Michael Iuele and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2013] AATA 70

[2013] AATA 70

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2012/4744
Re	Michael Iuele
APPLICANT
And	Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT

DECISION

Tribunal	Regina Perton, Member
Date	10 January 2013
Date of written reasons	14 February 2013
Place	Melbourne

The Tribunal affirms the decision under review.

...............................[sgd].........................................

Regina Perton, Member

SOCIAL SECURITY - age pension – pension bonus scheme – registration for scheme – receiving age pension prior to registration – decision affirmed.

Administrative Appeals Tribunal Act 1975 s 34J

Social Security Act 1991 ss 23(5A), 43(1), 92A, 92C, 92H, 92J

Burrows and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 667

Kondos and Secretary, Department of Families, Community Services and Indigenous Affairs [2006] AATA 997

Rodham and Secretary, Department of Family, Community Services and Indigenous Affairs [2007] AATA 1331

Rosenzweig and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 584

REASONS FOR DECISION

Regina Perton, Member

14 February 2013

1. The Tribunal provided oral reasons for its decision at a hearing of this application on 10 January 2013.  The applicant subsequently requested written reasons for decision.  The reasons for the Tribunal's decision are set out below.

2. Michael Iuele turned 65 years of age in June 2003.  At that time he was still working.  He had a business growing Christmas trees.  He still maintains an involvement in that business although other family members have taken over aspects of its running.

3. Because of the impact of adverse weather conditions on his farm, Mr Iuele was in receipt of Exceptional Circumstance Relief Payments (ECRP) for a time.  On 6 March 2005, Centrelink, which administers such payments for the respondent, advised the payments would stop on 4 April 2005 because it was the end of the period for which the declaration had been made for the area in which his farm was located. 

4. On 18 March 2005 Mr Iuele contacted Centrelink.   He advised them that he was considering applying for age pension.  The relevant documents were sent to him on that day.  On 23 March 2005 Mr Iuele applied for age pension.  Mr Iuele received age pension from 4 April 2005 to 15 September 2005 when payments of ECRP resumed. 

5. Some years later, Mr Iuele became aware of the pension bonus scheme and he lodged a form for registration under that scheme on 2 July 2009.  His application was initially accepted but he was advised that despite the acceptance, he would not qualify for the payment because he had already received age pension prior to registration. 

6. On 10 May 2012 Mr Iuele lodged a form for payment of age pension and pension bonus which was rejected on 15 June 2012 because of his past pension payments.

7. The decision that Mr Iuele was ineligible for payment of the pension bonus was affirmed by an authorised review officer of Centrelink on 6 July 2012 and by the Social Security Appeals Tribunal on 25 September 2012.   Mr Iuele lodged an application for review with this Tribunal on 22 October 2012.

8. The issue in this matter is whether Mr Iuele qualifies for a pension bonus payment.

RELEVANT LEGISLATION

1. Section 43(1) of the Social Security Act 1991 (the Act) states that a person qualifies for age pension when the person reaches pension age.  Subsection 23(5A) states that a man reaches pension age when he turns 65.

2. Section 92A of the Act states that a person who qualifies for age pension but defers claiming that pension may be able to get a lump sum pension bonus (s 92J(1)).  There is a requirement that a person register as a member of the pension bonus scheme within a 26 week period, namely 13 weeks before reaching pension age and 13 weeks after (s 92H).  There is a limited discretion to allow for later registration.   

3. Section 92C of the Act sets out the criteria for payment of 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

   …

DOES MR IEULE QUALIFY FOR PENSION BONUS?

1. Mr Iuele initially applied for pension bonus on 2 July 2009.  His application for registration was rejected on 13 July 2009 because of his receipt of age pension in 2005.  On 7 September 2009 the decision was reversed and he was allowed to register although he was advised that the barrier to payment still existed, namely his receipt of age pension some four years earlier.  Mr Iuele reapplied for age pension and the pension bonus scheme on 10 May 2012.

2. Section 92C(b) prevents a person who received age pension before claiming for the pension bonus from receiving the payment.  Mr Iuele received age pension from April 2005 to September 2005.   He lodged a claim for pension bonus registration in July 2009 and again in May 2012.    

3. To receive the pension bonus, a person needs to meet all the requirements of s 92C.  Mr Iuele does not meet the requirement in s 92C(b) and hence is unable to be paid the pension bonus.

4. Mr Iuele and his wife, who also gave evidence, submitted that Centrelink should have informed them about the age pension bonus and requirements when Mr Iuele initially applied for the age pension in 2005.  The Tribunal notes that the application form contained prompt questions and instructions about claims under the pension bonus scheme.  Part A of the combined form for the age pension and pension bonus scheme had the following instruction under the heading Pension Bonus Scheme:

   The following questions ask whether you wish to claim or register for the Pension Bonus Scheme.

   These questions are first because you must NOT claim Age Pension if you wish to REGISTER for the Pension Bonus Scheme.

   To be paid under the Pension Bonus Scheme, you must meet several requirements, including passing the work test for at least 12 months after turning pension age.

   For more information, read Information you need to know about your claim for Age Pension.

5. An information booklet which accompanied the form provided further details about the Pension Bonus Scheme.  The first two questions on the application form for age pension concerned the Pension Bonus Scheme.   Mr Iuele ticked the box stating no in response to questions asking if he was a registered member of the scheme and to the subsequent question asking if he wished to register.  There was a notation after the first question concerning the appropriate form for pension bonus registration. 

6. Mr and Mrs Iuele are of the opinion that Centrelink should have been more proactive in making them aware of the Pension Bonus Scheme and the impact of being paid age pension prior to registration.  Mr Iuele only changed from the ECRP to age pension because the gazettal of the area in which the farm was located lapsed.  It was reinstated some months later and Mr Iuele resumed payments under the ECRP scheme as it was more lucrative than the age pension. 

7. There does not appear to be any requirement for Centrelink to proactively advise every potential individual recipient of pension bonus scheme about its availability and the pitfalls of receipt of age pension prior to registration.  Mr Iuele was alerted in the form in which he applied for age pension in 2005 about the pension bonus, he and his wife chose to not pursue additional information to that contained in the form. They submit that it was a mistake to have ticked no to the relevant questions but insist the response was due to lack of information from the two Centrelink offices with which they dealt about the pension bonus scheme.

8. Mrs Iuele submitted that in the matter of Rodham and Secretary, Department of Family, Community Services and Indigenous Affairs [2007] AATA 1331, Mr Rodham was found to be eligible for payment under the scheme despite having received a small amount in age pension. However, in that case, Mr Rodham had never intended to apply for age pension. Centrelink had mistakenly paid him $300 in age pension after acknowledging his registration. The facts in that case were quite different to those in this matter.

9. There were several cases presented by the respondent in which the situation was similar to that of Mr Iuele, namely the applicants were ineligible for pension bonus because they received age pension prior to their claims.  These included Kondos and Secretary, Department of Families, Community Services and Indigenous Affairs [2006] AATA 997, Rosenzweig and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 584 and Burrows and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 667.

10. There is no flexibility in the legislation concerning receipt of age pension prior to registration for the Pension Bonus Scheme.  The Tribunal has no option but to agree with the respondent’s submission and the earlier decision makers.  The Tribunal does not have discretion to ignore the criteria set out in the Act.

DECISION

1. For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal affirms the decision under review.

I certify that the preceding 22 (twenty -two) paragraphs are a true copy of the reasons for the decision of Regina Perton, Member

.............................[sgd]...........................................

Administrative Assistant Legal

Dated  14 February 2013

Date of hearing	10 January 2013
Advocate for the Applicant	Mrs C Iuele (applicant's wife)
Advocate for the Respondent	Ms A Bramley
Solicitors for the Respondent	Department of Human Services Legal Branch