MANIS and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2010] AATA 691

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 691

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/0988

GENERAL ADMINISTRATIVE  DIVISION		)
Re		MICHAEL MANIS

Applicant

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

Respondent

DECISION

Tribunal Dr P McDermott, RFD, Senior Member

Date10 September 2010

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

..............[Sgd]................................

Senior Member

CATCHWORDS

SOCIAL SECURITY – Pension bonus scheme – Claim lodged outside applicable time frame – Applicant did lodge claim outside time frame – No special circumstances apply – Decision under review affirmed.

Social Security Act 1991 (Cth) ss 92U, 92V

Social Security (Administration) Act 1999 (Cth) ss 21, 22, 23

Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60  

REASONS FOR DECISION

10 September 2010 Dr P McDermott, RFD, Senior Member  

INTRODUCTION

1.      In this application I have to determine whether Michael Manis (the applicant) is entitled to be paid the pension bonus.

HISTORY OF THE MATTER

2.      The applicant reached age pension age on 11 September 2001.  On 29 August 2002, he applied for registration for the pension bonus scheme.

3.      On 12 September 2002, a letter was sent to the applicant confirming that he had been accepted as a member of the pension bonus scheme from 11 September 2001.  On the same date, another letter was also sent advising the applicant that he needed to lodge a claim for the pension bonus within 13 weeks of ceasing work.  A similar letter was sent again on 28 August 2003.

4.      On 9 February 2005, a letter was sent to the applicant requesting that he review his participation in the pension bonus scheme.

5.      On 27 July 2009, the applicant lodged a claim form for age pension and the pensions deferred bonus.  In that claim form, the applicant stated that he ceased full‑time work on 30 June 2008.

6.      On 1 October 2009, Centrelink received a letter dated 30 September 2009.  That letter was from his former employer which confirmed that the applicant had retired in June 2008.

DECISION

7.      On 2 November 2009, Centrelink made a decision to reject the applicant’s claim for the pension bonus on the basis that the claim was lodged outside the time frame.

8.      On 10 December 2009, a Centrelink authorised review officer affirmed the original decision.

9.      On 9 February 2010, the Social Security Appeals Tribunal (SSAT) affirmed the decision under review.

10.     On 24 March 2010, the applicant applied to this Tribunal for a review of the decision.

RELEVANT LEGISLATION

11.     The legislation that I am required to administer is contained within the Social Security Act 1991 (Cth) (the Act) and the Social Security (Administration) Act1999 (Cth) (the Administration Act).

12. Subdivision E of Part 3 of the Administration Act sets out the time limits for making a claim for pension bonus.

13.     A person must make a claim for a pension bonus within 13 weeks of ceasing to meet the work test unless the Secretary allows a longer period: see ss 21-23 of the Administration Act. There are further exceptions including where a person was a non-accruing member or a post-75 member of the scheme, however none of these exceptions apply to the applicant.

14.     The work test for a full year period is defined by s 92U of the Act to require at least 960 hours of gainful work. Section 92V of the Act provides that in respect of a part year period the work test can be satisfied on a pro-rated basis.

WHEN SHOULD THE CLAIM BE LODGED

15.     A person must make a claim for pension bonus within 13 weeks of ceasing to meet the work test unless the Secretary allows a longer period.

16.     It is first important to establish when the applicant actually ceased employment.  There is evidence before me that the applicant retired on 30 June 2008.  There are two sources evidencing that retirement date.  The first source is the evidence from the applicant himself.  In his claim form for the pension he stated that he retired on 30 June 2008.  The second source of evidence is the letter from his former employer dated 30 September 2009 in which it is stated that the applicant had retired in June 2008.

17.     In his letter to this Tribunal dated 23 March 2010 as well as in his oral submissions, the applicant stated that he nominated a retirement date of 30 June 2008 although he remarked in that letter that he was involved in some activity which was ongoing for some months until the lodgement of his taxation return later in that year.  If the applicant worked after his retirement date then he may have indeed satisfied the work test.

18.     I have mentioned that the work test for a full year period is defined to be 960 hours of gainful work.  In respect of a part year period, the work test can be satisfied on a pro-rated basis.  After some consultation with his son-in-law who represented him, the applicant declined to give evidence before me in relation to his work activity after his nominated retirement date.  I also mention that the notes taken by the Centrelink authorised review officer who interviewed the employer contained the remarks: “Mr M. confirmed that the customer worked over 960 hours per year up to retirement on 300608”.[1]  There is no mention in these notes that the customer worked after 30 June 2008.  In these circumstances, I cannot be satisfied that he met the work test after his retirement date of 30 June 2008.

[1] T10, fol 66.

19.     Having regard to the evidence before me I consider that the claim should have been lodged in the 13 week period from 30 June 2008 to 29 September 2008.

DISCRETION TO ACCEPT A LATE CLAIM

20.     The applicant lodged his claim for a pension bonus on 27 July 2009; this is a period of some 13 months after his retirement.  The applicant can be taken to have made a valid claim for a pension bonus if the Secretary allows a longer period of time in which to make the claim.

21. Section 21 of the Administration Act provides that the Secretary may, in special circumstances, allow the applicant a longer period to make a claim for pension bonus.

22.     Although this Tribunal is not strictly bound to do so, as a general rule, it will apply relevant policy unless there are cogent reasons not to: see Drake v Minister for Immigration and Ethnic Affairs (No 2).[2]

[2] (1979) 2 ALD 634.

23.     Instruction 3.4.7.80 of the Department’s Guide to Social Security Law (the Guide) provides the following policy advice in relation to exercising the discretion:

Reasons to accept late claims

The intention of the late claims provisions is to allow acceptance of late claims from members who have not been able to lodge a claim within the time limits due to special circumstances, and not for members who deliberately claim late in order to get a higher bonus. The member should be asked for their reasons for making a late claim for pension bonus and evidence should be provided, where applicable/appropriate.

The reasons for acceptance of a late claim are different to those that apply to late PBS registrations.

Examples may include cases where a member:

·     has poor numeracy or literacy skills,

·     was ill,

·     was located in a remote area,

·     performed irregular work that made it difficult for the member to determine the lodgement period,

·     was helping a close family member suffering from a serious illness,

·     has experienced the death of a close family member,

·     had experienced a major disruption to their living arrangements (such as their home being fully or partially destroyed or the member or member's partner moved into a nursing home),

·     was unaware that post 20 September 2009 they could no longer be a non-accruing member whilst their younger partner was working and the working partner was affected by the closure of the scheme to new entrants (a time limit of approximately 12 months would apply to these cases).

The list above is not a full list of acceptable reasons to accept a late claim. Each case should be judged on its merits.

Before accepting a late claim, the delegate of the Secretary should consider how late the claim is, and whether this is reasonable when considering the event/s that caused the member to claim late. For example, if a person was ill for 4 months after ceasing work, it would not be reasonable for the claim to be 12 months late (unless there were other special circumstances that contributed to the delay).

24.     The Applicant has stated that he was distracted for most of 2009 and gave three reasons for the late claim:

(1)that he was not aware of the requirement to claim within 13 weeks of ceasing work;           

(2)the applicant’s wife required care after having corrective surgery on her right foot in February 2009; and,

(3)The applicant’s daughter was diagnosed with a brain tumour in February 2009.

25.     I will first consider the oral submission of the applicant that he was not aware of the requirement to lodge the claim.

26.     At the time of registration for the pension bonus scheme, the applicant was put on notice that payment of a pension bonus was conditional, the registration form advising:

…Before you complete this form, please read the brochure Pension Bonus Scheme (PR773), as conditions apply …

27.     Following the registration, the applicant was sent notices advising that he had signed an acknowledgement of his rights and obligations under the Pension Bonus Scheme and confirming that he had received a booklet that set out the details of the scheme.  The notices also instructed him to contact Centrelink if he needed to know more about the scheme.

28.     I do not consider that a lack of understanding of the rules of the scheme is of itself a special circumstance.  I also note that the record made by the authorised review officer of her discussion with the applicant contained the comment concerning why the applicant did not claim the pension or the pension bonus when he ceased work.  Those notes reveal that the applicant remarked that he did not think that he would be eligible for the pension because he had a rental property.

29.     I have considered the circumstances regarding the applicant’s wife and daughter.  On the evidence before me the relevant events occurred in February 2009.

30.     I have read the certificate from Dr Greg Sterling which states that the applicant was required to care for his sick wife.  On 2 February 2010, Dr Sterling provided a medical certificate from 13 October 2008 to 19 August 2009 stating ‘care for sick wife’.[3]  However, the applicant told the SSAT that the care that he provided to his wife was provided for two months after her operation in February 2009.  On 4 February 2010, Mr Anthony Short, podiatrist provided a letter stating that the applicant’s wife ‘often required assistance from family members’.[4]

[3]  T12, fol 70.

[4]  T12, fol 69.

31.     Having regard to the fact that the applicant declined to give oral evidence as to his family circumstances, I decline to find that these circumstances prevented the applicant from making a claim for pension bonus.  He did not tell the authorised review officer that family illness was the reason why he did not make a claim.  He instead told that officer that he did not make the claim after he ceased work because he did not think that he would be eligible for the pension because he had a rental property.

32.     Having considered the evidence before me, I have decided not to exercise the discretion to extend the time in which the applicant could make a claim for a pension bonus.

DECISION

33.     I affirm the decision under review.

I certify that the 33 preceding paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott, RFD, Senior Member

Signed: ...................[Sgd]..........................................................
              Kate Slack, Research Associate

Date/s of Hearing  31 August 2010
Date of Decision  10 September 2010
Applicant was self-represented
Solicitor for the Respondent     Ms Jasmine Forsyth, Departmental Advocate