Carrick and Secretary, Department of Family and Community Services

[2005] AATA 1211

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 1211

ADMINISTRATIVE APPEALS TRIBUNAL
   No Q2005/565

GENERAL ADMINISTRATIVE DIVISION
Re	JOHN CARRICK

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Mr RG Kenny, Member

Date8 December 2005

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

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

RG Kenny
  Member

CATCHWORDS

SOCIAL SECURITY – pension bonus scheme – application for registration made out of time – criteria for extension of time – criteria not satisfied - hearing in the absence of the parties - decision affirmed

Social Security Act1991 ss 92C, 92E, 92F, 92G, 92H, 92N, 92Q, 92U, 92V
Administrative Appeals Tribunal Act 1975 s34J

REASONS FOR DECISION

8 December 2005  Mr RG Kenny, Member

Application

1.      John Carrick (the applicant) had his 65^th birthday on 30 March 1997.  At that stage, he could have claimed the age pension, a form of income support payable under the Social Security Act 1991 (the Act).  He made no such application and continued in remunerative employment for a further five years.  On 19 January 2004, he lodged a claim for the age pension and became aware, for the first time, of the Pension Bonus Scheme (PBS) which had been introduced, from 1 July 1998, through the enactment of Part 2.2A of the Act.  On 11 March 2004, he applied to be registered under the PBS.  His claim was rejected on 12 May 2004 by a Centrelink delegate on behalf of the Secretary of the Department of Family and Community Services (the respondent). This was done on the basis that Mr Carrick was outside of the relevant statutory time-frames for seeking registration.  That decision was affirmed by an authorised review officer on 1 June 2005 and, in turn, by the Social Security Appeals Tribunal (SSAT) on 3 August 2005.  On 29 August 2005, Mr Carrick sought review of the decision by the Administrative Appeals Tribunal (the Tribunal).

Hearing

2. Section 34J of the Administrative Appeals Tribunal Act 1975 makes provision for a hearing to be conducted in the absence of the parties. It reads:

“34J  If:

(a) it appears to the Tribunal that the issues for determination on the review of a decision can be adequately determined in the absence of the parties; and

(b) the parties consent to the review being determined without a hearing;

the Tribunal may review the decision by considering the documents or other material lodged with or provided to the Tribunal and without holding a hearing.”

3.      Both parties have consented to the matter being dealt with in their absence and I am satisfied that it is appropriate to proceed in that manner.

Legislative Scheme for PBS

4. The PBS applies to a person who defers the claiming of an age pension at age 65 years and continues on in the workforce. A person who has registered as a member of the PBS is able to receive a tax-free lump sum bonus at the end of his/her working life up to a maximum age of 75 years. Section 92C of the Act lists the qualifying criteria for the PBS and paragraph 92C(c) requires that the person be registered as a member of the PBS. The form requirements, the information required in the form and the manner of lodging the application are set out in sections 92E to 92G of the Act. The registration process must comply with statutory time frames and the requirements concerning the timing of the application are set out in section 92H. In Mr Carrick’s case, because he turned 65 years of age before the commencement of PBS on 1 July 1998, sub-section 92H(2) is applicable. It reads:

“92H(2)         

If a person's date of qualification for the age pension occurs before 1 July 1998:

(a)the person must lodge an application during the period that begins on the commencement of this section and ends 13 weeks after 1 July 1998; and

(b)if registration occurs as a result of an application lodged within that period-the registration takes effect on 1 July 1998”.

5. It is not in dispute that Mr Carrick’s application for registration was lodged more then thirteen weeks after 1 July 1988 and, accordingly, reference must be made to sub-section 92H(3) of the Act which deals with late applications. It reads:

“92H(3)         

The Secretary may extend the period within which a person must lodge an application. If registration occurs as a result of an application lodged during an extended period, the registration takes effect:

(a)       on the date on which the application is lodged; or

(b)if the Secretary decides that it should take effect on another date-on that other date.”

6.      The extent to which that provision may be applied is limited by the terms of sub-sections 92H(4) to (6) of the Act which read:

“92H(4)         

The Secretary must not make a decision to extend the period within which a person must lodge an application unless, if it were assumed that the person had been a member of the pension bonus scheme throughout the pre-application period:

(a)the person would have been a non-accruing member for all of the pre-application period; or

(b)       both:

(i)the person would have been an accruing member for some or all of the pre-application period; and

(ii)the person would have passed the work test for each test period that is applicable to the person.

92H(5)           

For the purposes of this section, the pre-application period is the period beginning on:

(a)in the case of a person whose date of qualification for the age pension occurs on or after 1 July 1998-the person's date of qualification for the age pension; or

(b)in the case of a person whose date of qualification for the age pension occurs before 1 July 1998-1 July 1998;

and ending on the date on which the person lodged the application.

92H(6)

For the purposes of this section, to work out what is a test period:

(a)identify the overall accruing period, which is that part of the pre-application period for which, if it were assumed that the person had been a member of the pension bonus scheme throughout the pre-application period, the person would have been an accruing member of the scheme;

(b)if the overall accruing period is 365 days or less-the overall accruing period is the only test period;

(c)if the overall accruing period is longer than 365 days-each of the following periods is a test period:

(i)the full-year period beginning at the start of the overall accruing period;

(ii)if 2 or more succeeding full-year periods are included in the overall accruing period - each of those full-year periods;

(iii)       the remainder (if any) of the overall accruing period.”

7.      In this matter, Mr Carrick’s pre-application period runs, in accordance with paragraph 92H(5)(b) of the Act, from 1 July 1998 until 11 March 2004 when his application was made.

8. For the purposes of sub-section 92H(4) of the Act, a person is an accruing member unless the person’s membership is non-accruing or the person was more than 75 years of age at the time. This is provided for in section 92N of the Act. Further, sub-section 92Q(2) provides that the following are categories of non-accruing membership:

“92Q(2)

(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”

9.      It is not disputed that, in this case, Mr Carrick does not meet any of those requirements.  I am satisfied that he would have been an accruing member for all of the pre-application period. It follows that paragraph 92H(4)(a) of the Act is not applicable to him and that, if an extension of time is to be granted, it must be in accordance with paragraph 92H(4)(b) of the Act.  This requires that Mr Carrick must have passed the work test for each test period that is applicable to him.  If this requirement is not met, there is no capacity under the Act for lodgement time to be extended. 

10. Under section 92U of the Act, a person passes the work test for a full year period if he gainfully worked for at least 960 hrs in that year. Where a person worked for part of a year, section 92V of the Act requires that a pro-rated number of hours be worked. The meaning of a test period is provided for in sub-section 92H(6) of the Act, set out above. This requires the calculation of an overall accruing period. In accordance with paragraph 92H(6)(a) of the Act, the overall accruing period is the same in Mr Carrick’s case as the pre-application period. This exceeded 365 days and, therefore, paragraph 92H(6)(b) of the Act is not applicable. Consideration must, therefore, be given to paragraph 92H(6)(c) of the Act. The issue for determination is whether Mr Carrick passed the work test for the “test periods” set out in that provision.

Work History

11.     Information concerning Mr Carrick’s work history was provided by his employer and I am satisfied that the following table correctly summarises that history in the pre-application period:

period	hours worked:
01/07/98 – 30/06/99	1123.00
01/07/99 – 30/06/00	1730.25
1/07/00 – 30/06/01	440.50
01/07/01 – 30/06/02	1641.75
01/07/02 – 30/06/03	175.25
01/07/03 – 11/03/04	nil

Consideration

12.     The test periods in this case include the full years ending 30 June 1999, 2000, 2001, 2002 and 2003.  These are identified by subparagraph 92H(6)(c)(ii) of the Act.  Also included is the remainder of the accruing period, from 1 July 2003 until 11 March 2004, as identified by subparagraph 92H(6)(c)(iii) of the Act.  Mr Carrick made a written submission to the Tribunal and, as I understand it, he is seeking to have some selection of the various years used in applying the work test in his case.  However, that construction is not open.  Subparagraph 92H(4)(b)(ii) of the Act requires that the work test be satisfied for each of the test periods.  Accordingly, each year must be considered discretely and the final part year must also be separately treated.  Furthermore, the PBS does not allow for an averaging process to be applied and this was conceded by Mr Carrick in his written submission.

13. I am satisfied that the work test of 960 hours per year was satisfied by Mr Carrick in the years ending 30 June 1999, 2000 and 2002 but not in the years ending 30 June 2001 or 2003. In that situation, sub-paragraph 92H(4)(b)(ii) of the Act is not met. It follows that a decision to extend time cannot be made and that the general prohibition in sub-section 92H(2) continues to apply so that Mr Carrick was out of time with the lodgement of his application.

Decision

14.The decision under review is affirmed. 

I certify that the 14 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RG Kenny, Member

Signed:  Jeff Mills

Legal Research Officer

The matter was heard on the papers
Date of Decision            8 December 2005