Walsh and Secretary, Department of Family and Community Services

[2003] AATA 163

Administrative

Appeals

Tribunal

 

DECISION [2003] AATA 163

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   N2002/408

GENERAL ADMINISTRATIVE  DIVISION		)
Re		Betty Walsh

Applicant

And Secretary, Department of Family and Community Services

Respondent

DECISION

Tribunal Mr RP Handley, Deputy President

Date30 January 2003

PlaceArmidale

Decision The Tribunal affirms the decision under review.

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

RP Handley
  Deputy President 

DECISION

30 January 2003 Mr RP Handley, Deputy President          

This is an application by Betty Walsh, the applicant, for a review of a decision of the Social Security Appeals Tribunal made on 6 February 2002 affirming a decision of an authorised review officer and a delegate of the Secretary, Department of Family & Community Services, the respondent, that Mrs Walsh was not qualified for a pension bonus under the pension bonus scheme.  At the hearing held in Armidale, Mrs Walsh represented herself and the respondent was represented by Susan Mantaring of Centrelink.

The evidence before the Tribunal comprised the documents produced pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 together with the documents tendered by the parties. Mrs Walsh, her son Glen Walsh, and her daughter-in-law Robin Convery gave oral evidence.

Background

Mrs Walsh was born on 6 November 1930 and is aged 72.  She worked as registered nurse until her retirement on 6 December 2000.  During the last 9 years of her career, she worked for the Strathlea Nursing Home in Armidale.

Mrs Walsh reached pension age on 6 November 1990.  In February 1995, she began caring for her brother, Leon Milne who suffered from emphysema, liver disease, prostate cancer and other minor ailments.  As a consequence, Mrs Walsh reduced her hours worked to approximately 8 hours per week and claimed a pension.  She was paid age pension from 9 February 1995 with the first payment being made on 23 February 1995.  Her pension was cancelled with effect from 23 January 1997 because of her earnings when she increased her hours worked.

Mrs Walsh was paid a carer payment from 7 December 2000.  Her brother Leon died on 30 January 2001 and she was paid carer bereavement payment until 19 March 2001.  From 20 March 2001, she was transferred to and paid age pension.  On 25 May 2001, Mrs Walsh applied to register under the pension bonus scheme.  On 4 June 2001, Centrelink wrote to her stating that she could not be paid a pension bonus:

... because you have not accrued at least one full year bonus period.

This was confirmed on 30 August 2001 after an internal review which essentially stated that Mrs Walsh was not qualified for a pension bonus because she had already received an age pension since reaching pension age.  At Mrs Walsh's request, the decision was reviewed by an authorised review officer who, on 3 October 2001, affirmed the decision.  Mrs Walsh sought further review by the Social Security Appeals Tribunal who, on 6 January 2002, also affirmed the decision.

On 21 March 2002, Mrs Walsh lodged an application for a review by this Tribunal.

Applicable Legislation

The relevant legislation is the Social Security Act 1991 (“the Act”). The qualifications for a pension bonus are set out in section 92C. Pursuant to subparagraph (b), a person is not qualified for a pension bonus if:

the person has not received an age pension at any time before making a claim for the pension bonus; …

The applicant contended that in February 1995 she could have applied for a carer pension rather than an aged pension had she been aware of this.  Subsections 15(1) and 15(2) of the Social Security (Administration) Act 1999 set out the circumstances in which a claim for one category of Social Security payment can be deemed to have been made for another Social Security payment:

(1)        For the purposes of the social security law, if:

(a) a person makes a claim for a social security payment; and

(b) the claim is an incorrect claim; and

(c) the person subsequently makes a claim for another social security payment for which the person is qualified; and

(d) the Secretary is satisfied that it is reasonable that this subsection be applied;

the person is taken to have made a claim for that other social security payment on the day on which he or she made the incorrect claim.

(2) For the purposes of this section, a claim made by a person is an incorrect claim if:

(a) the claim is for a social security payment, other than a supplementary payment; and

(b) when the claim was made, the person was not qualified for the payment claimed but was qualified for another social security payment, other than a supplementary payment.

Oral Evidence

Mrs Walsh (the Applicant)

Mrs Walsh stated that her brother, Leon Milne developed emphysema, liver disease, prostate cancer and other minor ailments.  Leon was living on his own in a rented house on property called St Josephs near Walcha about 40 to 50 kilometres from where Mrs Walsh lived in Uralla.  He had been a good friend of her husband's and when Leon became too sick to live alone she decided to take care of him..  Her son Glen and his wife Robin, who lived nearby, were also very supportive.

After Leon came to live with Mrs Walsh he once again tried to live independently by going to share a house with a mate, Andrew Leggett at South Kentucky which was closer to where Mrs Walsh lived.  However, this only lasted a day.  Mrs Walsh got a call from Leon in the early hours of the morning and she and Glen went to collect him and bring him back to Uralla.

When Leon began living with Mrs Walsh permanently, she decided to reduce her working hours at Strathlea Nursing Home to one shift a week from 2.30pm to 11.00pm, usually one day at the weekend.  She had previously been working full time.  With the reduction in her hours, her income was significantly reduced so she went to the Department of Social Security to apply for a pension.  She explained to the officer that she was caring for her brother and had reduced her working hours.  The officer told her that she could get income assistance and could go on the pension.  Mrs Walsh did not know about different categories of pension at that time and was not aware of the carer pension.

From February 1995 to January 1997, Mrs Walsh received a part age pension.  In January 1997, Leon was feeling better so she increased her hours and was working full time again with the consequence that her pension was cancelled.  However, by late 2000 Leon's condition had deteriorated again and she was getting very tired with working full time and looking after him.  So a month after her 70th birthday she retired.

Mrs Walsh went to the Centrelink office, explained her circumstances and they put her on a carer payment which was what it was called at that stage in 2000.  This was paid until after Leon died on 30 January 2001.  In March 2001, she was automatically transferred to the age pension.  Mrs Walsh said she found out about the pension bonus scheme when a friend showed her a newspaper cutting dated 8 April 2001.  When she went to see her local MP about this even he was not aware of it.  Mrs Walsh applied for the pension bonus but her claim was rejected.

Glen Walsh

Mr Walsh said that his uncle, Leon Milne needed to get away from time to time, so he would go and visit his friend Andrew Leggett or he would visit Mr Walsh and his wife.  This would often end with Leon phoning Mrs Walsh at the end of the day and asking her to come and get him because he was breathless.  Mr Walsh said Leon liked to visit because he has a 20 acre property and trotting horses in which Leon was interested.  However, as Leon got sicker, he could not even walk outside the house to see the horses.

Robin Convery

Ms Convery said Leon was a proud man.  He had been in the police force for many years and was a big man, strong and independent.  He found it very frustrating to be ill and did not like being a burden on his sister.  So he liked to go off occasionally to assert his independence and give Mrs Walsh a break.  These were purely visits to friends.  However, eventually he could not even cope with these visits.

Submissions

Respondent

Ms Mantaring, for the respondent, submitted that Mrs Walsh was not qualified for a pension bonus because, pursuant to section 92C of the Act, she had previously received the age pension between February 1995 and January 1997. Ms Mantaring said that in 1995 departmental officers could not have predicted that the pension bonus scheme would be introduced in 1998 and there was no breach of duty on their part. Mrs Walsh was placed on the age pension for which she was qualified.

Ms Mantaring submitted that Mrs Walsh could also not be deemed to have applied for the carer pension in 1995 because this is precluded by subsections 15(1) and 15(2) of the Social Security (Administration) Act 1999 which only allows deeming in respect of an “incorrect claim”. The claim by Mrs Walsh in 1995 was not incorrect because she was then qualified for the age pension.

Applicant

Mrs Walsh said she should have been placed on carer pension in 1995 because she was caring for her brother and qualified for that pension.  However, she was not aware of the existence of the carer pension at that time.  With regard to the pension bonus scheme, her delay in applying for a pension bonus was because she was not aware of the scheme.  Nobody seemed to know very much about it, including her Member of Parliament.

Consideration of the Law and Findings

The issue for the Tribunal to determine is whether Mrs Walsh was qualified for the pension bonus. As stated above, section 92C(b) requires that to be qualified:

the person has not received an age pension at any time before making a claim for the pension bonus;  …

The undisputed evidence is that Mrs Walsh received an age pension between February 1995 and January 1997 and is thereby disqualified. Mrs Walsh submits that she should have been paid the carer pension during that period because she was qualified for that pension: had the carer pension been paid to her rather than the age pension then she would not have been disqualified by section 92C(b).

As Ms Mantaring pointed out, the departmental officers who handled Mrs Walsh's claim in February 1995 could not have predicted that the pension bonus scheme would be introduced in 1998.  However, even if it were accepted that Mrs Walsh should have been paid the carer pension in 1995, as Ms Mantaring also pointed out subsections 15(1) and 15(2) of the Social Security (Administration) Act 1999 preclude such deeming because Mrs Walsh did not make an incorrect claim. At that time, she was also qualified for the age pension, having reached pensionable age on 6 November 1990.

The Tribunal acknowledges Mrs Walsh's frustration with having had her claim for a pension bonus refused when, in her experience, few people seemed to be aware of its existence.  Moreover, had she been paid carer pension in 1995, for which she may have been qualified, she might not have been disqualified from receiving the bonus.  However, in the Tribunal's view, there is no discretion which would enable this situation to be rectified.  The meaning of subsections 15(1) and 15(2) of the 1999 Act are clear and do not permit Mrs Walsh's 1995 claim to be deemed a claim for a carer pension because she was qualified for an age pension at that time.  The Tribunal must, therefore, affirm the decision under review.

The Tribunal has not dealt with other issues as to Mrs Walsh's qualification of the pension bonus related to her receiving age pension from 20 March 2001 and to the requirement for a one full-year bonus period while registered for the scheme, because in the Tribunal's view Mrs Walsh's receipt of age pension between February 1995 and January 1997 is conclusive in terms of disqualifying her from receipt of a pension bonus.

I certify that the 6 preceding pages are a true copy of the oral decision herein of Mr RP Handley, Deputy President

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

Date of Hearing  30 January 2003
Date of Decision  30 January 2003
Representative for the Applicant               Self represented
Representative for the Respondent          Ms Mantaring