Re Brutnell and Secretary, Department of Family and Community Services

[2002] AATA 436

DECISION AND REASONS FOR DECISION [2002] AATA 436

ADMINISTRATIVE APPEALS TRIBUNAL      )
  )           No Q2001/1152
GENERAL ADMINISTRATIVE DIVISION        )

Re      BENITA BRUTNELL         
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES                   
  Respondent

DECISION

Tribunal       Mr R G Kenny, Member    

Date7 June 2002

PlaceBrisbane

Decision      The Tribunal affirms the decision under review.

..................(Sgnd)...................
  R G Kenny
  Member
CATCHWORDS
SOCIAL SECURITY – pension bonus scheme – qualification for pension bonus – previous receipt of age pension and widow pension

Social Security Act 1991, ss 23(5C), 92C, 92G, 92M
Social Security (Administration) Act 1999, s 16

REASONS FOR DECISION

7 June 2002  Mr R G Kenny, Member                

Appearances

1. In this matter, Benita Brutnall (the applicant) attended the hearing but was not represented. Mr Z McEwan appeared on behalf of the Secretary, Department of Family and Community Services (the respondent).

2. At the hearing, the following material was taken into evidence from the respondent:

   exhibit T1 – documents prepared in accordance with section 37 of the Administrative Appeals Tribunal Act1975 (the T documents: T1 – T32);

   exhibit S1 – supplementary documents (S1 – S7).

The Application

1. Early in 2000, the applicant spoke with Centrelink staff about being registered under the pension bonus scheme which is operated in accordance with the terms of the Social Security Act1991 (the Act) and the Social Security (Administration) Act1999 (the Administration Act). On 29 March 2000, she was advised by a Centrelink officer that she could not be registered for the scheme because she had previously been paid age pension. On 31 May 2001, she lodged a "Request for Registration for the Pension Bonus Scheme" form and attached a letter detailing her reasons for believing she should be registered under the scheme (see T18, 19). The application was rejected.

2. The applicant again wrote to Centrelink on 29 June 2001 (see T22) with a further request to be registered under the pension bonus scheme. On 4 July 2001, a Centrelink officer replied to the applicant advising her that her application for registration was successful but that she would not be paid the bonus because of previous receipt of age pension (see T23). On 16 July 2001, the applicant sought review of the decision that the bonus would not be paid to her (see T24) and, on 15 August 2001, an authorised review officer confirmed that the applicant was registered under the pension bonus scheme and attached a "Decision Statement" to his letter (see T 26). In that attached document, the officer noted that no claim had been made for the pension bonus and that only a request for registration under the scheme had been made. Nevertheless, the officer advised that the applicant would not qualify for payment because of her previous receipt of age pension.

3. On 26 October 2001, the Social Security Appeals Tribunal affirmed the decision and, on 21 November 2001, an application was lodged for the matter to be reviewed by the Administrative Appeals Tribunal (the Tribunal).
   Applicant's case

4. The applicant submitted that the pension bonus was payable to her. She said that she was the kind of person for whom the scheme was instigated. She said that it was designed to encourage people to stay in the work force rather than to receive the age pension. She had been involved in the work force on a continuous basis and was currently employed even though she had turned 60 years of age on 12 March 1994. There were two occasions, in 1994 and 1995, respectively, when she was forced through illness to take time off work and, because she had no sick leave accrued to her, she applied to the Department of Social Security for sickness benefits. Each occasion was of about one month in duration and, in those periods, she was paid a social security benefit. She was over 60 years of age at the time and the benefit she was paid was an age pension or a widow pension which were discontinued on each occasion when she returned to the work force as her health improved.

5. The applicant also said that her health was again beginning to impact on her and that she was beginning to experience the effects of polio that she had contracted earlier in her life. She also said that she would have financial difficulty if she were limited to the age pension as her sole source of income because of the high costs of rental accomodation and that, if the pension bonus was paid to her, she would be able to purchase a relocatable home and remain independent from the government and others.

6. The applicant considered that she was being unfairly treated in that she had received only small payments of pension in 1994 and 1995 and for only short periods. She considered that the denial of the pension bonus far outweighed the payments that she received in 1994 and 1995. She also considered it to be unfair because ahe had not claimed for the age pension but a sickness benefit. She conceded that the legislation currently does not distinguish between the two as disqualifying her from the pension bonus scheme but submitted that this was only through an amendment to the terms of the scheme which, initially, did not make reference to sickness benefit.

7. The applicant said that she has contacted various politicians including the relevant minister in relation to her position and that, while she had received responses from them, there had been a fundamental misundertstanding in the way that they dealt with her situation. She believed that they were under the impression that she had been in and out of the work force when, in fact, she has remained continuously employed on a full-time basis.
   Respondent's case
   10. Mr. McEwan pointed out that no formal claim had been made by the applicant for the pension bonus but that her initial application had been for registration into the scheme. For a claim to be lodged, he submitted that an approved form was required in accordance with section 16 of the Administration Act.
   11. In any event, he submitted that, if a claim had been lodged, it could not succeed because of the terms of section 92C of the Act. He submitted that this provision precluded the applicant from being qualified for a pension bonus where there had been receipt of age pension before the making of a claim and that the applicant had received that form of pension from 2 November 1995 to 6 December 1995.
   12. Secondly, he submitted that the provision precluded the applicant from being qualified for a pension bonus where, after turning 60 years of age, she received any other social security benefit. He submitted that the applicant had received widow pension from 24 August 1994 to 24 September 1994.
   Consideration
   13. The applicant lodged a request for registration under the pension bonus scheme on 31 May 2001 and has not lodged a formal claim for the pension bonus itself. Part 2.2A of the Act relates to the pension bonus scheme and section 92M makes it clear that an application for registration is not to be treated as a claim. The provision reads:

   "92M Application for registration is not to be treated as a claim
   To avoid doubt, an application for registration as a member of the pension bonus scheme is not to be treated as a claim for the purposes of any law of the Commonwealth."

14. Such a claim must be in an approved form in accordance with the section 16 of the Administration Act and lodged in accordance with section 92G of the Act. In this case, the matter has been treated as if a claim had been made and that has been consistent with the intention of the applicant even though the formal requirements of the process of making the claim were not complied with.
15. The qualifying criteria for the pension bonus are set out in section 92C which reads:

"92C Qualification for 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 (within the meaning of section 1208); 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

(f)the person has not already received:

(i) another pension bonus; or
(ii) a bonus under Part IIIAB of the Veterans' Entitlements Act."

16. In evidence before the Tribunal were Centrelink records which reveal that the applicant was paid age pension in November 1995 (see T9) and widow pension in August 1994 (see T30). This was not disputed by the applicant. I note her submission that the benefit sought at the time was sickness benefit but, nonetheless, the payment types were age and widow pension. The pension bonus scheme was not introduced for some years after those payments were made to the applicant but, even if she had been paid a sickness benefit, that type of allowance is also included in the broad range of disqualifying payments referred to in section 92C of the Act.
17. Receipt by the applicant of the age pension before having claimed for pension bonus precludes her from being qualified under paragraph 92C(b) of the Act. In accordance with sub-section 23(5C) of the Act, the applicant became qualified for the age pension on her 60th birthday on 12 March 1994 and receipt by her of the widow pension after that date precludes her from being qualified under sub-paragraph 92C(e)(ii) of the Act. Unfortunately for the applicant, the fact that she received those payments in 1994 and 1995 for relatively brief periods only does not prevent her position from falling within the disqualifying terms of section 92C of the Act.
Decision
18. The Tribunal affirms the decision under review.

I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Member

Signed:         .....................................................................................
  Associate

Date of Hearing  24 May 2002
Date of Decision  7 June 2002
The Applicant Appeared in Person
Solicitor for the Respondent    Mr McEwan, Departmental Advocate