Au and Repatriation Commission (Veterans' entitlements) - [2021] AATA 2166

Au and Repatriation Commission (Veterans' entitlements) [2021] AATA 2166 (7 July 2021)
Division:VETERANS APPEALS DIVISION
File Number(s): 2019/1531 and 2019/1849
Re:Xuong Au & Mai Le
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:The Hon. John Pascoe AC CVO, Deputy President
Date:7 July 2021
Place:Sydney

The correct or preferable decision is to affirm the Respondent’s determination dated 10 December 2018 in relation to the delegate’s decision as to the appropriate rate of the Applicants’ service pensions from 31 October 2013 to 16 July 2018. The Tribunal does not have the power to review the determination dated 10 December 2018 in relation to overpayment under s 205 of the Veterans Entitlements Act 1986 (Cth).
.............................[SGD]...........................................
The Hon. John Pascoe AC CVO, Deputy President
CATCHWORDS
VETERANS’ AFFAIRS – service pension – recovery of overpayment – rate of payment reduced – obligation to notify Repatriation Commission of certain event or change of circumstances – jurisdiction question – whether the Tribunal has jurisdiction to review decisions in respect of overpayment under s 205 of Veterans’ Entitlements Act 1986 (Cth) – no jurisdiction found in respect of overpayment – whether correct method of calculation applied in reducing service pension rate of payment – correct method applied – decision affirmed
LEGISLATION
Social Security Act 1991 (Cth)
Veterans’ Entitlements Act 1986 (Cth), ss 56B, 57, 205
CASES
Nelson and Repatriation Commission [2007] AATA 1069; (2007) 94 ALD 418
SECONDARY MATERIALS
You and Your Pension (2020 Edition), Department of Veterans’ Affairs
REASONS FOR DECISION
The Hon. John Pascoe AC CVO, Deputy President
7 July 2021
BACKGROUND

The Applicants in this matter are a husband and wife, Mr Xuong Au and Ms Mai Le, who submitted separate applications to the Tribunal on 20 March 2018 and 2 April 2019 respectively. The subject of both applications was a determination made by the Respondent dated 10 December 2018 and the Tribunal heard both matters together.
The Applicants seek review of a determination issued by the Respondent dated 10 December 2018, which reviewed under s 57A of the Veterans’ Entitlements Act 1986 (Cth) (‘VEA’) and affirmed a decision of the delegate of the Repatriation Commission to reduce the rate of the Applicants’ service pension.
The Respondent’s determination of 10 December 2018 also found the resultant overpayment, totalling $22,029.96 ($11,014.98 each), represents an amount to which the Applicants were not entitled to receive and is recoverable under s 205 of the VEA.
The facts that gave rise to the Respondent’s determination can be summarised briefly as follows.
On 15 September 2009, the Mr Au applied for a service pension. Mr Au was determined to be an Allied Veteran.
On 4 February 2010, the Applicants were advised of their eligibility for the service pension, which was assessed on the basis of the income test, using the income and assets as listed in an attachment to that correspondence.
In the correspondence of 4 February 2010, the Applicants were advised of their obligations to tell the Respondent of changes…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] AATA 2166
Decision Date: 7 July 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered a dispute between Mr. Xuong Au, representing himself and his wife Ms. Mai Le (the Applicants), and the Repatriation Commission concerning the calculation of their service pensions. The Applicants contended that their entitlements had been incorrectly calculated and that their assets were overstated, leading to an incorrect pension rate. They also sought clarification on why the Department of Veterans' Affairs (DVA) calculation differed from their own using an online calculator.

The primary legal issues before the Tribunal were whether it possessed jurisdiction to review decisions regarding the recovery of overpayments under section 205 of the *Veterans’ Entitlements Act 1986* (Cth), and whether the correct method had been applied in reducing the Applicants' service pension rate. The Tribunal was required to determine the appropriate test for calculating pension entitlements and the validity of the DVA's assessment.

The Tribunal reasoned that it did not have the power to review the determination concerning the recovery of overpayment under section 205 of the Act. Regarding the calculation of the service pension rate, the Tribunal found that the Applicants were confused about the applicable tests, which are either an income test or an assets test, and that it is not permissible to combine elements of both. The legislation mandates strict adherence to one of these tests, with the one resulting in a lower payment rate being applied. The documentary evidence did not support the Applicants' claim that their assets were overstated.

Consequently, the Tribunal affirmed the Repatriation Commission's determination dated 10 December 2018, which related to the appropriate rate of the Applicants' service pensions from 31 October 2013 to 16 July 2018. The Tribunal reiterated that any application for assessment under the assets test due to changed circumstances would be a matter for the Applicants to pursue separately, not within the scope of the current Tribunal review.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The Department of Veteran’s Affairs has published a booklet entitled “You and Your Pension” (2020 Edition), which sets out in detail how the rate of a service pension is to be determined. EVIDENCE A number of documents were put into evidence including the following: (a)The Review Form dated 16 December 2017 (T7);(b)2017 Income Tax return from Mr Xuong Au, Mrs Mai Thai Le and Letter from TIF accounting service (T10);(c)Letter from Australian Super dated 29 March 2018 (T14);(d)Response from Commonwealth Bank Account Summary for Mai Le (T16);(e)Response from Commonwealth Bank Account Summary for Xuong Au (T17);(f)Response from ATO: Tax return 2014, 2015 & 2016 for Xuong Au (T18);(g)Response from ATO: Tax return 2014, 2015 & 2016 for Mai Le (T19);(h)AMP Retirement Savings Account Statement for years 1 July 2011 to 30 June 2012, 1 July 2012 to 30 June 2013 and 1 July 2013 to 30 June 2014;(i)Booklet, “You and Your Pension” (2020 Edition) Department of Veterans’ Affairs;(j)Applicants’ Summary Statement dated 19 September 2019 with annexures;(k)Applicants’ Statement dated 18 December 2019 with annexures;(l)Account-based Income Streams, Social Security Guide; and(m)Age Pension - Rate Estimation - Summary Report, 20 March 2021 (yourpension.com.au).DISCUSSION Mr Xuong Au appeared on behalf of both himself and his wife, Ms Mai Le, at the hearing and will be referred to as “the Applicant” for the purposes of the discussion. The Applicant said at the hearing that he wanted to be treated “fairly”. He said that he had not wanted to come to the AAT but he felt that his entitlements had been incorrectly calculated, and that although he had made contact with a person at the Department and expected the issues to be dealt with, they were not. In particular, the Applicant could not understand why the DVA calculation was different to the figures he calculated using the Centrelink calculator which was available on the internet. The Applicant wanted an explanation from the Department as to why it did not accept his calculation. It is perhaps not surprising that the Applicant was seeking clarification given the complexity of the legislation. During the hearing, it became clear that the documentary evidence detailed above does not provide any support for the Applicant’s contention that his assets were overstated when calculating the service pension. In particular, it became clear that the Applicant was confused as to the test to be applied in calculating his pension entitlement. Put simply, there are two alternative tests, namely an income test, or, an assets test. It is not possible to “cherry-pick” parts of each test in order to reach a conclusion. It is clear from the legislation that benefits must be calculated strictly in accordance with the requirements of either the income test or the assets test. It is not possible to use parts of each test in making a calculation. The test to be used is that which results in payment of the lower rate to the recipient.

Decision

Reasons for decision

If the Applicant believes that his circumstances have changed, subsequent to the decision under review, he may be able to apply for assessment under the assets test, however this is not a matter for the Tribunal. DECISION The correct or preferable decision is to affirm the Respondent’s determination dated 10 December 2018 in relation to the delegate’s decision regarding the appropriate rate of the Applicants’ service pensions from 31 October 2013 to 16 July 2018. The Tribunal does not have the power to review the determination dated 10 December 2018 in relation to the recovery of overpayment under s 205 of the VEA.

Ratio Decidendi

Legal Principle Established

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