MacCombie and Secretary, Department of Family and Community Services and Indigenous Affairs

[2007] AATA 1188

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1188

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2006/811

GENERAL ADMINISTRATIVE DIVISION        )          No Q2006/839

Re ALEXANDER MacCOMBIE and BETTY  MacCOMBIE

Applicant

and SECRETARY, DEPARTMENT  OF FAMILY and COMMUNITY SERVICES and INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Mr R G Kenny, Member

Date29 March 2007

PlaceBrisbane

Decision The Tribunal affirms the decisions under review.

……………[Sgd]……………………  

RG Kenny

Member

CATCHWORDS

SOCIAL SECURITY – pension bonus –– qualification requirements – previous receipt of age pension prior to making a claim – requirements not met - decision affirmed.

SOCIAL SECURITY – pension bonus –– special requirements regarding claim – absence of a formal claim – applicant ineligible to receive pension bonus – decision affirmed.

Social Security Act 1991 (Cth) ss 23(5A), 23(5B), 92C.
Social Security (Administration) Act 1999 (Cth) ss 11, 17

REASONS FOR DECISION

29 March 2007     Mr RG Kenny, Member

Application

1.      On 26 July 2006, Mr and Mrs MacCombie lodged claims for age pension.  On that day, Mr MacCombie also lodged a claim for the pension bonus which is provided for in the Social Security Act1991 (the Act) and the Social Security (Administration) Act 1999 (the Administration Act).  On 13 September 2006, an authorised review officer with Centrelink affirmed decisions made in August 2006 which determined that neither Mr or Mrs MacCombie were qualified to receive the pension bonus. Those decisions were affirmed by the Social Security Appeals Tribunal on 24 October 2006.  Mr and Mrs MacCombie now seek review of these decisions by the Administrative Appeals Tribunal.

Applicant’s contentions

2.      Mr MacCombie recognised that the pension bonus scheme was introduced to encourage people to stay in remunerative employment after reaching the relevant age for payment of the age pension.  He said that it had always been his intention to work for as long as he was able to and that he has given effect to that intention by remaining in full-time work even though he is now 76 years of age.  He conceded that he was aware of the reasons given for denying him the pension bonus.  This was that he had been in receipt of the age pension in 1996, 1998 and 1999 which was prior to making his claim for pension bonus on 26 July 2006.  However, he denied ever making a specific claim for age pension although he agreed that he made a claim for a health care card and believed that he had made a claim for newstart allowance in 1996.  Instead of receiving that benefit, he had been transferred automatically to the age pension because of his age and was made aware of this in the notice of payment which was sent to him when age pension was initially paid to him.  In Mrs MacCombie’s case, it was conceded that she had also received the age pension when Mr MacCombie did and also that no claim had ever been lodged by her for the pension bonus.  This was because Centrelink staff had made it clear to her that she would not qualify for it.  Mr MacCombie said that, while this had deterred Mrs MacCombie from lodging a claim, it had not prevented him from doing so.  He submitted that he and his wife had been discriminated against by the pension bonus scheme because it had been introduced after they were able to take advantage of it. 

Consideration

3. The qualification criteria for the pension bonus are set out in section 92C of the Act. It is not disputed that both Mr and Mrs MacCombie meet the relevant age requirements for the age pension as set out in subsections 23(5A) and 23(5B), respectively, of the Act. Paragraph 92C(b) of the Act provides that a claimant for the pension bonus must not have received an age pension at any time before making a claim for the pension bonus. That provision is not one which admits of the exercise of a discretion by a decision-maker. Further, the scheme was introduced without any transitional provisions which might assist a person in Mr or Mrs MacCombie’s position. Regardless of the circumstances which surrounded their being granted the age pension in the 1990s, it remains the case that they were in receipt of it before, in Mr MacCombie’s case, he lodged his claim for the pension bonus. In that situation, I am satisfied that he does not qualify for the pension bonus to be paid to him.

4. Receipt by Mrs MacCombie of the age pension also means that she does not satisfy the qualification criteria. Additionally, section 11 of the Administration Act requires that a claim be made and section 17 thereof sets down special requirements regarding claims for pension bonus. The claim must be attached to and lodged with the claim for age pension. This was not done by Mrs MacCombie and this also precludes her from receiving the pension bonus.

Decision

5.      I have noted the criticisms made by Mr MacCombie about the pension bonus scheme. However, the legislation which relates to its implementation is unambiguous and, in the circumstances of Mr and Mrs MacCombie, it operates to deny them from participating in it.  Accordingly, the decisions under review are affirmed.

I certify that the 5 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RG Kenny, Member

Signed:…………………………………………………………….
  Legal Research Officer

Date/s of Hearing  20 March 2007
Date of Decision  29 March 2007
The Applicants  were unrepresented
For the Respondent                  Mr B Avery, Departmental Advocate..