Chantrell and Repatriation Commission - [2002] AATA 280

DECISION AND REASONS FOR DECISION [2002] AATA 280

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V01/986

VETERANS APPEALS DIVISION        )
           Re      DAVID LEIGH CHANTRELL & MARY VALERIE CHANTRELL
  Applicant's
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr J. Handley, Senior Member

Date19 April 2002
PlaceMelbourne

Decision      The decision under review, in so far as it decided that the applicants were overpaid, is affirmed, save that the quantum of the overpayment be remitted to the respondent for re-calculation in accordance with these reasons.
  ...…...Sgd Mr J. Handley..........
  Senior Member
CATCHWORDS
Veterans' Entitlements - Service Pension - whether compliance by applicant with reporting obligation - whether overpaid - decision affirmed.

REASONS FOR DECISION

19 April 2002 Mr J. Handley, Senior Member

The applicants applied to review the respondent's decisions, which found that the service pension had been overpaid in the sum of $1,535.04 each. There is slight variation in the legal purport of the decisions made, but the issue in dispute is whether there was notification of earnings and whether there was an overpayment of service pension.
Initially, the respondent lodged a jurisdictional objection with the Tribunal, however after the first day of the hearing in Bendigo on 22 January, the respondent conceded that this Tribunal did have jurisdiction to review the decisions.
At the hearing, evidence and submissions were made by Mrs Chantrell on behalf of herself and her husband. Evidence was also given by Ms Vrybergen. Mr Douglass appeared on behalf of the respondent, but did not call evidence.
Subsequent to the first day of hearing in Bendigo, the application was listed for a telephone directions hearing on 28 February. When it was learnt that the respondent no longer took objection to jurisdiction, both parties submitted that their respective applications had concluded and they were in a position to make final submissions. Both parties have subsequently lodged written submissions. This decision is made having regard to the evidence heard in Bendigo, the written submissions lodged and documents lodged before and during the hearing.
The Facts
For some years prior to August 1999, Mr and Mrs Chantrell were in receipt of service pension from the respondent. They were then travelling around Australia and at August 1999 were domiciled in the Northern Territory.
On a date in August, which Mrs Chantrell could not recall, she and a friend attended the Casuarina office of the Department of Veterans Affairs where she gave notice that she had commenced employment. Mrs Chantrell said that she spoke to a receptionist. She said that she gave her name, address, telephone number and pension file number. She said that she notified the receptionist that she was reporting that she had commenced employment and gave the name and address of the school where she was working as a casual teacher. At that stage Mrs Chantrell had only been employed for one or two days. Mrs Chantrell said that she observed the receptionist write down her details on an A4 or foolscap sheet of plain paper. The receptionist informed her that no other officer was present, but that the details recorded would be passed on.
Mrs Chantrell acknowledged that she had previously received notices from the respondent notifying her of her reporting obligations. She said she notified her commencement of employment because she was aware of those reporting obligations. She said that she had also attended the Casuarina office in July of 1999 and spoke with a Department of Veterans Affairs officer - Debbie Masters - who also confirmed that she was required to notify the commencement of any employment.
Mrs Chantrell said that at the time she notified her commencement of employment, she was not aware of her salary. She assumed that the respondent would contact the Henbury School, where she was employed, and receive confirmation of employment and salary.
Thereafter, the respondent continued to pay service pension without regard to salary earnt. Mrs Chantrell said that she was not aware that pension was being paid at the pre August 1999 rate because she did not observe bank statements until she returned to her home in Adelaide in December 2000. In the interim, she said that she made eftpos withdrawals only and was not aware from time to time of the balance of her account.
In cross-examination, Mrs Chantrell said that Debbie Masters advised her that she was to notify changes in any income received at the end of each three monthly period and the respondent would then determine the applicable rate of service pension. She said that she did report her earnings in March 2000 when she also gave notice that she had ceased employment. Mrs Chantrell intended that at March 2000 she would then be reporting for the preceding 3 months having regard to advice that she previously received. Mrs Chantrell did agree that between August 1999 and January 2000 she did not make any reports and certainly she did not report on an individual fortnightly basis.
Dianna Vrybergen
Mrs Vrybergen was an employee of the Henbry School at August 1999 in Darwin. She said she met Mrs Chantrell in Darwin and when she learnt that a potential casual teaching vacancy became available she notified Mrs Chantrell who in turn applied for the position and was interviewed by the School Head Master. Eventually employment was obtained.
In August 1999 Mrs Vrybergen confirmed that she attended with Mrs Chantrell at the office of the Department of Veterans Affairs at Casuarina. She said that she and Mrs Chantrell were walking to a local picture theatre after school and coincidently they walked past the DVA office. She recalled that Mrs Chantrell then entered the office and notified a person seated at the front desk of her name, address, pension file number and the name of her employing school. She said that she was aware that Mrs Chantrell attended the office in order to report her changed circumstances. Mrs Vrybergen recalled that the receptionist indicated that she would pass on the information to another officer, but had said at the time that there was no other person present in the office.
Conclusion & Reasons For Decision
Mrs Chantrell was concerned at the hearing that her integrity and/or honesty was in issue in these proceedings. This is due to previous DVA decisions concerning her attendance at the Casuarina office.
Having observed the applicant in evidence, having read the document completed by her and having also heard the evidence from Mrs Vrybergen, I am satisfied and find as a fact that Mrs Chantrell did report to the Casuarina office of the DVA in August 1999 that she had commenced employment. It follows that I am satisfied that Mrs Chantrell is a witness of truth. I do not accept the assessments made by DVA officers that the report in August 1999 was not made. I am satisfied that it was.
However, it does not follow that there has not been an overpayment. This is because of the operation of s.56B of the Veterans Entitlements Act 1986 which reads as follows-
"Where-
(a) a person who is receiving a service pension or income support supplement is given a notice under s.54; and
(b) the notice requires the person to inform the Department or a specified officer of the occurrence of an event or change in circumstances within a specified period (in this section called the notification period); and
(c) the event or change in circumstances occurs; and
(d) the person does not inform the Department or specified officer of the occurrence of the event or change in circumstances within the notification period in accordance with the notice; and
(e) because of the occurrence of the event or change in circumstances the persons rate of pension or income support supplement is to be reduced;
then, except where otherwise provided for by this act, the pension or income support supplement becomes payable to the person at the reduced rate immediately after the day on which the event or change in circumstances occurs."
Mr Douglass provided duplicates of a number of letters forwarded to the respondent and her husband prior to August 1999. The most recent letter was on 14 June 1999. I am satisfied that the letter constitutes a 'notice' within the meaning of s.54 of the Act. It is the same 'notice' as referred to in s.56B(a). On page 2 of the letter the following paragraph appears-
"Financial obligations.
You need to tell us if your combined income increases above $204 per fortnight or your combined assets apart from your home exceed $273,000. Income includes deemed income from your financial assets and income from other sources".
Accordingly, this letter put the applicants on notice that they were obliged to report combined increases in income above $204 per fortnight to the respondent. The period of a fortnight is a "specified period" as referred to in s.56B and for the purposes of that sub-section and sub-section (d) it is the "notification period".
It follows that Mrs Chantrell and or/her husband were obliged to report to DVA each fortnight of any income earnt in excess of $204.
There was no report made fortnightly. The only report Mrs Chantrell made was the initial report at August 1999 where - in fairness - she did not then know what her salary would be. The next report made was in March 2000, which was at the expiration of a three month period, which Mrs Chantrell understood that she was obliged to make following a discussion with a Departmental Officer. There was no report made fortnightly or at all between August 1999 and March 2000 on a fortnightly basis. Yet within that period salary was paid.
The details of salary paid and the date of payment were recorded in a statement produced at the hearing signed by the school registrar dated 5 May 2000. It records that payments were made on 16 occasions within the period 8 August 1999 until 7 April 2000, which amounts to 34 weeks or 17 fortnights. Except for payments made on 8 August and 26 November the amount paid on each occasion exceeded $204.
In all of the circumstances I am satisfied that whilst Mrs Chantrell did report on behalf of herself and her husband that she commenced employment, there was no report made within the meaning of, or pursuant to, the obligations imposed by s.56B.
That part of the decision must in the circumstances be affirmed.
However, I cannot be satisfied that the amount overpaid has been correctly calculated. I make that finding largely because the methodology of calculating the overpayment is not within the T-documents, nor in any of the other documents that I can locate. I am concerned about the methodology, because the statement produced from the school contains handwriting (after the typed dates and amounts paid) which averages the amount paid for each fortnight within the period 8 August 1999 until 7 April 2000. If that averaged figure was applied to calculate the rate of service pension, it may produce an unfair or unjust result. The amount averaged considerably exceeds the sum of $204 per fortnight. However, there were occasions where the fortnightly salary was only marginally greater than $204.00.
In my view, because the reporting obligations require notification of salary earnt in excess of $204 for each fortnight, then it follows that each fortnightly payment must be calculated against the sum of $204 in order to calculate any overpayment. Any overpayment must be calculated on a fortnightly basis, not by reference to the total amount earnt during the period of employment and then by some averaging process.
Accordingly, that part of the decision under review which specified the amount overpaid should be remitted to the respondent for recalculation in accordance with these reasons.
I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J. Handley, Senior Member
Signed:         ...C. Irons ...........
  Secretary
Date/s of Hearing  22 January 2001
Date of Decision  19 April 2002
Counsel for the Applicant        self represented
Solicitor for the Applicant
Counsel for the Respondent    Mr R. Douglass
Solicitor for the Respondent