King and Secretary, for the Department of Families, Community Services and Indigenous Affairs

[2007] AATA 2033

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 2033

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  2007/4181

GENERAL ADMINISTRATIVE DIVISION		)         No 2007/4183
Re		BRYAN AND CARLEEN KING

Applicant

And SECRETARY, FOR THE DEPARTMENT OF FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal M J Carstairs, Senior Member

Date10 December 2007

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

...............[sgd]...............................

Senior Member

CATCHWORDS

SOCIAL SECURITY – pension bonus scheme – qualification for pension bonus – previous receipt of age pension

Kondos and Secretary Department of Families, Community Services and Indigenous Affairs [2006] AATA 997

Rodham and Secretary Department of Families, Community Services and Indigenous Affairs [2007] AATA 1331

Brutnell and Secretary, Department of Family and Community Services [2002] AATA 436

REASONS FOR DECISION

10 December 2007   M.J. Carstairs, Senior Member

1.      Bryan and Carleen King have reached retirement age but have chosen to work well beyond it.  They are exactly the kind of people at whom the Government’s pension bonus scheme is targeted, being people who defer claiming age pension while continuing in employment.

2.      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 not in issue in this case; but it is essential that a person must not have received an age pension before making his or her claim under the scheme. 

3.      Mr and Mrs King’s claim under the pension bonus scheme has been rejected, the main reason being that they each have been paid age pension in 2000 and 2002, briefly and in small amounts, nothing like the amount they would have received under the pension bonus scheme, given the amount of time they have remained in the workforce.  Had they been able to access the pension bonus scheme their accrued entitlements would have amount to some $26,000 each as against the amount of less than $1000 each which they have received from the 2000 and 2002 age pension claims.

4.      Mr and Mrs King have little knowledge of social security matters.  Mr and Mrs King maintain that they always told Centrelink that they were working full-time, and it is not disputed that they had the intention of remaining in the workforce as long as possible.  On the two occasions when they approached Centrelink, in 2000 and 2002, they did not have the intention of claiming age pension.  As they describe it, and I accept their evidence on this, on the first occasion they wanted to know if they were eligible for any pharmaceutical benefits.  Then in 2002 Mr King was facing surgery and would be off work so he wanted to test his eligibility for sickness allowance.  I should observe with reference to the 2002 claim that sickness allowance paid after a person qualifies for age pension would also disentitle Mr King to accessing the pension bonus scheme[1].

[1] Section 92(C)(e)(ii) of the Social Security Act 1991..

5.      After these claims in 2000 and 2002, Mr and Mrs King were paid age pension briefly.  In 2000 Centrelink quickly realised that their assets were too high and cancelled them, by which time Mr and Mrs King had each received, in total, less than $50 by way of age pension payments.  They received somewhat more in 2002, but again it was a small amount, paid briefly.

6.      Mr and Mrs King’s chief complaint is that the person they dealt with at Centrelink - and on each occasion it was the same Centrelink officer who helped them fill out the forms - did not tell them about the pension bonus scheme, despite their circumstances being the obvious ones in which someone familiar with the scheme might explain it to them.  .

7.      Mr and Mrs King first heard about the scheme in 2003 and then took steps to register, their registration being backdated by Centrelink to a date in 2000 (for Mr King) and 1999 (for Mrs King).  .

LEGISLATION

14.     The qualifying criteria for the pension bonus are set out in section 92C which provides, amonst 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.

15.     Mr and Mrs King concede that they received age pension for brief periods in 2000 and 2002, even though they were not really aware they were receiving these payments, because they had never intended to claim these payments and because the low amounts they were paid .  They apparently did not read the letters Centrelink sent them, advising them that they were being paid age pension.

8.      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 in this Tribunal confirms that receipt of age pension or other social security payments prevents payment of pension bonus at a later date[3].  The cases note the absence of any discretionary provisions in the legislation[4]. 

[3] 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

[4] Kondos at para 7.7

9.      Ms Hamilton, who appeared for the Secretary referred to two Tribunal decisions where the Tribunal found that the prior payment of age pension had been nullified[5].  In my view, these cases are limited to their particular facts: in one, the applicant had not been qualified for age pension and later was required to repay the money he had received; in the other, the Tribunal accepted the applicant’s evidence that he had gone to Centrelink to enquire about the pension bonus scheme and believed when he completed the age pension claim form, it was so that Centrelink could test his entitlements for pension bonus.  I do not regard Mr and Mrs King circumstances as similar to those cases.

[5] Rodham and Secretary Department of Families, Community Services and Indigenous Affairs [2007] AATA 1331

10.     I was satisfied that Mr and Mrs King, having been paid age pension in 2000 and 2002, could not be paid pension bonuses because their claims in 2006 post dated payments of age pension to them on two previous occasions. As a result they did not satisfy the requirment set out in s 92C(iv) of the Act. Ms Hamilton conceded that what had previously been considered an additional impediment to Mrs King being paid pension bonus – namely that she had not claimed within 13 weeks of finishing work in 2006 – should be dealt with under s 24 of the Social Security Administration Act 1999 which allows extra time for lodgment by an “exempt partnered person”.

11.     Mr and Mrs King told me that once my decision is handed down, Centrelink will proceed to consider whether Mr and Mrs King 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 has suffered loss as a result of an agency's defective administration.  I note that the authorised review officer 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.[6]  I note also that the Social Security Appeals Tribunal observed that more could have been expected from the Centrelink officer who attended to Mr and Mrs King’s claims.  No doubt these and other matters can now be considered fully, in order to assess whether Mr and Mrs King can be compensated for the loss that they have sustained. 

[6]  T39.

12.     However for the reasons given, I must affirm the decision under review.

DECISION

13.     The Tribunal affirms the decision under review.

I certify that the 13 paragraphs are a true copy of the reasons for the decision herein of SM Carstairs

Signed:         .....................................................................................
  Associate

Date of Hearing  5 December 2007  
Date of Decision  10 December 2007
The Applicant was self represented
Solicitor for the Respondent     Ms K Hamilton, Departmental Advocate