Embleton and Repatriation Commission - [2002] AATA 161

DECISION AND REASONS FOR DECISION [2002] AATA 161

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2000/929

VETERANS' APPEALS DIVISION       )
           Re      JAMES ARTHUR and JANICE LORRAINE EMBLETON
  Applicants
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Deputy President DP Breen, Presidential Member

Date13 March 2002
PlaceBrisbane

Decision The Tribunal decides that it does not have jurisdiction to entertain this application for review.

Deputy President DP Breen
PRESIDENTIAL MEMBER

Decision No: 161/2002
CATCHWORDS
VETERANS' AFFAIRS - reduction of pension - early withdrawal of superannuation - effect of bad advice.

PROCEDURE - jurisdiction - self-executing provision - no reviewable decision made.

Veterans' Entitlements Act 1986 ss 5, 46Q, 46R, 57(2)(c), 175(2)
Re Hovell v Repatriation Commission (1994) 35 ALD 167
Re Hildebrand v Repatriation Commission (1996) 42 ALD 133
Re Neil v Repatriation Commission (1998) 50 ALD 320

REASONS FOR DECISION

13 March 2002 Deputy President DP Breen, Presidential Member

This was an appeal against the Repatriation Commission which informed Mr and Mrs Embleton that their pensions would be reduced as a result of an increase in their income on 20 September 2000. The main issue in this matter was whether there was a reviewable decision over which the Tribunal had jurisdiction.
The matter was heard by me in Brisbane on 11 May 2001. Mr Embleton represented himself and his wife. Mr J Stoner, Departmental Advocate, represented the respondent Commission.
The applicants withdrew two sums of money from their superannuation fund in June 2000, firstly, $10,000 as a gift to their son and, secondly, $40,000 for home renovations. Before they made the second withdrawal, they sought advice from the Department of Veterans' Affairs and were told that their pensions would not be affected by the withdrawal. The respondent concedes that incorrect information was given to the applicants. After having made the withdrawal, the Commission informed the applicants that they would be deemed to have an extra $400.57 income per fortnight and their pensions would be reduced accordingly.
Subsection 57(2)(c) of the Veterans' Entitlements Act 1986 does provide the Commission, and so the Tribunal through subsection 175(2), with power to review decisions to reduce rates of pension. This is distinct from any question of paying arrears or cancelling an overpayment. There is clear authority in the cases of Re Hovell v Repatriation Commission (1994) 35 ALD 167 and Re Hildebrand v Repatriation Commission (1996) 42 ALD 133, that the Tribunal does not have jurisdiction to review a decision to raise an overpayment and, by inference, not to pay arrears. The Tribunal's power is limited to jurisdiction to review the original decision to reduce the pension payment.
The question for the Tribunal in this case is whether there was a "decision" to reduce the applicants' pension.
Sections 46Q and 46R of the Veterans' Entitlements Act provide for the treatment of early withdrawals from a superannuation fund with respect to pensions from the Department of Veterans' Affairs. They are as follows:
"46Q Treatment of superannuation fund investments before pension age
If:
(a) a person has…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Embleton and Repatriation Commission

Details

AGLC: Embleton and Repatriation Commission [2002] AATA 161
Case: [2002] AATA 161
Decision Date: 13 March 2002

CaseChat Overview and Summary

Embleton sought a review of a decision by the Repatriation Commission to reduce his pension on the basis that he had withdrawn superannuation early. The dispute was heard in the Federal Court of Australia. The central issue was whether the Repatriation Commission had the jurisdiction to reduce the pension based on the early withdrawal of superannuation, and whether the decision to do so was reviewable. Additionally, the court needed to determine the applicability of the Veterans' Entitlements Act 1986 provisions in this context.

The court examined whether the provision of the Act that allowed for the reduction of the pension in such circumstances was self-executing or required an administrative decision. It was necessary to ascertain whether the reduction of the pension constituted a reviewable decision that could be challenged. The court also considered relevant precedents such as Re Hovell, Re Hildebrand, and Re Neil to understand the scope of the Commission's powers in making such reductions.

The Federal Court held that the provision in question was self-executing and did not constitute an administrative decision that was subject to review. Therefore, the court did not have jurisdiction to review the decision to reduce the pension. The court relied on the interpretation that the statutory provision automatically applied when certain conditions were met, without the need for an additional administrative decision-making process. Consequently, the reduction of the pension was not a reviewable decision.

The court dismissed the application for review, affirming that the reduction of the pension was valid under the self-executing provision of the Act. There were no further orders made as the application was dismissed on jurisdictional grounds.

Orders