Holt and Repatriation Commission
[2006] AATA 537
•22 June 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 537
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V2005/1081
VETERANS’ APPEALS DIVISION ) Re JANE WINIFRED HOLT Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr John Handley, Senior Member Date22 June 2006
PlaceMelbourne
Decision IT IS DECIDED the Tribunal does not have jurisdiction to review a decision made on 11 November 2005 to raise an overpayment of service pension. ..............................................
Senior Member
VETERANS’ ENTITLEMENTS – service pension – rate payable – failure to notify of changed circumstances – overpayment – automatic rate reduction – whether a reviewable decision
Veterans’ Entitlements Act 1986 (Cth) s 56B and s 56H and s 56D
REASONS FOR DECISION
22 June 2006 Mr John Handley, Senior Member 1. Mrs Holt applied to review a decision made by a delegate of the Respondent on 11 November 2005 who affirmed a decision made raising an overpayment of service pension for the period 25 April 2001 to 19 January 2004. The Respondent later reduced the rate of service pension payable. Mrs Holt clarified at the hearing that she sought to review:
(i)the decision with respect to the overpayment; and
(ii)the decision with respect to the reduction in the rate of service pension.
2. The evidence of Mrs Holt was taken by telephone from her home in Geelong. She was unrepresented. Mr Douglass appeared on behalf of the Respondent. It was his submission that the Tribunal did not have jurisdiction to review the decisions made.
3. The circumstances giving rise to this application may be briefly summarised as follows.
4. Mr and Mrs Holt received service pension for many years. Mr Holt died on 2 March 2005 and from that date, service pension has been paid to Mrs Holt only. They both previously received an age pension from the United Kingdom. The receipt of those pensions was disclosed to the Respondent and taken into account when calculating the rate of service pension.
5. In April 2001, Mr Holt became entitled to an additional payment from the Department for Social Security in the United Kingdom by reason of him having been found to have a 35 per cent disability for the condition known as Pneumoconiosis. That finding gave him an entitlement to a pension known as an Industrial Injuries Disablement Benefit (“the benefit”). It is the receipt of that benefit that has given rise to the decisions made by the Respondent for which Mrs Holt seeks review.
6. The first notification of entitlement to that benefit occurred in a letter to Mr Holt on 24 May 2001 from the Department for Social Security. That letter recorded that a benefit of £45.16 will be paid from 25 April 2001 “for life”. The letter records that the benefit will be paid “into your bank account every four weeks in arrears”.
7. Mrs Holt said she notified the Respondent’s staff in the Geelong office of that benefit. The Respondent understood that that benefit was payable “fortnightly” and wrote to Mr and Mrs Holt on 18 June 2001 confirming that advice had been received of entitlement to that benefit (T‑documents page 102). On 28 June 2001, the Department for Social Security wrote to Mrs Holt and confirmed that the benefit of £45.16 was payable to her husband “weekly” (page 104). That letter was also provided to the Respondent. An officer of the Respondent, in an attempt to clarify the frequency and rate of the payment, recorded a memorandum on 26 July 2001 (page 105) of a conversation with Mrs Holt. The memorandum records that the payment of £45.16 represents a payment “for four weeks”. The memorandum concludes “she rang UK and confirmed that it was definitely four weekly”.
8. On 8 April 2002 (page 33), the Department for Social Security wrote to Mr Holt and confirmed that there would be an increase in the payment of his benefit to the “weekly rate of £45.92”. A similar letter was sent to Mr Holt on 2 April 2003 confirming another increase to the “weekly rate of £46.72”.
9. An officer of the Respondent had another discussion with Mrs Holt on 23 July 2003 where, as a result of that discussion, the Respondent understood that the sum of £46.72 was “payable every four weeks” (page 106). Subsequent telephone discussions with Mrs Holt on 19 January 2004 (page 107) and on 14 April 2004 (page 7) indicate that the pension was payable as a weekly rate.
10. At the hearing on 1 June 2006, Mrs Holt confirmed that at all relevant times, the pension as above has been paid every four weeks but as a weekly rate. That is to say, the above rates of pension were weekly amounts, not amounts representative of a four week period. The period of four weeks is referrable to the frequency of payment, not to the quantum of the payment.
11. Mr Douglass relied on the provisions of s 56B of the Veterans’ Entitlements Act 1986 (“the Act”) which is reproduced as follows:
Where:
(a) a person who is receiving a service pension or income support supplement is given a notice under section 54; and
(b) the notice requires the person to inform the Department or a specified officer of the occurrence of an event or change in circumstances within a specified period (in this section called the notification period); and
(c) the event or change in circumstances occurs; and
(d) the person does not inform the Department or specified officer of the occurrence of the event or change in circumstances within the notification period in accordance with the notice; and
(e) because of the occurrence of the event or change in circumstances, the person’s rate of pension or income support supplement is to be reduced;
then, except where otherwise provided for by this Act, the pension or income support supplement becomes payable to the person at the reduced rate on the day on which the event or change in circumstances occurs.
12. Additionally, or in the alternative, Mr Douglass relied on s 56H which relevantly is reproduced as follows:
General
(1) The day on which a determination under section 56D, 56E, 56EA, 56EB or 56EC (in this section called the adverse determination) takes effect is worked out in accordance with this section.
(2) The adverse determination takes effect on:
(a)the day on which the determination is made; or
(b)if another day is specified in the determination—on that day.
False statement or misrepresentation—rate reduction
(6) If:
(a) a person has made a false statement or misrepresentation; and
(b) because of the false statement or misrepresentation, the rate at which a service pension or income support supplement was paid to a person was more than it should have been;
the day specified under paragraph (2)(b) may be earlier than the day on which the determination is made.
13. It was submitted that by reason of the above sections, a reduction in the rate of service pension payable should have occurred “automatically” by force of s 56B because of a change in the circumstances of Mr and Mrs Holt, being the “weekly” payment of the benefit from the United Kingdom. By force of s 56H, the rate of pension previously paid was more than the rate to which Mr and Mrs Holt were entitled because a false statement or misrepresentations had been made. An adverse determination therefore should be made by s 56H by regard to the provisions of s 56D which directs the Respondent to reduce the rate of pension payable. That section is reproduced as follows:
(1) If the Commission is satisfied that the rate at which service pension or income support supplement is being, or has been, paid is more than the rate provided for by this Act, the Commission must, subject to section 56DA, determine that the rate is to be reduced to the rate specified in the determination.
Note 1: a determination under this section is not necessary in a case where an automatic rate reduction is produced by section 56B.
Note 2: for the date of effect of a determination under this section, see section 56H.
(2) A determination under subsection (1):
(a) must be in writing; and
(b) must specify a rate assessed as provided for by this Act; and
(c) may be made by the Commission on its own initiative or following a request by the pensioner for a decrease in the rate of the pension or supplement.
(3) If the Commission makes a determination under this section in respect of a person’s service pension or income support supplement, the service pension or income support supplement is payable to the person at the rate specified in the determination.
14. It was submitted that Mr and Mrs Holt must have received notices from the Respondent from time to time both notifying them of their obligations to report changes of circumstances . Those notices contained the information relied upon by the Respondent in calculating the rate of service pension. That information was incorrect because of the misunderstanding as to the frequency and rate of the benefit. Those payments constituted a change in circumstances within the meaning of s 56B of the Act for which Mr and, or, Mrs Holt were obliged to notify the Respondent. Notification was not made, the rate of service pension was paid at a rate greater than entitled and an overpayment therefore occurred. When a proper calculation was made, the rate of service pension was reduced.
15. Additionally, it was submitted that there was no jurisdiction within the Tribunal to review the reduction in the rate of pension paid to Mrs Holt. It was submitted the reduction occurs automatically by force of s 56B which is a decision not capable of review, having regard to the combined provisions of s 57 and s 175(2) of the Act.
16. In the alternative, it was submitted that if the provisions of s 56H(6), and therefore s 56D apply, the Tribunal should find that there was a false statement or misrepresentation made to the Department which consequently caused the overpayment of pension. However, the provisions of s 56D provide that a determination is not required by this section where automatic rate reduction occurs by operation of s 56B.
17. Mrs Holt said that between 2001 and 2005, she did not receive notices from the Respondent. She said that she keeps important documents and was adamant that notices from the Respondent had not ever been forwarded. She did confirm that she has resided at her current address since 1994 which is the same address which appears on the duplicate notices that were issued by the Respondent and which appear in the T‑documents. She also confirmed that since 2005 she has received correspondence at that address from the Respondent which notified her of the decisions sought to be reviewed in these proceedings.
conclusion
18. As a fact, I am satisfied that the notices forwarded by the Respondent to Mrs Holt since 2001 were received. I note from the documents read that her late husband was seriously ill, that she cared for him and she was responsible for day to day matters affecting the household. That extended to liaising with a number of government departments, no less the Department of Veterans’ Affairs. A number of notices were forwarded to her recording information she provided concerning bank account details, alterations in pension rates and variation in asset values. That information was provided by her by reason of the notices that she received.
19. Additionally, I am satisfied that some parts of those notices were unnoticed. For example, the notice of 17 March 2002 (pages 49 – 51 inclusive) specifically contains a reference to the information held by the Respondent concerning fortnightly income from other sources. It is recorded that $322.28 per fortnight is received which must have been the income from the Department for Social Security being the age pensions and the benefit. Mrs Holt must have known, or should have known the extent of her bank balance from time to time and it would have demonstrated that the fortnightly income then was greater than $322.00. Indeed the advice from Mr Douglass at the hearing, which I accept, indicates that the combined fortnightly income from the United Kingdom at the date of that letter would have exceeded $500.00. That the Respondent relied on the figure of $322.00 as the basis for calculating the rate of service pension payment should have alerted Mrs Holt to her obligations under the notice to notify the Department that its information was wrong and her pension rate accordingly should have been adjusted. If it was, the overpayment would not have occurred.
20. These findings are not to be understood as Mrs Holt being engaged in any improper conduct. As I attempted to explain during the hearing, a false statement does not by its language indicate any finding on my part of any dishonesty or deliberate or intentional untruth. Indeed, as a fact I am satisfied that Mrs Holt did not act in that manner. I am however satisfied that she was aware that the benefit was payable as a weekly rate rather than as a four weekly rate. I am also satisfied that she knew, or should have known from her dealings with the Respondent, that incorrect calculations had been made by reason of misunderstandings. She was obliged to notify the Respondent of its misunderstanding and had that occurred, the overpayment would not have commenced and subsequently accrued.
21. This application is very unfortunate. An 80 year old widow should not be exposed to having to repay amounts that were paid by misunderstanding or error. It is unfortunate also that the correspondence from the United Kingdom which was obtained by the Respondent was misleading or at least unclear in its description of the payment to which Mr Holt had been entitled.
22. As recorded above, the reduction in the rate of service pension has occurred because the Respondent now calculates the current pension rate by reference to Mrs Holt’s proper entitlement which has regard to her assets and income from other sources. In effect her pension has been adjusted.
23. Section 56B does permit the Respondent to pay pension at the reduced rate in the circumstances referred to by the section. That is because the circumstances of Mrs Holt have changed, namely, knowledge that the benefit represented a weekly payment as opposed to a fortnightly or four weekly payment. The reduced rate as determined by that section is not reviewable under s 57 and consequently cannot be the subject of review by this Tribunal.
24. In all of the circumstances, the reviewable decision affirmed a decision which was made by a primary decision-maker but without power under the legislation. The matter should have been properly considered by reference to s 56B alone and if it had, it would not have been a decision capable of being reviewed in this Tribunal.
25. This decision is unlikely to give Mrs Holt any comfort but even if the decision made by the Respondent was reviewable, I would be obliged to find that an overpayment has occurred.
26. Mrs Holt expressed dissatisfaction at the hearing that the Respondent had commenced to recover pension previously overpaid at $50.00 per fortnight. That would appear to be a large sum of money from a person who is dependent upon pension income. Mrs Holt would be advised to contact the Respondent and give details of her present financial circumstances where hopefully the amount being recovered will be reduced.
I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of:
Mr John Handley, Senior MemberSigned: .....................................................................................
Personal AssistantDate of Hearing 1 June 2006
Date of Decision 22 June 2006
Solicitor for the Applicant Self Represented
Departmental Advocate Robert Douglass
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