Bulot and Secretary, Department of Social Services (Social services second review)

Bulot and Secretary, Department of Social Services (Social services second review) [2015] AATA 1010 (23 December 2015)

Division

GENERAL DIVISION

File Number

2014/5662

Re

Liliane Bulot

APPLICANT

And

Secretary, Department of Social Services

RESPONDENT

DECISION

Tribunal
Regina Perton, Member

Date 23 December 2015

Place Melbourne
The Tribunal sets aside the decision under review and substitutes a decision that Mrs Bulot’s lodgement period for pension bonus is extended to 15 October 2013 on the basis of special circumstances. The Tribunal remits the application to the Secretary for calculation and payment of pension bonus for her first three bonus periods.

[sgd]........................................................................
Regina Perton, Member
SOCIAL SECURITY – pension bonus – date of lodgement of claim – special circumstances for late lodgement
Legislation
Social Security Act 1991 ss 92A, 92B, 92C, 92N, 92Q, 92R, 92T, 92U, 92V, 92X, 92Z,
Social Security (Administration) Act 1999 ss 21, 22, 23
Cases
Ryde v Secretary, Department of Family and Community Services [2005] FCA 866
Angelakos v Secretary, Department of Employment and Workplace Relations [2007] FCA 25
Secondary Materials
Social Security (Pension Bonus Scheme – Non Accruing Members) Declaration 2007 clauses 5, 6
Guide to Social Security Law 3.4.7.30
REASONS FOR DECISION
Regina Perton, Member
23 December 2015

Mrs Liliane Bulot continued to work for several years after reaching the age at which she was eligible to receive age pension. She had registered for the pension bonus, a scheme created to provide a monetary incentive to keep people working beyond retirement age. That program has now been abolished. Its administration was affected by highly technical rules and short timelines for applying for the bonus following the attainment of retirement age. When Mrs Bulot eventually retired she found she was not eligible for the payment because of the timing of her application.
Mrs Bulot’s registration for the pension bonus scheme (PBS) was deemed to take effect from 7 March 2008. Mrs Bulot applied for age pension and payment of the pension bonus on 15 October 2013. On 6 March 2014 Centrelink rejected the pension bonus claim because Mrs Bulot had not put in the claim within the prescribed period after ceasing work.
On 1 April 2014 Mrs Bulot sought review of the decision by an authorised review officer (ARO) of Centrelink. On 21 May 2014 the ARO affirmed the decision.
On 31 July 2014 Mrs Bulot applied to the Social Security Appeals Tribunal (SSAT) for review of the ARO decision. On 29 September 2014 the SSAT affirmed the decision. Mrs Bulot lodged an application with this Tribunal on 31 October 2014.
Mrs Bulot argues that Centrelink did not properly notify her of the procedures and timelines for lodging a claim for pension bonus as she did not receive any of the regular reminder notices sent to registrants for the PBS. She also suffered injuries and underwent treatment which impacted on her retirement date and she believed that the retirement date may have been wrongly calculated. Centrelink disagrees.
RELEVANT LEGISLATION AND GUIDELINES
The PBS was linked to the retirement age which was gradually increasing to 67 years for both men and women. Mrs Bulot was eligible for age pension on 7 March 2008 when she was 63.5 years (sections 23 and 43 of the Social Security Act 1991 (the Act)). Her husband turned 65 years, his eligible pension age, after the PBS had been closed to new entrants.
Mrs Bulot lodged her claim for age pension and pension bonus on 15 October 2013. Section 92A of the Act sets out a simplified outline of this Part:
· A person who qualifies for an age pension but defers claiming that pension may be able to get a single lump-sum pension bonus.
·A person who wants to get a pension bonus must register as a member of the pension bonus scheme. ...
·To get a pension bonus, a person must accrue between 1 and 5 bonus periods while deferring age pension.
·Generally, a bonus period runs for 1 year.
·To accrue a bonus period, the person must pass the work test for that period.
·To pass the work test for a year, either the person, or the person’s partner, must gainfully work for at least 960 hours during that year.
·The amount of a person’s pension bonus depends on the number of accrued bonus periods and the person’s annual rate of age pension. A person may get a bigger bonus by accruing more bonus periods.
Section 92B sets out some of the relevant definitions:
In this Part:
accruing member of the pension bonus scheme has the meaning given by section 92N.
bonus period has the meaning given by section 92T.
….
full-year period means a continuous period of 365 days.
gainful work has the meaning given by sections 92X to 93A (inclusive).
non-accruing member of the pension bonus scheme has the meaning given by sections 92P and 92Q.
part-year period means a continuous period of less than 365 days.
passing the work test has the meaning given by sections 92U and 92V.
…
registration as a member of the pension bonus scheme means registration under section 92J.
Section 92C of the Act describes the qualification criteria for a pension bonus:
A person is qualified for a pension bonus if:
(a)both:
(i)     the person starts to receive an age pension at or after the time when the person makes a claim for the pension bonus; and
(ii)     that age pension is received otherwise than because of a scheduled international social security agreement (see section 5 of the Social Security (International Agreements) Act 1999); and
(b)the person has not received an age pension at any time before making a claim for the pension bonus; and
(c)the person is registered as a member of the pension bonus scheme; and
(d)the person has accrued at least one full‑year bonus period while registered as a member of the pension bonus scheme; and
(e)the person has not received:
(i)     a social security pension (other than an age pension or a carer payment); or
(ii)     a social security benefit; or
(iii)     a service pension (other than a carer service pension); or
(iv) an income support supplement (other than an income support supplement that is payable as a result of the operation of subclause 8(3) of Schedule 5 to the Veterans’ Entitlements Act);
at any time after the person qualified for an age pension; and
…
(f)the person has not already received:
(i)     another pension bonus;…
…
Section 21 of the Social Security (Administration) Act 1999 (the Administration Act) sets out the general rules for claiming pension bonus:
(1)A claim for pension bonus must be made within the lodgment period fixed by this Subdivision.
(2)However, the Secretary may in special circumstances allow a person a longer period to make a claim than the period fixed by this Subdivision. If the Secretary does so, the lodgment period for the person’s claim is the period allowed by the Secretary.
(3)Subsection (2) does not apply in relation to a claim for which the lodgment period is fixed by subsection 23(1).
Section 22 of the Administration Act sets out the time limits for lodging a claim where the last bonus period was a full-year:
(1)If a person’s last bonus period is a full‑year period, the lodgment period for a claim by the person for pension bonus is the period of 13 weeks immediately following that bonus period. However, this rule does not apply if:
(a)the person is an exempt partnered person for the purposes of section 24 at the end of the person’s last bonus period; or
(b)the person’s membership of the pension bonus scheme becomes non‑accruing immediately after the end of the person’s last bonus period; or
(c)the person is a post‑75 member of the pension bonus scheme and has a post‑75 work period (see subsection 26(2)).
(2For the purposes of this section, if a person has accrued only one full‑year bonus period, that period is the person’s last bonus period.
Section 23 of the Administration Act details the time limits for lodging a claim for a part-year bonus period:
(1)If a person’s last bonus period is a part-year period, the lodgment 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.
Section 92T of the Act deals with the accrual of bonus periods:
Full-year bonus period
(1)The first bonus period that accrues to a person is the full-year period of the person’s accruing membership of the pension bonus scheme:
(a)that began on whichever of the following dates is applicable:
(i) if the person was an accruing member of the pension bonus scheme on the date the person’s registration as a member took effect—the date the registration took effect;
(ii) in any other case—the date on which the person first became an accruing member of the pension bonus scheme; and
(b)for which the person passes the work test.
Note: Accruing membership is defined by section 92N.
(2) Each succeeding full-year period of the person’s accruing membership of the pension bonus scheme:
(a) that is specified in the person’s claim for pension bonus; and
(b) for which the person passes the work test;
is a bonus period that accrues to the person.
Part-year bonus period
(3) A part-year period of the person’s accruing membership of the pension bonus scheme is a bonus period that accrues to the person if:
(a)the person passes the work test for that period; and
(b)the person specifies the period in the person’s claim for pension bonus; and
(c)the period begins immediately after the end of a full-year bonus period that accrues to the person; and
(d)the period is the last bonus period that accrues to the person.
Note: Accruing membership is defined by section 92N.
Bonus periods must be consecutive
(4)A person cannot accrue more than one bonus period unless:
(a)the bonus periods are consecutive; or
(b)the bonus periods are separated only by a period of non-accruing membership
Section 92N of the Act states that a person’s membership of the pension bonus scheme at a particular time is accruing unless the person’s membership is non‑accruing or post‑75 at that time.
Section 92Q of the Act concerns a non-accruing member:
(1)The Secretary may, by legislative instrument, declare that, for the purposes of this Part, a specified kind of member of the pension bonus scheme is a non-accruing member throughout a period ascertained in accordance with the declaration.
(1A)Despite subsection 12(2) of the Legislative Instruments Act 2003, a period ascertained in accordance with a declaration made under subsection (1) may begin before the date on which the declaration is registered under that Act.
(2)The kinds of members that may be specified under subsection (1) include (but are not limited to):
(a)a member who is a participant in the Community Development Employment Program; and
(b)a member who is in gaol (see subsection 23(5)); and
(c)a member who is undergoing psychiatric confinement (see subsections 23(8) and (9)) because the member has been charged with committing an offence; and
(d)a member who is not a participant in the workforce, but whose partner:
(i) is a participant in the workforce; and
(ii) is not a registered member of the pension bonus scheme or of the corresponding scheme under Part IIIAB of the Veterans’ Entitlements Act; and
(iii) intends to become a registered member of the pension bonus scheme or of the corresponding scheme under Part IIIAB of the Veterans’ Entitlements Act; and
(e)a member who is on sick leave for a continuous period of at least 4 weeks and not more than 26 weeks.
The Secretary of the Department prepared a legislative instrument, namely the Social Security (Pension Bonus Scheme – Non Accruing Members) Declaration 2007. Clauses 5 and 6 are relevant in this matter:
5 Kinds of non-accruing members
A member of the pension bonus scheme who is a member of any of the following kinds is a non-accruing member:
(a) …
(b) …
(c) …
(d)a member who is not a participant in the workforce, but whose partner:
(i) is a participant in the workforce; and
(ii) is not a registered member of the pension bonus scheme or the corresponding scheme under Part IIIAB of the Veterans’ Entitlements Act; and
(iii) intends to become a registered member of the pension bonus scheme or the corresponding scheme under Part IIIAB of the Veterans’ Entitlements Act;
(e)a member who is on paid or unpaid leave of any kind, or combination of kinds, from gainful work and who would not pass the work test for a bonus period during which any part of the leave is taken;
(f)a member whose partner is on paid or unpaid leave of any kind, or combination of kinds, from gainful work and who would not pass the work test for a bonus period during which any part of the leave is taken;
…
6 Period for which member is non-accruing member
(1)A member of the pension bonus scheme to whom a paragraph of section 5 applies is a non-accruing member throughout the period during which the member is a member of the kind mentioned in the paragraph.
(2)However, for a member to whom a paragraph of section 5 mentioned in the following table applies, subsection (1) is subject to the time limit shown.

Item

Paragraph of section 5

Time limit

1

(e), (f)

26 weeks

2

(g), (h), (i)

13 weeks

Sections 92U and 92V of the Act define the term passes the work test:
92U Work test—full-year period
For the purposes of this Part, a person passes the work test for a full-year period of the person’s accruing membership of the pension bonus scheme if:
(a)in any case—the person satisfies the Secretary that the total number of hours gainfully worked by the person during that period was at least 960 and that at least 640 of that total number of hours were worked in Australia; or
(b)if the person had only one partner during that period—the person satisfies the Secretary that the total number of hours gainfully worked by the person’s partner during that period while the partner was a partner of the person and was:
(i)     an accruing member, or a post-75 member, of the pension bonus scheme; or
(ii) an accruing member, or a post-70/75 member, of the corresponding scheme under Part IIIAB of the Veterans’ Entitlements Act;
was at least 960 and that at least 640 of that total number of hours were worked in Australia; or
(c)if the person had 2 or more partners during that period—the person satisfies the Secretary that the total number of hours gainfully worked by those partners during that period while they were partners of the person and were:
(i)     accruing members, or post-75 members, of the pension bonus scheme; or
(ii) accruing members, or post-70/75 members, of the corresponding scheme under Part IIIAB of the Veterans’ Entitlements Act;
was at least 960 and that at least 640 of that total number of hours were worked in Australia;
and either:
(d)the person satisfies the Secretary that the applicable record-keeping requirements (see section 93C) have been complied with in relation to that period; or
(e)the Secretary decides to waive compliance with the applicable record-keeping requirements in relation to that period.
92V Work test—part-year period
(1) For the purposes of this Part, a person passes the work test for a part-year period of the person’s accruing membership of the pension bonus scheme if:
(a)in any case—the person satisfies the Secretary that the total number of hours gainfully worked by the person during that period was at least the pro-rated number of hours (see subsection (2)) and that at least two-thirds of that total number of hours were worked in Australia; or
(b)if the person had only one partner during that period—the person satisfies the Secretary that the total number of hours gainfully worked by the person’s partner during that period while the partner was a partner of the person and was:
(i)     an accruing member, or a post-75 member, of the pension bonus scheme; or
(ii) an accruing member, or a post-70/75 member, of the corresponding scheme under Part IIIAB of the Veterans’ Entitlements Act;
was at least the pro-rated number of hours (see subsection (2)) and that at least two-thirds of that total number of hours were worked in Australia; or
(c)if the person had 2 or more partners during that period—the person satisfies the Secretary that the total number of hours gainfully worked by those partners during that period while they were partners of the person and were:
(i)     accruing members, or post-75 members, of the pension bonus scheme; or
(ii) accruing members, or post-70/75 members, of the corresponding scheme under Part IIIAB of the Veterans’ Entitlements Act;
was at least the pro-rated number of hours (see subsection (2)) and that at least two-thirds of that total number of hours were worked in Australia;
and either:
(d)the person satisfies the Secretary that the applicable record-keeping requirements (see section 93C) have been complied with in relation to that period; or
(e)the Secretary decides to waive compliance with the applicable record-keeping requirements in relation to that period.
(2)For the purposes of this section, the pro-rated number of hours applicable to a period is worked out using the formula:
960 x Number of days in the period
  365
Section 92X of the Act defines the term gainful work as follows:
(1)For the purposes of this Part, gainful work is work for financial gain or reward, whether as an employee, a self-employed person or otherwise, where:
(a)the work involves a substantial degree of personal exertion on the part of the person concerned; and
(b)the work is carried on within or outside Australia.
(2)Subsection (1) is to be ignored in determining the meaning of an expression used in a provision of this Act other than this Part.
Section 92Z of the Act states that irregular, infrequent and minor absences count as gainful work.
Section 92R of the Act states that continuity of accruing membership is not broken by a period of non-accruing membership:
If:
(a)a person has been an accruing member of the pension bonus scheme for a continuous period (the first accruing membership period) (including a period that is applicable because of one or more applications of this section); and
(b)the first accruing membership period is followed by a continuous period of non-accruing membership of the scheme; and
(c)the period of non-accruing membership is followed by a further continuous period of accruing membership of the scheme (the second accruing membership period);
the first accruing membership period and the second accruing membership period are together taken to constitute a continuous period of accruing membership of the scheme.

The Guide to Social Security Law (the Guide) explains how the bonus period works in terms of accruing and non-accruing membership of PBS:
3.4.7.30 Bonus Periods for PBS
What constitutes a bonus period …?
The duration of a bonus period corresponds to each 365 days of accruing membership …of the scheme. This will not necessarily be a consecutive period of 365 days, as the period of accruing membership may be broken by periods of non-accruing membership...
…
Work test
For the bonus period to count for the purposes of the scheme, the member or their partner, (if both are registered members of the scheme), MUST satisfy the work test.
…
Limit on bonus years
A member may accrue as many bonus periods as they wish provided they are consecutive. However, for the purposes of the scheme, a maximum of 5 full year bonus periods can be used to calculate the amount of the bonus payment.
…
Part year bonus periods
If the period immediately before claiming the bonus is not a full year bonus period of 365 days, then the part year period can be considered ONLY if the member has already accrued AT LEAST one full 365 day bonus period beforehand.
…
For a part year bonus period to be counted the member MUST meet the work test requirements for that period on a pro-rata basis.
…
Non-accruing membership
...
A person's membership of the scheme can also be non-accruing if the member would OTHERWISE FAIL THE WORK TEST because of the following circumstances:
…
if, on or after 1 January 2008, the person takes any paid leave or unpaid leave from employment (or any combination of leave types) for up to a maximum of 26 weeks duration. See further information on 'leave from employment' later in this topic…
…
Leave from employment taken on or after 1 January 2008
For the purposes of non-accruing membership, 'sick leave' means paid sick leave. Any unpaid sick leave or unpaid leave due to illness or injury is considered to be unpaid leave (rather than sick leave).
Sick leave taken on or after 1 January 2008 is treated the same as all other types of leave - i.e. there is no requirement that the member take more than 4 weeks of sick leave in order to be eligible to be made non-accruing during that leave.
A PBS member who takes any type of paid leave (such as recreation leave, sick leave, long service leave, carer's leave, special leave, personal leave, etc.) or unpaid leave starting on or after 1 January 2008 can be considered non-accruing members for up to 26 weeks at a time. (They would NOT be considered non-accruing members if they could meet the PBS work test despite their periods of leave).
A member cannot take rolling periods of leave if they need to be non-accruing during these periods of leave. A member can only take up to 26 weeks leave in total (sick leave or other leave or a combination of different types of leave). They must have a period of accruing membership between any periods of leave that are non-accruing if they do not wish to exit the scheme.
Leave from employment covers all paid and unpaid leave where the PBS member's employment is not terminated and a return to the same employer is expected after their period of leave, or where the person's employment does not terminate until after the leave is taken. This includes self-employed members who will return to self-employment after their leave.
A reduction in working hours is not considered to be leave.
CENTRELINK’S CALCULATION AS TO WHETHER MRS BULOT MET THE WORK TEST FOR EACH BONUS PERIOD?
Mrs Bulot worked for the Assisi Centre Inc. in catering operations. Centrelink undertook calculations based on payroll records provided by Mrs Bulot’s employer. The first bonus period commenced on 7 March 2008. Mrs Bulot took leave totaling 13.9 weeks which was considered non-accruing membership. Mrs Bulot’s first bonus period was therefore from 7 March 2008 to 12 June 2009 during which she worked 1324 hours. Mrs Bulot therefore satisfied s 92U(a) for that bonus period.
Centrelink calculated the second bonus period as commencing on 13 June 2009. Mrs Bulot took 7.6 weeks of employment leave. Therefore, the second bonus period extended to 5 August 2010 with work hours totaling 1,389. Mrs Bulot satisfied the requirements for the second bonus period.
The third bonus period began on 6 August 2010. Centrelink calculated that there was 5.8 weeks of employment leave being non-accruing leave during that third period. Thus, the third bonus period ran until 14 September 2011 with work hours of 1,128.25, which met legislative requirements.
The fourth bonus period began on 15 September 2011. There were 9.5 weeks of non-accruing membership which extended the bonus period until 21 November 2012. Mrs Bulot worked 694.75 hours according to Centrelink’s calculations failing to reach the required 960 hours.
The legislation allowed for concessions in hours worked where an applicant’s partner was still working but was also intending to, or had registered for, the PBS. Mr Bulot could not register as the PBS scheme was closed to new registrants who would qualify for age pension on or after 29 September 2009. Mr Bulot did not qualify for age pension until 8 May 2010. Therefore, Mrs Bulot could not take advantage of her husband’s work under section 92U of the Act for the fourth bonus period.
DID MRS BULOT REGISTER HER CLAIM WITHIN THE PRESCRIBED TIME PERIOD?
Section 22(1) of the Administration Act requires Mrs Bulot to lodge her claim for the pension bonus within 13 weeks immediately following her failure to pass the work test in the fourth bonus period, except in certain limited circumstances set out in s 22(1). Those limited circumstances do not apply to Mrs Bulot because her husband could not register for the PBS due to its closure to new registrants.
Mrs Bulot lodged the claim for pension bonus on 15 October 2013. Her retirement date from Assisi Homes was 26 September 2013. The respondent contends that was more than 13 weeks after the date allowed for in the legislation, namely the end of her third bonus period (14 September 2011) as she failed to meet the work test for the fourth period (which ended on 21 November 2012).
Section 21(2) of the Administration allows the respondent to extend the time for lodgement of the claim when there are special circumstances.
(1)A claim for pension bonus must be made within the lodgment period fixed by this Subdivision.
(2) However, the Secretary may in special circumstances allow a person a longer period to make a claim than the period fixed by this Subdivision. If the Secretary does so, the lodgment period for the person’s claim is the period allowed by the Secretary.
The Guide sets out the following instructions about late claims:
Reasons to accept late claims
The intention of the late claims provisions is to allow acceptance of late claims from members who have not been able to lodge a claim within the time limits due to special circumstances, and not for members who deliberately claim late in order to get a higher bonus. The member should be asked for their reasons for making a late claim for pension bonus and evidence should be provided, where applicable/appropriate.
Examples may include cases where a member:
has poor numeracy or literacy skills,
was ill,
was located in a remote area,
performed irregular work that made it difficult for the member to determine the lodgement period,
was helping a close family member suffering from a serious illness,
has experienced the death of a close family member,
had experienced a major disruption to their living arrangements (such as their home being fully or partially destroyed or the member or member's partner moved into a nursing home),
was unaware that post 20 September 2009 they could no longer be a non-accruing member whilst their younger partner was working and the working partner was affected by the closure of the scheme to new entrants (a time limit of approximately 12 months would apply to these cases).
The list above is not a full list of acceptable reasons to accept a late claim. Each case should be judged on its merits.
Before accepting a late claim, the delegate of the Secretary should consider how late the claim is, and whether this is reasonable when considering the event/s that caused the member to claim late. For example, if a person was ill for 4 months after ceasing work, it would not be reasonable for the claim to be 12 months late (unless there were other special circumstances that contributed to the delay).
The respondent submitted that Centrelink notified Mrs Bulot of the tight time limits for applying for the pension bonus in letters sent in April 2009, 2010, 2011, 2012 and 2013 and should have been aware of the date by which she should have applied.
Mrs Bulot stated that she had not received the notices Centrelink sent in the years following her registration for the PBS. She also stated that she had psychological problems treated by a clinical psychologist between April 2011 and September 2011 and a knee replacement operation in December 2011 that kept her off work for five months and that she returned to work for only two days per week after that (29 hours per fortnight). That resulted in the lower hours in the fourth bonus period.
Examination of the copies of the letters on the Centrelink data base showed that the letters dated 3 April 2009, 31 August 2009, 28 September 2009, 6 April 2010 and 4 April 2011 were sent to the wrong address, not to the address given in Mrs Bulot’s PBS registration. Mrs Bulot provided proof that she had been at her current address since well before she registered for the PBS.
The letters dated 31 August 2009 and 28 September 2009 advised Mrs Bulot of the closure of the PBS to new entrants from 20 September 2009. She did not receive the wrongly addressed letters which asked her to complete a questionnaire regarding her hours worked in the first and stating that she had not responded in the latter.
On 3 April 2012 Centrelink sent a letter to the correct address advising Mrs Bulot that she was still registered as a member of the PBS. It appears that the occupant of the incorrect address may have returned the 4 April 2011 letter to Centrelink in November 2011, advising it that she was not at that address. The letter of 3 April 2012 stated:
…
When you are ready to claim Age Pension you will need to claim the bonus at the same time. Please remember that you’ll need to lodge your bonus claim within 13 weeks of ceasing work, or within 13 weeks from the date you no longer meet the work test. (You can find out more about the work test by reading the Pension Bonus Scheme booklet. Please phone us on 132 300 for a copy, or you can read and download this booklet from our website. Just look under ‘Pension Bonus Scheme’ in the Publications chapter.)
Mrs Bulot does not have a computer and did not think she needed to telephone Centrelink to ask for the booklet. After all, she was told in the first paragraph of the letter that she was still registered under the PBS. English is not Mrs Bulot’s native language. While she speaks reasonable English, a French interpreter facilitated communication during part of the hearing to ensure that there were no misunderstandings and that the evidence was accurate. Mrs Bulot said she read the letter which told her when to lodge the claim, namely within 13 weeks of ceasing work and she did so.
There were two options given for the lodging the claim for pension bonus in the letters. Mrs Bulot did what the letter suggested, namely applied within 13 weeks of ceasing work.
As discussed earlier, Mrs Bulot’s bonus periods included several non-accrual periods. She had periods of sick leave including some months following a knee replacement. This resulted in bonus periods being well over a year in each instance. It appears that at some stage in the fourth bonus period she fell short of the prescribed 960 hours for the full year as she followed her doctor’s advice to drop from three days a week to two days. However, it is no surprise given the complexity of the calculations that Mrs Bulot did not realise that she did not work the required number of hours in the fourth bonus period.
The respondent submitted that it had no obligation to proactively advise Mrs Bulot of the legislative requirements. Furthermore, the respondent suggested that Mrs Bulot would have received a brochure about the PBS at the time of registration. Mrs Bulot was adamant that she had never seen the brochure. After the hearing, the Tribunal received a copy of the brochure. Under a heading of When do I claim my bonus? , the text states:
You must claim the bonus together with your Age Pension. Your claim must be made within 13 weeks of the following events:
·you stop meeting the work test (see page 16) , or
·a period of non-accruing membership ends (see page 14).
Important: Pension Bonus claims lodged later than 13 weeks of these events occurring could result in the amount of bonus payable being reduced or lost.
Claims after the 13 week claim period can be accepted where the delay occurred due to special circumstances. This could be because the claim was delayed due to the serious illness of a close family member.
…
In relation to keeping your details up to date, the brochure states:
Do I have to report any changes?
While you are a member of the Pension Bonus Scheme you do not have to keep us informed of changes to your circumstances. It is recommended, however, to advise of changes of address and any other event that might affect your future entitlement, such as a change in relationship status.
Mrs Bulot did not have any changes of address, relationship or workplace, so she did not contact Centrelink.
The term special circumstances has been considered in many Federal Court and Tribunal cases. In Ryde v Secretary, Department of Family and Community Services [2005] FCA 866 Branson J stated (at paragraph 26) that the circumstances of a particular case must give rise to hardship or unfairness sufficient to justify departure from the general rule. In Angelakos v Secretary, Department of Employment and Workplace Relations [2007] FCA 25 Besanko J stated, in respect of special circumstances (at paragraph 33):
… I also note that the authorities have emphasised time and again the importance of maintaining flexibility in determining what constitutes special circumstances… It was not the intention of Parliament to confine the exercise of the discretion to an exceptional case…there must be something that distinguishes the case from the ordinary or usual case ….
The Tribunal is of the view that there is a combination of circumstances in this case that together could constitute special circumstances. Centrelink sent its correspondence until April 2012 to the wrong address. It was not sent to Mrs Bulot’s residential or postal address as given in her registration form. That resulted in Mrs Bulot failing to get the opportunity to get specific advice which was offered in 2009 at the time of closure of the PBS to new registrants via a questionnaire she was asked to complete but obviously did not know about. The Tribunal hopes, and expects, that it is not a common practice for Centrelink to send correspondence to an address that is quite different to that given in a claim form.
Mrs Bulot provided evidence of sick leave during 2011 due to psychological issues, for which she received treatment and at the end of the year, major knee surgery. While the Tribunal accepts the respondent’s submission that these conditions did not contribute to late lodgement, they did distort the calculations of the bonus periods and resulted in Mrs Bulot’s lack of awareness of when the periods began or ended.
Mrs Bulot, while speaking reasonable English, did not and does not have a sophisticated grasp of the legislative complexities. She has been assisted by a friend who is more used to dealing with bureaucracies. An interpreter assisted communication during the hearing. Mrs Bulot did not realise the significance of the offer to telephone for a brochure as she had already registered and had been assured in the letters she received in April 2012 and April 2013 that she remained registered for the PBS. She was also unaware of the actual pension bonus periods and that she had not met the requirements of the last period.
All of the above circumstances may not have been considered special circumstances by themselves had there not been the overlay of the ambiguous advice in the letters Mrs Bulot, did receive. She was advised of two alternatives for lodging the claim for payment of the bonus, one of which was within 13 weeks of retirement. Correspondence from Assisi Homes confirmed that Mrs Bulot had given almost two months’ notice of her retirement as from 26 September 2013 and she applied for age pension and the pension bonus on 15 October 2013, some three weeks after she ceased work.
Taking all of the above factors together, the Tribunal is satisfied that Mrs Bulot’s circumstances constitute special circumstances, which enables the Tribunal to exercise the discretion to allow for a late lodgement of the application for pension bonus.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision that Mrs Bulot’s lodgement period for pension bonus is extended to 15 October 2013 on the basis of special circumstances. The Tribunal remits the application to the Secretary for calculation and payment of pension bonus for her first three bonus periods.

I certify that the preceding 48 (forty-eight) paragraphs are a true copy of the reasons for the decision herein of Regina Perton, Member
[sgd]........................................................................
Administrative Assistant
Dated 23 December 2015

Date of hearing 29 June 2015

Advocate for the Applicant Christiane Gemayel

Advocate for the Respondent Tim Noonan, Department of Human Services

[2015] AATA 1010

23 December 2015

Key Legal Topics

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Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Remedies

Standing

Statutory Construction

Division	GENERAL DIVISION
File Number	2014/5662
Re	Liliane Bulot
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

Tribunal	Regina Perton, Member
Date	23 December 2015
Place	Melbourne

Item	Paragraph of section 5	Time limit
1	(e), (f)	26 weeks
2	(g), (h), (i)	13 weeks

Date of hearing	29 June 2015
Advocate for the Applicant	Christiane Gemayel
Advocate for the Respondent	Tim Noonan, Department of Human Services