MacDonald and Secretary, Department of Social Services (Social services second review)
[2016] AATA 776
•3 October 2016
MacDonald and Secretary, Department of Social Services (Social services second review) [2016] AATA 776 (3 October 2016)
Division GENERAL DIVISION File Number(s)
2015/2652
Re
Norman MacDonald
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Dr Gordon Hughes, Member
Date 3 October 2016 Place Melbourne The Tribunal affirms the decision under review.
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Dr Gordon Hughes, Member
Catchwords
SOCIAL SECURITY - eligibility for pension bonus – previous receipt of Newstart allowance – decision to grant Newstart allowance correct – decision to refuse pension bonus correct – applicant provided with incomplete advice by Centrelink as to the effect of Newstart allowance on pension bonus – possible claim under Compensation Detriment caused by Defective Administration (CDDA) Scheme.
Legislation
Social Security Act 1991 sections 92C, 92H, 593(1).
Veterans' Entitlements Act1986 sections 36, 5QA(2) 45TC.
REASONS FOR DECISION
The Applicant was seeking a review of a decision made by the Social Security Appeals Tribunal on 23 April 2015. That decision affirmed a decision made by an authorised review officer of the Department of Human Services on 5 December 2014 to grant him Newstart allowance with effect from 5 July 2010.
The Applicant contended that the decision to grant him Newstart allowance was incorrect. He was seeking a determination that he had not been entitled to receive Newstart allowance because it affected his subsequent qualification for a pension bonus, being the pension bonus provided for under Part IIIAB of the Veterans’ Entitlements Act 1986. Pursuant to section 45TC of the Veterans' Entitlements Act 1986, a person is not qualified to a pension bonus if that person previously received a social security benefit after becoming eligible for an age service pension.
The Applicant received Newstart allowance between 5 July and 14 August 2010. He became eligible for age service pension on 28 May 2008, his 60th Birthday.
The Applicant in fact did not seriously contend that the decision to grant Newstart allowance was flawed in a legal sense. His principal grievance was that he considered he had been misled by the Centrelink at the time of applying for the benefit, specifically with respect to the potential impact of Newstart allowance upon a subsequent claim for pension bonus.
The Applicant told the Tribunal that on 5 July 2010 he contacted the Centrelink Service Centre at Cranbourne to discuss his options after ceasing work with his employer, Monjon Pty Ltd. He obtained a number of brochures and returned to the Service Centre on 13 July 2010 for an interview. He said he was told by an officer at the Service Centre that Newstart allowance would not affect his future entitlement for pension bonus and he was encouraged to apply for Newstart accordingly.
Relying upon the advice of the officer, together with the fact that the brochures all indicated that a number of pensions negated the pension bonus but there was no mention of Newstart allowance, he lodged a completed Customer Declaration Form. Newstart allowance was subsequently granted on 16 August 2010 with a start date of 5 July 2010.
The Applicant's Newstart allowance ceased with effect from 14 August 2010 when he ceased lodging the required Reporting Statements. The circumstances surrounding the termination of his payments are not relevant to the matter under consideration.
It would appear that the Applicant became the innocent victim of the fact that there are two pension bonus schemes. One is managed by Centrelink and provided for under Chapter 2, Part 2.2A of the Social Security Act 1991. The other is managed by the Department of Veterans Affairs and provided for under Part IIIAB of the Veterans' Entitlements Act 1986. The Applicant was dealing with Centrelink and was provided with advice as to his options under social security law, pertaining specifically to eligibility for the Pension Bonus Scheme set out in the Social Security Act 1991.
Under the Pension Bonus Scheme managed by Centrelink, it is not possible for a man to register until he has at least turned 65 years of age, as the date of qualification for a pension bonus is the date a person qualifies for the age pension (Social Security Act 1991 s 92H). At the time of his meetings with Centrelink, the Applicant was aged 62. Receipt of Newstart prior to the age of 65 would not disqualify him from receiving a pension bonus (Social Security Act 1991 s 92C). The advice which he received from Centrelink was correct from the Centrelink perspective.
Under the Department of Veterans Affairs Pension Bonus Scheme, a man could register for the pension bonus from the time he turned 60, provided they met the other eligibility requirements (Veterans’ Entitlements Act 1986 ss 36, 5QA(2)). Receipt of Newstart after turning 60 would disqualify him from receiving a pension bonus under the Veterans' Entitlements Act, as he would have received a social security benefit (Veterans’ Entitlements Act 1986 s 45TC(1)(e)). The Applicant was not advised of this scenario and presumably Centrelink would argue that, from its perspective, such a scenario was not relevant to the Applicant's enquiries to Centrelink at the time.
The Tribunal is of the opinion that the decision to grant Newstart allowance to the Applicant was technically correct. The Applicant did not contest in any way that he had not applied for, or met the eligibility criteria for, Newstart allowance. The current application before the Tribunal to review whether the decision to grant the Applicant Newstart allowance was correct cannot succeed.
The Tribunal notes that the Applicant has initiated another Application before the Tribunal, against the Repatriation Commission, challenging the decision to refuse the pension bonus. It would appear, in view of the Tribunal's findings in this matter, that these alternative proceedings have little prospect of success.
The Tribunal does, however, have considerable sympathy for the predicament in which the Applicant has found himself.
The Tribunal notes the existence of the Compensation Detriment caused by Defective Administration (CDDA) Scheme. Evidence was given that the Applicant lodged a claim for compensation under the Scheme with the Department of Human Services on 26 October 2015. His claim was rejected on 7 June 2016 on the basis that "the Department did not have an obligation or responsibility to provide Mr McDonald with advice about benefits or payments he might have under the Veterans Entitlements Act".
In the Tribunal's opinion, the conclusion reached by the Customer Compensation Team at the Department of Human Services appears to be somewhat narrow. Whilst acknowledging that it is only constituted to consider the Applicant's application in respect of Newstart allowance, and that it does not purport to have any jurisdiction over administration of the CCDA scheme, the Tribunal is mindful that the very source of the Applicant's predicament is the apparent absence of responsibility on the part of individual government agencies for providing holistic advice to veterans in the Applicant's situation.
The Applicant in these proceedings appears to have at all times acted in good faith. He made appropriate enquiries about his entitlement benefits and made a considered and informed decision based on advice which was provided to him by a government agency. It seems to the Tribunal to be somewhat ingenuous for one government department to disclaim responsibility for providing incomplete advice on the basis that it was the obligation of another department to provide the balance of that advice.
The Tribunal sympathises with the Applicant's predicament. Unfortunately, however, his Application in these proceedings is unsuccessful.
18. I certify that the preceding 17 (seventeen) paragraphs are a true copy of the reasons for the decision herein of:
19. Dr Gordon Hughes, Member
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Associate
Dated 3 October 2016
Dates of Hearing 26 October 2015, 13 September 2016 Applicant In Person Advocate for the Respondent Mark Hester Solicitors for the Respondent Department of Human Services,
Freedom of Information & Litigation Branch
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