Ivan Tanjic and Secretary, Department of Social Services
[2014] AATA 315
[2014] AATA 315
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/3415-3416
Re
Ivan Tanjic
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Ms A F Cunningham (Senior Member)
Date
Date of Written Reasons
16 April 2014
19 May 2014
Place Perth The decisions under review are affirmed.
...(Sgd) A F Cunningham......................
Ms A F Cunningham (Senior Member)
CATCHWORDS
SOCIAL SECURITY – Application for Pension Bonus Scheme – Applicant not registered for Pension Bonus Scheme during 26 week period surrounding the Applicant turning 65 – neither section 92P or 92Q of the Social Security Act apply to the Applicant – Applicant was an accruing member – Applicant failed the work test
LEGISLATION
Administrative Appeals Tribunal Act 1975
Social Security Act 1991 ss92A, 92H1, 92H3, 92H4, 92H4(B), 92P, 92Q, 92U, 92V
REASONS FOR DECISION
Ms A F Cunningham (Senior Member)
19 May 2014
The applicant, Ivan Tanjic made an application for review of two decisions both made by the Social Security Appeals Tribunal (SSAT) on 19 June 2013. The first decision affirmed a decision of Centrelink which determined that Mr Tanjic had been overpaid age pension for the period 13 April 2012 to 13 September 2012 in the sum of $3669.23 and that the debt was recoverable.
The second decision of the SSAT affirmed a decision of Centrelink which rejected Mr Tanjics application to register for the pension bonus scheme.
Both applications were listed for hearing before me by video link to Perth, Western Australia this day, 16 April 2014. Mr Tanjic appeared in person. His wife, Maria Tanjic also appeared and spoke on behalf of Mr Tanjic. Also present was an interpreter in the Croatian language. The Secretary was represented by Miss Vahala.
The T documents were tendered in evidence pursuant to Section 37 of the Administrative Appeals Tribunal Act 1975.
Mrs Tanjic informed me that her husband no longer wished to proceed with this application for review of Centrelink’s decision to raise and recover the overpayment of age pension. She advised that the matter had been settled by repayment of the remaining part of the debt in the sum of $1036. Mr Tanjic confirmed his wife’s advice.
The application for review of Centrelink’s decision is accordingly dismissed.
Mrs Tanjic said that the basis of her husband’s application for review of the decision which rejected his claim for registration for the pension bonus scheme was that her husband was unaware of the scheme at the time of his application for age pension. Mrs Tanjic maintained that Centrelink have an obligation to inform people of the existence of the scheme. She argued that if people are unaware of the scheme they are unable to register for it. Mrs Tanjic informed me that they were first made aware of the scheme by their accountant when completing Mr Tanjic’s claim for age pension.
The key facts as outlined in the Secretary’s Statement of Facts Issues and Contentions do not appear to be in dispute and are largely confirmed by the information contained in the T documents. Mr Tanjic lodged his application to register for the pension bonus scheme on 26 July 2012 having previously lodged an application for age pension on 13 April 2012. The application was rejected by a Centrelink Officer on 7 August 2012 and affirmed by an Authorised Review Officer on 2 May 2013. This decision was subsequently affirmed by the SSAT on review.
Mr Tanjic’s application for registration of pension bonus scheme was rejected on the basis that he did not satisfy the legislative requirements for the scheme as set out in part 2.2A of the Social Security Act 1991. The reasons for rejection of Mr Tanjic’s registration for the pension bonus scheme were not in contention. These legislative provisions are not uncomplicated and are difficult for a layperson to follow and understand. A’ “simplified outcome” of the scheme is provided in section 92A which summarises in dot point form seven elements of the scheme. The first provision is that a person who qualifies for an age pension but defers claiming that pension may be able to get a single lump sum pension bonus.
Section 92H(1) provides that a person must register as a member of the pension bonus scheme within a 26 week period, that is, 13 weeks before reaching pension age and 13 weeks after that date. An extension of the period as provided for in section 92 H(3) and the parameters for the extension are set out in subsection 92H(4). This subsection provides that throughout the pre-application period the person must either have been a non-accruing member or both an accruing member and have passed the work test for each test period applicable to the person.
The pre-application period dates from 13 January 2003 when Mr Tanjic turned 65 years of age and runs until 26 January 2012 when he lodged his application for registration with the pension bonus scheme.
As Mr Tanjic was under 75 years of age during the pre-application period and in accordance with section 92P unless he was subject to a disposal preclusion period, his membership of the scheme is non-accruing at the time. There was no evidence that Mr Tanjic was subject to a preclusion period nor was any declaration by the Secretary made in accordance with section 92Q of the Act.
As neither section 92P or 92Q apply to Mr Tanjic, his membership would have been accruing and he therefore needs to satisfy the work test in accordance with section 92H (4)(B) of the Act. There was no evidence that Mr Tanjic met this requirement in accordance with the meaning given by sections 92U and 92V of the Act. I accept that there is no evidence that Mr Tanjic worked at least 960 hours during the full year that he was retired.
As Mr Tanjic does not meet the criteria set out in section 92H (4)(B) it is my finding that his late registration for pension bonus scheme was properly rejected as he fails to satisfy the provisions which allow an extension of the period within which a person must lodge an application.
There are no provisions in the applicable legislation that afford me the discretion to take account of the matters raised by Mrs Tanjic on behalf of Mr Tanjic namely that they were not made aware of the pension bonus scheme and therefore not able to apply for it within the required legislative timeframe.
For all of the above reasons I affirm the decisions under review.
I certify that the preceding 16 (sixteen) paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Senior Member) ....(sgd) T Freeman......................
Associate
Dated 19 May 2014
Date(s) of hearing 16 April 2014 Applicant In person Representative for the Respondent Ms S Vahala Solicitors for the Respondent Australian Government Solicitor
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