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

[2010] AATA 175

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 175

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/4781

GENERAL   ADMINISTRATIVE  DIVISION		)
Re		JAMES WATERMAN

Applicant

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

Respondent

DECISION

Tribunal Mr John Handley, Senior Member

Date15 March 2010

PlaceMelbourne

Decision The Tribunal affirms the decision under review.

(sgd) John Handley

Senior Member

SOCIAL SECURITY – Pension Bonus Scheme (PBS) – age pension (AP) received before claim for payments under the PBS – combined claim form lodged – registration with PBS after AP paid ‑ no response to questions relating to PBS – whether applicant entitled to receive payments – whether discretion exists – decision affirmed

Social Security Act 1991 s 92C

Social Security (Administration) Act 1999 ss 16 and 17

REASONS FOR DECISION

15 March 2010 Mr John Handley, Senior Member

BACKGROUND

1.        The Pension Bonus Scheme (PBS) provides persons who have reached retirement age with an incentive to remain in the workforce.  In broad terms, persons who work beyond the age of retirement, have registered with the PBS and have not been paid age pension (AP) will be entitled, at a later date, to the pension bonus (PB).

2.        Mr Waterman reached retirement age on 18 October 2001.  He continued to work for 18 months after that date.  He became unemployed in 2003 and on 17 April 2003 he approached Centrelink to find out whether he would be entitled to newstart allowance (NA).  Mr Waterman was advised by a Centrelink officer that he was not eligible because he had reached retirement age, but he would be eligible for the AP.  He lodged a claim for AP on 1 May 2003 and received payments until 22 June 2004. 

3.        In June 2004, Mr Waterman decided to return to work.  He began working full‑time at a real estate agency.  On 15 November 2008 he ceased work and commenced retirement.  Mr Waterman lodged another claim for the AP on 14 October 2008 and payments have been ongoing with effect from 1 October 2008, despite employment continuing until a later date. 

4.        After finding out about the PBS through a friend, Mr Waterman lodged an application for registration on 19 May 2009.  A Centrelink officer decided on 12 June 2009 that Mr Waterman was not entitled to receive payments under the PBS because he had received the AP before he claimed PB.  The decision was affirmed upon reconsideration by the original decision maker and subsequently affirmed by the Authorised Review Officer (ARO) and the Social Security Appeals Tribunal (SSAT).  On 7 October 2009, Mr Waterman made an application to the Tribunal for review of the SSAT’s decision.

5.      The issue before the Tribunal is whether Mr Waterman is eligible to receive payments under the PBS.

LEGISLATION

6. Section 92C of the Social Security Act 1991 (the Act) sets out the requirements that a person must satisfy to qualify for payments under the PBS.  The only requirements relevant in this case are (a)(i), (b) and (c) which provide that a person qualifies, if the person:

Østarts to receive AP at or after the time the person makes a claim for the PB;

Øhas not received AP before making a claim for the PB; and

Øis registered as a member of the PBS.

7. The requirements for making a claim under the Act are set out in s 16 and s 17 of the Social Security (Administration) Act 1999 (the Administration Act). Section 16 provides that a person makes a claim by lodging a written claim in the approved form. Section 17(1) provides that a claim for the PB must be lodged with the claim for AP unless s 17(3) applies. Section 17(3) does not apply in this case.

EVIDENCE AND SUBMISSIONS

8. There is no dispute that Mr Waterman did not make a claim under the PBS as required under s 17(1) of the Administration Act. There is also no dispute that Mr Waterman received the AP between May 2003 and June 2004 and again from October 2008 to date.  These matters were conceded, properly, by him.  Mr Waterman stated at the hearing that he knows the Tribunal cannot change the law.  His grievance is not with the manner the law was applied in his case but rather with Centrelink’s failure to advise him of his entitlements and obligations.  Mr Waterman argued that he should receive payments under the PBS or compensation for the financial loss he suffered as a result of Centrelink’s omission.  He referred the Tribunal to letters sent to him in which Centrelink acknowledged that he was not advised of certain matters relating to his entitlements such as the income test, the ability to receive a reduced pension while working and the PBS.  Mr Waterman also sought compensation for additional financial loss by Centrelink’s failure to offer him a pension card.  He relied on the ARO’s decision to refer the matter for consideration under the compensation guidelines.

9.        Mr Waterman said that prior to lodging the claim for AP in 2003, he made enquiries about NA.  The Centrelink officer told him that he was not eligible for it because of his age but he may be eligible for AP.  The officer did not mention the PBS or the effect that a payment of AP would have on his entitlements under the PBS.  Mr Waterman said that when he lodged his claim form with Centrelink on 1 May 2003, the customer service officer checked it.  Again, the PBS was not mentioned.

10.      The Tribunal referred Mr Waterman to Part A of the claim form lodged on 1 May 2003 (T4, p 15).  Part A consists of two questions: 1) Are you a registered member of the Pension Bonus Scheme? and 2) Do you wish to REGISTER for the Pension Bonus Scheme? Mr Waterman indicated that he was not a registered member of the PBS.  He did not respond to the second question.  When asked why he did not respond to the question, Mr Waterman said I will not tick something if I know nothing about it.  When asked why he did not ask Centrelink about registration, he said you stand in a long queue and officers are rushed. 

11.      Mr Waterman said that a Centrelink officer, possibly a financial adviser, helped him complete the second claim form for AP in 2008 because he did not have his reading glasses with him.  The claim form included three questions about the PBS.  These questions had a line drawn through them.  Although Mr Waterman could not recall the line, he said that he did not draw it.

12. Ms Weston, who appeared on behalf of the respondent, submitted that Mr Waterman did not satisfy the qualification criteria set out in s 92C (a)(i) and (b) of the Act because he received AP before making a claim for the PB. Ms Weston also submitted that Mr Waterman failed to satisfy s 17(1)(a) of the Administration Act because he did not attach a claim for PB to his claim for AP and lodge the claims together.

13.      Ms Weston relied on the Tribunal’s decision in Re Derrick and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 375. In Re Derrick the Tribunal considered the wording in s 92C(b) of the Act and said (at [28]) that the section:

…speaks of eligibility for pension bonus for a person who “has not received an age pension at any time before making a claim for the pension bonus.”  I see no ambiguity in the words of s 92C of the Act… 

14.      In response to Mr Waterman’s argument that he was not advised about his entitlements, Ms Weston relied on the Tribunal’s finding in Re Derrick that there is no discretion under the Act to depart from the provisions in s 92C even when Centrelink may not have complied with best administrative practice. She stated that this Tribunal is not the appropriate venue to pursue compensation.

CONSIDERATION OF ISSUES

15. Section 92C of the Act is clear on its ordinary meaning. In order to qualify for payments under the PBS, a person must satisfy all the requirements in s 92C. If a person fails to satisfy one requirement under s 92C(a), (b) and (c) the person is ineligible to receive payments under the PBS. The effect of these provisions is that they disqualify a person from receiving payments under the PBS if the person has received the age pension before registering as a member of the PBS. Mr Waterman received AP between May 2003 and June 2004 and again from October 2008 to date. He did not make a claim for the PB, nor was he registered as a member of the PBS. Therefore, he does not satisfy s 92C(a), (b) or (c) of the Act. Consequently, he is not eligible to receive the payments under the PBS. I am satisfied that the decision of the SSAT is correct. The decision under review will be affirmed.

COMPENSATION

16.      Mr Waterman mentioned on a number of occasions that he sought compensation for loss suffered by the inadequate or absent advice or assistance he received from Centrelink officers.  He has applied under the Scheme for Compensation for Detriment caused by Defective Administration.

17.      The Tribunal has no jurisdiction concerning such a matter and does not propose to make any findings, especially in the absence of relevant Centrelink officers or officials.

18.      I am not aware that these proceedings or decision made will interfere with the compensation process Mr Waterman has initiated.  Both parties may be assisted in that process by the evidence summarised above.

DECISION

19.      For these reasons, the Tribunal affirms the decision under review.

I certify that the nineteen [19] preceding paragraphs are a true copy of the reasons for the decision herein of  

Mr John Handley, Senior Member

Signed:          Olympia Sarrinikolaou

Legal Assistant

Date of Hearing  10 February 2010
Date of Decision  15 March 2010
Solicitor for the Applicant             Self-represented
Solicitor for the Respondent        Ms H. Weston, DLA Phillips Fox