Barclay and Repatriation Commission
[2011] AATA 206
•29 March 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 206
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/2502
VETERANS' APPEALS DIVISION ) Re JEFFREY BARCLAY Applicant
And
REPATRIATION COMMISSION
Respondent
INTERLOCUTORY DECISION
Tribunal Senior Member K Bean Date29 March 2011
PlaceAdelaide
Decision
The Tribunal decides that the words “claim or application” in s 24(1)(aab) of the Veterans’ Entitlements Act 1986 refer to a veteran’s current claim or application, which in Mr Barclay’s case is the claim lodged on or about 20 June 2006.
..............................................
K BEAN
(Senior Member)
CATCHWORDS
VETERANS' AFFAIRS – Veterans’ entitlements – Construction of s 24(1)(aab) of the Veterans’ Entitlements Act 1986 – Whether refers to current claim or application – Having regard to statutory context the provision refers to the claim or application currently under consideration.
Veterans’ Entitlements Act 1986 ss 14, 15, 19, 20, 24(1)(aab)
Administrative Appeals Tribunal Act 1975 s 42A(1B)
Acts Interpretation Act 1901 s 15AAREASONS FOR DECISION
29 March 2011 Senior Member K Bean introduction
1. This decision relates to an interlocutory issue which the parties have asked the Tribunal to resolve in advance of any final hearing in the matter. The issue concerns the construction of s 24(1)(aab) of the Veterans’ Entitlements Act 1986 (the VE Act) in the somewhat unusual circumstances which have arisen in this matter.
2. I will first set out those circumstances, before proceeding to consider the issues and arguments of the parties.
background facts
3. There is no dispute between the parties that the applicant, Mr Barclay, is entitled to a disability pension under the VE Act as a result of his accepted conditions of bilateral sensorineural hearing loss and post-traumatic stress disorder (PTSD) with major depressive disorder. Those conditions arose from his service in the Royal Australian Navy between 1957 and 1964.
4. The issue the subject of this decision has arisen in the context of a claim by Mr Barclay for an increase in the rate of his disability pension.
5. The relevant background to that claim, which is also not in dispute, is that Mr Barclay first lodged a claim for disability pension with the Repatriation Commission (the Commission) on or about 19 June 2002[1]. That claim was rejected by the Commission in its decision dated 18 October 2002. Mr Barclay then applied for review of that decision by the Veterans’ Review Board (VRB) on or about 30 October 2002 and on or about 1 April 2003, the VRB affirmed that decision. On or about 23 May 2003, Mr Barclay applied for review of the VRB decision by this Tribunal.
[1] Exhibit 2
6. The incident relied upon by Mr Barclay in that application was one which occurred on the Saigon River in 1963. However, in the course of those proceedings the significance of another incident in the course of Mr Barclay’s service apparently became apparent. For reasons which are not necessary for me to fully explore here, in early December 2005, Mr Barclay instructed his legal advisors to withdraw his application to this Tribunal, which had the affect that that application was taken to be dismissed[2].
[2] s 42A(1B), Administrative Appeals Tribunal Act 1975
7. On 19 January 2005, Mr Barclay turned 65.
8. On or about 20 June 2006, Mr Barclay lodged a new claim with the Commission to accept his PTSD condition relying solely on the new incident, described by Mr Barclay as “the Pelgrave incident”. Whilst that claim was initially refused by the Commission and the VRB, it was ultimately resolved in the context of an application before this Tribunal, as a result of which Mr Barclay’s PTSD condition was accepted by consent with effect from 20 March 2006 and the claim was remitted to the Commission for assessment of disability pension.
9. On 27 May 2009, the Commission decided not to increase Mr Barclay’s pension beyond 100 percent of the general rate and that decision was affirmed by the VRB on 22 March 2010. Mr Barclay lodged his current application, seeking review of the VRB’s decision, on 18 June 2010.
10. These circumstances have given rise to an issue concerning the construction of s 24(1)(aab) in circumstances where Mr Barclay had not turned 65 when he lodged his original claim on or about 19 June 2002, but had turned 65 when he lodged his further claim on 20 June 2006.
the issue
11. Section 24 of the VE Act, which sets out the requirements which must be met for payment of the special rate of pension, relevantly provides:
“24 Special rate of pension
(1) This section applies to a veteran if:
(aa)the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab)the veteran had not yet turned 65 when the claim or application was made; and
…”
12. Having regard to the terms of that provision, the issue for my consideration is the construction of sub-s (aab) in this context and in particular the meaning of the words “claim or application” and whether those words in the context of the section and the VE Act as a whole, refer only to the most recent claim made by Mr Barclay, or are capable of applying to his original claim.
consideration
13. Counsel for Mr Barclay, Mr Floreani, argued that the provision should be given a beneficial construction and that it was open to construe the words “claim or application” in s 24(1)(aab) broadly, so as to encompass the first claim made on 19 June 2002 or the application for review to the VRB made on 30 October 2002. He submitted that there was an ambiguity in the provision which, given that the VE Act is remedial legislation, should be resolved in favour of Mr Barclay. He further submitted that this was consistent with a purposive construction of the provision, consistent with s 15AA of the Acts Interpretation Act 1901.
14. He also pointed out that if that construction was not adopted, then the provision would operate harshly and unfairly in relation to Mr Barclay, since if he had continued with the proceedings in the Tribunal arising from his original claim, and ultimately been successful in those proceedings, he would potentially have been eligible to receive pension at the special rate, as he had not turned 65 at the time his original claim was lodged, and his entitlement to pension would have been assessed in that context. Mr Floreani also relied upon the fact that Mr Barclay’s proceedings in the Tribunal in 2005 were withdrawn without any final adjudication on the issues the subject of that application. He submitted that there was accordingly no “issue estoppel” arising as a result of the withdrawal of that application. He also contended that Mr Barclay’s relevant disability, namely his PTSD and depressive conditions, had been present at the time of his original claim and had remained the same throughout.
15. As to the construction of the words “claim or application” in sub-s (1)(aab) however, it appears to me that these words must be construed by reference to sub-s (1)(aa), which refers to “a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension”. In light of the terms of that provision it is clear in my view that the “claim for application” referred to in sub-s (1)(aab) is a claim made by the veteran under s 14 or an application made under s 15 of the VE Act.
16. In this case, the most recent claim made by Mr Barclay was a claim for disability pension made on 20 June 2006 pursuant to s 14 of the VE Act[3]. Mr Barclay’s original claim lodged on or about 19 June 2002 also appears to have been a claim for pension, pursuant to s 14 of the VE Act.
[3] T3/10
17. In light of the fact that both claims were made pursuant to s 14 of the VE Act, the following provision of s 14 is relevant:
“14 Claim for pension
…
(5) Where:
(a)a veteran has made a claim for a pension under this section in respect of incapacity from a particular injury or disease; and
(b) the claim has not been finally determined;
the veteran is not empowered to make another claim for a pension under this section in respect of incapacity from that injury or disease.
…”
18. It follows from the terms of that sub-section that the VE Act does not appear to contemplate two concurrent claims for pension and Mr Barclay was not permitted to lodge a further claim until his first claim had been finally determined.
19. In relation to when a claim is finally determined, sub-s 7 of s 14 also provides as follows:
“(7) For the purposes of this section, a claim is finally determined when either:
(a)a decision that has been made in respect of the claim is not subject to any form of appeal or review; or
(b)a decision that has been made in respect of the claim was subject to some form of appeal or review, but the period within which such an appeal or review could be instituted has ended without an appeal or review having been instituted.”
20. In light of the terms of that sub-section, it appears to me that Mr Barclay’s first claim was finally determined when he withdrew his application for review to this Tribunal in 2005 and that application was taken to have been dismissed pursuant to s 42A(1B) of the Administrative Appeals Tribunal Act 1975.
21. As Mr Barclay’s 2002 claim was finally determined in 2005, it follows that he was entitled to lodge his further claim pursuant to s 14 in 2006. However it also follows in my view that, for the purposes of assessing his rate of pension consequent on the acceptance of that claim, the references in s 24(1) to the “claim” are to the claim which was made in 2006, not the earlier claim made in 2002 which was withdrawn in 2005.
22. In my view, it is consistent with the overall structure of the VE Act, as well as the terms of s 14, to construe s 24 in this way.
23. As Mr Crowe for the respondent pointed out, to construe it in the way contended for by Mr Floreani would mean that when a decision-maker came to assess a veteran’s entitlement to pension at the special rate, they would be required to apply s 24(1)(aab) having regard not only to the current claim or application, but to any previous claim or application, no matter how long ago it was made. This would have the effect that a veteran who happened to have made a previous claim or application, say ten years ago, would be in a better position than a veteran who had not. That veteran would potentially be entitled to receive pension at the special rate, notwithstanding that they were over 65 at the time they lodged the current claim, whereas the veteran who had not lodged a previous claim or application would not. In my view, that would be a somewhat arbitrary result which is most unlikely to have been intended.
24. Having regard to the terms of the Explanatory Memorandum which accompanied the introduction of s 24(1)(aab) into the VE Act, the construction contended for by Mr Floreani would also tend to defeat what appears to have been one of the main purposes of the introduction of ss 24(1)(aab), (2A) and (2B) into the VE Act, that is to differentiate between veterans who were under 65 at the time they claimed special or intermediate rate pension, and those who were over 65 at the time they made their claim or application[4]. It would also be inconsistent with the following paragraph of the Explanatory Memorandum:
“Thus, which of the criteria that must be met for section 24 to apply to a veteran, depends on the age of the veteran at the date on which he or she makes the claim or application that is being considered by the Commission.”
[4] See the Explanatory Memorandum to the Veterans’ Affairs (1994-95 Budget Measures) Legislation Amendment Bill 1994, p 23.
25. Further, a construction which treats the “claim” referred to in s 24(1) as the current claim is consistent with s 19, which requires a decision-maker to assess a veteran’s rate or rates of pension during the assessment period. The “assessment period” is defined to be the time between the claim or application and the determination of the claim. In this context, it is clear that the “claim or application” referred to in s 19 is the current claim or application. Otherwise the decision-maker would be required to assess the veteran’s entitlement to pension at a time prior, and possibly well prior, to them making the claim or application. That would be inconsistent with s 20 of the VE Act, which provides that a pension cannot be paid from a date earlier than three months before the claim or application is made. Again, this provision is consistent with a construction of “claim or application” as referring to the current claim or application, not a past claim or application which has already been determined.
conclusion
26. For these reasons, whilst I accept that the VE Act is beneficial legislation, I have concluded that the words “claim or application” in s 24(1)(aab) clearly refer to the claim or application which is currently under consideration, which in Mr Barclay’s case is the claim made on 20 June 2006 when he had already turned 65.
27. Given the conclusions I have reached in relation to the operation of the provision, it appears that Mr Barclay may have been in a better position if he had proceeded with his original application to the Tribunal rather than withdrawing it. However, the fact that Mr Barclay may have been disadvantaged by his decision to withdraw his previous application does not alter my conclusions as to the proper construction of the words “claim or application” in s 24(1)(aab), having regard to the broader statutory context in which they appear.
I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member K Bean
Signed: ..............J Coulthard.......................................
AssociateDate of Hearing 19 January 2011
Date of Decision 29 March 2011
Counsel for the Applicant Mr N Floreani
Solicitor for the Applicant Tindall Gask BentleyAdvocate for the Respondent Mr A Crowe
DVA
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