Kondos and Secretary, Department of Families, Community Services and Indigenous Affairs

[2006] AATA 997

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 997

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  A2006/143

GENERAL ADMINISTRATIVE DIVISION		)
Re		NICHOLAS KONDOS

Applicant

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

Respondent

DECISION

Tribunal J.W. Constance, Senior Member

Date23 November 2006

PlaceCanberra

Decision The decision of the Social Security Appeals Tribunal made 22 May 2006 (being a decision to affirm the decision of Centrelink not to pay Mr Kondos a pension bonus) is affirmed.

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

J.W. Constance, Senior Member

CATCHWORDS

SOCIAL SECURITY – Pension bonus scheme – Requirements for eligibility – Applicant received aged pension prior to applying for bonus – Tribunal has no discretion.

Social Security Act 1991 (Cth) s 92C

REASONS FOR DECISION

23 November 2006 J.W. Constance, Senior Member

INTRODUCTION

1.          Having worked hard and paid taxes for many years Mr Kondos was understandably upset when he discovered that he was not eligible for payment under a Commonwealth bonus scheme intended to encourage those at retirement age to continue in the workforce.  His appeal to the Social Security Appeals Tribunal was unsuccessful and he now seeks a review of that decision.

2.          For the reasons which follow, the decision of the Social Security Appeals Tribunal will be affirmed.

THE PENSION BONUS SCHEME

3.          The Commonwealth Pension Bonus Scheme commenced on 1 July 1998.  The purpose of the scheme is to provide an incentive to those who defer claiming the age pension and continue to work in paid employment.  Under the scheme a tax-free lump sum is provided to persons who meet the requirements of the scheme.  Two of a number of essential requirements are:

·a person be registered as a member of the pension bonus scheme;

·the person has not received an age pension at any time before making a claim for the pension bonus.[1]

[1] Section 92C (b) and (c) of the Social Security Act 1991 (Cth).

FACTS

4.          At the hearing of this application the parties agreed on the following facts, being the facts found by this Tribunal in a related application. I am satisfied that this agreement was appropriate.

5.          The relevant facts are as follows:

·on 9 January 2000 Mr Kondos turned 65 years of age;

·on reaching 65 he did not claim the age pension and continued working;

·as a result of a decision of this Tribunal Mr Kondos was deemed to have been registered under the scheme on 9 January 2000;

·in about April 2004 Mr Kondos retired;

·on 4 June 2004 Mr Kondos lodged a claim for the age pension;

·when Mr Kondos applied for the pension he indicated on the form that he did not wish to register for the pension bonus scheme;

·Mr Kondos completed the pension claim form with the assistance of an interpreter as he has difficulty reading and writing English;

·at the time of completing the form Mr Kondos was unaware of the scheme and his possible entitlement under it and received no assistance or information from the interpreter or officers of Centrelink as to his possible entitlements;

·Mr Kondos’ application for a pension was granted with effect from 2 June 2004;

·after he commenced receiving a pension Mr Kondos learned of his possible entitlement under the pension bonus scheme and on 9 January 2006 he applied for payment of the bonus.

THE ISSUE FOR DETERMINATION

6.          The only issue for determination is whether Mr Kondos is entitled to payment of the bonus in view of the fact that prior to applying he received payment of the age pension.    

REASONING

7. Unfortunately for Mr Kondos, the Act provides no discretion in relation to the requirement that a person not have received an age pension at any time before making a claim for the pension bonus. Section 92C is quite clear in setting out the requirements for eligibility for the bonus and the simple fact is, Mr Kondos did receive a pension prior to making his claim for the bonus. As a result he does not meet all of the requirements set out in section 92C and therefore does not qualify for a pension bonus.

8.          I have no hesitation in accepting, as did Member Webb who constituted this Tribunal on a previous occasion, that Mr Kondos has worked hard and paid taxes in Australia for more than 40 years without claiming any social security payments before his retirement.  He continued to work hard and pay taxes for a number of years  after he could have retired and been eligible for the pension.  It is unfortunate that, in part as a result of Mr Kondos’ lack of understanding of the scheme and in part as a result of the failure of officers at Centrelink to inform him of his potential entitlements, he is not able to share in the scheme's benefits.  Unfortunately, this Tribunal has no power to remedy what Mr Kondos will no doubt continue to see as a substantial injustice.

DECISION

9.          The decision of the Social Security Appeals Tribunal made 22 May 2006 (being a decision to affirm the decision of Centrelink not to pay Mr Kondos a pension bonus) is affirmed.

I certify that the 9 preceding paragraphs are a true copy of the reasons for the decision herein of J.W. Constance, Senior Member.

Signed:         .....................................................................................
  Joe Meagher, Associate

Date/s of Hearing  23 October 2006 
Date of Decision  23 November 2006
Representative for the Applicant    Self
Counsel for the Respondent          Ms S. Mantaring
Solicitor for the Respondent           Centrelink Legal Services