Rose Benjamin and Secretary, Department of Social Services

[2015] AATA 398

[2015] AATA 398 

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2014/5605
Re	Rose Benjamin
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Mr S Webb, Member
Date	4 June 2015
Place	Sydney

The decision under review is affirmed.

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

Mr S Webb, Member

CATCHWORDS

SOCIAL SECURITY – Age Pension – Pension Bonus Scheme – qualification for pension bonus payment – meaning of ‘pension age’ – payment of Age Pension prior to claim for pension bonus payment – decision affirmed

LEGISLATION

Social Security Act 1991, ss 23, 43, 92C, 92H, 92J

REASONS FOR DECISION

Mr S Webb, Member

4 June 2015

1. Rose Benjamin worked in employment for many years after she reached pension age. She retired at the age of 74 and claimed Age Pension. At the same time she was registered for the Pension Bonus Scheme. But she was denied payment of a Pension Bonus because she had previously been paid a part Age Pension, following the retirement of her husband. Not happy with this decision she has pressed her review rights, thus far without success.

2. Having reviewed the evidence and the law, I am sympathetic to her case. Quite clearly, Ms Benjamin worked in employment to support herself, independent of government income support payments, for many years after she could have retired and drawn the Age Pension. This is laudable.

3. Nevertheless, the issue I must decide is whether she can be paid a Pension Bonus in the particular circumstances.

4. Ms Benjamin says that when she retired from employment on 27 January 2014, she had worked 10 years beyond the “current female Pension Age of 64.5”.[1] She concedes that she was paid “supplementary payments from Centrelink” from 24 September 2000 to 5 August 2002 “on the advice and facilitation of my husband’s Financial Advisor (RetireInvest)”.[2] Ms Benjamin says that she did not know about the Pension Bonus Scheme or that deferring her Age Pension was an option at that time. On the death of her husband her hours of employment increased to the extent that her ‘supplementary payments’ ceased. She says that by continuing in employment without reducing her hours, she did not claim and was not paid roughly $250,000 in Age Pension payments for which, otherwise, she would have been eligible.

   [1] T1 folio 3.

   [2] Ibid.

5. In Ms Benjamin’s submission these circumstances are exceptional and she deserves a more favourable outcome than has been provided thus far.

6. While I am sympathetic to her case, I must apply the legislation that governs the Pension Bonus Scheme.

   LEGISLATION

7. Qualification for payment of a pension bonus must be determined under the Social Security Act 1991 (the Act). Section 92C sets out the rules for qualification –

   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 (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(1D) 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.

8. As can be seen, there are a number of conjunctive criteria, each of which must be satisfied.

9. As to the first criterion, Ms Benjamin was born in March 1939. Under s 43 of the Act, she qualified for Age Pension when she reached ‘pension age’. The term ‘pension age’ is given meaning by s 23(1) –

   23 Dictionary

   (1)   In this Act, unless the contrary intention appears:

   …

   pension age:

   (a) when used in Part 3.14A or 3.14B in relation to a person who is a veteran (within the meaning of the Veterans’ Entitlements Act)—has the meaning that it has in section 5QA of that Act; or

   (b) otherwise—has the meaning given by subsections (5A), (5B), (5C) or (5D).

   …

10. Subsection 23 (5C) applies in Ms Benjamin’s case -

    23 (5C) A woman born within the period specified in column 2 of an item in the following Table reaches pension age when she turns the age specified in column 3 of that item.

Table—Pension age for women
Column 1 Item no.	Column 2 Period within which woman was born (both dates inclusive)	Column 3 Pension age
1.	From 1 July 1935 to 31 December 1936	60 years and 6 months
2.	From 1 January 1937 to 30 June 1938	61 years
3.	From 1 July 1938 to 31 December 1939	61 years and 6 months
4.	From 1 January 1940 to 30 June 1941	62 years
5.	From 1 July 1941 to 31 December 1942	62 years and 6 months
6.	From 1 January 1943 to 30 June 1944	63 years
7.	From 1 July 1944 to 31 December 1945	63 years and 6 months
8.	From 1 January 1946 to 30 June 1947	64 years
9.	From 1 July 1947 to 31 December 1948	64 years and 6 months

[Emphasis added]

1. Applying this Table, Ms Benjamin reached ‘pension age’ when she attained the age of 61 years and six months, in September 2000. She argues that the pension age for women is 64.5 years. As can be seen, that is correct only for women born between 1 July 1947 and 31 December 1948.

   CONSIDERATION

2. The evidence before me clearly reveals that Ms Benjamin was paid Age Pension payments totalling $8,055.92 in respect of the period from 27 September 2000 to 8 August 2002.[3]

   [3] T11 folios 35 and 36.

3. She did not claim the Pension Bonus until she claimed Age Pension on 8 January 2014, pending her then imminent retirement.[4]

   [4] T10 folios 33 and 34.

4. That being so, even though Ms Benjamin was in paid employment until 27 January 2014,[5] she does not meet the first criterion for qualification for a Pension Bonus set out in s 92C(a) – she did not start to receive an Age Pension at or after the time when she made a claim for the pension bonus. Furthermore, she does not meet the second criterion in s 92C(b) – she received an Age Pension for a period before claiming the Pension Bonus.

   [5] T5 folio 20.

5. These are insurmountable obstacles for Ms Benjamin and her claim cannot succeed.

6. The Act does not provide discretion to permit payment of a Pension Bonus in exceptional circumstances, or in the event of any unfairness, even if there has been an administrative error or some other circumstance that might suggest the desirability of a discretionary consideration.

7. For this reason, regrettably, I cannot accede to Ms Benjamin’s request for a more favourable outcome.

8. The decision under review must be affirmed.

9. Before closing, however, there are three further ancillary matters that require comment.

10. Firstly, Ms Benjamin applied for registration under the Pension Bonus Scheme on 8 January 2014, many years after she was first paid Age Pension. The rules governing registration and membership of the Pension Bonus Scheme are set out in Division 3 of Part 2.2A of the Act. For a person such as Ms Benjamin, s 92H relevantly provides –

    92H Timing of application and registration

    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.

11. It is quite clear that Ms Benjamin’s application for registration on 8 January 2014 was not within the mandatory time limits prescribed by s 92H(1)(a) as she qualified for Age Pension on 24 September 2000. The discretion conferred by ss 92H(3) and (4) then come into play. It appears that the discretion was exercised in her favour.

12. On 13 May 2014 a Centrelink officer informed Ms Benjamin that she had been “accepted as a member of the Pension Bonus Scheme” with “registration as an accruing member from 24 September 2000”.[6] It is this letter that forms the primary determination in the present proceedings as it states “However, we will not be able to pay you a bonus because you have previously received income support payments since qualifying for Age Pension”.

    [6] T6.

13. The basis of the registration decision is difficult to comprehend. It does not appear to be consistent with the words and purposes of the legislation, albeit somewhat dense. Section 92J is in the following relevant terms –

    92J Registration

    If an application is made in accordance with this Subdivision, the Secretary must register the applicant as a member of the pension bonus scheme.

    …

14. Ms Benjamin’s application was not in accordance with Subdivision A of Division 3, it required the exercise of a discretion to extend the time for an application for registration, so the mandatory requirement to register falls away. Why Ms Benjamin’s application for registration would be accepted in these circumstances is not clear to me.

15. Furthermore, it appears that Ms Benjamin was provided with information about the Pension Bonus Scheme when she contacted Centrelink in respect of claiming Age Pension on 8 January 2014. She says “It was also at this first encounter with Centrelink (upon my retirement) that I was informed of the Pension Bonus and provided with the associated forms”.[7] If that is true, and I have no reason to conclude otherwise, there is a question why this would occur when Ms Benjamin was many years out of time to register for the Pension Bonus and she could not qualify for payment.

    [7] T1 folio 3.

16. This brings me to the second matter for comment. The present evidence suggests that Ms Benjamin was not provided with information about the Pension Bonus Scheme when she reached pension age and claimed part payment of an Age Pension in September 2000. It was at that time, when she was within the mandatory time limits for registration under the Pension Bonus Scheme, that she should have been given information about it. Then she would have been in a position to make informed choices about her Age Pension claim. If the apparent failure to provide her with appropriate information about the Pension Bonus Scheme is established as fact, this may be considered as an administrative error that bears directly on Ms Benjamin’s present frustration and her failure to qualify for a Pension Bonus payment.

17. And thirdly, I understand that Ms Benjamin may be seeking a recommendation from this Tribunal in respect of an act of grace payment of some kind. If that is correct, I will say immediately that it is not the role of this Tribunal to consider such matters, which are in the purview of the Secretary. It is not for me to consider whether these circumstances might be sufficient for the Secretary to exercise discretion in respect of compensation for defective administration, for example. That said, there are some troubling aspects of Ms Benjamin’s case, to which I have referred above. To my mind, these are sufficient to suggest that some further consideration may be desirable.

    DECISION

18. The decision under review is affirmed.

I certify that the preceding 28 (twenty - eight) paragraphs are a true copy of the reasons for the decision herein of Mr S Webb, Member

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

Associate 

Dated 4 June 2015

Date(s) of hearing	29 May 2015 (on the papers)
Applicant	Self-Represented
Solicitors for the Respondent	Department of Human Services