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

[2016] AATA 113

Ralston; Secretary, Department of Social Services and (Social services second review) [2016] AATA 113 (26 February 2016)

Division	GENERAL DIVISION
File Number(s)	2015/3894
Re	Secretary, Department of Social Services
APPLICANT
And	Judith Ralston
RESPONDENT

DECISION

Tribunal	Deputy President Dr C Kendall Brigadier AG Warner, Member Mr W. Evans, Member
Date	26  February 2016
Place	Perth

The decision under review is affirmed

...(Sgd) Dr C Kendall................

Deputy President Dr C Kendall

CATCHWORDS

SOCIAL SECURITY – Pension Bonus Scheme (PBS) – Qualification for Aged Pension accepted – Pension Bonus refused on basis that Centrelink had no record of the respondent lodging the required registration form for PBS – Respondent seeks claim of Pension Bonus from date of alleged submission of registration forms – Sufficient evidence that required form was submitted -- Decision affirmed and remitted to the Secretary for retrospective payment of Pension Bonus.

LEGISLATION 

Social Security Act 1991 (Cth) – ss 92C - 92D - 92E - 92F – 92G - 92H

REASONS FOR DECISION

Deputy President Dr C Kendall
Brigadier AG Warner, Member
Mr W. Evans, Member

26 February 2016

INTRODUCTION

1. Judith Ralston is a 72 year old retired teacher of disadvantaged children.  She claims to have registered for the Pension Bonus Scheme (the “PBS”) on 21 December 2011, well before the Scheme’s official cut-off date of 1 July 2014 and well prior to her actually retiring from active employment - the latter event occurring in December 2014.

2. At the time Ms Ralston allegedly submitted the PBS registration form, she advised Centrelink that she was still actively employed and was merely registering for the Scheme in accordance with the extant rules.  She claims she had reached retirement age of 64.5 years in 2009 but wished to continue working for a further 12-18 months.

3. Before this Tribunal, the Secretary, Department of Social Security (“the Secretary”), contended that Ms Ralston did visit the Victoria Park Centrelink office on 19 December 2011 and again on 21 December 2011 but failed to submit the appropriate PBS registration documentation in a form approved by the Secretary.

4. Specifically, the Secretary queries whether Ms Ralston made a timely application for registration in the PBS in accordance with ss 92D, E and G of the Social Security Act 1991 (the “Act”), thereby qualifying for registration in the PBS and satisfying section 92C (c) of the Act.

5. On 19 December 2014, following retirement, Ms Ralston submitted documentation requesting the age pension and the pension bonus.  Centrelink staff promptly processed her claim for age pension but rejected her claim for the PBS on the grounds that she was not registered for the Scheme.

6. The decision to reject Ms Ralston’s PBS claim was affirmed by a Centrelink Authorised Review Officer on 23 March 2015 (T18 at page 72).  Ms Ralston appealed that decision to the Social Services and Child Support Division of the Administrative Appeals Tribunal on 27 May 2015, with a hearing being conducted on 29 June 2015.

7. On 29 June 2015 the Social Services and Child Support Division of the Administrative Appeals Tribunal set aside the ARO’s decision and instead found that Ms Ralston satisfied subsection 92C(c) of the Act at the time she lodged her claim on 21 December 2011.

8. The Secretary seeks review of that decision on the grounds that Ms Ralston’s claim that she was registered for the PBS on 21 December 2011 was not proved.

   ISSUE

9. The Tribunal is asked to determine whether Ms Ralston was entitled to Pension Bonus at the time she made her claim for the Aged Pension on 19 December 2014.

   LEGISLATION

10. Section 92H of the Social Security Act 1991 – Timing of Application and Registration -- reads:

    Age pension qualification date on or after 1 July 1998

    (1)If a person’s date of qualification for the age pension occurs on or after 1 July 1998:

    (a)the person must lodge an application during the period that begins 13 weeks before the person’s date of qualification for the age pension and ends 13 weeks after that date; and

    (b)if registration occurs as a result of an application lodged within that period—the registration takes effect on the person’s date of qualification for the age pension.

    Age pension qualification date before 1 July 1998

    (2)If a person’s date of qualification for the age pension occurs before 1 July 1998:

    (a)the person must lodge an application during the period that begins on the commencement of this section and ends 13 weeks after 1 July 1998; and

    (b)if registration occurs as a result of an application lodged within that period—the registration takes effect on 1 July 1998.

    Date of qualification for the age pension

    (8)For the purposes of this section, a person’s date of qualification for the age pension is to be worked out on the assumption that being an Australian resident were an additional qualification for an age pension.

    (9)For the purposes of this section, if a person would otherwise have 2 or more dates of qualification for the age pension, only the first date is to be counted.

11. Ms Ralston was born on 22 July 1944 and turned 65 on 22 July 2009, at which time she became eligible to apply for the Aged Pension.  Eligibility for registration in the PBS was 13 weeks either side of 22 July 2009.

12. Importantly, under section 92H(3) of the Act (applicable in December 2011), the Secretary had the power to extend the period in which a person may lodge an application for the PBS. Apparently, several time extensions were granted with the final cut-off date being 1 July 2014. Ms Ralston’s alleged registration on 21 December 2011 was made prior to that cut-off date.

13. Relevantly, section 92H(3) reads:

    (3)  The Secretary may extend the period within which a person must lodge an application.  If registration occurs as a result of an application lodged during an extended period, the registration takes effect:

    (a)         on the date on which the application is lodged; or

    (b) if the Secretary decides that it should take effect on another date – on that date.

14. It follows therefore, that should the Tribunal find for Ms Ralston, any retrospective payment would be from 21 December 2011.

15. In 2011 it was a requirement of section 92H(4)(b)(ii) that, “the person would have passed the work test for each test period applicable to the person”.  Ms Ralston provided a letter dated 15 January 2014 from her accountant Pina Caffarelli, stating that she “had done a minimum of 960 hours of gainful work in each entitlement year to qualify for the Pension Bonus Scheme”.  The work test qualification was not in contention by the Secretary before this Tribunal.

    DISCUSSION

16. To be qualified for the PBS a person must have continued to work beyond official retirement age, be registered as a member and have accrued at least one full-year bonus period while registered as a member (section 92C of the Act).

17. Section 92D of the Act states that a person may apply for registration as a member of the PBS, however, a person cannot make application on or after 1 July 2014.

18. The Tribunal noted that Ms Ralston had contacted the Victoria Park office of Centrelink on 19 January 2011 (T23 at page 106) with the express intent to obtain the registration forms for the PBS.  She apparently did so, returning home to complete certain aspects of the forms which required input from her financial advisor Mr Glen Mumme.

19. On 20 January 2011, in an email to Mr Mumme, Ms Ralston states that she was able to obtain a registration form for the PBS from Centrelink and that she had answered all but two questions that she required assistance from him to complete.  Mr Mumme responded by email the next day, providing the figures necessary to complete the form.

20. There was no substantive evidence submitted to the Tribunal covering the period 20 January 2011 to 19 December 2011, a period of 11 months during which no activity apparently occurred relating to the PBS registration.  No explanation was offered by Ms Ralston in this regard.

21. In her evidence to this Tribunal, Ms Ralston tabled a document titled “Time-Line of Events Re: Pension Bonus Scheme Application”.  That record shows that she had still not actioned the PBS registration forms by 24 March 2011, nor by 9 December 2011.  However, on 21 December 2011 she met with Mr Mumme in the morning and stated that she was about to submit the form that afternoon.

22. The Secretary provided the Tribunal with a computer report entitled “Customer Record Access Monitor Report” (“CRAMR”) applicable to Judith Ann “McManus”, Customer Record No. 600392776J, covering the 7 month period 1 December 2011 to 30 June 2012.  On 2 December 2011 there is an entry indicating contact with Ms McManus but no clear detail as to the reason for contact.

23. On 21 December 2011, the record indicates that Ms McManus asked to have her name changed to Ms Judith Ann Ralston (she had divorced Mr McManus in the 1980’s (T5 at page 15).  There is detail to show that Ms Ralston was talking by telephone to a Centrelink officer (NUP451) in the Port Augusta South Australia office.  The records show that the conversation lasted from 16:23:07 hours to 16:34:07 hours, a total of 11 minutes.

24. The Secretary stated before this Tribunal that the times recorded are in ACT time zone (3 hours from Perth Time, meaning that the conversation occurred at 1323 to 1334 hours WA time) and that the codes alongside each nine-second record indicate the subject of discussion.  The Tribunal notes that the majority of these codes refer to “Pension enquiry”.

25. Ms Ralston gave oral evidence that the conversation with the South Australian office was to arrange a face-to-face meeting with a Centrelink officer regarding the completion and submission of the appropriate PBS registration form.  Ms Ralston claims that was she was informed that such a personalised interview was not possible and that she should attend a Centrelink office in person and “wait in line”.

26. The CRAMR detailed printout from Port Augusta (T23 at page 105) dated 21 December 2011 records “No appointment profile; Mapstat states walk-in only.  Caller requested an enquiry appointment.  Mapstat advises walk-ins only.  No appointment profiles for VIP – checked CAMA for this.  Customer wanted to provide registration for PBS – have also advised cust (sic) to provide a statement as to why cust (sic) has not registered for this prior to now.  Also discussed cust (sic) speaking with FISO at some time in regards to this.  CCD coded from today” (CCD = Claim Contact Date).

27. At paragraph 4.20 of their Statement of Issues, Facts and Contentions, the Secretary  states:

    The Respondent has provided no evidence other than her testimony that she attended the Centrelink office, nor has she provided any evidence indicating she attempted to comply with the recommendation of Centrelink that she draft a statement to accompany her late registration.

28. A number of issues arise from the above:

    (i)If Ms Ralston did not attend the Centrelink office on 21 December 2011 then what was the catalyst/trigger that initiated the Centrelink letter dated 21 December 2011 (T4 at page 14) referring to an intention to make a claim (for PBS).  Arguably, that letter appears to confirm that a registration form was lodged (representing an intention to make a claim in the future).

    (ii)The reference to a late registration is confusing as the time limit for registration was 1 July 2014, some 31 months after 21 December 2011. It could be argued by Centrelink that there was an earlier cut-off date applicable at the time but it becomes irrelevant given the extension to 1 July 2014.

    (iii)Ms Ralston, in her email to Mr Mumme date 20 January 2011 stated that “although the closing date had passed, I was able to obtain a registration form for the Pension Bonus Scheme from Centrelink…”  Given Ms Ralston was able to obtain the registration form it follows that the cut-off date was being extended and Centrelink knew this.

    (iv)The recommendation that Ms Ralston submit a statement justifying her late submission therefore also becomes irrelevant and she admitted in her verbal evidence that she did not make any attempt to submit the statement as suggested by Centrelink.

29. At T4 page 14 there is a form letter generated by L Podmore of the Victoria Park Centrelink office, confirming that Ms McManus (sic) contacted the office on 21 December 2011 regarding her “intention to claim a payment” under the PBS.  The letter confirms that Ms Ralston did contact a person at Victoria Park office, resulting in the letter.  Otherwise, why else would the letter have been generated?  The letter, by its very wording (“intention to claim”), indicates that a registration form was indeed submitted.

30. Interestingly, there is no record in the CRAMR of any letter being placed on Ms Ralston’s file on that date.  It could be argued that Ms Ralston did submit the registration form on that day and it was simply either misfiled or misplaced and never actioned.  The fact that the letter shows the surname as McManus instead of Ralston also adds weight to an argument that there was some sort of misfiling.

31. The Tribunal asked the Secretary if it could be confirmed that submission by hand of a registration form (which Ms Ralston claims to have done) or any other form would trigger an access to the customer record and subsequent entry on CRAMR.  Counsel for the Secretary replied that he was unable to confirm that practice.

32. A Centrelink Morley Office electronic record dated 23 July 2012 (T23 at 104) shows that the letter sent by Ms Ralston dated 28 June 2012 (T5 at page 15) was not scanned into the system until 10 July, some 12 days later and the Centrelink record was not created until 25 July 2012, some 15 days after scanning.  This indicates to the Tribunal that the volume of work within Centrelink offices might easily lead to lost documents, misfiling and/or unacceptable delays in actioning.

33. The above electronic record also indicates a number of attempts were made by “Roman” from Centrelink and Ms Ralston to arrange a meeting to discuss the PBS registration failure but to no avail.  No blame can be put on either party here.

34. The Tribunal also notes that the letter of 21 December 2011 may be from the Victoria Park office but it was generated by computer from Regents Park in NSW.  There is, however, no apparent record of this letter on that date in the CRAMR that the Tribunal understands is the electronic file showing all activities associated with Ms Ralston.

35. Before this Tribunal, Ms Ralston submitted documents pertaining to her activities up to the point where she allegedly submitted the PBS registration forms and beyond.  Her financial advisor Mr Glen Mumme of Les Mumme & Associates, West Perth, affirmed that on 18 January 2011 he advised Ms Ralston to apply for the PBS as part of her planning for future retirement given that she was past the official retirement age (she turned 65 on 22 July 2009).  Mr Mumme further documented that he spoke with Ms Ralston about registration for the PBS on a further four occasions, being 21 January 2011, 24 March 2011, 9 December 2011 and 21 December 2011.  He noted that on 21 December 2011 Ms Ralston advised him that she was submitting the registration documents later that day.

36. As noted above, Ms Ralston provided a time-line action sheet that appears to have been drafted from her personal diary over many years.  In it she indicates a sequence of events supporting her claim that she did register for PBS on 21 December 2011.  Ms Ralston presented as a credible and mature witness and one unlikely to manifest a situation of advantage utilising false statements. She was extensively cross examined and did not waiver from her recollection of events.

37. In her letter dated 28 June 2012, Ms Ralston makes reference to the misuse of her name by Centrelink officers.  She states that when she submitted the registration forms on 21 December 2011 her “intention was simply to register my intention to claim at a later date, when I decide to retire.  I am not ready to retire now but will contemplate doing so in the next 12-18 months”.

38. In that letter Ms Ralston also refers to an alleged telephone call from a Centrelink officer prior to 28 June 2012, informing her that a payment (PBS) was about to be made.  Ms Ralston had responded by saying that she was still working and was not requesting a benefit at that time.  The “payment” was purportedly cancelled.

39. This Tribunal opines that this alleged telephone call regarding a payment could have been initiated by a Centrelink officer following a prior telephone conversation on 18 June 2012 between Centrelink and Ms Ralston’s daughter Peta McManus whereby some confusion may have occurred.

40. In relation to this issue, the Tribunal notes that before the SS&CSD, Member Kannis wrote as follows (at 20 and 21):

    20.  The tribunal asked Ms Ralston about the call she received which caused her to write to Centrelink.  She said she was surprised when she received a call from a female Centrelink officer who identified herself and checked her identification information.  Ms Ralston said that she was advised that an immediate pension bonus payment was going to be made to which she said that she was not retiring at that time.  Ms Ralston said the female officer said that the payment would have to be cancelled.  She said she received the call sometime after she lodged her application for registration on 21 December 2011 but before her letter dated 28 June 2012.  Ms Ralston said it was likely that the call was closer to the date of the letter.

    21.  The tribunal noted that there is no record of this call by Centrelink.  The tribunal accepted Ms Ralston’s evidence and found that she had received a call which had caused her to write the letter.  The information in the letter is consistent with Ms Ralston’s statements regarding lodging her application for registration and receipt of the call advising that she was about to be paid pension bonus.

41. This Tribunal notes that the Secretary continues to deny that any such telephone call took place as it would have shown up on the CRAMR and they could find no evidence that it had.  In any event, the Tribunal is of the opinion that the telephone call adds little to the argument about whether registration forms were submitted but has no reason to doubt Ms Ralston in any event.

42. From the evidence presented, the Tribunal concludes that Ms Ralston is a credible witness who carefully and diligently, and with professional advice, took steps over an extended period to secure her financial wellbeing in retirement.  It was also abundantly clear that the Pension Bonus was part of her financial planning as early as 18 January 2011 when professional advice was provided to her.  In these circumstances and with this knowledge, the Tribunal finds that it is unlikely that she would have failed to register due to its importance to her.

    DECISION

43. Based on the merits of the evidence presented, this Tribunal finds that Ms Ralston did submit her registration forms for PBS on 21 December 2011.  As the date of submission of the registration for PBS occurred prior to the cut-off date of 1 July 2014 the decision of 29 June 2015 is affirmed and the case remitted to the Chief Executive of Centrelink for retrospective payment to Ms Ralston of the PBS from 21 December 2011.

I certify that the preceding 43 (forty three) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr C Kendall, Brigadier AG Warner, Member, Mr W. Evans, Member

...(Sgd) A Tran..................

Administrative Assistant

Dated 26 February 2016

Date of hearing	11 February 2016
Representative for the Applicant	Ms J Vetter
Solicitors for the Applicant	Sparke Helmore Lawyers
Advocate for the Respondent	Mr T Safe
Solicitors for the Respondent	Sussex Street Community Law Service Inc.