Spanner and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 51 (27 January 2010)

Last Updated: 27 January 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 51

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2009/3450

GENERAL ADMINISTRATIVE DIVISION		)
	Re		STANLEY SPANNER & PATRICIA SPANNER

Applicant

And

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

Respondent

DECISION

Tribunal

Mr S Karas, AO, Senior Member

Date 27 January 2010

Place Brisbane

Decision

The Tribunal affirms the decision under review.

..................[Sgd]................
Senior Member

CATCHWORDS

SOCIAL SECURITY – Benefits and entitlements – age pension – pension bonus scheme – application refused – applicant received age pension before claiming pension bonus.

Social Security Act 1991 (Cth), Part 2.2A, s 92C

Social Security (Administration) Act 1999 (Cth), s 17

Social Security (Administration) (Delayed Lodgement of Claims for Pension Bonus) Guidelines 2007 (Cth), Clause 4

REASONS FOR DECISION

27 January 2010

Mr S Karas, AO, Senior Member

INTRODUCTION

.

1. Mr Stanley Spanner and Mrs Patricia Spanner (the applicants) made an application for age pension in July 2002. Their application was granted and was paid from 3 July 2002 until 2 December 2002. Mr Spanner recommenced work on behalf of his company Galeme Pty Ltd on 1 August 2002. This resulted in the applicants’ combined income exceeding the cut-off limit. The applicants’ age pension was deemed to be cancelled on the 1 August 2002. The debt that had accrued from 1 August 2002 until 2 December 2002 was recovered from the applicants. The applicants did receive the age pension from 3 July 2002 until 31 July 2002
2. On 1 September 2008 the applicants applied to register for the Pension Bonus Scheme. On 21 January 2009 the applicants claimed the pension bonus when they again made an application for age pension. On 20 February 2009 the applicants’ claim for the pension bonus was refused by Centrelink. The applicants sought review of that decision and on 20 March 2009 a Centrelink authorised review officer affirmed the original decision. The applicants applied to the Social Security Appeals Tribunal (SSAT) for review. On 22 June 2009 the SSAT affirmed the original decision. On 24 July 2009 the applicants applied for review of that decision to the Administrative Appeals Tribunal (the Tribunal).

ISSUES AND LEGISLATION

3. The subject of review for the Tribunal is to determine whether the applicants are entitled to be paid the pension bonus.
4. Part 2.2A of the Social Security Act 1991 (Cth) (the Act) governs the application of the Pension Bonus Scheme. To qualify for the age pension the requirements of s 92C of the Act must be met. Subsection 92C(b) requires that a person must not have received the age pension at any time before making a claim for pension bonus.
5. Section 17 of the Social Security (Administration) Act 1999 (Cth) (the Administration Act) provides that in certain circumstances a person can be taken to have made a claim for pension bonus at the time of an earlier claim for age pension. That section provides:

(1) A claim for pension bonus must be:
(a) Attached to a proper claim made by the person for age pension and lodged together with that claim for age pension; or
(b) Made in accordance with an invitation under subsection (3); or
(c) The subject of a determination under subsection (5).
(2) A claim for pension bonus may be made even though it is not certain whether the person will start to receive an age pension at or after the time when the person makes the claim. The claim has effect as a claim that is contingent on the person receiving an age pension.
(3) If:
(a) a person makes a claim for age pension; and
(b) the claim is in accordance with a form that does not require the claimant to disclose whether the claimant is registered as a member of:
(i) the pension bonus scheme; or
(ii) the corresponding scheme under Part IIIAB of the Veterans’ Entitlements Act; and
(c) the person is, to the knowledge of the Secretary, registered as a member of the pension bonus scheme; and
(d) a claim by the person for pension bonus is not attached to the claim for age pension;
the Secretary must give the claimant a written notice inviting the claimant to lodge a claim for pension bonus:
(e) within such period after the lodgement of the claim for age pension as is specified in the notice; and
(f) at such place as in specified in the notice.
(4) If a claim for pension bonus is made in accordance with an invitation under subsection (3), the person is taken to have claimed the pension bonus at the same time as the person claimed age pension.
(5) If:
(a) a person who is a registered member of the pension bonus scheme lodges a claim for age pension; and
(b) a claim for pension bonus for the person is lodged after the claim for age pension; and
(c) the Secretary is satisfied that, having regard to guidelines (if any) made under subsection (6), special circumstances apply in relation to the lodgement of the claim for pension bonus;
the secretary may determine that the claim for the pension bonus is taken to have been made at the time the person claimed age pension.
(6) The Secretary may, by legislative instrument, make guidelines for the purposes of subsection (5).

6. The Social Security (Administration) (Delayed Lodgement of Claims for Pension Bonus) Guidelines 2007 (the Guidelines) created as a legislative instrument under s 17(6) of the Administration Act, details when “special circumstances” apply in relation to the lodgement of a claim for pension payment. Clause 4 of the Guidelines provides :

(2) A special circumstance applies in relation to a claim for pension bonus by a person if:
(a) the person lodges the claim for pension bonus within 2 years of the date of lodgement of a claim for age pension; and
(b) an invitation was not made to the person under subsection 17(3) of the Act to lodge a claim for pension bonus; and
(c) an invitation should have been made because:
(i) the person was, to the knowledge of the Secretary, registered as a member of the pension bonus scheme; and
(ii) the claim for age pension was made by the person in accordance with a form that did not require the claimant to disclose whether the claimant was registered as a member of the pension bonus scheme or the corresponding scheme under Part IIIAB of the Veterans’ Entitlements Act; and
(iii) a claim for pension bonus was not attached to the claim for age pension; and
(d) the person did not knowingly give the Secretary incorrect information that led the Secretary to conclude that the making of an invitation to lodge a claim for pension bonus by the person would be inappropriate.
(3) A special circumstance applies in relation to a claim for pension bonus by a person if:
(a) the person lodges the claim for pension bonus within 2 years of the date of lodgement of a claim for age pension; and
(b) all of the following apply:
(i) the claim for age pension was made by the person in accordance with a form that required the claimant to disclose whether the claimant was registered as a member of the pension bonus scheme or the corresponding scheme under Part IIIAB of the Veterans’ Entitlements Act;
(ii) the claimant did not disclose that information;
(iii) the Secretary did not seek disclosure of that information before granting the claim for age pension.

EVIDENCE

7. A hearing to review this matter was held on 20 January 2010. Mr Stanley Spanner was unrepresented and appeared on behalf of himself and his wife. Mr Hamilton appeared for the Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (the respondent).
8. In giving evidence to the Tribunal, Mr Spanner referred to and relied on the dates and the amounts contained in folios 75 to 77 of the T Documents (Exhibit A). Mr Spanner contended that he and his wife should never have received the age pension at all. This contention is based on the letter he received from Centrelink dated 6 December 2002 (Exhibit B) which explained how Centrelink calculated the combined annual income to be $55,033.96. Mr Spanner questioned Centrelink’s decision to cancel his pension payment from 1 August 2002 when, if calculated annually, it could and should have been cancelled from 1 July 2002.
9. In maintaining that in these circumstances and given Centrelink’s actions, Mr Spanner made reference to the applicants’ registration for the pension bonus on 1 September 2008 and Centrelink’s decision to accept the application and to backdate it to 20 October 1999 in order to demonstrate that he should have been entitled to the pension bonus.
10. Mr Spanner confirmed that when they first applied for the age pension on 3 July 2002 they did not apply for the pension bonus. Mr Spanner agreed that he had indicated to Centrelink that he may recommence work and that his re-entry to the workforce may effect his pension entitlements. When notified by Centrelink that monies received after their pension was deemed to have been cancelled had to be paid back, they did so immediately.
11. Mr Spanner expected a ‘fair and reasonable response’ to this matter but believes that “mistakes” were made by Centrelink. Namely that when calculating his income for pension entitlements the calculation should have been made on an annual basis as that is how his income payments from Galeme Pty Ltd are structured. Mr Spanner raised a conversation that he had had with a Centrelink officer in 2009 whereby he was told that he would qualify for the pension bonus of some $40,000 even though he had received a $500 age pension payment because ‘it could be sorted out’.
12. Counsel for the respondent Mr Hamilton referred to folio 65 of the T Documents and to the applicants action in ticking the “no” box in relation to the pension bonus. Reference was made to Centrelink’s letter of cancellation dated 6 December 2002 and the decision to cancel the age pension payments on 1 August 2002.
13. In justifying Centrelink’s decision to cancel the age pension payments on 1 August 2002, counsel for the respondent indicated that registrations for pensions can be backdated but the claim cannot be. In effect, this means that the pension registration of 2008 could be and was made retrospectively to 1999. However, the dates of the claims (1 September 2008 and 21 January 2009) could not be backdated. As the applicants received age pensions before they claimed the pension bonus they could not qualify for the pension bonus. The respondent’s submitted that the Guidelines specifically related to subsection 17(c) of the Act applied in this case. They conceded that in the circumstances, the applicants met the test in subclause 3(b)(i) of the Guidelines however they did not meet the test provided in subclauses 3(a) and 3(b)(ii).

CONSIDERATION AND FINDINGS

14. The Tribunal finds that the applicants applied for age pension on 3 July 2002 and did not apply for the pension bonus at that time. The applicants were granted the age pension from 3 July 2002 and were paid the pension until December 2002. Due to Mr Spanner’s resumption of work, adjustment calculations were conducted in relation to Mr and Mrs Spanner’s age pension payments. As Mr Spanner’s income exceeded the allowable amount, debts arose and were repaid by the applicants. Despite this, the applicant’s did receive the age pension for the period 3 July to 31 July 2002.
15. The Tribunal notes that on 1 September 2008 the applicants registered for the pension bonus. On 10 September 2008 the applicants’ registration for the pension bonus was accepted and backdated to October 1999. On 21 January 2009 the applicants lodged an application for age pension and the pension bonus.
16. Given that the applicants received the age pension in July 2002 before they claimed the pension bonus in January 2009 they could not, according to the legislation, qualify for the pension bonus.
17. In reference to the applicant’s submissions disputing their eligibility for the age pension between 3 July 2002 and 31 July 2002, the decision to grant them the age pension is not before the Tribunal and is therefore not the subject of review. The Tribunal is only concerned with reviewing the decision made to refuse them the pension bonus.
18. Given s 17(5) of the Act the Tribunal needs to consider if “special circumstances” apply in relation to this matter. Consequently, the Guidelines need to be considered. Given the evidence and material before it, the Tribunal finds that the Guidelines are of no assistance to the applicants in this matter and do not justify a determination that their claim for pension bonus was made at the time they claimed the pension in July 2002.
19. In conclusion, the Tribunal finds that the applicants did not qualify for the pension bonus when they applied for it in January 2009 pursuant to s 92C of the Act since they received age pensions before claiming the pension bonus. Furthermore, there are no “special circumstances” in this case to warrant a determination to be made that the applicants qualified for pension bonus before 21 January 2009. Therefore, the applicants cannot be paid the pension bonus pursuant to the applicable legislative provisions in this matter.

DECISION

20. The Tribunal affirms the decision under review.
    

I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S Karas, AO, Senior Member

Signed: ............................[Sgd]...........................................

Kate Slack Research Associate

Date of Hearing 20 January 2010

Date of Decision 27 January 2010

The Applicant was self represented.

For the Respondent Mr Robert Hamilton, departmental advocate.