Rosenzweig and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2008] AATA 584

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 584

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/1412

GENERAL ADMINISTRATIVE DIVISION		)
Re		WALTER KEVIN ROSENZWEIG

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Senior Member L Hastwell

Date8 July 2008

PlaceAdelaide

Decision The Tribunal affirms the decision under review.

..............................................

L HASTWELL
  (Senior Member)

CATCHWORDS

SOCIAL SECURITY – pensions, benefits and allowances – Age Pension – Pension Bonus Scheme – receiving Age Pension before applying for a Pension Bonus – meaning of “receive” – decision affirmed

Social Security Act 1991 ss 23, 92C

Social Security (Administration) Act 1999 s 17(5)

REASONS FOR DECISION

8 July 2008   Senior Member L Hastwell   

1.      This is an application by Walter Rosenzweig (the applicant) to review a decision of the SSAT of 9 March 2007 which affirmed an earlier decision by Centrelink to refuse the applicant’s claim for a Pension Bonus.

2.      The hearing of the application by this Tribunal commenced on 5 March 2008.  The applicant was assisted at the hearing by his son, Andrew Rosenzweig.  Ms Welfare represented the respondent (the Department). 

3. The applicant gave oral evidence. The Tribunal received into evidence the T documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975. The matter was then adjourned to enable the Tribunal to obtain medical records of the applicant.  The hearing resumed and was completed on 23 April 2008.  The Tribunal also received a written submission from the applicant, along with various annexures.

background facts

4.      The applicant was born in 1932 and he reached pension age in 1997.  His entire working life has been spent as a farmer and he continued to work after reaching pension age.  His farm is in a marginal farming area known as the Murray  Mallee.

5.      The applicant had a limited education and did not continue his education after primary school.  He worked on the family farm thereafter.  He rarely did any writing or filled in any forms and he had no idea how to make an application for Age Pension.

6.      In 2001 his marriage of many years broke down.  His wife left him to live elsewhere and as a result of the property settlement between them, he lost half of his land and 2,000 sheep.  He was also required to make a financial payment to her.  His son, Andrew, who also gave evidence, described his father as suffering a nervous breakdown in 2001 and thereafter he suffered from significant depression and required treatment for the condition.  He was left living on his own on the farm.

7.      For some 18 months prior to being granted Age Pension, the applicant had been trying to get a pension.  He had no idea how to apply for a pension and so he drove to the nearest regional centre office of Centrelink which was at Murray Bridge.  He went to the desk and told them that he was there to inquire about the process of obtaining an Age Pension.  He was told that he needed an appointment and that he could only make an appointment by telephoning the office.  He was sent away.

8.      He then returned to the office at a later time, having made an appointment, and the officer that he was dealing with asked him questions and wanted to know about the farm and then gave him an “armful of papers” to take away with him.

9.      He asked if they could help him with the paperwork, but he was told to go home and prepare the paperwork himself.  Further papers were set to him in the post the next day which added to the task that he faced in making his application.

10.     His evidence was that at that point in time he was so mentally, physically and financially tired that he threw the papers in the box where he put all his other papers that he would give to the accountant when his financial return for the farm had to be completed.  He did not alert his son to the plight he was in.

11.     It appears from his evidence that he made one more visit to the Murray Bridge Centrelink office to try to get a pension, but was still unsuccessful.

12.     During this time he was seeing a doctor and he saw a psychiatrist on a few occasions for his depression.  His medical records subsequently received by the Tribunal confirmed that he was receiving active treatment for depression from at least 2004 onwards.

13.     The applicant’s son, Andrew, then became aware that his father was having difficulty obtaining an Age Pension.  An appointment was made for him to see a rural counsellor and a meeting took place on 15 August 2005 when the application for Age Pension was completed with the counsellor’s assistance.  That document was lodged by the counsellor on 29 August 2005 (T11).  There is a section of that document that enquires as to whether a person has registered or wishes to register for the Pension Bonus Scheme.  That was not filled in other than to tick the box that says that the applicant has not applied for the Pension Bonus Scheme.

14.     The applicant asked the counsellor about the Pension Bonus Scheme and was told that he need not worry about it as he needed to first have the Age Pension granted.

15.     At no stage did the rural counsellor or Centrelink give the applicant any specific advice about the Pension Bonus Scheme.

16.     There was still a considerable delay in the processing of the Age Pension application.  The applicant’s son, Andrew, then became aware that his father needed to actively register for the Pension Bonus Scheme and do so prior to the grant of Age Pension.  He spoke to a person at the Murray Bridge Centrelink office, as a result of which he typed a letter dated 17 October 2005 for his father to sign (T8/37).  In this letter he explained that he was not previously aware of the requirements of the Pension Bonus Scheme and he wished to register.  This letter was received on 20 October 2005.  The applicant’s Age Pension was granted on 21 October 2005 and backdated to the date of application in August 2005.

legislation

17. Part 2.2A of the Social Security Act 1991 (the Act) deals with the Pension Bonus.  A person who qualifies for an Age Pension, but defers claiming that pension, may be eligible for a single lump sum Pension Bonus in certain circumstances.

18. The most relevant provision in this case is contained at s 92C of the Act which provides as follows:

“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.”

19. Section 23 of the Act defines the term “receive” in the following terms:

“receive has the meaning given by subsections (2), (3), (4), (4AA) and (4AB).”

20. Section 23(2) of the Act provides as follows:

“(2)For the purposes of this Act (other than section 735), a person is taken to be receiving a payment under this Act from the earliest day on which the payment is payable to the person even if the first instalment of the payment is not paid until a later day.”

issues

21.     The issue to be determined in this case is whether the applicant received an Age Pension at any time before making his claim for the Pension Bonus.

consideration and application of the law

22. The law is straightforward in this case. If the applicant received an Age Pension at any time before making his claim for the Pension Bonus on 20 October 2005, he cannot be qualified for a Pension Bonus as he would not satisfy the pre-requisite of s 92C(b) of the Act.

23. Section 23(2) deems that a person is receiving a payment under the Act from the earliest day on which the payment is payable to the person even if the first instalment is not paid until a later day. By virtue of having been granted an Age Pension on 21 October 2005 which was backdated to August 2005, the applicant is excluded from consideration for a Pension Bonus. He is deemed by virtue of the legislation to have received Age Pension prior to making his claim for a Pension Bonus.

24.     There is no discretion for the Tribunal to find that there are special circumstances in this case.  There have been amendments to the Social Security (Administration) Act 1999 (the Administration Act) since the applicant made his claim for a Pension Bonus. The insertion of s 17(5) in the Administration Act gives some discretion to backdate a claim for a Pension Bonus. Nevertheless, those provisions specifically apply to claims made after 1 January 2008 and cannot apply in this case.

25.     Regrettably, the Tribunal has no power to do other than affirm the SSAT decision. 

26.     Based on the available evidence, it would appear that the applicant was poorly served by his local Centrelink office.  It is evident from his presentation that he is an elderly gentleman of limited education and one would have expected the Centrelink office in question to provide him with much better service than he received.  The Pension Bonus is potentially a significant payment in this case.  The applicant was in his early 70s by the time he eventually made a claim.  It seems remiss of the Department not to have provided him with the assistance and attention that he requested when he visited the Murray Bridge office.

27.      He needed assistance to make application for an Age Pension and that assistance should have extended not only to assistance with form filling but he should have been provided with timely advice as to the sequence in which he should have made his application.  He attended at the office on three separate occasions and if ultimately his son had not intervened on his behalf, he may still not have received the Age Pension.

28.     He is a vulnerable and elderly member of our community who deserved better advice and support than he received on this occasion.

29.     If indeed he would have been otherwise eligible for a lump sum payment under the Pension Bonus Scheme (ie other than his failure to make a claim in the right sequence) then one would hope that he may be favourably considered for either a Compensation for Detriment caused by Defective Administration (CDDA) payment or an Act of Grace payment in this case.

I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member
L Hastwell

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

Dates of Hearing  5 March 2008 & 23 April 2008
Date of Decision  7 July 2008
Advocate for the Applicant       Andrew Rosenzweig (son)

Advocate for the Respondent   Ms M Welfare

Centrelink Legal Service Branch