Hutton and Repatriation Commission

[2007] AATA 2108

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 2108

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No W 200600368

GENERAL ADMINISTRATIVE DIVISION		)
Re		RONALD HUTTON

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr A Sweidan, Senior Member

Date24 December 2007

PlacePerth

Decision

The Tribunal sets aside the decision under review and remits the matter to the decision maker with a direction to find that the applicant has not been overpaid service pension.

............[Sgd A Sweidan]...........

  Senior Member

CATCHWORDS

Service Pension – reduction due to alleged failure to notify change in circumstances within prescribed period – decision under review set aside.

LEGISLATION

Veterans Entitlements Act 1986 (C’th) – s 54 and 56B

REASONS FOR DECISION

24 December 2007   Mr A Sweidan, Senior Member

BACKGROUND

1.      The applicant sought a review of a decision of a delegate of the respondent which found that the service pension of the applicant had been overpaid as the applicant had failed to notify the Department of Veterans Affairs of a change in circumstances within the prescribed time.

ISSUES

2.      The issue for the Tribunal is whether the applicant had notified the respondent of a change in the applicant’s circumstances within the time prescribed under subs 54(1 ) and 54 (5) of the Veterans Entitlements Act 1986 (C’th) (‘the Act’), i.e., within 14 days of that event taking place.

RELEVANT FACTS

3.      The applicant’s son was killed in a road accident in Cambodia on 24 June 2005.

4.      According to a report on the Enquiry Event tracking for the period from 25 June 2005 to 15 December 2005 the applicant’s records in the Department’s Electronic Data Management System were opened on 6 July 2005 and again on 15 December 2005.

5.      There is no record held by the Department as to why the applicant’s records in the Management System were opened 6 July 2005.

6.      According to the Department of Veterans Affairs records, the reason for the opening of the records on 15 December 2005 was a telephone call from the applicant’s wife in which she advised that she and the applicant had inherited their late son’s home.

7.      The applicant and his wife became the registered owners of their late son’s home on 17 October 2005.

8.      The applicant’s wife gave evidence to the Tribunal by telephone.  She said that although she could not say when she notified the Department of the fact that she and the applicant had inherited her late son’s property it was “long before probate went through”.  This is confirmed in a letter which she wrote to the Department on 13 August 2006

CONTENTIONS

9.      The respondent contends that the applicant’s change of circumstances occurred on 17 October 2005 when the transfer of his late son’s property to him and his wife was registered.  The respondent contends further that notification of this was not received until 15 December 2005, i.e. more than 14 days after the occurrence.  The respondent thus contends that the applicant did not comply with his obligations under s 54 of the Act to notify of change in circumstances within 14 days of the relevant occurrence and that accordingly his service pension had been overpaid.

10.     The respondent acknowledges that the applicant’s records were opened on 6 July 2005.  This was within 14 days of the death of the applicant’s son which occurred on 24 June 2005.

TRIBUNAL’S FINDINGS

11.     In the Tribunal’s view the relevant change in the applicant’s circumstances occurred when his son died.

12.     The Tribunal finds on the balance of probabilities, that Mrs Hutton did notify the Department on 6 July 2005 of the death of her son on behalf of herself and the applicant of the fact that he had died and that they had inherited his property.  The Tribunal finds that Mrs Hutton was a witness of truth, and although she is unable to say when she made the telephone call to the Department, the Department’s own records confirm a contact on 6 July 2005, and that it appears that there could have been no other reason for the contact as the Department cannot advance any other reason

13.     The Tribunal notes that the respondent’s representative, in submissions to the Tribunal, said that had the respondent been able to confirm the notification to the Department on 6 July 2005 from its records then these proceedings would not have been necessary.

DECISION

14.     The Tribunal sets aside the decision under review and remits the matter to the decision maker with a direction to find that the applicant’s service pension has not been overpaid.

I certify that the 14 preceding paragraphs are a true copy of the reasons for the decision herein of Mr A Sweidan, Senior Member

Signed:         ......................[Sgd Y Maker].........................
  Associate

Date of Hearing  29 October 2007
Date of Decision  24 December 2007
Representative for the Applicant             Self Represented   

Representative for the Respondent        Mr C Ponnuthurai
  Department of Veterans’ Affairs