De Lisle and Repatriation Commission
[2007] AATA 1453
•21 June 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1453
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V 200501000
VETERANS' APPEALS DIVISION ) Re ROGER BROCK DE LISLE Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr Gordon Hughes, Member Date21 June 2007
PlaceMelbourne
Decision The Tribunal affirms the decision under review. (sgd) Gordon Hughes
Member
VETERANS’ AFFAIRS ‑ pension bonus scheme – whether a person is qualified to receive a pension bonus if an age service pension has previously been received – lack of Tribunal discretion
Veterans' Entitlements Act 1986 sections 5Q, 5QA, 7A, 45TB, 45TC, 45TH, 45TJ, 45TK
Veterans' Affairs Legislation Amendment (Budget Measures) Act 2000
Social Security Act 1991 section 92C
Re Dumic and Secretary, Department of Family and Community Services [2001] AATA 932
Re Brutnell and Secretary, Department of Family and Community Services [2002] AATA 436
Re Schmidt and Secretary, Department of Family and Community Services [2002] AATA 961
Re Kleimeyer and Secretary, Department of Employment and Workplace Relations [2005] AATA 866
Re Heller and Secretary, Department of Families, Community Services and Indigenous Affairs [2006] AATA 643
REASONS FOR DECISION
21 June 2007 Dr Gordon Hughes, Member 1. This matter was heard before the Tribunal on 21 May 2007.Mr Roger De Lisle (the Applicant) represented himself. Mr Robert Douglass, an advocate with the Department of Veterans’ Affairs, represented the Repatriation Commission (the Respondent).
2. The Applicant was registered as a member of the pension bonus scheme, established under the Veterans' Entitlements Act 1986 (the Act), on 13 December 2002. The Applicant’s membership was revoked by the Respondent on 5 May 2005. This decision was affirmed by a Senior Delegate of the Respondent on 7 October 2005. The Applicant sought review of the decision by the Tribunal on 4 November 2005.
Pension Bonus Scheme
3. The pension bonus scheme is intended to provide an incentive for veterans to remain in the workforce. A person who is qualified for an age pension or age service pension is entitled to delay his or her retirement, thereby becoming entitled to receive a tax-free lump sum bonus payment, in addition to receiving the ongoing age service pension when he or she eventually ceases working. The bonus becomes payable on the effective date of retirement. The principal formalities involve initial registration and a subsequent formal claim upon retirement.
LEGISLATION
4. The pension bonus scheme is addressed in Part IIIAB of the Act. Section 45TC(1) of the Act sets out the qualifications:
(1) A person is qualified for a pension bonus if:
(a)the person starts to receive an age service pension at or after the time when the person makes a claim for the pension bonus; and
(b)the person has not received an age service pension at any time before making a claim for the pension bonus; and
(c)the person is registered as a member of the pension bonus scheme; and
(d)the person has accrued at least one full-year bonus period while registered as a member of the pension bonus scheme; and
(e)the person has not received:
(i)a social security pension (other than a carer payment); or
(ii)a social security benefit; or
(iii)a service pension (other than an age service pension or a carer service pension); or
(iv)income support supplement (other than income support supplement that is payable as a result of the operation of subclause 8(3) of Schedule 5);
at any time after the person’s special date of eligibility for an age service pension; and
Note: Even though the person may not have actually received an amount of social security pension or benefit because the rate of the pension or benefit was nil, in some cases the person will be taken to have received the pension or benefit if adjusted disability pension (within the meaning of section 118NA) was payable to the person or the person’s partner: see subsection 23(1D) of the Social Security Act.
(f) the person has not already received:
(i) another pension bonus; or
(ia) DFISA bonus; or
(ii)a bonus under Part 2.2A of the Social Security Act.
Pension Age
5. Under section 5Q of the Act, pension age is defined by reference to section 5QA. Section 5QA(2) provides that a male veteran reaches pension age when he turns 60 years.
Special Date of Eligibility
6. Section 45TB(1) of the Act defines the special date of eligibility for an age service pension:
For the purposes of this Part, a person’s special date of eligibility for an age service pension is the first day on which the person becomes eligible for an age service pension.
7. In the case of the Applicant, the special date of eligibility is 1 January 2001. Although the Applicant turned 60 years of age on 15 May 2000, members of the Royal Australian Navy who had served in the Far East Strategic Reserve were at that time excluded from eligibility. This exclusion was removed by an amendment to section 7A(1)(b) which was introduced by the Veterans' Affairs Legislation Amendment (Budget Measures) Act 2000 schedule 4 and which came into effect on 1 January 2001.
Registration
8. In relation to registration, section 45TJ of the Act provides:
A person’s membership of the pension bonus scheme begins on the date on which the registration of that membership takes effect and continues until the membership is cancelled under this Act.
9. Generally, registration will occur when a person reaches pension age. Section 45TH(1)(a) of the Act states that if a person's special date of eligibility occurs on or after 1 July 1998, the person must lodge an application during the period that begins 13 weeks before the person’s special date of eligibility for the designated pension and ends 13 weeks after that date, although the Commission is given the discretion pursuant to section 45TH(3) to extend this period.
Cancellation of Pension Bonus
10. Section 45TK of the Act addresses cancellation of a person's membership of the pension bonus scheme:
A person’s membership of the pension bonus scheme is cancelled if:
(a)the person’s claim for pension bonus is determined; or
(b)in a case where the person is eligible for an age service pension—the person starts to receive:
(i)a social security pension (other than a carer payment); or
(ii)a social security benefit; or
(iii)a service pension (other than an age service pension or a carer service pension); or
(iv)income support supplement (other than income support supplement that is payable as a result of the operation of subclause 8(3) of Schedule 5);
at any time after the person’s special date of eligibility for an age service pension…
FACTS
11. The Applicant was paid an age service pension between 1 January 2001 and 20 April 2001. In an undated witness statement the applicant stated that he applied for the pension as a filler between jobs. In April 2001 he started a new job as a lecturer in journalism at RMIT University, whereupon his pension was reduced to nil because the combined income of the Applicant and his partner was then in excess of the income test threshold.
12. On 3 December 2002, the Applicant lodged an application for registration as a member of the pension bonus scheme. He lodged an application for the pension bonus on the same day.
13. On 13 December 2002, the Applicant received two letters from the Respondent which he regarded as being inconsistent. His confusion was compounded by the fact that both letters were sealed in the same envelope.
14. In the first letter, a delegate of the Respondent advised that the Applicant's application for registration was accepted. The letter stated:
…
As delegate of the Repatriation Commission I have decided you are eligible [emphasis added] to register for this Scheme and your registration is effective from 20 April 2001, the date you ceased to be eligible for payment of service pension. You have been registered as an accruing member of the Scheme effective this date.
…
15. The second letter, contained in the same envelope, and from the same delegate, stated:
…
As a delegate of the Repatriation Commission I have decided you are ineligible [emphasis added] to claim for payment of a Pension Bonus as a person must not receive the following at any time after the person's special date of eligibility, that being 1 January 2002.
·a social security pension (other than an aged pension or carer payment)
·a social security benefit; or
·a service pension (other than a carer service pension); or
·an income support supplement pension (other than an income support supplement paid to a carer).
…
16. The Applicant's confusion was heightened by two facts. First, he had made it clear in his application form for registration that he was a prior recipient of an age service pension; secondly, the first of these letters actually referred to and acknowledged the fact that a prior service pension had been received.
17. The Applicant told the Tribunal that, upon receipt of this inconsistent correspondence, he telephoned the Respondent and was told to ignore the letter which advised him that he was ineligible. In the event, the Applicant's registration remained on foot until May 2005. In the interim he received an evidentiary certificate for the period between 20 April 2002 and 20 April 2003, certifying that he was an accruing member of the pension bonus scheme.
18. On 5 May 2005, the Respondent formally rescinded the original decision to grant registration. The letter from the Respondent advising of the rescission cited the fact (previously alluded to by the Applicant in his application for registration in 2002) that the Applicant had applied for a service pension in December 2000 and received payments from 1 January 2001 to 20 April 2001. The letter to the Applicant stated:
…
Policy states that a person cannot become a registered member of the Pension Bonus Scheme with [the Respondent] if the person(s) has previously received, but is not currently receiving an excluded payment since that person's special date of eligibility.
…
19. The advice provided on 5 May 2005 was in fact incorrect to the extent that it ascribed the Respondent's position to policy. In fact it was a legislative requirement, not policy, which prevented registration.
20. On 5 July 2005, the Applicant applied for a review of the Respondent's decision of 5 May 2005. In his application, the Applicant stated:
…
My entry into the scheme on 20 April 2001 was via a successful appeal brought about because I had drawn a service pension for approximately 14 weeks prior to my application to register for the Pension Bonus Scheme. Had I known about the scheme and its requirements I would not have applied for the service pension – but there was little information distributed about the conditions of the PBS at that time. It was by chance I read about the scheme in a newsletter published by the Far East Strategic Reserve Association.
…
21. On 7 October 2005, the Applicant was notified that the previous decision to rescind his registration had been affirmed. The reasons for decisions stated that:
…
In order to receive a pension bonus a person must be registered for the scheme and satisfy all relevant statutory criteria for the scheme. They must also have not received an excluded payment since their special date of eligibility, which in Mr De Lisle's case was 1 January 2001, the date of the extension of eligibility to FESR veterans.
…
Mr De Lisle received an excluded payment when he was paid the age service pension during the period 1 January 2001 to 20 April 2001, which was after his special date of eligibility. Therefore, even if his membership of the Pension Bonus Scheme had not been cancelled, a bonus could not be paid to him.
DECISION
22. The Applicant read to the Tribunal from a prepared statement. It is appropriate to reproduce that statement in full:
I believe I have been the victim of defective administration through several decisions made by the Department of Veterans' Affairs.
The first occasion was in March 2001 when I applied for the aged service pension.
During this process at no time was I advised that by taking the service pension I was jeopardising entry into the Pension Bonus Scheme. I believe the DVA staff involved in processing my application for the service pension were derelict in their duty in as much they did not advise me about the scheme {Pension Bonus Scheme} and the eligibility criteria. Had they done so I would have withdrawn my application for the aged service pension as it was only filler between jobs and lasted only 13 weeks.
I was subsequently enrolled in the Pension Bonus Scheme in December 2002, despite the fact that I received two letters in the one envelope with one letter stating that I was eligible for the Pension Bonus Scheme and the second letter stating that I was ineligible… To add further to the confusion, the letter stating I was eligible was addressed to Mr De Leslie.
…
23. Mr Douglass for the Respondent submitted, on the other hand, that the cancellation of the Applicant's registration, whilst belated, was nevertheless in accordance with the prevailing legislation. The prior receipt by the Applicant of an age service pension disentitled him to register for the pension bonus scheme.
24. Mr Douglass referred to a number of decisions of the Tribunal which emphasised the lack of discretion to ameliorate the application of a strict interpretation of the legislation. The majority of these cases referred to section 92C of the Social Security Act 1991, which is the equivalent of section 45TC of the Act.
25. In ReDumic and Secretary, Department of Family and Community Services [2001] AATA 932, the Tribunal decided that the applicant was ineligible to receive the pension bonus under the Social Security Act 1991 due to the prior receipt of an age pension and disability support pension, notwithstanding the applicant's submission that had he been aware that the receipt of such payments would preclude him pursuing a pension bonus, he would have elected not to have claimed those benefits. Member Cowdry observed that the Tribunal has no discretion in this matter and therefore the applicant does not qualify for a payment of pension bonus.
26. In Re Brutnell and Secretary, Department of Family and Community Services [2002] AATA 436, the Tribunal decided that the applicant was disqualified from receiving a pension bonus under the Society Security Act 1991 due to the prior receipt for brief periods in 1994 and 1995 of sickness benefits from the Department of Social Security when she had been forced through illness to take time off work.
27. In Re Schmidt and Secretary, Department of Family and Community Services [2002] AATA 961, the Tribunal rejected an appeal from an applicant who sought to register as a member of the pension bonus scheme after having commenced to receive an age pension, the applicant submitting that he had not been aware of the existence of the pension bonus scheme when he applied for the age pension.
28. In ReKleimeyer and Secretary, Department of Employment and Workplace Relations [2005] AATA 866, the Tribunal rejected an application by an applicant who had lodged a claim for pension bonus in November 2004 after having been in receipt of an age pension with effect from April 2004, notwithstanding that he had previously raised a query in May 2004 regarding his entitlement to a retrospective payment of the pension bonus and notwithstanding also that his accountant had provided incorrect advice regarding the implications of applying for the age pension. Member Christie observed:
…
Whilst this decision may seem harsh, it would probably be more appropriate to describe the outcome as unfortunate. There is no discretion provided in the legislation to deal with the factual circumstances of the applicant in any other way.
29. In Re Heller and Secretary, Department of Families, Community Services and Indigenous Affairs [2006] AATA 643, the Tribunal dismissed an appeal by an applicant who failed to lodge a claim for pension bonus within the prescribed period, notwithstanding a failure by the respondent to inform the applicant that, contrary to the applicant's belief, a valid claim had not been lodged and notwithstanding allegedly misleading and deficient written advice from the respondent.
30. In ReKondos and Secretary, Department of Families, Community Services and Indigenous Affairs [2006] AATA 997, the Tribunal rejected an appeal from an applicant who, after commencing to receive the age pension, became aware of his possible entitlement under the pension bonus scheme. Member Constance observed:
…
Unfortunately for Mr Kondos, the Act provides no discretion in relation to the requirement that a person not have received an age pension at any time before making a claim for the pension bonus. Section 92C is quite clear in setting out the requirements for eligibility for the bonus and the simple fact is, Mr Kondos did receive a pension prior to making his claim for the bonus. As a result he does not meet all of the requirements set out in section 92C and therefore does not qualify for a pension bonus.
…Unfortunately, this Tribunal has no power to remedy what Mr Kondos will no doubt continue to see as a substantial injustice.
31. These prior decisions emphasise that the Tribunal has consistently concluded that it lacks discretion under the legislation to make allowance for seemingly perverse outcomes confronting individuals, including circumstances in which individuals have relied upon direct or implicit advice from the Respondent or others as to their respective entitlements.
32. One cannot help but feel sympathy for the Applicant. Unfortunately, however, his application cannot succeed. Section 45TC(1)(b) of the Act disqualifies a person from eligibility for a pension bonus if that person has received an age service pension at any time before making a claim for the pension bonus. The Respondent was correct when it determined the Applicant's claim for pension bonus on 13 December 2002. Accordingly, the Applicant's entitlement to membership of the pension bonus scheme must be cancelled pursuant to section 45TA(a) of the Act.
33. It is perhaps relevant to note that in both Re Heller and Re Kleimeyer the Tribunal recommended that the Applicant give consideration to his or her entitlement under the Commonwealth policy entitled Scheme for Compensation for Detriment Caused by Defective Administration. The Tribunal's understanding is that the Applicant in these proceedings is pursuing a similar course of action.
34. For the above reasons, the Tribunal affirms the decision under review.
I certify that the thirty‑four [34] preceding paragraphs are a true copy of the reasons for the decision of:
Dr Gordon Hughes, Member
signed: Olympia Sarrinikolaou
Clerk
Date of hearing: 21 May 2007
Date of decision: 21 June 2007
Advocate for the applicant: Self‑represented
Solicitor for the respondent: Mr R. Douglass, Department of Veterans’ Affairs
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