Editors --- "Arrears of rent assistance: automatic rate adjustment; deemed notice of decision" [2008] SocSecRpr 3; (2008) 10(1) Social Security Reporter, Article 3

• SECRETARY TO THE DEWR and ROBERTSON
• Background
• Discussion and the law
• Formal decision

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Arrears of rent assistance: automatic rate adjustment; deemed notice of decision

SECRETARY TO THE DEWR and ROBERTSON

(2007/2025)

Decided: 5th November 2007 by M. Carstairs

Background

Robertson was receiving rent assistance in 2006 when she notified Centrelink that her son had moved in and was paying part of the rent.

Centrelink made a decision on 8 March 2006 to reduce her fortnightly payments, because a rent certificate had not been returned. Robertson had 13 weeks if she wished to query this decision. If she left it later than that, and obtained a favourable outcome, she would only be paid from the time that she requested the review.

Robertson did not realise that she had stopped receiving rent assistance until May 2007. She then enquired with Centrelink and later appealed the decision as Centrelink decided that arrears were not payable.

The SSAT reviewed the matter and concluded that the letter sent by Centrelink on 8March 2006 was a proper notice that a decision had been made. Applying Austin v Secretary Department of Family and Community Services [1999] 75 ALD 330,the SSAT said that in general, a clear communication about a person’s rate of payment will be sufficient notice of a decision. It did not matter that the letter of 8 March 2006 made no specific reference to rent assistance, because rent assistance is only a component of the overall payment of the pension or allowance and did not require a separate advice: Secretary Department of Family and Community Services v Laurent [2003] FCA 1017.

However, the SSAT observed that Centrelink had made two other decisions after the one notified in writing on 8 March 2006, being automatic rate increase decisions of 7 September 2006 and 8 March 2007. Robertson had not been sent notices in writing in either instance and if a person is not notified in writing, there is no limit on backdating arrears (s.109(3) of the Social Security (Administration) Act 1999 (the Administration Act)). Therefore the SSAT adopted the date of 7 September 2006 as the earliest date of effect to pay arrears of rent assistance and set aside the decision in those terms.

Discussion and the law

DEWR submitted the date of 7September 2006 was not open to the SSAT because the effect of s.109(7) of the Administration Act was that, where a decision results from an indexation or adjustment, notice is deemed from the date that the adjustment occurred and therefore it could not be said that the rate change that occurred on 7September 2006 was not notified to Robertson. Section 109(7) was inserted into the Administration Act with effect from15 April 2007.

In Robertson’s case she had two such adjustments that were considered by the Tribunal, the first occurred on 7 September 2006 and the second occurred on 8 March 2007.

DEWR argued that s.109(7)applied when the SSAT reviewed this case and the amendment was intended to have effect in such cases. The amending provision at s.54 of the Employment and Workplace Relations Legislation Amendment (Welfare to Work and Vocational Rehabilitation Services) Act 2007 states that where a person has sought a review under s.129 of the Administration Act after the commencement of s.109(7), thens.109(7) applies.

The AAT agreed with DEWR’s argument that this meant that the new deemed notice provisions applied to some rate increase determinations that were made before the new provision came into force on 15 April 2007. This was the clear intention behind the insertion ofs.54. Robertson’s application for review under s.129 of the Administration Act post-dated the commencement of the new provision and the SSAT failed to consider the effect of the new provision.

The AAT noted that the SSAT applied the law correctly in all other respects. DEWR conceded that Robertson was able to take advantage of backdating after the next automatic adjustment that occurred on 8 March 2007 because when she sought review in May 2007, it was within 13 weeks of this decision. This meant that the date of effect of any payment of arrears in this case was 8 March 2007 and not 7 September 2006.

Formal decision

The AAT varied the decision under review so that arrears of rent assistance were payable only from 8 March 2007.

[S.P.]