Gradara and Secretary to the Department of Family and Community S Ervices

[2003] AATA 235

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 235

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2002/993

GENERAL ADMINISTRATIVE  DIVISION

Re:         TARCISIO GRADARA

Applicant

And:       SECRETARY TO THE
  DEPARTMENT OF FAMILY AND

COMMUNITY SERVICES

Respondent

DECISION

Tribunal:       M.J. Carstairs, Member

Date:             26 February 2003

Place:            Melbourne

Decision:For reasons given orally at the hearing, the Tribunal affirms the decision under review.

(sgd) M.J. Carstairs

Member

SOCIAL SECURITY ‑ bonus for older Australians ‑ whether proper claim

A New Tax System (Bonuses for Older Australians) Act 1999 s8

REASONS FOR DECISION

26 February 2003  M.J. Carstairs, Member

1.      This is an application by Mr V. Gradara (the applicant) for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 5 September 2002.  The SSAT affirmed a decision of an authorised review officer of the Secretary to the Department of Family and Community Services (the respondent), rejecting a claim for payment of the Bonus for Older Australians.

2.      The applicant appeared in person, and Mr M. Todd, a Centrelink advocate represented the respondent.

3. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T documents) and two exhibits numbered A1 and A2.  The Tribunal also had before it a Statement of Facts and Contentions lodged by the respondent on 24 February 2003. 

BACKGROUND

4.      The applicant is aged 71 years.  He has been in receipt of aged pension, as it appears from the records, since 16 May 1996.  On 22 January 2002 he lodged a form headed Registration for Pension Bonus Scheme.  A decision rejecting the claim was made on 25 June 2002.  The applicant sought review of that decision.  An authorised review officer affirmed the decision on 8 July 2002.  This was subsequently reviewed by the SSAT, and in its decision dated 5 September 2002 the SSAT affirmed the authorised review officer's decision.  The applicant applied to this Tribunal for review of the SSAT decision on 18 September 2002. 

EVIDENCE

5.      The applicant told the Tribunal that in early 2000 he went to the Essendon office of Centrelink where an officer named "Bob" accessed his computer record and checked the level of his savings.  According to the applicant's evidence, "Bob" gave general advice, namely that the applicant would not be eligible for the Bonus for Older Australians.  Later, in about October 2000, the applicant returned to the Essendon office.  On that occasion, the applicant said, his computer screen was not accessed.  The applicant said that this had been misunderstood when, later, the Essendon office was investigating whether any error on the part of Centrelink might have occurred in processing his claim in 2000.  (It was apparent from the documents before the Tribunal that after the SSAT hearing, the Essendon office had considered whether the applicant was entitled under separate provisions, not reviewable by this Tribunal, known as “Compensation for Detriment due to Defective Administration”..)

6.      The applicant subsequently obtained a claim form headed Pension Bonus Scheme from the Fitzroy office of Centrelink (T12).  However, he did not lodge this form until 22 January 2002.  The applicant did not dispute this fact.  He said that he had not lodged the form because he had been told he was not eligible.

7.      The applicant contacted Centrelink in November 2001 (T5).  Document T5 is a computer record that indicates that, on 20 November 2001, during the course of an interview, the applicant wished to discuss the $1000 bonus.  He was advised that he would not be entitled to receive this bonus as he was on aged pension and had to apply for the bonus by December 2000.  It was too late to apply now.

8.      The applicant's Commonwealth Bank passbook (Exhibit A1) showed that he had fortnightly income of some $400 (pension payment) that was used each fortnight and depleted to at or about nil by the time of next fortnightly payment.  This was a regular pattern throughout the period that is relevant to this claim. 

9.      The applicant had numerous issues arising from earlier dealings with the Essendon Centrelink office, from the course of his enquiries about the Pension Bonus Scheme, and since he sought review of the decisions made in regard to the Pension Bonus Scheme.  The Centrelink office at Essendon examined these issues when considering his claim for compensation, referred to above.  Compensation was denied. 

CONSIDERATION OF THE ISSUES

10.     The legislation providing for this one-off payment was the A New Tax System (Bonuses for Older Australians) Act 1999 (the Act). Section 8 of the Act provides as follows:

8(1)   An individual who wants to be paid a bonus payment under this Part must make a proper claim for the payment.

8(2)   A claim by an individual for a bonus payment under this Part is a proper claim if:

(a)he or she is not required to lodge an income tax return for the 1999-2000 income year; and

(b)at the time of making the claim, he or she has not lodged an income tax return for that income year; and

(c)in the claim, he or she states that he or she does not intend to lodge an income tax return for that income year; and

(d)on 1 July 2000, he or she is not receiving a service pension, a carer service pension or an income support supplement; and

(e)       the claim is made after 30 June 2000 and before 1 July 2001; and

(f)the claim is given to the Secretary in a form (which may be an electronic form), and in a manner, approved by the Secretary.

…

11.     The applicant submitted that, had it not been for the advice that he was not eligible to receive the bonus payment, he would have put the claim form in on time. Therefore, he was eligible for the payment and it should have been paid to him. 

12.     Mr Todd submitted that the failure to lodge the claim form in the time permitted under the Act was fatal to any payment now, as there was no discretion to change the date of lodgement.  He told the Tribunal that the applicant, on the evidence available through Exhibit A1, would otherwise have been entitled to some $3.50 in Pension Bonus payment. 

13.     In considering the evidence the Tribunal accepts the applicant's evidence as a true recollection of the events that occurred in his dealings with Centrelink.  The Tribunal accepts that his computer record was accessed in early 2000 in order to make some comment on his level of savings..  It appears that both parties may have been confused, because there are two schemes; one is called the Pension Bonus Scheme, and the other is a one-off payment called the Bonus for Older Australians.

14. The Tribunal accepts that the applicant obtained the wrong form from the Footscray office. The form was for the Pension Bonus Scheme, to which the applicant was not entitled, as he was already in receipt of age pension. However, the fact that the form was the wrong one would not have made a difference if it had been lodged at a Centrelink office within the time provided for claiming the Bonus for Older Australians under the Act. Section 8(2)(e) of the Act states that the claim must be made after June 2000 and before 1 July 2000. However, the applicant lodged the form in January 2002. Once the date has passed to lodge a claim, there is no discretion under the Act to allow for this one-off payment. For this reason the decision made by the SSAT is correct and the Tribunal must affirm the decision under review.

DECISION

15.     The Tribunal affirms the decision under review.

I certify that the fifteen [15] preceding paragraphs are a true copy of the reasons for the decision of:

M.J. Carstairs, Member

(sgd)       Olympia Sarrinikolaou

Clerk

Date of hearing:  26 February 2003

Date of decision:  26 February 2003
Advocate for applicant:                Self‑represented
Advocate for respondent:            Mr M. Todd, Centrelink advocate