Lola Senini and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2013] AATA 412
[2013] AATA 412
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/1106
Re
Lola Senini
APPLICANT
And
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT
DECISION
Tribunal Mr S. Webb, Member
Date 19 June 2013 Place Canberra The decision under review is affirmed.
..............................[sgd]..........................................
Mr S. Webb, Member
SOCIAL SECURITY – Age Pension – Pension Bonus Scheme – claim for registration and payment of Pension Bonus after grant of Age Pension – no discretion – decision affirmed
Social Security Act 1991 (Cth), ss 92C, 92H
REASONS FOR DECISION
Mr S. Webb, Member
19 June 2013
Lola Senini retired at the age of 72. A number of years later, she claimed and was granted Age Pension. Her subsequent claim for registration and payment under the Pension Bonus Scheme was rejected by primary determination and on review by an authorised review officer and the Social Security Appeals Tribunal. Mrs Senini applied for review.
There are two issues for determination –
(a)whether it is appropriate to extend the time for Mrs Senini to register for the Pension Bonus Scheme; and
(b)whether she is qualified for a pension bonus.
The facts
Mrs Senini reached retirement age on 15 January 1998, but she did not retire and continued working.
She retired at the age of 72 in August 2009.
On 5 January 2010, Mrs Senini signed a claim for a Seniors Health Card[1] which was lodged on 8 February 2010. In this form her income for 2009-2010 is recorded to be $632[2] and she answered No to the question “If you are still working, would you like information and a registration form for the Pension Bonus Scheme?”[3].
[1] T5 folio 36.
[2] T5 folio 34.
[3] T5 folio 33.
Mrs Senini says that before lodging this claim she did not receive any documentary information from Centrelink about the Pension Bonus Scheme, but a number of interactions with Centrelink occurred that are presently relevant[4]. Firstly, she says that, once alerted to the Pension Bonus Scheme by work colleagues, she attempted to register for the Scheme on a number of occasions. But Centrelink staff told her she was not eligible. Secondly, she says that she lodged a claim for Age Pension following her retirement in 2009, but this appears to have been lost. Thirdly, she says that her investment advisor, RetireInvest, made enquiries about her eligibility for Age Pension, but she understands that Centrelink advised she would not be eligible. This is why she signed a claim for a Seniors Health Card and not an Age Pension in January 2010. None of these alleged contacts are supported by Centrelink records.
[4] Applicant’s submissions dated 11 June 2013, T9 folio 64 and T12 folio 74.
On 17 February 2010, Mrs Senini was granted a Seniors Health Card.
On 3 September 2010, Mrs Senini contacted Centrelink about making a claim for Age Pension. She was sent a claim form and related information. The actual documents Mrs Senini was sent are not in evidence, but a computer print-out of the letter appears in T6 with the enclosures listed. As can be seen, information about the Pension Bonus Scheme is listed, for example –
… The questions on this page ask whether you wish to claim Pension Bonus or register for the Pension Bonus Scheme. When claiming for Pension Bonus or registering for the Pension Bonus Scheme timing is important. If you have any questions or concerns call us on 13~’2300 and ask to talk to a Financial Information Service Officer. For more information read the Pension Bonus Scheme brochure (RT002). If you do not have this brochure call us or go to our website at T6 folio 37.
On 1 December 2011, Mrs Senini signed a claim form for Age Pension[6] which appears to have been lodged on 9 December 2011[7]. The claim form includes a section headed “Pension Bonus” which sets out four questions –
1Have you been working more than 12 months past Age Pension age, or do you intend working more than 12 months past Age Pension age?
2Are you a registered member of the Pension Bonus Scheme?
3Did you reach Age Pension age before 20 September 2009?
4Do you wish to REGISTER for the Pension Bonus Scheme?
Mrs Senini answered No to the first three questions and she crossed out the fourth question[8].
[6] T7 folio 60.
[7] T17 folio 99.
[8] T7 folio 42.
Centrelink records on 19 March 2012 note that –
Customer contacted SEN SUTHERLAND on 9 DEC 2011 regarding Claim for Age Pension. Information was obtained via Age Pension and Pension Bonus claim using Personal – In Office…
Age Pension rejected (FRC) on 19 MAR 2012.
Not qualified under S64 SSAA.
Initial CCD Contact Date: 3 SEP 2010
…[9]
A subsequent record dated 28 March 2012 notes that Age Pension was granted and paid from 9 December 2011[10].
[9] T17 folio 99.
[10] T17 folio 98; T8 folio 61 refers.
On 3 August 2012, Mrs Senini lodged a registration form for the Pension Bonus Scheme[11] and a statement[12].
[11] T10.
[12] T9.
On 24 August 2012, her application to register as a member of the Pension Bonus Scheme was rejected[13].
[13] T11 folio 72.
On 25 September 2012, Mrs Senini lodged a further statement[14] and a letter dated 2 October 2012[15].
[14] T12 folio 74.
[15] T13 folio 75.
On 12 October 2012, an authorised review officer decided to affirm the determination to reject her application for registration under the Pension Bonus Scheme[16].
[16] T15.
This decision was affirmed by the SSAT on 11 February 2013.
Consideration
The issues are to be determined under Part 2.2A of the Social Security Act 1991 (Cth) (the Act).
Is it appropriate to extend the time for Mrs Senini to register for the Pension Bonus Scheme?
The period in which a person may apply for registration as a member of the Pension Bonus Scheme is determined under s 92H. As can be seen, the general requirement is that an application should be made within 13 weeks before or after the date on which the person is qualified for Age Pension. Under s 92H(3) there is discretion to extend the period.
Presently, it is not necessary to proceed to consider whether or not the discretion is enlivened in Mrs Senini’s circumstances. Even if the period for registration is extended to the date on which Mrs Senini applied for registration, 3 August 2012, it would not assist her. Registration under the Pension Bonus Scheme is but one of the essential qualifying criteria for a pension bonus, and her claim falls on a different point.
Is Mrs Senini qualified for a pension bonus?
Qualification for a pension bonus is to be determined under s 92C of the Act –
92C Qualification for pension bonus
A person is qualified for a pension bonus if:
(a) both:
(i) the person starts to receive an age pension at or after the time when the person makes a claim for the pension bonus; and
(ii) that age pension is received otherwise than because of a scheduled international social security agreement (see section 5 of the Social Security (International Agreements) Act 1999); and
(b) the person has not received an age pension at any time before making a claim for the pension bonus; and
(c) the person is registered as a member of the pension bonus scheme; and
(d) the person has accrued at least one full‑year bonus period while registered as a member of the pension bonus scheme; and
(e) the person has not received:
(i) a social security pension (other than an age pension or a carer payment); or
(ii) a social security benefit; or
(iii) a service pension (other than a carer service pension); or
(iv) an income support supplement (other than an income support supplement that is payable as a result of the operation of subclause 8(3) of Schedule 5 to the Veterans’ Entitlements Act);
at any time after the person qualified for an age pension; and
Note: Even though the person may not have actually received an amount of social security pension or benefit because the rate of the pension or benefit was nil, in some cases the person will be taken to have received the pension or benefit if adjusted disability pension (within the meaning of section 118NA of the Veterans’ Entitlements Act) was payable to the person or the person’s partner: see subsection 23(1D) of this Act.
(f) the person has not already received:
(i) another pension bonus; or
(ii) a bonus under Part IIIAB of the Veterans’ Entitlements Act; or
(iii) DFISA bonus under Part VIIAB of the Veterans’ Entitlements Act.
…
The qualification criteria are conjunctive and each must be satisfied for a pension bonus to be payable. It is quite clear that receipt of an age pension at any time before claiming pension bonus is disentitling.
This is determinative of Mrs Senini’s claim – she received Age Pension from 9 December 2011, well before she lodged her application for registration under the Pension Bonus Scheme and claimed payment on 3 August 2012. For this reason, alone, she is not qualified for a pension bonus.
Even though Mrs Senini alleges she was given incorrect information by Centrelink officers, there is no discretion in respect of the qualification criteria.
It follows that her claim must fall on this point and the decision under review must be affirmed.
I certify that the preceding 23 (twenty -three) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member .............................[sgd]...........................................
Associate
Dated 19 June 2013
Date of the hearing on the papers 12 June 2013 Applicant In person Advocate for the Respondent Ms Glenda Heggen Solicitors for the Respondent Department of Human Services, Program Litigation and Review Branch
0
0
0