Social Security (Top Up of Pension Bonus — Specified Circumstances) Determination 2018

Administered by Department of Social Services

Legislation au F2018L00440 In force Legislative Instrument

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EXPLANATORY STATEMENT

 

Social Security Act 1991

Social Security (Top up of Pension Bonus — Specified Circumstances) Determination 2018

 

Purpose

 

This instrument is made under subsection 93L(6) of the Social Security Act 1991 (the Act), and specifies certain circumstances in which a pension bonus can be topped up.

 

The pension bonus amount is calculated on the basis of the amount of age pension on the person’s start day for the bonus. Section 93K of the Act provides that a person’s pension bonus can be topped up if a determination is made to increase the person’s age pension and that determination takes effect within the 13 weeks following the start day for the person’s pension bonus. Under that provision, a top up can only be made if the rate determination is made because of a decrease in the value of the person’s income, assets or both.

 

The purpose of section 93L of the Act is to allow for top ups of pension bonus to be made in other specified circumstances. This instrument specifies the circumstance where a person’s age pension rate is increased after 13 weeks from the start day (a top up under section 93K is therefore not possible).

 

Subsection 93L(6) of the Act allows the Secretary of the Department of Social Services to, by legislative instrument, specify circumstances in which a person’s rate of age pension is increased for the purpose of enabling the Secretary to increase the amount of a person’s pension bonus. 

 

This determination specifies that a top up of pension bonus will only occur in a specified circumstance where all conditions are met. The conditions are that:

  • A person’s rate of age pension is increased with effect from a day that is more than 13 weeks after the day the person receives pension bonus (the start day) because of a decrease in value of the person’s assets, income or both; and
  • The determination takes effect on a day that is more than 13 weeks after the start day; and
  • Within 13 weeks of the start day:
    • an administrative error was made in the determination of the relevant rate; or
    • incorrect information had been given to the Secretary by the person about the value of their assets, income or both.

 

The effect of the determination is that, if the circumstance applies to a person, the Secretary is able to determine that the person’s pension bonus can be increased to an amount limited by subsection 93L(3) of the Act. This amount is not greater than the difference between the amount of pension bonus the person received on the start day and the amount that would have been payable to the person as a pension bonus if the error by the Secretary or by the person had not been made.

 

This determination will commence on 1 April 2018 following the repeal of the Social Security (Top up of Pension Bonus — Specified Circumstances) Determination 2007 on that date. The 2007 determination ceases operation on 1 April 2018 due to the sunsetting provisions in the Legislation Act 2003. This determination is substantially in the same terms as the 2007 determination.

 

This instrument is a legislative instrument for the purposes of the Legislation Act 2003.

 

Commencement

 

This determination commences on 1 April 2018.

 

Consultation

 

The Department of Human Services and the Department of Veterans’ Affairs were consulted during the preparation of this instrument.  This was done to ensure a co-ordinated and consistent approach to the treatment of calculating increases in pension bonus amounts payable to persons under both the social security law and the Veterans’ Entitlements Act 1986.

 

This instrument can only have a beneficial or neutral impact on persons who are members of the pension bonus scheme.  Public consultation was therefore seen as unnecessary.

 

Regulatory Impact Statement

 

This instrument does not require a Regulatory Impact Statement (RIS). This instrument will have no more than a minor regulatory impact on business, community organisations or individuals and will have no, or minimal, compliance costs or competition impact.  It is not expected that any compliance costs will be incurred by business as a result of the effect of this instrument.

 

Explanation of Provisions

 

Section 1 states the name of the Determination.

 

Section 2 states that the Determination commences on 1 April 2018. 

 

Section 3 states that the authority for making this Determination is subsection 93L(6) of the Social Security Act 1991.

 

Section 4 contains the interpretation of the term Act as it is used in the Determination.  It means the Social Security Act 1991.

 

Section 5 provides that each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.

 

Section 6 specifies the circumstance.  The circumstance includes criteria about the nature and date of effect of the determination, and whether the determination was affected by a rate calculation error, or incorrect information.

 

The special circumstance criteria will be met if:
 

  • a rate determination for age pension is made and that determination has effect due to the operation of the date of effect provisions in Part 3, Division 9 of the Social Security (Administration) Act 1999 on a day that is more than 13 weeks after the start day of the person’s pension bonus; and
  • that determination is made due to a reduction in the value of the person’s income, assets or both; and
  • the determination is made because either:

 

  • an administrative error was made in the determination of the relevant rate within 13 weeks of the start day of the person’s pension bonus; or
  •  
  • the person, within 13 weeks following the start day of the person’s pension bonus, gave the Secretary incorrect information about the value of the person’s assets, ordinary income or both.

 

Schedule 1 repeals the Social Security (Top up of Pension Bonus — Specified Circumstances) Determination 2007 that was due to sunset on 1 April 2018.


Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Social Security Act 1991

Social Security (Top Up of Pension Bonus — Specified Circumstances) Determination 2018

 

 

The Social Security (Top Up of Pension Bonus — Specified Circumstances) Determination 2018 is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

 

Overview of the Legislative Instrument

 

This Determination is made under Section 93L(6) of the Social Security Act 1991. 

 

Section 93K of the Social Security Act 1991 (the Act) provides that a person’s pension bonus can be topped up if a determination is made to increase the person’s age pension and that determination takes effect within the 13 weeks following the start day for the person’s pension bonus. Under that provision, a top up can only be made if the rate determination is made because of a decrease in the value of the person’s income, assets or both.

 

The purpose of section 93L of the Act is to allow for top ups of pension bonus to be made in other specified circumstances. This instrument specifies the circumstance where a person’s age pension rate is increased after 13 weeks from the start day (a top up under section 93K is therefore not possible).

 

This determination specifies that a top up of pension bonus will only occur in a specified circumstance where all conditions are met. The conditions are that:

  • A person’s rate of age pension is increased with effect from a day that is more than 13 weeks after the day the person receives pension bonus (the start day) because of a decrease in value of the person’s assets, income or both; and
  • The determination takes effect on a day that is more than 13 weeks after the start day; and
  • Within 13 weeks of the start day:
    • an administrative error was made in the determination of the relevant rate; or
    • incorrect information had been given to the Secretary by the person about the value of their assets, income or both.

 

The effect of the Determination is that, if the circumstance applies to a person, the Secretary is able to determine that the person’s pension bonus can be increased to an amount limited by subsection 93L(3) of the Act. This amount is not greater than the difference between the amount of pension bonus the person received on the start day and the amount that would have been payable to the person as a pension bonus if the error by the Secretary or by the person had not been made.

 

This Determination will commence on 1 April 2018 following the repeal of the Social Security (Top up of Pension Bonus — Specified Circumstances) Determination 2007 on that date. The 2007 determination ceases operation on 1 April 2018 due to the sunsetting provisions in the Legislation Act 2003. This Determination is substantially in the same terms as the 2007 determination.

 

Human rights implications

 

Right to Social Security

 

This Determination engages the human right to social security contained in Article 9 of the International Covenant on Economic, Social and Cultural Rights (ICESCR).

 

This Determination provides that a person’s pension bonus can be topped up if a determination is made to increase the person’s age pension under certain circumstances. This Determination is therefore compatible with human rights.

 

Conclusion

 

This Determination is compatible with human rights as it enables a person to access social security in the form of a pension bonus top up.

 

Kathryn Campbell

Secretary of the Department of Social Services

 

 

 

 

 

 

Overview

The Social Security (Top Up of Pension Bonus — Specified Circumstances) Determination 2018 was enacted to provide for the top-up of pension bonuses under certain circumstances where an individual's age pension rate is increased after 13 weeks from the start day. This Determination, made under subsection 93L(6) of the Social Security Act 1991, allows for the increase of pension bonuses in specified circumstances where the pension bonus top-up under section 93K is not possible. This was enacted by the Secretary of the Department of Social Services to address gaps in pension bonus adjustments arising from administrative errors or incorrect information provided by the individual. The policy objective is to ensure fairness in pension calculations and provide appropriate top-up amounts to eligible individuals. The Determination came into effect on 1 April 2018, replacing the 2007 Determination which ceased operation on the same date due to sunsetting provisions in the Legislation Act 2003. The Determination is compatible with human rights, specifically engaging the right to social security as outlined in Article 9 of the International Covenant on Economic, Social and Cultural Rights (ICESCR).

Scope and Application

The Social Security (Top up of Pension Bonus — Specified Circumstances) Determination 2018 applies to individuals who are recipients of a pension bonus under the Social Security Act 1991. It is made under subsection 93L(6) of the Act, and it specifies circumstances in which a pension bonus can be topped up. The Act applies on a national level throughout Australia, as it is a Commonwealth legislation. The Determination applies to cases where an individual's age pension rate is increased more than 13 weeks after the start day of the pension bonus due to a decrease in the value of the individual's assets, income, or both, and the determination takes effect more than 13 weeks after the start day. The Determination also applies where there has been an administrative error or incorrect information provided by the individual within 13 weeks of the start day. The Determination does not specify any exclusions, exemptions, or thresholds. The Secretary of the Department of Social Services can extend or restrict the application of the Determination through subordinate instruments, as allowed under subsection 93L(6) of the Act.

Key Provisions

The Social Security (Top up of Pension Bonus — Specified Circumstances) Determination 2018, made under Section 93L(6) of the Social Security Act 1991, provides specific conditions under which a pension bonus can be increased. According to Section 6 of the Determination, a top up can occur if a person's rate of age pension is increased more than 13 weeks after their pension bonus start day, due to a decrease in the value of their income or assets. Additionally, the top up can only be granted if the determination takes effect more than 13 weeks after the start day and if either an administrative error occurred within 13 weeks of the start day or incorrect information was provided by the person about their income or assets. This situation allows the Secretary of the Department of Social Services to increase the pension bonus amount up to a limit specified by subsection 93L(3) of the Act, which cannot exceed the difference between the pension bonus amount received and what would have been payable if the error had not occurred. The Determination comes into effect on 1 April 2018, replacing the 2007 Determination, and is compatible with human rights as it ensures access to social security in the form of a pension bonus top up. The obligations under this Determination for the Secretary and the pension recipient are clearly defined. The Secretary must ensure that all conditions specified in Section 6 are met before increasing the pension bonus. This includes verifying the date of effect of the pension rate increase, identifying any administrative errors or incorrect information provided by the pension recipient, and ensuring the top up amount does not exceed the stipulated limit. The pension recipient, on the other hand, must provide accurate information about their income and assets when required by the Secretary. Failure to do so may impact their eligibility for a pension bonus top up. Failure to comply with the requirements of the Social Security (Top up of Pension Bonus — Specified Circumstances) Determination 2018 may result in civil or administrative consequences. However, the Determination does not explicitly outline specific offences, penalties, or criminal consequences for non-compliance. The primary focus of the Determination is to ensure that the top up of pension bonuses is granted fairly and accurately, with an emphasis on rectifying administrative errors or incorrect information provided by the pension recipient. Any administrative or civil consequences would likely stem from the Secretary's discretion in applying the provisions of the Determination, ensuring that the pension bonus top up is appropriately awarded in line with the Act and the Determination.

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.