HALL and REPATRIATION COMMISSION

[2011] AATA 541

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 541

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2011/1831  

VETERANS' APPEAL DIVISION		)
Re		ERNEST HALL

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Dr P McDermott, RFD, Senior Member

Date4 August 2011

PlaceBrisbane

Decision The Tribunal dismisses the application under s 42B(1) of the Administrative Appeals Tribunal Act1975 (Cth).

.................[Sgd]..................

Senior Member

CATCHWORDS

VETERANS’ AFFAIRS – Pensions, benefits and entitlements – Pension bonus scheme – Veteran in receipt of income support payment after special date of eligibility – Pension bonus not payable – Decision of no practical benefit to applicant – Application for review dismissed

Administrative Appeals Tribunal Act 1975 (Cth) s 34J, 42B

Social Security Act 1991 (Cth) s 23

Veterans’ Entitlements Act 1986 (Cth) s 5QA, 45TC, 45TI

Reddish and Civil Aviation Safety Authority [1999] AATA 721

Ryan and Secretary, Department of Education, Employment and Workplace Relations [2008] AATA 1058

REASONS FOR DECISION

4 August 2011 Dr P McDermott, RFD, Senior Member  

INTRODUCTION

1.Mr Ernest Hall (“the veteran”) made an application for registration to be a member of the pension bonus scheme under Part IIIAB of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”). I give my reasons why I consider that he is not eligible for registration under that scheme.

PRIOR DECISIONS

2.On 13 July 2010, the veteran made an application to register for the pension bonus scheme. On 1 December 2010, a delegate of the respondent decided that he was ineligible to register because he received an income support payment since turning pension age.

3.The veteran sought a review of this decision by a Service Pension Review Officer. The decision was affirmed on 9 February 2011.

4.On 12 May 2011, the veteran made an application to this Tribunal for the review of the decision.

CONSIDERATION

5.The application for review to this Tribunal was determined without a hearing pursuant to s 34J of the Administrative Appeals Tribunal Act1975 (Cth). The Tribunal can review a decision without holding a hearing where the issues for determination can be adequately determined in the absence of the parties and both parties have consented to the review being determined without a hearing. This decision was arrived at after review of the documents lodged with the Tribunal. Such a procedure is appropriate where there is no factual dispute, as is the case here.

6.The veteran cannot be granted a pension bonus unless he is registered as a member of the pension bonus scheme. This is because s 45T of the Act provides that a person who wants to get a pension bonus is required to first register as a member of the pension bonus scheme. The veteran did not make an application to register for the pension bonus scheme when he reached the eligible age of 60 years of age (s 5QA(2)).

7.The veteran did not make an application to register as a member of the pension bonus scheme until a number of years after he reached the age at which he was eligible to claim a service pension. The veteran, who has always been gainfully employed, stated that he was unaware of the scheme for payment of the pension bonus at that time. He first became aware of the existence of the scheme in 2009 when he learned that the pension bonus scheme was being terminated. The veteran has certainly been disadvantaged in not registering for the pension bonus when he first became eligible to claim a service pension under s 5QA(2) of the Act.

8.Before the veteran made his application for registration to be a member of the pension bonus scheme he underwent a serious medical operation. At that time he received information from a Centrelink officer as to his entitlement to claim sickness benefit during his recovery from that operation. In his application to this Tribunal the veteran  the essence of his contention:

“At no time was I informed that if I was to proceed with a sickness benefit claim that I would be nullifying my eligibility for the Pension Bonus Scheme. The documentation supplied by Centrelink to me did not address the issue of the Pension Bonus Scheme, nor the fact that the sickness benefit was an income support payment pursuant to section 45TC(b)(i) of the Veterans’ Entitlement Act 1986”.

9.In this matter I have taken a different view from the respondent concerning the veteran’s eligibility to be registered as a member of the pension bonus scheme. Section 45TI states that an applicant is entitled to be registered provided that the applicant complies with the relevant Subdivision of the Act (Subdivision A of Division 3). There is no evidence that the veteran has not complied with Subdivision A. I am also mindful that an application for registration is not to be treated as a claim (s 45TL). However, in my view one matter is clear: the veteran cannot be paid a pension bonus. This is because of the operation of s 45TC(1)(e)(ii) of the Act which, in relevant respects, provides that a person is qualified for a pension bonus if that person has not received a social security benefit or an income support supplement at any time after the person’s special date of eligibility for an age service pension.

10.The veteran’s special date of eligibility for an age service pension was in 2006[1] when he became entitled to an age service pension because of the operation of s 5QA(2) of the Act. It was in 2009, after that special date of eligibility, when the veteran received a social security benefit. I should also mention that “sickness allowance” is a “social security benefit” under the Act. This is because s 5Q(1) of the Act gives that expression the same meaning as it has under the Social Security Act 1991 (Cth). In this regard, under s 23 of the Social Security Act 1991 (Cth) “social security benefit” is defined to include ‘sickness allowance”.

[1] In these reasons, which are a matter of public record, I have decided to protect the privacy of the veteran by not disclosing the veteran’s special date of eligibility.

11.As the veteran received a social security benefit after his special date of eligibility for an age service pension, he is not qualified for a pension bonus by reason of s 45TC(1)(e)(ii) of the Act. This is notwithstanding his continuing to work beyond that special date of eligibility.

12.Even though I consider that the veteran would be entitled to registration as a member of the pension bonus scheme, I am of the view that the veteran cannot be paid pension bonus because of the operation of s 45TC of the Act. It would not be appropriate for me to make an order to set aside the decision under review.

13.I have considered the decisions on the operation of s 42B of the Administrative Appeals Tribunal Act1975 (Cth), which have been cited by Senior Member Friedman in Ryan and Secretary, Department of Education, Employment and Workplace Relations.[2] These decisions establish that this Tribunal should not make an order which is not of practical utility to the veteran.[3] It is for this reason that I have made a decision to dismiss the application of the veteran under s 42B of the Administrative Appeals Tribunal Act1975 (Cth).

[2] [2008] AATA 1058.

[3] See Reddish and Civil Aviation Safety Authority [1999] AATA 721.

14.I appreciate that the veteran has made this application to the Tribunal as he wishes to exhaust his remedies before he makes an application for compensation. This Tribunal does not have any jurisdiction to determine such an application.

DECISION

15.The Tribunal dismisses the application under s 42B(1) of the Administrative Appeals Tribunal Act1975 (Cth).

I certify that the 15 preceding paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott, RFD, Senior Member

Signed: ..........................[Sgd]........................................
  Danielle Armstrong, Research Associate

Heard on the Papers                 25 July 2011
Date of Decision  4 August 2011