IVOR BIDDLECOMBE and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES & INDIGENOUS AFFAIRS
[2010] AATA 451
•18 June 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 451
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/5425
GENERAL ADMINISTRATIVE DIVISION ) Re IVOR BIDDLECOMBE Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES & INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Mr P Wulf, Member Date18 June 2010
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
...............[Sgd]...............................
Member
CATCHWORDS
SOCIAL SECURITY – Pensions, benefits and allowances – Age pension and pension bonus scheme – Whether applicant is entitled to receive the pension bonus – Decision affirmed.
Social Security Act 1991 (Cth) s 92C
Social Security (Administration) Act 1999 (Cth) ss 8, 11, 17, 37, 67, 68
Veterans’ Entitlements Act 1986 (Cth)
Brutnell and Secretary, Department of Family and Community Services [2002] AATA 436
King and Secretary, for the Department of Families, Housing, Community Services and Indigenous Affairs (2007) AATA 2033
Kondos and Secretary, Department of Families, Community Services and Indigenous Affairs [2006] AATA 997
Murphy and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 115
Rodham and Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 1331
Scott v Secretary, Department of Social Security; Scott and Another v Handley and Another [1999] FCA 1774
Scott and Another v Secretary, Department of Social Security [2000] FCA 1241
REASONS FOR DECISION
18 June 2010 Mr P Wulf, Member 1. Mr Ivor Biddlecombe has sought review of a decision made by an Authorised Review Officer (ARO) dated 15 June 2009 and 1 September 2009 and the decision of the Social Security Appeals Tribunal (SSAT) of 7 October 2009 not to pay him the pension bonus. The Applicant has applied for a review of the decision as to whether he should be entitled to the pension bonus.
2. Mr Biddlecombe registered for the pension bonus on 4 March 2006 and this was accepted on 6 March 2006. Mr Biddlecombe then claimed the age pension on 19 March 2009.
3. One requirement of the scheme is that a person must register, usually, close to the time they qualify for age pension. There are work tests and other complying requirements; but it is essential that a person must not have received an age pension before making his or her claim under the scheme.
4. Mr Biddlecombe’s claim under the pension bonus scheme has been rejected, the main reason being that he was paid age pension from 4 April 2003 to 3 February 2004, briefly and in small amounts, nothing like the amount he would have received under the pension bonus scheme, given the amount of time he has remained in the workforce.
5. Mr Biddlecombe claims to have little knowledge of social security matters. Mr Biddlecombe reached retirement age in 2002 but chose to work well beyond that age as a bricklayer and truck driver. He is exactly the kind of person the Government’s pension bonus scheme is targeted towards, being a person who defers claiming age pension while continuing in employment.
6. Mr Biddlecombe attended the Centrelink office and sought assistance as he was not fully employed during a period in 2003. Mr Biddlecombe maintains that he always told Centrelink that he was going to continue working full-time and when not working full-time, receive newstart allowance. Mr Biddlecombe states that when he did gain financial assistance from Centrelink, he did not have any intention to claim age pension.
7. Mr Biddlecombe argued before the Tribunal that:
(a)He was unaware that he was receiving the age pension as he believed that he had applied for newstart allowance in a period between 2003 and 2004 and therefore should be eligible for the pension bonus; and
(b)If he was receiving the age pension, Centrelink did not tell him about the pension bonus scheme, despite his circumstances being the obvious ones in which someone familiar with the scheme might explain it to him and should have advised him that he needed to fill in additional forms apart from the Claim for Aged Pension form.[1]
[1] T4
LEGISLATION
8. The qualifying criteria for the pension bonus are set out in s 92C of the Social Security Act 1991 (Cth) (the Act) which provides, amongst other things, that the person must not have received age pension at any time before making a claim for pension bonus.[2] Nor should they have received other kinds of income support after reaching age pension age.
[2] Section 92C(b) of the Act.
9. Mr Biddlecombe did not concede that he claimed the age pension for brief periods in 2003 and 2004. More importantly, Mr Biddlecombe stated that he was not aware that he needed to apply for the pension bonus at the time. On 4 April 2003, Mr Biddlecombe filled out an application for age pension.[3] In Part A of that application, Questions A1 and A2 are very important. At A1, Mr Biddlecombe has indicated that he is not a registered member of the Pension Bonus Scheme.[4] At A2, Mr Biddlecombe indicated that he wishes to be registered for the Pension Bonus Scheme. Importantly, the application form specifically states that an applicant needs to complete and lodge a registration form[5] and if an applicant did not have that form, to contact Centrelink. Question A2 further states that an applicant should not continue with their age pension claim.
[3] T4
[4] T4/13
[5] Form AS319
10. An inspection of the Online Document Recording Archive demonstrates that Mr Biddlecombe was in receipt of age pension payments. Further, there is evidence that Centrelink contacted Mr Biddlecombe on, for example, 7 April 2003 and 28 April 2003 and clearly advised Mr Biddlecombe that he was receiving the age pension.
11. On 4 March 2006, Mr Biddlecombe applied to be registered for the Pension Bonus Scheme.[6] He later applied for the age pension and pension bonus on 18 February 2009.[7]
[6] T6
[7] T9
12. A number of Tribunal decisions have dealt with the questions that arise here, where a person claims pension bonus after receiving age pension. A consistent line of authority confirms that receipt of age pension or other social security payments prevents payment of pension bonus at a later date.[8] While in this situation, it is apparent that additional advise could have been provided to Mr Biddlecombe regarding the requirement for him to fill out additional forms and the like (I will address this matter below), the cases note the absence of any discretionary provisions in the legislation.[9]
[8] King and Secretary, for the Department of Families, Housing, Community Services and Indigenous Affairs (2007) AATA 2033; Kondos and Secretary, Department of Families, community Services and Indigenous Affairs [2006] AATA 997; Brutnell and Secretary, Department of Family and Community Services [2002] AATA 436
[9] Kondos at para 7.7
13. The respondent referred to s 17 of the Social Security (Administration) Act 1999 (Cth) (the Administration Act) and in particular s 17(5) of that Act where it could be considered that a special circumstance may be relevant in allowing the pension bonus to be allowed. This section provides a restricted discretion as outlined:
(5) If:
(a)a person who is a registered member of the pension bonus scheme lodges a claim for age pension; and
(b)a claim for pension bonus for the person is lodged after the claim for age pension; and
(c)the Secretary is satisfied that, having regard to guidelines (if any) made under subsection (6), special circumstances apply in relation to the lodgement of the claim for pension bonus;
the Secretary may determine that the claim for the pension bonus is taken to have been made at the time the person claimed age pension.
(6)The Secretary may, by legislative instrument, make guidelines for the purposes of subsection (5).
14. For subsection 17(5) of the Act, this section contains guidelines (Social Security (Administration)_(Delay Lodgement of Claims for Pension Bonus) Guidelines 2007) about when special circumstances (Guideline 4) apply in relation to the lodgement of a claim for pension bonus by a person who is a registered member of the pension bonus scheme immediately before lodging a claim for age pension.
15. There are a number of special circumstances that are provided for under the Guidelines including 4(2) and 4(3). With respect to Guideline 4(2), Mr Biddlecombe’s circumstances cannot be considered as special circumstances as he was not a member of the pension bonus scheme or the corresponding scheme under Part IIIAB of the Veterans’ Entitlements Act 1986 (Cth).
16. With respect to Guideline 4(3), the only relevant provision would be Guideline (4)(3)(iii) which relates to the Secretary not seeking disclosure of information before granting the claim for age pension. In this matter, Centrelink sought disclosure by advising Mr Biddlecombe on the Age Pension Claim form that he was required to provide further information by completing and lodging a registration form[10] and if he did not have that form, to contact Centrelink.
[10] Form AS319
17. I was satisfied that Mr Biddlecombe having been paid age pension in 2003 and 2004, could not be paid pension bonuses because his claim in 2009 post dated payments of age pension to him. As a result, he did not satisfy the requirment set out in s 92C(iv) of the Act.
18.CENTRELINK’S DUTY
19. Mr Biddlecombe argued that Centrelink had a duty to advise him that he needed to complete an AS319 form at the time of lodging his age pension application.
20. Centrelink administers the delivery of social security payments, services and customer information on behalf of the respondent. Importantly, it does not provide advice to its customers regarding their legal entitlements to a social security payment. Section 8 of the Administration Act provides:
8 Principles of administration
In administering the social security law, the Secretary is to have regard to:
(a) the desirability of achieving the following results:
(i)the ready availability to members of the public of advice and information services relating to income support generally and to the social security payments that are available;
(ii)the ready availability of publications containing clear statements about income support entitlements and procedural requirements;
(iii)the delivery of services under the law in a fair, courteous, prompt and cost-efficient manner;
(iv)the development of a process of monitoring and evaluating delivery of programs with an emphasis on the impact of programs on social security recipients;
(v)the establishment of procedures to ensure that abuses of the social security system are minimised; and
(b) the special needs of disadvantaged groups in the community; and
(c)the need to be responsive to the interests of the Aboriginal and Torres Strait Islander communities and to cultural and linguistic diversity; and
(d)the importance of the system of review of decisions under the social security law; and
(e)the need to ensure that social security recipients have adequate information regarding the system of review of decisions under the social security law; and
(f)the need to apply government policy in accordance with the law and with due regard to relevant decisions of the Administrative Appeals Tribunal and the Social Security Appeals Tribunal.
21. It is apparent that the provisions in s 8 of the Administration Act only require Centrelink to provide general advice and information to the public about the availability of income support and social security payments. Centrelink is not required to advise claimants about their legal rights to any particular social security payment or the rate of payment and moreover, is not required to advise a client that they must fill in any additional forms. This is clear from s 11(1) of the Administration Act which provides:
11 General rule
(1)Subject to subsection (2) and Subdivision B, a person who wants to be granted:
(a) a social security payment; or
(b) a concession card;
must make a claim for the payment or card in accordance with this Division.
22. Mr Hamilton, who appeared for the Secretary referred to a Tribunal decision where the Tribunal found that the prior payment of age pension had been nullified[11]. The respondent further referred to a recent decision of the Tribunal that specifically referred to Centrelink’s duties under the Act[12] and this decision followed previous Federal Court[13] and Full Federal Court of Appeal decisions. [14]
[11] Rodham and Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 1331
[12] Murphy and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 115
[13] Scott v Secretary, Department of Social Security; Scott and Another v Handley and Another [1999] FCA 1774
[14] Scott and Another v Secretary, Department of Social Security [2000] FCA 1241
23. These cases highlight the requriements of Centrelink in assessing claims. They demonstate that Centrelink is not responsible for informing any member of the public at large that he or she may be entitled to a social security payment, nor do they require Centrelink to correct errors made by an applicant. While in this matter it would appear that Mr Biddlecombe could have received the pension bonus, the onus was on Mr Biddlecombe to make a claim and fill in the relevant forms. Only once those forms have been completed and returned, does Centrelink become responsible for correctly processing that claim.
24. Centrelink must determine that a claim for a social security payment should be granted to a claimant if it is satisfied that the claimant is qualified for the social security payment and that the social security payment is payable (s 37(1) of the Administration Act). To make those assessments, Centrelink relies on information provided by the claimant. In fact, the Secretary may require, by notice given in writing to a claimant, that the person notify Centrelink of any change in circumstances which might result in that person either becoming ineligible for the payment or entitled to a different rate of payment (s 67 and s 68 of the Administration Act). A failure to notify Centrelink of a change in circumstances which would result in either ineligibility or a varied payment might result in the person who continues to receive social security payments becoming liable to repay a debt to the Commonwealth. In other words, it is not Centrelink's responsibility to ensure that a claimant is eligible for the payment. That is left to the claimant.
25. Therefore, Mr Biddlecombe’s submission that Centrelink had a duty to inform him that he needed to fill out additional forms at the time is incorrect. Centrelink had no such duty.
26. I understand from the parties that Centrelink has to consider whether Mr Biddlecombe might be eligible for payment under the Commonwealth scheme for “Compensation for Detriment caused by Defective Administration”, which provides agencies with discretionary authority to compensate where there is no legal entitlement but where a claimant may have suffered loss as a result of an agency's defective administration. I note that the ARO has completed a detailed analysis of the facts in this case, and has summarised the evidence upon which such a claim now can be examined. I am unaware of the results of this examination and review, although based on the above; decisions would suggest that Centrelink had no duty other than as highlighted.
27. For the reasons given, I must affirm the decision under review.
DECISION
28. The Tribunal affirms the decision under review.
I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Mr P Wulf, Member
Signed: ....................[Sgd]........................................................
Kate Slack, Research AssociateDate/s of Hearing 16 March 2010
Date of final submissions 27 April 2010
Date of Decision 18 June 2010
Ms Julie Biddlecombe for the applicant
Solicitor for the Respondent Mr Bob Hamilton, departmental advocate
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