Hurburgh and Secretary, Department of Family and Community Services

[2002] AATA 442

DECISION AND REASONS FOR DECISION [2002] AATA 442

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2002/02

GENERAL ADMINISTRATIVE   DIVISION     )          
           Re      CLIFTON MAURICE HURBURGH         
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES        
  Respondent

DECISION

Tribunal       Ms A F Cunningham (Part-time Member)          

Date12 June 2002

PlaceHobart

Decision      The decision under review is affirmed.             
  [Sgd A F Cunningham]
  Part-Time Member
CATCHWORDS
Social Security – age pension – pension bonus scheme – accrual of bonus periods – applicant aged over 75 years when first registered as an accruing member, thus unable to accrue bonus periods under the legislation. 
Social Security Act 1991 – s92C, 92S

REASONS FOR DECISION

12 June 2002          Ms A F Cunningham (Part-time Member)   

1. The applicant has sought the review of a decision made by a Centrelink Officer on 16 July 2001 rejecting his claim for Pension Bonus Scheme payment.  The decision was affirmed by the Social Security Appeals Tribunal (SSAT) on 12 December 2001.

2. Both parties to the appeal requested that the Tribunal determine the matter on the basis of the written material submitted. This included the T documents lodged pursuant to s37 of the Administrative Appeals Tribunal Act 1975, and correspondence received from the applicant on 10 January 2002, 19 April 2002 and the respondent's Statement of Fact and Contentions with attachments.

3. It would be appear from the contents of the applicant's letter of appeal to the Tribunal that he does not contend that the decision under review was incorrect as it was made in accordance with legislative provisions.  The applicant stated:

   "However I am appealing on the grounds that somebody within the government or Minister for Social Security's office issued a statement which was printed in "The Aged Pension"  NEWS to the effect that they were prepared to back date the years that a pensioner could claim the pensioner bonus."

The applicant went on to state that he had approached the Ombudsman in relation to the issue who required a decision from this Tribunal before the matter could be investigated by that Office.

1. The decision appealed against determined that the applicant, whilst registered as a member of Pension Bonus Scheme, was not entitled to receive a Pension Bonus Scheme payment  because he had not accrued any bonus periods upon being entitled to receive the age pension.   The relevant provisions in the Social Security Act 1991 ("the Act") provide that a pensioner cannot accrue bonus periods after turning 75 years of age.

2. It is the applicant's contention that this provision in the legislation is discriminatory on the basis of age.    The SSAT in its decision stated that whilst this appeared to be case, it was unable to come to any different decision than that reached by the original decision-maker because of the "clear and unambiguous intention of the legislation".

3. There was no dispute as to the following facts and the Tribunal finds that:

(a)The applicant registered as a member of the Pension Bonus Scheme on 23 February 2000 when aged 83 years having been born on 15 January 1917. 

(b)On 31 March 2000 the applicant was sent a notice by Centrelink confirming his registration as a member of the Scheme from 23 February 2000.

(c)The applicant ceased work as a dentist on 28 June 2001.

(d)On 5 July 2001 the applicant lodged a claim for age pension and the Pension Bonus Scheme.

(e)By a notice dated 16 July 2001 the applicant was informed that he would not be paid a pension bonus because he had "not accrued at least  one full year bonus period".   This decision was subsequently affirmed by an authorised review officer on 24 September 2001.

1. The Tribunal must determine whether, in accordance with the relevant legislation, the decision not to pay the applicant a Pension Bonus was correct.

2. The legislation relevant to the Pension Bonus Scheme is contained in Part 2.2A of the Act. Section 92C states:

   "92C A person is qualified for a pension bonus if:
   (a)       both:

   (i)the person starts to receive an age pension at or after the time when the person makes a claim for the pension bonus; and

   (ii)that age pension is received otherwise than because of a scheduled international social security agreement (within the meaning of section 1208); and

   (b)the person has not received an age pension at any time before making a claim for the pension bonus; and

   (c)the person has not received an age pension at any time before making a claim for the pension bonus; and

   (d)the person has accrued at least one full-year bonus period while registered as a member of the pension bonus scheme."

3. Section 92B states that the term "bonus period" has the meaning given by s92T.    Sub-section (1) states that "the first bonus period that accrues to a person is the full year-period of the person's accruing membership of the pension bonus scheme…".   To determine when the applicant became an accruing member of the bonus scheme reference is made to the provisions of s92N which provide: "For the purposes of this part, a person's membership of the pension bonus scheme at a particular time is accruing unless the person's membership is non-accruing or post-75 at that time".

4. Section 92S states: "A person's membership of the pension bonus scheme is post-75 at all times after the person reaches age 75".

5. The applicant turned 75 years of age on 15 January 1992 which was prior to his registering as an accruing member.   The provisions of s92N make it quite clear that he could not therefore have been "accruing membership" which would entitle him to accrue any bonus periods under s92T.  

6. As the applicant was unable to accrue any bonus periods under the provisions of the legislation, he was thus not entitled in accordance with the provisions of s92A, for a "pension bonus".

7. The Tribunal is unsure as to why the applicant's application to register as a member of the  Pension Bonus Scheme was accepted on 23 February 2000 when he was already aged 83 years and was thus unable to accrue bonus periods in accordance with the provisions of the relevant legislation.

8. The Tribunal having determined that the decision under review was correctly decided in accordance with the current legislative provisions, it accordingly affirms the decision under review.

I certify that the 13 preceding paragraphs are a true copy of the reasons for the decision herein of  Ms A F Cunningham
(Part-time Member)

Signed:         K L Miller            .....................................................................................
  Personal Assistant

Date/s of Hearing  Matter decided on the papers.
Date of Decision   12 June 2002