BENSON and REPATRIATION COMMISSION
[2010] AATA 240
•1 April 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 240
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/1476
VETERANS’ APPEALS DIVISION ) Re HAROLD BENSON Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal M J Carstairs, Senior Member Date1 April 2010
Place Darwin
Decision
The Tribunal sets aside the decision under review and substitutes the decision that Mr Benson’s pension entitlements for post traumatic stress disorder, irritable bowel syndrome and alcohol abuse should not have been cancelled. Pension is restored with effect from 18 February 1995.
....................[Sgd]..........................
Senior Member
CATCHWORDS
VETERANS’ ENTITLEMENTS – pensions and benefits – review by Commission revoking earlier determinations that disease or injury war-caused – standard of proof to be applied – evidence not false in a material particular – no matter affecting payment not before the Commission – decision set aside.
Veterans' Entitlements Act 1986 (Cth), ss 9, 14, 15, 31, 119, 120, 120A
Davis v Repatriation Commission [1997] FCA 389
Deledio v Repatriation Commission (1997) 47 ALD 261
Godwin v Repatriation Commission (2008) 102 ALD 286
Jebb v Repatriation Commission (1988) 80 ALR 329
Repatriation Commission v Gorton (2001) 65 ALD 609
Repatriation Commission v Richardson [2001] FCA 1626
REASONS FOR DECISION
1 April 2010 M J Carstairs, Senior Member 1. Harold Benson has been receiving disability pension under the Veterans' Entitlements Act 1986 (“the Act”) at the special rate since 1997, a rate determined with particular reference to medical conditions that the respondent has now decided were not war-caused. The reviewable decision “varied” earlier determinations dating from the 1990s, accepting Mr Benson’s conditions of post traumatic stress disorder, irritable bowel syndrome and alcohol abuse as being war-caused. In that way, the earlier determinations effectively were revoked.
2. The delegate decided that Mr Benson had been paid at a rate higher than he should have been. The respondent required that Mr Benson repay in excess of $160,000, being pension he had received between 1995 and 2006 with respect to the previously accepted conditions.[1] On re-assessment (with respect to other accepted medical conditions for which war-causation is not challenged), his entitlement was determined as being 40% of the general rate.
[1] Section 31(6) of the Act.
3. Shortly after the delegate made these decisions, Mr Benson was charged under s 29D the Crimes Act 1914 with defrauding the Commonwealth by obtaining a pension at a higher rate than that to which he was entitled. This charge later was dismissed by a Court of Summary Jurisdiction at Darwin on 8 September 2008.
THE ISSUES
4. The issue in this case is whether the reviewable decision was correct in cancelling Mr Benson’s pension entitlements with respect to post traumatic stress disorder, irritable bowel syndrome and alcohol abuse and in reducing his rate of pension with effect from 1995.
5. The respondent conceded that, were the Tribunal to decide that Mr Benson remained entitled to pension with respect to post traumatic stress disorder, he would remain entitled with respect to irritable bowel syndrome and alcohol abuse. In those circumstances, the respondent said, Mr Benson would have retained his qualification for special rate pension.
APPLYING THE LEGISLATION
6. I observe at the outset that neither party questioned that (in this jurisdiction as elsewhere) administrative decision-makers can revisit prior decisions found to be incorrect. Section 31 of the Act provides a range of powers for the respondent to conduct own-motion reviews where the circumstances so warrant, including varying determinations made in the past.
7. It is a well-known principle that, for the most part, and subject to specific statutory provisions to the contrary, administrative decision-making does not create an estoppel. Furthermore, as pointed out by Davies J in Jebb v Repatriation Commission (1988) 80 ALR 329, administrative decision-making processes are best understood as a continuum, proceeding on the basis of better evidence as and when it comes to hand.
8. There are, however, protections provided within s 31 of the Act that serve to ensure against unwarranted reopening of past decisions. Those protections are provided for by subss (4) and (6), which confine and identify the circumstances under which such review can take place. In Mr Benson’s case, the delegate relied upon both subsections to make the decisions. Therefore it is helpful to start with the words of those subsections.
9. Section 31(4) of the Act provides that:
(4) Where the Commission is satisfied that evidence before the Commission when it made a decision was false in a material particular, the Commission may, in its discretion, review the decision …
10. Section 31(6) of the Act provides (insofar as here relevant) that :
(6) Where the Commission is satisfied that:
(a) having regard to any matter that affects the payment of a pension or attendant allowance, being a matter that was not before the Commission, the Board or the Administrative Appeals Tribunal, as the case requires, when the decision to grant the pension or attendant allowance, or a decision to vary the rate of the pension or attendant allowance, was made;
…
a pension or attendant allowance should be cancelled or suspended or is being paid at a higher rate than it should be…the Commission may, by determination in writing, cancel or suspend or decrease the rate of the pension …
11. Once relevantly satisfied of the matters referred to in subss 31(4) and (6) of the Act, it is open to the decision-maker to backdate the date of effect of a decision. That too is discretionary: subss 31(4) and (7) use the word “may” when making reference to possible backdating.
12. The respondent infrequently exercises the review powers in subs 31(4) and (6), as would be expected in this jurisdiction. The Federal Court, however, has had occasion to make some observations concerning the ambit and exercise of the powers and has discussed necessary conditions precedent.
13. Godwin v Repatriation Commission
(2008) 102 ALD 286 was a judicial review of the use of the s 31 review powers. The respondent had cancelled the veteran’s entitlements soon after the Administrative Appeals Tribunal had completed an administrative review confirming them. The particular facts of Godwin are not important; suffice to say that the respondent accepted new evidence—a military historian’s report—that sufficiently indicated that an incident relied upon by
Mr Godwin (involving the sinking of a sampan under gunfire) had not happened. The delegate concluded that the new evidence disproved (“beyond reasonable doubt”) the occurrence of a stressful incident. Absent that stressor, the required link between his post traumatic stress disorder and war service was lost. The delegate concluded that evidence upon which previous decisions had been based was false in a material particular, thus enlivening s 31(4) of the Act.
14. In Godwin, Flick J confirmed that “false in a material particular” should not be interpreted as “deliberately untruthful”. Rather, in the context of the Act, it only need be “objectively incorrect”. His Honour concluded that s 31(4) of the Act gives power to review a decision where the decision-maker is satisfied that there is evidence, previously before the decision-maker, that was false (i.e. “objectively incorrect”) in a material particular.[2] In other words, that state of satisfaction is a condition precedent to the exercise of the review power; probative material is required to be so satisfied.
[2] (2008) 102 ALD 286 at 295 [25].
15. As to the review powers available under s 31(6) of the Act, Flick J said that being satisfied of a “matter that affects the payment of a pension” could include taking into account new evidence relevant to the manner in which the prior decision was made.[3] This did not rule out taking into account material that had been available when the Tribunal had made its earlier decision and, Flick J continued (agreeing with Dowsett J in Repatriation Commission v Richardson [2001] FCA 1626), the material could be material of which the decision-maker was ignorant at the time of the original decision.
[3] (2008) 102 ALD 286 at 295 [31].
16. In Richardson, Dowsett J had identified two limbs of the condition precedent to the exercise of the power under s 31(6) of the Act:
§firstly, that the decision-maker be presently satisfied that some matter affecting the payment of pension was not before the decision-maker when the decision to grant was made; and
§having regard to that matter, a pension or allowance should be cancelled, or suspended, or the rate reduced.[4]
[4] [2001] FCA 1626 at [7].
17. Once so satisfied, the decision-maker could cancel, suspend or reduce the pension, including on the grounds that a condition is not war-caused. That is, the decision-maker was not limited to cancelling or reducing the pension while leaving untouched the substantive matter of war-causation—a view which had been favoured by the Tribunal below. Dowsett J considered this was a limitation which ought not to be read into s 31(6) of the Act.
18. Like Godwin, the case of Davis v Repatriation Commission [1997] FCA 389 was a judicial review of an exercise of the power in s 31(6) of the Act. Sundberg J rejected the notion that the “matter” referred to in s 31(6)(a) needed to be something that was in existence when the decision in question was made. Sundberg J observed that s 31(6) might be open to abuse if used capriciously, but this was not a reason to read down its meaning. The power, his Honour said, was limited by the statutory requirement of being satisfied that there exists a matter affecting the payment of a pension, which matter was not before the decision-maker:
If the “new material” is no more than a repetition of material that was before the decision-maker, it would not be reasonably open to the Commission to be relevantly satisfied that the material “affects the payment of a pension”.
19. Informed by those authorities, the starting point for the exercise of discretions under s 31 of the Act is that the decision-maker must have reached a state of satisfaction that :
§ evidence presented was false in a material particular (s 31(4)); or
§ a matter that affects the payment of a pension was not before the decision-maker when the decision to grant was made (s 31(6)).
20. As I understood the parties, at least in written submissions, they took a somewhat different approach by submitting that the questions to be addressed required consideration of Statements of Principles. It is not correct to commence the enquiry as if the question to be addressed is “Was Mr Benson’s post traumatic stress disorder war-caused?”
21. In the legislation, there is a fundamental distinction drawn between:
§ “claims” (s 14 of the Act);
§ “applications for increase” (s 15 of the Act);
§ the administrative review of decisions on claims and applications for increase; and
§ reviews undertaken under s 31 of the Act.
22. Section 31 of the Act, at least as pertains to review of already determined claims, does not form part of the usual review hierarchy, as would be the case where a person is seeking review of a rejected “claim” or a rejected “application for increase”.
23. The distinction made between “claims”, “applications” and “reviews” is evident elsewhere in the Act, for instance in s 119. Section 119(2) provides a wide definition of “claim” and “application” (not limited to s 14 claims and s 15 applications). Section 119 does not define “review”, but subss 119(1)(c) and (1)(d) make special mention of s 31 reviews, and serve to remind decision-makers that they are to take into account difficulties that may lie in the way of establishing facts, including difficulties arising from the passage of time or unavailability of witnesses.
24. Section 119 is to be found in Part VIII of the Act, entitled “General provisions applicable to pensions etc”. Part VIII also contains s 120, which makes provision for the different standards of proof applicable to the range of matters that fall to be determined under the Act. There are particular standards of proof to be applied when determining questions relating to “claims”, “applications” and “reviews”.
25. The most generous standard is that which applies where a “claim” is made for injury (or death) on the basis of operational, peacekeeping, or hazardous service.[5] It has been observed on a number of occasions, including by Heerey J in Deledio v Repatriation Commission (1997) 47 ALD 261, that the rationale of that generous standard is to provide recognition to service rendered on behalf of Australia in times of war. Applying this standard (s 120(1) of the Act), a claim will be granted unless it is proved beyond reasonable doubt that there is no sufficient grounds for a finding of war-causation (or defence causation, in cases involving peacekeeping or hazardous service under s 120(2) of the Act).
[5] See s 120(1) and s 120(2) of the Act.
26.
Since 1994, claims based upon operational or related service have required the application of Statements of Principles and attract the combined operation of
s 120 and s 120A of the Act. Mr Benson’s claim for post traumatic stress disorder, commencing as it did in 1995, necessarily required the application of a Statement of Principles. But both s 120 and s 120A of the Act are provisions that operate in relation to “claims”. The standard of proof relevant to “claims” is not applicable here. At the stage of considering whether to exercise the s 31 review powers in the first instance, the applicable standard is that of reasonable satisfaction: s 120(4) of the Act. In other words, the s 31 review did not require reference to Statements of Principles, at least not before consideration of whether the conditions precedent to the exercise of the power were met.
27. In that respect I regard as incorrect the characterisation of the matters under review, as set out in Mr Stoner’s written submissions, as being:
a) the decision made under s 31(4) concluding that there was material that was false in a material particular in the 1995 claim;
b) the decision that post traumatic stress disorder is not war-caused within the meaning of s 9;
c) the decision that post traumatic stress disorder with alcohol abuse and irritable bowel syndrome was not war-caused within the meaning of s 9 of the Act;
d) the decision under s 31(6) of the Act to reduce disability pension to certain levels with effect from certain dates; and
e) the decision under s 31(7) to fix dates of effect to reduce the pension
28. Such an approach to the “decisions under review” runs the risk of conflating determinative processes applicable to a consideration of a “claim” with those applicable to the review of an existing, already determined, pension entitlement. This then tends to confuse the standards of proof to be applied. Much hearing time was spent on the question of whether, and which, Statements of Principles ought to be applied when considering the matters in (b) and (c) above: the most recent Statements of Principles, or those in force at the date of the original decisions granting Mr Benson’s claims. However that question, if it arises at all, only does so after a decision-maker has reached the necessary state of satisfaction about the conditions precedent.
29. In other words the first questions to be addressed are those referred to at paras (a) and (d) of Mr Stoner’s outline.
30. Because I have come to the conclusion that the circumstances in this case did not warrant exercising the s 31 review powers at all, it was unnecessary for me to proceed to the next step of considering Statements of Principles. However, I would note that at that next step a decision-maker would be considering, broadly, whether or not there was any causal relationship between incapacity and service within the meanings set out in s 9 of the Act. As observed by Allsop J in Repatriation Commission v Gorton (2001) 65 ALD 609, in any review of a decision about entitlement based on a causal connection with service, “[t]here is no reason why that ultimate causal question may not be influenced or affected by more than one SoP”.[6] In that respect, that stage of the review would be similar to the examination of a “claim” at first instance. The Statement of Principles in place at the time of the original decisions would be considered as well as the Statement of Principles current at the time of review, there being no suggestion, as pointed out by Heerey J in Gorton, that the revocation of a Statement of Principles could affect rights already obtained under the Act.[7]
[6] (2001) 65 ALD 609 at 624 [63].
[7] (2001) 65 ALD 609 at 620 [45].
31. I turn now to the facts of the case to explain why I do not agree that the review powers in s 31 of the Act were enlivened in Mr Benson’s case.
THE FACTS
32. Mr Benson served in the Australian Army for six years. He joined up at the age of seventeen. Mr Benson, at the age of twenty-one, served for some four months in Vietnam as a storemen driver and clerk, and was stationed at 1st Australian Task Force at Nui Dat, in the Q-Store. He had thought that as a storeman he would not be going out into the field, but he was posted out as part of Operation Overlord to Courtney Rubber Plantation, in Long Khanh Province, about halfway through his posting. It was there that an event, described below, occurred.
33. Mr Benson’s now cancelled pension entitlements related to claims he lodged: in 1995, when he lodged a claim for, and was granted, pension for post traumatic stress disorder; and in 1996, when he claimed and was granted pension for irritable bowel syndrome and alcohol abuse, based upon the already accepted post traumatic stress disorder.
34. When Mr Benson lodged the 1996 claims, he was still working as a prison officer in Alice Springs but also attending as a patient at a psychiatric hospital in Hobart, undertaking a four week programme authorised by the Department of Veterans’ Affairs as part of treatment for his post traumatic stress and alcohol disorders.
35.
The initial claim was supported by Mr Benson’s then general practitioner,
Dr J Gray. She had outlined his symptoms in a form issued by the Department of Veterans’ Affairs headed “Medical Examination Psychiatric”. Dr Gray there referred to Mr Benson having “witnessed” the violent death of several of his comrades in Vietnam.[8] Dr Gray diagnosed Mr Benson as suffering post traumatic stress disorder and possibly also depression. Dr Gray referred Mr Benson to Dr P Abusah, the senior psychiatrist at the Alice Springs Hospital, where he was seen as an outpatient.
[8] T4 at p12.
36. In his report on Mr Benson,[9] Dr Abusah confirmed the initial diagnosis of post traumatic stress disorder. As part of the history, Dr Abusah referred to Mr Benson having served in Vietnam as “a corporal in charge of ten other soldiers”. On a particular day in June 1971, the report continued:
… his group was going on a duty call. He had wanted to go with them but an officer told him to stay and see to other duties. About three kilometres away, there was an explosion and seven of his men died and three were wounded.
The seven who died were blown to pieces and could not be identified. At the time he counted himself lucky.
However on his return to Australia in late August 1971, he started feeling guilty that he did not go with them. He felt he should have died with them. This feeling got worse and in recent years he developed symptoms of Post Traumatic Stress Disorder…
[9] T4 at p 9.
37. Mr Benson’s claim had little more to it than these two supporting medical reports and Mr Benson’s few words, expressed in his claim form, that he had “Active service in South Vietnam. I was on “Operation Overlord.”[10] Within about three weeks of lodgement a delegate decided that Mr Benson’s post traumatic stress disorder was war-caused and assessed pension at 30% of the general rate.[11] The reasons were: “Your post traumatic stress disorder has been accepted on the basis of a stressor”.
[10] T4 at p 5.
[11] T4 at p 18.
38. As Mr Benson’s claims post-dated the introduction of Statements of Principles,[12] I infer that the delegate applied the Statement of Principles then in force for post traumatic stress disorder, which was Number 15 of 1994. In that Statement of Principles, “experiencing a stressor” meant that:
the person experienced, witnessed, or was confronted with an event that involved actual or threatened death or serious injury, or a threat to the person’s, or other people’s, physical integrity; and (b) the person’s response to that event involved intense fear, helplessness or horror…
[12] June 1994.
39. An essential feature of post traumatic stress disorder is the development of symptoms following an exposure to an extreme stressor, which may be by experiencing it, witnessing it, or being confronted with it. This is a required element for a diagnosis, according to the fourth edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders.
40. At about the time of the second claim, Dr I P Burges Watson, who was involved with Mr Benson’s treatment in Tasmania, referred to his symptoms of post traumatic stress disorder, periodic alcohol abuse and depressive symptoms as being related to Mr Benson’s unresolved guilt feelings “regarding his responsibilities as a section commander in Vietnam”.[13]
[13] T4 at p 67.
41. It should be noted from this brief history that there was complete agreement in filed medical reports that Mr Benson suffered from post traumatic stress disorder, allowing that some practitioners did consider that Mr Benson had features of depression as well. An examining medical officer for the Northern Territory Government on 7 January 1997 emphasised that Mr Benson’s “severe” post traumatic stress disorder impacted on his work as a prison officer, and recommended his retirement because of the risk to his safety and that of others.[14]
[14] T4 at p 63.
42.
Since the decision cancelling Mr Benson’s pension, there have been further medical reports confirming the diagnosis of post traumatic stress disorder.
Dr S Jenkins, the psychiatrist who has treated Mr Benson since 2007, confirmed in oral and written evidence that what Mr Benson had described to him as happening in Vietnam amounted to being confronted with a stressor, even taking into account variations in the detail of history Mr Benson has provided from time to time. He said he had “no clinical doubts whatsoever” that Mr Benson’s post traumatic stress disorder was entirely related to stressors during his active service. [15] In that regard Dr Jenkins emphasised the impact upon Mr Benson of the death of one of his friends, Bluey Driscoll, one of seven soldiers killed in the armoured personnel carrier (“APC”) incident (referred to above in Dr Abusah’s report).
[15] Report dated 24 January 2008, T4 at pp 320-321.
43. I would note here that the respondent did not seek any medical evidence in support of its case. No medical material suggested any error of diagnosis; nor was there medical opinion to suggest that Mr Benson’s experience of the APC incident should not be construed as an experience where he was “confronted with” death or serious injury. In other words, there was no contrary medical evidence on the matter material to the ultimate issue, the connection between his psychiatric disturbance and his war service.
44. The next question is to consider how the re-opening of Mr Benson’s previously determined pension entitlements came about.
45.
The first document suggesting any investigation of Mr Benson’s entitlements was on foot was a letter from a Mr D Chitty of “Adventure Guides Australia” addressed to a departmental officer, Mr B Hampson. In this letter, Mr Chitty addressed questions apparently posed to him in a prior communication from
Mr Hampson.[16] Mr Chitty explained that it was first thought that the APC incident was caused by a land mine, but it was later shown that a rocket propelled grenade had been fired at the APC, entering it and exploding claymore mines contained in ammunition boxes on which the troops had been seated. The losses were seven dead and three wounded.
[16] The respondent cannot now locate a copy of the initiating letter as is explained at T4, p 340.
46.
This was some confirmation that an incident of the kind referred to by
Mr Benson had taken place. The respondent did not obtain an historian’s report.
47. Four days later, two departmental officers taped an hour-long interview with Mr Benson. Questioning focused on whether Mr Benson held the rank of corporal at the time. Mr Benson explained that he had been training as a corporal and acting at that level. But he did agree that he had not been in charge of those killed and injured in “Operation Overlord”.[17] Mr Benson was also questioned about why his service records indicated that he had not left Nui Dat.
[17] T4at pp 80–124.
48. It is now confirmed that Mr Benson was a corporal and that he had indeed been sent out from Nui Dat as part of Operation Overlord, despite this fact not later appearing on his records. Mr Benson produced a number of lay witness accounts confirming this. In any event, s 119 of the Act ought to have suggested some caution with respect to possible gaps in historical records.
49. The investigators also produced to Mr Benson a copy of his service pension claim form, completed by him in 1997. Mr Benson wrote, in answer to a question referring to his “experiences of danger from hostile forces of the enemy”:
I was out bush on “Operation Overlord” Jun/Jul 1971. It had been my intention to go out on a TAOR (Tactical Area of Responsibility) but I was kept behind at the last moment. All of my section were killed by claymore mines thrown into the APC. I and a group of ARVN (Army of the Republic of Vietnam) troops went out to make contact with the V.C. (Vietcong) This we did, there was a fire fight with blood and entrails plus drag marks. This was an entire dangerous experience. See attachment from “the Battle of Long Khan” by M English.[18]
[18] Exhibit R4.
50. Mr Benson admits that this was an exaggeration. Mr Stoner however conceded that this material would not be relevant for matters under s 31(4) of the Act, presumably on the basis that the material post-dated the decisions on disability pension; did not relate to a pension under Part II of the Act; and, therefore, would not be evidence before the Commission when it made decisions about disability pension.
51. It is the case that this Tribunal’s role when conducting an administrative review is not to examine the delegate’s reasoning in reaching his conclusions. Rather, the Tribunal’s task is to make the correct or preferable decision taking into account all relevant evidence. I note the delegate concluded that Mr Benson’s history to Dr Abusah was false and misleading.[19]
[19] The test in s 31(4), of course, is not “false and misleading”—a matter pointed out by the Court in Godwin at (2008) 102 ALD 286 at 294 [23], where a delegate had also misstated the test.
52.
However when one looks at the material as a whole, I do not agree that
Mr Benson overstated his claim as it relates to his experience of the APC incident. He has not claimed immediacy or proximity. He has not claimed to have seen more than smoke and hearing the explosions, some distance away. Those are the background facts that he presented to doctors who examined him and to my mind it does not detract from the ultimate conclusion with respect to causation. Some doctors have referred to his experience as “witnessing” and others as “being confronted by” the trauma. The central fact to his case was that despite his distance from it, he was confronted by its occurrence and distressed by then hearing in the following days the graphic and harrowing accounts of what had happened to the men.
53. As Mr Piper submitted, correctly, discussions about Mr Benson’s rank and whether or not he had been in charge of men killed and injured in this action was of little relevance to the task at hand. These were peripheral matters. They did not go to “a material particular”, nor were they matters “affecting the rate of pension”.
54. What we know of the APC event, from Mr Benson’s accounts[20] and other lay evidence, was set out by Mr Stoner in his written submissions as follows:
(a) Mr Benson knew the other soldiers who went out on the APC, but in particular he knew Private Driscoll;
(b) he had spoken to Private Driscoll about going out on the APC with the others, as was suggested to him by Private Driscoll, but was refused permission;
(c) he saw the APC on the brow of a hill, then it disappeared down the road; later, he heard a number of explosions and saw in the distance several puffs of dirty, orange-coloured smoke;
(e) later on again, he heard radio chatter confirming there had been a contact with the enemy, and that an APC had been hit;
(f) Mr Benson was deeply distressed because they were a close group, and because he had a particular relationship with Private Driscoll;
(g) there was much discussion about the incident on the base in Nui Dat, and two days later someone said all that was found of Private Driscoll was his little finger. For Mr Benson to know Private Driscoll was dead was bad enough, but thoughts of him being in that state were even more horrifying.
[20] T4 at p155.
55. Anyone with experience in this jurisdiction would readily appreciate that these are sufficient facts to support reliance on a stressful event as the precursor to the development of post traumatic stress disorder. Bearing in mind the favourable standard of proof applying to war veterans, it seems tolerably clear that the claims when they were lodged in 1995 and 1996 were properly granted under the relevant Statements of Principles.
56. It follows that I am not reasonably satisfied that there was evidence, false in a material particular, before the Commission when it made its decision.It is true that these claims were granted on limited evidence, but even then the evidence confirmed important elements in a chain of causation, linking Mr Benson’s experiences in Vietnam and the onset of post traumatic stress disorder. These elements are again confirmed in Dr Jenkins’ restatement that his experiences amounted to being “confronted with” trauma.
57.
One looks but cannot find, in Mr Benson’s case, what was evident in other cases where cancellations have been upheld in the Tribunal and in Courts: fabricated evidence; events that did not occur at all; and patently incorrect diagnoses subsequently disproved by later medical evidence. There is none of that in
Mr Benson’s case.
58. As to what Mr Benson wrote and now acknowledges as untrue in his service pension claim form, I agree with Mr Stoner’s concession that this material is not relevant. Mr Benson’s remarks on his service pension claim form were made well after the disability claims were determined and they were not made in relation to any claim for pension under Part II of the Act. This material was not before the Commission when determining the claims. For much the same reason, this was not material that could be described as “a matter that affects the payment of a pension” that was not before the Commission when the decision to grant the pension was made: s 31(6) of the Act. Whatever the reason for Mr Benson’s exaggeration with respect to this other, later, claim it does not erode the otherwise truthful account he gave with respect to his pension entitlements.
59. Accordingly, I would set aside the decision under review and substitute the decision that Mr Benson's pension entitlements for post traumatic stress disorder, alcohol abuse and irritable bowel syndrome should not have been cancelled.
60.
Having set aside the decision under review, Mr Benson’s pension will be restored from the date it was reduced. In that regard, the delegate’s decision to back-date the date of effect by in excess of 10 years appears to have been an unduly harsh exercise of the available discretion. Bearing in mind that the powers in s 31 are discretionary, the respondent should more carefully consider whether to cancel or reduce pension when there is an adverse finding on the preliminary matters. In many instances it could well be the case that a veteran might be entitled on other grounds, even in instances where false evidence was previously given.
Mr Stoner acknowledged as much in his submissions.
DECISION
61. The Tribunal sets aside the decision under review and substitutes the decision Mr Benson’s pension entitlements for post traumatic stress disorder, irritable bowel syndrome and alcohol abuse should not have been cancelled. Pension is restored with effect from 18 February 1995.
I certify that the 61 preceding paragraphs are a true copy of the reasons for the decision herein of M J Carstairs, Senior Member.
Signed: ...............................[Sgd]............................
Mátyás Kochárdy, AssociateDates of Hearing 18, 19, 20 November & 22 December 2010
Date of Decision 1 April 2010
Solicitor for the Applicant Mr Bill Piper
Advocate for the Respondent Mr John Stoner
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