Lacek and Secretary, Department of Social Services (Social services second review) - [2017] AATA 292

Lacek and Secretary, Department of Social Services (Social services second review) [2017] AATA 292 (7 March 2017)
Division:GENERAL DIVISION
File Number: 2016/4011
Re:Marianna Lacek
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Ms N Isenberg, Senior Member

Date:7 March 2017
Place:Sydney

The decision under review is set aside and remitted to the Respondent with the direction that the Pension Bonus Scheme claim the Applicant lodged on 8 December 2015 was not made out of time and is to be assessed in accordance with these reasons.
...........................[sgd]..............................
Ms N Isenberg, Senior Member
CATCHWORDS
SOCIAL SECURITY – pension bonus scheme – whether applicant qualified to receive a pension bonus – whether applicant lodged a valid claim for PBS within 13 weeks of no longer satisfying the work test - meaning of gainful work – whether discretion to treat activity as gainful work should be exercised – decision set aside and remitted
LEGISLATION
Social Security Act 1991, ss 92A, 92U, 92X, 92Y, 93, 93C
Social Security (Administration) Act 1999, s 21
CASES
re Polchow and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 224
re Secretary, Department of Social Services and Hurry [2016] AATA 94
re Todorovic and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 519
REASONS FOR DECISION
Ms N Isenberg, Senior Member
7 March 2017
BACKGROUND

The Pension Bonus Scheme (PBS) was introduced as a voluntary scheme to reward people who defer claiming age pension and stay in the workforce.
Marianna Lacek, the Applicant, became of an age to be eligible for the age pension (AP) on 16 March 2002. She registered for the PBS. On 8 December 2015, Mrs Lacek lodged a Claim for Age Pension and Pension Bonus Scheme. While AP was granted, the Applicant was not paid her pension bonus (PB) on the basis that she had not claimed it within 13 weeks of ceasing to satisfy the work test. The decision was affirmed on internal review and when reviewed by AAT1. Mrs Lacek now seeks review of that decision.
RELEVANT LEGISLATION
The relevant law is contained in the:
·Social Security Act 1991 (the Act); and
·Social Security (Administration) Act 1999 (the Administration Act).
Section 92A of the Act gives an outline of the PBS provisions as follows:
·A person who qualifies for an age pension but defers claiming that pension may be able to get a single lump-sum pension bonus.
·A person who wants to get a pension bonus must register as a member of the pension bonus scheme.
·To get a pension bonus, a person must accrue between 1 and 5 bonus periods while deferring age pension.
·Generally, a bonus period runs for 1 year.
·To accrue a bonus period, the person must pass the work test for that period.
·To pass the work test for a year, either the person, or the person's partner, must gainfully work for at least 960 hours during that year
·The amount of a person's pension bonus depends on the number of accrued bonus periods and the person's annual rate of age pension. A person may get a bigger bonus by accruing more bonus periods
Section 92U of the Act relevantly requires the person to pass the work test for a full year (or pro rata) before they can claim the PB. To pass the work test a person must have ‘gainfully worked’ at least 960 hours in the preceding year. Also the person must have kept records of that work, unless that requirement is waived.
Section 92X of the Act sets out the relevant provisions for determining whether a person has engaged in ‘gainful work’. Section 92X provides, so far as is relevant:
92X Gainful work—basic rule
1For the purposes of this Part, gainful work is work for financial gain or reward, whether as an employee, a self-employed person or otherwise, where:
(a)the work involves a substantial degree of personal exertion on the part of the person concerned; and
(b)the work is carried on within or outside Australia.
2...
[emphasis added]
Section 92Y of the Act outlines the discretion to treat activity as ‘gainful work’. The section provides, so far as is relevant:
92Y Secretary’s discretion to treat activity as gainful work
1If a person satisfies the Secretary that:
(a)the person, … has engaged in a particular activity; and
(b)the activity involves a substantial degree of personal exertion on the part of the person or the person’s partner, as the case may be; and
(c)the activity does not consist of voluntary work for a charitable, welfare or community organisation; and
(d)because of special circumstances, the activity should be treated as gainful work;
the Secretary may determine that this Part has effect as if the activity were gainful work
2…
[emphasis added]
In a report dated May 1998, the Senate Community Affairs Legislation Committee discussed that the scheme recognised the contribution made by people who remain in employment and defer their age pension by providing a reward for their behaviour. The work must result in the person receiving a monetary or other recompense for that work to enable them to increase their retirement savings while at the same time deferring receiving the age pension. The gainful work enables the person to meet their living expenses as well as providing some additional savings.
ISSUES
The issue to be decided is whether the Applicant was qualified to receive a PB. That primarily involves consideration of whether the Applicant lodged a valid claim for a pension bonus within 13 weeks of no longer satisfying the work test.
THE APPLICANT’S WORK HISTORY
Mrs Lacek gave evidence that, shortly after arriving in Australia in 1971, she started teaching Polish to members of that community. Her qualifications were quickly recognised and she taught at some private schools. Then she started work in the NSW public education system as a teacher of English as a Second Language, teaching at several schools, including for many years at Homebush Boys’ High School (Homebush Boys).
She remained in that role for 35 years. From her evidence and a letter from the Department of Education dated 4 July 2016, she was a most dedicated teacher, often spending much of her free time helping students, apparently with remarkable success. Parents would queue to see her because of her outstanding influence in improving the literacy of their children.
She continued in that role, teaching through to the end of 2013 (technically to the end of the summer holidays in January 2014), and then commenced a period of long service leave (LSL). Her evidence, which was unchallenged, was that her intention was to take, perhaps, only 2 terms of LSL. She said that prior to going on LSL she arranged for the senior classes to be assigned to another teacher, so as not to disrupt the students on her return to Homebush Boys from LSL later in the year. She was not formally ‘farewelled’ at the end of the 2013 school year because it was anticipated that she would return at the conclusion of her LSL. She continued to be part of the Homebush Boys faculty e.g. retaining her desk and email access.
Then, in January 2014 she unexpectedly required surgery. She was told to ‘take it easy’ and, in particular, to avoid stairs. Homebush Boys had a lot of steps which she would be required to use several times a day; she was actually enjoying her time off, so decided to extend her LSL. It was only in late 2014 or early 2015 that she was ‘farewelled’.
In addition to her work at Homebush Boys she had started, in 1983, to teach Polish on Saturdays at the Community School of Languages (Saturday school). She teaches during school terms for 4 hours per week, plus 3 hours per term in-service training (which she leads), plus organises internal exams for other centres (up to 5 hours per term). She also has a role co-ordinating the teaching of Polish nationally. She continues to teach Saturday school.
Arising from that role, she was engaged by the Board of Studies to set and mark HSC exams, but did not continue with this in 2016.
She had, over the early years of her teaching career, provided some private coaching, but had little time while she was teaching full time and while she was raising her family. In 2014, when she stopped full time work she decided that her Saturday School students would benefit from additional classes. There were logistics issues which led her to decide to conduct the classes in her home. Some parents had no idea of the Australian school system and their children would be disadvantaged in the broader examination context. Others focused on improved Polish language skills. As a result, her students have routinely achieved outstanding results, frequently taking the top places in the HSC. Evidence was provided of this success. Letters were provided by parents of over a dozen students that she had coached through 2014 and 2015. The sessions were generally 2-3 hours per week for each student during term, increasing at exam time. The Applicant accepted no payment from any of the parents, regardless of their means. She regarded payment to be ethically inappropriate, given that she was an HSC examiner. She said though that she was continually inundated with flowers as parents tried to find ways to express their appreciation.
She said she regarded teaching as ‘not just [her] profession, [it is her] passion’.
Outside the teaching role she has also spent a lot of time writing – she had a regular column in two Polish language newspapers, for which she receives no payment, but obtained free copies of the newspaper which she uses as a teaching aid. When she wishes to promote functions and conferences she receives the advertising free of charge.
She speaks regularly on SBS radio, including addressing issues of educating those from a small mono-cultural, mono-religious community. She has translated Australian literature into Polish to assist in focussing on this and related education issues.
She organises conferences, which are also unpaid. In July 2015, she and her husband received free registration for a 3-day conference, in return for her discussion about teaching at Saturday school. Following the conference, she arranged a conference for Polish teachers about what had been discussed.
She attended a conference in London for 4 days. Her airfares and expenses were paid and she was taken on tours.
She has written extensively, with the approval of the Board of Studies, about teaching Polish in Australia through a focus on literacy and these articles have been published in Poland. This work was unpaid.
Her ongoing commitment to the teaching of bilingual students has formed the foundation of her PhD work, which is being promoted by a language professor at Melbourne University with whom she had organised conferences in nearly all states.
She has also been very active in the Polish music community. Since 2003 she has organised 6 competitions for young musicians of Polish heritage. The most recent was in 2014. This work is very time consuming to arrange the competition including the travel of competitors and arranging the judging. She is also a member of the Chopin Society, and had a role in organising the 2014 competition, including coaching one competitor in Polish enunciation for the singing component of the competition.
For service to education, and to the Polish community of New South Wales she was awarded an Order of Australia (OAM).
The Applicant submitted that, having worked beyond retirement age (2002), she had worked more than double the maximum time which would attract the PB. She did not apply earlier because she was receiving LSL payments and did not think she would be eligible for AP, so did not apply. She agreed she had not applied for the PB within 13 weeks of ceasing ‘work’, by which she meant her full-time work at Homebush Boys.
She said that even aside from her full time work she was still working 20 hours a week. In support of her contentions she supplied a record of her work during 2014 and 2015, including her coaching sessions, writings, appearances, conferences and other attendances which she had reconstructed from her diary.
She accepted that she may have received information from Centrelink in the form of letters about the PBS such as those of 2 March 2009, 2 March 2010, 2 March 2011, 2 March 2012, and 4 March 2013, namely that she needed to lodge her claim for PB within 13 weeks of ceasing work, or within 13 weeks from the date that she no longer met the work test. She did not seek clarification because she thought her position was clear, namely that she was ineligible for the AP because her income (ie her paid LSL) was over $90,000.
CONSIDERATION
The Respondent contended that the application for review must fail and submitted that there were 5 bases for that contention (which have been rearranged for more logical consideration):
·the Applicant did not meet the required work test of at least 960 hours after 28 January 2014 when she retired: s 92U(a) of the Act.
·the Applicant was not engaged in “gainful work ... for financial gain or reward” after 28 January 2014: s 92X(1) of the Act.
·the Applicant did not lodge her claim within 13 weeks of ceasing to meet the work test: s 21 the Administration Act.
·there were no 'special circumstances’ allowing her activities to be treated as gainful work: s 92Y(1)(d) of the Act.
·the Applicant did not keep a recognised work record for the period after 28 January 2014: s 93(c)(3) of the Act.
When did the Applicant cease to meet the required work test?
The first question is to determine when the Applicant ceased to meet the work test. It is then, within 13 weeks of that date, that she was required to lodge her claim for PB. The Respondent contended that the Applicant did not meet the work test for the full year from 28 January 2014 until 27 January 2015 or for the part-year from 28 January 2015 until she lodged her claim for (AP and) PBS on 8 December 2015.
The work test is based on the expression ‘gainful work’ which is defined in s 92X of the Act as work for financial gain or reward involving a substantial degree of personal exertion. The Respondent submitted that this requires the person receiving money or some other form of payment for that work, such that her savings were increased. It contended that the Applicant was not engaged in ‘gainful work’ between 28 January 2014 when she ceased full time paid work and the date of claim on 8 December 2015.
The Respondent submitted that LSL cannot count towards meeting the work test, and consequently, it was to be determined whether, while on LSL the Applicant may have nonetheless continued to meet the work test. In that regard the Respondent relied on the correspondence from the Department of Education that, during the period 28 January 2015 to 8 December 2015, the Applicant was employed as a Saturday school teacher for four hours per week and calculated that this equated to 192 hours. Even taking into account the Applicant’s evidence that she also undertook other paid work associated with this role, namely one three hour in-service meeting per term, one 10 hour day per year conducting Polish language examinations, two and a half days administering HSC examinations this still falls short of the 20 hours per week required over a 48 week year, such as not to be able to meet the required 960 hours as required by s 92U of the Act.
The evidence was clear that, aside from her LSL payments, the Applicant received only cash payments during 2014 and 2015 associated with her Saturday school teaching role and her role as an examiner. The Applicant did not dispute that this was the case.
As to how the LSL should be treated, I was referred to the decision of re Todorovic and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 519 (Todorovic). In that case, the Tribunal considered whether LSL could be considered as gainful work, noting that a person on LSL continues to draw wages and pays tax on those wages:
… Unfortunately for the Applicant, section 92X of the Act reads as follows: …
One might have thought, in the normal course, that where a person is on long service leave …, but continuing to draw wages from his employer, the whole purpose of the statute has been met. That is to say, that although not actually attending work, for the purposes of section 92U, is engaged in gainful work. I have sought to apply a purposive interpretation to the statute. However, it seems to me that section 92X restricts gainful work to the actual performance of duties. In approaching the interpretation of the section, I kept in mind the judgment of Spigelman CJ in Repatriation Commission v Vietnam Veterans Association (2000) 48 NSWLR 548 at 575. His Honour said, speaking of the Repatriation Medical Authority and the sections regarding its investigations:
“They provide part of the context internal to the legislative scheme in which the words must be construed. The Australian law of statutory interpretation requires a court to consider context in the first instance, not merely after ambiguity is identified.”
Section 92X occurs in subdivision B of division 5 of the Act and contains the other following sections, such as section 93 which states that:
Management of family financial investments does not count as gainful work.
But more to the point, is section 92Z, which reads:
For the purposes of this part, if a person is engaged in gainful work, the total hours gainfully worked by the person during a period are to be determined as if the person had been engaged in gainful work during any absences from the workplace that are irregular, infrequent and minor.
It seems to me that section 92Z must be read in context with section 92X, so that absences from the workplace that are not infrequent and/or minor, do not count as gainful work. …
At page 15, the explanatory memorandum reads:
New section 92Z inserts a special rule to provide that absences from a workplace that are irregular, infrequent and minor may be treated as gainful work. These conditions are cumulative: the rule operates only in relation to absences that meet all of the conditions. It is intended that this provision will treat an absence from the workplace as gainful work where the person is considered to be “on duty” despite their absence.
I would just state, for completeness, that the second reading speech does not assist me. The crux of the matter is, however, that l am satisfied that under section 92X, as it affects section 92U, absence on annual leave or long service leave does not constitute gainful work for the purposes of the pension bonus scheme. …
Todorovic differs from the present case because it appears, from the brief recital of the facts in the case, that the Applicant had retired and been on LSL for 2 years, whereas the Applicant’s uncontested evidence was that she had only planned, before she became ill, to take 2 terms LSL. In that respect, especially given that she retained her Homebush Boys desk and email account and planned the allocation of classes around her return, I accept that her absence until the end of second term, say, 30 June 2014, is properly regarded as temporary. Consistent with the Senate Committee’s report that the objectives of the PBS include restraining the growth in pension outlays, accessing one’s LSL has this effect. That being the case, the Applicant would continue to meet the work test until that time. However, her claim for PB was not lodged within 13 weeks of that time and, her application would still be out of time.
Another difference between the present matter and Todorovic is that it appeared that, unlike the present Applicant, Mr Todorovic was engaged in no other work. As to whether the Applicant’s ‘unpaid’ work could be regarded as ‘gainful work’ as it was not for ‘financial gain’, I considered the use of “reward” in s 92X(1). The term “reward” is not defined in the legislation or in the relevant portion of the Guide to Social Security Law (the Guide). I was referred to an entry elsewhere in the Guide[1], but I am not inclined to rely on some policy which addresses another legislative purpose.
[1] Guide to Social Security Law cl 2.3.2.40 - Activities Considered as 'Work’ for DAPP [Dad and Partner Pay].

I was referred to re Polchow and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 224 (Polchow), where the Tribunal considered that a director of a company looking for work could not satisfy the requirement that the individual has performed work for financial gain or reward. The Tribunal referred to a number of dictionary definitions:
27 … The word reward means: 1 something given or received in return for work done, a service rendered, good behaviour, etc (Chambers 21st Century Dictionary). Therefore, it should be apparent that the expression gainful work in the context of the Act means work which involves a substantial degree of personal exertion on the part of the person concerned which results in that person receiving money or some other form of payment for that work. …
33. As the Senate Community Affairs Legislation Committee report indicates, the objectives of the pension bonus scheme are to:
(a)increase labour market participation of retirement age persons;
(b)allow people who defer their pension to increase their retirement savings during the deferment period; and
(c)restrain growth in pension outlays.
34. The report also states that the scheme recognises the contribution made by people who remain in employment and defer their age pension by providing a reward for this behaviour. It is targeted at those persons who have a substantive attachment to the workforce when reaching retirement age and continue to undertake substantial work. These objectives are clearly satisfied by compliance with the basic rule regarding gainful work. In other words, the work itself must result in the person receiving monetary or other recompense for that work to enable them to increase their retirement savings while at the same time deferring receiving the age pension. In simple terms, the person’s gainful work enables the person to meet his or her living expenses as well as providing some additional savings. The person does not require any supplementary form of income by way of pension.
[original emphasis]
Polchow appeared to accept that ‘reward’ may include something received by way of payment for work other than money. The Applicant did not receive money for her private tutoring of students and this was confirmed by the multiple letters from parents which she provided. Whilst the activity (tutoring and preparation of lessons) undoubtedly involved significant personal exertion, it did not result in financial reward. There was evidence, however, of her receiving free newspapers, free advertising in newspapers, course registration fees for her and her husband, and tours while lecturing abroad. I accept that this is ‘reward’ for her personal exertion, albeit paltry compared to the commitment involved.
The Respondent contended that the work undertaken by the Applicant, whilst of great benefit to the Polish community and broader community, was not gainful work and was more in the nature of voluntary work. Because the work was for ‘reward’, I do not accept that this type of work points to the Applicant’s work being voluntary work.
The Respondent further contended that, even if I were to accept that these activities were ‘gainful work’, that the Applicant has not satisfied s 93C of the Act because she has not kept a recognised work record in relation to the gainful work.
Section 93C of the Act requires:
Record-keeping requirements for person
(1) For the purposes of the application of paragraph 92U(a) or 92V(1)(a) or subsection 93B(1) or (3) to a person, the applicable record-keeping requirements have been complied with in relation to a period of the person’s accruing membership of the pension bonus scheme if:
(a)in a case where the person has:
… or
(ii)    lodged an income tax return that relates to any gainful work carried on by the person during that period; [emphasis added]
the person would be in a position to produce a copy of the certificate or of the return, as the case may be, to the Secretary if the Secretary were to require the person to produce that copy; and
(b)both:
(i)     the person has kept a recognised work record (see subsection (3)) in relation to gainful work carried on by the person during that period; and
(ii)    the person would be in a position to produce that record to the Secretary if the Secretary were to require the person to produce that record.
Firstly, the Applicant produced a copy of her income tax returns for 2014-2016. Each shows entries relevant to her Saturday school role. For 2014 and 2015 there was the Board of Studies role referred to also. Thereby s 93C(1)(a)(ii) of the Act is satisfied.
Further, the Respondent contended that there is no evidence that the Applicant “has kept a recognised work record” as required by s 93C(1)(b)(i) of the Act. Section 93C(3) of the Act specifies what is required for a recognised work record, namely:
...a written statement signed by the person that sets out, in relation to gainful work carried on by the person during a particular period:
(a)the nature of the gainful work; and
(b)the dates on which the gainful work was carried on; and
(c)the total number of hours gainfully worked; and
(d)the total number of hours gainfully worked in Australia; and
(e)in a case where any of the gainful work was carried on in the capacity of employee - the name or names of the employer or employers concerned; and
(f)such other particulars as the Secretary requires.
There is no requirement that such a record be contemporaneous, as the Respondent’s submission that she had failed to keep a recognised work record suggests. In any event, the Applicant’s uncontested evidence, which I accept, was that she re-constructed if from her diary. The Respondent was also critical of the content as demonstrating a lack of detail. I do not accept this contention. The record produced clearly particularises the activities and is especially detailed with respect to coaching – nominating the student, the dates on a week by week basis on which the home coaching occurred, and the total number of hours. These details were consistent with the information provided by the students’ parents. I reject the Respondent’s oral submission that, with respect to each individual date entry the precise nature of the coaching activity should have been specified. I find the record meets the requirement of s 93C(3) of the Act. I accept the Applicant ceased to satisfy the work test on 5 October 2015, which is consistent with the Applicant’s application dated 8 December 2015 and her work record.
Discretion
Even if I were wrong about whether the Applicant was engaged in gainful work, I observe the discretion to treat activities as gainful work: s 92Y of the Act.
The Respondent submitted that the discretion in s 92Y(1)(d) of the Act, namely “because of special circumstances”, should not be applied because the Applicant’s activities teaching, writing, research etc activities do not meet the spirit and intent of the legislation. The term ‘special circumstances’ is not defined in the legislation.
The Respondent referred me to clause 3.4.7.70 of the Guide, which states:
Other activities may be treated as gainful work
The Secretary of the Department may treat an activity as gainful work in situations in which the activity performed by the member appears to meet the spirit of the legislation but cannot be clearly defined as gainful work.
Example 1: A member engaged in a business that is temporarily running at a loss. In this case, their activity would be considered as gainful work; provided the activity did not appear to be deliberately contrived to meet the scheme’s requirements.
…
I did not find that reference as particularly helpful, and the example was of very limited application.
I was also referred to re Secretary, Department of Social Services and Hurry [2016] AATA 94 (re Hurry), where the Tribunal considered whether the discretion should be exercised to find Mr Hurry’s investigating, researching and writing papers on the Australian health care and medical system could be considered as gainful work. In finding the discretion should not be exercised, the Tribunal held:
24Save for a period around December 2006 when he received the proceeds of the sale of a business, Mr Hurry acknowledges that he received no financial gain or reward for his activity throughout the relevant period. He contends, however, that the activity in which he was engaged throughout that period should be treated as gainful work. ...
45In order to treat activity as gainful work, it must bear some real resemblance to gainful work. I agree with the description by the Tribunal of gainful work in Polchow and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 224 (at para 27): …
46An activity that has only a remote resemblance to what usually constitutes gainful work should not be treated as such. I accept that financial gain or reward is not always obtained at the same time as the personal exertion to which it is directed. However, the prospect of that gain or reward must be real. Activity which is unlikely to produce an income, or has only a faint prospect of doing so, should not in my view be treated as gainful work. ...
47According to the Guide (at 3.4.7.70), the Secretary may treat an activity as gainful work in situations in which the activity performed by the member appears to meet the spirit of the legislation but cannot be clearly defined as gainful work”. The Guide offers the following examples:…
48Each of these examples suggests a close attachment between the activity in question and one that would constitute gainful work, or an activity during a break in one that otherwise produces some gain or reward, I accept that the “break” could come at the start of the activity but only for so long.
49The fact that voluntary work is specifically excluded by s 92Y from being treated as gainful work is a clear indication that, consistent with the stated policy underlying the PBS, actual financial gain or reward is a necessary component of gainful work. Other than on the sale of IKI, Mr Hurry did not earn an income from either business after about 1997. He has obtained no financial gain or reward from RHCR in approximately ten years.
50Finally, there must be special circumstances in order for the discretion to treat activity as gainful work to be exercised.
51The meaning of the expression “special circumstances” for the purposes of the Act has been considered by the Tribunal and the courts on many occasions. It is “by its very nature incapable of precise or exhaustive definition” and contemplates circumstances that are “unusual, uncommon or exceptional’’: Beadle and Director-General of Social Security (1984) 6ALD 1. In Groth and Secretary, Department of Social Security [1995] FCA 1708. the Court described special circumstances as those that distinguish an applicant’s case from others’ and take it “out of the usual or ordinary case”.
52In other cases, the Tribunal has looked to whether strict enforcement of liability would be “unjust, unreasonable or otherwise inappropriate”: Re Ivovic and Director-General of Social Services [1981] AATA 57; and whether any injustice or unfairness would be visited upon the Applicant that is not visited upon all other recipients of social security payments: Davy and Secretary, Department of Employment and Workplace Relations [2007] AATA 1114.
53It might be thought unusual or out of the ordinary for a person to spend the very considerable time and resources that Mr Hurry has spent on his investigations without financial gain or reward, but that is not sufficient in my view to constitute special circumstances. The clear intention of the PBS is that a person use the accrual period to achieve financial gain or reward, special circumstances. The discretion is to be exercised in that context. I am not satisfied there are special circumstances in Mr Hurry’s case that take it out of the ordinary and warrant the exercise of the discretion.
The Respondent submitted that re Hurry is relevant to the present matter, particularly given the amount of time the Applicant has spent on her non-remunerative activities, as had Mr Hurry. In that case, the Tribunal held “the clear intention ... is that a person use the accrual period to achieve financial gain”. From the Applicant’s evidence, she was not paid for the tutoring she did; her writings, speaking engagements and organisational activities for the Polish community were done without remuneration; and her research and writing for conferences was undertaken for reimbursement of expenses and as a preparation for undertaking a PhD (Education) for her own self-benefit.
The Respondent’s submission however overlooks that the Tribunal in re Hurry, in agreeing with the description of gainful work in Polchow, did not discuss that Polchow accepted that ‘reward’ may include something in return for work other than money.
The Tribunal in re Hurry also accepted that financial gain or reward need not always obtained at the same time as the personal exertion to which it is directed. The Tribunal found that an activity which is unlikely to produce an income, or has only a faint prospect of doing so, should not be treated as gainful work. I note the Applicant’s evidence that she regarded payment for her coaching to be ethically inconsistent with her role as an HSC examiner but that she has, since 2016, discontinued that examiner role. She has built such a very high reputation that she is sought after as a tutor and is widely acknowledged, including by the Department of Education, the press and the students and their families, as responsible for outstanding student results. In this she has developed a client base which, now free from the perceived conflict, can readily translate into a source of income. In that regard the prospect of subsequent financial gain or reward is real, should she adopt that course.
What constitutes special circumstances in this context was also discussed in re Hurry. Having regard to my observations above, I accept that the Applicant’s circumstances are sufficiently special to warrant exercise of the discretion.
Was the claim for PB lodged within 13 weeks of no longer meeting the work test?
Having found that the Applicant’s activities throughout 2014 and 2015 constitute gainful work, I find that the Applicant’s application was within time as she lodged the application on 8 December 2015, which was within 13 weeks from 5 October 2015, the date the Tribunal accepts the Applicant ceased to meet the work test. The effect is that the Applicant is entitled to the PB.
DECISION
The decision under review is set aside and remitted to the Respondent with the direction that the Pension Bonus Scheme claim the Applicant lodged on 8 December 2015 was not made out of time and is to be assessed in accordance with these reasons.

I certify that the preceding 55 (fifty -five) paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member

............................[sgd]....................................
Associate
Dated: 7 March 2017

Date of hearing: 7 February 2017

Applicant: In person

Solicitors for the Respondent: Ms G Heggen, Department of Human Services

Date of hearing:	7 February 2017
Applicant:	In person
Solicitors for the Respondent:	Ms G Heggen, Department of Human Services