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 the parties made the following submissions:
·
Respondent’s Submissions on the Application of Section 24(2A) of the

Veterans’ Entitlements Act 1986
, dated 10 March 2023.
· Applicant’s Submission on the Question of Applicability of s.24(2A) of VEA, dated 22 May 2023.
· Respondent’s Submissions in Reply on the Application of Section 24(2A) of the Veterans’ Entitlements Act 1986, dated 5 June 2023.
·
Applicant’s Submissions in Reply to the Respondent’s Submissions of

5 June 2023, dated 15 June 2023.
·
Respondent’s Reply to the Applicant’s Submissions of 15 June 2023, dated

16 June 2023.
The Tribunal has taken those documents together with the T-Documents filed on

1 July 2022 into consideration.
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.
On 16 January 2020 the Veteran made a claim for disability pension for osteoarthritis of the right knee and bilateral osteoarthritis ankles.
On 22 June 2020, a different delegate of the Respondent accepted the Veteran’s

16 January 2020 claim with effect from 16 October 2019.[9]
[9] T38, pages 180-187, Determination, accepting claim for right knee and bilateral osteoarthritis at 100% general rate.
The delegate determined that the Veteran’s rate of disability pension should be increased from 90% to 100% of the General Rate with effect from 16 October 2019.[10]
[10] T38, pages 180-187, Determination, accepting claim for right knee and bilateral osteoarthritis at 100% general rate.
The delegate determined that the Veteran was not entitled to the pension at the Special, Intermediate or the Extreme Disablement Adjustment Rates. The delegate found that as the Veteran was over the age of 65 at the time of his application and had not been engaged in remunerative work for a continuous period of at least ten years that commenced prior to him turning 65 and continued past the age of 65, he was not entitled to the Special Rate pension.[11]
[11] T38, pages 180-187, Determination, accepting claim for right knee and bilateral osteoarthritis at 100% general rate.
On 23 June 2020, the Veteran’s advocate requested reconsideration of the delegate’s determination of 22 June 2020.[12] In that request, a reference was made to the impairment points allocated to the Veteran’s lumbar spondylosis-caused impairment in the delegate’s determination made on 31 March 2020 that was omitted from the determination of

22 June 2020. In relation to the assessment of the Veteran’s entitlement to the Special Rate pension, his advocate wrote:[13]
Third, with regard to his eligibility for the special rate, there has been a miscommunication about when [the Veteran] ceased to undertake remunerative work. The questionnaire which [the Veteran] filled in about this issue asked him about his cessation of employment, which he answered literally, ie in relation to his contract of employment by the company which operated a backpacker hostel until 2014. He actually continued to engage in remunerative work until after his 65th birthday, in that he was running a labour hire/franchise business from his home office, in partnership with his son. Because the form did not ask him about partnership interest, only about company interests, he failed to appreciate that his partnership remunerative work was relevant to the question in issue.
If you check his records you will see he recorded in his first DVA claim (dated 12.12.2016) that he ceased operating his backpacker business in 2014 but continued his labour hire contracting business up until the date of the application
(ie 2016). In fact he continued that labour hire contracting business until May 2017 when even that business became too much for him to carry on, given his defence-caused disabilities. He turned 65 on [redacted] January 2017 and wound up the business later in 2017.
I also enclose 3 documents evidencing the above. The first is an explanatory statement from [the Veteran], the second is a 2 page financial record of [redacted] (the trading name of the partnership) for the years 2015, 2016 and to 31 May 2017, and the third is the ABN record of cancellation by the partnership on 30 April 2017.
[12] T39, pages 188-189, Letter – Veteran’s representative to DVA requesting s 31 review on determination dated 22.06.2020.
[13] T39, page 189, Letter – Veteran’s representative to DVA requesting s 31 review on determination dated 22.06.2020.
On 8 October 2020, the Veteran’s advocate requested a section 31 of the VEA review be undertaken in relation to the 22 June 2020 decision.[14] The request provided:
We act for [the Veteran] in respect of whose claim the delegate Mark (Position Number: [redacted]) made a determination on 22 June this year.
We are writing to request a s.31 review into the determination on the grounds set out in our letter to the delegate emailed to him on the day after the determination.
[Emphasis in original]
[14] T40, pages 194-195, Request for internal review pursuant to s31.
In a letter dated 23 December 2020, the Veteran’s advocate requested that the determination of 31 March 2020 be reviewed by the Respondent in conjunction with the determination of 22 June 2020.[15]
[15] T45, pages 211-213, Applicant’s submission to appeals and review.
On 10 March 2021, the Respondent decided not to undertake a review of the determination dated 31 March 2020 and 22 June 2020 under section 31 of the VEA. The Respondent provided:[16]
My reason for not conducting a review is the decision is in accordance with the material before me.
A determination was made on 31 March 2020 to increase disability pension to 90% of the General Rate with effect from 11 September 2018. Your representative has requested a review of this decision in her submission received on 18 January 2021, however, the right to request an appeal expired on 30 June 2020. The

Veterans’ Entitlements Act 1986 does not allow the making of an application for review under Section 31 where the right to lodge an application for review to the Veterans’ Review Board has expired. In any case, I have considered the claim and consider that there are no grounds for intervention.
A determination was made on 22 June 2020 to increase disability pension to 100% of the General Rate with effect from 16 October 2019. I note your representative emailed the primary delegate on 23 June 2020 and this is to been [sic] considered to be the date of review.
I reiterate the only decision under review is in relation to the determination made on 22 June 2020 to increase disability pension to 100% of the General Rate with effect from 16 October 2019. …
[16] T51, pages 298-301, DVA decision for review to proceed to the VRB.
The claim form to which the determination made on 22 June 2020 related, was received on

16 January 2020.
An issue arose as to whether the Veteran’s advocate’s letters to the Respondent dated

23 June 2020 and 8 October 2020 constituted a request for review by the VRB. On

3 May 2021, the VRB decided that the Veteran’s advocate’s letter to the Respondent of

23 June 2020 constituted an informal request for review by the VRB of the determination made on 22 June 2020.[17] The VRB found that on the face of it there was nothing to distinguish between the effects of the two requests. The VRB decided:[18]
13……. On balance, considering the similarities between the two requests for review, the Board is reasonably satisfied that the request of 23 June 2020 is a valid, if informal, application for review to the Board in respect of the Commission’s decision of 22 June 2020.
14Even if the Board is incorrect in this conclusion, it is reasonably satisfied that the email dated 16 December 2020 constitutes a valid application for review against the Commission’s section 31 decision of 2 December 2020, being the appropriate rate of disability pension payable with effect from 16 October 2019.
[17] T50.1, pages 284-288, VRB decision to adjourn and direction hearing.
[18] T50.1, page 287, VRB decision to adjourn and direction hearing.
On 28 November 2021, the Veteran’s advocate provided a ‘Statement of Facts and Issues in relation to reconsideration of the determination by the DVA dated 22 June 2020’ which in addition to seeking review of that determination, also made reference to the determination dated 31 March 2020.[19]
[19] T52, pages 302-306, Veteran’s statement of facts and issue in relation to decision dated 22.06.2020.
On 31 March 2022, the VRB affirmed the Respondent’s determination of 22 June 2020. The VRB considered the Veteran’s entitlement to the Special Rate pension in accordance with section 24(2A) of the VEA, having established that he had turned 65 before making his application.[20]
[20] T1.1, pages 7-15, Decision of the VRB.
On 11 May 2022, the Applicant sought review of that decision by this Tribunal.[21]
[21] T1, pages 1-6, Application for Review.
ISSUES
The preliminary issue before the Tribunal is whether or not section 24(2A) of the VEA applies in determining the application before the Tribunal (preliminary issue).
In order to determine this preliminary issue the Tribunal must decide what are the constraints of the reviewable decision before it.
PROCEDURAL MATTERS
The Tribunal draws its power to determine preliminary issues separate from a final hearing from sections 33(1)(a) and (b) of the Administrative Appeals Tribunal Act 1975 (Cth)

(AAT Act).[22]
[22] Edwards v Australian Securities Commission and Others (1997) 72 FCR 350 at 369-370.
Pursuant to section 39(1) of the AAT Act, the Tribunal has ensured that the parties have been given a reasonable opportunity to present their cases.
The Tribunal’s role is to stand in the shoes of the primary decision maker. As summarised by the Respondent:[23]
14.1. s 25 of the AAT Act that empowers the Tribunal to review certain decision where an enactment provides for it to do so
14.2. s 175(1) of the VEA which so provides. Section 175(1) provides that a decision made by the VRB (following an application made by a person for review of a decision of the respondent under, relevantly, s 135 of the VEA) is reviewable by the Tribunal
14.3. s 43 of the AAT Act makes clear that on review, the Tribunal may exercise all the powers and discretion that are conferred on the person who made the decision
14.4. the VRB, in reviewing the respondent’s primary decision, may exercise all the powers and discretions that were conferred by the VEA on the respondent in making its decision: s 139 of the VEA.
[23] Respondent’s Submissions dated 10 March 2023.
In Frugtniet v Australian Securities and Investments Commission [2019] HCA 16;

266 CLR 250, (Frugtniet) Bell, Gageler, Gordon and Edelman JJ, at [51] emphasised the significance of the function and scope of the Tribunal’s powers:
…[E]xcept where altered by some other statute…the jurisdiction conferred on the AAT by ss 25 and 43 of the AAT Act, where application is made to it under an enactment, is to stand in the shoes of the decision-maker whose decision is under review so as to determine for itself on the material before it the decision which can, and which it considers should, be made in the exercise of the power or powers conferred on the primary decision-maker for the purpose of making the decision under review. The AAT exercises the same power or powers as the primary decision-maker, subject to the same constraints. The primary decision, and the statutory question it answers, marks the boundaries of the AAT’s review. The AAT must address the same question the primary decision-maker was required to address, and the question raised by statute for decision by the primary decision-maker determines the considerations that must or must not be taken into account by the AAT in reviewing that decision. …
[Footnotes omitted]
The Tribunal considers that in this application, the statutory question that was before the primary decision maker and now the Tribunal is the Veteran’s entitlement to pension during the relevant assessment period. The assessment period is defined as commencing on the date the claim or application was received by the Respondent.[24]
[24] Section 19 of the VEA.
Of relevance in this matter is section 24 of the VEA which deals with entitlement to the Special Rate of pension. Section 24 relevantly provides:
(1)This section applies to a veteran if:
(aa)the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab) the veteran had not yet turned 65 when the claim or application was made; and
(a)either:
(i)     the degree of incapacity of the veteran from war‑caused injury or war‑caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii)    the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and
(b)the veteran is totally and permanently incapacitated, that is to say, the veteran’s incapacity from war‑caused injury or war‑caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and
(c)the veteran is, by reason of incapacity from that war‑caused injury or war‑caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and
(d)section 25 does not apply to the veteran.
(2)For the purpose of paragraph (1)(c):
(a)a veteran who is incapacitated from war‑caused injury or war‑caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if:
(i)     the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war‑caused injury or war‑caused disease, or both; or
(ii)    the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; and
(b)where a veteran, not being a veteran who has attained the age of
65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking.
(2A)    This section applies to a veteran if:
(a)the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(b)the veteran had turned 65 before the claim or application was made; and
(c)paragraphs (1)(a) and (1)(b) apply to the veteran; and
(d)the veteran is, because of incapacity from war‑caused injury or war‑caused disease or both, alone, prevented from continuing to undertake the remunerative work (last paid work) that the veteran was last undertaking before he or she made the claim or application; and
(e)because the veteran is so prevented from undertaking his or her last paid work, the veteran is suffering a loss of salary or wages, or of earnings on his or her own account, that he or she would not be suffering if he or she were free from that incapacity; and
(f)the veteran was undertaking his or her last paid work after the veteran had turned 65; and
(g)when the veteran stopped undertaking his or her last paid work, the veteran had been undertaking remunerative work for a continuous period of at least 10 years that began before the veteran turned 65; and
(h)section 25 does not apply to the veteran.
(2B)For the purposes of paragraph (2A)(e), a veteran who is incapacitated from
war‑caused injury or war‑caused disease or both, is not taken to be suffering a loss of salary or wages, or of earnings on his or her own account, because of that incapacity if:
(a)the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war‑caused injury or war‑caused disease, or both; or
(b)the veteran is incapacitated, or prevented from engaging in remunerative work for some other reason.
[Emphasis in original]
SUBMISSIONS

In submissions dated 10 March 2023, the Respondent submitted that the Tribunal is required to apply section 24(2A) of the VEA in determining the Veteran’s entitlement to the Special Rate pension during the assessment period commencing on 16 January 2020 (being the date of claim to which the determination in question relates), at which time the Veteran was 68 years of age.
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 Spondylosis
6.1.213 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]
In submissions dated 5 June 2023, the Respondent submitted that the Veteran’s request for reconsideration dated 23 June 2020 was in respect of the determination dated

22 June 2020, and that it is that determination that underlies the decision under review in the current application.
The Respondent drew the Tribunal’s attention to the following:
12.1. On 7 December 2016, [the Veteran] made a Claim for Disability Pension for disabilities that had not yet been accepted as service related including ‘chronic lumbosacral pain secondary to multiple disc bulges’, a left medial meniscus tear and moderate sized knee effusion, osteoarthritis in both hips, and tinnitus (T5).
12.2. On 12 March 2020, in a decision by consent, the Tribunal:
12.2.1. set aside a decision of the VRB dated 2 July 2018
12.2.2.substituted a decision that lumbar spondylosis is defence-caused pursuant to s 70(5) of the VEA, and
12.2.3.remitted the matter for assessment of Mr Keys’ pension entitlement under the VEA (T39.3).
12.3. On 31 March 2020, on remittal a delegate of the respondent assessed [the Veteran’s] disability pension at 90% of the General Rate. The delegate determined that [the Veteran] was not eligible for the disability pension at the Special Rate. The delegate set out [the Veteran’s] right of appeal, in particular stating: You have 3 months from the date of this letter in which to apply for a review. The respondent encloses a copy of the decision of 31 March 2020 to these reply submissions.
12.4. On 18 January 2021, an advocate for [the Veteran] wrote to the respondent and requested a review of the decision dated 31 March 2020 (T45).
12.5. In correspondence dated 10 March 2021, a delegate of the respondent responded to that letter and advised: … the right to request an appeal expired on 30 June 2020. The Veterans’ Entitlements Act 1986 does not allow the making of an application for review under Section 31 where the right to lodge an application for review to the Veterans’ Review Board has expired. In any case, I have considered the claim and consider that there are no grounds for intervention (T51, p299).
[Emphasis in original]
The Respondent submitted that:
· it maintains the view that the relevant claim was received on 16 January 2020 and that claim related to osteoarthritis of the right knee and osteoarthritis of both ankles; and
· it is that claim that gave rise to the primary determination dated 22 June 2020, which was in turn reviewed by the VRB in its decision dated 31 March 2022.
In submissions in reply dated 15 June 2023, the Applicant provided:
1These Reply submissions are filed in the hope of clarifying what the Applicant says is before the Tribunal and addressing some misconstructions by the Respondent of the Applicant’s position.
2First, in the AAT proceeding between the parties No. 2019/1310, (the consent orders dated 12 March 2020, T39.3 at page 193 of the T documents), the Respondent was directed to re-assess the Applicant’s entitlement to pension consistent with that order.
3
Second, the delegate Anya purported to do that by determination dated

31 March 2020 but made plain factual errors, which errors had the effect of denying the Applicant the special rate. That decision was NOT included in the T documents despite it being central to the Applicant’s case. A copy is attached hereto.
4Third, on receipt of the determination, the Applicant’s delegate made numerous attempts to contact Anya, as directed in the last paragraph of the decision, namely
If you have any questions about this determination notice please contact me on (03) [redacted] to discuss or email me at [email protected] with reference number: [redacted].
5Note that the COVID lockdown was underway and contact by phone and email was practically impossible. Messages went undelivered and unanswered. Finally on 8 May 2023 the Applicant’s delegate succeeded in getting an email through to Anya noting the error and seeking revision of the decision with the effect of awarding the special rate effective from 11 September 2018. That letter and its covering email are attached hereto.
6Fourth, on 13 May 2020 Anya replied, contesting the factual error (based on a mistaken reading of another document) and said that “furthermore” due to an intervening claim (made for 2 other conditions on 16 January 2020 which had yet to be determined) the special rate eligibility could not in any event be resolved at that stage (ie, due to the “alone” test). Although that email is included in the T documents as T37, page 179, it is a damaged copy and an undamaged version is attached hereto.
7The Applicant’s position is that Anya’s reliance on the pending nature of the new claim meant that the special rate issue could not be resolved at that point, and so was effectively held over or rolled into the new claim assessment.
8
Fifth, in any event, when the delegate Mark made a favourable determination on the new claims on 22 June 2020 (T38, pages 180-187) but repeated in a one line assertion the same error Anya had made (as to the date of the Applicant’s cessation of remunerative work), and thereby denied him the special rate, the Applicant’s delegate wrote to him immediately on

23 June 2020 raising that issue. (T39, pages 188-189).
9
T39 has been determined (in a contested hearing) to have been the document by which the Applicant sought review of the special rate determination (the only issue in this proceeding). It was clearly within time in seeking to have review both delegates’ determinations on the special rate issue (if indeed Mark can be said to have evaluated the matter at all). Later attempts by a s.31 reviewer Lauren to quarantine the current review to merely one of the

16 January 2020 claim should be seen in the context of several constantly-shifting unmeritorious bases on which to deny the Applicant his rightful entitlement.
10
In short, both technically and in substance, it is the factual error first made by Anya in her re-assessment under the No.2019/1310 proceedings (of the

16 December 2016 claim) and then adopted by Mark in his determination of the 16 January 2020 claim which is before this Tribunal. Whether the Tribunal prefers to approach the substantive issue as one of calling back the 2019/1310 order as having been mishandled in execution, or as a fresh review of the rolled-up decisions of Anya and Mark on the identical question, is of no obvious consequence. Either approach is in keeping with the Tribunal’s objectives under s.2A of its Act, to be fair just economical informal and quick.
[Emphasis in original; footnotes omitted]
In submissions in reply dated 16 June 2023, the Respondent provided:
1The respondent does not agree with the characterisation of the facts set out at [2]-[7] of the applicant’s reply submissions. However, in the respondent’s view, those facts are not determinative of the threshold issue the Tribunal is presently asked to decide. It follows that the respondent does not consider the Tribunal needs to resolve any controversy arising from [2]-[7]. If the Tribunal disagrees, the respondent can address that further.
2The applicant’s reply at [9] seeks to characterise the request for review at T39 as requesting review of a decision dated 31 March 2020 in addition to the decision dated 22 June 2020 (T38). The decision dated 31 March 2020 is summarised at [12.3] of the respondent’s reply submissions and a copy was attached to the respondent’s reply.
3
The request for review at T39 did not seek to review the decision of

31 March 2020. The only context in which the 31 March 2020 decision is raised is by submitting that in the applicant’s view, the 22 June 2020 decision the day prior (T38) had omitted from the calculation an impairment rating that had been given in the decision 31 March 2020. That is the only context in which that decision is referenced and in that context, it is being referred to on the understanding that it was correct. The respondent otherwise repeats and relies on [10]-[12] of the respondent’s submissions and [13] of the respondent’s reply.
4The respondent also draws the Tribunal’s attention to the following documents before it relevant to the characterisation of T39:
(a)T47 – a letter from the Veterans’ Review Board (VRB) to the respondent dated 17 February 2021 to advise that the decision the subject of appeal no. Q20/0910A does not appear to be reviewable by the VRB as the request for review was received on 8 October 2020
(b)T48 and T48.1 – submissions from the applicant’s representative to the VRB in respect of the decision under review in Q20/0910A and the applicant’s timeline of decisions regarding the claim, presumably which they saw to eb [sic] relevant to the VRB’s review. This does not include the 31 March 2020 decision
(c)T49
– a letter from the VRB to the respondent to confirm that the VRB had determined the application for review of the determination of

22 June 2020 is valid
(d)T50.1 – the decision of SM Douglass of the VRB dated 3 May 2021 determining that the application dated 23 June 2020 for review of the decision dated 22 June 2020 was valid. No other decision is mentioned
(e)T51 – a decision on internal review dated 25 May 2021 in which the delegate stated at p299: “A determination was made on 31 March 2020 to increase disability pension to 90% of the General Rate with effect from 11 September 2018. Your representative has requested a review of this decision in her submission received on 18 January 2021, however, the right to request an appeal expired on 30 June 2020. The Veterans’ Entitlements Act 1986 does not allow the making of an application for review under Section 31 where the right to lodge an application for review to the Veterans’ Review Board has expired. In any case, I have considered the claim and consider that there are no grounds for intervention”
(f)T52
– the applicant’s statement of facts and issues in relation to reconsideration of the decision of the respondent dated 22 June 2020 that proceeds on the basis that the ‘decision under review’ is dated

22 June 2021, and
(g)T1.1 – the VRB’s decision on review in Q20/0910A dated 31 March 2022, affirming the determination dated 22 June 2020
[Emphasis in original]
HEARING
At the Hearing the parties’ oral contentions were consistent with their previously filed written submissions.
The Veteran’s advocate contended that the preliminary issue had arisen due to the flawed assessment of the 2016 claim made by the Veteran. The Veteran’s advocate contended that the delegate who made the 31 March 2020 determination in their response dated

13 May 2020 to her request for further consideration left the issue of the Veteran’s eligibility to the Special Rate pension unresolved with regards to his 2016 claim. The Veteran’s advocate further contended that it was reasonable to expect that the issue would be taken up by the delegate who made the determination dated 22 June 2020 in relation to the Veteran’s 2020 claim.
The Veteran’s advocate contended that her letter to the delegate dated 23 June 2020 related to both the 31 March 2020 and 22 June 2020 determinations. The Tribunal sought clarity from the Veteran’s advocate on that point and she concede that the letter dated

23 June 2020 does not directly request review of the 31 March 2020 determination, however contended that in considering the preceding correspondence that it was in fact clear. The Veteran’s advocate further told the Tribunal that no one had said until much later that her letter of 23 June 2020 was not a request for review of both decisions.
When the Tribunal put to the Veteran’s advocate that the delegate who made the determination dated 22 June 2020 was considering the Veteran’s claim of 2020 not 2016, they agreed however contended that the delegate of the determination dated

31 March 2020 implied that the Special Rate pension issue had been rolled over.
The Tribunal put to the Veteran’s advocate that:
·the VRB, in deciding that her letter of 23 June 2020 constituted a request for review that enlivened its jurisdiction, referred to her letter as having sought review of the determination dated 22 June 2020; and
·in that decision and the later decision that has enlivened the Tribunal’s jurisdiction, the VRB did not make reference to a review of the determination made on
31 March 2020.
In response, the Veteran’s advocate told the Tribunal that what was the foundation of the claim was not discussed and in circumstances where the VRB prohibits legal representation, the Veteran cannot be required to raise issues to the standard of a court.
The Veteran’s advocate told the Tribunal that she agrees that the VRB only referred to the determination dated 22 June 2020 in finding that her letter of 23 June 2023 was a valid request for review but said that at that point it was not “of much moment” as the determination of 31 March 2020 had rolled into the determination of 22 June 2020.
When the Tribunal asked the Veteran’s advocate why the Veteran did not at that point seek VRB review of the 31 March 2020 determination, she said that the two determinations in relation to the substantive issue of eligibility for the Special Rate pension were one and the same. She said that in hindsight it may have been a better option to have done that, however the VRB is an informal body.
The Veteran’s advocate contended that the VRB and the Tribunal have an obligation to act informally and for their review to encompass the real dispute between parties. She said that in this instance the dispute has always been about the Special Rate pension.
At the Hearing, the Respondent sought to rely on their previous written submissions and contended that the Veteran’s advocate’s letter dated 23 June 2020 was taken to be a request for review that enlivened the VRB’s jurisdiction in relation to review of the determination dated 22 June 2020 only.
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.
The Tribunal considers that in that email (as extracted at paragraph 16 above) the delegate made it clear that their decision in relation to the Veteran’s 12 December 2016 claim was finalised and again advised that there were further appeal rights open to him. The Tribunal considers that the delegate did not in any way indicate that they had not made a determination in relation to the Veteran’s eligibility for Special Rate pension because they made reference to a further unresolved application. To the contrary, the delegate expressed that the further application indicated that at that time the Veteran would not have been able to meet the alone test in relation to his claim of 12 December 2016.
Further, the material before the Tribunal indicates that the Veteran’s claims of

12 December 2016 and 16 January 2020 were considered separately by the Respondent. The determination of 31 March 2020 finalised the Veteran’s claim of 12 December 2016. The determination of 22 June 2020 was made by a different delegate. There is nothing indicating that at any stage the Veteran had sought to have the two applications run together.
The Tribunal does not consider that the Veteran’s request for review dated 23 June 2020 formed a request for review of both the 31 March 2020 and 22 June 2020 decisions of the Respondent. From the Tribunal’s reading, the request only referred to the decision of

31 March 2020 in relation to the allocation of impairment points and his contended working situation as they related to his claim dated 12 December 2016. Having conceded that the request for review dated 23 June 2020 did not expressly request review of the

31 March 2020 determination, the Tribunal considers it is not reasonable for the Veteran’s advocate to expect that it would be taken to be a request for review of anything other than the

22 June 2020 determination.
In the material before the Tribunal, it was not until the submissions made by the Veteran’s advocate on 23 December 2020 that it first became clear that the Veteran’s advocate was seeking that the Respondent’s determinations of 31 March 2020 and 22 June 2020 be reviewed together.
In the Veteran’s advocate’s submission to the VRB dated 17 March 2021 in relation to whether the Veteran had made an application for review in time, reference was made only to seeking review of the Respondent’s determination dated 22 June 2020.
The VRB’s decision dated 3 May 2021 found that the Veteran’s request for review made on 23 June 2020 was a request made to have the Respondent’s determination of 22 June 2020 reviewed, and as such, constituted a valid request for review by the VRB. The VRB only considered that the request for review applied to that determination. The VRB specifically made reference to the application for review relating to the Veteran’s eligibility for the Special Rate pension from 16 October 2019, which relates to the Veteran’s claim received by the Respondent on 16 January 2020. Further, the Tribunal notes that the submissions made to the VRB on the Veteran’s behalf did not reference the determination of 31 March 2020.[25]
[25] T48, pages 270-273, Letter – Applicant’s representative to VRB; and T48.1, pages 274-279, Timeline of decisions regarding the applicant’s claim.
Despite the Veteran’s advocate’s submissions to the VRB dated 28 November 2021 making reference to the claim of 12 December 2016, it was clear that the VRB proceeded to consider the Veteran’s request for review as relating solely to the Respondent’s determination of 22 June 2020. That view is consistent with the further evidence requested by the VRB on 30 November 2021[26] and the Veteran’s response[27] that seemed to indicate that section 24(2A) of the VEA was what was being considered by the VRB.
[26] T53, page 313, VRB direction.
[27] T54, pages 314-318, Veteran’s response to VRB direction on 30.11.2021.
In its decision dated 31 March 2022, the VRB clearly found that the Veteran was 65 at the time of making the claim under consideration. There is no indication that the VRB had accepted the Veteran’s advocate’s written submissions that the determination dated

22 June 2020 in some way also encompassed consideration of the Veteran’s claim of

12 December 2016.
It was open to the Veteran to have sought review of the Respondent’s decision dated

31 March 2020. He was advised of his review rights by the delegate on more than one occasion. Should the Veteran have considered that his advocate’s request on his behalf for review dated 23 June 2020 also applied to that decision, that is a matter for him to take up with the VRB. It is clear on the documents before the Tribunal that the VRB found that it was the decision of the Respondent made on 22 June 2020 alone that the Veteran sought to have reviewed.
Whilst the Tribunal endeavours to conduct proceedings as flexibly as possible, it is not open to the Tribunal as suggested by the Veteran’s advocate to consider matters from the perspective of what the global issue in dispute is for an applicant. Rather the Tribunal’s jurisdiction as set out by the High Court in Frugtniet extends only to the question before the primary decision maker.
The Tribunal considers for the above reasons that the determinations of the Respondent dated 31 March 2020 and 22 June 2020 are separate and distinct decisions in relation to the Veteran’s entitlement to the Special Rate pension. The Tribunal finds that the

31 March 2020 determination had been finalised by the Respondent before the decision of 22 June 2020 had been made and was subsequently not rolled into that later determination.
As such, the statutory question before the primary decision maker and the VRB in relation to the determination dated 22 June 2020 was whether the Veteran was entitled to the Special Rate pension in relation to his claim of 16 January 2020.
Consequently, as the application made by the Veteran on 11 May 2022 to the Tribunal sought review of the decision of the VRB dated 31 March 2022, which affirmed the determination of the Respondent made on 22 June 2020 in relation to the Veteran’s claim made on 16 January 2020, it is that determination and claim that form the boundaries of this Tribunals review.
As at the time of making the 16 January 2020 claim the Veteran was 67 years old, his eligibility for the Special Rate pension must be assessed having consideration to section 24(2A) of the VEA.
The Tribunal notes the Veteran’s advocate’s submissions and contentions in relation to the consent decision of the Tribunal in relation to the Applicant’s 12 December 2016 claim. The Tribunal considers that is a matter separate to the present proceedings.
DECISION
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.

I certify that the preceding 79 (seventy-nine) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell

.................................................
Associate
Dated: 23 June 2023

Date of hearing: 20 June 2023

Representative for the Applicant: Ms Rae Coates-Kelly

Solicitors for the Respondent: Ms Lindsay Cooper
Australian Government Solicitor

Date of hearing:	20 June 2023
Representative for the Applicant:	Ms Rae Coates-Kelly
Solicitors for the Respondent:	Ms Lindsay Cooper Australian Government Solicitor