.109(2) applied to preclude payment of the arrears sought.

The Tribunal also noted the decision of Secretary to the DFaCS vRogers [2000] FCA 1447, where Cooper J held that:

the requirement that a notice be intelligible does not introduce a requirement that reasons for the decision communicated by it be given...

[However]...I would not limit the content of the notice to a communication to the benefit recipient that a decision has been made to pay him orher a particular allowance at a particular rate. Although that may well be the most common decision, I do not read, for the reasons I have given, the words ‘a decision ...is made in relation to a sole parent pension’ as being limited to a decision to pay the pension at a particular rate. Rather, I construe the phrase as meaning any decision capable of review under section 1240 of the Act which, upon review, leads to a favourable determination under section 293.

In Cameron’s case, the Tribunal decided there was a difference between a decision to cancel a payment (as in Laurent’scase) and the lack of consideration of a right to an entitlement. It said:

There is no requirement to provide reasons for non-payment of rent assistance but that is not the issue in the present case nor was it in the Garforth-Myer case. I agree with Senior Member Kelly that there is an important distinction between not giving notice of a decision not to pay a particular allowance and the non-provision of reasons for making such a decision.

As Cooper J explained inRogers, the words ‘a decision ...is made in relation to a sole parent pension’ is not limited to a decision to pay the pension at a particular rate. In the same way, a decision made not to include a particular component, here rent assistance, as a component of the partner allowance, is an additional or different decision from one made to pay an allowance at a particular rate. In Mr Cameron’s case, he was notified of a rate but not of the decision not to add rent assistance in his partner allowance.

(Reasons, paras. 37, 38)

Findings

The Tribunal found as a fact that the date of the decision for partner allowance was 15 December 1999. The AAT also found as fact that no decision had been made regarding Cameron’s entitlement to rent assistance and that no notice regarding the decision to not pay rent assistance had been provided in the respondent’s 1999 notice letter. The Tribunal found that a letter sent by the respondent in 2005 was the first notification regarding rent assistance. Accordingly the 2005 request for review was not caught by the limitations ins.109(2) of the Administration Act, rather s.109(3) applied. As Cameron had no notice of the original decision not to pay him rent assistance made on 15 December 1999, and he applied to the Secretary for review which resulted in a favourable determination in 2005, the determination took effect on 15 December 1999.

The Tribunal also considered that section 110(1) of the Administration Act would have applied to found entitlement to rent assistance on the advice of change of circumstances included in the 1999 claim form, but that this was not necessary as the Tribunal had already found in his favour.

[J.S.]

Note: The Secretary to the DFaCS lodged an appeal with the Federal Court in this matter – reported in this issue at p. 13