Jefferis and Repatriation Commission

[2007] AATA 1932

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1932

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/2174

VETERANS' APPEALS DIVISION		)
Re		JOHN JEFFERIS

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Dr K S Levy, RFD, Senior Member

Date9 November 2007

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

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SENIOR MEMBER  

CATCHWORDS

Veterans’ Entitlements – service pension – service age pension – applicant received an ex gratia lump sum compensation payment – compensation is not recoverable with respect to the age service pension – consideration of “deposit money”, “financial asset” and “financial investment” – compensation received is assessable for service pension – decision under review is affirmed

Criminal Offence Victims Act 1995 (Qld)
Veterans’ Entitlements Act 1986 (Cth) ss
Veterans’ Affairs (1994-1995) Budget Measures) Legislation Amendment Bill (No 2) 1994 (Cth)

Social Security Act 1991 (Cth)

REASONS FOR DECISION

9 November 2007   Dr K S Levy, RFD, Senior Member   

Introduction

1.      John Owen Jefferis received an ex gratia lump sump compensation payment as a result of orders made by O’Brien J of the District Court of Queensland under the Criminal Offence Victims Act 1995 (Qld). This amount received relates to orders against two offenders, and this has been taken into account in assessing his service pension but not his age service pension under the Veterans’ Entitlements Act 1986 (Cth).

2.      The treatment of that compensation amount in calculation of pension entitlements was decided by a delegate of the Department of Veterans’ Affairs on 22 February 2007.  It was subsequently affirmed on review by the Repatriation Commission on 9 May 2007.  By request, this matter has been determined on the papers and without the formal taking of evidence.

Issue

3.      The issue for the determination by the Tribunal is whether calculation of service pensions can be made by including the compensation payment received?

Facts

4.      Mr Jefferis was the victim of an assault by two offenders.  He was subsequently awarded compensation under the Criminal Offence Victims Act 1995 (Qld) and received in total, an amount of $44,250 (see Folio 74 of the T documents).

5.      Mr Jefferis is in receipt of an age service pension under Part III of the Veterans’ Entitlements Act 1986 (the Act).He correctly informed the Department of Veterans’ Affairs of a change in his circumstances. On 22 February 2007, Mr Jefferis had his age service pension increased, but his service pension was calculated with reference to the assets test, which included the compensation ordered by the District Court of Queensland.

Consideration

6.      I have considered the relevant legislative provisions as well as the legislative policies involved.  I have also taken into account all the written factual material, including all of the submissions made by Mr Jefferis in relation to his appeal.

7.      The legislative provisions deal with a number of definitional aspects.  Section 5NB(6A) refers to payments of criminal injury compensation under a state legislative scheme and provides that such lump sum amounts are not “compensation” for the purposes of the Act. Section 5NB(6B) is also relevant.

8.      But the application of these provisions is affected by Part IIIC of the Act.  That Part provides that compensation received is not recoverable if an applicant is over pension age (see s 59M(1)).  The pension age is 60 (s 5QA(2)).  Therefore as Mr Jefferis is well above the statutory pension age, no recovery of amounts paid to him is permissible as a result of his receiving lump sum compensation, at least with respect to age service pension.

9.      The compensation received is assessable for service pension purposes, as the amount of lump sum compensation is to be included in the assets test.  It is not included for the purposes of the age pension.

10.     The amount of compensation is therefore included as “deposit money” for income test purposes (see s 5H(1)).  This is because the amount is a “financial asset” as it is a “financial investment” (s 5J(1)).  A “financial investment” includes “deposit money” (see s 5J(1)).  That latter term is defined in s 5H(1) to mean “…the person’s money that is deposited in an account with a financial institution”. 

11.     The original decision, and the decision of the Repatriation Commission has rejected the applicant’s submission in his letter dated 26 April 2007 that the criminal injury compensation amount should not have been included in any assessment affecting his service pension. The argument by the applicant in that letter is that the purpose of that compensation was as compensation for “physiological and stress effects not for injuries financed and paid for to doctors, hospitals etc”. The Criminal Offence Victims Act 1995 (Qld) is intended as assistance to the victim, and where an ex gratia payment is made, as was the case here, it is not intended to reflect common law damages which could have been obtained, had the offenders paid the order of the court. It is, in effect, to provide compensation in accordance with the principles set out in that Act to provide support to victims of criminal offences, and not to be aligned to any common law damages for specific injuries.

12.     In any event, there is no exemption provision in the Act which can apply to the original source of the compensation amount in this case, that is, criminal injury compensation.  The rationale for the differential treatment of age pension and service pension is based on the policy behind s 59M.  That provision was introduced into the Act by the Veterans’ Affairs (1994-1995 Budget Measures) Legislation Amendment Bill (No.2) 1994.  Its purpose was to ensure consistency in the calculation of Commonwealth pension payable as service pensions under the Veterans’ Entitlement Act 1986 and those which are payable under the Social Security Act 1991. That intention clearly was to bring a consistent approach to payment of service pensions which are paid from the Consolidated Revenue by the Department of Veterans’ Affairs and the Department of Social Security.

13. Any decision made to determine the question for the Tribunal must be according to my “reasonable satisfaction” under s 120(4) of the Veterans’ Entitlements Act 1986. As a result of the reasoning above, I am reasonably satisfied that the decision of the delegate, and affirmed by the Repatriation Commission is in accordance with the relevant legislative provisions. In the circumstances therefore the original decision should be affirmed.

Decision

14.     The decision under review is affirmed.

I certify that the 14 preceding paragraphs are a true copy of the reasons for the decision herein of Dr K S Levy, RFD, Senior Member

Signed:         .....................................................................................
  F. Kamst, Legal Research Officer

Hearing on Papers  12 October 2007
Date of Decision  9 November 2007
For the Applicant  self-represented
For the Respondent                  Mr J Stoner, departmental advocate