Holloway and Repatriation Commission
[2009] AATA 432
•15 June 2009
Administrative Appeals Tribunal
ORDER AND REASONS FOR ORDER [2009] AATA 432
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/5253
VETERANS' APPEALS DIVISION ) Re DANIEL HOLLOWAY Applicant
And
REPATRIATION COMMISSION
Respondent
ORDER
Tribunal M J Carstairs, Senior Member Date15 June 2009
PlaceBrisbane
Order The Tribunal does not have the power to review assessment of the applicant’s rate of pension, except as that question arises if the applicant is successful with respect to his claim for “fractured vertebrae T12.”
…………[sgd]…………… Senior Member
REASONS FOR ORDER
1. Mr Holloway, through his solicitor Mr B Piper, has raised the ambit of matters under review in his application to the Tribunal.
2. On its face, Mr Holloway’s application in Form 1, appears to state plainly:
The veteran disagrees with the decision that his back injury was not caused by or related to his service…[1]
[1] T1 – Form 1.
3. In that regard, it is beyond question that Mr Holloway has applied for review of his claim for “fractured T12 vertebrae,” as he described the condition in his claim form, lodged with the respondent on 1 March 2007. That was what the Veterans' Review Board reviewed on 28 August 2008, and so that is on review here, at the applicant’s request. That is because, in accordance with s 175 of the Veterans' Entitlements Act 1986 (“the Act”), a veteran can seek review of “a decision of the Commission [that] has been reviewed by a Board”.
4. What also is clear, noting that Mr Holloway is presently paid at the maximum general rate of pension (that is 100%), is that if Mr Holloway’s claim for fractured vertebrae is successful before the Tribunal, the Tribunal has the power to consider his entitlement to special and/or intermediate rates of pension (“the above general rates”). That too, is in accordance with provisions in the Act.
5. Mr Piper submits, however, that quite apart from this, it is open to the Tribunal to look at the question of Mr Holloway’s entitlement to the above general rates, even if his claim for “fractured T12 vertebrae” fails. That is the nub of the issue that I must now consider: whether the Tribunal can review the assessment of Mr Holloway’s rate of pension, if he is unsuccessful with respect to his claimed condition.
BACKGROUND
6. Before deciding the question of the ambit of Tribunal review, it is helpful to have an understanding of what has taken place in the course of Mr Holloway’s reviews to date. Such a history assists in delineating what is reviewable here.
7. The starting point is Mr Holloway’s claim. Its full details do not matter, but it is worth noting that the claim commenced as one relating to four medical conditions. The claim form specifically identified that Mr Holloway was lodging both:
§ a claim; and
§ an application for increase in Mr Holloway’s rate of pension. [2]
[2] Page 71.
8. These distinctions (between a “claim” and an “application for increase”) are reflected in ss 14 and 15 of the Act. They may set in train a number of consequences, including, for the successful applicant, those with respect to setting dates of effect for favourable outcomes; and for setting time limits for further review. There may be consequences also for identifying the boundaries of subsequent review.
9. That said, it is sufficient to note that after the claim was lodged, a delegate on 18 June 2007:
§ accepted that two of the four conditions the subject of the claim (upper limb and shoulders), were related to Mr Holloway’s Army service[3]; and
§ increased Mr Holloway’s pension assessment to 70% of the general rate of pension, backdated in accordance with the Act to 1 December 2006 (“the first decision”).
[3] See documents K – P.
This meant that the right knee condition, and fractured T12 vertebrae were claims that had been refused, on the grounds that they were not related to Mr Holloway’s service.
10. Mr Holloway, however, did not let matters rest there. He next asked (5 September 2007)[4] for a “review of my disability support pension”, specifically, that his pension be increased to one of the above general rates, because he could not work more than 20 hours per week. He also requested that his right knee condition now be accepted, referring to a DVA letter “granting the claim”. As the accompanying document made plain, Mr Holloway had made a successful claim with respect to the right knee under another Act, which deals with the workers’ compensation rights of defence personnel. I would simply note that Mr Holloway’s remark that the claim was now granted appears to be confusion on his part, not uncommon, where a medical condition can give rise to separate entitlements under two Acts. Mr Holloway, it should be noted, made no mention of the other outstanding claim for T12 fracture.
[4] Page 107.
11. The respondent efficiently treated this letter as a request for review (utilising s31 of the Act, which allows for an internal review) and granted the right knee claim (the “second decision”). As the acceptance of this condition related to the first claim, and the request for review was made within time, Mr Holloway obtained the benefit of the same date of effect as was applied to the originally accepted conditions, i.e. 1 December 2006. The delegate, at this point of time, chose to defer assessment, stating that he lacked sufficient information to determine that question.
12. I would note however that Mr Holloway, as a result of being assessed at 70% of the general rate by the first decision, had a right to have the question of the above general rates looked at on any such reassessment. The above general rate questions were only of passing interest in the first decision; the delegate noting that Mr Holloway then was still working.
13. The next development came in October 2007 with Mr Holloway notifying his resignation. Accordingly, he now asked to be paid at the special rate (an application for increase), providing a supporting letter from his employer, to the effect that Mr Holloway was terminating his employment due to his service-related disabilities[5]. The respondent appears to have incorporated this additional information into the review Mr Holloway had sought on 5 September 2007, there being an outstanding consideration of assessment, which the second decision maker, it will be recalled, had deferred.
[5] Page 124.
14. On 23 October 2007 (this then being the “third decision”) a delegate:
§ increased Mr Holloway’s pension to 100% general rate; and
§ rejected payment at the above general rates, on the grounds, in effect, of contributions from Mr Holloway’s non-accepted disability of fractured T12 vertebrae (and what appears to be resultant back pain).
15. Mr Holloway then asked for further review (requesting another s 31 internal review) of the assessment[6]. This was carried out, but the assessment outcome did not change; his pension remained at 100% (the “fourth decision”)[7].
[6] Page 147, applicant’s letter dated 21 November 2007.
[7] Page 152-154. Decision dated 10 January 2008.
16. Importantly, this fourth decision (on 10 January 2008) clearly advised Mr Holloway’s review rights, stating that Mr Holloway had not lodged, but should consider lodging, a request for review with the Veterans' Review Board, and telling him (correctly) that he had until 24 January 2008 to do so (this being the expiry of the three month statutory time limit for a review of the third decision).
17. Then on 15 January 2008, Mr Holloway, with the assistance of an advocate from the Returned and Services League, sought a review of the rejection of what was now the sole remaining claimed medical condition not yet granted under Mr Holloway’s initial claim: fractured T12 vertebrae[8]. Mr Holloway specifically indentified in writing that he wanted the first decision reviewed by the Veterans' Review Board.
[8] Page 155.
18. If there could be any doubt of this, it would be dispelled by the content of the advocate’s submission to the Veterans' Review Board[9]. That stated, in clear terms, that the review was limited to Mr Holloway’s claim for fractured T12 vertebrae:
….. to review that part of the decision refusing the claim for fractured vertebra. The applicant does not seek review of any other aspects of the delegate's decision[10].
[9] T4, pp 196-199.
[10] Page 196
19. Mr Holloway’s advocate fulsomely set out submissions with respect to connections between his T12 fracture and defence service,[11] addressing this through the applicable Statement of Principles for fractures. The submission concluded by stating that, should Mr Holloway be successful before the Board, he was asking that assessment of pension be remitted to the respondent. In accordance with the applicant’s express wish, the Veterans' Review Board confined its considerations to reviewing the claim for fractured T12 vertebrae.
[11] Page 197.
20. I had the advantage of reading the transcript of the hearing before the Veterans' Review Board; I note the Board mentioned that were the claim to be accepted, they would remit assessment to the respondent. This itself is unremarkable, and is a course frequently adopted in external reviews, quite apart from being in accordance with the applicant’s wishes. In the event, the Board rejected the claim for the fracture, and accordingly was not called upon to re-assess (or remit) pension.
21. Before leaving this history of the review, I would emphasise that the Veterans' Review Board was not asked to, nor did they, review the third and fourth decisions (assessing the rate of pension).
WHAT IS ON REVIEW BEFORE THIS TRIBUNAL?
22. It is s175 of the Act that enables an appeal to be made to the Administrative Appeals Tribunal (“the Tribunal”). Section 175(1) makes plain, that it is "a" decision of the Commission that has been reviewed by the Board and affirmed, varied or set aside, that may be made the subject of application for review by the Tribunal. The Tribunal may then review "the" decision of the Commission, as so affirmed or varied, or "the" decision of the Board in substitution for "the" decision so set aside.
23. In Fitzmaurice v Repatriation Commission [1989] FCA 147 Wilcox J noted that the critical question was what constituted the decision of the Board. As was observed by Weinberg J in Bramwell v Repatriation Commission (1998) 51 ALD 56, the Act provides for a highly structured mechanism by which claims to benefits are made, assessed and granted, as well as “elaborate mechanisms for review”[12].
[12] At p 59.
24. In Mr Holloways’ case there were a number of decisions that were amenable to review, in particular the first decision, with its outstanding claim for fracture at T12, and the third decision about assessment – as to which, I have already mentioned, he had been amply alerted about his rights of review[13]. I am satisfied that he appealed only one of these decisions to the Veterans' Review Board, that is, the first decision.
[13] T-documents at p 137 and p 154.
25. Having considered the parties’ submissions in this matter, I am satisfied that the position as stated by the respondent with reference to what is now on review by this Tribunal is correct. The respondent’s position can be summarised as follows:
§ Mr Holloway chose to limit his application to the Veterans' Review Board to the question of entitlement for T12 fracture, despite the respondent advising him of appeal rights on several occasions; and
§ where, as here, the veteran clearly and unambiguously limited what was on review, the Veterans' Review Board was correct to limit their review accordingly. Thereafter, that defines the scope of Tribunal review.
26. The second of these submissions accords with the Full Federal Court decision in Repatriation Commission v Stafford (1995) 38 ALD 193. The facts of that case need not be recited, except to observe that a Veterans' Review Board had limited the scope of review impermissibly, in that what was reviewed was not consistent with what the veteran had sought in his application to the Board. This was not corrected because the hearing was conducted on the papers. In other words the Veterans' Review Board had misstated the decision under review before it. On appeal Northrop J had observed that it would be a strange result if a veteran could be denied a right of review where the Board failed to consider parts of the decision being reviewed by it but nevertheless affirmed the whole of the Commission’s decision. The Full Federal Court clearly agreed.
27. So whilst factual background in Stafford was different, the Full Federal Court went on to make plain was that it was quite open to an applicant to deconstruct the “decision” under review into its component parts and so limit the ambit of review:
If the word “decision” in the phrase quoted from s 135 is understood as comprehending not only the decision as to the ultimate entitlement which was the subject of the claim or application but also each determination as to whether a condition of entitlement stated in the Act has been satisfied, withdrawal pursuant to s 155 of the application for review of one or more of those determinations may be effected. And in the written application to the board for review of one or more of the determinations of the Commission as to whether conditions of entitlement have been satisfied may be excepted from the decisions of which review is sought, leaving for review only the ultimate decision as to entitlement and the determinations not excepted[14].
[14] At p 197.
28. The Court continued:
If the Commission’s delegate’s decisions that Mr Stafford did not suffer either chronic obstructive airways disease or hypertension had not been the subject of the application for review by the Board, or if those decisions had been withdrawn by Mr Stafford from the Board’s review, then those decisions would not in our opinion have been susceptible of review by the Tribunal. Neither in Fitzmaurice v Repatriation Commission….. nor in any other decision of this court to which we were referred was anything said which would stand in the way of understanding the word “decision” in s 175(1)(a) as comprehending every decision of the Commission which was not the subject of review, either because it was not a decision in respect of which application for review was made or because application to review it had been withdrawn. The right conferred by s 175(1) to apply to the Tribunal for review arises only “[w]here a decision made by the Commission has been reviewed by the Board upon a request made under s 135 and affirmed. What is not requested under s 135 is not reviewed by the Board”.
29. In my view, this is apt to describe what happened in Mr Holloway’s case. Mr Holloway, not illogically, chose to pursue certain claims first, and let others, specifically as related to assessment, lie. In that regard, Mr Holloway’s application for review to the Veterans' Review Board; and the written submissions determine the matter.
30. I do not accept Mr Piper’s submission that the Board somehow impermissibly limited Mr Holloway’s claim and refused to look at assessment matters. The transcript confirms this. There was no separate request for a review of assessment of his pension, despite Mr Holloway having been advised that was a course open to him. When Mr Holloway applied to the Board, he was within the time limits for review of the third decision, bearing in mind that he was told of his review rights then, and this was amply reinforced in writing by the fourth decision-maker.
31. The Board made but limited reference to assessment matters, only in the context of discussing usual practice, which is, remitting assessment where a review body accepts a claim. Taken in context, the Boards discussions do not support a conclusion that pension assessment was otherwise before the Board.
32. In that regard, Mr Piper’s supplementary submission[15] that as long as the matter was before the original decision-maker then the matter can be dealt with by the Tribunal, is plainly wrong, and inconsistent with the principles expressed in Stafford.
[15] Supplementary submission, undated, at paragraph 3.
SUMMARY
33. The Tribunal does not have the power to review assessment of the applicant’s rate of pension, except as that question arises if Mr Holloway is successful in his claim for “fractured vertebrae T12”. The respondent’s rejection of that claim was reviewed by the Veteran’s Review Board. As a consequence, under s 175 of the Act, this then provides the limit of what the Tribunal has before it on review.
34. The Tribunal will conduct hearings in Darwin in the week commencing 24 August 2009. This matter will be listed for substantive hearing in those sittings. Pending listing, this matter is remitted to the Tribunal’s conference processes.
I certify that the 34 preceding paragraphs are a true copy of the reasons for the order herein of M J Carstairs, Senior Member
Signed:............................[sgd].............................................
Emily Clarke, AssociateDate of Hearing 27 and 29 May 2009
Date of final submissions 2 June 2009
Date of Order 15 June 2009
Solicitor for the Applicant Mr B Piper
Advocate for the Respondent Mr J Stoner
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