Kelly and Repatriation Commission

[2007] AATA 1998

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1998

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/2549

VETERANS’ APPEALS DIVISION		)
Re		LEONARD KELLY

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Dr J.D Campbell

Date30 November 2007

PlaceSydney

Decision The decision under review is affirmed.

................[sgd]..............................

Dr J.D Campbell
  Member

CATCHWORDS

Veterans’ Entitlements - pension bonus scheme - accrual of at least one full year bonus period - post 70/75 membership - accruing membership - decision under review affirmed

Veterans’ Entitlement Act 1986 - sections 45TC, 45TH, 45TM, 45TQ, 45TR and 120

Repatriation Commission v Smith (1987) 15 FCR 327

REASONS FOR DECISION

30 November 2007 Dr J.D Campbell   

Background

1.      Mr Kelly (“the Applicant”) was born on 30 November 1920. He lodged an application for registration as a member of the Pension Bonus Scheme (“PBS”) on 10 April 2007 (T3). On 14 April 2007, the Repatriation Commission (“the Respondent”) concluded that Mr Kelly was not eligible to register as a member of the PBS (T4 and T5) because Mr Kelly was 77 years of age at the commencement date of the scheme (1 July 1998). In so stating, the Repatriation Commission nominated the minimum required age limits for the purpose of claiming a bonus when delaying a claim for service pension, or income support supplement, as 60 years, and 65 years for social security age pension. The maximum age limits for a male claiming a service pension or income support supplement was noted to be 70 years, and for a social security age pension, the limit is 75 years.

2.      On 10 April 2007, Mr Kelly lodged an Application for Pension Bonus by a registered member of the PBS (T6).  In separate correspondence dated 14 April 2007 (T7), the Repatriation Commission informed Mr Kelly that he was not eligible for payment of a pension bonus because he had not been a member of the PBS for the minimum one year period before reaching the age of 70.

3. Mr Kelly lodged a request for review on 27 April 2007. On 25 May 2007, he was advised by the Repatriation Commission (T2) that he did not qualify for a pension bonus. This was because he did not satisfy the criteria of subsection 45TC(1) of the Veterans’ Entitlements Act 1986 (“the Act”), in that he was over 70 years of age when the scheme was introduced, and in such circumstances he could not become an accruing member of the scheme.

Issues

4.      The relevant issues in this matter are:

(a)What is the effect of Mr Kelly’s age at the date of application for registration as a member of the PBS?

(b)      Does Mr Kelly qualify for a pension bonus?

Decision

5.      For the reasons stated later in this decision, Mr Kelly does not qualify for a pension bonus. This is because he is unable to accrue any time, let alone at least one full year bonus period, while registered as a member of the PBS. Such an outcome results directly from the fact that Mr Kelly was 86 years of age when he lodged his application for membership of the PBS, and would therefore always be considered post 70/75. In such circumstances, the length of time in that membership category does not satisfy the criteria for “accruing time”.

Consideration and findings

6.      I acknowledge that in a brief telephone statement, Mr Kelly, now a retired solicitor and 86 years of age, was of the view that a decision congruent with the current legislation had been made. His concerns relate to unfairness, in that it is evident that at the date of the scheme’s introduction (1 July 1998), age, and age alone, would have made him ineligible to participate.

7. I am mindful that the standard of proof to be applied in matters such as the one under consideration is that of reasonable satisfaction as defined by section 120(4) of the Act. I note that the full court of the Federal Court in Repatriation Commission v Smith (1987) 15 FCR 327 considered that such a standard of proof is essentially equivalent to that applicable in civil actions, namely “on the balance of probabilities”.

8. In addressing Mr Kelly’s claims, I note again that he was 86 years of age at the date he lodged both claims. I also note that section 45TQ of the Act provides that:

45TQ  Post‑70/75 membership

A person’s membership of the pension bonus scheme is post‑70/75 at all times on or after:

(a)if the person is eligible for an age service pension or income support supplement (other than income support supplement that is payable as a result of the operation of subclause 8(3) of Schedule 5) on the day the person reaches age 70—that day; or

(b)       in any other case—the day the person reaches age 75.

9. As a consequence of section 45TQ of the Act, an application by Mr Kelly at the age of 86 would result in his classification as a post 70/75 member of the PBS.

10. I also note that section 45TM of the Act provides for accruing membership:

45TM  Accruing membership

For the purposes of this Part, a person’s membership of the pension bonus scheme at a particular time is accruing unless the person’s membership is non‑accruing or post‑70/75 at that time.

11. In Mr Kelly’s circumstances, the operation of section 45TM results in his membership of the PBS as not accruing time, by virtue of his post 70/75 membership classification. In such circumstances, Mr Kelly is unable to accrue any time to meet the requirement of having accrued at least one full year bonus period. I note that the accrual of bonus periods is defined in section 45TR of the Act, with the commencement of any accrual period necessitating that a person be an accruing member of the PBS.

12. Section 45TC(1) of the Act nominates the necessary criteria for a person to qualify for a pension bonus. The criteria are cumulative, with section 45TC(1)(d) stating that “the person has accrued at least one full‑year bonus period while registered as a member of the pension bonus scheme.”

13.     In Mr Kelly’s circumstances, as outlined above, I find that Mr Kelly is unable to satisfy any requirement accruing time towards at least one full-year bonus period. A careful examination of sub-sections 45TH(3),(4) and (5), pertaining to late applications, carries the matter no further in that any pre-application period for a person whose special date of eligibility for a designated pension occurs before 1 July 1998, commences on 1 July 1998 and continues up to the date of lodgement of claim (10 April 2007). Even if such a late application was agreed to, the period after still falls within the membership category of post 70/75, while it would appear that the legislative intent is to commence the pension bonus scheme from 1 July 1998. I again note that Mr Kelly was 77 years of age at the commencement of the PBS, and were the scheme to have a retrospective scope, it is evident that for a significant number of years, Mr Kelly’s retrospective membership (deemed in such circumstances) would again fall within the 70/75 membership category.

14. In such circumstances, I conclude that Mr Kelly does not qualify for a pension bonus as he is unable to satisfy section 45TC(1)(d) of the Act – having accrued one full-year bonus period while registered as a member of the PBS. As a consequence, I affirm the decision under review.

I certify that the 14 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J.D Campbell

Signed:         ................[sgd]................................................................
  Associate

Date/s of Hearing  10 October 2007
Date of Decision  30 November 2007
Solicitor for the Applicant          Self-represented
Solicitor for the Respondent     Nigel Bunn