Ilona Smith and Secretary, Department of Housing, Community Services and Indigenous Affairs
[2012] AATA 84
•15 February 2012
[2012] AATA 84
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/3215
Re
Ilona Smith
APPLICANT
And
Secretary, Department of Housing, Community Services and Indigenous Affairs
RESPONDENT
DECISION
Tribunal Mr R G Kenny, Senior Member
Date 15 February 2012 Place Brisbane The Tribunal affirms the decision under review.
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Mr R G Kenny, Senior Member
CATCHWORDS
SOCIAL SECURITY – Application by applicant’s partner for registration for the pension bonus scheme – Claim for pension bonus bereavement payment based on that registration application –Applicant’s partner not registered for the pension bonus scheme – Use of Guide to Social Security Law – Applicant not eligible for pension bonus bereavement payment – Decision affirmed.
LEGISLATION
Social Security Act 1991 (Cth) ss 92A, 92B, 92C, 92E, 92F, 92H, 92J, 93WA.
Social Security (Administration) Act 1999 (Cth) ss 26A, 26B.
CASES
Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 41 FCR 82
Re Dainty and Minister for Immigration and Ethnic Affairs (1987) 6 AAR 259
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
SECONDARY MATERIALS
Guide to Social Security Law, version 1.183 (released 3 January 2012)
REASONS FOR DECISION
Mr R G Kenny, Senior Member
15 February 2012
APPLICATION
Under Part 2.2A of the Social Security Act 1991 (Cth) (the Act), the pension bonus scheme (the scheme) enables people who stay in remunerative employment after reaching the relevant age for payment of the age pension, but who defer claiming the age pension, to receive a single-sum pension bonus.[1] Terence Vowles reached the age pension age on 3 December 2004 and applied for registration for the scheme on 18 March 2005. He died on 10 December 2009. On 6 August 2010, Ilona Smith lodged a claim with Centrelink for the pension bonus bereavement payment (PBBP) on the basis that Mr Vowles was registered in the scheme and that she was his partner. On 10 September 2010, a Centrelink delegate rejected Ms Smith’s claim on the basis that she was not Mr Vowles' partner. On 11 February 2011, an authorised review officer affirmed that decision on the basis that Ms Smith was not the partner of Mr Vowles and also because Mr Vowles was not registered for the scheme. On 21 July 2011, the Social Security Appeals Tribunal (the SSAT) determined that, although Ms Smith was Mr Vowles' partner, Mr Vowles was not registered for the scheme. Accordingly, the SSAT affirmed the Centrelink decision.
[1] See s 92A of the Act.
ISSUES AND LEGISLATION
Qualification for the PBBP is set out in s 93WA of the Act, which reads:
93WA Qualification for pension bonus bereavement payment
A person is qualified for a pension bonus bereavement payment if:
(a) the person stopped being a member of a couple because the person's partner died; and
(b) immediately before the partner died, the partner was a registered member of the pension bonus scheme; and
(c) the partner had not made a claim for age pension or pension bonus before the partner died.
Mr Bob Hamilton, for the respondent, no longer disputed the first of those requirements and I am satisfied that Ms Smith was Mr Vowles' partner at the time of his death on 10 December 2009. Mr Hamilton also conceded that Mr Vowles had not made a claim for age pension or pension bonus before he died. I am satisfied that such concession was properly made. The first issue for determination is whether, immediately before Mr Vowles died, he was registered for the scheme.
Qualification requirements for the pension bonus include meeting the requirements for the age pension[2] and being registered for the scheme[3]. An application for registration in the scheme “must be in writing and must be in accordance with a form approved by the Secretary”.[4] Registration for the scheme means[5] registration under s 92J(1) of the Act, which reads:
92J Registration
(1) If an application is made in accordance with this Subdivision, the Secretary must register the applicant as a member of the pension bonus scheme.
…
[2] See ss92C and 92H of the Act.
[3] See 92C(c) of the Act.
[4] See s 92E of the Act.
[5] See s 92B of the Act.
That provision has effect subject to s 92F(2) of the Act which, in so far as relevant, reads
92F Relevant information
…
(2) The secretary may, by written notice given to the applicant, require the applicant to give the Secretary, within a specified period, further relevant information. The Secretary may refuse to register the applicant until the applicant gives the Secretary the information.
…
(4) For the purposes of this section, relevant information includes (but is not limited to):
(a) information that would be likely to assist the Secretary in advising the applicant about the operation of this Part; and
…
The Social Security (Administration) Act 1999 (Cth) (the Administration Act) sets out the time-frames within which an application for PBBP must be made.[6] The claim by Ms Smith must have been made within 26 weeks of Mr Vowles' death. It is not disputed that Mr Vowles died on 10 December 2009 and it is common ground that the claim by Ms Smith was made outside of that 26 week period. However, s 26B of the Administration Act provides for an extension of that time. It reads:
26B Extension
The Secretary may in special circumstances allow a person a longer period to make a claim than the period under section 26A. If the Secretary does so, the person's claim must be made before the end of the period allowed by the Secretary.
[6] See s 26A of the Administration Act.
In the event that all of the requirements for the PBBP are met by Ms Smith, the second issue is whether an extension of time should be allowed under that provision.
SUBMISSIONS
Ms Smith
Ms Smith submitted[7] that Mr Vowles was registered for the scheme and identified a Centrelink minute where that was confirmed. She submitted that Mr Vowles had lodged his application and had followed up with additional information when Centrelink requested this. She submitted that Mr Vowles had always believed that he was a member of the scheme. Ms Smith noted a Centrelink minute which described Mr Vowles as "NRQ" (not residence qualified) but submitted that this was of no consequence because it was undated. Further, she submitted that Mr Vowles' passport entries confirmed that he had been in Australia at all relevant times sufficient for him to satisfy residence requirements. She also submitted that any rejection of Mr Vowles' application had to be communicated by Centrelink in writing and that this had not been done.
[7] I have considered material provided to the Tribunal after the hearing.
While conceding that her application for PBBP was out of time, Ms Smith submitted that an extension of time should be granted because she had been unaware of the payment during the 26 week lodgement period, had been responsible during that period as executor of Mr Vowles' estate and had experienced adverse health consequences as a result of Mr Vowles' sudden and unexpected death.
Mr Hamilton
For the respondent, Mr Hamilton acknowledged that Mr Vowles believed that he had been accepted into the scheme. He accepted that Mr Vowles had lodged an application for registration for the scheme on 18 March 2005. He also conceded that there was no Centrelink record of any notification to Mr Vowles that his application had been rejected. Nevertheless, he submitted, Mr Vowles was not registered for the scheme at any time before his death. He acknowledged that Mr Vowles had provided additional information to Centrelink on 30 March 2005 and 5 April 2005 but noted that this did not include information about his Australian residence. He submitted that this did not lead to registration but to a Centrelink request, by letter dated 11 April 2005, for further information. He noted a Centrelink record which recorded that Mr Vowles' application had been rejected with effect from 30 March 2005. Mr Hamilton also noted that Mr Vowles had made a claim for age pension on 28 November 2009, in which he stated that he was a member of the scheme, and that he had supplied Centrelink with a document entitled "Residence in Australia and Other Countries"[8] in which he set out his residence history. This was received by Centrelink on 25 November 2009. Mr Hamilton submitted that there were inconsistencies between the residence information provided by Mr Vowles and official travel records obtained from the Department of Immigration and Citizenship.
[8] This is the Centrelink “Mod O” document.
As to an extension of time for Ms Smith's claim for PBBP, Mr Hamilton submitted that the matters outlined by her did not amount to special circumstances sufficient to justify an extension.
CONSIDERATION
Much evidence in this matter was adduced in respect of Mr Vowles' Australian residence.[9] Mr Hamilton submitted that this was for the purpose of determining whether Mr Vowles met the residence requirements for payment of the age pension. While I accept that age pension requirements under the Act include Australian residence, I am satisfied that there is no need for that matter to be determined in assessing whether, immediately before Mr Vowles died, he was actually registered for the scheme. However, because residence requirements were relevant in determining whether an application should be registered, I am satisfied that information about Mr Vowles' Australian residence was relevant under s 92F of the Act as information which Centrelink could request in assessing whether Mr Vowles should be registered for the scheme.
[9] This included material provided by Ms Smith as referred to in note 7.
Mr Vowles applied for registration for the scheme on 18 March 2005. In that application form, he advised that he was an Australian resident who had lived in Australia for 10 years with at least 5 of those years being continuous. On 30 March 2005, Mr Vowles provided further information in the form of copies of his Medicare card and his birth certificate. On 5 April 2005, he provided copies of entries from his passport and of Australian Taxation Office documents. Further information about his residence status in Australia was not provided. A letter was sent to Mr Vowles on 11 April 2005 in which reference is made to an enclosed "module". The only matter referred to in that letter relates to residence in that it notes that Mr Vowles was born in England and was a New Zealand citizen. Centrelink has no record to identify this module but I am satisfied, on the balance of probabilities, that it related to Mr Vowles' Australian residence. Centrelink has no record of this module being retuned by Mr Vowles and I note that the Guide to Social Security Law (the Guide)[10] provides that registration can be rejected if relevant information, as requested by Centrelink, is not provided by a person seeking registration for the scheme.[11] Also, there is no formal Centrelink record of a rejection of Mr Vowles' application apart from a Centrelink file minute which recorded rejection of his registration on the basis that he was not residence qualified and a further minute, dated 14 April 2005, which describes Mr Vowles as not meeting the residence requirements under the Act. It is not disputed that Mr Vowles held a Special Category (subclass 444) type visa[12] which did not provide him with a basis to establish Australian residence.
[10] Version 1.183, released on 3 January 2012.
[11] See para 3.4.7.20 of the Guide, For reliance on the Guide, see Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634 at 639-645 per Brennan J (President); Re Dainty and Minister for Immigration and Ethnic Affairs (1987) 6 AAR 259 at 267 per Davies J (President); and Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 41 FCR 82 at 86 per Einfeld J.
[12] This visa is automatically granted to New Zealand citizens who arrive in Australia but do not hold a permanent visa.
The evidence relating to Mr Vowles' Australian residence is not consistent, in that arrival and departure dates, as noted in his passport, differ from Department of Immigration and Citizenship records. Ms Smith's submission was that the Australian residence requirements were met; Mr Hamilton's position was that this was not certain on the evidence. For the purposes of this matter, the issue is not whether those requirements are met. Rather, it is whether, in reliance by Centrelink on the data it had concerning Mr Vowles' residence, he was registered for the scheme. Ms Smith referred to a Centrelink record of interview between Mr Vowles and a Centrelink officer on 9 November 2009 in which Mr Vowles is recorded as being registered for the scheme. However, that record includes a notation that it was based on information provided by Mr Vowles. While that is consistent with Ms Smith's evidence that Mr Vowles believed he was registered in the scheme, it does not confirm that he was actually registered in the scheme.
The evidence in this matter reveals shortcomings in the way in which Centrelink has dealt with Mr Vowles' application for registration for the scheme. Clearly, that is unfortunate. However, the evidence also confirms that Mr Vowles was not registered as a member of the scheme before his death. For that reason, I am satisfied that Ms Smith's circumstances do not fall within s 93WA(b) of the Act and that she is not eligible for the PBBP.
DECISION
The decision under review is affirmed.
I certify that the preceding 16 (sixteen) paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member.
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Associate
Dated 15 February 2012
Date(s) of hearing 1 February 2012 Applicant In Person
Advocate for the Respondent Mr B Hamilton, Departmental Advocate
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