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

[2009] AATA 141

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 141

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/4621

GENERAL ADMINISTRATIVE DIVISION		)
Re		STANKO SUSNJARA

Applicant

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

Respondent

DECISION

Tribunal Ms N BELL

Date6 March 2009

PlaceSydney

Decision The decision under review is affirmed

.....................SGD.........................

Ms N Bell
  

Senior Member

CATCHWORDS

SOCIAL SECURITY – Pension Bonus Scheme – Two claims – First claim refused as age pension not payable at time of claim – Second claim – Whether qualified for pension bonus at time of claim or 13 weeks after – Decision under review is affirmed.

Social Security Act 1991, s 92C, 92L, 92L (a)

Social Security (Administration) Act 1999, ss 17(1), s22, 23, & 25

REASONS FOR DECISION

6 March 2009

Ms N BELL , Senior Member        

1.        Mr Stanko Susnjara claimed age pension and pension bonus under the Pension Bonus Scheme (PBS) in December 2006. Both claims were rejected by Centrelink on the basis that the value of Mr Susnjara’s assets exceeded the allowable limit for payment of age pension. In April 2007 Mr Susnjara made a second claim for age pension but not for PBS. He was granted age pension at a reduced rate from 28 March 2007 because his asset threshold had changed. Mr Susnjara objected to the date of the commencement of his age pension determined by Centrelink and requested arrears from June 2006.  He lodged an appeal with the Social Security Appeals Tribunal (SSAT) on 1 August 2007. On 7 November 2007 the SSAT affirmed Centrelink’s decision to pay Mr Susnjara age pension from 28 March 2007.

2.        On 22 June 2007 Mr Susnjara made a claim, dated and signed 15 June 2006, for PBS from 23 September 1999 to 15 June 2006.  However his pension bonus claim was rejected on 27 December 2007 on the basis that the claim was made more than 13 weeks after Mr Susnjara stopped working in June 2006. A Centrelink Authorised Review Officer (ARO) affirmed that decision on 26 June 2008. On 28 August 2008 the SSAT affirmed the ARO’s decision. Mr Susnjara now seeks a review of that decision.

ISSUE

3.        The issue to be considered is whether Mr Susnjara qualified for the pension bonus under the Social Security Act 1991 (the Act) and the Social Security (Administration) Act 1999 (the Administration Act) when he lodged his second claim for the bonus on 22 June 2007. In particular, I must consider whether the determination of his previous claim for pension bonus in December 2006 precludes his eligibility for the payment and, if not, whether he meets other eligibility and qualification requirements.

DETERMINATION OF PREVIOUS CLAIM

4.        In order to successfully claim a pension bonus, the person must be registered as a member of the PBS.  There is no dispute that Mr Susjnara registered for the PBS in February 2005 and his registration was backdated to 1999.

5. However, section 92L of the Act provides that membership of the PBS is cancelled in the following circumstances:

92L  Cancellation of membership

A person’s membership of the pension bonus scheme is cancelled if:

(a)       the person’s claim for pension bonus is determined; or

(b)       the person starts to receive:

(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; or

(c)       the person does not make a proper claim for a pension bonus when the person claims age pension; or

(d)       the person requests the Secretary, in writing, to cancel the person’s membership.

6. Mr Susnjara made a claim for pension bonus in December 2006 and that claim, along with his claim for age pension, was rejected. This determination, in accordance with section 92L(a), had the effect of cancelling his membership of the PBS, thereby making him ineligible for the pension bonus.

OTHER ELIGIBILITY REQUIREMENTS

7. Even if the operation of section 92L were not a bar to Mr Susjnara’s eligibility for the pension bonus, other eligibility requirements stand in his way.

8.        Mr Susnjara said that the reason his first claim for age pension and PBS in 2006 was rejected by Centrelink was because they made a mistake with the valuation of a block of land owned by him. He said that, instead of Centrelink valuing just his block of land, it also took into account and valued the vacant block of land next door, which does not belong to Mr Susnjara and is the reason why the value of his assets at the time exceeded the limit.

9. Section 92C of the Act provides that a person is eligible to receive the pension bonus if, among other things, the person has not received age pension before his claim for pension bonus. Mr Susnjara began to receive age pension on 28 March 2007 and claimed the pension bonus (the second claim) on 22 June 2007.

10.      Mr Susnjara was a self-employed building contractor for 43 years. He said he finished full-time work, as a builder, on 30 June 2006, but also said he was still trying to secure a building project up until 10 December 2006, providing quotes to build two houses and attending meetings and making revisions to plans in the period from June 2006 until December 2006.  However, the contract fell through in mid - December 2006 and Mr Susnjara decided then to close down his company and apply for the age pension and PBS.

11. The combined effect of sections 22, 23 and 25 of the of the Administration Act is that a person must lodge a claim for pension bonus within a period of 13 weeks after the person ceases to be an accruing member of the PBS, ie, within 13 weeks after the person ceases work. Mr Susjnara initially advised Centrelink that he ceased working 30 June 2006 – almost one year before his second claim for the pension bonus on 22 June 2007. Even on the basis of Mr Susnjara’s evidence to the Tribunal that he ceased work in December 2006, he had only until 18 March 2007 to make a claim.

12. Finally, section 17(1) of the Administration Act provides that a claim for pension bonus must be attached to a claim for age pension and both must be lodged together with Centrelink. Two months passed between Mr Susnjara’s claim for age pension in April 2007 and his claim for pension bonus in June 2007.

13. On the basis of these requirements alone, and aside from the operation of section 92L, Mr Susnjara does not qualify for the pension bonus.

14.      The PBS is generally a widely misunderstood payment and its requirements can be confusing to potential claimants.  I acknowledge that Mr Susnjara was confused by the guidelines and other literature on the scheme and that he is of the view that it should be the subject of widespread television advertising to ensure a proper understanding of the scheme by potential claimants.  I also acknowledge that Mr Susnjara has contributed to the Australian community for the past 28 years and he is very disappointed and frustrated by the technical requirements of the legislation.

15.      However, for the reasons set out above, he does not meet the requirements for eligibility for the payment.

decision

16.      The decision under review is affirmed.

I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N BELL

Signed:         ................................SGD.....................................................
  Associate: Felicia Daniele

Date/s of Hearing   21 January 2009
Date of Decision   6 March 2009
Counsel for the Applicant           N/A
Solicitor for the Applicant            Self-Represented
Counsel for the Respondent       N/A
Solicitor for the Respondent       Mr Lozynsky, Centrelink Legal Services Branch