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

[2010] AATA 868

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 868

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/0787

GENERAL ADMINISTRATIVE DIVISION		)
Re		KEVIN and DAPHNE GIESE

Applicant

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

Respondent

DECISION

Tribunal Mr R G Kenny, Senior Member

Date5 November 2010

PlaceBrisbane

Decision The Tribunal affirms the decision under review.  

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

Senior Member

CATCHWORDS

SOCIAL SECURITY – Pension bonus scheme –– Work test not satisfied after 2004 - Claim pension bonus made in 2007 – Use of Explanatory Memorandum and Guide to Social Security - Claim lodged out of time – No basis for extension of time - Decision affirmed.

Acts Interpretation Act 1901 (Cth) s 15AB
Social Security Act 1991 ss 92A, 92C, 92N, 92P, 92Q, 92U, 92V, 92W, 93U, 93V, 93W, Pt 2.2A
Social Security (Administration) Act 1999 (Cth) ss 21, 22, 23

Social Security and Veterans Affairs Legislation Amendment (Pension Bonus Scheme) Bill 1998

Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634
Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 41 FCR 82

REASONS FOR DECISION

5 November 2010 Mr R G Kenny, Senior Member    

APPLICATION

1. Under Part 2.2A of the Social Security Act1991 (Cth) (“the Act”), the pension bonus scheme (“the scheme”) enables people who stay in remunerative employment after reaching the relevant age for payment of the age pension, but who defer claiming the age pension, to receive a single-sum pension bonus[1].  John and Daphne Giese reached the age pension age on 5 February 1999 and 30 April 1996, respectively.  They applied for registration in the scheme on 4 December 2003.  They were registered as members with effect from February 1999 at which time they were both employed by the New South Wales Department of Education and Training (“the Department”).  On 19 December 2007, Mr and Mrs Giese claimed the age pension and pension bonus.  On 15 January 2008, a Centrelink officer accepted the claims for age pension but rejected the claims for pension bonus.  Those decisions were affirmed by an authorised review officer on 19 May 2008 and by the Social Security Appeals Tribunal (“the SSAT”) on 16 November 2009.

[1] Section 92A of the Act.

ISSUES AND LEGISLATION

2.      Qualifications for the pension bonus include the requirements that the person must be registered as a member of the scheme, must not have received the age pension and must have accrued at least one full year bonus period[2].  Once registered in the scheme, a person will either be an accruing member[3] or a non-accruing member[4].  The latter description has particular meaning and involves some dispensation for not being an accruing member[5].  It is not disputed that Mr and Mrs Giese were accruing members.  In general, they must pass the work test during a period of accruing membership[6].  The work test for a full year is defined as 960 hours of gainful work[7] and, for a part year period, it can be satisfied on a pro‑rata basis[8].  It is not disputed that Mr and Mrs Giese did not meet the work test after they ceased work as casual teachers with the Department in 2004.   

[2] See s 92C of the Act.

[3] See s 92N of the Act.

[4] See s 92P, 92Q of the Act.

[5] See ss 92P(1) and 93U (disposal preclusion period); ss 92P(2) and 93V (compensation preclusion period ) ss 92P(3) and 93W (carer preclusion period) and s 92Q (where the secretary exercises a discretion).

[6] See commentary on clause 92C in the Explanatory Memorandum to the Social Security and Veterans Affairs Legislation Amendment (Pension Bonus Scheme) Bill 1998.  For use of such material in the interpretation of an Act, see Acts Interpretation Act 1901 (Cth) s 15AB.

[7] See s 92U of the Act.

[8] See s 92V of the Act.

3.      The Social Security (Administration) Act1999 (Cth) (“the Administration Act”) sets out the time-frames within which an application for pension bonus must be made[9].  The claim must be made within 13 weeks of a person ceasing to meet the work test although there is provision for this to be extended[10]. It is common ground that the claims by Mr and Mrs Giese were made outside of the 13 week period. Accordingly, the issue is whether an extension of time may be granted to them. While the Administration Act does not do so, guidance in relation to the exercise of the discretion to extend time is provided in The Guide to Social Security Law (“the Guide”) at 3.4.7.80[11]. 

[9] See ss 21-23 in Part 3 Division 1 of Subdivision E of the Administration Act.

[10] See s 23(1) of the Administration Act.

[11] For appropriateness for use of the Guide to assist in the interpretation of the Act, see Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634 at 639-645 and Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 41 FCR 82 at 86.

SUBMISSIONS

4. Mr Giese submitted that the claim for age pension was made in December 2007 after he and his wife had received advice from Centrelink that they may be eligible following amendments to the Act in relation to the application of the assets test. They applied for the pension bonus at that time as well because they were aware that this had to be lodged at the same time and because they were aware they had completed five years of work after they had reached the age pension qualifying age. Mr Giese submitted that he and his wife had ceased work in 2004 and were aware at that time that the level of their assets was such as to preclude them from receiving the age pension. For that reason, they felt that they could not apply for the age pension or the pension bonus at that time. Mr Giese contended that he and his wife were disadvantaged by the rapid rise in the value of their share portfolio during the last 18 months or so of their working time. He considered this to be a special circumstance which should be taken into account when deciding whether to exercise the discretion to extend the lodgement time. Mr Giese also submitted that he and his wife had not been fully advised of the rules pertaining to the pension bonus scheme and, in particular, to those relevant to the time for lodgement of a claim.

5.      For the respondent, Bob Hamilton submitted that the increase in value of Mr and Mrs Giese’s assets was not a special circumstance in this matter but one which bestowed upon them an economic advantage at the time not shared by those without a share portfolio.  He referred to the underlying purpose of the Social Security legislation as one involving the provision of assistance to those in need.  Further, he submitted that this did not amount to an “inability” to make a claim as is reflected in the examples provided in the Guide.  He also considered that the length of the delay, in this case a period of more than two years, also vitiated against the exercise of discretion in favour of Mr and Mrs Giese.

CONSIDERATION

6.      Mr and Mrs Giese were teachers with the Department and continued on a casual basis after they reached their respective normal retiring ages.  They worked with decreasing frequency over the years but remained ready to accept work when it was offered.  They continue to be registered as teachers but have received no offers of work for some five or so years.  In evidence was a copy of a pension bonus scheme booklet which they did not recall receiving.  Nevertheless, their respective registration forms were also in evidence and these contain a declaration, signed by both Mr and Mrs Giese, that they had been advised of and understood their rights and obligations in relation to the pension bonus scheme.  A letter was also sent to Mr and Mrs Giese on 12 December 2003 in which reference was made to their declaration in their registration form and an invitation was extended to them to contact Centrelink if they wished to know more about the pension bonus scheme.

7.        Also in evidence was a record of contact between Mr Giese and a Centrelink officer on 6 October 2004 which indicates that he was to attend an interview one week later to consider options about claiming the age pension and the pension bonus.  A Centrelink record for 13 October 2004 was in evidence and it records an interview of 60 minutes in duration in which details of the pension bonus scheme were explained to Mr Giese, in which his assessable assets were identified as being $395,000 in value.  Mr Giese was also advised that he would be able to claim 35% of the age pension and 35% of the pension bonus at that time.  The note continues with the comment that Mr Giese was to give consideration to whether to make a claim.  Neither Mr nor Mrs Giese could recall this meeting but it was at that time that they realised that the value of their asset was greater than $395,000 and exceeded the level which would qualify them for an age pension.

8.      The matters referred to in the Guide in relation to the extension of time for claiming pension bonus are where the member:

·has poor numeracy or literacy skills;

·was ill;

·was located in a remote area;

·performed irregular work that made it difficult for the member to determine the lodgement period;

·was helping a close family member suffering from a serious illness;

·has experienced the death of a close family member; or,

·has experienced a major disruption to their living arrangements such as their home being fully or partially destroyed or the member or the member’s partner moved into a nursing home.

9.      As I read those matters, they refer to circumstances which constitute a barrier to the physical process of lodging a claim.  The level of Mr and Mrs Giese’s assets from 2004 to 2007 is not a special circumstance of that nature.  While I accept that they had irregular work as casual teachers, this ended some two years before their claim was made and did not contribute to their determination of the lodgement period.  Their application was not lodged within 13 weeks of ceasing work because they believed that they were not qualified for the age pension due to the value of their assets and believed that they could not make a claim for that pension or the pension bonus which they knew had to be lodged at the same time.  The circumstances of Mr and Mrs Giese in the period after they ceased work are not in the nature of the matters listed in the Guide as being relevant to the extension of time and, in particular, not for the period of more than two years.   I am satisfied that there is no basis for extending the time for Mr and Mrs Giese lodging their claim for pension bonus.

DECISION

10.     The decision under review is affirmed.

I certify that the 10 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member

Signed: ........................[Sgd].............................................
  Kate Slack, Research Associate

Date/s of Hearing  27 October 2010
Date of Decision  5 November 2010
The Applicants were self represented
For the Respondent                  Mr B Hamilton, Departmental advocate