BENNETT and REPATRIATION COMMISSION
[2010] AATA 262
•15 April 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 262
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/5984
VETERANS' APPEALS DIVISION ) Re MERVYN JAMES BENNETT Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr B Pascoe, Senior Member Date15 April 2010
PlaceMelbourne
Decision The Tribunal affirms the decision under review.
(sgd) B Pascoe
Senior Member
VETERANS - pension bonus – receipt of social security pension after date of eligibility for age service pension and prior to application for registration.
Veterans’ Entitlements Act 1986 - s 45TC
Social Security Act 1991
REASONS FOR DECISION
15 April 2010 Mr B Pascoe, Senior Member 1. This is an application to review a decision of the respondent dated 28 October 2009 which affirmed a prior decision of 30 September 2009 that the applicant, Mr M J Bennett, was not eligible for registration for the pension bonus scheme.
2. Pursuant to s 34J of the Administrative Appeals Tribunal Act 1975, the Tribunal being satisfied that the issues for determination can be adequately determined in the absence of the parties and both parties having consented to the review being determined without a hearing, the decision has been reviewed by consideration of the documents lodged with the Tribunal and without holding a hearing.
3. Mr Bennett worked full time until April 2008 and continued on a part-time basis until May 2009. During that latter period he received Newstart Allowance. Having reached 65 years of age on 15 April 2009, Mr Bennett commenced receiving age pension. On 9 September 2009 he lodged an application for registration as a member of the pension bonus scheme. A delegate of the respondent determined that he was not eligible for registration as he had been in receipt of age pension prior to his application.
4. In his application for review of this decision. Mr Bennett stated:
It is my belief that I have fulfilled the fundamental requirements of the pension bonus scheme in continuing employment from 60 to 64 without assistance from any government departments.
I sincerely request that the unwittingly technicality of having received the age pension or Centrelink payments due to my lack of knowledge in regard to my entitlements through veterans affairs and the pension bonus scheme this should not disbar me from entitlements.
5. Unfortunately for Mr Bennett, s 45TC of the Veterans’ Entitlements Act 1986 (the Act) provides in clear terms that a person is qualified for a pension bonus only if that person has not received a social security pension or social security benefit at any time after the person’s special date of eligibility for an age service pension. The date of Mr Bennett’s eligibility for service pension was 15 April 2004 when he attained the age of 60 years. As he was in receipt of a social security pension after such date of age service pension eligibility he is clearly not qualified for a pension bonus notwithstanding his continuing to work beyond that date. There is no discretion contained within the legislation to allow a decision maker to ignore the specific requirements of that legislation.
6. Similar provisions are contained in the Social Security Act 1991 which preclude a person from being qualified for a pension bonus if that person has received a social security pension at any time after becoming qualified for age pension but prior to registration for the pension bonus. Several decisions of this Tribunal have confirmed that such circumstances do not allow qualification for the pension bonus.
7. It follows from the foregoing that the decision under review should be affirmed.
I certify that the seven [7] preceding paragraphs are a true copy of the reasons for the decision herein of
Mr B Pascoe, Senior MemberSigned: ...Dianne Eva
ClerkDate of Hearing On papers
Date of Decision 15 April 2010
Advocate for the Applicant Self RepresentedAdvocate for the Respondent Robert Douglass, Department of Veterans' Affairs
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