Obst and Secretary, Department of Social Services (Social services second review)

Obst and Secretary, Department of Social Services (Social services second review) [2018] AATA 689 (9 March 2018)
Division:GENERAL DIVISION
File Number(s): 2017/0001
Re:Wayne Obst
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Brigadier AG Warner, Member
Date:09 March 2018
Place:Perth

The decision under review is affirmed.
........................................................................
Brigadier AG Warner, Member
CATCHWORDS
SOCIAL SECURITY – Pension Bonus Scheme – whether Applicant lodged a valid claim under the prescribed period – concept of deprivation - special circumstances – whether there are special circumstances to allow a longer period for lodging a claim - decision under review affirmed
LEGISLATION
Social Security Act 1991 – Part 2.2A - s 92A – s 92C – 92N –s 92P s 92V –s 92Q – 92U – s 92X – s 92Y
Social Security (Administration) Act 1999 – ss 21(1) – ss 21(2) – s 23 – s 25
CASES
Re Beadle v Director-General of Social Security [1984] AATA 176
Boscolo v Secretary, Department of Social Security [1999] FCA 106
Groth v Secretary, Department of Social Security [1995] FCA 1708
Polchow and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 224
SECONDARY MATERIALS
Guide to Social Security Law
REASONS FOR DECISION
Brigadier AG Warner, Member
09 March 2018
INTRODUCTION

Mr Obst seeks review of a decision made by the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) on 11 November 2016 which affirmed a decision made by an Authorised Review Officer (ARO) on 19 July 2016 that Mr Obst was not qualified to receive a payment under the Pension Bonus Scheme (PBS).
Mr Obst attended and gave evidence at the hearing on 31 October 2017.
BACKGROUND
On 16 January 2009, Mr Obst registered for the PBS (T15/117 - 123).
On 29 January 2009, the Department of Human Services (the Department) accepted Mr Obst’s registration as an accruing member of the PBS from 9 August 2004 (T18/129).
On 11 February 2009, the Mr Obst made a claim for Age Pension and Pension Bonus (T20/133- 156). The Department rejected the claim for Age Pension on 11 June 2009 because Mr Obst failed to reply to correspondence set to him by the Department (T72/395).
On 27 July 2009, the Department wrote to Mr Obst to confirm that he was still registered as a member of the PBS (T31/188). The letter stated, in part:
When you are ready to claim Age Pension you will need to claim the bonus at the same time. Please remember that you’ll need to lodge your bonus claim within 13 weeks of ceasing work, or within 13 weeks from the date you no longer meet the work test (T31/188).
On 5 August 2009, the Department wrote to Mr Obst providing a record of his membership of the PBS. The correspondence confirmed that Mr Obst was an accruing member of the PBS between 9 August 2004 and 8 August 2005 (T40/203), 9 August 2005 and 8 August 2006 (T39/202), between 9 August 2006 and 8 August 2007 (T38/201), between 9 August 2007 and 8 August 2008 (T37/200) and between 9 August 2008 and 8 August 2009 (T36/199).
On 26 July 2010, the Department wrote to Mr Obst to confirm that he was still registered as a member of the PBS (T41/204). The letter stated, in part:
When you are ready to claim Age Pension you will need to claim the bonus at the same time. Please remember that you’ll need to lodge your bonus claim within 13 weeks of ceasing work, or within 13 weeks from the date you no longer meet the work test. [T41/204].
On 6 August 2010, Mr Obst made a claim for Age Pension and Pension Bonus (T44/ 209-235). The Department rejected Mr Obst’s claim for Age Pension on 26 August 2010, because Mr Obst failed to reply to correspondence sent to him by the Department (T49/ 296).
On 24 November 2010, Mr Obst resigned as a Director of the Obst Nominees Pty Ltd (T64/346).
On 26 July 2011, 26 July 2012 and 26 July 2013, the Department wrote to Mr Obst to confirm that he was still registered as a member of the PBS (T51/298). The letter stated, in part:
When you are ready to claim Age Pension you will need to claim the bonus at the same time. Please remember that you’ll need to lodge your bonus claim within 13 weeks of ceasing work, or within 13 weeks from the date you no longer meet the work test. [T51, p 298].
From 3 January 2014 until 30 December 2014, Mr Obst was on sick leave (T65/371). Mr Obst underwent knee surgery on 3 January 2014. (T66/373) and 25 May 2014 (T66/373).
On 28 July 2014, the Department wrote to the Applicant to confirm that he was still registered as a member of the PBS. The letter stated, in part:
When you are ready to claim Age Pension you will need to claim the bonus at the same time. Please remember that you’ll need to lodge your bonus claim within 13 weeks of ceasing work, or within 13 weeks from the date you no longer meet the work test. (T55/ 302).
On 25 November 2015, the Applicant made a claim for Age Pension and Pension Bonus (T65/349 – 372), and Age Pension was granted from 25 November 2015 (T72/395).
On 1 July 2016, the Department determined that a payment under the PBS could not be made to Mr Obst as the claim was not lodged within the allowed period (T69/383 – 384). An ARO affirmed that decision on 19 July 2016 (T70/385 – 391).
On 11 November 2016, the AAT1 affirmed the ARO decision (T2/3-8).
ISSUES
The Tribunal must decide whether Mr Obst was qualified to receive a payment under the PBS. This requires consideration of:
(a)whether Mr Obst lodged a valid claim for a payment under the PBS within the lodgement period fiexed by relevant legislation and if he did not; and
(b)whether or not there are any special circumstances in the Applicant’s case which would justify an extension of time for making a claim for a payment under the PBS.
THE LEGISLATION
The relevant legislation is contained in:
·the Social Security Act 1991 (Cth) (the Act); and
·the Social Security (Administration) Act 1999 (Cth) (the Administration Act).
The relevant policy guidelines are contained in the Guide to Social Security Law (the Guide).
Qualification for payment as a registered member of the PBS
Part 2.2A of the Act sets out the qualification requirements for the PBS. This Part establishes that a single lump sum pension bonus may be payable to persons who stay in gainful employment after reaching the relevant age for payment of age pension and who defer claiming age pension.
Section 92A of the Act provides a simplified outline of the provisions in Part 2.2A of the Act:
·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 the 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.
Section 92C of the Act sets out the qualification requirements for a pension bonus as a registered member of the PBS. This section relevantly provides:
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
(d)    the person has accrued at least one full year-bonus period while registered as a member of the pension bonus scheme; and
(e)    the person has not received:
(i)     a social security pension (other than an age pension or a carer payment); or
(ii)    a social security benefit; or
(iii)    a service pension (other than a carer service pension); or
(iv) an income support supplement (other than an income support supplement that is payable as a result of the operation of subclause 8(3) of Schedule 5 to the Veterans' Entitlements Act);
at any time after the person qualified for an age pension; and
Note: Even though the person may not have actually received an amount of social security pension or benefit because the rate of the pension or benefit was nil, in some cases the person will be taken to have received the pension or benefit if adjusted disability pension (within the meaning of section 118NA of the Veterans' Entitlements Act) was payable to the person or the person's partner: see subsection 23(1 D) of this Act.
(f)    the person has not already received:
(i)     another pension bonus; or
(ii) a bonus under Part IIIAB of the Veterans' Entitlements Act; or
(iii) DFISA bonus under Part VIIAB of the Veterans' Entitlements Act.
Section 21(1) of the Administration Act sets out that a claim for pension bonus must be made within the lodgement period fixed by Subdivision E, Part 3 of the Administration Act.
[emphasis added]
Section 3.4.7.80 of the Guide states in part:
When MUST the bonus be claimed?
A member of the scheme MUST claim the pension bonus if they:
oLodge a claim for Age, OR
oFail to accrue a bonus period - that is, they fail the work test, AND
oAre NOT a non-accruing member of the scheme.
A member who accrues some bonus periods and then fails to accrue a full year bonus period without claiming, can never be paid a pension bonus.
Explanation: Bonus periods must be consecutive, so a member of the scheme must claim their bonus as soon as they fail to accrue a full year bonus period. This may not be the case if they have a partner is continuing to accrue a bonus.
A person who claims Age and PBS and whose claim for Age is rejected cannot receive a bonus EVER unless Age becomes payable within 13 weeks of failing the PBS work test or within 13 weeks of the end of a non-accruing period.
Section 3.4.7.20 of the Guide states in part:
Extension of time to register - discretion of delegate
The delegate has the discretion to extend the period a person has to lodge their registration form. If the registration occurs as a result of a late application, the registration takes effect on:
othe date the application is lodged, OR
oif the delegate decides, another date, based on the special circumstances of the case.
…
FOR THIS DISCRETION TO BE EXERCISED the person MUST meet certain conditions during the period after they reach age pension age (or after 1 July 1998 - whichever is the later) and the date they lodge the application for registration.
The person MUST meet the requirement to have qualified for Age prior to 20 September 2009. The person MUST establish with evidence, that throughout the period they had either:
obeen a non-accruing member, or
oas an accruing member, passed the work test for each accruing period (if more than one).
Claims for the PBS must be made within the time limits prescribed by sections 20 to 29 of the Administration Act. Generally a person must claim for the pension bonus when they fail the work test (960 hours per year) or when they fail to accrue a bonus period.
Section 92U of the Act sets out the work test for a full year period. This section provides that:
For the purposes of this Part, a person passes the work test for a full-year period of the person's accruing membership of the pension bonus scheme if;
(a)    in any case—the person satisfies the Secretary that the total number of hours gainfully worked by the person during that period was at least 960 and that at least 640 of that total number of hours were worked in Australia; or
(b)    if the person had only one partner during that period—the person satisfies the Secretary that the total number of hours gainfully worked by the person’s partner during that period while the partner was a partner of the person and was:
(i)     an accruing member, or a post-75 member, of the pension bonus scheme; or
(ii) an accruing member, or a post-70/75 member, of the corresponding scheme under Part IIIAB of the Veterans’ Entitlements Act;
was at least 960 and that at least 640 of that total number of hours were worked in Australia; or
(c)    if the person had 2 or more partners during that period—the person satisfies the Secretary that the total number of hours gainfully worked by those partners during that period while they were partners of the person and were:
(i)     accruing members, or post-75 members, of the pension bonus scheme; or
(ii) accruing members, or post-70/75 members, of the corresponding scheme under Part IIIAB of the Veterans’ Entitlements Act;
was at least 960 and that at least 640 of that total number of hours were worked in Australia; and either:
(d)    the person satisfies the Secretary that the applicable record-keeping requirements (see section 93C) have been complied with in relation to that period; or
(e)    the Secretary decides to waive compliance with the applicable record-keeping requirements in relation to that period.
Sections 92X and 92Y of the Act relate to the gainful work requirement, as extracted below:
92X Gainful work—basic rule
1For the purposes of this Part, gainful work is work for financial gain or reward, whether as an employee, a self-employed person or otherwise, where:
(a)    the work involves a substantial degree of personal exertion on the part of the person concerned; and
(b)    the work is carried on within or outside Australia.
2Subsection (1) is to be ignored in determining the meaning of an expression used in a provision of this Act other than this Part.
92Y Secretary’s discretion to treat activity as gainful work
1If a person satisfies the Secretary that:
(a)    the person, or the person’s partner, has engaged in a particular activity; and
(b)    the activity involves a substantial degree of personal exertion on the part of the person or the person’s partner, as the case may be; and
(c)    the activity does not consist of voluntary work for a charitable, welfare or community organisation; and
(d)    because of special circumstances, the activity should be treated as gainful work; the Secretary may determine that this Part has effect as if the activity were gainful work.
2The determination has effect accordingly.
Section 23 of the Administration Act also provides in relation to a part year period:
Last bonus period a part-year period
1If a person’s last bonus period is a part-year period, the lodgment 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.
However, this subsection does not apply if:
(c)    the person is an exempt partnered person (see subsection 24(2)) at the end of the person’s last bonus period; or
(d)    the person’s membership of the pension bonus scheme becomes non-accruing immediately after the end of the person’s last bonus period; or
(e)    the person is a post-75 member of the pension bonus scheme and has a post-75 work period (see subsection 26(2)).
A person passes the work test for a part-year period of the person’s accruing membership in the following relevant circumstances:
92V Work test – part-year period
For the purposes of this Part, a person passes the work test for a part-year period of the person’s accruing membership of the pension bonus scheme if:
in any case—the person satisfies the Secretary that the total number of hours gainfully worked by the person during that period was at least the pro-rated number of hours (see subsection (2)) and that at least two-thirds of that total number of hours were worked in Australia; or
…
and either:
the person satisfies the Secretary that the applicable record-keeping requirements (see section 93C) have been complied with in relation to that period; or
the Secretary decides to waive compliance with the applicable record-keeping requirements in relation to that period.
For the purposes of this section, the pro-rated number of hours applicable to a period is worked out using the formula:
968 x Number of days
365
Section 92Q of the Act provides that the Secretary may declare that a member of the PBS is a non-accruing member where a member is on sick leave for a continuous period of at least four weeks and not more than 26 weeks.
Whether or not there are any special circumstances that allow Mr Obst a longer period to make a claim
Section 21(2) of the Act states:
… the Secretary may in special circumstances allow a person a longer period to make a claim than the this Subdivision [Subdivision E, Part 3 of the Act]. If the Secretary does so, the lodgment period for the person’s claim is the period allowed by the Secretary…
Section 3.4.7.80 of the Guide states in part:
… If a member claims their bonus more than 13 weeks after failing the work test for a part-year bonus period, acceptance of the claim is at the Secretary’s discretion. If the Secretary accepts the claim, they CAN NOT qualify for payment of the part-year bonus period, but they can qualify for the full-year bonus period/s…
Section 3.4.7.80 of the Guide furthermore states in part states:
The Secretary has discretion to accept any late PBS claim lodged on or after 1 January 2008…
…. the intention of the late claim 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 provide, where applicable/appropriate.
Examples may include cases where a member:
ohas poor numeracy or literacy skills,
owas ill,
owas located in a remote area,
operformed irregular work that made it difficult for the member to determine the lodgment period,
owas helping a close family member suffering from a serious illness,
ohas experienced the death of a close family member,
ohad 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),
owas 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).
….
In the case where claims are lodged within a few weeks of the normal claim period, evidence of the reason for the delay would not normally be required. In order to make a decision about whether a very late claim should be accepted, it is acceptable to ask for evidence of the reason for the delay…
· The Tribunal is not bound to apply the police expressed in the Guide, but will usually do so unless there are cogent reasons or not doing so.
EVIDENCE

The evidence before the Tribunal comprised of:
·The ‘T documents’ (T1 – T73, pp 1 – 417) (Exhibit 1);
·Wayne Obst email dated 21 March 2017, attaching 14 pages (Exhibit 2);
·Wayne Obst email dated 6 April 2017, attaching 3 pages (Exhibit 3);
·Applicant’s Submission (3 pages) received by the Tribunal 2 May 2017 (Exhibit 4);
·Secretary’s Statement of Facts & Contentions dated 5 May 2017 (Exhibit 5); and
·The oral evidence of the Applicant.
CONSIDERATION
Mr Obst’s oral evidence
Mr Obst presented before the Tribunal as an honest, hardworking gentleman, organised and prepared to give his evidence.
The tenor of Mr Obst’s oral evidence is summarised as follows:
·Mr Obst congratulated the Respondent for mentioning the issue of deprivation in his opening submissions as he thought it had not been considered properly in the previous decisions. He opened that Centrelink staff members were overworked and that mistakes had been made in his case. Mr Obst asserted that the ARO had finalised the 19 July decision without properly interviewing him.
·Mr Obst referred to parts of the written material before the Tribunal to evidence the provision of all requested information to Centrelink. He thought that the whole of the information constituted special circumstances.
·Mr Obst advised the circumstances of his two knee operations in 2014. He said he was not in a wheelchair or using crutches, was driving and doing odd jobs, and that his knees did not prevent him attending Centrelink.
·Mr Obst stated a number of times that the reason for not lodging his claim by 20 October 2014 was that he understood that he was banned, deprived, not eligible to lodge a claim under 25 October 2017 because of his involvement in a family trust.
·Mr Obst acknowledged receiving letters which stated in part “you’ll need to lodge your bonus claim within 13 weeks of ceasing work, or within 13 weeks from the date you no longer meet the work test”, however was under the impression that because he was a member of a trust, he was banned.
·In answering questions by the Respondent, Mr Obst accepted that his failure to lodge a claim for pension bonus by 20 October 2014 was not related to his location, or his health, but solely to his belief that he was banned, ineligible for five years.
Did Mr Obst lodge a valid claim within the prescribed time limit?
The Tribunal accepts, and having regard to the relevant evidence, legislation and policy that:
(c)on 9 August 2004, Mr Obst reached the male age qualification for Age Pension and that Mr Obst was registered for PBS (T70, p 386 and T72 p 398);
(d)the Mr Obst satisfied sections 92C(a), (b), (e) and (f) of the Act, in that prior to applying for the Age Pension and the PBS on 25 November 2015, Mr Obst was not in receipt of the Age Pension and since attaining pension age, Mr Obst has not been in receipt of any other social security payment (T72, p 396);
(e)Mr Obst satisfied sections 92(c), and (d) of the Act as he was a registered member of the PBS and that he had accrued at least one full year bonus period while registered as a member of the PBS. In particular, the Secretary accepts that Mr Obst was an accruing member between 9 August 2004 and 6 August 2013 (T36, p 199, T37, p 200, T38, p 201, T39, p 202 and T40, p 203);
(f)The Applicant had a further total of 440.66 hours equating to 167 days worked in the year commencing 7 August 2013 and ending 6 August 2014, and that the Applicant was on sick leave from 1 January 2014 [T66, p 373].
In considering the relevant lodgement period applicable to the Applicant’s claim for pension bonus, the Tribunal notes:
·In light of sections 92U and 92V of the Administration Act, it is not in dispute that Mr Obst met the relevant criteria for accruing membership in all full bonus periods starting 9 August 2004 and ending 6 August 2013 (adjusted by 2 days for the leap years in 2008 and 2012).
·He worked a further 440.67 hours in the following bonus year commencing 7 August 2013 and ending 6 August 2014 which on a pro rata basis means he can be taken to have met the work test as an accruing member of the scheme for another 167 days or until 20 January 2014.
[emphasis added]
·In his claim form, Mr. Obst indicated that he was on sick leave from 3 January 2014 to 30 December 2014.
·As subsection 96Q(6) states that a person can be a non-accruing member if they are on sick leave for a continuous period of at least 4 weeks, and not more than 26 weeks, a maximum of 26 weeks may be added as a non-accruing period following Mr. Obst last accruing period, being 20 January 2014. Mr Obst therefore ceased to be a non-accruing member after 21 July 2014.
[emphasis added]
In accordance to section 25 of the Administration Act, the lodgment period applicable to the person’s claim for pension bonus is the period beginning at the end of the Mr Obst’s last bonus period; and ending 13 weeks after the time when the person’s membership of the scheme ceases to be non-accruing. The lodgment period applicable to Mr Obst’s claim for pension bonus was 20 October 2014. This finding is consistent with the ARO’s finding (T2/5).
[emphasis added]
The ARO determined that the last date for Mr Obst to lodge a claim to test his eligibility for a pension bonus was 20 October 2014 (T70/388.) Similarly, in AAT1 in the decision under review it was stated:
The Administration Act sets out that in these circumstances a claim must be lodged within a fixed 13 week period commencing at the end of the final non-accruing period which in this case means commencing with 22 July 2014. This means the last date for Mr Obst to lodge a claim to test his eligibility for a pension bonus was 20 October 2014 (T2/5).
·Consistent with the previous decision makers, the Respondent in the present proceedings contends that Mr Obst had until 20 October 2014 to lodge a claim for payment under the PBS (Exhibit 5, para 43). The Tribunal agrees.
Mr Obst lodged his claim for pension bonus on 25 November (T72/395). The Tribunal finds that Mr Obst did not lodge a claim within the prescribed period.
Are there special circumstances which would allow a longer period for making a claim?
The Tribunal notes the Respondent’s explanations that the legislative purpose behind the 13 week time limit for claims is discussed in the Tribunal decision of Re Polchow and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 224 at paragraph 13:
After some research, I was able to locate the reason why the period of 13 weeks was selected for the purposes ss22 and 23 of the Administration Act as being the time limit within which, after the last bonus period, a claim must be made. In a report prepared by the Senate Community Affairs Legislation Committee dated May 1998, the committee provided the following reasons for the 13 week limit:
DSS and DVA noted, however, that the Scheme provides that a bonus payment can only be made to a person who is able to claim and receive an age (or equivalent DVA) pension within 13 weeks of their retirement or within 13 weeks of failing to meet the work test requirements for a year. The 13 week limits were included to minimise the capacity of people to disperse or reduce their retirement savings following the cessation or reduction in work.
Examples of special circumstances are provided in the Guide (see paragraph 33 above) but the term special circumstances is not defined in the Act. In Exhibit 5, the Respondent provides three authorities relevant to the current consideration of whether special circumstance exist in Mr Obst’s case:
Although not defined in the Act, the expression special circumstances has been the subject of judicial comment for many years. In Re Beadle v Director-General of Social Security [1984] AATA 176: (1985) 7 ALD 670, the Full Court of the Federal Court, said at 674:
...More difficult would be questions of ignorance illiteracy, isolation, illness and the like. It would depend upon the circumstances of the particular case whether these constituted special circumstances. We do not think it possible to lay down precise limits or precise rules. The matter is one for the Director-General bearing in mind the purpose for which the power is given. The phrase “special circumstances, ” although lacking precision, is sufficiently understood in our view not to require judicial gloss... (Exhibit 5, para 48)
· In Boscolo v Secretary, Department of Social Security [1999] FCA 106, French J said, at 281 - 282:
[18] The word “special” conditioning “reasons” or “circumstances” guards the entrance to the exercise of many different statutory discretions. It is generally futile to search for its meaning in terms of other words. It is in essence instrumental, a direction to the decision -maker that the discretion it constrains is not lightly to be enlivened.... The core of the requirement for “special circumstances” or “special reasons” is that there be something unusual or different to take the matter the subject of the discretion out of the ordinary course: Minister for Community Services and Health v Chee Keong Thoo [1988] FCA 54; (1988) 78 ALR 307 at 324: Burchett J. But that does not require that the case be extremely unusual, uncommon or exceptional; Secretary, Department of Social Security v Hodgson [1992] FCA 338; (1992) 37 FCR 32; 27 ALD 309; 108 ALR 322 (Exhibit 5, para 49)
· In Groth v Secretary, Department of Social Security [1995] FCA 1708, Kiefel J said at 545, after referring to Beadle’s case:
... for present purposes it is sufficient to observe that it would require something to distinguish Mr Groth’s case from others, to take it out of the usual or ordinary case... It would of course follow that if one were to conclude that something unfair, unintended or unjust had occurred that there must be something out of the ordinary (Exhibit 5, para 50)
The AAT1 noted Mr Obst’s evidence before the Tribunal “that he delayed making a claim because he believed, based on Centrelink’s advice, that he was required to wait for a period of five years rather than any of the reasons set out in the Guide” (T2/7). In email submissions dated 21 March 2017 (Exhibit 2) and 6 April 2017 (Exhibit 3) and in his oral evidence in the present proceedings, Mr Obst maintained that he did not claim a payment under the PBS within time as he believed that he was subject to a five year deprivation period in which he was unable to make a claim.
Exhibit 2 states in part that:
Both ARO (didn’t contact me before making decision), and AAT Kannis (didn’t accept my paper work) didn’t consider the 5 year Deprivation period or “Special Circumstances” or “Me”.
I have 16 Government Centre Link (sic.) documents, 10 with F.I.O on the top and clearly say assets and property would be attributed to me in the case of “Family Trusts” involvement.
I also have 29 Diary entries that deal with P.B.S and Trust resignation and assets from F.I.O, Jackie and Dafty re the 5 year deprivation period.
The advice and reading of them was clear I could not apply for Age Pension and Pension Bonus Scheme under after 5 years from resigning 24-11-10. My application was on the day or day after (Exhibit 2, p 2).
The Respondent explains the concept of deprivation, correctly in the Tribunal’s view, as follows:
The concept of deprivation is a feature of the social security law. Section 4.1.1 of the Guide provides that the deprivation provisions in the social security law are intended to limit the potential for recipients to avoid the assets and income tests. This section of the Guide provides that a recipient may dispose of $10 000 per financial year and $30 000 over any rolling five financial year period. Any gifting over these amounts will be assessed as a deprived asset for five years from the date of gift (Exhibit 5, para 54).
It is clear to the Tribunal that deprivation and the requirement to lodge a claim within a prescribed period are separate issues. The concept of gifting might impact the rate of any payment but is not relevant to the requirement to lodge a claim for pension bonus within the lodgement period fixed by Subdivision E, Part 3 of the Administration Act
As previously stated the Department wrote to Mr Obst on six occasions in the period July 2009 to July 2014 in relation to PBS, with each letter clearly advising Mr Obst that he must lodge a claim within 13 weeks of ceasing to work or ceasing to meet the work test (T31/188, T41/204, T51/298, T54/301 and T55/307).
Further, the Respondent details a number of appointments Mr Obst attended with Departmental officers to discuss the Age Pension and PBS. The relevant Departmental file notes (Exhibit 5, para 57) do not indicate that Mr Obst was given incorrect advice or that Mr Obst circumstances could be regarded as special.
Having carefully considered the material before it, the Tribunal is reasonably satisfied that Mr Obst has fundamentally misunderstood the advice provided to him by the Department in relation to his entitlement to Age Pension and PBS. In this regard, the Tribunal is included to agree with the AAT1 statement that:
The Tribunal accepts Mr Obst’s evidence that he believed he was not permitted to lodge a claim until the expiration of the five years. It is possible, in the Tribunal’s view, that Centrelink advised him that an assessment of any claim would take into account any gifting arising from his resignation from trust for a period of five years and based on that, he would be unlikely to succeed (T2/6).
There is no evidence before the Tribunal that at any time the Department advised Mr Obst that he was banned, ineligible or unable to apply for PBS until a five year deprivation period had been served. Rather, there is evidence, acknowledged by Mr Obst, that he Department continued to notify him in writing that he was required to lodge a claim within 13 weeks of ceasing to meet the work test. The Tribunal is reasonably satisfied that Mr Obst’s fundamental misunderstanding does not give rise to special circumstance which would allow for further time to lodge a claim for a payment under the PBS.
The Tribunal considered evidence regarding Mr Obst’s knee surgeries, and notes that being ill is an example listed in part 3.4.7.80 of the Guide as a matter that may give rise to special circumstances. However, having regard to Mr Obst’s oral evidence (see paragraph 40), the Tribunal is not satisfied that Mr Obst’s health constitutes or contributes to a special circumstance within the meaning of the Guide.
Relevantly, the Respondent contents, and the Tribunal agrees that:
There is nothing exceptional, unusual or uncommon about the Applicant’s ill health. Rather the Secretary contents that it would be expected that a person of Age Pension age would be likely to suffer from some degree of ill health. In addition, the Secretary contents that there is no evidence that the Applicant’s knee surgeries would have totally incapacitated the Applicant such that he was physically unable to lodge a claim by the required date. As such, the Secretary contents that the Applicant’s ill health does not amount to a special circumstance which would allow for further time to lodge a claim for a payment under the PBS (Exhibit 5, para 61).
CONCLUSION
It is common ground that Mr Obst did not claim pension bonus by 20 October 2014. Having carefully considered all material before it and the circumstances of this matter, the Tribunal is reasonable satisfied that special circumstances do not apply such as to allow a longer period for Mr Obst to make a claim.
It follows from the above that the decision of the AAT1 at first review made on 11 November 2016 is the correct and preferable decision.
DECISION
The Tribunal affirms the decision under review.

I certify that the preceding 56 (fifty-six paragraphs are a true copy of the reasons for the decision herein of Brigadier AG Warner, Member

........................................................................
Associate
Dated: 09 March 2018

Date(s) of hearing: 31/10/2017

Applicant: In person

Solicitors for the Respondent: Ashley Burgess

[2018] AATA 689

9 March 2018

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Remedies

Date(s) of hearing:	31/10/2017
Applicant:	In person
Solicitors for the Respondent:	Ashley Burgess