Kaur and Department of Family and Community Services [1999] AATA 12 (14 January 1999)

Last Updated: 29 January 1999

DECISION AND REASONS FOR DECISION [1999] AATA 12

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V98/881

GENERAL ADMINISTRATIVE DIVISION

)

Re

SWARN KAUR

Applicant

And

SECRETARY TO THE DEPARTMENT OF FAMILY & COMMUNITY SERVICES

Respondent

DECISION

Tribunal

Mr J.T.C. Brassil, AM, Member

Date 14 January 1999

Place Melbourne

Decision

The Tribunal affirms the decision under review.

(Sgd.) J.T.C. Brassil, AM

Member

CATCHWORDS

SOCIAL SECURITY - rental allowance - whether rent must be paid to attract a rental allowance - date of operation, if granted, of an application for review in connection with an age pension received more than three months after the notification of the pension rate - deeming that a notification has been received -decision under review affirmed

Social Security Act , 1991 s 76, s 80, ss 1302A(1)

REASONS FOR DECISION

14 January 1999

Mr J.T.C. Brassil, AM, Member

1. This is an appeal for review of a decision of the Social Security Appeals Tribunal (SSAT) made on 28 July 1998 affirming a decision of a Centrelink delegate on 23 April 1998 to increase the rate of the age pension (AP) of the applicant, by variation of rental allowance, from 14 April 1998 and not from an earlier date. The original decision had been affirmed by an authorised review officer on 20 May 1998 prior to being considered by the SSAT.

2. As she was currently overseas the applicant did not attend the hearing on 12 November 1998 but was represented by her son, Shamsher Saini, who was accompanied by his wife to assist with interpretation, if required. The respondent was represented by departmental advocate, Mr David Perdon.

3. The Tribunal admitted into evidence those documents lodged pursuant to s 37 of the Administrative Appeals Act 1975 (`the T documents"). Oral evidence was given by Mr Saini and by Ms Kathleen Murphy, an officer of the Centrelink office at Fountaingate.

FACTS

4. The applicant had returned to Australia from India in March 1997 with her husband and they moved in with their son, Mr Saini, in Hampton Park. Her husband died on 15 April 1997. Another son collected an application form for AP from the Centrelink office at Fountaingate and partly completed it for his mother. The details about board were completed by Mr Saini and his mother signed the application form. This referred to payment of $85 per week (T3). The claim was lodged on 27 April 1997.

5. After reading in April 1998 an issue of Age Pension News, a Centrelink newsletter, the applicant believed that rental allowance was not being paid to her. In a letter signed by her (T19, page 59) on 9 April 1998 the applicant requested payment of rent allowance as she had been paying her son $100 per month from April 1997. She provided rent receipts for the period 1 April 1997 to 31 March 1998, four receipts each for $300 for a particular period of 3 months (T20). These were numbered 50 to 53 and dated on the first day of each period.

6. A letter from the department sent to her on 9 April 1998 informed her that she could not be paid rental allowance as the amount she was paying was too low. The rent threshold for payment of the allowance was then $1861.60 per year.

7. Five days later, on 14 April 1998, her son, Mr Saini, lodged two receipts (T7, page 29) issued to the applicant, each for six months rent of $1200. This was the date on which the application for review together with documentary material, of rent paid above the threshold, was provided to Centrelink. It should be noted that this represented a doubling of the rate of rent claimed to have been paid to her son in the previous year. These receipts were numbered 54 and 55 and were also dated on the first day of the period.

8. Also on 14 April 1998 Mr Saini signed a statement which said (T6, page 28):

"I, my mother's nominee, sent in my mother's rent receipts to Centrelink,

Fountaingate office in early April 1997. I assumed my mother was getting rental

assistance from then onwards."

9. Mr Saini on 5 June 1998 made a further statement (T30, page 75) in writing to Centrelink stating that he had accompanied his mother on 9 April 1998 and had told her to sign the letter although he now said that he did not, at the time, understand it properly. He wished to correct the amount paid by his mother to $50 per week and stated also that the receipt dated 01/03/98 (T31, page 76) for two months (which is numbered 56 and shows the amount of $560) should read $50 per week in rent.

10. He also stated that he understood that his mother was not entitled to rental assistance while she was overseas. His mother had departed to visit relatives on 29 May 1998.

11. The respondent had considered the request and the receipts, accepted that $560 per quarter ($43.08 per week) in rent was being charged to the applicant and decided that rental assistance would be paid. In the event is was not paid from the date of application in April but from an earlier date, 1 March 1998, to 28 May 1998, the day prior to the departure of the applicant. (T33, page 78)

LEGISLATION

12. The legislation relevant to the issues involved in variation of the rate of age pension of the applicant are found in s 76 and in s 80 of the Social Security Act 1991 ("the Act").

Rate increase determination

s 76 If the Secretary is satisfied that the rate at which an age pension is being, or has

been, paid is less than the rate provided for by this Act the Secretary is to determine that the rate is to be increased to the rate specified in the determination.

s 80

Notified decision -- review sought after three months

(3) If:

(a) a decision (in this subsection called the "previous decision") is made in

relation to a person's age pension; and

(b) a notice is given to the person to whom the age pension is payable

advising the person of the making of the previous decision; and

(c) the person applies to the Secretary, under section 1240, more than 3

months after the notice is given for review of the previous decision; and

(d) the favourable decision is made as a result of the application for review;

the determination takes effect on the day on which the person sought the

review.

13. Whether notices sent are received or are deemed to have been received is provided for in s 1302A of the Act and the relevant subsection is:

ss 1302A (1) If notice of a decision under this Act is:

(a) delivered to a person personally; or

(b) left at the address of the place of residence or business of the

person last known to the Secretary; or

(c) sent by pre-paid post to the postal address of the person last

known to the Secretary;

notice of the decision is taken, for the purposes of this Act, to have been given to the person.

ISSUES FOR CONSIDERATION

14. The primary issue is whether the applicant should have been paid rental allowance as part of her age pension payment at any time earlier than 14 April 1998. To determine this the Tribunal must give consideration to whether there was proper verification given to Cenrelink of rental paid or payable and whether the request for review was within the prescribed period after receipt of notification of the rate of pension from Centrelink. If it is decided that the applicant has complied with this requirement it will be necessary to consider whether rental or lodging payments were being paid or, at least, accruing at a rate which would attract payment of rental allowance for any portion of the period prior to 14 April 1998.

EVIDENCE

15. Oral evidence given by Ms Kathleen Murphy, an officer of Centrelink at its Fountaingate office, that there were no records to verify payment of rent or board by the applicant in April 1997 except the notation above her signature (T4, page 17) which included payment of board and lodging of $85 per week. She stated this would have been taken from the applicant's entry to this effect in her application for the age pension (T3). This was transferred to departmental records (T8, page 30). Any documentary evidence was required, under existing procedures, to be noted in the records whether received by post or over the counter.

16. Ms Murphy stated that rent is equivalent to lodgings and when a rate is claimed for board and lodgings it is apportioned in a ratio of 30/70.

17. Mr Saini gave evidence that he had attended the Centrelink office on behalf of his mother and provided a rent receipt of $680 on 25 April 1997. He stated his mother did not receive the letter about the pension in April 1997.

18. He also stated that it had been wrong to say that his mother was paying $100 per month. The correct statement was $50 per week and this was shown in the receipts (T7, page 29). His mother had not been able to pay in the first two months and agreed she did not pay regularly.

19. He responded to questioning by the respondent that he was not sure that he had included on his taxation return any payments made to him by his mother. He stated that from 1 March 1998 his mother was paying $70 per week in accordance with her signed statement (T35, page 80).

SUBMISSIONS

20. Mr Perdon submitted, on behalf of the respondent, that no documentary evidence was submitted in April 1997 either to verify the claim of $85 per week or the later claim of $100 per month. Thus, he submitted, the application for rental assistance could not be granted in April 1997. A proper notice had been sent to the applicant on 9 April 1997 and the applicant had not responded within the prescribed three months. Further, despite the denial that this notification had been received the respondent was entitled to deem that it had been received, pursuant to ss 1302A(1) of the Act. If received, or deemed to have been received, s 80 of the Act would thus preclude payment prior to the date of application, 14 April 1998.

21. He acknowledged that the departmental decision had not been in strict conformity with s 80. He submitted that although payment was made to the applicant from 1 March 1998 it was not the intention of the Department to seek re-payment as this was clearly an administrative error

22. Even though the facts were in disarray as conflicting documentary evidence had been submitted on behalf of the applicant the respondent had conceded there should be rental assistance paid but it could not pay it other than pursuant to the Act.

23. Mr Saini submitted that he had provided the necessary evidence to Centrelink when the original application was made in April 1997 and it should have been on the records of Centrelink. The applicant, his mother, was entitled to be paid rental allowance and should not be denied payment as a result of the mistake made or failure to include his receipts in the records of Centrelink.

CONSIDERATION OF THE ISSUES

24. Although in April 1998 there were various receipts presented, at varying rates and for varying periods, purporting to be evidence that the applicant had paid "rent" or "board and lodging" to her son the Tribunal is not convinced that any payment was ever made by the applicant. As it is not mandatory that payment be actually made before a decision on eligibility for rental allowance, it is sufficient that a debt has been raised in respect to rent (or board and lodging), then it is not necessary for the Tribunal to decide whether the receipts presented were genuine acknowledgments of payments made by the applicant.

25. As the confusion over payments in the period April 1997 to April 1998 will only be significant if it is decided that the applicant was eligible for payment prior to 14 April 1998 it is more important to address this primary issue.

26. The Tribunal is satisfied that there is no documentary evidence available which may have been presented with the application in April 1997, to support the then claim of $85 per week or even the amended claim of some $50 per week. The credibility of the claim by Mr Saini that he did present such evidence at the time was considered by the Tribunal at some length but the Tribunal was not convinced that he had done so.

27. The Tribunal is satisfied that on 9 April 1997 a notification was sent to the applicant which referred to payment of age pension and pharmaceutical allowance but did not mention rental allowance. The Tribunal notes the comment of the SSAT (T2, page 6) which poses the question:

"why does the grant letter of 29(sic) April 1997 not state that rent assistance is not being paid or, for instance, that the breakdown of payment is: age pension $347.80, pharmaceutical allowance $5.40, rent assistance $0.00 ?"

While the Tribunal has not been asked to address this question it is of the view that it would be fairer for applicants if departmental procedures were amended so that a mere omission, as has occurred here, cannot be claimed to be an answer to a request for particular assistance.

28. On the matter of the notification, even though its expression leaves something to be desired, the Tribunal is satisfied that it was received or can be deemed, under the statute, to have been received.

29. Thus, as the applicant did not seek review of payment of rental allowance until 14 April 1998, almost twelve months after receipt of the notification, the Tribunal finds that the respondent is constrained from paying other than from that date. The Tribunal notes the undertaking made on behalf of the respondent that the over-payment from 1 March 1998 to 14 April 1998 will not be recovered from the applicant.

30. As the Tribunal has found that the applicant was not entitled to rental assistance before 14 April 1998 there is no need to come to any conclusion in respect to rental payments allegedly made in the previous twelve months.

CONCLUSION

31. The Tribunal has determined that there is no eligibility for payment of rental allowance prior to 14 April 1998 and thus will affirm the decision under review.

I certify that this and the seven (7) preceding pages are a true copy of the decision and reasons for decision herein of Mr J.T.C. Brassil, AM, Member

Signed: .....................................................................................

Associate

Date of Hearing 12 November 1998

Date of Decision 14 January 1999

Applicant Mr S. Saini

Respondent Mr D. Perdon, Centrelink