Hunter and Secretary, Department of Family and Community Services

[2004] AATA 757

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 757

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V03/1316

GENERAL ADMINISTRATIVE  DIVISION		)
Re		BERNARD HUNTER

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Mr John Handley, Senior Member

Date20 July 2004

PlaceMelbourne

Decision The decision under review is affirmed.

(Sgd)  J Handley

Senior Member

SOCIAL SECURITY ‑ pension bonus scheme – applicant nominated 5 years of deferral of collection of pension – eligiblity subject to working 960 hours in each year – applicant unable to obtain work in fourth year – advised that one year of PBS membership could be deferred – advice incorrect – detriment to applicant – decision affirmed – recommendation for compensation

Social Security Act (Cth) s92A, s92X, s92T(4, s92R, s92P and s92Q

REASONS FOR DECISION

20 July 2004 Mr John Handley, Senior Member           

1.      Mr Hunter applies to review a decision of the Social Security Appeals Tribunal (“SSAT”) on 23 October 2003.  The SSAT then decided to affirm a decision previously made by an officer of Centrelink on 1 August 2003 refusing suspension of the applicant’s pension bonus registration.

2.      The hearing of the application was convened in Bendigo on 30 June 2004.  Mr Hunter appeared without representation.  The respondent was represented by Mr Todd.

3.      The circumstances may be briefly summarised as follows.

4.      Mr Hunter is presently 70 years of age having been born on 11 February 1934.  Shortly after his 65^th birthday in February 1999 he became registered as an accruing member of the pension bonus scheme (“PBS”) with effect from 18 May 1999.

5.      The effect of the PBS is to allow persons of pension age to defer claiming age pension for up to five years.  If persons defer collection of age pension, they become entitled to bonuses.  The rate of bonus progressively increases for each year of deferral.

6.      In the present application Mr Hunter commenced eligibility of the PBS from May 1999.  For each 12 month period after May 1999 until May 2002 he received a letter from Centrelink confirming his continuing registration as a PBS member (an “accruing member”) and at May 2002 he had achieved three years of membership.

7. The relevant legislation is found at s92A - 92X of the Social Security Act 1991.  It provides the legislative basis for qualification, registration, membership, accrual of bonus periods and the “work test”.  In the present circumstances, the work test is the completion of 960 hours of work in each 12 month period.

8.      Upon registration, Mr Hunter nominated deferral of age pension for a five year period.  Section 92T(4) provides that bonus periods must be consecutive and can only be separated by a period of “non-accruing membership”.  Section 92P and s92Q provide the basis for determination of a “non-accruing membership” period.  None of the provisions within those sections apply to the applicant.

9.      Mr Hunter has been casually and seasonally been employed throughout Australia since his membership of the PBS was commenced in 1999 comprising work on farms, orchards and other agricultural and associated activities.  Indeed for many years before registration commenced he undertook work of that type.

discussion of evidence

10.     Mr Hunter acknowledged in his evidence that the legislation would prohibit him from qualifying for continuity of PBS membership.  He said that he initially received a brochure from Centrelink prior to his 65^th birthday which explained the PBS scheme.  He produced the brochure and nowhere within it is there a reference to bonus periods being consecutive.

11.     In October 2002, Mr Hunter approached the Centrelink office in Shepparton.  He said that by reason of drought conditions then prevailing throughout Australia, it was unlikely that he would be able to complete 960 hours of work in the fourth year of membership.  On that basis he sought a deferral of membership of one year.

12.     At the hearing, Mr Hunter produced a handwritten note of a conversation he had with Mr Paul White, the Manager of the Shepparton Centrelink Office, on 10 October 2002.  The note records the conversation was of 53 minutes duration and it records that he sought advice on whether he could “skip/miss/defer a year on pension bonus scheme”.

13.     Another handwritten note made on 25 October 2002 is in the following terms:

Received call from Centrelink Shepp:  “OK to defer Pension Bonus Scheme for a year (May 02/May03), then re-start scheme May 03/04.  Confirmation to come by post Mon.”

14.     Mr Hunter said that these notes confirm that he had a conversation on two occasions with a Centrelink officer in Shepparton.  On the first occasion he enquired whether he could defer membership for one year.  On the second occasion (25 October 2002) his notes indicate that he was advised that it was permissible to defer membership for one year.

15.     On 18 November 2002 Mr Hunter forwarded another letter to Mr Paul White at Centrelink in Shepparton.  That letter was not contained within the T-documents but was produced by Mr Hunter at the hearing.  Omitting irrelevant parts the letter is in the following terms:

On 25/10/02 I received a phone call from you confirming my enquiry re deferring my “Pension Bonus Scheme” for the current period – (May 2002 to May 2003) – for twelve months.

I will then re-start the scheme in May 2003.

You also said that this would be confirmed in writing.  As yet I havent received this written confirmation.

16.     On 29 November 2002 Mr Paul Verbeek, customer service officer of Shepparton Centrelink, wrote to Mr Hunter.  The letter is at T15 page 27 of the T-documents and is incorrectly dated 8 July 2003.  Omitting irrelevant parts the letter reads (in part) as follows:

Firstly, my apologies for taking so long to get back to you in writing.  I have been delayed awaiting a reply from our policy people just to confirm your request as we have had another one at the same time, therefore I needed to confirm it.

The non accruing periods we talked about when we spoke about accruing periods and on-accruing relates to specific periods of non-accrual due to unforeseen circumstances such as sickness or compensation leave and the like.  It does not relate to periods of not being able to accrue the 960- hours required for the bonus year.

Therefore I was incorrect when I stated you could have an accrual period followed by periods of low employment hours and then accrue again the following year.

You can have a year of not being able to accrue the amount of hours, but after that year has happened you have only 13 weeks after the end of that year with not enough hours, to claim Age Pension and the bonus.  In your case this means that if this year you don’t accrue by 18^th May 2003, you have 13 weeks after this date to claim the Age Pension and the Bonus for the period 18^th May 1999 to 18^th May 2002.

I notice however that you actually turned Age Pension Age on 11^th Feb. 1999.  I do have the authority to backdate your Pension Bonus Scheme to this date.  This would mean that you will have between 11 Feb 2002 and 11^th Feb 2003 to accrue 960 hours work.

17.     Mr Hunter said that he was very surprised to receive the letter from Centrelink of 29 November 2002.  He said that having been advised on 25 October 2002 that his PBS membership could be deferred for 12 months he decided to accept an offer from members of his family to partially fund a trip to the Antarctic for three or four months.  He also decided shortly after 28 October 2002 to sell his home in Tocumwal.  Upon receiving the letter of 29 November 2002 he had completed and signed contracts for the sale of his home which was then irreversible.  He was also unable to avoid undertaking the trip to the Antarctic.  He reaffirmed that he would not have been able to achieve the 960 hours eligibility requirement prior to 11 February 2003 as the letter of 29 November 2002 stipulated.

18.     In a frank and candid manner Mr Hunter indicated that he was seeking “a fair go” by these proceedings.  He said that he always takes persons “on their word” and persons should “stick to that”.  He said that “they are sticking to the regulations but I’m not interested”.

19.     In summary Mr Hunter sought deferral of PBS membership for 12 months.  He is confident of being able to obtain work in the current year and next year of 960 hours and in those circumstances seeks continuing membership of PBS by working five of the six years from May 1999.

conclusion

20.     In the present application Mr Hunter did not work 960 hours in the period May 2002 to May 2003.  In those circumstances he did not have continuing eligibility within the PBS.  By reason of bonus periods being of consecutive years and by reason of him having nominated a five year bonus period upon application in February 1999 he will not qualify for a pension bonus.  The period of deferral sought by him (May 2002 to May 2003) is not a “non-accruing” pension period within the meaning of s92P or s92Q.  There is no capacity under the legislation to permit completion of five years of work at 960 hours per year within a period greater than five years and accordingly the effect of the decision under review – which will be affirmed by this decision – is to cause Mr Hunter to loose the benefit of the first three years of qualification since membership commenced in February 1999.

21.     However, this is an application where Mr Hunter has been given incorrect advice by Centrelink officers and over which he has acted to his detriment and has suffered loss.

22.     On the one hand, it could be said that irrespective of the advice given he did not work 960 hours in the fourth year commencing May 2002 and in those circumstances his membership of the scheme lapsed.

23.     However I prefer the view expressed by him that the PBS brochure issued by Centrelink in early 1999 and the advice orally given to him by Centrelink officers contain no reference at all to consecutive years of membership.  Additionally I accept him to be a witness of truth and who was advised – incorrectly – that membership could in fact be deferred.  It was in those circumstances that he made arrangements in late 2002 to travel to the Antarctic for three months.  Despite his belief that he would not be able to obtain 960 hours of work within the 12 month period commencing May 2002 that possibility – however remote – cannot be excluded.  It may be that had he been advised that deferral was not possible that work could have been obtained.  Certainly he did not seek it because he acted on the advice that he was given.  I also accept that having agreed to travel to the Antarctic and the cost associated with that trip – that it would have been impracticable and of severe financial detriment for him to have abandoned the trip.

24.     I accept and find as a fact that advice was given in October 2002 that deferral was possible because the letter from Mr Verbeek of 29 November 2002 acknowledges that advice previously given was “incorrect”.

25.     I acknowledge that Mr Verbeek did seek advice from an officer within the Policy Unit of Centrelink concerning the personal circumstances of Mr Hunter.  I also acknowledge from the reply forwarded to Mr Verbeek by that officer that Mr Hunter’s circumstances - and circumstances of other persons who had been affected by the drought within Australia – was a matter where a discretion would be preferred to permit deferral of membership.  However the advice given by the officer was that the legislation, as it then stood, (in the circumstances of Mr Hunter) could not permit a finding of the 12 month period commencing in May 2002 as being a “non-accrual” period.

26.     A scheme of compensation is available to persons who have suffered detriment by negligent advice.  Citizens are entitled to rely upon advice given by public officers who are charged with the responsibility of administering public benefits.  However well intentioned were the relevant officers that spoke with Mr Hunter, the advice given to him was clearly negligent and detriment was suffered.  It would have been preferable for clarification from the Policy branch to have been sought before the incorrect advice was given.  Mr Hunter could register again as a member of the PBS and obtain credits in future years.  This is of little present comfort because he has lost the benefit of him completing three years of membership between 1999 and 2002.

27.     Mr Hunter is a person who has been of considerable benefit to the Australian community by electing to defer collection of Age Pension since he achieved his 65^th birthday in February 1999.  He is a person who intends to continue to work and his enterprise and endeavour should be acknowledged favourably in an application I understand he intends to make for compensation under the CDDA Scheme.

28.     Having regard to his circumstances as referred to above I recommend that favourable consideration be given to him in such an application.

I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of:
 Mr John Handley, Senior Member

Signed:         Holly Weston
  Associate

Date of Hearing  30 June 2004

Date of Decision  20 July 2004
Solicitor for the Applicant          Self Represented
Departmental Advocate            Mr M Todd