JANICE EDITH SCRIVEN and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2009] AATA 954

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 954

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/1458

GENERAL ADMINISTRATIVE DIVISION		)
Re		JANICE EDITH SCRIVEN

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Senior Member L Hastwell

Date14 December 2009

PlaceAdelaide

Decision The Tribunal affirms the decision under review.

..............................................

L HASTWELL
  (Senior Member)

CATCHWORDS

SOCIAL SECURITY – pensions, benefits and allowances – Age Pension Bonus – eligibility for top-up of Age Pension Bonus – rate change in Age Pension due to restructuring of finances – rate change not within 13 weeks of date of Age Pension grant – decision affirmed

Social Security Act 1991 ss 93J, 93K

Social Security (Administration) Act 1999 s 13(1)

REASONS FOR DECISION

14 December 2009   Senior Member L Hastwell   

1.      Janice Scriven retired from the workforce on 14 April 2008.  On the same day she advised Centrelink of her intention to claim Age Pension.  She lodged the completed claim form for Age Pension on 22 April 2008.  At the same time she made application for the Age Pension Bonus.

2.      Ms Scriven was granted Age Pension from 14 April 2008.

3.      On 12 May 2008 she was a paid a lump sum Age Pension Bonus which was calculated using her pension rate as at the date of grant.

4.      She sought the advice of a financial adviser.  He advised her to restructure her finances and purchase an allocated pension.  On 18 July 2008, Ms Scriven’s financial planner formally advised Centrelink that she had restructured her finances and had purchased an allocated pension on the previous day.  This restructuring of her finances resulted in an increase in her Age Pension rate with effect from the date that she had purchased the allocated pension, namely 17 July 2008. 

5.      Ms Scriven was not paid any further top-up amount of Age Pension Bonus as a result of the alteration in her pension rate. 

6.      She sought review of the decision to not grant her a top-up payment with respect to her Age Pension Bonus.  The decision of the respondent (the Department) was affirmed by an Authorised Review Officer on 22 December 2008.  On 16 March 2009, the Social Security Appeals Tribunal (the SSAT) affirmed the decision to not pay Ms Scriven an Age Pension Bonus top-up as a result of the adjustment in her pension rate.

7.      Ms Scriven seeks review of the SSAT decision to this Tribunal.

legislation

8.      The relevant legislation is contained in the Social Security Act 1991 (the Act) and the Social Security (Administration) Act 1999 (the Administration Act).

9. The formula for calculating the Age Pension Bonus is set out in s 93J of the Act.

10. Section 93K of the Act sets the rules for making a top-up determination. That section provides as follows:

“93K     Top up of pension bonus for increased rate of age pension

(1)The Secretary may determine (a top up determination) that a person’s pension bonus is to be increased if:

(a)the Secretary makes a determination (a rate determination) increasing the person’s rate of age pension; and

(b)the rate determination takes effect on a day that is not more than 13 weeks after the start day for the person’s pension bonus; and

(c)the rate determination is made because of a reduction since the start day in either or both of the following:

(i)        the value of the person’s assets;

(ii)        the person’s ordinary income.

Note:   Any reduction in the value of a person’s assets or the person’s income will be determined by applying the assets test and the ordinary income test in Pension Rate Calculator A in Part 3.2 (including because of the operation of Pension Rate Calculator B in Part 3.3).

(2)      The person’s pension bonus is increased by the difference between:

(a)      the person’s amount of pension bonus on the start day; and

(b)the amount that would have been the person’s amount of pension bonus on the start day if the person’s rate of age pension on that day had been the highest rate at which age pension was payable to the person during the 13 weeks after the start day.

(3)A top up determination takes effect on the day on which the determination is made or on any earlier or later day specified in the determination.”

11. The start day for Ms Scriven’s Age Pension is determined by s 13(1) of the Administration Act which states:

“13       Deemed claim—person contacting Department about a claim for a social security payment

(1)      For the purposes of the social security law, if:

(a)the Department is contacted by or on behalf of a person in relation to a claim for a social security payment; and

(b)the person is, on the day on which the Department is contacted, qualified for the social security payment; and

(c)the Secretary gives the person a written notice acknowledging that the Department has been contacted in relation to the making of the claim; and

(d)the person lodges a claim for the social security payment within 14 days after the Department is contacted;

the person is taken to have made a claim for the social security payment on the day on which the Department was contacted.

…”

issue

12.     The issue to be determined in this case is whether Ms Scriven was entitled to a further Age Pension Bonus top-up when her pension rate altered as a result of the purchase of an allocated pension in July 2008.

the hearing

13.     Ms Scriven attended the hearing and was assisted by her financial adviser, Mr Vlado Kalic.

14.     Ms Scriven told the Tribunal that when she went to apply for Age Pension on 14 April 2008, there was a lot of paperwork to complete.  She applied for the Age Pension Bonus and was first advised of the bonus and the sum that she would receive on 12 May 2008.  At the time she queried the amount of the bonus as it appeared to be less than she was expecting to receive.

15.     She then went to see her financial adviser who advised her to restructure her finances and purchase an allocated pension.  This took some time because of paper work required from her superannuation fund.  Mr Kalic told the Tribunal that he moved as promptly as possible, but the need to get information from Ms Scriven’s superannuation fund delayed the process.

16.      As soon as he received the documents confirming the purchase of the allocated pension, he notified Centrelink on 18 July 2008.  This triggered the alteration in her Age Pension rate.

17.     Both he and Mrs Scriven were adamant that at no stage were they advised by Centrelink  that if they did not lodge the paperwork that could result in an alteration of her pension rate within a 13 week period from 14 April 2008, then there would be no further adjustment to the original top-up granted.

18.     Ms Scriven said that when she spoke directly to Centrelink, on one of the earlier occasions that she was speaking to them, she was advised by an officer that they do not “advertise” the availability of the top-up bonus.  She referred the Tribunal to the fact that none of the correspondence that she received from the Department with respect to her Age Pension or the Age Pension Bonus refers to a 13 week time line within which the rate change must occur for her to receive a further top-up payment. 

19.     She submitted to the Tribunal that she had been unfairly treated by Centrelink in that  they have an obligation to advise people of time limitations and of the need to move promptly if they are going to restructure their finances after receiving Age Pension if they wish to receive any further top-up of their Age Pension Bonus.

consideration and application of the law

20.     The Tribunal had regard to the T documents (Exhibit R1), the evidence of Ms Scriven and the evidence of Mr Kalic.

21.     The Tribunal noted that Centrelink wrote to Ms Scriven on 24 April 2008 (T8) requesting more information about her claim for Age Pension Bonus and there was no mention of any time line in that letter.

22.     A further letter was sent to her on 8 May 2008 (T11) advising of the amount of the Age Pension Bonus that she would receive and of the need to notify Centrelink within 14 days if there was any change in her financial circumstances.  There was no mention of a 13 week period during which any restructure of finances should be notified if she was to be eligible for a top-up of Age Pension Bonus.

23.     On 4 August 2008, a further letter was sent to her (T13) advising of an increase in her rate of Age Pension which was a response to her notification that she had been granted an allocated pension from 17 July 2008. 

24. The legislation in this case is clear and specific. Section 93K(1) of the Act provides that the Secretary may determine that a person’s Age Pension Bonus can be increased if certain specific criteria are fulfilled, namely:

·the Secretary makes a determination increasing the person’s rate of Age Pension;

·that rate determination takes effect on a day that is not more than 13 weeks after the start day of the person’s Age Pension; and

·that rate determination is made because of a reduction since the start day of the person’s Age Pension in either or both of the value of the person’s assets or the person’s ordinary income.

25. The start day for Ms Scriven’s Age Pension Bonus is determined by s 13(1) of the Administration Act.

26.     The start date for her Age Pension Bonus was 14 April 2008, being the date of her first contact with the Department. 

27. The date of determination of the new and increased rate of Age Pension was 17 July 2008 which is a date that is outside the 13 week time line determined by s 93K(1) of the Act .

28.     The Secretary has no power to determine an Age Pension Bonus top-up in this case as the increased rate determination lies outside the 13 week time line.  The Secretary can only determine the person’s Age Pension Bonus is to be increased if the alteration in their rate, ie the rate determination, takes effect on a day that is not more than 13 weeks after the start date of the person’s Age Pension Bonus.

29.     The Tribunal has no discretion in this case.  It is regrettable that Ms Scriven has missed out on an Age Pension Bonus top-up by only three days.  However, the cut-off date is specific.

30.     It is unfortunate more information was not provided to Ms Scriven at the time that she made application for her Age Pension and Age Pension Bonus.  It is reasonable to expect that when people are applying for the Age Pension Bonus they should be given this information at the time of application so that they can move promptly to effect the restructure.

31.     In the circumstances, the Tribunal affirms the decision under review.

I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member L Hastwell

Signed:         ............J Coulthard.........................................
  Associate

Date of Hearing  9 November 2009
Date of Decision  14 December 2009
Advocate for the Applicant       Self-represented with Mr Vlado Kalic

Advocate for the Respondent   Ms J Okmasich
  Centrelink Legal Services and Procurement             Branch