Fowler and Repatriation Commission (Veterans’ entitlements)

[2015] AATA 1000

Fowler and Repatriation Commission (Veterans’ entitlements) [2015] AATA 1000 (22 December 2015)

Division	VETERANS' APPEALS DIVISION
File Number(s)	2015/0738 and 2015/0739
Re	Dennis Fowler & Susan Fowler
APPLICANTS
And	Repatriation Commission
RESPONDENT

DECISION

Tribunal	Ms A F Cunningham, Senior Member
Date	22 December 2015
Place	Hobart

The decision under review is affirmed.

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Ms A F Cunningham, Senior Member

CATCHWORDS

Veterans Affairs - pension bonus scheme - late application for registration - whether to exercise discretion to extend time - Applicants unaware of timeframe to register for scheme - effect of repeal of relevant provisions - decision under review affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975

Veteran’s Entitlements Act 1986

Social Services and Other Legislation Amendment Act 2014

REASONS FOR DECISION

Ms A F Cunningham, Senior Member

1. The Applicant, Dennis Fowler served as a member of the Australian Defence Force between June 1965 and June 1967. On 10 September 2013 he and his wife, Susan Fowler made applications to register with the pension bonus scheme. Their applications were refused on 9 May 2014 on the basis that they failed to satisfy the work test provisions for the whole of the pre-application period.

2. Mr and Mrs Fowler applied for a review of the decisions which were affirmed by the Respondent on 27 October 2014. The Applicants now seek a review of the decisions by the Administrative Appeals Tribunal.

3. The Applicants were represented by Mr Bob Fitz.  Dennis Fowler gave oral evidence and was cross-examined by Mr Ken Rudge who appeared on behalf of the Respondent. The T- documents were tendered pursuant to section 37 of the Administrative Appeals Tribunal Act 1975.

   THE ISSUE

4. The issue for the Tribunal to determine is whether to exercise a discretion to extend the time for the Applicants to lodge their applications to register for the pension bonus scheme to the date on which the applications were lodged.

   THE STATUTORY FRAMEWORK

5. The qualification provisions for pension bonus are contained within section 45TC of Division 2 of the Veteran’s Entitlements Act 1986 (the VE Act). Subsection (1) contains provisions referable to deferral of age service pension. Subsection (1)  provides: a person is qualified for a pension bonus if:

   (c)       the person is registered as a member of the pension bonus scheme…

6. Division 3 contains the provisions referable to the registration of the pension bonus scheme and section 45TH specifically relates to the timing of the application and registration. Subparagraph 45TH (1) provides that a person must lodge an application within the period beginning thirteen weeks before the person’s special date of eligibility and thirteen weeks after that date and registration takes effect on the person’s special date of eligibility.

7. The provisions referable to the late applications are contained in subsections (3), (4), (5), (6), and (7).

8. Schedule 8 of the Social Services and Other Legislation Amendment Act 2014 which commenced on 1 July 2014 included the following provisions:

   7  Section 45T

   A person who wants to get a pension bonus must register as a member of the pension bonus scheme. An application for registration cannot be made on or after 1 July 2014.

   10  Subsections 45TH(1) and (2) (notes)

   Repeal the notes.

   11  Subsections 45TH(3) to (7)

   Repeal the subsections.

   12  Saving provision

   Despite the amendments made by this Schedule, if:

   (a)before the commencement of this item, an application under section 45TD of the Veterans’ Entitlements Act 1986 was lodged; and

   (b)the application was lodged during an extended period referred to in subsection 45TH(3) of that Act;

   then that subsection, as in force immediately before the commencement of this item, continues to apply on and after that commencement in relation to that application.

9. In accordance with this amendment to the VE Act, the only remaining provision referable to late applications is subsection (3) which reads as follows:

   Late applications

   (3)       The Commission may extend the period within which a person must lodge an application. If registration occurs as a result of an application lodged during an extended period, the registration takes effect:

   (a)       on the date on which the application is lodged; or

   (b)if the Commission decides that it should take effect on another date—on that other date.

10. Section 45TB (1) provides that with respect to age service pension, a person’s special date of eligibility is the first day on which the person becomes eligible for an age service pension. In accordance with the provisions of section 36 and 5QA of the VE Act, in Mr Fowler’s case that date is when he turned 60 years of age, namely on 20 April 2005.

11. Subsection 45TB (2) provides that a person’s special date of eligibility for a partner service pension is worked out by identifying the pension age day on which the person reached pension age, and the special date of eligibility is the first day occurring on or after the pension age day on which the person is eligible for a partner service pension. In accordance with the provisions of sections 5QB and 38 of the VE Act, Mrs Fowler’s special date of eligibility was when she turned 63 years and 6 months which was on 21 October 2008.

    CONSIDERATION

12. Both parties to the appeal contend that the Tribunal should apply the law that is in force at the time of its decision as it is more favourable to the Applicants. The Commission’s decision was based on the work test provisions that were then in force. It is not contended by the Applicants that they meet the work test provisions under subsection (4). As the legislation that was in force at the time of the Commission’s decision is not more favourable to the Applicants, the Tribunal is satisfied that it is appropriate to apply the law that is currently in force.

13. The submission advanced on behalf the Applicants is that the discretion to extend time should be granted because the Applicants complied with all known requirements at the time. Mr Fitz further alleges “defective administration” on the part of the Department of Veteran’s Affairs in that it failed to provide accurate and adequate information with respect to the pension bonus scheme.

14. Mr Fowler continued in full-time employment until 14 April 2013. It was his evidence that he did not approach the Department of Veteran’s Affairs until 10 July 2013 to enquire about a service pension. It was at this time that he first learned about the pension bonus scheme. He was provided with a form to complete and told to lodge it with his application for a pension.

15. Mr and Mrs Fowler did not lodge their applications until 10 September 2013. Mr Fowler said that he was not aware until he received the Department’s decision in May 2014 that he was required to lodge his application to register for the pension bonus scheme within thirteen weeks of turning 60 years of age. It was Mr Fowler’s evidence that he had no intention of claiming a service benefit when he turned 60 years of age because it was his intention to continue to work for a period of time. He maintains that the Department should have made potential applicants aware of the scheme and the requisite timeframes for registration.

16. It is submitted by Mr Fitz on behalf of the Applicants that the Department’s administrative procedures were defective in that they lead the Applicants to believe that they may qualify for the pension bonus scheme in July 2013, by providing them with forms to complete, but not advising of the requisite timeframes. Mr Rudge rejects the contention of defective administration and submits that the Departmental officer could have been seeking the necessary information to ascertain whether the applicants met the work test provisions of subsection (4).

17. The Tribunal accepts the submission advanced by Mr Rudge. Mr Fowler had only recently retired at the time of approaching the Department to enquire about service pension eligibility. Although Mr Fowler had not registered for the pension bonus scheme, the Departmental officer would be aware of the discretionary provisions to extend time which require assessment of the work test eligibility provisions on the basis of the information supplied by the Applicants.

18. The question for the Tribunal is whether it is appropriate in this case to extend the period for the lodgement of an application to register for the scheme. In Mr Fowler’s case this would require the period to be extended for a period of eight years and in Mrs Fowler’s case, for a period of four years and ten months.

19. Following the repeal of the work test provisions there is little to guide the Tribunal in the exercise of its discretion. Mr Rudge urged the Tribunal to take into account the following matters. Firstly, the fact that neither applicant would have met the work test provisions under the repealed legislation, although in Mr Fowler’s case he failed to qualify by a period of five months between the date of retirement and the lodgement of his application. Had he been advised to lodge his application immediately following his enquiry, the period would have been just under three months. In Mrs Fowler’s case that period is a longer one, between 26 November 2011 when she ceased full-time employment and 10 September 2013, being the date of the application.

20. Secondly, Mr Rudge said that the Tribunal should take account of the fact that the pension bonus scheme was closed in 2009. Mr Rudge referred the Tribunal to the Explanatory Memorandum which accompanied the Amendment Bill referable to the pension bonus scheme. The Memorandum states that from 1 March 2014 the Bill will end late registrations for the closed pension bonus scheme and states “Ending late registrations for the pension bonus scheme will help ensure the pension system is simpler and more sustainable for older Australians into the future.”

21. The third submission advanced by Mr Rudge was that it can hardly be fair and equitable to extend time for these Applicants who would not meet the repealed work test provisions when up until 1 July 2014, other applicants for late registration of the pension bonus scheme had been refused an extension of time because they did not meet the work test provisions. Mr Rudge argued that this cannot be the intention of the legislation to permit such a wide and general application of the discretionary provisions of subsection (3), when the scheme has in fact been abolished.

22. The Applicants have advanced little persuasive explanation for their late registration apart from the fact that they were unaware of the pension bonus scheme and the requirement to make an application for registration within thirteen weeks of the date of eligibility. This in the Tribunal’s view does not provide a satisfactory explanation for the significant delay of eight years in Mr Fowler’s case and four years and ten months in Mrs Fowler’s case. The Tribunal does not accept that Mr and Mrs Fowler were provided with inaccurate or misleading advice by the Department, and in any event, this would not have made any difference to their eligibility for the pension bonus scheme. The Tribunal rejects Mr Fitz’s submission that the discretion should be exercised on this basis.

23. In summary, the Applicants have failed to satisfy the Tribunal that there is any basis upon which it should exercise a discretion to extend the time within which the Applicants could lodge an application for registration of the pension bonus scheme. For all of the above reasons the Tribunal determines to affirm the decisions under review.

24.     I certify that the preceding 23 (twenty three) paragraphs are a true copy of the reasons for the decision herein of Senior Member Cunningham

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Administrative Assistant
Dated   

Date of hearing	18 November 2015
Representative for the Applicants	Mr Bob Fitz, RSL Tasmania
Solicitor for the Respondent	Mr Ken Rudge, Department of Veterans Affairs