ANTHONY ALSFORD and REPATRIATION COMMISSION

[2010] AATA 160

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 160

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/2957

VETERANS’ DIVISION		)
Re		ANTHONY ALSFORD

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member A K Britton

Date25 February 2010

PlaceSydney

Decision The decision under review is affirmed.

......................[SGD].....................

Senior Member

CATCHWORDS

VETERANS ENTITLEMENTS – invalidity service pension – lack of discretion to vary date from which pension becomes payable

Veterans Entitlements Act 1986 (Cth) – s 37B

REASONS FOR DECISION

25 February 2010 Senior Member A K Britton           

1.      Mr Anthony Alsford applies for review of a decision of a delegate of the Repatriation Commission that was made on 12 June 2009.

2.      The decision affirmed an earlier decision of the commission that Mr Alsford’s invalidity service pension was payable from 30 January 2009.  Mr Alsford, as I understand it, contends that the decision is unfair, in that his pension should have been payable from 3 January 2008, the date he began receiving disability support pension.  He also claims that had he been told at the time he made his claim for a disability pension that he was entitled to an invalidity service pension, that he would not have delayed making his claim, as he did, until January 2009. 

3.      The sole issue that I am required to consider in these reasons is the correct start date for the payment of invalidity service pension.  Mr Alsford’s entitlement to an invalidity service pension is set out in the Veteran’s Entitlements Act 1986 (“the Act”).

4.      Section 37B of that Act provides that an invalidity service pension, unlike a disability pension, is not payable before the date on which a veteran submits a claim for this pension, subject to one exception.  This is a strict rule and the Tribunal has no discretion to vary it.  The exception to this rule is contained in section 37B(2) of the Act.  It provides that where the veteran has made an improper claim, which is subsequently rectified, payments can be backdated to the date of the improper claim providing certain conditions are met.  Here, there is nothing to suggest that Mr Alsford made any claim prior to January 2009.  Accordingly, the exception to the rule that the pension is payable from the date of claim has no application.

5.      I understand that Mr Alsford has come to the view that his treatment has been unfair.  I also understand that one of the reasons he has brought this application to the Tribunal is to ensure that other veterans are not placed in the same position as he found himself in.  He contends that had he been told at the date he made his claim for a disability service pension that he was also entitled to an invalidity pension on account of stopping work because of a back injury, he would not be in the dilemma in which he now finds himself — namely, where he delayed making a claim for that pension.  I understand that the advice he received from the Department has been the subject of a complaint by Mr Alsford and is now being reviewed and, as I asked earlier of Mr Bunn, I would ask him to pass on the comments to the relevant people within the Commission about Mr Alsford’s dissatisfaction with aspects of his treatment in respect of both claims.

6.      Regrettably, from Mr Alsford’s point of view, I am not in a position to vary the decision that is the subject of his application to this Tribunal and I must, therefore, affirm it.

I certify that the 6 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton.

Signed:         ...................................[SGD]...........................................
  Associate to Senior Member Britton

Date of Hearing:  25 February 2010
Date of Decision:  25 February 2010
Date of Published Reasons:     10 March 2010
Counsel for the Applicant:        The Applicant was self-represented
Counsel for the Respondent:    Nigel Bunn
Solicitor for the Respondent:     Department of Veterans' Affairs