Hargraves and Military Rehabilitation and Compensation Commission (Compensation)

[2024] AATA 442

Hargraves and Military Rehabilitation and Compensation Commission (Compensation) [2024] AATA 442 (12 March 2024)

Division:VETERANS' APPEALS DIVISION

File Number(s):      2022/8596

Re:Delisha Thompson (by her representative Sean Edward Hargraves)

APPLICANT

AndMilitary Rehabilitation and Compensation Commission

RESPONDENT

DECISION

Tribunal:Senior Member George

Date:12 March 2024

Place:Adelaide

The Reviewable Decision is affirmed

....................[Sgnd].........................

Senior Member George

CATCHWORDS

VETERANS – education and training scheme – whether applicant is an eligible young person – whether applicant entitled to education allowance at tertiary rate – decision under review affirmed.

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

Military Rehabilitation and Compensation Commission Act 2004 (Cth)

SECONDARY MATERIALS

Military Rehabilitation and Compensation Act Education and Training Scheme 2004

REASONS FOR DECISION

Senior Member George

12 March 2024

1. Mr Sean Hargraves is a veteran of the Royal Australian Navy. He suffers 80 whole body impairment points, effective from July 2017. Mr Hargraves married Mrs Delisha Thompson in February 2018. Mrs Thompson was a nursing student and was born in December 1993.

2. Mrs Thompson lodged an application for education allowance at a tertiary rate under the Military Rehabilitation and Compensation Act Education and Training Scheme 2004 (“the Scheme”) on 26 May 2022. She was aged 28 years. This application was denied on 17 June 2022 by determination as she did not satisfy the definition of an “eligible young person” under s 5 of the Military Rehabilitation and Compensation Commission Act 2004 (Cth) (“the Act”).

3. On 25 June 2022, Mrs Thompson sought a reconsideration of the determination asserting that she satisfied the requirements of being an “eligible young person”. The determination was affirmed on 18 October 2022. This is the Reviewable Decision.

4. Numerous issues have been raised since the present application was made, many of which became irrelevant by the time of the hearing. These need not be addressed in any detail, suffice to say that by the time of the hearing there was no question of the Tribunal’s jurisdiction. It is clear from witness statements in the Joint Hearing Bundle that Mr Hargraves has suffered because of his incapacity and has also struggled with bureaucracy. Indeed, it may – or may not – be that he has been failed at times by opaque bureaucratic processes. In any event, the central issue for the Tribunal is technical: was Mrs Thompson eligible for benefits under the Scheme on 26 May 2022 when she made her application?

5. For the following reasons, the Tribunal finds that Mrs Thompson was not eligible for benefits under the Scheme as at the date of her application and affirms the Reviewable Decision.

6. Mrs Thompson would be eligible for benefits under the Scheme, under s 258 of the Act, as an “eligible young person”, under s 5 of the Act, and a dependent of Mr Hargraves, under s 5 and s 15 of the Act, if she were:

   (a)aged under 25 years of age;

   (b)undertaking her nursing education on a full-time basis; and

   (c)not in full-time employment.

7. Given that Mr Hargraves suffered 80 whole body impairment points, effective from July 2017, Mrs Thompson seemed eligible to apply for benefits under the Scheme from the date of her marriage to Mr Hargraves in February 2018 until she turned 25 years in December 2018. For whatever unfortunate reason, neither Mr Hargraves nor Mrs Thompson were aware of this eligibility and an application was not made until May 2022.

8. The Scheme does not make a provision for the retrospective awarding of benefits. The date of Mrs Thompson’s late application for benefits is fatal. Regrettably, no compassionate or compelling circumstances can be imported into the Tribunal’s consideration of what is a strictly technical question.

   DECISION

9. Accordingly, the only decision available to the Tribunal is to affirm the Reviewable Decision.

I certify that the preceding 9 paragraphs are a true copy of the reasons for the decision herein of Senior Member George

............................[Sgnd]...................................

Associate

Date of Decision:	12 March 2024
Date of Hearing:	6 March 2024
Representation for the Applicant:	Self-represented
Solicitor for the Respondent:	Mr Ben Dube Sparke Helmore

ANNEXURE A – EXHIBIT REGISTER

10.     EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED	DATE TENDERED
A1/R1	Joint Hearing Bundle	A/R	13/10/2023	29/1/2024	6/3/2024