DENISE STEEL and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2009] AATA 467

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 467

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  2008/5437

GENERAL ADMINISTRATIVE DIVISION		)
Re		DENISE STEEL

Applicant

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

Respondent

DECISION

Tribunal Mr D Connolly AM, Member

Date26 June 2009

PlaceSydney

Decision The decision under review is affirmed.

.................[sgd]...........................

Mr D Connolly AM
  Member

CATCHWORDS

Social Security - pension bonus scheme- qualifications for pension bonus – previous receipt of age pension.

RELEVANT ACT/S:

Social Security Act 1991 – section 92C

Social Security (Administration) Act 1999 – section 36

Acts Interpretation Act 1901 – section 28A and 29

CITATIONS

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

REASONS FOR DECISION

26 June 2009	Mr D Connolly AM, Member
Appearances

1.      The Applicant, Ms Denise Steel, attended the hearing and was represented by Mr Christopher Spanos, solicitor.  The Respondent was represented by Ms Raewyn Harlock, solicitor for Centrelink Legal Services.

2.      At the hearing the following material was taken into evidence from the parties:

Exhibit T1 – documents prepared in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the T-Documents) and statements of facts, issues and contentions presented by both the Applicant and the Respondent.

Decision under Review

3.      The decision under review was made by the Social Security Appeals Tribunal on 8 October 2008, which affirmed an earlier decision by Centrelink not to pay Ms Steel a pension bonus.

Background

4.      Ms Steel lodged a claim for age pension with Centrelink on 17 May 2004. She was granted a pension on the same day and Centrelink sent her a confirmation notice on 19 May 2004 advising that a payment of $63.91 would be credited to her bank account on 31 May 2004 and that her regular fortnightly age pension payment would be $81.34.  Ms Steel claimed that she did not receive this advice but did not dispute that it was sent.

5.      Ms Steel visited the Sutherland Centrelink office on 2 June 2004 to advise that she had undertaken casual work.  Centrelink cancelled her pension with effect from 30 May 2004.  A payment of $23.24 for the period 28 May 2004 to 30 May 2004 was credited to her bank account on 7 May 2004.

6.      On 14 August 2006, Ms Steel lodged a ‘Registration for the Pension Bonus Scheme’ form with Centrelink.  She was told, in error, that she could not be registered because she had previously been paid an age pension.  Centrelink confirmed this advice in writing on the same day.

7.      On 10 November 2006, Ms Steel sought a review of this decision stating that the pension payments made by Centrelink were mistakes.  She claimed that although she had filed the paperwork for a pension, she was later offered part-time work and returned to Centrelink in Sutherland where she was told her claim had not been processed and would be placed on hold indefinitely.

8.      Ms Steel’s appeal was decided in her favour on 16 November 2006 because there is no prohibition on registration for the pension bonus scheme based upon previous receipt of age pension.

9.      On 21 June 2007, Ms Steel attended an interview with Centrelink where she was given general advice about the age pension and told that it was unlikely that she could qualify for the pension bonus.

10.     On 12 December 2007, Ms Steel lodged a claim for both the age pension and the pension bonus.  She was granted an age pension from 29 November 2007 but her claim for the pension bonus was refused because she had previously received an age pension in 2004.

11.     On 14 April 2008, Ms Steel sought a review of that decision and on 22 July 2008, an Authorised Review Officer affirmed the decision.  She applied to the Social Security Appeals Tribunal on 16 July 2008 seeking a review of the Centrelink decision to refuse her claim to a pension bonus.

12.     On 8 October 2008, the Social Security Appeals Tribunal affirmed Centrelink’s decision, at which stage Ms Steel appealed to the Administrative Appeals Tribunal.

Applicant’s case

13.     On 8 April 2004, Ms Steel was made redundant by her employer.  On 17 May 2004, she attended the Sutherland Centrelink office and submitted a completed “Claim for Age Pension” form signed by the Applicant and her partner on the same date.

14.     Centrelink advised Ms Steel that she could expect to receive approximately $90 per fortnight in age pension as her partner was still employed.  On the basis of this advice, the Applicant claimed that she asked that her age pension application not be processed, as she would need to seek out part-time employment, which had been offered by her previous employer.  She was advised verbally by the Centrelink officer that her completed application form could be kept on file and processed when requested in future and that the Applicant should keep Centrelink advised of any changes to her income or work status.

15.     On the same day, Ms Steel was granted the age pension.

16.     Centrelink claimed that on 19 May 2004 Ms Steel was sent a letter detailing the grant of her age pension effective from 17 May 2004 and that she would receive a payment of $63.91 for the period from the grant on 27 May 2004 and, subsequently, a fortnightly payment of $81.34.  The Applicant claimed that she had no recollection of having received this or subsequent letters but did not dispute that they were sent to her as mail had been pilfered previously from her mailbox.

17.     On 14 August 2006, Ms Steel lodged a “Registration for the Pension Bonus Scheme” form with Centrelink and was advised that the registration could not be accepted.  Centrelink later conceded that this advice was incorrect.

18.     Ms Steel was further advised at the time and in a letter dated 14 August 2006 that no pension bonus scheme payment could be made because of her previous age pension payments.

19.     On 10 November 2006, Ms Steel applied to have the Centrelink decision reviewed, noting the apparent error in Centrelink payments as the basis for her registration to proceed.  On 16 November 2006, her request for a review was successful on the basis that receipt of an age pension payment does not, on its own, prevent registration for the Pension Bonus Scheme (PBS).

20.     On 12 December 2007, Ms Steel lodged a claim for age pension and PBS.  Her claim for the age pension was granted effective from 29 November 2007 but her claim for the PBS was rejected on the grounds that she had previously received age pension payments for the period 17 May 2004 to 31 May 2004.  She received written notification of this  by letter dated 5 February 2008.

21.     On 14 April 2008, in a letter dated 25 March 2008, the Applicant requested a review of her eligibility to receive a pension bonus payment.  On 22 July 2008, an Authorised Review Officer confirmed the decision by Centrelink to deny the Applicant a pension bonus payment on the grounds that she had received two previous age pension payments.

22.     On 16 September 2008, Ms Steel applied to the Social Security Appeals Tribunal (SSAT) requesting a review of the previous Centrelink decision.  On 8 October 2008, the SSAT affirmed Centrelink’s decision to deny the Applicant the pension bonus payment.

Issue before this Tribunal

23.     The issue before the Tribunal is whether Ms Steel is precluded from receiving a payment under the PBS.

Evidence before the Tribunal

24.     In coming to the correct and preferable decision, I have taken into account all the evidence, submissions, case law and relevant legislation.

25.     There is no dispute that Ms Steel completed and tendered an application for the age pension at the Sutherland Centrelink office on 17 May 2004.  It was approved on the same day and the first payment for $63.91 was credited to her bank account on 31 May 2004.  On 2 June 2004, Ms Steel attended the Centrelink office to advise that she had undertaken casual employment and her pension was cancelled with effect from 30 May 2004.  A further payment of $23.24 for the period 28 May 2004 to 30 May 2004 was credited to her bank account on 7 May 2004.

26.     Ms Steel told the Tribunal that she had been thinking about retirement since about January 2004 and she was made redundant from her full-time employment by her employer on 8 April 2004.  Her employer’s certificate of employment gave the date as 8 April 2003 but the Tribunal and the parties accept that this was in error.  She stated that she had an understanding with her former employer that she could return in a part-time capacity, if necessary.

27.     Ms Steel stated that when she attended the Centrelink office on 17 May 2004 at around 10:00 to 11:00 am, and submitted a completed claim for the age pension form and enquired about her pension entitlement, she was told by a female officer that her pension would be small, about $80 per fortnight, due to her partner being in full employment.  On the basis of this advice, Ms Steel claimed that she told the officer that she would have to consider her options, including seeking part-time employment.  Ms Steel stated that she had asked the officer not to activate her pension application.  Ms Steel claimed that she was informed that her application would be placed on hold in her file until she asked  for it to be reactivated.

28.     Ms Steel told the Tribunal that she was unaware that two pension payments had been made into her bank account before she returned to the Centrelink office on 2 June 2004 because she did not receive regular bank statements.  She also stated that she had not received the Centrelink letters confirming the payments, although she did not claim that they were not sent as other mail had been previously pilfered from her mailbox.  Ms Steel’s solicitor told the Tribunal that it was not until around 14 August 2004 that she became aware that the two payments had been made into her account.

29.     While the Applicant and the Respondent are largely in agreement on most of the background facts in this matter, there was substantial disagreement in regard to the Applicant’s claims in regard to her Centrelink meeting in all respects, except the date on which it took place, namely 17 May 2004.

30.     The Respondent pointed out that the Departmental file (at T5, p 12) noted that Ms Steel had an interview with a female officer at Centrelink at 9.10am on 10 February 2004 and was given the necessary age pension forms to complete.  The next recorded meeting between Ms Steel and Centrelink was at 2.30 pm on 17 May 2004 where, according to the Departmental file (at T8, pp 16), she was interviewed by a male officer.  Apart from the date, the Applicant was in error both as to when she actually attended at Centrelink, in the afternoon not in the morning as claimed, and that she was interviewed by a male not a female officer as claimed.

31.     Ms Steel, in her statement of Facts, Issues and Contentions, claimed that in view of the complexity of the PBS and the SSAT’s view that she  “presented as an honest and open woman” the Tribunal should accept her recollection of events.  However, when questioned by the Tribunal, she said that she recalled seeing a “rude” male officer when she handed in her pension application forms but stated that with the passage of time, she may have been in error as to both the time of the meeting and the gender of her interviewer.

32.     The Respondent submitted that on the basis of these significant errors of recollection, it was most probable that Ms Steel was under the impression that she may have asked the officer not to take action on her application but in fact, this was not what occurred.  Ms Steel’s age pension was granted within two and a half hours of the interview on 17 May 2004 (see T10, p 40), which indicated that the officer had acted almost immediately on his understanding of the Applicant’s intentions.  Furthermore, according to the Respondent, the officer would have had no legal authority to hold back Ms Steel’s application although the Applicant claimed that she asked whether it could be cancelled and received a response in the negative.

33. The Tribunal was told by the Respondent that once a claim for a pension was lodged under section 36 of the Social Security Act (Administration) 1999, it must be granted or rejected.  If a claim remains unprocessed, appeal rights accrue.  Consequently, the practice is to process all claims as soon as they are received, which the Respondent told the Tribunal occurred in this case and is supported by the Centrelink case file.

34.     Ms Steel told the Tribunal that she accepted that her claim had been processed almost immediately and did not dispute that there was no legal process for putting claims on hold and that if an arrangement had been entered into it would have been informal.  Nevertheless, Ms Steel claimed that an informal arrangement had been made and that her pension paid back in 2004 had been paid in error.  The Respondent stated that there was no evidence on the Departmental file to support this contention, however much Ms Steel may have believed it to be so.

35.     Ms Steel’s solicitor contended that the principle identified by Senior Member Isenberg in Rodham and the Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 1331 is relevant to her claim:

…

On 19 February 2003, Mr Rodham attended the Centrelink office in Forster to enquire about the PBS.  He said the clerk he saw knew little about the scheme.  Mr Rodham was given an application for age pension with a view to recording all his particulars so an objective analysis of his circumstances could be made so as  to determine if he were entitled to the pension bonus.  Mr Rodham took the form, filled it out and returned it with further information.  He had no intention of applying for the age pension because he was still working.

…

36.     The Respondent pointed out that Mr Rodham was only enquiring about his entitlement to a pension bonus and was incorrectly advised by a Centrelink official to complete an age pension claim form.  He had not sought the age pension because at that time he was still in full-time employment.  Consequently, Ms Steel’s situation differs fundamentally from that of Mr Rodham.

Consideration

37.     There is no dispute that Ms Steel made enquiries about receiving the age pension, and later on 17 May 2004 lodged her application, which was processed immediately, with the pension granted on the same day (T10, pp 40-41).  Nor is there dispute that subsequently the pension was paid in two age pension payments on 31 May 2004 and on 7 June 2004.  The Applicant advised Centrelink on 2 June 2004 that she was in casual employment (T15, p 48) and further payments ceased.

38.     The essence of Ms Steel’s claim is that the age pension was paid by mistake after she had entered into an informal agreement with an officer of Centrelink not to proceed with her application until further advised, after she was told that her pension benefit would be less than $80 per fortnight and she wanted to review her options, including seeking part-time employment.

39.     The Tribunal has noted that Ms Steel’s recollection of her meetings with officers of Centrelink differs markedly from the account of those meetings on the Centrelink file.  Ms Steel told the Tribunal that she was unsure as to whether her interviewer, whom she claimed had agreed to place her pension application ‘on hold’, was male or female.  In her previous claims, she had stated that it was a male officer.  Furthermore, she claimed that the interview was in the morning when the Centrelink file clearly states that it was in the afternoon.  In view of the Applicant’s inability to recall these critical events after such a long time lapse, the Tribunal has concluded that the account of the interview on the Centrelink file is more accurate than Ms Steel’s recollection of events.

40.     The Tribunal finds that Ms Steel attended Centrelink on 17 May 2004 and lodged a valid claim for an age pension.  The claim was processed almost immediately and two payments were subsequently credited to her bank account.

41. The Tribunal does not accept as credible Ms Steel’s claim that the officer agreed to place her claim for a pension ‘on hold’ and then processed it, almost immediately, in error. The Tribunal noted that Centrelink officers are required under section 36 of the Social Security (Administration) Act1999 to process all claims by granting or rejecting them otherwise appeal provisions may be activated.  The evidence on the Centrelink file suggests that this is the more plausible explanation.

42. Section 92C of the Social Security Act1991 states that a person is qualified for a pension bonus if they start to receive an age pension at or after the time when the person makes a claim for the pension bonus and, among other things, has not received an age pension at any time before making a claim for the pension bonus (T3, p 8). Furthermore, section 92C(b) of that Act states that a person is not qualified for a pension bonus if they have received an age pension at any time before making a claim for a pension bonus.

43. The Tribunal has noted that the parties are in agreement that Ms Steel applied for the age pension on 17 May 2004 and that two payments were subsequently made, although Ms Steel claimed that she was unaware at the time, as she did not receive regular bank statements. The Tribunal has not given weight to this claim and accepts that sections 28A and 29 of the Acts Interpretation Act 1901 operate to deem that Ms Steel received the notices of payment as noted in the Centrelink file.  The Tribunal is satisfied that Ms Steele received such payments prior to her application for a pension bonus.

Decision

44. On the basis of the evidence, the Tribunal is satisfied that the Applicant is unable to meet the eligibility criteria to qualify for a pension bonus under section 92C of the Social Security Act1991 because she received an age pension before making a claim for a pension bonus.  As the Tribunal has no discretion in this matter, the decision under review is affirmed.

I certify that the forty four (44) preceding paragraphs are a true copy of the reasons for the decision herein of Mr David Connolly, Member

Signed:  …………………[sgd]……………………………….

Richard Guemy, Associate

Date/s of Hearing:  5 May 2009
Date of Decision:  26 June 2009
Solicitor for the Applicant:                  Mr C Spanos, Ca Legal
Solicitor for the Respondent:             Ms R Harlock, Centrelink Legal Services