Dumic and Department of Family and Community Services

[2001] AATA 932

DECISION AND REASONS FOR DECISION [2001] AATA 932

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2001/643

GENERAL ADMINISTRATIVE DIVISION         )          
           Re      IVAN DUMIC          
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES  
  Respondent

DECISION

Tribunal       Ms J Cowdroy, Member     

Date9 November 2001

PlaceBrisbane

Decision      The Tribunal affirms the decision under review.          

(Signed)
  J Cowdroy
  Member
CATCHWORDS
SOCIAL SECURITY – pension bonus

Social Security Act 1991 s 92C

REASONS FOR DECISION

9 November 2001   Ms J Cowdroy, Member     

1. By decision dated 29 June 2001, the Social Security Appeals Tribunal (the SSAT), affirmed a decision of an officer of Centrelink dated 26 April 2001 to refuse a claim for pension bonus. 

2. An application for review of that decision by the Administrative Appeals Tribunal was received on 26 July 2001.

3. At issue is whether the applicant has entitlement to pension bonus.

4. The matter was decided on the basis of the written submissions of both parties and the Section 37 documents.

5. The facts are not in dispute.  Essentially, Mr Dumic lodged an application for pension bonus on 11 April 2001 (T5).  On 26 April 2001 his claim was rejected.  (T7)

6. The applicant reached the age of 65 years on 1 March 1997.    At that time he was in receipt of disability support pension.  By letter dated 6 May 1997 addressed to the applicant, the respondent advised the applicant that he was to receive age pension, as he had reached age pension age. 

7. In November of 1997, the applicant advised Centrelink he had resumed work, consequently his pension was cancelled after 27 November 1997.  This advice was contained in a letter to the applicant dated 25 November 1997.  The applicant contended that he did not receive the letter dated 6 May 1997 so he had no knowledge he was receiving age pension.

8. From November 1997 the applicant was employed, until his retirement in January of 2001.  He subsequently claimed pension bonus.

9. The applicant's submissions, dated 20 July 2001, are set out in T1.  He said that he had never lodged a claim for age pension.  Prior to the claim being rejected, he said he was not aware that a person was precluded from receiving pension bonus if that person was in receipt of age pension at any time before making the claim for pension bonus.  He submitted that had he been aware of that fact, he might have elected not to claim benefits for the period March to November 1997. He considered that he had been disadvantaged because of lack of information provided by Centrelink on this aspect when he reached 65 years.

10. The respondent's submissions are dated 28 September 2001.  Their thrust is that as Mr Dumic received age pension and disability support pension since reaching age pension age on 1 March 1997, he is precluded from entitlement to pension bonus.  As the pension bonus scheme commenced on 1 July 1998, Centrelink staff could not have advised the applicant when he turned 65 years that by claiming pension, he would be precluded from pension bonus. 

LEGISLATION & DETERMINATION:

1. Section 92C of the Social Security Act 1991 (the Act) sets out the qualifications for payment of pension bonus. It states:

   "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 the claim for the pension bonus; and
   (ii) that age pension is received otherwise than because of a scheduled international social security agreement (within the meaning of section 1208);

   (b)the person has not received an age pension at any time before making the 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 age pension; and

   (f)        the person has not already received:
             (i) another pension bonus; or
   (ii) a bonus under Part IIIAB of the Veterans' Entitlements Act"

2. It is not in dispute that Mr Dumic was in receipt of disability support pension when he turned 65 years.  Further, it is not disputed that he received age pension between May and November of 1997, or that he then worked for more than three years before claiming pension bonus.  The Tribunal makes findings in accordance with those agreed facts.

3. Section 92C(b) of the Act precludes payment of pension bonus if a person has received an age pension at any time before making a claim for the pension bonus.

4. In the present circumstances, Mr Dumic's receipt of age pension during 1997 precludes him from meeting one of the essential criteria for payment of pension bonus. Even if he had not received age pension, his receipt of disability support pension would mean he cannot meet section 92C(e)(i) in that he is not a person "who has not received a social security pension". In this regard, a person's state of knowledge as to whether age pension is being received is not a relevant matter to be considered. However, even if the applicant was aware that he had been receiving age pension, he would have had no knowledge at that time that such an event was likely to disentitle him to pension bonus.

5. As Mr Dumic pointed out, the legislation precludes a person from receiving pension bonus if that person was in receipt of age pension for a period as short as one week and then worked for the ensuing five years before claiming pension bonus.  Whilst this may seem a harsh result, the legislation, properly interpreted, would require such a finding to be made.  However, the Tribunal has no discretion in this matter and therefore the applicant does not qualify for payment of pension bonus.  The decision under review is affirmed.

I certify that the 15 preceding paragraphs are a true copy of the reasons for the decision herein of J Cowdroy, Member

Signed:         .....................................................................................
  Associate

Hearing on the papers
Date of Decision  9 November 2001