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

[2015] AATA 711

Pender and Secretary, Department of Social Services (Social services second review) [2015] AATA 711 (15 September 2015)

Division	GENERAL DIVISION
File Number	2015/0163
Re	Dennis Pender
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	The Hon. Brian Tamberlin QC, Deputy President
Date	15 September 2015
Place	Sydney

The decision under review is affirmed.

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

The Hon. Brian Tamberlin QC, Deputy President

CATCHWORDS

SOCIAL SECURITY - pension bonus scheme - work test - when applicant ceased to satisfy the work test - whether claim lodged in applicable time frame - whether special circumstances exist to extend time for lodging claim - decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth) ss 92A, 92H

Social Security (Administration) Act 1999 (Cth) s21(1)

SECONDARY MATERIALS

Guide to Social Security Law

REASONS FOR DECISION

The Hon. Brian Tamberlin QC, Deputy President

15 September 2015

INTRODUCTION

1. This is an application for review of a decision of the Social Security Appeals Tribunal (SSAT) affirming a decision that the applicant’s claim for a pension bonus should be refused.

   LEGISLATIVE PROVISIONS

2. Part 2.2A of the Social Security Act 1991 (the Act) provides that the pension bonus scheme enables people who remain in employment after reaching the relevant age for payment of age pension, who defer claiming age pension may receive a single sum pension bonus.

3. Section 92A outlines the relevant scheme and provides that 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. Generally, a bonus period extends for one year. To accrue a bonus period the person must pass a work test for the period and to pass the work test a person must gainfully work for at least 960 hours during that year.

4. Under section 92H of the Act a person must lodge a claim within 13 weeks of failing the work test or becoming a non-accruing member of the scheme.

5. The Guide to Social Security Law (the Guide) states that a member of the scheme must claim the pension bonus if they lodge a claim for age or fail to accrue a bonus period – that is, they fail the work test and are not a non-accruing member of the scheme.

6. Under s 21(1) of the Social Security (Administration) Act 1999 (the Administration Act) a claim for pension bonus must be made within the lodgement period fixed by the subdivision. Subsection 2 empowers the Secretary in special circumstances to allow a person a longer period to make a claim than the period fixed by the subdivision. There is provision in the Guide as to when it may be appropriate for this Tribunal to exercise its discretion under s 21 by reference to examples of some specific instances where the power might be exercised.

   ISSUES

7. The issues to be determined by this Tribunal are as follows:

   (a)when the applicant ceased to accrue bonus period  due to his inability to satisfy the work test;

   (b)whether the applicant lodged a valid claim for pension bonus within 13 weeks after he no longer satisfied the work test; and

   (c)if he did not, then whether there are any special circumstances in the applicant’s case which would justify the extension of the time limit.

   FACTUAL CONTEXT

8. The applicant was born on 5 October 1943 and on 5 October 2008 reached the age pension qualification age of 65 years. On 31 December 2008 he contacted Centrelink about his intention to make a claim for payment and was informed about the necessity to make a claim within 13 weeks of failing to meet the work test. This was confirmed in writing on that day and he was sent a copy of a booklet describing the Pension Bonus Scheme.

9. On 8 January 2009 Centrelink wrote to the applicant confirming that he had been accepted as a member of the scheme and requiring him to contact them if his circumstances changed whilst he was registered for the scheme. On 31 August 2009 he was informed that the scheme was closing to new entrants and the letter stated that if he was not working 960 hours per year he should contact Centrelink to see if he was affected by changes to the scheme.

10. On 21 September 2009 the applicant was informed by letter that he was still a member of the bonus scheme and he was again reminded that he needs to lodge his bonus claim within 13 weeks of ceasing work or within 13 weeks from the date he no longer satisfied the work test of 960 hours per year.

11. Notices were sent to the applicant on 21 September 2010, 2011 and on 23 September 2013 confirming his membership and reminding him to lodge the bonus claim within 13 weeks of ceasing work or within 13 weeks from the day he no longer met the work test.

12. On 10 March 2014 Centrelink wrote to the applicant to confirm that he had contacted Centrelink on 10 March 2014 about his intention to make a claim for payment and on 14 March 2014 the applicant lodged a claim for age pension and pension bonus. In answer to a question in a form sent to him he affirmed that he was still employed and working part time. This was in response to the question as to when he ceased to meet the work test.

13. He furnished details as to periods of employment between 2007 and March 2014 noting that he was still employed and provided taxation returns and income and assets forms. On 24 April 2014 Centrelink sent to the applicant a letter advising him of his rate of age pension payable from 7 May 2014 and informing him that he was unable to be paid a pension bonus because he did not claim within the allowed period. On 29 September 2014 a review officer decided to affirm the decision to reject the applicant’s claim for a pension bonus as he had failed to meet the work test from October 2010 and have therefore been required to claim the age pension and bonus scheme within 13 weeks of that date.

14. That decision was affirmed by the SSAT, however, the applicant submitted that it had not taken into consideration the correspondence he received indicating that if he was still working and not claiming pension he did not have to claim the pension bonus. He also stated that he became ill.

    REASONING

15. Mr Pender said he was poorly informed about how the pension bonus scheme worked but confirmed that he received correspondence from the department each year advising him of his ongoing membership and informing him of the 13 week period. He said that he misunderstood the details of the work test. He said that because he continued to work he thought he continued to meet the work test but he now understands that he was required to work at least 960 hours per annum. He says that he worked full-time until April 2010 and has worked part-time since then and says that his hours of work in 2011 and 2012 were restricted as a result of a bout of prostate cancer as a result of which is no longer able to work full time due to his age and the manual nature of his work in a bottle shop.

    Ceasing to satisfy the work test

16. The applicant’s work records indicate that between 5 October 2010 and 5 October 2011 the applicant worked 757 hours. Under the guide there is provision that a member of the bonus scheme who takes any type of unpaid leave can be considered a non-accruing member of the scheme for up to 26 weeks of the time. The respondent has proceeded on the basis that a period of 26 weeks can be applied in this case between 5 October 2010 and 1 April 2012 but submitted that even in this case the applicant only worked for 904 hours and still fell short of the requisite 960 hours per bonus period.

17. The respondent submits that the Tribunal should find that the applicant failed to meet the work test from 1 April 2010 and that to come within the time limit the applicant would have had to lodge his claim for pension bonus on or before 1 July 2010. I accept this calculation as correct.

    Was a valid claim lodged within time?

18. Yes, it is common ground that a valid application was lodged but it was not lodged until 14 March 2014 more than 3 ½ years after the required date.

    Special circumstances

19. The applicant contends that the period of his illness should be taken into account from November 2011 to March 2012 in deciding whether there were special circumstances and this was accepted by the respondent. However, even if this is taken into account the claim was required to have been lodged by October 2010 at the latest. The period of delay is substantial. The respondent refers to numerous contacts stating this position and the requirements as to time of lodgement as outlined earlier in these reasons. These contacts repeatedly reiterated the requirement that the claim must be made for the pension bonus within 13 weeks of ceasing work or within 13 weeks from the date you no longer meet the work test.

20. At the hearing before me the applicant submitted that the correspondence gave him reasonable grounds to believe that he had until 13 weeks after ceasing work to make his claim for the pension bonus and that he genuinely misunderstood the requirement as to the time for lodging the claim. He contends that on a fair reading of the requirement that he must make his claim within 13 weeks of ceasing work or within 13 weeks from the date he no longer met the work test he understood that he did have until 13 weeks after ceasing to meet the work test to make his claim. The language of the correspondence does not in terms require that the claim must be made at the earliest of 13 weeks of ceasing work or from no longer satisfying the work test, whichever is the earlier. In effect, he says that he was misled by the correspondence and formulation of the time requirement by Centrelink and that he took a view of the requirement which was reasonably open to him as a matter of fair interpretation of the communications.

21. There are several substantial difficulties in accepting the applicant’s submission. Firstly, although he had not ceased work in 2014 he nevertheless lodged his application for a pension bonus. This does not sit easily with the contention that he understood that the time for lodging the claim was 13 weeks after he ceased employment. Nor does it fit in with the types of suggested examples referred to in the Guide as reasons to accept late claims. Secondly, if he had any difficulty understanding the requirements, the records in evidence indicate that he had many repeated opportunities in which to raise and clarify any doubts which he may have had as to the operation of the time requirements specified in the notices and letters and other documents received from Centrelink but did not raise any doubts or difficulties with the statement of requirements as notified from time to time. Thirdly the applicant is relying on a mistake of law as to the proper construction of the correspondence and documentation provided to him. I do not think that such a mistake as to the proper construction of requirements notified to him is sufficient to amount to special circumstances. Fourthly, the delay is a substantial one being over 3 ½ years and it cannot be properly described as being of a minor or insignificant nature. Finally, the wording itself on a plain objective English construction indicates that a claim should and can be made shortly after the work test is no longer satisfied.

22. Accordingly, I am not persuaded that in the circumstances of this case there are any special circumstances such as to warrant the exercise of power to extend time for lodgement of the claim.

    DECISION

23. The decision under review is affirmed.

I certify that the preceding 23 (twenty -three) paragraphs are a true copy of the reasons for the decision herein of The Hon. Brian Tamberlin QC, Deputy President

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

Associate
Dated 15 September 2015

Date(s) of hearing	6 July 2015
Applicant	In person
Solicitors for the Respondent	Department of Human Services