Stewart and Secretary, Department of Family and Community Services

[2005] AATA 101

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 101

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2004/501

GENERAL ADMINISTATIVE DIVISION		)
Re		RALPH STEWART

Applicant

And SECRETARY, DEPARTMENT
OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Senior Member Peter M McDermott

Date4 February 2005  

PlaceBrisbane

Decision The Tribunal sets aside the decision of the Social Security Appeals Tribunal and remits the matter to the respondent with the direction that the duly completed Claim for Pension Bonus form (SA338) of the applicant was lodged with his claim form for an age pension on 17 October 2003.

.................[Sgd]........................

PM McDermott
  Senior Member

CATCHWORDS

SOCIAL SECURITY – pension bonus scheme - whether registered as a member of the pension bonus scheme – whether claim form lodged with age pension claim

Social Security (Administration) Act 1999 s 17, 179

Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 2 ALD 1

Re Mann and Capital Territory Health Commission (No 2) (1983) 5 ALN 368a

Wertheim and Department of Health (1984) 7 ALD 121

REASONS FOR DECISION

4 February 2005   Senior Member Peter M McDermott  

1.      On 9 October 2004 Centrelink had written to the applicant concerning his registration in the Pension Bonus Scheme.  In that letter the applicant was advised that he must lodge his claim for the pension bonus at the same time as he claimed the age pension.

2.      On 16 October 2003 the applicant and his partner completed a claim form for an age pension: document T6. That document contains an attachment checklist which contains Question A1 which was ticked by the applicant to indicate that he was claiming payment of the Pension Bonus.  That document also indicated that the applicant was attaching the Claim for Pension Bonus form (SA338).

3.      The application of the applicant and his partner was received by Centrelink on 17 October 2003.  The respondent submits that the Claim for Pension Bonus form (SA338) was not lodged at this time. 

4. The respondent relied upon a Centrelink record of 17 October 2003 which records the receipt of the claim form but not the Claim for Pension Bonus form (SA338): see exhibit 2. This document was before the Social Security Appeals Tribunal. However, it was not contained in the section 37 documents. The document was tendered during the hearing.

5. Documents that must be lodged by the decision-maker under section 37 of the Administrative Appeals Tribunal Act 1975 (the “T” Documents) are those documents which are considered by the decision-maker to be relevant to the review of the decision by the Tribunal.

6. This Tribunal has previously reiterated, in discussing the importance of the section 37 statement, that “Justice will not be done to applicants unless respondents, who are aware of the facts, or who readily can ascertain the facts, bring to the notice of the Tribunal all matters which the Tribunal ought to take into account”: see Re Mann and Capital Territory Health Commission (No 2) (1983) 5 ALN 368a, cited in Wertheim and Department of Health (1984) 7 ALD 121 at 154.

7. The fact that the document dated 17 October 2003 was not included in the section 37 documents meant that the respondent, who was unrepresented, may not have appreciated that the respondent would rely on the document. This is even though it was later attached to the respondent’s Statement of Facts and Contentions. An unrepresented applicant may place more significance upon a document which is contained in the “T” documents.

8.      The officer who actually made the entries in that Centrelink record of 17 October 2003 was not available to give evidence before the Tribunal.  She was on maternity leave.  That person could not therefore be questioned by the applicant.  In particular, the officer could also not be available to be questioned as to why despite the fact that the claim form indicated that the Claim for Pension Bonus form (SA338) was attached, there was no comment upon the file that the Claim for Pension Bonus form (SA338) was not attached (if that were the case).

9.      In these circumstances, it would not be fair to the applicant to rely upon that document as proof that the Claim for Pension Bonus form (SA 338) was not attached to his claim form.  I also comment upon the fact that the officer, even though unavailable to attend the hearing, did not give any evidence by way of statement.

10.     After the application of the applicant and his partner was received by Centrelink on 17 October 2003, there does not appear to have been any immediate “follow up” by way of letter or telephone call to the applicant to inform him that the indicated attachment was not received.  In my respectful opinion, this does not accord with what Smithers J referred to as “standards of good government”: see Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 2 ALD 1 at 22.

11.     On 26 February 2004 Centrelink wrote to the applicant and requested a “claim for Pension Bonus”.  That letter required the supply of documents “within 14 days after the day on which this letter is given to you”. 

12. It is not entirely clear why that letter was sent. It appears to be an “invitation” under section 17 (3) of the Social Security (Administration) Act 1999.  However, at the hearing the representative for the Department stated that this provision had no application to this case because the age pension claim form did require him to disclose whether he is registered as a member of the pension bonus scheme.  I accept his submission in that respect.

13.     The applicant lodged a Claim for Pension Bonus form (SA338) on 8 March 2004.  There is a notation on the Centrelink file in which the officer rejected the claim because it “was not lodged with the age claim or within 13 weeks”: see document T8, p. 43.  The reference to “13 weeks” is presumably a reference to the claim not being lodged within 13 weeks after the applicant finished work or failed to meet the work test: see, document T8, p. 44.  Although the notation does not indicate how this was calculated.

14.       The applicant in lodging a Claim for Pension Bonus form (SA338) on 8 March 2004 was complying with the time limits specified in the letter from Centrelink of 26 February 2004 which stated that the request was made “under social security law”.  It may have been the case that the request may have been sent in error.

15.     The Social Security Appeals Tribunal accepted that the applicant “honestly believes that the pension bonus scheme claim form was lodged at the same time as his age pension claim”.  This belief is consistent with the applicant having lodged both documents at the same time.  This is consistent with the fact that the applicant, having registered for the bonus, always intended to make a claim for the bonus.  The applicant has also held managerial positions prior to his retirement.

16.     I accept the evidence of the applicant that he lodged the duly completed Claim for Pension Bonus form (SA338) with his claim form for an age pension.  I hold, on the balance of probabilities, that the duly completed Claim for Pension Bonus form (SA338) was lodged with the application for an age pension on 17 October 2003.  The claim form for an age pension discloses that not only had the applicant ticked the attachment checklist, as I earlier mentioned, but that the Claim for Pension Bonus is also ticked on the page of instructions on “How to Claim”.  This appears to be contemporaneous evidence that substantiates the version of the applicant.

17.     At the hearing the respondent also tendered an unsigned statement of Ms Diane Williams, an officer at the Hervey Bay customer service centre.  That statement outlines the steps that are taken when claims and paperwork are lodged at the reception at Hervey Bay.  However, that statement does not outline when the documents are checked to ascertain whether any annexure was attached to any documentation that has been lodged. 

18. I agree with the submission of the respondent that section 179 of the Social Security (Administration) Act 1999 has no application to this case. 

19.     I also wish to state that I have not placed any weight upon the evidence of Mr Thorp, called by the applicant, who, it might be mentioned, had no diary notes or other documentary records to support his evidence.

20.     I wish to record my appreciation for the additional submissions provided by the representative of the respondent.

21.     The Tribunal sets aside the decision of the Social Security Appeals Tribunal and remits the matter to the respondent with the direction that the duly completed Claim for Pension Bonus form (SA338) of the applicant was lodged with his claim form for an age pension on 17 October 2003.

I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Peter M McDermott

Signed:         Camille Banks
  Associate

Date/s of Hearing  10 December 2004 (Maroochydore)
Date of Decision   4 February 2005  (Brisbane)
The Applicant appeared in person
Solicitor for the Respondent     Mr J Howard, Departmental Advocate