Brown and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2008] AATA 1118

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 1118

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/1810

GENERAL ADMINISTRATIVE DIVISION		)
Re		BARBARA BROWN

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Ms Naida Isenberg, Senior Member

Date16 December 2008

PlaceSydney

Decision The decision under review is affirmed.

....................[Sgd]....................

Ms Naida Isenberg
  Senior Member

CATCHWORDS

SOCIAL SECURITY – pension bonus scheme – qualification for pension bonus – previous receipt of age pension – decision under review affirmed.

Social Security Act 1991- s 23, 92C

Re Brutnell and Secretary, Department of Family and Community Services [2002] AATA 436

Re Dumic and Secretary, Department of Family and Community Services [2001] AATA 932

Re Rodham and Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 1331

REASONS FOR DECISION

16 December 2008 Ms Naida Isenberg, Senior Member        

BACKGROUND

1.      Ms Brown, who was born in 1937, has a long and admirable work history as a nurse.  In November 1998, Ms Brown could not work because she had surgery to replace a hip.  She applied for sickness benefits but, because of her age, was paid the Age Pension - from 7 January 1999 to 8 July 1999. On 23 August 2001 Ms Brown applied to be registered for the Pension Bonus Scheme (“PBS”). On 31 August 2001 she was notified by Centrelink that she was “registered” as an accruing member of the PBS from 2 November 1998, but she could not be paid because she had previously received income support benefits.  That decision was affirmed on review.

2.      On 23 May 2007 Ms Brown claimed an Age Pension and Pension Bonus but her claim for the Pension Bonus was again rejected because she had previously been paid the Age Pension.

Legislation

3. Section 92C(b) of the Social Security Act 1991 (“the Act”) provides that the Pension Bonus is not payable if the person has received an Age Pension at any time before making a claim for the Pension Bonus.

Issue

4.      Is Ms Brown precluded from payment under the PBS because she received an Age Pension between 7 January and 8 July 1999?

Consideration

5. The facts were not in dispute. When Ms Brown turned 61 years in November 1998 she reached the pension age: s 23(5C) of the Act. There was no dispute that she received an Age Pension between 7 January and 8 July 1999.

6.      Ms Brown says, however, that Centrelink should have informed her in 1999 that by being paid an Age Pension she would not subsequently be eligible for the Pension Bonus.  She said that when she applied for sickness benefits the Centrelink officer did not discuss her age, only making comment about her place of birth. In connection with the claim she spoke to “a lot of Centrelink people”, both in person and on the phone, and at no time was she told about the PBS. It was only in 2001, shortly before she applied to be registered, that she became aware of the existence of the scheme through the newspapers. Centrelink conceded that the scheme had been poorly promoted at the time of its introduction in July 1998.

7.      Ms Brown also referred to the Centrelink file note of 5 June 2007 (T16) which recorded her discussion with a Centrelink officer that day about the possibility of repayment of the amount of the Age Pension she had received so as to re-instate her entitlement to the Pension Bonus. As the Centrelink advocate pointed out this option was not available as Ms Brown had an entitlement to the Age Pension at the time it was paid and it was not open to her to simply relinquish it.

8.      Ms Brown asked me to consider her entitlement to the Pension Bonus at her 61^st birthday in November 1998, the date to which her registration was backdated and at 23 August 2001, when she first applied for the Pension Bonus. However, for the purposes of this review, neither of these dates is relevant. The relevant date is 22 May 2007, the date of her application for the Age Pension and Pension Bonus, and the subject of the decision under review.

9. Section 92C(b) is clear: as receipt of the Age Pension occurred before Ms Brown’s claim for the Pension Bonus, she is not qualified for the Pension Bonus. In ReDumic and Secretary, Department of Family and Community Services [2001] AATA 932 and Re Brutnell and Secretary, Department of Family and Community Services [2002] AATA 436 the Tribunal noted that the legislation precludes a person from receiving the Pension Bonus if that person was in receipt of the Age Pension for any period, no matter how short.

10.     This matter is very like Re Brutnell. In that case, the applicant sought Centrelink benefits during periods of illness when she was unable to work.  It was Centrelink‘s decision that she be paid the Age Pension (and Widow’s Pension).  Later she applied for the Pension Bonus but was precluded because of having previously received an Age Pension.

11.     Ms Brown’s circumstances are not like those in Re Rodham and Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 1331, where the Age Pension had been paid erroneously. I note at this point that even if, in 1999, Ms Brown had been paid the sickness benefits (instead of the Age Pension) for which she had applied, she would still be disqualified from receiving the Pension Bonus: s 92C(e)(ii) and s 23.

12.     Although not a matter presently before the Tribunal, I note that Ms Brown’s application for the Age Pension in May 2007 had been refused because her and her partner’s combined income had exceeded the allowable limit.  The Centrelink advocate submitted that because the entitlement to the Pension Bonus is tied to the entitlement to the Age Pension, if Ms Brown had no entitlement to an Age Pension at the date of claim, then she would also have no entitlement to the Pension Bonus.

13.     During the course of the hearing the Centrelink advocate mentioned that Ms Brown has made a claim for compensation for Detriment Caused by Defective Administration, which has been held in abeyance pending the outcome of this Hearing.  While I make no comment in relation to that matter, I note that Ms Brown had fully disclosed her age and continuing work to Centrelink and was unaware that by accepting Centrelink benefits during her temporary incapacity for work, she had jeopardised her entitlement to the, presumably more remunerative, Pension Bonus.  At no time, despite apparently several opportunities, did Centrelink advise her of the consequences of her decision to accept Centrelink income support during her recuperation. I note that Centrelink has conceded that the PBS was poorly advertised and I have accepted Ms Brown’s evidence that she was unaware of the scheme until 2001. She had not previously sought any benefits from Centrelink and so was especially entitled to rely on the advice of its officers. Having said that there may be other factors not canvassed in detail at the hearing which may impact upon consideration of her application.

Decision

14.     The Administrative Appeals Tribunal affirms the decision under review.

I certify that the 14 preceding paragraphs are a true copy of the reasons for the decision herein of Ms Naida Isenberg, Senior Member

Signed:         ......................................[Sgd]..........................................
  Associate      Tim Ngui

Date of Hearing  9 December 2008
Date of Decision  16 December 2008
Appearance for the Applicant   Self-represented
Solicitor for the Respondent     Ms R Harlock, Centrelink Legal Services and   Procurement Branch