DOUGLAS TINK and REPATRIATION COMMISSION
[2012] AATA 343
•6 June 2012
[2012] AATA 343
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/4109
Re
DOUGLAS TINK
APPLICANT
And
REPATRIATION COMMISSION
RESPONDENT
DECISION
Tribunal Senior Member C R Walsh
Date 6 June 2012 Place Perth Decision Summary
The Tribunal affirms the decision of the Repatriation Commission dated 16 September 2011.
....(Sgd) C R Walsh................
Senior Member C R Walsh
Catchwords
Veterans’ entitlements – rent assistance – applicant’s rent assistance reduced as a result of Repatriation Commission obtaining updated information on partner’s income from Centrelink – whether Veterans’ Entitlement Act 1986 or Repatriation Act 1920 to apply to Repatriation Commission’s rent reduction decision – whether rent reduction calculated correctly - decision under review affirmed
Legislation
Veterans’ Entitlement Act 1986 – section 2 – section 3(1) – section 5Q - section 56D – section 57(2)(c) - section 57B – sections 59B to 59E - section 175(2) - Module C of Schedule 6
Repatriation Act 1920
Veterans’ Entitlements (Transitional Provisions and Consequential Amendments) Act 1986
Social Security Act 1991 – section 23
REASONS FOR DECISION
Senior Member C R Walsh
6 June 2012
INTRODUCTION
Mr Tink seeks a review of a decision of a Service Pension Review Officer, a delegate of the Repatriation Commission (Commission), dated 16 September 2011, affirming an earlier decision of a delegate of the Commission (dated 24 August 2011) that Mr Tink’s rent assistance be reduced from $90.06 to $28.56 per fortnight effective 23 August 2011.
FACTS & EVIDENCE
Mr Tink has received a service pension from the Department of Veteran’s Affairs (Department) since 25 March 1999, including a component representing rent assistance.
Mr Tink receives 100% General Rate disability pension of $410.10 per fortnight ($10,662.60 per annum).
Mr Tink started a de facto relationship with Ms Kathryn Douglas on 20 November 2000.
Mr Tink’s partner, Ms Douglas, commenced receiving a carer’s payment from Centrelink on 6 May 2005. Mr Tink did not advise the Department, at that time, that his partner had commenced receiving a carer’s payment from Centrelink.
On 25 July 2006, Ms Douglas provided the Department with a copy of her Notice of Assessment for income tax for the year ended 30 June 2006 and advised the Department that she was “currently unemployed and [her] only income [was] from Centrelink.”
Mr Tink and Ms Douglas were married on 26 October 2007. From that date, Ms Douglas used the name ‘Mrs Tink’.
On 22 July 2011 Centrelink notified the Department that Mrs Tink was receiving a carer’s payment from Centrelink. The Department’s records show that the information was provided by Centrelink in relation to the ‘Work Bonus’ changes implemented earlier in 2011.
The information that the Department received from Centrelink concerning Mrs Tink receiving a carer’s payment, triggered a review of Mr Tink by the Department. The Department had Mrs Tink recorded but not that she was receiving a carer’s payment from Centrelink.
By letter dated 11 August 2006, the Department advised Mr Tink of changes in his service pension as a consequence of the changes in Mrs Tink’s income. That letter stated, in part:
“Mrs Douglas’s earnings have been revised for the period 15 March 2005 to 4 July 2005 based on payroll advice from the Commercial Club in Bunbury. Your pension has been adjusted retrospectively, resulting in service pension arrears of $32.24.
In addition, Mrs Douglas has supplied her PAYG summaries for the 2006/2006 financial year to DVA. Based on this information your earnings have been adjusted, for the period 5 July 2005 to 24 July 2006 inclusive, resulting in service pension arrears of $1,246.565.
Finally, Mrs Douglas advised the department on 25 July 2006 that she had ceased work. Your service pension has been increased with effect from 25 July 2006.
Details of your payment are provided on the attached Payment Information Attachment.
Your pension is assessed under the income test using your income and assets as shown on the attached list. It is important that you check that this list is a full and accurate statement of your financial situation.
Obligations – Financial
You are obliged by law to tell us within 14 days…..if you gain or dispose of any assets. You must also notify this Department if your combined gross income from all sources increases above $390.30 per fortnight or your combined assets increase above $363,500.00. This will ensure that your pension is paid at the correct rate.”
On 24 August 2011 a delegate of the Department decided to reduce Mr Tink’s rent assistance from $90.06 to $28.56 per fortnight effective 23 August 2011.
According to the Commission, at the time of that decision, Mr and Mrs Tink were paying private rent (i.e. not Government rent) of $440 per fortnight.
On 1 September 2011, Mr Tink requested a review of the delegate’s decision (dated 24 August 2011). Mr Tink’s reasons for requesting a review were as follows:
“…..the fact that
a. I was not on full rental assistance.
b. My partner does not get full rent assistance from Centrelink.
c.My partner’s rental assistance of $54.30 per fortnight and my rental assistance of $28.56 do not add up to the total of rental assistance I should be eligible for.
d. Conditions of service as at 9 January 1962 should apply.”
On 16 September 2011 a Service Pension Review Officer reviewed and affirmed the decision of the Commission’s delegate (dated 24 August 2011) to reduce Mr Tink’s rent assistance from $90.06 to $28.56 per fortnight effective 23 August 2011. In reaching that decision, the Service Pension Review Officer found, inter alia:
“Rent assistance is means-tested. The amount of assistance paid is based on the amount of rent paid. As Mr Tink is Mr Tink is in receipt of disability support pension at the rate of 100%, this reduces the amount of rent assistance that is payable to Mr Tink.
The amount of rent assistance paid by Centrelink to Mrs Tink being $54.30 is the full partnered rate of rent assistance payable. Mr Tink’s Disability Pension has no impact on Mrs Tink’s rent assistance.
The Department was not aware that Mrs Tink was in receipt of a Centrelink Pension until the Department was notified by Centrelink on 22 July 2011.
Mr Tink’s Rent Assistance was previously calculated on the basis that his partner was not paid a pension at Centrelink.
The rate of Rent Assistance has been corrected as a result.
Mr Tink’s rate of $28.56 per fortnight for Rent Assistance is correct.”
On 26 September 2011 Mr Tink applied to the Tribunal for a review of the Service Pension Review Officer’s decision (dated 16 September 2011). In support of his review application, Mr Tink stated:
“My appeal is based on the following points”
1.The Department of Veterans’ Affairs has always been aware that my wife is in receipt of a Centrelink pension.
2. I do not receive full rent assistance from DVA.
3. My wife does not receive full rental assistance from Centrelink.
4.Both amounts of rental assistance do not total the full amount of rental assistance available to eligible disabled veterans.
5.The determination should have been made subject to the Veterans’ Entitlements Act/Repatriation Act in force on 9 September 1962.”
Further, in a “Statement of Reasons”, filed with the Tribunal on 9 February 2012, Mr Tink stated:
“DVA has based all of its decisions regarding my entitlements on the Veterans’ Entitlements Act 1986 which substantially altered entitlements to veterans and in a lot of points actually reduced those entitlements.
DVA must base its decisions on the Act that was current when my service was completed viz 23rd September 1970. Under that act I was entitled to considerably more than is currently enacted.
Other veterans who completed their service at the same time as me and who applied for and were granted their various pensions before I applied for mine were judged under the previous act.
Therefore DVA is in effect
a. judging veterans differently although there service was concurrent.
b. judging veterans differently according to the date the veteran applied for his/her pension.
c. retrospectively altering the conditions of service that applied when I was actively serving.
d. acting in a manner that causes the Commonwealth to be considered in breach of contract.
If true retrospective action were seen to be taken, then DVA would have altered entitlements such as Partner Service Pension, Rental Assistance, War Service Loan granted under the previous Act and raised debts on those veterans so affected.”
The Commission has waived the recovery of any overpayment resulting from retrospective reassessment of Mr Tink’s rent assistance.
SHOULD THE REPATRATION ACT 1920 OR THE VETERANS’ ENTITLMENTS ACT 1986 BE APPLIED TO THE DECISION UNDER REVIEW?
In short, the Tribunal considers that the Veterans’ Entitlements Act 1986 (VEA) is the proper legislation to be applied to the decision under review because the Repatriation Act 1920 (RA) is a repealed Act pursuant to Schedule 1 of the VEA and cannot be applied.
Section 2 of the VEA provides that the VEA shall come into operation on a date to be fixed by Proclamation. The VEA (Act No. 27 of 1986) was assented to on 19 May 1986 and commenced on 22 May 1986: see Note 1 VEA, Volume II, Reprint 9, 26 May 2011, at page 1187.
Section 3(1) of the VEA provides that the Acts specified in Parts I, II, III, IV and V of Schedule 1 of the VEA are repealed. The Schedule is exhaustive and includes all previous legislation providing benefits to veterans, including, in particular, the Australian Soldiers’ Repatriation Act 1920 (as amended) and the Repatriation Special Overseas Service Act 1962 as amended.
The effect of those repeals is that all the previous legislation that granted benefits to veterans, as variously defined in the Acts listed in Schedule 1, no longer exists. As that legislation no longer exists, no power exists to claim, grant or vary benefits that were authorised and conveyed by it. Benefits granted under that legislation, and already in payment, were continued in accordance with the terms of the Veterans’ Entitlements (Transitional Provisions and Consequential Amendments) Act 1986 (Transitional Act): see section 40 of the Transitional Act in relation to service pensions.
Rights of appeal and review of decisions of the Commission and other determining authorities were preserved within time limitations. However, that did not provide an accrued right to the use of repealed legislation in determining eligibility for or payment of benefits subsequent to the commencement of the VEA.
The powers of the Tribunal in the review of Commission matters are limited to those prescribed by the VEA. Section 175(2) of the VEA provides for the review of a decision of the Commission made under section 57B of the VEA, which includes the power to review decisions reducing or increasing the rate of a service pension or income support supplement: see section 57(2)(c) of the VEA. The Tribunal cannot apply the provisions of a repealed Act (in this case the RA) and any purported use of such legislation would be a nullity.
WAS MR TINK’S RENT REDUCTION CALCULATED CORRECTLY BY THE COMMISSION IN ACCORDANCE WITH THE PROVISIONS OF THE VEA?
All Rent Assistance calculations are made under “Module C - Rent assistance” of Schedule 6 of the VEA, titled “Calculation of rates of service pension and income support supplement”.
Point SCH6-C3 of Module C, titled “Eligibility for rent assistance”, contains the eligibility requirements for rent assistance. Point SCH6-C3 of Module states:
“Rent assistance to be added to a person’s maximum basic rate or ceiling rate if:
(a) the person is not an aged care resident; and
(b) the person is not an ineligible property owner; and
(c) the person pays, or is liable to pay, rent (other than Government rent);
(d) the rent is payable at a rate more than the rent threshold rate; and
(e) either:(i) the person is in Australia;
(ii)the person is temporarily absent from Australia and the period in respect of which rent assistance is sought is not a period after the first 26 weeks of the absence; and
(f) the person satisfies either point SCH6-C3A or SCH6-C3B.”
It is not disputed that Mr Tink is eligible for rent assistance under point SCH6-C of Module C. Specifically, at the relevant time, Mr Tink paid rent (being private rent and not Government rent) of $440 per fortnight (i.e. $440 X 26 = $11,440), which is above the applicable rent threshold in “Table C1 - Rent threshold rates” of point SCH6-C3: see paragraph 28 below.
Point SCH6-C5 of Module C, titled “Partner with rent increased pension” provides that where a person's partner is receiving a rate of social security pension which has been increased to take account of the rent paid by the partner, the person's family situation for the purposes of the rent assistance calculation is “Partnered - partner with a rent increased pension”. At the relevant time, Mrs Tink was receiving a carer's payment from Centrelink, which is defined by section 23 of the Social Security Act 1991 as being a “social security pension” and was also receiving rent assistance. As such, Mr Tink was “Partnered – partner with a rent increased pension” for the purposes of Module C of the VEA.
Point SCH6-C6 of Module C contains “Table C1 - Rent threshold rates”, being one of the components of the calculation of a person's rent assistance. Table C1 in the current consolidated printed version of the VEA provides that a person with the status of “Partnered - partner with a rent increased pension” has a rent threshold rate of $1,510.60 per annum or $58.10 per fortnight. Note 3 to Table C1 explains that these amounts are indexed 6 monthly, in line with CPI increases, under sections 59B to 59E of the VEA. The current indexed rent threshold rate (effective 20 March 2012) for person who is “Partnered - partner with a rent increased pension” is $2,259.40 per annum or $86.90 per fortnight.
Point SCH6-C7 of Module C provides that the factors affecting the rate of rent assistance include the annual rent payable by the person, whether or not the person has a partner with a rent increased pension, and whether or not the person or their partner is receiving disability pension.
Mr Tink's receipt of 100% General Rate of disability pension under the VEA (currently $410.10 per fortnight) meets the definition of “disability pension” (in section 5Q) for rent assistance purposes. The method by which “disability pension” affects rent assistance (known as “the DP Rent Test”) is set out later in Module C at point SCH6-C13: refer to paragraph 33 below.
Point SCH6-C8(1) of Module C contains “Table C-2 - Rate of rent assistance”, which provides that the person's rate of payment is the lesser of the maximum rate of payment (in Column 4), or a rate calculated at three-eighths of the amount by which the person's annual rate exceeds their rent threshold rate (in Column 3). This calculation applies to each member of the couple. For a person with the status of “Partnered - partner with a rent increased pension, like Mr Tink, the maximum annual rate of payment is given in Table C-2 as $915.20 (or $35.20 per fortnight). This rate is subject to indexation, with the current maximum rate (effective from 20 March 2012) being $1,471.60 per annum (or $56.60 per fortnight).
Applying the Table C-2 calculation to Mr and Mrs Tink gives a rent assistance calculation of the lesser of the maximum rate of $1,471.60 per annum or $2,595.45, calculated as follows:
3 x (Annual Rent - 2 x Rent Threshold Rate) 8
= 3 x ($11,440 - 2 x $2,259.40)
8
= $2,595.45.
Thus, the lower (maximum) rate of $1,471.60 is the notional annual payable rent assistance amount for the Tinks.
Point SCH6-C13 of Module C, titled “Effect of disability pension and permanent impairment compensation on rate of rent assistance”, contains a “Method statement” which provides that the calculated rate of rent assistance under Table C-2 may be reduced if the person has disability income in excess of the rent assistance free area. Point SCH6-C13 of Module C relevantly provides:
“This is how to work out the effect of a person’s disability pension and permanent impairment compensation on the person’s rate of rent assistance:
Method statement
Step 1.Work out how the annual rate of the person’s disability support pension and permanent impairment compensation: the result is the person’s disability income.
……………
Step 2.Work out the person’s rent assistance free area (see point SCH6-C15 below).
Step 3.Work out whether the person’s disability income exceeds the person’s rent assistance free area.
Step 4.If the person’s disability income does not exceed the person’s rent assistance free area, the person’s rate of rent assistance worked out under Table C-2 is not affected.
Step 5.If the person’s disability income exceeds the person’s rent assistance rent assistance free area, take the person’s rent assistance free area away from the person’s disability income: the result is the person’s disability income excess.
Step 6.Multiply the person’s disability income excess by 0.4: the result is the rent assistance reduction amount.
Step 7.Take the person’s rent assistance reduction amount away from the rate of rent assistance worked out under Table C-2: the result is the person’s rate of rent assistance.” [Emphasis added]
Therefore, Mr Tink's 100% General Rate disability pension of $410.10 per fortnight ($10,662.60 per annum) is assessable disability income for this purpose, based on the definition of “disability pension” contained in the above Method statement.
The “rent assistance free area” amounts are set out in Table C-3, titled “Rent assistance free area”, in point SCH6-C15 of Module C. The partnered “rent assistance free area” amount is stated as $2,236 per annum ($86 per fortnight). This rate is subject to indexation, with the current rate (effective 20 March 2012) being $3,432 per annum (or $132 per fortnight).
Point SCH6-C14 of Module C provides that where the person is a member of a couple, the person's disability income is shared with the other member of the couple, i.e. $10,662.60 ÷ 2 = $5,331.30.
The rent assistance reduction calculation under point SCH6-C13 is (disability income - rent assistance free area) x 0.4. In the Tinks’ case, the result is as follows:
($5,331.30 - $3,432) x 0.4
= $759.72 (i.e. This is the Tinks’ rent assistance reduction amount)
The final payable rent assistance amount is the Table C-2 calculation (i.e. $1,471.60: see paragraph 32 above) less the disability income rent assistance reduction amount (i.e. $759.72: see paragraph 36 above). The result, in the Tinks’ case, is $711.88 per annum or $27.38 per fortnight.
The historic rate of $28.56
The same rent assistance components apply to the calculation of the reduced rent assistance rate of $28.56, which is the subject of this application.
The pension determination reducing Mr Tink’s rent assistance to this amount was effective 12 July 2011. The relevant rent assistance components, at that time, were as follows:
·The maximum rent assistance payment was $1,427.40 per annum or $54.90 per fortnight;
·The rent threshold rate was $2,191.80 per annum; and
·The annual rent was $440 x 26 = $11,440.
The maximum rent assistance rate of $54.90 per fortnight applied at that date, as the Table C-2 calculation gives a higher amount of:
·3 x ($11,440 - 2 x $2,191.80) = $2,646.15; or
8
·$101.78 per fortnight.
Applying the “DP rent test”, disability pension at 100% General Rate of $10,288.20 per annum (or $5,144.10 for each member of a couple).
The rent assistance free area was $3,432 per annum.
Therefore, the rent assistance reduction amount was $684.84 per annum (or $26.34 per fortnight), calculated as follows: $5,144.10 - $3,432) x 0.4 = $684.84 per annum (or $26.34 per fortnight).
Consequently, the amount of rent assistance payable to Mr Tink at the relevant time was $28.56 per fortnight, calculated as follows: $54.90 - $26.34 = $28.56.
Based on the above analysis, the Tribunal finds that the formulae in Module C of Schedule 6 of the VEA have been correctly applied to the facts in Mr Tink’s case such that Mr Tink’s rent assistance, of $28.56 per fortnight (effective 23 August 2011), was properly assessed by the Commission.
DECISION
For the above reasons, the Tribunal affirms the decision of the Service Pension Review Officer (dated 16 September 2011) to reduce Mr Tink’s rent assistance from $90.06 to $28.56 per fortnight effective 23 August 2011.
47. I certify that the preceding forty six (46) paragraphs are a true copy of the reasons for the decision herein of Senior Member C R Walsh.
...(Sgd) T Freeman........
Associate
Dated 6 June 2012
Date of hearing 29 March 2012 Date final submissions received 17 May 2012 Applicant’s Representative Mr D Tink (Self-represented) Respondent’s Representative Mr C Ponnuthurai
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