Keys and Repatriation Commission (Veterans' entitlements)

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.