Spiro Mallis and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2013] AATA 658

[2013] AATA 658  

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2012/3832
Re	Spiro Mallis
APPLICANT
And	Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT

DECISION

Tribunal	Ms K Hogan, Member
Date	12 September 2013
Place	Perth

Decision Summary

The Tribunal affirms the decision under review.

…(Sgd) K Hogan……
Ms K Hogan, Member

CATCHWORDS

SOCIAL SECURITY - Pension Bonus Scheme - Applicant not Registered During Relevant Period  Applicant Applying for Retrospective Registration for Pension Bonus Scheme - Whether Applicant Satisfied Work Test during Work Periods – Applicant had been in Receipt of Disability Support Pension – Applicant not Eligible for Pension Bonus 

LEGISLATION

Social Security Act 1991

Social Security (Administration) Act 1999
Social Security (Pension Bonus Scheme – Non-Accruing Members) Declaration 2007

SECONDARY MATERIALS

Guide to Social Security Law (12 November 2012) Department of Families, Housing, Community Services and Indigenous Affairs

REASONS FOR DECISION

Ms K Hogan, Member

12 September 2013

BACKGROUND

1. Mr. Spiro Mallis turned 65 years of age on 12 November 2006. On 13 May 2011 he made an application for registration as a member of the Pension Bonus Scheme (PBS).

2. Mr Mallis had been in receipt of Disability Support Pension (DSP) for various periods since 2006.

3. His application for PBS was rejected by primary determination and on internal review by an Authorised Review Officer (ARO) and the Social Security Appeals Tribunal (SSAT).

4. Mr Mallis applied for review to this Tribunal on 25 June 2012.

   ISSUE

5. The issue is whether Mr Mallis’ application to be registered as a member of the PBS should be accepted or rejected.

   EVIDENCE

6. The Tribunal was provided with a number of documents including:

   (a)the section 37 documents;

   (b)written submissions from the applicant and the respondent.

7. The Tribunal heard oral submissions on behalf of the parties.

   THE LEGISLATIVE FRAMEWORK

8. The legislation relevant to this decision is contained in the Social Security Act 1991 (Act) and the Social Security (Administration) Act1999 (Administration Act).

9. The issues are to be determined under Part 2.2A of the Act.

10. Section 92A of the Act provides a simplified outline of the Division of the Act dealing with pension bonus.  The outline explains that a person who qualifies for an age pension but defers claiming that pension may be able to get a lump sum pension bonus subject to certain requirements, including a work test.

11. Qualification for a pension bonus is to be determined under s 92C of the Act.  For a person to be qualified for the PBS they must be registered as a member of the scheme (s 92C(c)). The person must have also not received a social security pension or benefit at any time after being qualified for age pension (s 92C(e)).

12. There is a requirement under s 92H that a person register as a member of the PBS within a 26 week period, namely 13 weeks before reaching pension age and 13 weeks after reaching pension age.  There is a limited discretion to allow for later registration.

13. Section 43(1) of the Act states that a person qualifies for age pension when the person reaches pension age.  Subsection 23(5A) states that a man reaches pension age when he turns 65, if he is born on or before 30 June 1952.

14. Subsections 92H(3) and (4) allow for a late application to be accepted if certain conditions are met which include, relevantly here, that the person meet the work test during each test period that falls within the pre-application period.

15. The pre-application period commences when the person is qualified for the age pension (s 92H(6)) and ends when the person lodges the application (s 92H(5)).  The maximum duration of any test period is one year (s 92U) and, when one test period finishes, the next commences.

16. In this case the test periods are as follows:

    (a)12 November 2006 to 11 November 2007;

    (b)12 November 2007 to 11 November 2008;

    (c)12 November 2008 to 11 November 2009;

    (d)12 November 2009 to 11 November 2010;

    (e)12 November 2010 to 11 November 2011;

    (f)12 November 2011 to 23 December 2011.

17. To meet the work test the person must have worked for at least 960 hours in each test period (s 92U).

    ANALYSIS

18. The evidence before this Tribunal is that between August 2009 and December 2010 Mr Mallis was in receipt of DSP payments which were not adjusted to take into account any income from part-time work.

19. Perusal of the ANZ bank records indicate that there are no deposits during the period referred to at paragraph 16(e) above which would suggest that Mr Mallis satisfied the work test in that period (T11).

20. The Tribunal is satisfied that Mr Mallis did not meet the work test for all of the test periods and that his application to register retrospectively for the PBS must be  rejected.  This is enough to dispose of the application.   

21. There are no special circumstance provisions in the Act or the Administration Act which might enliven the exercise of any discretion regarding registering late for the PBS.

22. There is no flexibility in the legislation concerning receipt of a pension prior to registration for the PBS.

23. Whilst Mr Mallis has only attempted to register for the PBS he should be aware that the qualification criteria are conjunctive and each must be satisfied for a pension bonus to be payable.  It is clear that receipt of a social security benefit, at any time before claiming the pension bonus is disentitling.

24. Mr Mallis received DSP for various periods from 2006 which is well before he lodged the application for registration under the PBS and does therefore not qualify for a pension bonus, even if he had successfully registered for PBS.

25. This Tribunal notes, as was observed by the SSAT, that there have been a number of errors made by Centrelink in relation to this matter and it appears that Mr Mallis was misinformed by Centrelink officers who did not understand the scheme.  This Tribunal is also sympathetic to Mr Mallis' position but is constrained by the legislation and is unable to overturn the decision under review.

26. The Tribunal has no option but to concur with the earlier decision makers.  The Tribunal does not have discretion to ignore the criteria set out in the Act.

    DECISION

27. The Tribunal affirms the decision under review.

I certify that the preceding 27             (twenty-seven) paragraphs are a true copy of the reasons for the decision herein of Ms K Hogan, Member.

...(Shd) T Freeman...........................

Associate

Dated   12 September 2013

Date of hearing	12 July 2013
Applicant	In Person
Representative for the respondent	Ms Gallagher Sparke Helmore