Donohue and Repatriation Commission

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 823
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/0254

VETERANS' APPEALS DIVISION )

Re BRIAN DONOHUE

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Dr M Denovan, Member
Date16 September 2008
PlaceBrisbane

Decision The Tribunal affirms the decision under review.
..................[Sgd].........................
Member

CATCHWORDS
VETERANS’ AFFAIRS – Veterans’ Entitlements – age service pension – age service pension generally not payable before claim – decision under review affirmed.
Veterans’ Entitlements Act 1986 (Cth) s 36B
REASONS FOR DECISION

16 September 2008 Dr M Denovan, Member

INTRODUCTION
1.      In a decision by a Delegate of the Repatriation Commission dated 20 September 2007 Mr Donohue was granted age service pension with effect from 12 July 2007. Mr Donohue has appealed that decision on the basis that had he received the correct information from the Department in April 2002 then he would have been paid age service pension from that date.
BACKGROUND
2.      On 12 July 2007 Mr Donohue telephoned the Department of Veterans’ Affairs and lodged an informal claim for age service pension.
3.      On 31 July 2007 Mr Donohue lodged a formal claim for age service pension.
4.      In a decision by a Delegate of the Repatriation Commission dated 20 September 2007 Mr Donohue was granted age service pension with effect from 12 July 2007.
5.      Mr Donohue was dissatisfied with the date of effect of that decision. On 16 October 2007 he lodged a request for a review of that decision.
6.      On 10 January 2008 the decision was affirmed by a delegate of the Repatriation Commission.
7.      The application for review by the Administrative Appeals Tribunal was lodged on 21 January 2008.
ISSUE FOR DETERMINATION AND RELEVANT LEGISLATION
8.      The issue is whether Mr Donohue can be paid age service pension from an earlier date.
MR DONOHUE’S EVIDENCE
9.      Mr Donohue gave evidence in person at the hearing and the following is the gist of what he said.
10.     Mr Donohue approached the Vietnam Veterans’ Association in Parramatta in September 2001 at which time he was told that he was not entitled to service age pension because of the combined superannuation assets of himself and his wife.
11.     Mr Donohue was given similar advice when he consulted an advocate at a naval association in Queensland.
12.     Early in 2002 Mr Donohue heard a community announcement advertising the availability of Department of Veterans’ Affairs Delegates for consultation in Bundaberg. Mr Donohue made an appointment so that he could make enquires as to the accuracy of the information he had received regarding his eligibility for service age pension. On 17 April 2002 Mr Donohue visited a Departmental Officer David McKenzie when the Department of Veterans’ Affairs visited Bundaberg. Mr McKenzie repeated the same advice Mr Donohue has received regarding his ineligibility for a service pension.
13.     Mr Donohue became aware that the means test had changed for service age pension and in July 2007 he lodged an application.
CONSIDERATION
14.     Mr Donohue feels that he was prevented from lodging a claim for age service pension on 17 April 2002 because of the incorrect information provided to him by the Department of Veterans’ Affairs delegate. His advocate, Mr Payne referred to the beneficial nature of the legislation, and asked the Tribunal to backdate the applicant’s age service pension to 17 April 2002.
15.     The respondent accepts the evidence of the applicant, however contends that the legislation does not allow for the backdating earlier than the date of claim. The respondent further contends that Mr Donohue made enquires only on 17 April 2002 and did not lodge either a formal or informal claim on that date.
16. The relevant legislation is contained in the Veterans’ Entitlements Act 1986 (“the Act”).
“Section 36B of the Act provides as follows:
36B Age service pension generally not payable before claim
Provisional commencement day
(1)An age service pension is not payable to a veteran before the veteran's provisional commencement day.
(1A)Subject to subsection (2), a veteran's provisional commencement day is the day on which the veteran claims the age service pension.
Initial incorrect claim followed by proper claim

(2) If:
(a) a veteran makes a claim (in this subsection called the initial claim) for age service pension; and
(b) the claim is not a proper claim; and
(c) on the day on which the veteran makes the initial claim, the veteran is eligible for age service pension; and
(d) the veteran subsequently makes a proper claim:
(i) within 3 months after being notified that the initial claim was not a proper claim; or
(ii) if the veteran was not so notified--at any time;
then the veteran's provisional commencement day is the day on which the initial claim was lodged.”

17.     I accept that on or around 17 April 2002 the applicant would likely have lodged a claim for age service pension had he realised that he was eligible. It is Mr Donohue’s evidence that he did not claim age service pension until 2007, and whilst the legislation is of a beneficial type, that does not extend to the Tribunal the power to ignore the fact that no claim was lodged before July 2007.
18.     Mr Stoner advised the Tribunal that Mr Donogue’s letter dated 16 January 2008[1] has been passed on to the appropriate authority for consideration as to whether Mr Donogue has any recourse for defective administration.
[1] Exhibit 7 F65
19.     I find that Mr Donohue claimed for age service pension on 12 July 2007 and not before. I therefore affirm the decision under review.

I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Dr M Denovan, Member
Signed:         ...........................[Sgd]....................................................
  Elizabeth Young, Research Associate
Date/s of Hearing  14 August 2008
Date of Decision  16 September 2008
For the Applicant  Mr Noel Payne, advocate
For the Respondent                  Mr John Stoner, departmental advocate

In this case, the Repatriation Commission sought to review a decision to grant an age service pension to the applicant, Donohue, who claimed the pension should have been payable from the date of his separation from service rather than from the date he lodged his application. The dispute was heard by the Administrative Appeals Tribunal. The central issue before the Tribunal was whether the age service pension was payable from the date of the veteran's separation from service or from the date of the application for the pension, in accordance with the Veterans’ Entitlements Act 1986. Specifically, the Tribunal had to interpret the relevant statutory provisions to determine the correct date from which the pension should commence.

The Tribunal considered the plain meaning of the statutory language and the purpose behind the legislation. It concluded that the statutory provisions clearly indicated that the pension was not payable before a claim was made. The Tribunal rejected the argument that the pension should be backdated to the date of separation, finding that such an interpretation would defeat the purpose of the statutory requirement for a claim. The Tribunal affirmed the Commission's decision, holding that the pension was correctly payable from the date of the application.

The Tribunal's decision was based on a strict interpretation of the statutory language, which required a claim to be made before the pension could be paid. The Tribunal found no ambiguity in the relevant provisions and held that any other interpretation would be inconsistent with the legislative intent. The Tribunal's decision was thus in line with the statutory framework and the requirements for pension claims under the Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established