ELSIE AMOAKO and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2009] AATA 771

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 771

ADMINISTRATIVE APPEALS TRIBUNAL      )           

)             No 2009/0993

GENERAL ADMINISTRATIVE DIVISION		)
Re		ELSIE AMOAKO

Applicant

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

Respondent

DECISION

Tribunal Ms L R Tovey, Member

Date              7 October 2009

PlacePerth

Decision The Tribunal affirms the decision under review.

…......(sgd) Ms L R Tovey............

Member

CATCHWORDS

SOCIAL SECURITY – Pensions – age pension – pension bonus – effect of receipt of workers compensation payments on eligibility

Social Security Act 1991 (Cth), ss 92C, 92N, 92P, 92T, 93V

REASONS FOR DECISION

7 October 2009 Ms LR Tovey, Member

1.      With the consent of the parties, this application is to be determined on the papers.  The question which the application raises is whether the Applicant qualifies for payment under the pension bonus scheme.

2.      In considering that question I have had regard to the Section 37 Documents provided by the Respondent, the Respondent's Statement of Facts and Contentions and a letter from the Applicant to the Tribunal dated 24 June 2009.  For the following reasons I have concluded that the Applicant's application for the pension bonus must fail.

3. Part 2.2A of the Social Security Act 1991 makes provision for the payment of a pension bonus where a person works past the age at which they are eligible to receive the age pension and registers as a member of the pension bonus scheme.  The Applicant applied for a pension bonus under the provisions of that Part on 13 October 2008.  That claim was rejected by the Respondent's delegate, an Authorised Review Officer of the Respondent and the Social Security Appeals Tribunal.  The Applicant now seeks a review of that decision by this Tribunal.

4.      While I have had regard to all of the factual material placed before me, the facts essential to my determination are few and may be shortly stated.  The Applicant qualified for age pension on 1 September 2006.  At that time she was working.  However, on 14 May 2007 she suffered an injury at work, and from 15 May 2007 received periodic payments of workers compensation.  On 15 August 2008 an agreement was registered under the Workers' Compensation and Injury Management Act 1981 (WA) which provided for the payment of a lump sum of $14,000 in settlement of the Applicant's workers compensation claim. That resulted in the Secretary determining a lump sum preclusion period commencing on 5 August 2008 and ending on 6 October 2008. The Applicant has not sought a review of that decision in this Tribunal. On 13 October 2008, the Applicant applied for the age pension and payment of a pension bonus. She was granted the age pension with effect from 7 October 2008, but the application for a pension bonus was refused.

5. Section 92C of the Act provides for the required qualifications for a pension bonus in the following terms:

"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 …; 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 [various pensions];

(f)  the person has not already received:

(i)  another pension bonus; or [bonus under Veterans Entitlement legislation]"

6.      The Applicant satisfies the criteria in paragraphs (a), (b), (e) and (f) above.  The Respondent contended that the Applicant did not satisfy the criterion in paragraph (c), in that she was not registered as a member of the pension bonus scheme.  This submission was made despite the fact that the Respondent had on at least two occasions advised the Applicant that she had been so registered with effect from her retirement age.  However, I have not found it necessary to determine this question as, even if the Applicant satisfied the criterion in paragraph (c), she did not meet the criterion in paragraph (d).  I shall therefore proceed on the assumption, in favour of the Applicant, that she either was or should be registered as a member of the pension bonus scheme with effect from 1 September 2006.

7. The critical question under s. 92C(d) of the Act is then whether the Applicant has accrued at least one full‑year bonus period since 1 September 2006.

8. Section 92T(1) of the Act provides that:

"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."

9. In that manner, s. 92T(1) requires that a person have a full year of "accruing membership" of the pension bonus scheme to qualify for a pension bonus.

10. Section 92N of the Act relevantly provides that a person’s membership of the pension bonus scheme at a particular time is "accruing" unless the person’s membership is "non‑accruing". Section 92P(2) of the Act provides that if a person is subject to a "compensation preclusion period" at a particular time when the person is a member of the pension bonus scheme, the person’s membership of the scheme is "non‑accruing" at that time.

11. Section 93V(1) and (2) of the Act provide that:

"(1)  For the purposes of this Part, if a person receives a lump sum compensation payment, the person is subject to a compensation preclusion period throughout the lump sum preclusion period.

(2)  For the purposes of this Part, if a person receives a series of periodic compensation payments, the person is subject to a compensation preclusion period throughout the periodic payments period."

12.     It follows from the above provisions that the Applicant was subject to a compensation preclusion period from the time when she commenced receiving periodic payments of workers compensation on 15 May 2007 until the end of her lump sum preclusion period on 6 October 2008.  She was therefore a "non accruing member" of the pension bonus scheme during that time.  She was an accruing member of the pension bonus scheme only from 1 September 2006 until 14 May 2007.

13. It follows that the Applicant never had a full‑year period of "accruing membership" of the pension bonus scheme, and so never completed her "first bonus period" within the meaning of s. 92T(1) of the Act. As a result, she did not meet the criterion of having "accrued at least one full‑year bonus period" in s. 92C(d) of the Act, even though she did satisfy the "work test". She therefore did not qualify for the pension bonus.

14. I have considered the provisions of Part 2.2A of the Act to see whether there is any way of avoiding this consequence, and can find none. This is not a case in which the Respondent or the Tribunal has any discretion. That would appear to accord with Parliament's intention in enacting the pension bonus scheme. As the Respondent notes in its contentions, the Minister's second reading speech to the Bill for the amending Act which introduced Part 2.2A into the Act specifically noted that a person would not be able to accrue a bonus for a relevant compensation preclusion period.

15.     For the above reasons I must affirm the decision under review.

I certify that the 15 preceding paragraphs are a true copy of the reasons for the decision herein of Ms LR Tovey, Member

Signed:         ................(sgd) Ms L Huynh..........................
  Associate

Dates of Hearing:  30 July 2009 (Dealt with on the papers)

Date of Decision  7 October 2009

Solicitors for the Respondent                   Centrelink Legal Services and Procurement Branch