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

[2010] AATA 1030

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 1030

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/2074

GENERAL  ADMINISTRATIVE  DIVISION		)
Re		ERNEST COOK PATRICIA COOK

Applicant

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

Respondent

DECISION

Tribunal Brigadier C Ermert (Retd), Member  

Date17 December 2010

PlaceMelbourne

Decision The decision under review is set aside and the matter is remitted to the respondent with the direction that the entitlement to the pension bonus for the applicants is to be re-assessed in accordance with provisions of the Social Security Act 1991 and the Social Security Administration Act 1999 on the basis that Mrs Cook was engaged in gainful work for the period 1 July 2007 to 2 January 2008.

(sgd) Conrad Ermert

Member

SOCIAL SECURITY – pension bonus application – pension bonus registration – pre-application period – non-accruing member – accruing member – work test – gainful work – Secretary’s discretion – decision set aside.

Social Security Act 1991 s 92H, s 92U, s 92V, s 92X, s 92Y
Social Security Administration Act 1999

Guide to Social Security Law

REASONS FOR DECISION

20 December 2010 Brigadier C Ermert (Retd), Member 

INTRODUCTION

1.      These written reasons for decision are essentially the same as the reasons given orally on 17 December 2010 at the conclusion of the hearing.  An introduction, details of the hearing, and a brief summary of the evidence have been added for completeness.

2.      Mr and Mrs Cook, the applicants in this case, worked in paid employment to age 71 and 74 years respectively, both beyond their notional retirement ages of 65 and 60 respectively.  Due to their personal circumstances they did not apply for their pension bonus entitlements until August and September 2009 which was well past the 13 week period allowed in the normal provisions of the Social Security Act 1991 (the Act).  Their application was refused by the respondent and this decision was affirmed by the Social Security Appeals Tribunal (SSAT) on 15 April 2010.

3.      This application is for a review of the SSAT decision.

THE HEARING

4.      Mr and Mrs Cook represented themselves at the hearing.  The respondent was represented by Mr Tim Noonan, Centrelink Advocacy Branch.

5.      The Tribunal had before it the documents submitted by the respondent pursuant to s 37 of the Administrative Appeals Act 1975 (the T-documents).  No further documents were submitted in evidence.

THE ISSUE

6. There was no dispute about the facts of the case as presented in the respondent’s statement of facts and contentions. The only issue to be determined is whether the Secretary, or the Tribunal standing in the shoes of the Secretary, can exercise the discretion contained in s 92H(4) of the Act to extend the period of time for the application for the pension bonus to the dates of the Cooks’ applications.

EVIDENCE

7.      Mr and Mrs Cook gave evidence of their work and employment history.  They also gave evidence of accepting the foster care of Allan Bobbin when he was 2 years old and who remains in their care still.  Mrs Cook recounted the financial difficulties she experienced while running a children’s day care centre and the resulting stress in the family.  The stress was such that Mr Cook attempted suicide, from which he still suffers symptoms of depression.  In cross examination, Mrs Cook agreed that she may have received two letters from Centrelink informing her of the requirements of the pension bonus scheme.  She stated that due to her circumstances at the time she probably put the letters aside as she could not deal with them at the time.  She described her situation as having fallen in a heap.

SUBMISSIONS

8. In his submissions Mr Noonan referred the Tribunal to his previously submitted written statement of facts and contentions which follows in detail the chain of provisions in the Act required in order to satisfy all the elements of s 92H(4) of the Act. He submitted that the facts of the case precluded all but one avenue of discretion available to the Secretary. That is the discretion available to the Secretary in s 92Y of the Act which gives the Secretary the discretion to treat activity as gainful work.  Mr Noonan agreed that if it were to be found that Mrs Cook had been engaged in gainful work for a period of time within the period under question, this would result in the satisfaction of the work test referred to in s 92H(4)(b)(ii) of the Act. This in turn would free up the discretion of the Secretary to extend the period in which the applicants could lodge their application for the pension bonus.

CONSIDERATION

9. Qualification for the pension bonus is governed by s 92H of the Act. It is not in dispute that neither Mr Cook nor Mrs Cook met the 26 week window of time in which to lodge their applications. However, under the provisions of s 92H(3) the Secretary may extend the period of time to lodge an application unless precluded by the provisions of s 92H(4).

10. It is not in dispute that neither applicant meets the provisions of s 92H(4)(a) as both were in the paid workforce for a part of the pre-application period.

11. Sub-section 92H(4)(b)(i) requires the applicants to have been accruing members for some or all of the pre-application period.  It was conceded that this provision had been met in both cases.

12. Sub-section 92H(4)(b)(ii) requires the person to have passed the work test for each test period that is applicable to the person.  The work test is governed by the provisions of s 92U and s 92V of the Act which require the work claimed during the periods in question to be gainful. Section 92X gives the basic rule defining gainful work.  With one exception Mrs Cook was in paid employment for all parts of her pre‑application period and met the requirements of gainful work.  The exception is the period from 1 July 2007 to 2 January 2008, the period after the cessation of her paid employment. 

13. Section 92Y gives the Secretary discretion to treat an activity as gainful work if the Secretary is satisfied that the provisions of the four sub-sections are met.

(a)(1)(a) the person, or the person's partner, has engaged in a particular activity – in this case the claimed activity is the care of Mr Allan Bobbin.

(b)(1)(b) the activity involves a substantial degree of personal exertion on the part of the person or the person's partner, as the case may be – in considering this provision I accept the evidence of Mr and Mrs Cook that Mr Bobbin is an intellectually disabled grown man with a mental age which varies between 6 and 12 years old and that his care involves considerable personal exertion on the part of both Mr and Mrs Cook, particularly Mrs Cook, and I find accordingly.

(c)(1)(c) the activity does not consist of voluntary work for a charitable, welfare or community organisation – in considering this issue I noted first the advice given in the Guide to Social Security Law (the Guide). 

Section 1.1.G.20 of the Guide defines gainful work as:

… work performed for financial gain or reward.  The work must involve the member being engaged in some form of gainful activity for financial reward rather than contrived situations.

A member is NOT considered to be engaged in gainful work if they are:

Managing their own, or their family’s financial investments …

Performing domestic duties at their, or their partners’ place of residence, or

Engaged in any form of voluntary work.”

In this case there is no question of Mr and Mrs Cook being involved in any contrived situation.  The claimed activity is not concerned with managing financial investments.  While the care of Mr Bobbin may involve the performance of domestic duties, the evidence is that it involved principally performing functions for Mr Bobbin which he is incapable of performing for himself.  I find that the care of Mr Bobbin is not the performance of domestic duties as provided for in the Guide.

In regard to voluntary work I turn to the wording of s 92Y(1) of the Act:

(c)     the activity does not consist of voluntary work for a charitable, welfare or community organisation;

Taking that sub-section in its ordinary meaning I find that the care of Mr Bobbin is not voluntary work for a charitable organisation, nor voluntary work for a welfare organisation, nor voluntary work for a community organisation. 

(d)(1)(d) because of special circumstances, the activity should be treated as gainful work – in this case I consider the special circumstances of the care of an intellectually disabled grown man to be such that the activity should be treated as gainful work and I find accordingly.

14. As a consequence I am satisfied that all the provisions of s 92Y are met and determine that Mrs Cook’s care of Mr Bobbin for the period 1 July 2007 to 2 January 2008 constitutes gainful work. 

15. This finding allows the discretion of s 92H(3) to be exercised to extend the allowable period in which to lodge a claim for the pension bonus to the date on which the application was made.

16.     Due to the complexity and inter-relationships of all of the provisions of the Act I considered it inappropriate to attempt to determine the implications of the above gainful work finding on the individual applications of Mr and Mrs Cook.  Having regard to discussions with Mr Noonan I decide to remit the matter back to the respondent for determination on the basis that Mrs Cook was engaged in gainful work for the period 1 July 2007 to 2 January 2008.

DECISION

17.     The decision under review is set aside and the matter is remitted to the respondent with the direction that the entitlement to the pension bonus for the applicants is to be re-assessed in accordance with provisions of the Social Security Act 1991 and the Social Security Administration Act 1999 on the basis that Mrs Cook was engaged in gainful work for the period 1 July 2007 to 2 January 2008.

I certify that the seventeen [17] preceding paragraphs are a true copy of the reasons for the decision herein of:

Brigadier C Ermert (Retd), Member

(sgd)             Dianne Eva
  Clerk

Date of Hearing:  17 December 2010

Date of Oral Decision:  17 December 2010

Date of Written Decision  20 December 2010

Advocate for the applicants:               Self represented

Advocate for the respondent:             Mr Tim Noonan, Centrelink Advocacy Branch