Girdlestone and Secretary, Department of Social Services

[2017] AATA 573

Girdlestone and Secretary, Department of Social Services [2017] AATA 573 (28 April 2017)

Division:GENERAL DIVISION

File Number:           2016/3771

Re:Lynette Girdlestone

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Brigadier AG Warner, Member

Date:28 April 2017

Place:Perth

The Tribunal dismisses application 2016/3771 pursuant to section 42B(1) of the Administrative Appeals Tribunal Act1975 on the basis that it has no reasonable prospect of success.

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Brigadier AG Warner, Member

CATCHWORDS

SOCIAL SECURITY – Pension Bonus Scheme – whether applicant submitted an application for registration to the Pension Bonus Scheme prior to cut-off date – application out of time – no discretion in legislation - application for review dismissed

LEGISLATION

Administrative Appeals Tribunal Act1975 – s 42B
Social Security Act1991 – s 92

CASES

Re Filsell and Comcare [2009] AATA 90

Re Quinn v Australian Postal Corporation (1992) 15 AAR 519

REASONS FOR DECISION

Brigadier AG Warner, Member

28 April 2017

INTRODUCTION

1. Mrs Girdlestone seeks review of a decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) dated 24 June 2016 which affirmed a decision of an Authorised Review Officer (ARO) dated 21 March 2016 to reject Mrs Girdlestone’s application for registration in the Pension Bonus Scheme (PBS).

2. The Secretary, Department of Social Services has applied to the Tribunal for the dismissal of this application pursuant to section 42B of the Administrative Appeals Tribunal Act1975 (AAT Act) on the basis that the application for review does not have reasonable prospects for success.

3. An interlocutory hearing, attended by Mrs Girdlestone, was conducted on 17 March 2017.

   BACKGROUND

4. Mrs Girdlestone was born in 1945, and was 63.5 years of age on 30 April 2009.

5. On 10 February 2016, Mrs Girdlestone lodged a Registration for the Pension Bonus Scheme form (registration form) with the Department of Human Services – Centrelink to register for the Pension Bonus Payment (PBP) (T7/pp42-75).

6. On 17 February 2016, Mrs Girdlestone’s application for registration as a member of the PBS was rejected (T9/77-78), and on 21 March 2016 an ARO affirmed the decision (T12/85-90).

7. On 1 April 2016, Mrs Girdlestone requested a review by the AAT1.  AAT1 affirmed the ARO decision on 24 June 2016 and noted:

   ·Mrs Girdlestone did not dispute that she applied for registration as a member of the PBS on 10 February 2016;

   ·The application of s 92C and s 92D of the Social Security Act1991 (the Act) meant that Mrs Girdlestone was not qualified for the PBS;

   ·There was no discretion in the legislation which allows for an extension of time for registration for the scheme;

   ·Mrs Girdlestone claimed that she contacted Centrelink in late December 2014 and was incorrectly advised that she was not eligible for a PBP because she was not in receipt of an income support payment; and

   ·The AAT1 was not aware of any extension having been made beyond 1 July 2014 with respect to the registration date (T3/11).

8. On 18 July 2016, Mrs Girdlestone lodged an application with the Tribunal for a review of the AAT1 decision.  She gave the following reasons for the application:

   A different decision should be made that is fair and equitable.  The situation needs to be considered, to be a fair interpretation of my rights, as other Australian citizens were, when accessing the pension bonus scheme entitlement (Exhibit 1 sect 3).

   ISSUE

9. The Tribunal must decide whether the decision to reject Mrs Girdlestone’s application lodged on 10 February 2016 for registration in the PBS was correct.

   RELEVANT LEGISLATION AND PRINCIPLES

10. The Tribunal was asked to dismiss this application pursuant to s 42B of the AAT Act. Section 42B(1) gives the Tribunal the power to dismiss an application for the review of a decision, at any stage of the proceeding, if the Tribunal is satisfied that the application:

    (a)is frivolous, vexatious, misconceived or lacking in substance; or

    (b)has no reasonable prospect of success; or

    (c)is otherwise an abuse of the process of the Tribunal.

11. The principles governing dismissal pursuant to s 42B of the AAT Act were set out by DP Jarvis in Filsell and Comcare [2009] AATA 90 and relevantly include at [33]:

    …

    (c) The power of the tribunal to dismiss proceedings under s 42B is a power that should be used cautiously. Unless the tribunal is satisfied that the application is frivolous or vexatious in the sense referred to in subparagraphs (a) and (b) above, an applicant should not be denied the right to have the tribunal review the decision on the merits, by conducting a hearing den novo and considering the evidence that the applicant can properly adduce at the hearing….

    (d) However, if proceedings have no reasonable prospect at all of success, they should be dismissed under s 42B, since it would be futile for the proceedings to continue, and inappropriate to use the time and resources of this tribunal, and to put the respondent to the expense that would be involved in the matter proceeding to a hearing.

12. The Tribunal also notes the public interest in finality in Tribunal proceedings, such as that currently before the Tribunal.  In Re Quinn v Australia Postal Corporation (1992) 15 AAR 519, the Tribunal said at (526):

    The Tribunal considers that there are strong reasons, both in case law and expressed in public policy, to limit the relitigation or continual review of substantively similar matters.

13. The statutory provisions relevant to Mrs Girdlestone’s substantive application are contained in s 92 of the Act.

14. The simplified outline of s 92A of the Act provides that a person who wants to receive PBP must register as a member of the PBS. An application for registration cannot be made on or after 1 July 2014.

15. Subsection 92C(c) of the Act provides that a person is only qualified to receive the PBP if the person is registered as a member of the PBS.

16. Subsection 92D(2) of the Act states that a person cannot make an application for registration to the PBS on or after 1 July 2014.

17. Section 92H of the Act provides that a person must lodge an application to register for the PBS within a timeframe of 26 weeks commencing 13 weeks before a person reaches Age Pension age and ending 13 weeks after the person reaches Age Pension age.

    EVIDENCE

18. The Tribunal had before it the following evidence:

    ·Application for Second Review of Decision dated 18 July 2016, including Attachment – “Reasons for disagreement with decision” (Exhibit 1);

    ·Secretary’s Written Submissions in Support of Application for Dismissal dated 9 January 2017 (Exhibit 2);

    ·Applicant’s Submissions in Response and Support of her Appeal, filed 25 January 2017 (Exhibit 3);

    ·Respondent’s email dated 14 February 2017 (Exhibit 4);

    ·Applicant’s Response “Continuation of Direction” dated 15 February 2017 (Exhibit 5);

    ·Statutory Declaration by Lynette Girdlestone dated 13 March 2017 (Exhibit 6);

    ·The “T Documents” (T1-14, pp 1-112, Exhibit 7); and

    ·The oral evidence of the applicant.

    CONSIDERATION

19. The tenor of Mrs Girdlestone’s submissions and her evidence before the Tribunal can be summarised as follows:

    ·     Mrs Girdlestone felt that as a matter of fairness she should be entitled to the PBP as it was introduced for people like her who continued to work beyond Age Pension age;

    ·     Several professional colleagues had told Mrs Girdlestone that the PBS had been extended until the end of December 2014 and that  she would be entitled to it, and her sister-in-law (who Mrs Girdlestone states has knowledge about PBS requirements) advised her in October/November 2015 that she was entitled to a PBS payment;

    ·     Mrs Girdlestone claims to have contacted Centrelink on (or about) 29 December 2014, but for advice provided by a Centrelink officer during that call would have lodged her registration form by the extended date of 31 December 2014.

    ·     Mrs Girdlestone received telephone calls from a Centrelink officer on 20 January 2016 and 27 January 2016 and was told her complaint was valid; and

    ·     Mrs Girdlestone submitted that she had worked a total of seven years after retirement age and had not claimed any payments from Centrelink during her working life.  Accordingly, there needed to be consideration of fairness and a justifiable exception to the rule made in her case.

20. Mrs Girdlestone reached Aged Pension age on 30 April 2009, and accordingly was required to submit her registration for membership to the PBS by 29 July 2009.  There is no evidence before the Tribunal to indicate that Mrs Girdlestone lodged the relevant registration form by that date or as a late application in the period 29 July 2009 to 30 June 2014.  Relevantly, Mrs Girdlestone has stated:  “My Registration was lodged on the 10^th February 2016” (T2/7).  Mrs Girdlestone’s lodgement, therefore, was some 19 months after the date from which the legislation details that registration cannot be accepted.

21. Mrs Girdlestone claims that she contacted Centrelink in late December 2014 or January 2015 in relation to her application (T2/5, T3/11, T6/38, and T12/87).  In addressing this claim, the respondent submits:

    … The Secretary notes that it is the practice of Centrelink customer service officers to record all contact with customers and that customer contact notes that are provided at pages 102 to 112 of the T-documents do not evidence such contact in December 2014 or January 2015.  The earliest record of contact from the Applicant is recorded as 10 February 2016.

    The Secretary notes the Applicant’s contention that she placed weight on the advice received during the alleged contact in December 2014 or January 2015 and accordingly did not register for the PBS at this time.  The Secretary contends that even if the contact in December 2014 or January 2015 resulted in an appointment with a Centrelink officer or a registration form being completed; registration as a member of the PBS was no longer possible at this time, given that closure for registration as a member of the PBS took effect on 1 July 2014 (Exhibit 2 para 4.15 - 4.16).

22. At Exhibit 4, the respondent confirmed the absence of a record of a telephone call between Mrs Girdlestone and Centrelink on or about 29 December 2014. Having regard to the relevant material, the Tribunal accepts the respondent’s contentions regarding Mrs Girdlestone’s claimed contact with Centrelink in December 2014 or January 2015.

23. Mrs Girdlestone requests that the Tribunal consider a “justifiable exception to the rule” in her case (T2/7). The Tribunal considers that s 92D of the Act makes it abundantly clear that a person cannot make an application for registration to the PBS on or after 1 July 2014 and there is no discretion to allow exceptions.

24. Mrs Girdlestone also contended that the current legislation does not apply to her circumstances and that her claim should be considered under repealed legislation which allowed for extensions of time.  In response the respondent submitted, and the Tribunal agrees, as follows (Exh 4):

    We note the discretion to allow for extensions for time applied to registrations that occurred outside the 13 week period after the person reached aged pension age but before the cut-of (sic) date of 1 July 2014.  Relevantly, those provisions were removed with effect from 1 April 2014.  We contend that there is no discretion under the current legislation which allowed for an extension of time for registration to the scheme on or after 1 July 2014.

    We also note the Applicant has referred to the online Social Security Guide 3.4.7.20.  We note that the Guide contains a disclaimer that states “Registrations ceased on 1 July 2014 and the following information is for historical purposes only.”  The information contained in the Guide is only relevant for persons who registered for the scheme prior to 1 July 2014.

    CONCLUSION

25. The Tribunal is satisfied that Mrs Girdlestone submitted her registration form for the PBS on 10 February 2016, and that there is no evidence that she registered as a member of the PBS before 1 July 2014.  Accordingly, Mrs Girdlestone is out of time to register as a member of the PBS.  The relevant legislation does not provide a discretion for exceptions.

26. Having careful regard to all the evidence, the Tribunal concludes that the decision of AAT1 on 24 June 2016 is the correct and preferable decision, and that allowing the matter to proceed to a further hearing would be an inappropriate use of time and resources.

    DECISION

27. As Mrs Girdlestone’s application has no reasonable prospects of success, the Tribunal dismisses the application pursuant to s 42B(1) of the AAT Act.

I certify that the preceding 27 (twenty-seven) paragraphs are a true copy of the reasons for the decision herein of Brigadier AG Warner, Member

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Administrative Assistant

Dated: 28 April 2017

Date of hearing:	17 March 2017
Applicant:	In person
Representative for the  Respondent:	Mr A Burgess
Solicitors for the Respondent:	Sparke Helmore Lawyers