Hall and Repatriation Commission (Veterans' entitlements)

[2017] AATA 457

Hall and Repatriation Commission (Veterans' entitlements) [2017] AATA 457 (10 April 2017)

Division:GENERAL DIVISION

File Number:           2015/0061

Re:Robert Hall

APPLICANT

AndRepatriation Commission

RESPONDENT

DECISION

Tribunal:Deputy President Dr P McDermott RFD

Date:10 April 2017

Place:Brisbane

I affirm the decision under review.

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Deputy President Dr P McDermott RFD

CATCHWORDS

VETERANS’ AFFAIRS – veterans’ entitlements – eligibility for payment of pension bonus – whether application lodged within prescribed time– where partner is still a participant in the workforce – application not lodged within prescribed time – decision under review affirmed.   

LEGISLATION

Veterans’ Entitlement Act 1986 (Cth) ss 45TA, 45TB, 45TO, 45TR, 45TS, 45TT, 45UL

Social Security Act 1991 (Cth) s 5

Veterans’ Affairs and Other Legislation Amendment (Pension Reform) Act 2009 (Cth) ss 45TI

CASES

Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60

SECONDARY MATERIALS

Veterans’ Entitlements (Pension Bonus Scheme-Non-accruing Members) Declaration 2007

Sir Anthony Mason, ‘Administrative Review: The Experience of the First Twelve Years’ (1989) 18 Federal Law Review 122, 127

Justice Duncan Kerr, ‘Challenges Facing Administrative Tribunals – The Complexity of Legislative Schemes and Shrinking Space for Preferable Decision-Making’ (Speech delivered at the Council of Australasian Tribunals, 18 November 2013) (retrieved from:  FOR DECISION

Deputy President Dr P McDermott RFD

10 April 2017

INTRODUCTION

1. This application is to review a decision of the respondent that the applicant was not eligible for payment of pension bonus under the Veterans’ Entitlement Act 1986 (“the Act”). I have to determine whether the applicant is eligible for payment of pension bonus.

   BACKGROUND

   Previous decisions

2. On 24 December 2013 the applicant made a claim to the Department of Veteran’s Affairs (“DVA”) for the pension bonus.[1] On 3 March 2014 the respondent made a decision that the applicant was not entitled to pension bonus.[2] On 21 October 2014 this decision was affirmed on reconsideration on the basis that the applicant had not lodged his application for payment of the pension bonus within 13 weeks of his last pension bonus period.[3]

   Membership of scheme

   [1] Exhibit A, T-documents, T10

   [2] Exhibit A, T-documents, T14 and T15

   [3] Exhibit A, T-documents, T2 and T3

3. On 16 September 2008 the applicant made a successful application to be registered as a member of the pension bonus scheme. The registration was backdated to 9 April 2005 when he attained 60 years of age.[4] The Act provided that to accrue a bonus period a member of the pension bonus scheme had to pass the work test by having worked at least 960 hours within that year: see sections 45TR and 45TS. From when his registration became effective on 9 April 2005, the applicant had full-year bonus periods for each year until 8 April 2011.[5] After the applicant ceased working he went on long service leave from 4 March 2011 until 8 July 2011.

   [4] Exhibit A, T-documents, T4 and t9

   [5] Exhibit B and C1, FIS Record of Interview 3 June 2011 at p. 4

4. After the last bonus period of the applicant concluded on 8 April 2011, he then became a non-accruing member of the pension bonus scheme. Sections 5(e) and section 6(2) of the Veterans’ Entitlements (Pension Bonus Scheme-Non-accruing Members) Declaration 2007 (“the Declaration”) provide that a member on paid or unpaid leave of any kind of up to a maximum of 26 weeks is a non-accruing member. The applicant was a non-accruing member until his long service leave ceased on 8 July 2011.

   Partner of applicant

5. Pursuant to section 45TO(2) of the Act, the Declaration provides that a member who is not a participant in the workforce is a non-accruing member where his or her partner meets certain conditions: the partner is a participant in the workforce, is not a member of the pension bonus scheme and intends to become a member of the scheme under the Act or the Social Security Act 1991 (“the SS Act”) (see section 5(d)). There is no evidence that the partner of the applicant ever intended to become a member of one of these pension bonus schemes.

6. The Veterans’ Affairs and Other Legislation Amendment (Pension Reform) Act 2009 (“the 2009 Act”) inserted section 45TI(1A) into the Act which prevented the registration of a person as a member of the pension bonus scheme if the person’s special date of eligibility for a designated pension occurred on or after 20 September 2009. The partner of the applicant could never register as a member of the scheme because the special date of eligibility for a designated pension of his partner was after this date when she attained pension age. As his partner was not a veteran her special date of eligibility for a designated pension under the Act was when she attained 65 years of age: see sections 45TA and 45TB (which mirrors the requirements of eligibility for age pension under the SS Act).

7. For the sake of completeness it should be mentioned that the accrual of bonus periods may be extended by passing the work test under sections 45TS and 45TT if the member has a partner who works the number of hours required in a full-year or part-year period provided that the partner is an accruing member of a pension bonus scheme under the Act or the SS Act: see sections 45TR, 45TS(b) and 45TT. However, in this case, the accrual of the bonus periods of the applicant cannot be extended under section 45TR because the partner of the applicant was not an accruing member of either pension bonus scheme.

   CONSIDERATION

   Prescribed time for lodgement of claim for pension bonus

8. Where the last bonus period of a member of the pension bonus scheme was a full-year or part-year bonus period, a member has to lodge a claim for pension bonus within 13 weeks of the end of the bonus period: sections 45UL(2) and (3). Where a person’s membership of the pension bonus scheme becomes non-accruing immediately after the end of the person’s last bonus period, the lodgement period begins at the end of the last bonus period and ends 13 weeks after the person’s membership of the scheme ceases to be non-accruing: see section 45UL(6). The applicant was a non-accruing member until his long service leave ceased on 8 July 2011 and any claim for pension bonus would have to been lodged on or before 7 October 2011 in order to comply with section 45UL(6) of the Act.

9. The applicant lodged his claim for pension bonus and service pension on 24 December 2013. In his application lodged on 24 December 2013, the applicant stated that he had not previously claimed a pension bonus. The applicant did not therefore satisfy section 45UL(2) or (3) of the Act.

10. The applicant gave evidence that he believes that he would have previously lodged an application in May 2011 and October 2011. The Veteran Community Contact List - Cairns for May and October 2011[6] contains no record of any attendance or lodgement of an application by Mr Hall. The Veteran Community Contact List – Cairns[7] records contains a record that Mr Hall attended the Cairns office on 24 December 2013 to lodge his Service Pension and Pension Deferred Bonus (“PDB”) application. There is a record of an earlier attendance by the applicant on 5 December 2013 regarding a “Service pension/PDB enquiry”.[8]

    [6] Exhibit G

    [7] Exhibit L2 at p. 4

    [8] Exhibit L2 at p. 2

11. There are two other entries in the contact lists for 2011 which record the attendance of the applicant:

    (a)On 27 April 2011 there is a record of the applicant “Going o/seas and booked FIS appt for PDB” (“FIS” indicates Financial Information Service).[9]

    (b)There is a record of attendance by the applicant on 3 June 2011 when the applicant saw “Werner” for an “Fis interview”.[10]

    [9] Exhbiit G, “FORTNIGHT ENDING (or DATE) 1-Apr-11” at p. 5

    [10] Exhibit G, “FORTNIGHT ENDING (or DATE) 30-Jun-11” at p. 1

12. There are no other records of attendance by the applicant in 2011. The Department files concerning the applicant contain a number of pages that were added in 2011.[11] These do not indicate that the applicant lodged an application for pension bonus. The files contain records of his inquiry concerning another benefit and a VRB application for review.

    [11] Exhibit J

13. On 3 June 2011, Mr Rossbach provided a record of interview outlining how the applicant could take steps to “maximise PDB” including that the applicant’s partner’s income is reduced to “NIL”.[12] In these circumstances I find it implausible that the applicant had lodged an application for pension bonus in May 2011 prior to receiving this advice.

    [12] Exhibit B and C1, FIS Record of Interview p. 4

14. Mr Rossbach in his statement of 7 June 2016 has quite properly raised the possibility that the partner of the applicant was a member of the scheme.[13] However, I have previously mentioned that the 2009 Act operated to prevent the partner of the applicant from being registered as a member of the scheme under the Act or the SS Act.

    [13] Exhibit D

15. In his statement, Mr Rossbach has stated that it was his honest belief that Mr Hall would have lodged the DVA paperwork on two occasions in May 2011 and October 2011. Mr Rossbach has recorded in his statement that the staff in the Cairns office were very experienced and conscientious as all paperwork had to be submitted to DVA in Brisbane and that there was a lodgement register. While Mr Rossbach may well have seen service pension and pension bonus forms that were completed by the applicant, a search of the DVA register has confirmed that there was no lodgement of these forms in either May 2011 or November 2011.[14]

    [14] Exhibit G

16. There are records from the FIS interview by Mr Rossbach on 3 June 2011 and the Veterans’ Information Service letter from Ms Latham dated 8 July 2011 which were tendered in evidence by the applicant.[15] However, the applicant was concerned that those records were not included in the Tribunal documents. The respondent has explained that records of the DVA register for 2011 and 2013 do not appear on the hardcopy files because they relate to confidential financial advice provided by the FIS and the Veterans’ Information Service.

    [15] Exhibit L

17. The electronic records of access of the Department computer records relating to the applicant in 2011[16] do not show any access by Income Support Staff in 2011 except for two views of Treatment, Pharmaceutical and Income support cards pages on 30 August 2011 and 22 September 2011. There is a record of electronic access for 2011 concerning eligibility for disability pension, being a record of Ms Latham, a VAN officer, having access to these records on 8 July 2011, the date of her letter to the applicant. The electronic records of access for 2011 do not contain any record of the lodgement of an application for pension bonus.

    [16] Exhibit H

18. I do not consider that the applicant lodged applications form for pension bonus in 2011. If he had done so I would have expected the registry records to have contained a reference to such lodgement. The registry records are certainly comprehensive in detailing the lodgement documentation relating to veterans’ affairs. I have formed my conclusion that the applicant had not lodged these forms after reviewing the registry records as well as having regard to the comment of Mr Rossbach that the staff in the Cairns office were very experienced and conscientious.

19. I cannot be reasonably satisfied that the applicant had lodged any application for pension bonus earlier than on 24 December 2013. I consider that the applicant was correct when he declared on the form that he then lodged that he had not previously claimed pension bonus. I consider that this is certainly the case.

20. Had the applicant made an application for pension bonus in 2011 I would have expected him to have made enquiries as to why he was not paid pension bonus and there is no record of the applicant having made such enquiries in 2011. However, there is no record of the applicant making an enquiry about the absence of the payment of pension bonus in 2011.

21. Even if there had been lodgement of those forms in 2011 the applicant would have then been ineligible for payment of service pension and pension bonus. Mr Rossbach in his advice of 3 June 2011 and Ms Latham in her letter of 8 July 2011, who had regard to the income of his partner, have confirmed that with his then current situation the applicant was ineligible for payment of service pension.[17] Being ineligible for payment of service pension, he would not have been entitled to pension bonus. There is no evidence before me that the eligibility of the applicant changed in October 2011 at a time when his partner was still working.

    [17] Exhibit B and C1

22. Had the applicant lodged applications for service pension and pension bonus in 2011, he would not have qualified for service pension and pension bonus because of the income test. I consider that it is certainly very probable that the applicant had remembered completing a form of application for pension bonus but I have concluded that the form was not lodged in 2011 because of the advice provided to the applicant that he was not eligible for pension bonus.

    Special circumstances

23. The Act provides that the respondent may in special circumstances allow a person a longer period to make a claim: see s 45UL(1A). The applicant believed he had lodged applications for pension bonus and service pension earlier than 24 December 2013, the evidence before me is that this is not the case. After reviewing the evidence I have concluded that there is no evidence of any special circumstances which warrant the Tribunal allowing the applicant a longer period to make a claim. There is no evidence or suggestion that the time limit imposed for the lodgement of a claim has operated in an unfair manner.

    Policy

24. The respondent has placed reliance on policy documents relating to the pension bonus scheme under the Act and the Social Security (Administration) Act 1991[18] that state that the Secretary has discretion to accept any late pension bonus claim providing there is a special reason and describes examples of reasons for making a late claim which are relevant to special circumstances. None of those examples are applicable in this case.[19]

    [18] Exhibit K and Exhibit M

    [19] Exhibit K at p. 4

25. In Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 70, Bowen CJ and Deane J remarked:

    ....the Tribunal is not, in the absence of specific statutory provision, entitled to abdicate its function of determining whether the decision made was, on the material before the Tribunal, the correct or preferable one in favour of a function of merely determining whether the decision made conformed with whatever the relevant general government policy might be.

26. This Departmental policy does not have a statutory foundation.[20]  I do not consider that the policy documents are determinative in this case. The statutory discretion that is vested in the respondent (and this Tribunal) cannot be circumscribed by policy that is not supported by statute. I also have reservations about applying social security policy to the circumstances of veterans where a distinctive approach is warranted.

    [20] See Sir Anthony Mason, ‘Administrative Review: The Experience of the First Twelve Years’ (1989) 18 Federal Law Review 122, 127; Justice Duncan Kerr , ‘Challenges Facing Administrative Tribunals – The Complexity of Legislative Schemes and Shrinking Space for Preferable Decision-Making’ (Speech delivered at the Council of Australasian Tribunals, 18 November 2013) (retrieved from: >

    I affirm the decision under review.

I certify that the preceding 27 (twenty-seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD

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Associate

Dated: 10 April 2017

Dates of hearing:	28 September 2015, 10 November 2015, 16 November 2016 and 15 February 2017
Date final submissions received:	22 March 2017
Applicant:	In person
Advocate for the Respondent:	Ken Rudge
Solicitors for the Respondent:	Department of Veteran's Affairs