Ryan; Secretary, Department of Social Services and (Social services second review) - [2020] AATA 4368

Ryan; Secretary, Department of Social Services and (Social services second review) [2020] AATA 4368 (3 November 2020)
Division:GENERAL DIVISION
File Number(s): 2019/6045
Re:Secretary, Department of Social Services
APPLICANT

AndRoger Ryan
RESPONDENT

Decision
Tribunal:A G Melick AO SC, Deputy President
Date:03 November 2020
Place:Hobart

The Tribunal affirms the decision under review.
.............................[sgd]...........................................
A G Melick AO SC, Deputy President
SOCIAL SECURITY – claim for pension bonus – rejection – should the Secretary extend time for the Respondent to lodge claim for pension bonus – exercise of discretion to extend time – wide discretion exercised – decision affirmed.
Legislation
Social Security (Administration) Act 1999
Social Security Act 1991
Cases
Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Kunnel and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 697
Minister for Home Affairs v G [2019] FCAFC 79
Muir and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 644
Polchow and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 224
Secondary Materials
Social Security Guide
REASONS FOR DECISION
A G Melick AO SC, Deputy President
03 November 2020

The Secretary seeks review of a decision made by the Social Services and Child Support Division of the Administrative Appeals Tribunal (the “AAT Tier 1”) dated 19 August 2019.
The AAT Tier 1 set aside a decision made by an Authorised Review Officer (“ARO”) on 23 May 2019 and in substitution decided that the Respondent, Mr Ryan, should be allowed until 19 July 2018 to make his claim for pension bonus, pursuant to section 23(1)(b) of the Social Security (Administration) Act 1999 (the “Administration Act”).
The Australian Government introduced a Pension Bonus Scheme (the “PBS") on 1 July 1998. The Scheme was closed to new registrations from 1 July 2014. Eligible older Australians who registered in the PBS and who deferred claiming the age pension, instead remaining in the workforce, could receive a tax-free lump sum when they eventually claimed and received the age pension.
To receive a pension bonus, a person had to work a minimum of 12 months from the date of registration and complete at least 960 hours of paid work in the year they registered and in any subsequent years, being an average of 20 hours per week for 48 weeks each year.
The bonus is paid when a person first claimed and received the age pension. But the claim for pension bonus and age pension must be lodged together.
Unless special circumstances exist, a claim for pension bonus must be made within 13 weeks of ceasing to meet the work test.
Section 17(2) of the Administration Act states:
A claim for pension bonus may be made even though it is not certain whether the person will start to receive an age pension at, or after the time when the person makes the claim. The Claim has the effect that is contingent on the person receiving an aged pension.
Mr Ryan retired from work on 5 April 2010 and lodged a claim for age pension on 16 April 2010. But his claim was unsuccessful due to his wife's level of earnings.
Following the rejection of his claim for an age pension, Mr Ryan registered for the PBS; which was backdated until 2004, being the date that he reached pension age. This meant he was registered for the scheme but had not claimed an aged pension or the pension bonus.
Each year thereafter, the Secretary sent letters[1] to Mr Ryan indicating that he was still registered as a member of the PBS and that when he did claim an age pension, he would need to claim the pension bonus at the same time. The letters were in the following terms:
This letter is to let you know that you are still registered as a member of pension bonus Scheme. Your registration commenced from 2 August 2004.
...
When you do claim Age Pension, you will need to claim pension bonus at the same time. Please remember that you will need to lodge your claim for pension bonus within 13 weeks of ceasing work or within 13 weeks from the date you no longer meet the work test...
[1]19 July 2010 (T8/74), 19 July 2011 (T9/75), 19 July 2012 (T10/76), 19 July 2013 (T11/77), 21 July 2014 (T12/78), 20 July 2015 (T13/80), 19 July 2016 (T14/82), 19 July 2017 (T15/84), and 19 July 2018 (T18/94)
Mr Ryan misunderstood the letters to be confirming that he had already correctly applied for and been accepted for the Scheme. He believed that he could not apply for the pension bonus until he was eligible for the age pension, which occurred when his wife retired from work in July 2018.
He then applied for the pension bonus; only to have his claimed rejected on the basis that it should have been made within 13 weeks of him failing the work test (ie: ceasing to work).
The Tribunal must decide whether Mr Ryan should be allowed until 19 July 2018 to make his claim for pension bonus, pursuant to section 23(1)(b) of the Administration Act.
FACTS
The following facts outlined in the Secretary’s Statement of Facts, Issues and Contentions were not in dispute:
[29] … The Respondent was gainfully employed by the businesses known as the Australian Bulk Minerals and Grange Resources ( ‘Grange Resources’) on the date he was registered as a member of the PBS (T16/86) and as such began to accrue full-year bonus periods from that date. He was made redundant by Grange Resources on 22 December 2006 (T16/86).
[30] The Respondent was subsequently employed by Skilled Group Ltd from 23 December 2006 to 16 November 2007. Upon ceasing his employment with Skilled Group Ltd, Mr Ryan was once again employed by Grange Resources on 20 November 2007 until 5 April 2010.
…
[9] On 19 July 2018, the Respondent made a further claim for age pension including a claim for pension bonus (T17/87). This claim noted that the Respondent had ceased working on 10 April 2010 (T17/93).
[10] On 11 November 2018, the Secretary wrote to the Respondent seeking further information in relation to his claim for age pension (T19/96). Attached to this correspondence was a list of questions for the Respondent to complete, relevantly including the following:
2. To be eligible for a Pension Bonus payment, you must apply for the Age Pension and Pension Bonus within thirteen weeks of ceasing to meet the gainful work test.
...
3. You have advised that you ceased employment in 2010. If you have not met the gainful work test since then, you will not be entitled to a Pension Bonus as you have not claimed within the required timeframe.
[11] The Respondent wrote to the Department on 20 November 2018 in response to the correspondence dated 11 November 2018 (T20/100). He stated:
At age 65 (02/08/2004) I registered for pension bonus Scheme. I worked Full Time in excess of 2,000 hours/year (meeting the work test) until I retired from employment on 05/04/2010 aged 70.5 years. My employment history is confirmed by documents submitted with the Pension/Pension Bonus online claim dated 19/07/2018.
On my retirement in 2010 I phoned Centrelink Launceston to inform of my retirement. The lady I spoke to informed me I would not be eligible for the pension due to my wife's income (approx. $55,000/year) and wouldn't be until our combined income assets changed however it was at that time I believe she did suggest I go ahead and apply to formalise the process which I did and was subsequently rejected in June 2010 as evident of letters I received from Centrelink. See attached letters. 1) Rejection of claim dated 01/06/2010, 2) Reconsideration of decision dated 01/06/2010.
At no point during my conversation with the Centrelink lady in 2010 or subsequent letters from Centrelink have I been told or it noted that I am no longer eligible to apply for pension bonus upon my first rejection of the Pension application. Subsequent letters I have received from Centrelink continue to state I remain a registered member of pension bonus Scheme. The letters also state when I claim the Age Pension to claim for pension bonus at the same time. Now my wife has retired and I am eligible for a Pension hence my recent claim for both the age Pension and Pension Bonus.
I registered for pension bonus Scheme in good faith and I worked way in excess of the required 960 hours/year and believed I did not require to do anything further until my circumstances changed which occurred in July this year.
[12] On 4 December 2018, the Respondent’s claim for age pension was granted with effect from 19 July 2018 (T21/101). However, his claim for pension bonus was refused because it was lodged outside of the allowed timeframe (original decision) (T21/104).
[13] The Respondent sought review of the original decision (T26/1434), and on 23 May 2019 an ARO affirmed the original decision (T23/109).
[14] The Respondent sought review of this decision by the AAT1. In a decision dated 19 August 2019, the AAT1 set aside the original decision and decided that the Respondent should be allowed until 19 July 2018 to make his claim for pension bonus, pursuant to paragraph 23(1)(b) of the Administration Act (T24/109).
[15] On 24 September 2019, the Secretary applied to this Tribunal for review of the AAT1 decision (T1/1).
evidence
There is no dispute about the salient points of the evidence set out by the Applicant at paragraphs [8] to [14] above.
Furthermore, Mr Ryan adopted the evidence he gave before the AAT Tier 1 hearing, including the following:
·When asked by the tribunal what he thought on reading the letters, he explained he did not think they applied to him because his wife continued to work and her income precluded him from entitlement to the age pension.
·Mr Ryan noted that Centrelink was aware that he had ceased work in 2010, when he made his first claim for the age pension; and that he was precluded from entitlement to the age pension because of his wife’s earnings. He stated that no one at Centrelink with whom he had contact had explained that he needed to have made his claim back in 2010. He said the his understanding that he had more time was reinforced by the letters Centrelink kept sending him confirming he was still a member of the PBS, despite Centrelink being aware that he had already ceased work.
·The Tribunal (AAT Tier 1) asked Mr Ryan what he would have done if he was aware that his claim needed to be made within 13 weeks of 31 July 2010; given that at all times his wife’s income would have precluded any entitlement to age pension and resulted in him not being qualified for the pension bonus had a claim been made. Mr Ryan indicated that he and his wife had discussed this. They were aware that the pension bonus might be in the order of $38,000. Therefore, had they been aware of the 13 week deadline, his wife probably would have retired from work even though she was some 15 years younger than him. He would have made a claim for the age pension and pension bonus, and once payments were granted, his wife would return to work. Although he would have lost his age pension on her return to work, he stated that he would have been able to retain the pension bonus payment.
Mr Ryan also gave evidence that he was aware of the PBS upon reaching retirement age and it was in his mind when he continued to work thereafter.
Relevant legislation and policy
The relevant legislation is contained in the Social Security Act 1991 (the “Act”) and the Administration Act.
The relevant policy is contained in the Social Security Guide (the “Guide”). The Secretary contended that to ensure consistency in decision-making, the relevant policy should be followed unless there are cogent reasons for departing from it.[2]
[2] Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634
Part 2.2A of the Act provides that the PBS enables people to receive a single sum pension bonus if they stay in gainful employment after reaching the relevant age for payment of age pension and defer claiming age pension.
Section 92A of the Act provides a simple outline of provisions, as follows:
·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 PBS.
·To get a pension bonus, a person must accrue between one and five bonus periods while deferring the age pension.
·Generally, a bonus period runs for one year.
·To accrue a bonus period, the person must pass the work test for the period.
·To pass the work test for one year, either the person, or the person’s partner, must gainfully work for at least 960 hours during that year.
·The amount of a person’s pension bonus depends on the number of accrued bonus periods and the person’s annual rate of age pension. A person may get a bigger bonus by accruing more bonus periods.
Section 92C of the Act further provides as follows:
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 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 pension bonus; and
(c)The person is registered as a member of pension bonus scheme; and
(d)The person has accrued at least one full year-bonus period while registered as a member of 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);
(v)    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.
The Secretary accepted that Mr Ryan was registered as an accruing member of the PBS from the date he reached pension age, being 2 August 2004.
Did Mr Ryan lodge a valid claim for pension bonus?
Section 17 of the Administration Act details what constitutes a valid claim for pension bonus:
Special requirements regarding claims for pension bonus
1A claim for pension bonus must be:
(a)Attached to a proper claim made by the person for age pension and lodged together with that claim for age pension; or
(b)Made in accordance with an invitation under subsection (3); or
(c)The subject of a determination under subsection (5).
Mr Ryan lodged a claim for age pension and pension bonus on 19 July 2018.[3]
[3] T17, T Documents, p 87.
The Secretary accepted that this claim satisfies section 17(1)(a) of the Administration Act and is a valid claim for pension bonus.
Did Mr Ryan lodge his claim within the prescribed time limit?
The Secretary contended the following in its Statement of Facts Issues and Contentions:
[25] Claims for pension bonus must be made within the time limits prescribed by sections 20 to 29 of the Administration Act: subsection 21(1) of the Administration Act. Generally, a person must claim for pension bonus when they fail the work test or when they fail to accrue a bonus period. The specific timeframe for lodging a claim for pension bonus broadly depends on whether the last bonus period accrued by the person was a full-year period or a part-year period.
Accrual of bonus periods
[26] In accordance with subsection 92T(1) of the Act, the first bonus period accrued by The Respondent was the full year period commencing on the date his registration as a member of the PBS took effect (i.e. 2 August 2004). He continued to accrue a full-year bonus period for each full-year period that he passed the work test: subsection 92T(2) of the Act.
[27] A person can also accrue a part-year bonus period if they pass the work test for that part-year period, the part-year period begins immediately after the end of a full-year bonus period, and the part-year period is the last bonus period that accrues to the person: section 92T(3) of the Act.
[28] Section 92U of the Act states that a person passes the work test for a full-year period if they worked at least 960 hours during that year. Section 92V of the Act states that a person passes the work test for a part-year period if the total number of hours worked by the person during that period was at least the pro-rated number of hours, worked out using the following formula:
…
[31] The Respondent’s last bonus period is a part-year bonus period as it involved a continuous period of less than 365 days, and it concluded on 5 April 2010. On this basis and for the purpose of determining the end of that bonus period under subsection 23(1)(a) of the Act, the Secretary contended that end of this part-year bonus period is 5 April 2010.
Timeframe for lodging a claim for pension bonus
[32] The Respondent’s last bonus period was a part-year bonus period, the timeframe for him to lodge a claim for pension bonus is mandated by section 23 of the Administration Act. That section relevantly provides the following:
Last bonus period a part-year period
1If a person’s last bonus period is a part-year period, the lodgment period for a claim by the person for pension bonus is:
(a)the period of 13 weeks beginning at the end of that bonus period; or
(b)if the Secretary allows a longer period – that longer period. However, this subsection does not apply if:
(c)the person is an exempt partnered person (see subsection 24(2)) at the end of the person’s last bonus period; or
(d)the person’s membership of pension bonus scheme becomes non-accruing immediately after the end of the person’s last bonus period; or
(e)the person is a post-75 member of pension bonus scheme and has a post-75 work period (see subsection 26(2)).
To comply with this section, Mr Ryan would have had to lodge his claim for pension bonus on or before 5 July 2010. His claim for age pension and pension bonus was lodged on 19 July 2018, in excess of 8 years after the 13-week period prescribed by section 23(1)(a) of the Administration Act.
Because Mr Ryan did not lodge his claim for pension bonus within the time limit prescribed by the Administration Act, the Secretary contended, because of section 21(1) of the Administration Act, that Mr Ryan was not entitled to receive the pension bonus.
Extension of time to lodge a claim for pension bonus
Section 21(2) and section 23(1)(b) of the Administration Act, permits a longer period in which to claim pension bonus, but the Secretary submitted as follows:
[36] The legislative purpose behind the 13-week time limit for claims was discussed by the Tribunal in Polchow and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 224, [13]:
After some research, I was able to locate the reason why the period of 13 weeks was selected for the purposes ss22 and 23 of the Administration Act as being the time limit within which, after the last bonus period, a claim must be made. In a report prepared by the Senate Community Affairs Legislation Committee dated May 1998, the committee provided the following reasons for the 13 week limit:
DSS and DVA noted, however, that the Scheme provides that a bonus payment can only be made to a person who is able to claim and receive an age (or equivalent DVA) pension within 13 weeks of their retirement or within 13 weeks of failing to meet the work test requirements for a year. The 13 week limits were included to minimise the capacity of people to disperse or reduce their retirement savings following the cessation or reduction in work.
[37] Part 3.4.7.80 of the Guide provides guidance on when it may be appropriate for the Tribunal to exercise its discretion under section 21(2) and section 23(1)(b):
Reasons to accept late claims
The intention of the late claims provisions is to allow acceptance of late claims from members who have not been able to lodge a claim within the time limits due to special circumstances, and not for members who deliberately claim late in order to get a higher bonus. The member should be asked for their reasons for making a late claim for pension bonus and evidence should be provided, where applicable/appropriate.
Examples may include cases where a member:
·         has poor numeracy or literacy skills,
·         was ill,
·         was located in a remote area,
·         performed irregular work that made it difficult for the member to determine the lodgment period,
·         was helping a close family member suffering from a serious illness,
·         has experienced the death of a close family member,
·         had experienced a major disruption to their living arrangements (such as their home being fully or partially destroyed or the member or member's partner moved into a nursing home),
·         was unaware that post 20 September 2009 they could no longer be a non-accruing member whilst their younger partner was working and the working partner was affected by the closure of the scheme to new entrants (a time limit of approximately 12 months would apply to these cases).
The list above is not a full list of acceptable reasons to accept a late claim. Each case should be judged on its merits.
Before accepting a late claim, the delegate of the Secretary should consider how late the claim is, and whether this is reasonable when considering the event/s that caused the member to claim late. For example, if a person was ill for 4 months after ceasing work, it would not be reasonable for the claim to be 12 months late (unless there were other special circumstances that contributed to the delay).
Application of the Guide

The Secretary also submitted that the AAT Tier 1 considered the above extract of the Guide to be “cast in terms that indicate that special reasons or special circumstances must be demonstrated before that discretion is exercised (T2/10)”. On this basis, noting there is no express requirement in section 23(1)(b) for special circumstances to be demonstrated before an extension of time is granted, the AAT Tier 1 concluded that the Guide is “inconsistent with the law and thus unhelpful” and declined to apply it.[4]
[4] T2, T documents, p 11.
Although the Secretary conceded that the Guide refers in part to special circumstances, it was submitted that the wording of the Guide is not cast in such terms to suggest that this requirement must be demonstrated before an extension of time is granted.
The Secretary outlined the following in its Statement of Facts, Issues and Contentions:
[39] The Secretary disagrees that the Guide explicitly states that each case “should be judged on its merits”, and that before granting an extension of time the decision maker “should consider how late the claim is, and whether this is reasonable when considering the event/s that caused the member to claim late.” A fair reading of the Guide as a whole does not support a conclusion that special circumstances must be made out before the discretion to extend time for lodging a claim for pension bonus can be exercised. Rather, the Guide suggests that a decision maker should consider the reasons why the person did not lodge their claim for pension bonus within the stipulated timeframe and decide whether it is reasonable, in all the circumstances, to exercise their discretion to extend time for lodging a claim for pension bonus.
[40] Further, the Guide expressly states, with reference to section 23 of the Administration Act, that the “Secretary has the discretion to allow a longer period in which to claim a bonus if the person's last bonus period is a part-year period”. By contrast, the subsequent paragraph of the Guide states, with reference to section 21 of the Administration Act, that the ”Secretary has discretion to accept any late PBS claim lodged on or after 1 January 2008 (including claims from exempt partnered persons, those non-accruing immediately after the end of the last bonus period and post-75 members) providing there was a special reason for late lodgement of the claim”. In this sense, the Guide expressly contemplates that special circumstances or special reasons are not required for the discretion under section 23(1)(b) to be exercised.
[41] On this basis, the Secretary contends that the Guide is not inconsistent with the law and there were no other cogent reasons for the AAT1 not to follow it. Accordingly, the Secretary submitted that the AAT1 fell into error by disregarding the Guide in the manner that it did.² The Secretary notes that this section of the Guide has been accepted by the Tribunal in similar circumstances in the past (see Muir and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 644, [20]; Kunnel and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 697, [26]).
[42] The Secretary contends, therefore, that this Tribunal should consider the relevant section of the Guide in deciding whether to exercise its discretion to extend the period of time for The Respondent to lodge his claim for pension bonus.
Should Mr Ryan be granted an extension of time?
The Secretary contended that, as noted above:
[43] … the Respondent was required to lodge his claim for pension bonus no later than 5 July 2010. He did not do so until nearly 8 years later. The Secretary contends that the Respondent has not provided evidence of any circumstances which would justify such a significant delay in the lodgement of his claim for pension bonus.
Mr Ryan provided the following reasons for the delay in lodging his claim to the AAT1:
(a)He received correspondence from the Secretary regarding his membership of the PBS, but ‘explained he did not think it applied to him because his wife continued to work and her income precluded him from entitlement to age pension’;[5]
(b)Centrelink was aware that he had ceased employment in 2010, and “no one at Centrelink with whom they had contact, explained that he needed to have made his claim back in 2010”. The “illusion that he had more time was reinforced by the letters Centrelink kept sending him on 19 July each year, confirming that he was still a member of PBS, despite Centrelink being aware that he had already ceased work.”[6]
[5] T2, T documents, p 11
[6] Ibid.
Mr Ryan was sent letters annually on 19 July, from 2010 to 2018, each of which informed him that his claim for pension bonus was required to be lodged within 13 weeks of ceasing work or within 13 weeks from the date he no longer met the work test. Mr Ryan has acknowledged receiving these letters, but despite what the Secretary submitted was the clear and unequivocal wording in each letter, he did not believe their contents were applicable to him. As noted below, I find that the letters were not clear and unequivocal in Mr Ryan’s specific circumstances.
The AAT Tier 1 found that although Mr Ryan was not provided with “incorrect information” he “was not provided with complete information that was relevant to his circumstances when there were opportunities for such information to be given” (T2/12).
The Secretary contended that:
[46] … there is no obligation on the Department to advise customers of their rights and obligations in relation to social security payments,³ and as such, there was no obligation on the Department to advise the Respondent of the relevant requirements at any time. But in any event, the Secretary notes that the letter sent to the Respondent on 25 May 2010 which confirmed his membership of the PBS stated (T6/69):
‘You have signed an acknowledgement of your rights and obligations under pension bonus Scheme and received an information booklet which sets out details of the Scheme.
If you need to know more about pension bonus Scheme, please contact us.’
The Secretary further contended that:
[47] … the Respondent was squarely put on notice of his rights and obligations in relation to making a claim for pension bonus. The fact that he did not understand these rights and obligations is not a sufficient basis to grant an extension of time to lodge a claim (see Muir and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 644, [20]; Kunnel and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 697, [26]), particularly not such a significant extension of time.
Mr Ryan’s claim was lodged over eight years after the passing of the relevant 13-week deadline. The Secretary contended that a lack of understanding of the relevant requirements for the lodging of claims fell short of the circumstances contemplated by the Guide to support or enliven the exercise of a discretion to extend the time in which to lodge his claim for a pension bonus.
The Secretary contended that, contrary to the AAT Tier 1 findings, granting such a significant extension of time is not “in the interests of justice”; nor is it “more consistent with the broad pension bonus scheme”. The Secretary contended at [49] of their Statement of Facts, Issues and Contentions that:
To grant such a lengthy extension of time simply because the Respondent failed to understand the requirements for lodging a claim would be unfair to other members of the PBS who did comply with the prescribed time limits, and would be equally unfair to those whose claims for pension bonus were not granted because they failed to comply with the prescribed time limit.
Respondent's submissions
Mr Ryan maintained that he was misled by the communications he received from the Secretary.
When I indicated that I was not finding this an easy matter, he responded in a manner for which I have some sympathy:
Well, if it's hard for you, it must be hard for me.
I consider that the Secretary's communications in the circumstances of this case would confuse many people; and I accept that Mr Ryan’s belief was truly held as a result of the confusion caused by the abovemenitoned communications.
Findings
I agree with the Secretary’s submissions to the effect that Mr Ryan was required to lodge his claim for pension bonus before 5 July 2010 and in fact did not lodge it until the 19 July 2018.
The Secretary has correctly set out the law in their submissions as referred to above; but concedes that I have a wide discretion in this matter. Although, the fact that the application was made eight years out of time strongly mitigates the exercise of such discretion.
The substance of the cases upon which the Secretary relies is that the Tribunal should apply the abovementioned policy unless there are cogent reasons not to do so. In Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, Brennan J stated the following at pages 640 and 645:
[640] There are powerful considerations in favour of a Minister adopting a guiding policy. It can serve to focus attention on the purpose which the exercise of the discretion is calculated to achieve, and thereby to assist the Minister and others to see more clearly, in each case, the desirability of exercising the power in one way or another. Decision-making is facilitated by the guidance given by an adopted policy, and the integrity of decision-making in particular cases is the better assured if decisions can be tested against such a policy. By diminishing the importance of individual predilection, an adopted policy can diminish the inconsistencies which might otherwise appear in a series of decisions, and enhance the sense of satisfaction with the fairness and continuity of the administrative process.
…
[645] When the Tribunal is reviewing the exercise of a discretionary power reposed in a Minister, and the Minister has adopted a general policy to guide him in the exercise of the power, the Tribunal will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case. Where the policy would ordinarily be applied, an argument against the policy itself or against its application in the particular case will be considered, but cogent reasons will have to be shown against its application, especially if the policy is shown to have been exposed to parliamentary scrutiny.
In Minister for Home Affairs v G [2019] FCAFC 79 at [65] the court noted:
[65] The breadth of the discretion in s 24(1) is not inimical to the adoption of an executive policy, even a detailed executive policy, to guide the exercise of the discretion. To the contrary, the breadth of the discretion tends to support the view that there is no inconsistency between section 5.12.5 of the Instructions and the statute. Moreover, the adoption of a policy in such a case promotes values of consistency and rationality in decision-making, and the principle that administrative decision-makers should treat like cases alike: see Plaintiff M64 at [54].
Having considered all of the evidence, I am satisfied that Centrelink had, within its possession, information that from 16 April 2010 Mr Ryan was not employed. However, despite that information, when his registration as a member of the PBS was accepted on 25 May 2010, he was not advised that the time period for making his claim to the PBS was already limited by the fact of him ceasing employment. Although not given incorrect information, I find that Mr Ryan was not provided with information relevant to his situation despite there being opportunities for the Secretary to so do. It is all very well to submit that Mr Ryan should have been aware of the law, but I consider the law in this area to be very difficult for a layman and the letters sent to him confusing, bearing in mind that the Secretary was well aware that he had already made an unsuccessful claim for an age pension in 2010.
In fact, the letters were not only confusing but were, in reality a nonsense, as far as Mr Ryan’s situation was concerned. This is because the first letter dated 19 July 2010 came some 14 days after the expiration of the time in which he could apply for the pension bonus.
The intention of the PBS is to encourage people of pension age to keep working rather than claiming an age pension as soon as they qualify. Mr Ryan continued to work for more than five years after he would have qualified for the age pension if his wife had not been working; and, accordingly, was the type of person that the scheme was intended to benefit.
I do not accept that to allow Mr Ryan the extension requested would be unfair to those who complied with the time limits or had claims rejected because they failed to comply with such limits.
There was no evidence before me of any other case with similar circumstances to those present in Mr Ryan’s matter; and there was also no evidence of any deleterious effects upon the scheme, or those within it, should Mr Ryan’s claim be accepted.
In my view, even when considering the guidelines, and the decisions in Drake and G referred to above, this is an exceptional case; which justifies exercising a wide discretion in Mr Ryan’s favour in order to to give effect to the intentions behind the legislation creating the scheme, bearing in mind the confusion referred to above created by the letters sent to Mr Ryan in July each year.
Accordingly, the Tribunal affirms the decision under review.

56. I certify that the preceding 55 (fifty-five) paragraphs are a true copy of the reasons for the decision herein of A G Melick AO SC, Deputy President.

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

Dated: 03 November 2020

Date of hearing: 24 February 2020

Solicitor for the Applicant: Ms A Burgess

Respondent: In person

Date of hearing:	24 February 2020
Solicitor for the Applicant:	Ms A Burgess
Respondent:	In person