Heckenberg and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2009] AATA 705

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 705

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/0056

GENERAL ADMINISTRATIVE DIVISION		)
Re		STEWART HECKENBERG

Applicant

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

Respondent

DECISION

Tribunal Ms Naida Isenberg, Senior Member

Date15 September 2009

PlaceSydney

Decision The Tribunal sets aside the decision under review and remits the matter for reconsideration with the direction that the applicant was registered for the Pension Bonus Scheme and that on 17 June 2008 applied for the pension bonus, and is entitled to the pension bonus from that date subject to meeting the remaining criteria.

................[sgd]..............................

Ms Naida Isenberg
  Senior Member

CATCHWORDS

SOCIAL SECURITY – pension bonus scheme – registration for pension bonus scheme – discretion to extend time for registration – work test – qualification for pension bonus – decision under review set aside

Social Security Act 1991 (Cth) s 92C, 92H, 92U, 93C

REASONS FOR DECISION

15 September 2009 Ms Naida Isenberg, Senior Member        

BACKGROUND

1.      Mr Heckenberg, who was born in 1937, became eligible for age pension in 2002. However, he did not apply for age pension at that time, and instead worked part time to support himself. In 2008 he applied for age pension and also the pension bonus, although he had not previously registered for that scheme. His application for pension bonus was refused. That decision was affirmed on internal review and by the Social Security Appeals Tribunal.

LEGISLATION

2.      The Pension Bonus Scheme (“PBS”) was introduced on 1 July 1998 and is a voluntary scheme rewarding people who defer claiming age pension and stay in the workforce.

3. One criterion for eligibility is that a person is registered as a member of the PBS: s 92C of the Social Security Act 1991 (Cth) (“the Act”). Ordinarily, an application for membership of the scheme is to be made in the period beginning 13 weeks before and ending 13 weeks after the date of qualification for the age pension: s 92H. There is a discretion to extend the period for application of the PBS: s 92H(3). A late application for registration can be made providing a person would have been an accruing member for some or all of the pre-application period, that is, the period between the date of qualification and the date of application, and passes the work test for each applicable test period: s 92H(4)(b)(i) and (ii). To satisfy the work test the person must have gainfully worked at least 960 hours per annum: s 92U. In demonstrating this, s 92H(7) of the Act provides relief from the otherwise strict record keeping requirements of s 93C.

ISSUES

4.      The issues to be considered are:

·Whether Mr Heckenberg is eligible to register for the PBS.

·Whether Mr Heckenberg is qualified for a pension bonus.

CONSIDERATION

5.      At the outset, Mr Heckenberg said that he had not heard of the PBS until he went to apply for the age pension; he had not previously sought any benefits from Centrelink and so did not know of it. He thought that Centrelink had not advertised it sufficiently widely.

6.      By way of background, Mr Heckenberg said that he had initially worked as a carpenter and then joined the Police for 10 years from 1959. He re-joined the building industry where he worked for several more years. He then took a position at Parliament House as the assistant building manager and worked there in the mid 1970s. He returned to the building industry again and moved to Queensland. He returned to New South Wales - contracting for building jobs, building “spec” homes (including a block of units), and sub-contracting for major building companies.

7.      He decided to cease full time work in 2002 when he turned 65, and instead do “odd jobs”. He explained that that meant he no longer contracted directly to do building jobs, nor did he personally sub-contract for major builders. His son is a builder and was able to give him work, as would his many industry contacts.

8.      Because he retained his building supervisor’s licence and also his drainage supervisor’s licence he was able to undertake that important supervisory role part time, including, for example, when his son went overseas for a couple of months, he was able to take over full time supervision of his son’s building project.

9.      His evidence was of consistent work activity since he turned 65.

10.     His various jobs included repairs, assisting his son in sub-contracting work, installing doors and locks, lawn mowing, and miscellaneous odd jobs:

·Repairs: He undertook extensive repairs on houses in Casula, Ingleburn and Cronulla. He did this work every couple of months for an average of about 50 hours per week. He would often leave home by 5:30 am and not arrive home again until after dark. He would be undertaking activities such as relining rooms and undertaking plumbing and drainage activities.

·Assisting his son in sub-contracting work: He assists his son every couple of months in his building projects for up to two weeks, and this might entail more than 40 hours of work per week. The work he does is mainly the framework for cottages.

·Doors and locks: As part of the noise minimisation scheme he was sub-contracted to install doors and locks on properties under the flight path. This work might take 4-8 hours a job, especially if the premises were “ramshackle”, as many of them were. He undertook several of these installations.

·Lawn mowing: He would mow lawns only about once a month.

·Miscellaneous: Other odd repairs may take 2-4 hours per week.

11.     The general rule for payment for his services was “cash in hand”, with the occasional cheque. There was no set hourly rate, and his remuneration depended on the job, and how much the prime contractor was prepared to pay for it. Mr Heckenberg said he lived off the money and did not bank it. Cheques, by necessity, were banked. The advocate for the Respondent was critical of Mr Heckenberg for not producing his bank statements, but as I said at the hearing, Mr Heckenberg’s bank statements would not have been helpful in ascertaining the number of hours Mr Heckenberg might have worked, because the bulk of his payments were in cash. Mr Heckenberg said that he did not earn enough to require him to lodge a tax return. As there was no dispute that the income threshold was in the vicinity of $25,000, I understood his evidence to mean that he earned less than that amount.

12.     Mr Heckenberg said that he did not keep any records of how much he earned or when he worked, as he was not aware he had to. This is consistent with his evidence that he was unaware of the PBS until he applied for the age pension. I accept his evidence that had he been aware that it was required then he would have kept records.

13.     Mr Heckenberg provided statements from his children and also two industry colleagues. All were consistent in their account of him continuing to work past age 65 and up until last year, but none was able to specify the number of hours Mr Heckenberg might have worked, and, to that extent, the statements were largely unhelpful.

14.     The evidence then as to the number of hours worked, is contained in Mr Heckenberg’s statutory declaration of 16 March 2009 in which he wrote that he “would have worked for at least an average of 960 hours [each financial year from 1 July 2003 to 30 June 2008]”, and his oral evidence, referred to above.

15.     I accept that Mr Heckenberg’s evidence supports a finding that he worked, each year since he turned 65, broadly calculated as follows:

Activity	Frequency/month	Duration	Hours/month
Repairs	bi-monthly	50 hours	25
Assisting son	bi-monthly for 2 weeks	80 hours	40
Doors and locks	once a week	4 hours	1
Lawn mowing	once	2 hours	2
Miscellaneous	per week	3 hours	12
Total hours per month	80
Total per annum	960

16.     I have therefore come to the view that Mr Heckenberg satisfied the work test in that he worked 960 hours each full year work test period, or part thereof during the pre-application period.  Although it was not conceded by the Respondent that Mr Heckenberg was an accruing member of the PBS for some or all of the pre-application period I am satisfied that this prerequisite for the exercise of the discretion to extend the time for application is satisfied. I consider that the discretion to extend the time for application should be exercised, the extension being granted to 17 June 2008.

17.     I also accept that in completing his claim form for the age pension and PBS he intended to register for the PBS and also to apply for the pension bonus. In coming to this view, I accept his evidence, which was not challenged, that when he spoke with the Centrelink officer at the time of application for aged pension he was advised to “put in the form anyway”, notwithstanding that he had not previously registered for the PBS.

DECISION

18.     The Tribunal sets aside the decision under review and remits the matter for reconsideration with the direction that the applicant was registered for the Pension Bonus Scheme and that on 17 June 2008 applied for the pension bonus, and is entitled to the pension bonus from that date subject to meeting the remaining criteria.

I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Ms Naida Isenberg, Senior Member

Signed:         ................[sgd]................................................................
  Associate

Date of Hearing  1 September 2009
Date of Decision  15 September 2009
Appearance for the Applicant   Self-represented

Solicitor for the Respondent     Mr G Lozynsky, Centrelink Legal Services     and Procurement Branch