Margaret Cope and Secretary, Department of Social Services
[2014] AATA 451
[2014] AATA 451
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/6093
Re
Margaret Cope
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal RM Creyke, Senior Member
Date 4 July 2014 Place Canberra The decision under review is set aside and the matter is to be remitted for reconsideration in accordance with the recommendations of the Tribunal.
..................[sgd]............................
RM Creyke, Senior Member
Catchwords
SOCIAL SECURITY - pension bonus payment - consecutive qualifying bonus periods – whether applicant satisfied work test requirements – whether applicant applied for pension bonus within time
Legislation
Social Security Act 1991 (Cth) ss 92B, 92C(c), 92H, 92J, 92L, 92N, 92S, 92T, 92U, 92V, 92X, 92Y and 93E.
Social Security and Other Legislation Amendment (Pension Reform and other 2009 Budget Measures) Act 2009 (Cth) Schedule 9, item 1.
Social Security (Administration) Act 1999 (Cth) ss 21 and 23.
Cases
Re Bennell and Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 883
Re Drake and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Re Herbertson and Repatriation Commission [2013] AATA 868
Re Muir and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 644
Re Polchow and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 224
Re Todorovic and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2010) 116 ALD 331 at 332
Secondary Materials
Explanatory Memorandum for the Social Security and Veterans’ Affairs Legislation Amendment (Pension Bonus Scheme) Bill 1998, discussion of ‘New section 93E – Qualifying bonus periods’.
REASONS FOR DECISION
RM Creyke, Senior Member
Ms Margaret Cope, born 5 September 1937, lodged her application for the age pension and the pension bonus on 24 April 2013.
The application for age pension was accepted by Centrelink on 1 June 2013 with effect from 24 April 2013, a decision confirmed by a further letter of the same date.
The application for pension bonus was rejected on 19 June 2013, a decision upheld on review by an authorised review officer on 15 July 2013, and further upheld by the Social Security Appeals Tribunal (SSAT) on 24 October 2013.
Ms Cope sought review by the Tribunal on 26 November 2013. The matter was heard by video conference from Narrandera, New South Wales, on 24 April 2014. Further evidence was provided by Ms Cope following requests by the Tribunal on 9 and 15 May 2014.
Background
Ms Cope has been denied the pension bonus on two grounds: that she did not satisfy the work test for each consecutive year from 2001; and second that Ms Cope had not applied for the pension bonus within 13 weeks from 2001. Ms Cope disputes both reasons.
Ms Cope has been a casual teacher at a local TAFE college, a casual tutor, and a personal tutor. She had no set hours of work, and her income varied from week to week. Ms Cope turned 60 in 1997, but decided to keep working. In October 2000 Ms Cope and her partner separated and Ms Cope changed address. The couple were divorced in 2003.
Ms Cope first enquired at Centrelink about her eligibility for pension bonus and for age pension in 2001 and again in 2007. She was advised in 2007 that the pension bonus could not be obtained unless the person was also on the age pension. Ms Cope wished to continue working in 2007 and hence did not qualify for the age pension, so she did not pursue the enquiry. Ms Cope turned 75 in 2012 and ceased working on 26 February 2013. She thereupon applied for the age pension and the pension bonus on 24 April 2013.
Centrelink records indicate that Ms Cope was sent information about the scheme, including the criteria for qualification, in 2001. Ms Cope said in evidence that she had no recollection of having received any written information from Centrelink in 2001. The Tribunal documents indicate information was sent to Ms Cope by Centrelink on 19 July 2001. Ms Cope’s evidence was that at the relevant time she was not receiving all her mail so even if the mail was sent she may not have received it.
Ms Cope’s evidence was that in October 2000 when she and her partner separated she had informed the local Post Office of her change of address. Despite that Ms Cope said she knew that some mail was never redirected at that time. She gave as an example letters from her solicitor in Wagga Wagga which she later discovered had been sent but never received.
The Tribunal found Ms Cope to be a witness of truth and accepts, given the circumstances, that even if Centrelink sent information to her about the scheme in 2001, she may not have received it. As a consequence, her understanding about the pension bonus scheme was based solely on oral information given to her following her enquiries at the Leeton office of Centrelink.
Ms Cope said she was told in 2001 by Centrelink staff at the Leeton office that provided she had worked for five years after reaching retirement age and before her application for the age pension, she would also be entitled to the pension bonus. The information was that to qualify for pension bonus, she needed to produce her tax returns or group certificates for those years. There are references to Ms Cope lodging in Centrelink a Tax Notice of Assessment on 6 and 11 September 2001. Ms Cope said when she produced her tax return no comment was made to indicate that this was insufficient as evidence that she met the ‘continuing to work’ criterion. Ms Cope said ‘I was never given any directive that I had to work for 960 hours on an annual basis’.
Ms Cope again enquired about the age pension and the pension bonus on 28 February 2013. She was advised that she needed to lodge her claim by 14 March 2013 or risk denial of pension. Ms Cope signed the documents on 18 April 2013, but they were not received by Centrelink until 24April 2013. Age pension was granted on 1 June 2013, and was paid from 24 April 2013. Ms Cope’s application for pension bonus stated she ceased meeting the work test on 26 February 2013. The form showed 2001-2005 as the years she was nominating for receipt of pension bonus. At the hearing, however, Ms Cope indicated that she was applying for the pension bonus for the last five years she had worked, that is, until February 2013.
For the purposes of the Tribunal hearing, Ms Cope produced TAFE Attendance Records indicating the actual hours she had worked for the TAFE in the years 2007, 2008 and 2009. Ms Cope said on occasions that the actual hours spent for the purposes of her teaching could be ten times as much as the face-to-face teaching time.
Apart from the evidence of her work as a special education aide for the TAFE, in the relevant period from the commencement of the bonus period in 2007 until 26 February 2013, Ms Cope produced evidence that she worked as a supervisor for the Curriculum Corporation and the Albury Education Centre, and for Riverina Community College between 2008 and 2011; at the Junee Correctional Centre between 2010 and February 2013 (NSW TAFE being her employer); and as a personal tutor. Her work other than TAFE work was principally in math but she also did work with students on their reading skills.
Ms Cope’s work as a supervisor involved testing children to determine whether they were eligible for a Centrelink education program. The work involved her driving to Deniliquin from Narrandera, and was for a nine to ten hour day, one day a week.
For the Curriculum Corporation and the Albury Education Centre, Ms Cope said she was coaching groups of students who had done poorly on assessments under the National Assessment Program – Literacy and Numeracy (NAPLAN) scheme. Her work was conducted under the ‘Even Start’ program, introduced by the national government for the years 2008 to 2012. Under that program, Ms Cope provided coaching for 5 children at Leeton for 1 hour a day for thirteen weeks. The work required her to be present at the Leeton public school from 2.00pm to 5.00pm on the day she was teaching. She also worked at Griffith under the program where she had two groups of students. This work was conducted on a Saturday and she was required to be at the teaching premises from 9.00am until 5.00pm. From the payment she received for the 13 hours per individual student and the rate set for tutors of $50.50 gross per hour, Ms Cope has estimated the number of hours she had worked on that program.
Ms Cope’s work at Junee for NSW TAFE, from October 2010 until February 2013, was not tied to the academic year and involved her being at the Correctional Centre on the day on which she taught between 9.00am and 4.00pm when the educational centre was closed.
Ms Cope said her employment at TAFE, at the Riverina Community College and at the Junee Correctional Centre ‘has involved the education of slow learners, indigenous minorities and inmates at a government correctional centre in Junee’. One of her classes at the TAFE ‘consisted of mostly non-readers and as there is no published adult learner reader materials I had to make individual reading material for each of these students and that was extremely time consuming’ unpaid work.
A letter from the Course Co-ordinator at the Riverina Institute of TAFE (Leeton) supported the fact that, as a casual teacher – officially designated a Teachers’ Aide (Special) - Ms Cope worked additional hours as part of her allocated teaching load, and attended TAFE during holiday periods so her work could be completed.
The Riverina Community College provided payroll details for the 2011 financial year indicating that Ms Cope worked for 295.5 hours in that financial year. There is a handwritten notation on the document stating that the work was undertaken in 2010. The College also provided payroll information for the 2012 financial year, indicating that Ms Cope worked 367 hours. Again a handwritten note indicated this work was done in 2012.
Ms Cope also did some personal tutoring at various times during the period 2005 to 2013. She said this work was often voluntary although she was paid by some parents. The work was usually short-term, that is, between two to four months at a time. She has minimal records of this work. Ms Cope provided a statement from one mother whose daughter had been tutored for an hour each week in 2010, equivalent to ‘at least 40 hours’ of tutoring.
Ms Cope provided an estimate of the hours worked per relevant year at the TAFE, based on the ‘Attendance Records’ which show the clock on and clock off times of all the staff, together with the hours she worked for other employers. In summary her figures for the relevant calendar years are:
·2008: 1292.40 + 61 hours (Even Start program) = 1353.40 hours.
·2009 : 1053.10 (TAFE) + 156 (Even Start program) = 1209.10 hours
·2010 : 650 hours (TAFE) + 295.5 hours (Riverina Community College) = 945.5 hours
·2011 : 1009 hours (TAFE)
·2012: 705 hours (TAFE) + 367 (Riverina Community College) = 1072 hours.
The figures for 2010 to 2012 were provided by Ms Cope on 15 May 2014 following a request by the Tribunal.
Ms Cope’s tax return for the 2007-2008 tax year show that her main employer was the TAFE. Her tax return for the 2008-2009 year show she worked that year for the NSW TAFE, for Curriculum Corporation, and for the Albury Education Centre.
For the 2009-2010 year, Ms Cope’s tax records show her ‘main employer’ as the NSW TAFE. For the 2010-2011 year, however, the tax records indicate she was employed by the NSW TAFE (including at Junee Correctional Centre) and the Riverina Community College. Ms Cope indicated this work was undertaken in 2010. Indicative of the hours she worked at Junee Correctional Centre are her claimed expenses for driving to the Correctional Centre, Junee from Narrandera, a distance of 104km for a period of ten weeks, one day a week.
In the 2011-2012 year, the tax records show her employers as NSW TAFE and Riverina Community College. The notation was that this work was undertaken in 2012. Initially, no 2012-2013 tax records were provided. After the hearing, the Tribunal requested Ms Cope supply records for that year and give an indication of the nature of her employment at Junee.
The Tribunal was advised that in the Guide to Social Security Law (Guide) section 3.4.7.70 ‘Other activities may be treated as gainful work’ , Centrelink has a policy, when calculating the hours worked for the work test, that it increases the face-to-face hours spent by teachers by one-third to allow for the hours spent for preparation and marking. The examples listed do not refer specifically to this advice. The Tribunal has accepted, however, based on the examples shown, which included practice time for a performance pianist, time spent in preparing tenders, and attendance at training courses or conferences required to maintain qualifications, that a notional additional figure is permitted for unpaid work associated with paid employment, including for those involved in the teaching profession.
Legislation
Social Security Act 1991 (Cth) (Act) sections 23, 55, and Part 2.2A, particularly sections 92A, 92B, 92C, 92J, 92N, 92T, 92U, 92X, 92Y, and 93. Section 23(1) defines ‘pension bonus’ to mean, as relevant, ‘pension bonus under Part 2.2A’.
The Social Security (Administration) Act 1999 (Cth) is also relevant. Section 21 defines when a claim must be lodged. The provision states:
21 (1) A claim for pension bonus must be made within the lodgement period fixed by this Subdivision.
(2) However, the Secretary may in special circumstances allow a person a longer period to make a claim than the period fixed by this Subdivision. If the Secretary does so, the lodgement period for the person's claim is the period allowed by the Secretary.
Section 23 provides:
23(1) If a person's last bonus period is a part-year period, the lodgement period for a claim by the person for pension bonus is:
(a) the period of 13 weeks beginning at the end of that bonus period; or(b) if the Secretary allows a longer period--that longer period.[1][1] Initially these provisions were found in sections 93L and 93 M of the Act but have now been repealed.
Issues
The sole issue is whether Ms Cope is entitled to the pension bonus.
Consideration
The Pension Bonus Scheme was introduced in 1998. The Scheme was closed to new entrants on or after 20 September 2009.[2] Section 92A of the Act explains the Scheme.
‘The following is a simplified outline of this Part:
·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.’
[2] Social Security and Other Legislation Amendment (Pension Reform and other 2009 Budget Measures) Act 2009 (Cth) Schedule 9, item 1.
In other words, the Scheme provides that if a person qualifies for age pension but does not claim pension at the time of qualification and continues working, the person may be entitled to a single lump sum pension bonus when they eventually claim age pension. An incentive to take advantage of the Scheme is that the pension bonus is tax free. Although the Scheme refers to a ‘single’ lump sum payment, there is also provision for a single top-up payment. The pension bonus is means-tested.
In order to qualify for a pension bonus, the person must be registered as a member of the pension bonus scheme.[3] Ms Cope registered to take advantage of the Scheme on 4 September 2001. The person claims the pension bonus after they have ceased work and when they qualify for age pension. [4] There is no question that Ms Cope has been granted age pension and that she has applied for the pension bonus. To be eligible the person must not have received a social security pension or benefit at any time after the person qualified for the age pension.[5] In Ms Cope’s case she qualified for age pension from 24 April 2013 and has not previously received any other Centrelink pension or benefit. Nor did Ms Cope receive the age pension prior to making her claim.
[3] Social Security Act 1991 (Cth) ss 92C(c), 92J, 92B.
[4] Act s 92C(a), (b).
[5] Social Security Act 1991 (Cth) s 92L.
Bonus period
The person must also have accrued at least one full-year bonus period while registered.[6] A bonus period is defined in section 92T of the Act. A full-year bonus period is accrued either from date of registration or the date the person first became an accruing member of the scheme.[7] An ‘accruing member’ of the scheme is defined by way of exclusion. That is, a person is an accruing member of the scheme, once registered, unless the person is a non-accruing member, or a ‘post 75’ member, that is, aged 75 or more.[8] Ms Cope was an accruing member until 4 September 2012. On 5 September 2012, the day she turned 75, she became a ‘post 75’ member.[9] The provisions concerning the ‘work test’ apply to both categories.[10]
[6] Social Security Act 1991 (Cth) s 92C(d).
[7] Social Security Act 1991 (Cth) s 92T(1)(a).
[8] Social Security Act 1991 (Cth) s 92N.
[9] Social Security Act 1991 (Cth) s 92S.
[10] Social Security Act 1991 (Cth) ss 92U, 92V.
The first bonus period of a person who has registered is the first full-year period after the date they registered for the scheme, provided they also pass the work test.[11] Ms Cope first registered for the scheme on 4 September 2001. Potentially, her first full year[12] of accruing membership occurred in the year following that date. Each succeeding full-year period of accruing membership specified in a person’s claim for pension bonus, up to a maximum of five years[13] for which they pass the work test is a bonus period that accrues.[14] The final year before an application could be a part-year.[15] Bonus periods for this purpose must occur in consecutive years.[16]
[11] Social Security Act 1991 (Cth) s 92T(2).
[12] Social Security Act 1991 (Cth) s 92B – definition of ‘full-year period’.
[13] Social Security Act 1991 (Cth) s 93E(5)-(7). The limitation to five years is supported by the Explanatory Memorandum to the under the heading ‘New section 93E – Qualifying bonus periods’.
[14] Social Security Act 1991 (Cth) Section 92T(2), (3).
[15] Social Security Act 1991 (Cth) s 92B – definition of ‘part-year period’ and s 92T(3).
[16] Social Security Act 1991 (Cth) s 92T(4).
A person may accrue qualifying bonus periods for a period in excess of 5 years. If a person has more than five full-year bonus periods, and the last bonus period is a part-year period, ‘the 5 most recent full-year bonus periods are qualifying bonus periods’.[17] At the same time, a part-year bonus period may be a qualifying bonus period if it is the last period prior to the application for pension bonus, the person has specified the period in their claim and the period begins immediately after the end of a full-year bonus period.[18]
[17] Social Security Act 1991 (Cth) s 93E(7).
[18] Social Security Act 1991 (Cth) s 92T(3).
The Explanatory Memorandum[19] and section 93E of the Act are unclear in relation to a person who has accrued more than five full-year bonus periods. The Act states in section 93E(7) that ‘if (a) person has accrued more than 5 bonus periods and (b) the last bonus period is a part-year period; each of the most recent full-year bonus periods are qualifying bonus periods’. That could mean the person’s qualifying bonus periods are the ‘5 most recent full-year bonus periods’ as well as the last part-year period, or it could mean that only the ‘5 most recent full-year bonus periods’ are qualifying bonus periods The second meaning would exclude the part-year period. Assuming the part-year period is the last year prior to the person ceasing work, that could mean that the person might miss out on pension bonus because they would not have applied for the age pension and the pension bonus within the 13 week time limit or such extended time as the Act permits. That would be an unfair.
[19] Explanatory Memorandum for the Social Security and Veterans’ Affairs Legislation Amendment (Pension Bonus Scheme) Bill 1998, discussion of ‘New section 93E – Qualifying bonus periods’.
The Explanatory Memorandum is equally unclear. The relevant clause, after paraphrasing section 93E(7), then gives the following example: ‘if a person has accrued 7 full-year bonus periods and a part-year bonus period, the full-year bonus periods for years 3 to 7 inclusive are the person’s qualifying bonus periods’.[20] That could be read as meaning that only the full-year bonus periods in years 3-7 are the person’s qualifying bonus periods, or it could meant that the full-year bonus periods in years 3-7 are qualifying bonus periods as well as the part-year bonus period in year 8.
[20] Explanatory Memorandum for the Social Security and Veterans’ Affairs Legislation Amendment (Pension Bonus Scheme) Bill 1998, discussion of ‘New section 93E – Qualifying bonus periods’.
The Act provides for part-year bonus periods, as too does the Social Security (Administration) Act 1999 (Cth), section 23 of which provides that lodgement of an application for pension bonus may be 13 weeks after the end of a part-year bonus period. This supports an interpretation of section 93E of the Act relating to the maximum years for which pension bonus is paid as extending to a part-year bonus period in addition to five full-year bonus periods. The Tribunal has adopted that reading as the fairest interpretation and consistent with the beneficial character of the Act. Accordingly, a person with at least 5 full-year bonus periods followed by a part-year period, can claim each of the 5 full-year and the part-year period as qualifying bonus periods. This finding applies to Ms Cope’s claim, subject only to her meeting the work test in each of those years, and that she meets the time-limit for applying for the bonus pension.
Ms Cope specified in her application form for pension bonus that she ceased to meet the work test on 26 February 2013. The Tribunal has, accordingly taken 26 February 2013 as the date she ceased to work and that she is claiming pension bonus until that date. That is consistent with her having made an enquiry at Centrelink about the pension bonus on 28 February 2013. The period from 4 September 2012 until 26 February 2013 is therefore a part-year period comprising 176 days. That means her bonus periods commenced on 4 September 2007 and ended on 26 February 2013. [21]
[21] Social Security Act 1991 (Cth) s 92T(3).
Work test
In each case for a bonus period to be a ‘qualifying bonus period’, the person must pass the work test for the bonus period.[22] The work test provides that the person must ‘gainfully work’ at least 960 hours, of which at least 640 hours are worked in Australia.[23] ‘Gainful work’ is defined to mean ‘work for financial gain or reward’ which ‘involves a substantial degree of personal exertion on the part of the person concerned’.[24] The Secretary also has a discretion to treat activity as ‘gainful work’ where, due to ‘special circumstances’, the activity should be treated as gainful work meaning the actual performance of work-related duties.[25]
[22] Social Security Act 1991 (Cth) ss 92T(1)(b), 92N(2)(b).
[23] Social Security Act 1991 (Cth) s 92U.
[24] Social Security Act 1991 (Cth) s 92X.
[25] Social Security Act 1991 (Cth) s 92Y(1)(d). Re Todorovic and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2010) 116 ALD 331 at 332.
‘Gainful work’ does not include accrued long service leave, or annual leave,[26]nor activity which is ‘voluntary work for a charitable, welfare or community organisation’.[27] This last mentioned exclusion means that the personal tutoring which Ms Cope undertook on a voluntary basis was not gainful work.
[26] Re Todorovic and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2010) 116 ALD 331; Re Herbertson and Repatriation Commission [2013] AATA 868.
[27] Social Security Act 1991 (Cth) s 92Y.
Ms Cope was a casual teacher’s aide for special needs students at the NSW TAFE. She also worked as a coach for other colleges, as a supervisor, in a correctional centre, and as a personal tutor. Ms Cope’s attendance at the TAFE was for work associated with her face-to-face teaching as a casual teacher’s aide. That work involved administrative duties – she referred to the time taken to post out information to students, face-to-face teaching, development of courses, including the devising of reading material for those in the literacy program, preparation for teaching, and marking of assignments and examinations. All these tasks were activities involving ‘a substantial degree of personal exertion’ on Ms Cope’s part and accordingly would fall within the expression ‘gainful work’. The time associated with the teaching she performed at the Junee Correctional Centre would also have been gainful work. Ms Cope attended at the Centre from 9.00am until 4.00pm on the days she taught there.
The Tribunal notes the evidence of Ms Cope’s TAFE Course Co-ordinator until 2010, Ms Rubenis, that payment for TAFE teachers includes ‘preparation and marking time’. This provision also justified Centrelink’s policy that for a teacher, an additional allocation of hours of associated unpaid work (in the Guide specified as an additional one-third) can be added to the face-to-face hours for which payment has been received, in calculating the number of hours of gainful work.
The ‘special circumstances’ which apply to Ms Cope’s application are that:
·as a casual employee her hours were unpredictable and varied, so that it is difficult to assess the hours she worked;
·as a teacher’s aide the evidence is that the amount of time she spent, according to the Attendance Records, associated with her face-to-face teaching work involved considerable administrative work so that the pay for the actual hours she was teaching was significantly less than the actual hours she worked and was not adequately represented by the one-third extra hours suggested in the Social Security Guide;
·The Tribunal has estimated from the Attendance Records, that Ms Cope was attending at the TAFE premises, generally for a full-day and often in excess of a 7 hour day, for at least four days a week;
·Over the relevant period Ms Cope was doing work for a number of organisations in addition to the TAFE;
·Finally, as someone performing that work in regional New South Wales, Ms Cope had considerable travelling time which does not appear to have been taken into account in any of the calculations. So there is evidence that she had to drive from Narrandera where she lives to work at Leeton, Albury, Deniliquin and Junee. There is no indication whether travelling time is taken into account in deciding the work test. The Tribunal notes, however, that the costs of such travel are an allowable deduction for taxation purposes.
The Tribunal has, accordingly, taken note in its calculations, as needed, of the hours Ms Cope was in attendance at the TAFE. The Tribunal has done an estimate of the hours of attendance at the TAFE of Ms Cope, based on the Attendance Records she provided. Although the totals reached by the Tribunal do not exactly match those figures provided by Ms Cope, the figures are roughly comparable. The differences may be due to whether deductions have been made for a lunch hour or other breaks. The Tribunal has accepted the probative value of the Attendance Records as they are contemporaneous and were completed by all TAFE employees.
The Tribunal has accepted that Ms Cope was a credible and honest witness, and a conscientious and meticulous record-keeper. The hours in attendance at the TAFE are an accurate reflection of the actual hours she was in attendance at her places of work, and were hours which involved her in ‘a substantial degree of personal exertion’ relating to the gainful teaching work in which she was involved. These figures have been incorporated in the table which follows.
The Tribunal notes the extra one-third hours for marking and preparation allowed by Centrelink. That element of the calculation was included in the table for comparative purposes. The Tribunal is not bound by that policy although it will generally accept policy as a matter of guidance unless the policy is contrary to law.[28]
[28] Re Drake and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60.
In this instance the Tribunal has accepted that for certain occupations, including a casual teacher’s aide, there can be an additional period of gainful work added to the hours of remunerated work when estimating whether a person meets the work test. This conclusion is supported by the discretion of the Secretary in the Act and the interpretation by courts and tribunals that, with the exception of hours claimed in voluntary work, and work involved in increasing the wealth of an individual, such as enhancing the value of a rental property,[29] share trading, and management of financial investments,[30] other gainful work can be claimed. The hours claimed are not restricted to any fixed percentage of the hours for which pay as a casual employee has been received, nor are they limited to the notional one-third extra hours for teachers advised as being permitted in the Guide.
[29] Re Polchow and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 224.
[30] Re Muir and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 644; Re Bennell and Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 883.
A difficulty faced by the Tribunal in estimating Ms Cope’s hours of work has been that tax and some other records are provided on a financial year basis, the Attendance Records figures are for a calendar year, while Ms Cope’s qualifying bonus periods, except for the period to 23 February 2013, commence and end in September. That means there are discrepancies between the figures included in the table. That is inevitable in the pension bonus scheme which defines bonus periods from a date of registration rather than the beginning of a tax or calendar year.
The figures provided by Centrelink for the total face-to-face teaching hours for Ms Cope were based on a calendar year. No attempt was made by Centrelink, or the Social Security Appeals Tribunal to add even the notional additional one-third hours to Ms Cope’s actual paid hours of work, nor to correlate figures where these were based on periods other than bonus periods. The Tribunal has essayed those tasks to the best of its ability. However, the figures in the table which follows must be read in light of these difficulties and discrepancies.
The principal issue for the Tribunal is whether Ms Cope meets the work test for the five full-year bonus periods, that is, from 4 September 2007, and the part-year period from 4 September 2012 until 26 February 2013. The comparative table showing the hours worked is based on the evidence provided, coupled with an estimation based on Centrelink’s additional one-third hours. The figures can only be approximate. They are comparing figures based on calendar years for Ms Cope’s attendance hours and those of the NSW TAFE and her other employers, and on Ms Cope’s bonus years, commencing on 4 September each year, for those provided by Centrelink and the Tribunal.
TABLE
| Years[31] | 2008 | 2009 | 2010 | 2011 | 2012 | 2013 |
| Centrelink figures[32] | 640.38 | 357.12 | 465.49 | 1053.70 | 793.65 | 329.66 |
| Centrelink +33% | 853.84 | 476.16 | 620.65 | 1404.93 | 1058.2 | 439.5 |
| AAT[33] | 595 | 382 | 497 | 913 | 743 | 310 |
| AAT +33% | 793.43 | 509.33 | 663 | 1217 | 990.7 | 413.33 |
| Cope’s[34] figures (Attendance Records) | 1292.40 | 1053.10 | 945.5 | 1009 | 1072 | * |
| Cope’s figures:[35] not TAFE | 61 hours | 156 (Even Start) | 295.5; | 367 | ||
| Total hours - C’link - AAT | 913.84 | 632 | 957 | 1405 | 1425 | 440 |
| Minimum days | 960 | 960 | 960 | 960 | 960 | 460 |
[31] The years are the ‘qualifying bonus years’.
[32] The figures for the Department of Social Services and for the Tribunal are based on the qualifying bonus years but the commencement dates and end dates do not exactly correspond.
[33] See note 36.
[34] These figures include her actual TAFE attendance hours and are annual.
[35] These figures are for work other than for TAFE.
Based on the figures calculated by the Tribunal, for the actual face-to face hours of teaching, together with the notional additional thirty-three per cent in the policy alone, Ms Cope meets the work test for each of the 2010, 2011 and 2012 years. She would also meet the work test for those years according to the Centrelink equivalent figures with a slight short-fall for the 2009-2010 bonus year, which could be supplemented by the gainful work represented by Ms Cope’s attendance records for that year. Accordingly she has qualifying bonus periods for those years.
For the 2007-2008 and 2008-2009 bonus years, however, the totals fall short of the 960 required, using a one-third addition. The Tribunal notes that Ms Cope appeared to have a substantial drop in hours worked in the 2008-2009 bonus year. So although the Tribunal would have been prepared to find that in the 2007-2008 her gainful work based on the attendance records may have enabled her to reach the total hours required, there is a considerable shortfall in the 2008-2009 year. Accordingly the Tribunal is not able to find that Ms Cope worked the required number of hours for that year. Since bonus years must be consecutive, that means she also cannot qualify for the 2007-2008 bonus year. That only leaves the part bonus period to 26 February 2013.
The face-to-face gainful work hours Ms Cope needed for that period was 460 hours. The Centrelink figures for face-to-face teaching of 440 hours and the Tribunal figures of 413 hours do not quite reach that level. Again, however, given the fact that the Tribunal has accepted that Ms Cope is an honest witness, and her evidence was that her work at Junee Correctional Centre was for a period 9.00am until 4.00pm on the days on which she was employed, the Tribunal has accepted that the work involved ‘substantial personal exertion’ during hours not represented by the actual hours for which she was paid and hence was ‘gainful work’. In addition, the Tribunal notes that Ms Cope had to drive over 100 km each way on the days she worked at Junee. Taking these circumstances into account would mean that the total hours Ms Cope worked would comfortably exceed the 460 hours required for that part-period.
In conclusion, the Tribunal is satisfied that Ms Cope meets the work test for the final three full bonus years and for the part year to 26 February 2013.
Application date
Ms Cope’s application was also rejected on the basis that her application had been lodged outside the thirteen week period after her last qualifying bonus period.[36] Ms Cope enquired about the pension bonus on 28 February 2013 but did not lodge her application until 23 April 2013. Ms Cope, being a ‘post-75’ member was required to lodge her claim in the period of thirteen weeks beginning at the end of the ‘post-75’ work period, namely, 26 February 2013.[37] That was the 28 May 2013. Ms Cope lodged her claimed on 23 April 2013. She was within time.
[36] Social Security Act 1991 (Cth) s 92H.
[37] Social Security (Administration) Act 1999 (Cth) ss 21, 23.
Conclusion
The Tribunal sets aside the decision and remits the matter to the Secretary to calculate the amount of pension bonus to which Ms Cope is entitled.
I certify that the preceding 58 (fifty- eighty) paragraphs are a true copy of the reasons for the decision herein of RM Creyke, Senior Member .....................[sgd]...................................................
Associate
4 July 2014
Date of hearing 24 April 2014 Date final submissions received 15 May 2014 Applicant In person Advocate for the Respondent Kate Martini Solicitors for the Respondent Department of Human Services
0
4
0