Banfield and Secretary, Department of Family and Community Services

[2005] AATA 268

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 268

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2004/867

GENERAL ADMINISTRATIVE DIVISION		)
Re		JANE BANFIELD

Applicant

And SECRETARY DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal M Griffin, Member

Date24 March 2005

PlaceSydney

Decision The decision under review is affirmed.

[Sgd] M Griffin   Member

CATCHWORDS

SOCIAL SECURITY - payment of pension bonus - exercise of discretion - non discretionary provision - decision under review is affirmed.

Social Security Act 1991 section 92C

Social Security (Administration) 1999 section 23

REASONS FOR DECISION

24 March 2005 M Griffin, Member

1.      Ms Jane Banfield (“the Applicant”) was born on 11 March 1935. She was employed as a TAFE teacher. She reached qualification age for the age pension on her 60^th birthday in March 1995. She continued to work in her full-time employment as a teacher and registered for the pension bonus scheme in September 1998. She ceased full-time employment on 10 March 2000, the day before her 65^th birthday.

2.      In July 2003, Ms Banfield lodged a claim for the age pension and was granted the payment at a reduced rate with effect from 14 July 2003.  Ms Banfield also lodged a claim for the pension bonus with Centrelink on 1 August 2003.  Centrelink decided that Ms Banfield satisfied the work test for the pension bonus during the period 1 July 1998 to 30 June 1999 and 1 July 1999 to 10 March 2000.  However, Centrelink found that Ms Banfield was not eligible for the pension bonus because she had not lodged her claim for payment within 13 weeks of ceasing to meet the work test that is within 13 weeks of ceasing her full-time employment.

3.      Ms Banfield appealed this decision to the Social Security Appeals Tribunal (“SSAT”). The SSAT heard evidence from Ms Banfield and decided that she was eligible for the pension bonus for the year 1 July 1998 to 30 June 1999 but not for the year 1 July 1999 to 10 March 2000. It is that decision which is the subject of this review. 

4. A hearing was conducted on 2 March 2005 at which Ms Banfield represented herself and Mr James Larcombe, a Centrelink advocate, represented the Secretary, Department of Family and Community Services (“the Respondent”). The Tribunal received into evidence the documents lodged under section 37 of the Administrative Appeals Tribunal Act 1975 (T-documents).

5.      Ms Banfield said that she had not been aware of the requirement to apply for the pension bonus within 13 weeks of stopping work. She said she thought the requirement was to apply within 13 weeks of applying for the age pension.  She said she had gathered this from what she had read and she said that the State Superannuation financial adviser had suggested to her to wait to apply for the pension until she ceased renting out a unit that she had purchased in Manly.  She said that she continued to rent a property for her own occupation in Seven Hills while she continued to work at Blacktown as it was too far to travel from Manly.  She said she stayed in that accommodation until her tenants moved out in mid 2003.  

6.      Ms Banfield argued that she satisfied the work test and could not understand why she could not receive the pension bonus for the year being 1 July 1999 to 10 May 2000. She said the legislation, if it produced that result, was unfair.

legislation

7. Section 92C of the Social Security Act 1991 sets out the general criteria which must be satisfied in order to qualify for the pension bonus. There is no dispute that Ms Banfield satisfies section 92C.

8. Sections 23(1) and 23(2) of the Social Security (Administration) Act1999  relevantly provide: 

“23     Last bonus period a part-year period

(1)If a person's last bonus period is a part-year period, the lodgement period for a claim by the person for pension bonus is:

(a)the period of 13 weeks beginning at the end of that bonus period; or

(b)       if the Secretary allows a longer period—that longer period.

However, this subsection does not apply if:

(c)the person is an exempt partnered person (see subsection 24(2)) at the end of the person's last bonus period; or

(d)the person's membership of the pension bonus scheme becomes non-accruing immediately after the end of the person's last bonus period; or

(e)the person is a post-75 member of the pension bonus scheme and has a post-75 work period (see subsection 26(2)).

(2) If:

(a)subsection (1) applies to a person's claim for pension bonus; and

(b)the claim is lodged within a period allowed under paragraph (1)(b);

Division 6 of Part 2.2A of the 1991 Act has effect, in relation to the calculation of the amount of that pension bonus, as if the person had not accrued the part-year bonus period.”

9. Ms Banfield lodged her pension bonus claim on 1 August 2003, which is more than 13 weeks after 10 March 2000, which was the end of the last bonus period. The SSAT saw fit to exercise the discretion provided in section 23(1)(b) to allow the longer period for lodgement of the claim by Ms Banfield. It was for this reason that she has been paid the pension bonus for that period namely 1 July 1998 to 30 June 1999.

10. However the effect of section 23(2) is that once the discretion of section 23(1) is exercised then, because the last bonus period is for a part-year, that part-year period is disregarded.

decision

11.     The Tribunal accept Ms Banfield as a witness of truth. There is no evidence to suggest that she had deliberately altered her affairs in an attempt to maximise her bonus by re-organising her financial affairs. There is no evidence to suggest that Ms Banfield had acted in any way untoward. However, the effect of the legislation results in the Tribunal having no discretion to alter the decision in her case.

12. The relevant section provides that where the discretion is exercised to allow more than 13 weeks for the lodgement of the claim after the expiring of a part-year bonus period, then section 23(2) operates to disregard the part-year bonus period. Therefore, while Ms Banfield accrued more than one bonus period, she cannot be paid with respect to the last part-year bonus period.

13.     The Tribunal affirms the decision under review.   

I certify that the 13 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M Griffin, Member  

Signed:         A. Krilis  Associate

Date/s of Hearing  8 February 2005
Date of Decision  24 March 2005
Advocate for the Respondent   Mr James Larcombe