Malone and Secretary, Department of Social Services (Social services second review) [2018] AATA 4202 (8 November 2018)

Last Updated: 9 November 2018

Malone and Secretary, Department of Social Services (Social services second review) [2018] AATA 4202 (8 November 2018)

Division: GENERAL DIVISION

File Number: 2017/5395

Re: Joanne Malone

APPLICANT

And Secretary, Department of Social Services

RESPONDENT

DECISION

Tribunal: Member G Hallwood

Date: 8 November 2018

Place: Adelaide

The decision under review is affirmed.

..........................[Sgnd]......................................

Member G Hallwood

CATCHWORDS

SOCIAL SECURITY – Entitlement to rent assistance – Notification of decision – Start date – Whether Centrelink required to inform claimant of potential entitlement – Whether arrears should be paid.

LEGISLATION

Social Security Act 1991 (Cth) ss 1067L, 1070B, 1070C

Social Security (Administration) Act 1999 (Cth) s109 (1)

CASES

Austin and Secretary, Department of Family and Community Services (1999) FCA 938

Murphy and Secretary, Families, Housing, Community Services and Indigenous Affairs [2010] AATA 115

Secretary, Department of Family and Community Services v Laurent (2003) FCA 1017

Secretary, Department of Family and Community Services v Rogers [2000] FCA 1447

SECONDARY MATERIALS

Department of Human Services, Claiming Rent Assistance (19 July 2018) <https:// www.humanservices.gov.au/individuals/services/centrelink/rent-assistance/claiming>

REASONS FOR DECISION

Member G Hallwood


8 November 2018

INTRODUCTION

1. The applicant, Ms Malone, seeks to review a decision of the Social Services and Child Support Division of this Tribunal (AAT1) made on 17 August 2017, which affirmed the decision made by an Authorised Review Officer (ARO) on 4 May 2017. The ARO determined that rent assistance was payable to Ms Malone from 10 February 2017. This decision varied Centrelink’s original decision that rent assistance was payable from 4 April 2017.

BACKGROUND

2. Ms Malone lodged a claim for Newstart Allowance on 6 May 2016 following a then recent marriage breakdown. At that time Ms Malone indicated that she was living with relatives. The original claim indicated that Ms Malone was not paying rent.^[1]
3. On 13 September 2016 Ms Malone lodged a claim for Austudy Student payment. This electronic claim submission indicated that Ms Malone had been paying $150 a week in rent from 12 September 2016.^[2]
4. On 3 October 2016 Ms Malone notified Centrelink that she was paying $75 a week in rent and had been paying that amount since 24 September 2016.^[3]
5. Several Centrelink notices were sent to Ms Malone between 17 May 2016 and 8 February 2017.^[4] These notices did not refer to rent assistance payments.
6. Ms Malone provided a Rent Certificate to Centrelink on 4 April 2017 indicating that she was paying rent of $180 a week; that she was not sharing the accommodation; and that she had lived at her then address since 1 July 2016.^[5]
7. On 7 April 2017 Centrelink determined that Ms Malone was entitled to rent assistance from 4 April 2017.
8. Ms Malone requested a review of the decision on 11 April 2017.^[6]
9. On 4 May 2017 an ARO set aside Centrelink’s decision on the basis that Ms Malone had provided the rent certificate within 13 weeks of her latest advice from Centrelink dated 8 February 2017 advising of her payments from 10 February 2017. The ARO determined Ms Malone should be paid rent assistance arrears from 10 February 2017.^[7]
10. On 19 May 2017 Ms Malone applied to the AAT1 for a review of the ARO’s decision. AAT1 affirmed the ARO’s decision on 17 August 2017.^[8]
11. On 7 September 2017 Ms Malone lodged an application to the Administrative Appeals Tribunal General and Other Division (AAT2) seeking a further review of the decision of the ARO and AAT1. Ms Malone attended the AAT2 hearing by videoconference on 13 September 2018.

ISSUES

12. The issues for the Tribunal to determine are as follows:
    • (a) When may Ms Malone have been eligible to claim rent assistance?
    • (b) Was Centrelink required to inform Ms Malone about her potential entitlement to rent assistance?
    • (c) Was Centrelink responsible for calculating Ms Malone’s rent assistance?
    • (d) What information was Centrelink required to provide to Ms Malone about whether she was or was not receiving rent assistance?
    • (e) Are arrears payable to Ms Malone based on the information she provided to Centrelink?

CONSIDERATION

13. Ms Malone has described to the Tribunal an emotionally and financially difficult period of her life. The period included moments when she states she felt forced to prioritise food and shelter over registering and insuring her vehicle. Ms Malone presented genuinely and forthrightly.
14. Ms Malone said that she had informed Centrelink that she was paying rent and the amount of the rent on several occasions during the period between 1 July 2016 and 4 April 2017.
15. The main concern Ms Malone expressed was that when she made her claim, she relied on Centrelink to take the information she provided and determine her full entitlements.
16. Ms Malone put to the Tribunal that she was not sure what her entitlement was and had no understanding of how it had been calculated. Centrelink’s notices to her gave no indication as to whether rent assistance payments had been included in either her Newstart Allowance or later her Austudy Student payments.
17. Ms Malone said that it was not until Centrelink reviewed her payments on 4 April 2017 that she became aware of her eligibility for rent assistance payments. It was only at this time, Ms Malone states, that she became aware she had not received the payments. She indicated that she immediately obtained and submitted a Rent Certificate.

When may Ms Malone have been eligible to claim rent assistance?

18. I accept Ms Malone’s evidence that she was paying rent from 1 July 2016, and that while that rent varied from time to time, she was eligible to apply for rent assistance for much of the period from 1 July 2016.

Was Centrelink required to inform Ms Malone about her potential entitlement to rent assistance?

19. It is Centrelink’s responsibility to provide general advice and information to the public about the availability of income support and social security payments rather than legal rights to payments or rates of payment. This is described succinctly in Murphy and Secretary, Families, Housing, Community Services and Indigenous Affairs [2010] AATA 115 [9]:

Centrelink is not required to advise claimants about their legal rights to any particular social security payment or the rate of payment.

Was the Department responsible to calculate Ms Malone’s rent assistance?

20. Ms Malone stated that she was assisted by representatives of the Department when submitting her claim for social security payments and that the Department was aware she was paying rent.
21. Rent assistance is not a pension or benefit but is a component of the rate of a social security payment.^[9]
22. Ms Malone’s Austudy Claim Submission of 13 September 2016 recorded that she was paying rent of $150 a week.^[10] Her Newstart claim submission of 6 May 2016 recorded that she was not paying rent.^[11]
23. Murphy and Secretary, Families, Housing, Community Services and Indigenous Affairs [2010] AATA 115 [10], points out when Centrelink’s responsibility for the rent assistance calculation starts and ends:

Centrelink is not responsible for informing any member of the public at large that he or she may be entitled to a social security payment. The onus is on persons to make a claim. Only then does Centrelink become responsible for correctly processing that claim.

24. The Centrelink web site related to individuals Claiming Rent Assistance states:

You don’t need to submit a claim for Rent Assistance. We'll check if you're eligible when you claim another payment or move to a new address.^[12]

25. It is evident that Ms Malone correctly advised Centrelink on 13 September 2016, and on other occasions, that she was paying rent. It is also evident that Centrelink erroneously failed to include a rent assistance component in Ms Malone’s Newstart and Austudy payments.

What notice was Centrelink required to provide to Ms Malone about whether she was or was not receiving rent assistance?

26. As rent assistance is not a social security payment, but is a component of a social security payment, the notice required of Centrelink is the rate of the social security payment.
27. Ms Malone correctly points out that it was difficult for her to know either that she was entitled to rent assistance if she was not informed that she was, or whether she was receiving the rent assistance when the notices she received from Centrelink did not break down the calculation to show a rent assistance component.
28. As previously stated, Centrelink is not required to advise claimants about their legal rights to a particular social security payment or the rate of payment. It is left to claimants to make claims. Whether it is difficult or not, making a claim is not a responsibility that could reasonably be transferred to Centrelink.
29. When a person’s claim has been erroneously calculated, there are provisions for the decision to be reviewed. In this case, Ms Malone contends that it was impossible to know whether she was receiving a rent assistance payment because it was not mentioned on her notice, however, this raises the issue of how she knew to contest the decision.
30. Correspondence to Ms Malone from Centrelink titled “Your Austudy” dated 28 September 2016,^[13] stated the amount of Austudy payment, plus the Energy Supplement, less repayments and fines. The notice went on to offer a range of information important to Ms Malone including:

If you do not agree with a decision we have made contact us so we can check the details and explain the decision.

Contact us and ask for a review of the decision. We will change it if it is wrong.

Contact the Administrative Appeals Tribunal (AAT) if you do not agree with the review officer’s decision.

If you do not agree with the decision of the AAT you may be able to appeal further. For more information about the AAT, please go to aat.gov.au

All of the above are free of charge.

If you do not agree with a decision we have made, contact us as soon as possible. It is important to ask for a review within 13 weeks of being notified about the decision. If your request is more than 13 weeks after being notified and the decision can be changed, you may only receive your entitlement from the date you requested the review.

31. It is clear from this notice that the 13 week threshold for reviewing decisions under s 109 of the Social Security (Administration) Act 1999 (Cth) (the Act) had been brought to Ms Malone’s attention.
32. The question remaining is whether the notice contained enough information to be considered notice.
33. At AAT1 the decisions of the Federal Court in Secretary, Department of Family and Community Services v Rogers [2000] FCA 1447 (Rogers) and Austin and Secretary, Department of Family and Community Services [1999] FCA 938 were both cited and are both relevant to this case. These cases point out that the Department is not required to detail the reasoning behind its decision. Cooper J in Rogers describes the two elements required to give notice:

...the fact that a decision has been made and the content of the decision. The subsections make no reference to any requirement that the notice contains reasons or sufficient information for the recipient of the notice to understand the main reason for the decision and so be in a position to know whether or not to exercise the person’s right to seek a review. Nor, in my view, do any principles of procedural fairness require that such a requirement be read into [relevant provision].

34. Several letters between 1 July 2016 and 4 April 2017 qualify as notice of Ms Malone’s entitlement. Each of these letters represents reviewable decisions where the reviewable decision was the rate of Ms Malone’s rent assistance.

Are arrears payable to Ms Malone based on the information she provided to the Department?

35. Ms Malone states that during discussions with Centrelink on 4 April 2017 she became aware that she had not been receiving rent assistance for which she qualified. She immediately provided a Rent Certificate and, based on a determination by Centrelink made on the 7 April 2017 to pay rent assistance from 4 April 2016, Ms Malone requested a review.
36. Section 109 of the Act deals with the date on which a favourable decision made upon a review takes effect. It provides:

(1) 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) within 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 determination embodying the original decision took effect.

(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.

(3) If:
(a) a decision (the original decision) is made in relation to a person's social security payment; and
(b) the person is not given notice of the original decision; and
(c) 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 determination embodying the original decision took effect.

37. The series of letters Centrelink sent to Ms Malone including the letter of 8 February 2017 were valid notices of a favourable decision to pay Ms Malone Austudy. There were no other valid notices of favourable decisions within 13 weeks prior to Ms Malone’s provision of a Rent Certificate.
38. The earliest eligible payment date referred to in the letter of 8 February 2017 is 10 February 2017. Both the ARO and AAT1 found that 10 February 2017 is the earliest possible date that Ms Malone was entitled to receive rent assistance payments. The Tribunal accepts that these decisions were correct.

DECISION

39. The decision of the Administrative Appeals Tribunal (Social Services and Child Support Division), dated 17 August 2017 (2017/A110906) is affirmed.

I certify that the preceding 39 (thirty nine) paragraphs are a true copy of the reasons for the decision herein of Member G Hallwood.

......................[Sgnd]....................................
Administrative Assistant Legal

Dated: 8 November 2018

Date of hearing:	13 September 2018
Applicant:	Via videoconference
Advocate for the Respondent:	Mr Oliver Morris
Solicitors for the Respondent:	Department of Human Services

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^[1] Exhibit 1, T9 p 32.

^[2] Exhibit 1, T10 p 38.

^[3] Exhibit 1, T11 p 46.

^[4] Exhibit 1, T12.

^[5] Exhibit 1,T8.

^[6] Exhibit 1, T11 p72.

^[7] Exhibit 1, T3.

^[8] Exhibit 1, T2.

^[9] Secretary, Department of Family and Community Services v Laurent (2003) FCA 1017.

^[10] Exhibit 1, T10 p 38.

^[11] Exhibit 1, T9 p 32.

^[12] Department of Human Services, Claiming Rent Assistance (19 July 2018) <https:// www.humanservices.gov.au/individuals/services/centrelink/rent-assistance/claiming>.

^[13] Exhibit 1, T12 p 190.