CATCHWORDS
ADMINISTRATIVE LAW - application for extension of time under s 44 of Administrative Appeals Tribunal Act (1975) - review of decision of Social Security Appeals Tribunal - whether applicant entitled to rent assistance when in receipt of unemployment or special benefits or paying Government rent to Housing Commission of New South Wales.
Administrative Appeals Tribunal Act (1975) s 44
Administrative Appeals Tribunal Act (1975) s 43(2A)
Social Security Act (1947) s 112(A)
Social Security & Repatriation (Budget Measures) Amendment Act (No 127 of 1985) s 64
Social Security Act (1991) s 1068-F1(b)
General Steel Industries Inc v Commissioner for Railways
(1964) 112 CLR 125
AWAD SADDI v
SECRETARY, DEPARTMENT OF SOCIAL SECURITY
No. NG 330 of 1995
Tamberlin J
Sydney
6 October 1995
IN THE FEDERAL COURT OF AUSTRALIA)
NEW SOUTH WALES DISTRICT REGISTRY)No. NG 330 of 1995
GENERAL DIVISION )
BETWEEN: AWAD SADDI
Applicant
AND: ADMINISTRATIVE APPEALS
TRIBUNAL
First Respondent
SECRETARY, DEPARTMENT
OF SOCIAL SECURITY
Second Respondent
CORAM: TAMBERLIN J
PLACE: SYDNEY
DATED: 6 OCTOBER 1995
MINUTE OF ORDER
THE COURT ORDERS THAT:
1. The application be dismissed with no order for costs
NOTE: Settlement and entry of orders is dealt with in accordance with Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA)
NEW SOUTH WALES DISTRICT REGISTRY) No. NG 330 of 1995
GENERAL DIVISION )
BETWEEN: AWAD SADDI
Applicant
AND: ADMINISTRATIVE APPEALS
TRIBUNAL
First Respondent
SECRETARY, DEPARTMENT
OF SOCIAL SECURITY
Second Respondent
CORAM: TAMBERLIN J
PLACE: SYDNEY
DATED: 6 OCTOBER 1995
REASONS FOR JUDGMENT
This is an application by Mr Saddi for an extension of time to file a Notice of Appeal under s 44 of the Administrative Appeals Tribunal Act (1975) from a decision of the Administrative Appeals Tribunal made on 9 January 1995. The written reasons for this decision were issued on 26 May 1995 at the request of Mr Saddi.
The relevant statutory provisions are as follows:
"44. (1) A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding.
.....
(2A) An appeal by a person under sub-section (1) or (2) shall be instituted -
(a) not later than the twenty-eighth day after the day on which a document setting out the terms of the decision of the Tribunal is furnished to the person or within such further time as the Federal Court of Australia (whether before or after the expiration of that day) allows; and
(b) in such manner as is prescribed by rules of court made under the Federal Court of Australia Act 1976." (Emphasis added)
The written Reasons for Decision of the Administrative Appeals Tribunal ("AAT") constituted by Dr D J Grimes issued on 26 May 1995, record in the first paragraph:
"1. At the conclusion of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. After service upon the Respondent of a copy of the decision that was in fact made, the Respondent, by its representative and pursuant to Sub-section 43(2A) of the Administrative Appeals Tribunal Act 1975, requested the Tribunal to furnish to the Respondent a statement in writing of the reasons of the Tribunal for its decision."
The application before the AAT was for review of a decision of the Social Security Appeals Tribunal ("SSAT") of 1 September 1994.
Section 43(2A) makes it clear that the AAT is not obliged to give written reasons for its decision but that a party to the proceedings can within 28 days after the day on which a copy of the decision of the AAT is served on that party, request the AAT to furnish a written statement of these reasons. The AAT must then within 21 days after receiving the request furnish to the party a statement of reasons.
In this case the 28 day period for appeal runs from the day on which a document setting out the terms of the decision of the AAT is furnished to the person seeking to appeal.
Attached to the affidavit of Leigh Plater of 11 July 1995 is what is stated to be a true copy of the Decision of the AAT. The Decision bears date 9 January 1995 and states that:
"For the reasons given orally at the hearing, the Tribunal affirms the decision of the Social Security Appeals Tribunal dated 1 September 1994."
The Notice of Motion before me seeking an extension of time was filed by the applicant on 10 May 1995. Also, on that date, a document entitled "Notice of Appeal" was filed with the Court.
The appeal to this Court is only on a question of law.
Background
I take the following outline history of the matter from the Reasons for Decision of the AAT.
"3. Mr Saddi gave evidence that he is from Beirut and arrived in Australia in 1975 as a result of the war in Lebanon. He had been employed as a shop assistant in the Lebanon and in Australia has had short periods of work, both employed and as a self-employed hawker. For the rest of the time he has been on unemployment benefit and Newstart, when that followed unemployment benefit, or special benefit in more recent times. He is at present on disability support pension. There is no contention that he is eligible for disability support pension and has been eligible for the previous benefits that he has received.
4. Evidence has also been presented both in the T documents and at this Tribunal that life has not been easy for Mr Saddi. He suffers anxiety and describes his mind as very busy, preventing him from working. He has had conflicts with members of his family resulting in him leaving the family home in 1982, and has had subsequent legal action which he gave evidence to the Tribunal that he had lost. He blamed the judge and his family members for this situation. In his application and in evidence before the Tribunal he has told of the difficult emotional and financial problems he has faced because of his family and because of his illness, and has asked the Tribunal in fact to make an emotional decision as much as legal decision in settling this case.
5. The basis of Mr Saddi's case as I understand it is that he should have been on sickness benefit in the period 1982 to 1986, in fact from 1975 to 1986, but was unjustly refused this benefit in 1982, 1986 and 1988. If he had received sickness benefit his claim is that he would have received rent assistance from the period 1982 to 1986.
6. In evidence before the Tribunal there is documentation of the 1986 application (Document T36) which was rejected. There is no evidence that Mr Saddi appealed this rejection or of the previous decision to reject him he spoke of in 1982. I note that in 1988 Mr Saddi did in fact appeal to the Social Security Appeal Tribunal against the loss of unemployment benefit at that time which indicates to the Tribunal that at least in 1988 he had knowledge of the appeal system.
7. The Tribunal also notes that in the period 1977 to 1988 efforts were made by the department to assist with training and rehabilitation in attempts to get Mr Saddi back into the workforce on a more full-time basis. Briefly it seems to me that the respondents case is that in the period prior to 1986 under the Social Security Act 1947, rent assistance was not payable to recipients of unemployment benefit or special benefit. At the relevant time Mr Saddi was receiving either unemployment benefit or special benefit and hence did not qualify. The respondent points out that in 1986 and 1982, which was the relevant period, Mr Saddi was refused sickness benefit. We certainly have documentary evidence of the 1986 rejection, but that he made no attempt to appeal those decisions.
8. After 1986, an amendment to the Social Security Act 1947 resulted in rent assistance being paid to social security and special beneficiaries and Mr Saddi received them under section 112A and section 120 of the then legislation.
9. From 1990 to 1993 the respondent asserts, and Mr Saddi agreed, that he was living in accommodation paying government rent to the New South Wales Housing Commission. Under the provisions of both the Social Security Act 1947 and the Social Security Act 1991, government rent was specifically excluded from attracting rent assistance and it continues to do so. In the opinion of the Tribunal, Mr Saddi has expressed understanding of this situation. The fact that he for a period after receiving disability support pension received rent assistance while living in private accommodation and no longer receives rent assistance because he is back in government accommodation and has knowledge that this excludes him from rent assistance is I think further evidence of this understanding."
The AAT affirmed the decision of the SSAT that rent assistance was not available in the period 1982 to 1986 because at that time Mr Saddi was not receiving sickness benefits.
The AAT found that it was not disputed that in the period from 1975 to March 1993 Mr Saddi was the recipient of either unemployment benefits, special benefits or a "Newstart" allowance. Also since 1993 he had been on a disability support pension. During the period March 1990 to March 1993 Mr Saddi was in government accommodation provided by the New South Wales Housing Commission.
Since March 1993 when he was in private rental accommodation he has received rent assistance. At the time of the AAT decision he no longer received rent assistance as he was then back in government accommodation. During 1982 to 1986 Mr Saddi received unemployment benefits or special benefits but was not at any stage, in that period, in receipt of sickness benefits, the receipt of which would have allowed him to be eligible for rental assistance. There was no satisfactory evidence before the AAT that the rejection of his sickness benefit application was improper as he contended.
The AAT therefore came to the view that in relation to the period 1982 to 1986 and the period March 1990 to March 1993 the decision of the SSAT was correct and it affirmed the decision that the applicant was not eligible for rent assistance in those periods.
The Legal Position
Prior to May 1986 when amendments to s 112(A) of the Social Security Act 1947 effected by s 64 of the Social Security and Repatriation (Budget Measures) Amendment Act (No 127 of 1985) came into operation, there was no provision in the Act to pay rent assistance to persons in receipt of unemployment or special benefits. Although Mr Saddi applied for sickness benefits on 28 February 1986, there is no evidence that this application was granted. No appeal was lodged in relation to that application or any rejection of it.
The amendments to s 112(A) of the Act became effective on 1 May 1986 so that from that time rent assistance could be paid to persons receiving unemployment benefits or special benefits. Mr Saddi was paid such benefits up to the time when he went into NSW Housing Commission accommodation in March 1990.
Mr Saddi agreed from the Bar Table that he moved into private rental accommodation in March 1993 and again received rental assistance.
During the period from March 1990 to 1 July 1991, Mr Saddi was not entitled under the Act then in force to receive rent assistance because he was not paying rent for private rental accommodation. Under the 1947 Act as it applied during this period, "rent" was defined in s 3 to exclude "Government rent". "Government rent" in turn was defined to include rent payable to the Housing Commission of NSW. Accordingly, Mr Saddi was not during this period by virtue of the 1947 Act entitled to receive rent assistance.
Under the Social Security Act 1991 which came into effect on 1 July 1991, by s 1068-F1(b) Mr Saddi was entitled to an amount to help cover the cost of rent if he paid or was liable to pay rent (other than Government rent) in respect of that period. In fact during the period from 1 July 1991 to March 1993, Mr Saddi was paying Government rent as defined by the Act, namely rent payable to the Housing Commission of NSW and therefore he was not entitled to rent assistance.
Mr Saddi has made detailed oral submissions with the assistance of an interpreter. He has also furnished me with a document which sets out in detail his written argument on this matter.
I have given consideration to the matters, arguments, and submissions made by Mr Saddi. On the accepted facts, I think it is quite clear that he is not entitled to any rent assistance for the periods in respect of which he claims. This is because of the terms of the legislation. There is simply no power to award any rent assistance. I can see no arguable error of law in the decision appealed from.
Accordingly, it would be futile to grant an extension of time in this matter because the appeal cannot succeed in the light of the legislation. Cf General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 at 129-130.
I note that the respondent does not seek an order for costs in this matter against Mr Saddi. I think this is an appropriate course and I therefore I make no order as to costs.
I certify that this and
the preceding eight (8)
pages are a true copy of the
Reasons for Judgment herein of
his Honour Justice Tamberlin.
Associate:
Date: 6 October 1995
For Applicant: Mr A Saddi appeared in person
Solicitor for Respondent: Australian Government Solicitor
Date of Hearing: 24 August 1995
Date Judgment Delivered: 6 October 1995
