Keys and Repatriation Commission (Veterans' entitlements) - [2023] AATA 1796

Keys and Repatriation Commission (Veterans' entitlements) [2023] AATA 1796 (23 June 2023)
Division:VETERANS' APPEALS DIVISION
File Number: 2022/4221
Re:Ian Arthur Knox Keys
APPLICANT

Repatriation CommissionAnd
RESPONDENT

DECISION
Tribunal:Member D Mitchell
Date:23 June 2023
Place:Brisbane

The Tribunal finds that section 24(2A) of the Veterans’ Entitlements Act 1986 (Cth) applies in determining the Veteran’s entitlement for the Special Rate pension.
....................................................
Member D Mitchell

Catchwords
VETERANS’ AFFAIRS – application for increase in rate of pension – Special Rate pension – preliminary issue – whether section 24(2A) of the Veterans’ Entitlements Act 1986 (Cth) applies – was the Veteran 65 on the date the claim or application was received – to which claim or application does the reviewable decision relate – section 24(2A) applies
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Veterans’ Entitlements Act 1986 (Cth)
Cases
Edwards v Australian Securities Commission and Others (1997) 72 FCR 350
Frugtniet v Australian Securities and Investments Commission [2019] HCA 16; 266 CLR 250
REASONS FOR DECISION
Member D Mitchell
23 June 2023
INTRODUCTION

Mr Ian Arthur Knox Keys (the Veteran) is seeking review of a decision made by the Veterans’ Review Board (VRB) on 31 March 2022.[1]
[1] T1, pages 1-6, Application for Review.
The reviewable decision affirmed a determination of the Respondent dated 22 June 2020[2] that the Veteran was entitled to be paid the disability pension at 100% of the General Rate effective from 16 October 2019 pursuant to section 22 of the Veterans’ Entitlements Act 1986 (Cth) (VEA).[3] The Veteran had sought an increase in his rate of disability pension to the Special Rate pursuant to section 24 of the VEA.
[2] T38, pages 180-187, Determination, accepting claim for right knee and bilateral osteoarthritis at 100% general rate.
[3] T1.1, pages 7-15, Decision of the VRB.
A preliminary issue arose in this application in relation to whether the requirements of section 24(1) or 24(2A) of the VEA apply. This issue brings into question whether or not the Veteran had turned 65 before the claim or application was made to which the reviewable decision before the Tribunal relates.
At a Telephone Directions Hearing on 6 February 2023 the parties agreed that this preliminary issue should be resolved ahead of any conciliation or substantive hearing being held. As a result, on 7 February 2023 the Tribunal issued the following directions with the consent of the parties:
Over 65 issue
5On or before 10 March 2023, the Respondent must provide to the Tribunal and the Applicant submissions addressing the application of section 24(2A) of the Veterans’ Entitlements Act 1986 (Cth) (VEA) to this application.
6On or before 24 March 2023, the Applicant must provide to the Tribunal and the Respondent submissions addressing the application of section 24(2A) of the VEA to this application.
7The Tribunal will proceed to determine the application of section 24(2A) of the VEA to this application following receipt of the parties’ submissions.
[Emphasis in original]
As a result of those directions…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] AATA 1796
Decision Date: 23 June 2023

CaseChat Overview and Summary

This matter concerned an application for an increase in the rate of pension by a veteran. The dispute centred on whether the veteran was entitled to a Special Rate pension, and specifically, whether section 24(2A) of the *Veterans' Entitlements Act 1986* (Cth) applied to his claim. The veteran had lodged an initial claim for disability pension on 12 December 2016, which included a claim for lumbosacral back pain. He turned 65 in January 2017. Following a series of reviews and remittals, a delegate of the Repatriation Commission determined on 31 March 2020 that the veteran's pension should be increased to 90% of the General Rate from 11 September 2018, but that he was not entitled to the Special or Intermediate Rates because he had ceased work in 2014. A subsequent decision on 22 June 2020 granted an intervening claim. The veteran's advocate contended that there was a factual error regarding the date he ceased work and that the reviewable decision should encompass both the 31 March 2020 and 22 June 2020 determinations.

The primary legal issue before the Tribunal was whether section 24(2A) of the *Veterans' Entitlements Act 1986* applied to the determination of the veteran's eligibility for the Special Rate pension. This section is relevant to the age of a veteran at the date of claim or application, which impacts eligibility requirements for the Special Rate pension. The Tribunal was required to determine which claim or application the reviewable decision related to, and whether the veteran was 65 years of age on the date that claim or application was received by the Respondent. The veteran's advocate argued that the review encompassed earlier claims, including the 12 December 2016 application, made when the veteran was under 65. The Respondent contended that the matter before the Tribunal related to the assessment period applicable to the 22 June 2020 determination, which arose from a claim received on 16 January 2020.

The Tribunal reasoned that the substantive issue was the veteran's entitlement to the Special Rate pension in relation to the assessment period, which commences from the date the claim or application was received. It considered that the primary decision before it was the determination made by the Respondent's delegate on 22 June 2020, which related to a claim received by the Respondent on 16 January 2020. As the veteran had turned 65 in January 2017, the Tribunal concluded that section 24(2A) of the *Veterans' Entitlements Act 1986* applied. The Tribunal rejected the veteran's advocate's contentions that the 31 March 2020 decision left the Special Rate pension entitlement open and that the 13 May 2020 email indicated a deferral of that issue. The Tribunal found that the delegate clearly outlined the veteran's review rights in the 31 March 2020 decision and disagreed with the interpretation of the subsequent email.

The Tribunal determined that section 24(2A) of the *Veterans' Entitlements Act 1986* applied to the veteran's case. The veteran's claim that the reviewable decision related to his earlier application of 12 December 2016, when he was under 65, was not accepted. The Tribunal found that the relevant claim for the purpose of the assessment period was the one received on 16 January 2020, at which point the veteran had already turned 65. Consequently, the veteran was not entitled to the Special Rate pension under the conditions applicable to those under 65 at the time of that claim.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

A telephone Hearing was conducted on 20 June 2023 to provide the parties with an opportunity to make further oral submissions.BACKGROUND On 12 December 2016, the Veteran made a claim for disability pension for a number of conditions which included lumbosacral back pain.[4] [4] T5, pages 27-42, Claim for disability pension. The Veteran turned 65 in January 2017. The Veteran’s claim for lumbar spondylosis was denied by the Respondent and on 2 July 2018 the VRB affirmed that decision. The Veteran sought review of that decision by the Tribunal and on 12 March 2020, by consent of the parties, the Tribunal set aside the VRB decision and substituted a decision that the Veteran’s lumbar spondylosis was defence-caused with effect from 11 September 2018. The Tribunal remitted the matter back to the Respondent for assessment of the Veteran’s pension entitlement under the VEA.[5][5] T39.3, page 193, AAT consent order, setting aside decision of the VRB dated 02.07.2018 and substituted for the reviewable decision that lumbar spondylosis is defence-caused and decision is otherwise remitted. On 31 March 2020, a delegate of the Respondent re-assessed the Veteran’s pension entitlements as required by the Tribunal’s decision of 12 March 2020. The delegate determined that the Veteran’s disability pension should be increased from 60% of the General Rate to 90% of the General Rate from 11 September 2018.[6][6] Annexed to the Respondent’s submissions in reply dated 5 June 2023. The delegate determined that the Veteran was not entitled to the pension at the Special or Intermediate Rates on the basis that he had ceased work in 2014. The delegate outlined that if the Veteran disagreed with any aspect of the determination he could ask the VRB to review his case and provided that such a request needed to be made within 3 months from the date of the determination letter. On 8 May 2020, the Veteran’s advocate wrote to the delegate outlining that there had been a factual error in their reasons that went to the issue of whether or not he was eligible for the Special Rate pension from 11 September 2018. The Veteran’s advocate submitted that the Veteran had not ceased work in 2014.[7][7] Annexed to the Applicant’s submissions in reply dated 15 June 2023. On 13 May 2020, the delegate wrote back to the Veteran’s advocate and provided:[8] Thank you for your letter. I have perused the information on file and would like to draw your attention to the Employment Questionnaire that was signed by [the Veteran] himself on 4 March 2020, where he states that he ceased work on 21 November 2014. I have attached this for your attention. For this reason, I do not believe that there is factual error in this regard as I can only go by the documentation provided and what the veteran states himself. Furthermore, the medical information that is now on file states that the veteran cannot work due to bilateral knee OA, bilateral hip OA and bilateral ankle OA. There is still an outstanding claim for OA of the right knee and bilateral OA of the ankles, so at this stage he would not be eligible in any case. I will not be reviewing my decision, but there are appeal rights that are available and as I said, there is still an outstanding claim that may or may not be favourable. I cannot comment on this.[8] T37, page 179, Email of Respondent to Applicant, also annexed to the Applicant’s submissions in reply dated 15 June 2023.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In submissions dated 22 May 2023, the Veteran’s advocate submitted that the review before the Tribunal encompasses the applications made by the Veteran on 12 December 2016 and 16 January 2020. The Veteran’s advocate provided:5The error that risks derailing this Tribunal’s consideration is the asserted position that the Commission decision of 22 June 2020 arose solely from the 16 January 2020 application for the right knee and ankles claim. In fact what was before the Commission prior to the 22 June 2020 decision was both the 16 January 2020 application AND the re-assessment of entitlement arising out of this Tribunal’s Order made 12 March 2020. Due to an error of fact made by the initial delegate attempting the re-assessment, and to her explicit deferral to the resolution of the 16 January 2020 claim, the properly-informed re-assessment of the Applicant’s entitlement pursuant to this Tribunal’s 12 March 2020 order remained in play.6 The synopsis of events:6.1.112 December 2016 Applicant applies for (inter alia) Lumbar Spondylosis6.1.213 April 2017 Applicant’s Lumbar Spondylosis (inter alia) claim denied 6.1.3Other claims were accepted either initially or in later reviews 6.1.42 July 2018 the VRB affirmed the refusal of the Lumbar Spondylosis claim 6.1.511 March 2019 the Applicant applied to AAT for review of VRB’s decision 6.1.612 March 2020 by consent the AAT allowed the review, set aside the VRB decision and importantly made a substitute decision that Lumbar Spondylosis was defence-caused with effect from 11 September 2018. It then remitted to the Commission for re-assessment of the Applicant’s pension in light of that decision 6.1.731 March 2020 Delegate Anya purported to re-assess the Applicant’s pension arising from the Tribunal’s remittal, raising the General Rate from 60% to 90% but denying special rate (on the basis of a mistake of fact) 6.1.88 May 2020 the Applicant’s advocate wrote to Anya noting the factual error in her decision and seeking her review of special rate eligibility 6.1.913 May 2020 Anya replied re-asserting the factual error but in any event claimed the need for deferral (for the purposes of the “alone test”) until the pending 16 January 2020 claim (for other injuries) had been determined 6.1.1022 June 2020 Delegate Mark made the decision granting the intervening claim (thereby resolving the “alone test”) but repeated Anya’s error and failed to refer to or assess the special rate eligibility arising from the re-assessment order, which in turn arose from the Lumbar Spondylosis claim made in December 2016 6.1.1123 June 2020 Applicant applied for review of special rate assessment, based on both Anya’s and Mark’s error of fact.7.It is fallacious to assert, as Mark, a subsequent internal reviewer (Lauren), the VRB and now the AGS on behalf of the Commission have done, that this proceeding is solely a review of the Applicant’s claim (for right knee and ankles) lodged on 16 January 2020. That ignores the re-assessment of the special rate eligibility arising out of the Lumbar Spondylosis consent order of this Tribunal.8.Plainly the only matter in issue here is Special Rate, and the application which first enlivened that issue and was under active and unresolved re-assessment in 2022 was made when the Applicant was 64. The fact is that the obligation to re-assess that eligibility only post-dated the Applicant’s retirement due to errors made by the Commission for almost 3 years - from April 2017 to March 2020 (the Applicant ceased remunerative work in May 2017, having turned 65 on [redacted] January 2017).[Emphasis in original; footnotes omitted]

Ratio Decidendi

Legal Principle Established

The Respondent contended that the matter before the Tribunal provides that the Veteran’s eligibility to the Special Rate pension can be considered in relation to the assessment period that applied to the 22 June 2020 determination.CONSIDERATION The substantive issue in the present application is whether or not the Veteran was entitled to receive the Special Rate pension in relation to the assessment period. The assessment period commences on the date the claim or application (to which the reviewable decision relates) was received by the Respondent and ends on the day that the Tribunal makes its decision. The age of a veteran at the date of claim or application impacts the eligibility requirements for the Special Rate pension. In the present application, the parties have sought determination of the preliminary issue of whether or not section 24(2A) of the VEA applies to the final determination of the Veteran’s eligibility for Special Rate pension with regards to the reviewable decision before the Tribunal. As set out by the High Court in Frugtniet as extracted above, the boundary of the Tribunal’s review lies in the primary decision and the statutory question it answers. Based on the material before it, the Tribunal considers that the primary decision in the present application lies in the determination made by the Respondent’s delegate on 22 June 2020. That determination considered the Veteran’s claim received by the Respondent on 16 January 2020. Consequently, as the Veteran turned 65 in January 2017, on the face of this matter, section 24(2A) of the VEA applies. The Tribunal understands that the Veteran is unhappy with how the Respondent dealt with his claims of 12 December 2016 and 16 January 2020 and as such believes that his earlier claim had not been finalised and should have been considered as part of determining his second claim (and therefore was before the VRB and is likewise before the Tribunal). The relevance of this argument is that the Veteran was under 65 at the date of the earlier claim and over 65 at the date of the second claim. The Veteran’s advocate contended that her request for review of the decision made on 23 June 2020 was a request to have both the decisions of 31 March 2020 and 22 June 2020 reviewed. However, at the Hearing she conceded that the request did not directly request review of the 31 March 2020 determination. Having reviewed the material before it, together with the parties’ submissions, the Tribunal does not accept the contentions made by the Veteran’s advocate. The Tribunal considers that the Veteran’s advocate’s contentions in relation to the 31 March 2020 delegate leaving the aspect of entitlement to the Special Rate pension open and as such rolling the issue into the determination of his 16 January 2020 claim is misconceived. The Tribunal forms this view on the basis that in providing its decision of 31 March 2020, the delegate clearly outlined the Veteran’s review rights. Further, the Tribunal disagrees with the Veteran’s advocate’s interpretation of the delegate’s email of 13 May 2020 responding to her letter submitting that the delegate had made an error.