Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 567
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2003/1530
VETERANS' APPEALS DIVISION ) Re IAN THOMAS BOTFIELD Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Michael Sassella, Senior Member Date3 June 2004
PlaceSydney
Decision The cancellation decision under review is affirmed. [sgd] M J Sassella
Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS – Service Pension – cancellation of pension – pension not payable because rate of payment nil – veteran failed to comply with notice requiring him to notify department if income and assets details listed were incomplete – situation of false representation arose – veteran’s non-compliance was innocent – cancellation of pension valid – cancellation retrospective to date of effect of decision to grant pension
Veterans’ Entitlements Act 1986 ss 54, 54A(1), (4), (6), (8), 56, 56A, 56EA(1), 56EC(1), 56H(2), (4), (5), 57(2), 57A, 57B(1), 135, 175, (2)
Administrative Appeals Tribunal Act 1975 s 25
Re Dingli and Secretary, Department of Social Security (AAT 11436, 28 November 1996)
Re Okon and Secretary, Department of Social Security (AAT 12234, 11 September 1997)
Re Secretary, Department of Family and Community Services and Inglis [2000] AATA 667
Re King and Secretary, Department of Social Security (AAT 9481, 20 April 1994)
McAuliffe v Secretary, Department of Social Security (1991) 23 ALD 284
REASONS FOR DECISION
3 June 2004 Michael Sassella, Senior Member RESULT
Mr Botfield’s Service Invalidity Pension was correctly cancelled under ss 56EA(5) and 56H(5) of the Veterans’ Entitlements Act 1986. Mr Botfield innocently failed to comply with a notice requiring him to check the completeness of certain material. As a result he was paid a pension to which he was not entitled for a period of time. DVA has raised and is recovering the resulting overpayment from Mr Botfield. The AAT has no jurisdiction to comment or rule on the debt recovery decision or arrangements.
BACKGROUND
1. Ian Thomas Botfield (“the applicant”), born 19 February 1949, served in the Australian Army from 1971 until 6 August 2000. He was granted a Disability Pension with effect from 8 August 2000. He was granted a Defence Force Retirement and Death Benefits (“DFRDB”) Authority pension with effect from 7 August 2000. On 19 June 2001 Mr Botfield claimed a Service Invalidity Pension from the Repatriation Commission (“the respondent”). On 4 July 2001 a delegate in the Department of Veterans’ Affairs (“DVA”) decided to grant the Service Invalidity Pension with effect from 13 June 2001, the disability cited was post-traumatic stress disorder.
2. On 20 August 2002 Mr Botfield told DVA about his DFRDB pension and the rate he was receiving. This was sufficient to mean that Mr Botfield had qualified for a nil rate of Service Pension from the time it was granted. On 17 September 2002 an officer in DVA took the necessary steps to cancel the Service Pension with effect from 13 June 2001. This generated an overpayment of $11,144.36 that DVA sought to recover. Mr Botfield is repaying the amount at $115 a fortnight.
3. On 7 May 2003 Mr Botfield sought an internal review of the delegate’s decisions under ss 57(2) and 57A of the Veterans’ Entitlements Act 1986 (“the Act”)[1]. On 25 June 2003 a delegate affirmed the earlier decision using powers under s 57B(1) of the Act. Mr Botfield’s pension remained cancelled and the debt remained recoverable.
[1] 30 September 2003 Mr Botfield applied to the Administrative Appeals Tribunal (“the tribunal”) for review of the decision.
TRIBUNAL JURISDICTION
5. The tribunal’s jurisdiction in the Veterans’ Appeals Division usually results from there having been a decision by the Veterans’ Review Board (“VRB”) (s 175(1) of the Act). The VRB does not, however, have jurisdiction in Service Pension cases (s 135 of the Act). Section 175(2) of the Act accords jurisdiction to the tribunal where the Repatriation Commission, under s 57B of the Act, has affirmed a decision of the Commission referred to in s 57 of the Act or has set it aside and substituted another decision.
6. This means that the tribunal can review the decision to cancel Mr Botfield’s pension. The tribunal has no power under the Act to review the overpayment decisions, ie the decision that an overpayment exists and the decision to recover the overpayment. Section 175 of the Act makes no provision for such jurisdiction. The Administrative Appeals Tribunal Act 1975[2] requires in s 25 that some other Act of Parliament, or an enactment, must provide for the tribunal to have jurisdiction before it can in fact exercise jurisdiction. There is no such provision applying to overpayments of veterans’ pensions.
[2] Botfield’s concerns are bound up in the following issues:
(a)Was Mr Botfield’s Service Pension lawfully cancelled?
(b)Did Mr Botfield make a false statement relating to receipt of his Service Pension?
FINDINGS ON MATERIAL QUESTIONS OF FACT WITH REFERENCE TO THE EVIDENCE AND OTHER MATERIAL IN SUPPORT OF THOSE FINDINGS
8. There are a number of matters worthy of note in this application. Mr Botfield referred to his DFRDB pension in answering question 32 on the Service Pension claim form. Question 32 reads, relevantly, “Do you receive … periodic superannuation payments (eg … DFRDB)?” Mr Botfield ticked the “yes” box. Next to that was a request, “Please send latest documentation you have from the paying authority.” Mr Botfield provided in response a DFRDB estimate of his forthcoming pension rate dated 12 May 2000. In oral evidence Mr Botfield explained that this was all he had available and, even though it was old, it accurately recorded his rate of DFRDB pension as actually received.
9. Mr Botfield received a letter dated 4 July 2001 notifying him of the grant of his Service Pension and of the rate of payment. This was an extensive document in the form of a three-page letter to which were attached a three-page document, “Income and Assets Used to Assess Your Payment” (“Income and Assets document”), a two-page document, “Important Information You Should Retain” and a two-page document, “General Information on Service Pension Rates and Limits”. In the Income and Assets document there was a preface stating that the document listed all income and assets of Mr Botfield as recorded by DVA and that if any details were incorrect or had been omitted Mr Botfield should notify DVA within 14 days. The DFRDB pension was omitted. Mr Botfield did not notify DVA at that time, or within the 14 days, of its absence. In oral evidence Mr Botfield said he found the documents long and confusing and the summary of income and assets appeared complete to him. He missed the absence of reference to the DFRDB pension. The same thing happened when he received later similar letters.
10. In oral evidence Mr Botfield explained how he came to claim Service Pension. He visited the DVA office in Wodonga. The officer there could not say whether he qualified for a pension and he was invited to complete a form to test his eligibility. He completed the forms and was granted a pension. About 14 months later Mr Botfield was in the Wodonga office seeing a financial adviser. The financial adviser was apprised of the DFRDB pension and said he could not see how Mr Botfield qualified for payment of his service pension. Mr Botfield stressed that he never tried to “hush up” his receipt of the DFRDB pension. He also cooperated fully when aware that the DFRDB pension rate was causing problems as regards receipt of Service Pension.
11. Mr Botfield remains concerned about DVA file notes suggesting that he has made false statements. A written record of a telephone conversation by a DVA officer to Mr Botfield which occurred on 25 June 2001 was of concern. That record shows that the officer and Mr Botfield discussed Mr Botfield’s accommodation arrangements, his DFRDB entitlements, proof of identity, collection of tax file number and the need for more information on the invalidity. On the DFRDB payments the note states that the DFRDB has been rolled over into managed investments and that Mr Botfield is not getting regular payments. It is not clear whether this last point was a quote from Mr Botfield or was the DVA officer’s own interpretation.
Was Mr Botfield’s Service Pension lawfully cancelled?
12. Mr Botfield’s pension was lawfully cancelled. This is the result of the operation of a series of provisions in the Act dealing with the obligations of those receiving Service Pension and the consequences that follow when those obligations are met or are not met. The relevant provisions in Mr Botfield’s case are as follows.
13. Section 54A(1) of the Act permits the Secretary of DVA, or more usually his or her delegate, to give a person who is receiving a pension or whose claim for a pension is under consideration a notice “that requires the person to give the Department, or an officer specified in the notice, a statement about a matter that might affect” the payment to the person of the Service Pension. Section 54A(4) requires that the recipient be given at least 14 days in which to comply with the notice. There is a penalty under s 54A(6) for failure to comply with the notice unless the person is not capable of complying (s 54A(8)).
14. I find that the notice given to Mr Botfield in the Income and Assets document was a notice under s 54A(1) of the Act. Mr Botfield was asked for a statement about a matter, namely whether all income and assets items had been noted, that might affect payment of Service Pension to him. I find that Mr Botfield failed to comply with that notice.
15. Section 56EA of the Act applies where a person has failed to comply with a s 54A notice. Section 56EA(1) provides that where a person who is receiving a Service Pension is given a notice under s 54A, and he or she fails to comply with the requirements set out in the notice, then the Commission may determine that the pension is to be cancelled or suspended. In the present circumstances, where Mr Botfield had not complied with the s 54A notice, it was open to the respondent to cancel Mr Botfield’s pension.
16. A note in s 56EA of the Act suggests that s 56H of the Act provides for the date of effect of an adverse determination such as a cancellation. The assumption in s 56H(2) is that it takes effect on the day it is made, in this case on 17 September 2002 (see [2] above) or, failing that, on a day later than the determination.
17. However, the various provisions permitting a cancellation from an earlier date do not clearly apply in the case of a non-compliance with s 54A, as occurred here. What Mr Botfield did was innocently fail to notify that the list of income and assets items was incomplete. Section 56H(4), which allows a retrospective cancellation where there has been a contravention of the Act, expressly does not apply to contravention of s 54A of the Act. I cannot see why such a policy has been incorporated into the legislation, but it has been.
18. Section 56EA(5) permits retrospective cancellation where there has been a false statement or misrepresentation. It is arguable that Mr Botfield made no false statement or misrepresentation because he took no active step in response to the s 54A notice. However, I consider that a misrepresentation can occur by inaction. There is support for this in cases such as Re Dingli and Secretary, Department of Social Security (AAT 11436, 28 November 1996), Re Okon and Secretary, Department of Social Security (AAT 12234, 11 September 1997) and Re Secretary, Department of Family and Community Services and Inglis [2000] AATA 667.
19. Mr Botfield’s failure to respond to the s 54A notice dated 4 July 2001 resulted in the creation of an erroneous impression that the totality of his income was reflected in the Income and Assets document when that was not the case. It is well established in cases such as this that a false representation can arise where statements are made that are objectively untrue although the maker of the statements believes them to be true (Re King and Secretary, Department of Social Security (AAT 9481, 20 April 1994)[3], McAuliffe v Secretary, Department of Social Security (1991) 23 ALD 284). I therefore find that s 56H(5) permits cancellation from a date earlier than the date of the cancellation determination.
[3] Available on website:20. Section 56EC(1) of the Act also applies in Mr Botfield’s case to permit a cancellation decision. That provision states that the Commission may determine that the pension is to be cancelled where the pension is not payable to the person because the rate would be nil. Section 56H again is invoked to determine the earliest possible date of effect. However, the cancellation decision could only be prospective if it is made under s 56EC as neither 56H(4) or (5) would be applicable.
21. It was agreed between the parties that the correct rate of Mr Botfield’s Service Pension was at all times nil because of his relatively good income position. The delegate was justified in cancelling the pension as of 13 June 2001 and the delegate had the power to do this under s 56H of the Act.
22. There was discussion before me of the self-executing provisions of ss 56 and 56A of the Act which were thought to apply in this case. I consider that these have no application in Mr Botfield’s case because the notice he was given on 4 July 2001 was a notice under s 54A, not s 54. A s 54 notice requires a person to notify a change of circumstances. Mr Botfield did not fail to notify a change of circumstances. He failed to provide requested information. In the latter situation there are no automatic termination provisions applicable.
Did Mr Botfield make a false statement relating to receipt of his Service Pension?
23. As was explained above in [18]-[19] Mr Botfield did not intend making a false statement or misrepresentation relating to receipt of his Service Pension. However, he innocently failed to comply with a notice from DVA. This had the effect of creating a misrepresentation of his financial situation.
CONCLUSION
24. I have decided that Mr Botfield’s Service Invalidity Pension was correctly cancelled under ss 56EA(5) and 56H(5) of the Act. Mr Botfield innocently failed to comply with a notice requiring him to check the completeness of certain material. As a result he was paid a pension to which he was not entitled for a period of time. DVA has raised and is recovering the resulting overpayment from Mr Botfield. I have no jurisdiction to comment or rule on the debt recovery decision or arrangements.
DECISION
25. The cancellation decision under review is affirmed.
I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Michael Sassella, Senior Member
Signed: .....................................................................................
AssociateDate of hearing 27 May 2004
Date of decision 3 June 2004
Advocate for the applicant Self-represented
Advocate for the respondent Ms T McConnell
Details
- AGLC
- Botfield and Repatriation Commission [2004] AATA 567
- Case
- [2004] AATA 567
- Decision Date
CaseChat Overview and Summary
The case of **Case title: Botfield and Repatriation Commission** involved a dispute over the cancellation of a pension granted to the veteran under the Veterans’ Entitlements Act 1986. The veteran, Mr Botfield, had been receiving a service pension from the Repatriation Commission. The Repatriation Commission subsequently cancelled the pension, claiming that the rate of payment was nil because Mr Botfield had failed to comply with a notice requiring him to notify the department if the income and assets details listed were incomplete. Mr Botfield argued that the cancellation was not valid as his non-compliance was innocent and not a result of any false representation.
The central legal issues before the court were whether the Repatriation Commission had the authority to cancel the pension under the Veterans’ Entitlements Act 1986, and whether the cancellation was valid given Mr Botfield's innocent non-compliance. The court had to consider the relevant provisions of the Act, particularly sections 54, 54A(1), (4), (6), (8), 56, 56A, 56EA(1), 56EC(1), 56H(2), (4), (5), 57(2), 57A, 57B(1), 135, 175, (2), as well as the case law cited by both parties.
The court found that the Repatriation Commission had the authority to cancel the pension if the veteran failed to comply with the notice regarding income and assets details. Although Mr Botfield's non-compliance was innocent, the situation of false representation arose because he failed to notify the department of any changes. The court relied on previous cases, including *Re Dingli and Secretary, Department of Social Security* and *Re Okon and Secretary, Department of Social Security*, to support its finding that the cancellation of the pension was valid. The court also noted that the cancellation was retrospective to the date of effect of the decision to grant the pension, in line with *Re Secretary, Department of Family and Community Services and Inglis* and *McAuliffe v Secretary, Department of Social Security*.
The court affirmed the decision of the Repatriation Commission to cancel Mr Botfield's pension, holding that the cancellation was valid and properly executed under the relevant provisions of the Veterans’ Entitlements Act 1986.Orders
Orders of the court
The cancellation decision under review is affirmed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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