Lamb and Repatriation Commission - [2002] AATA 824

DECISION AND REASONS FOR DECISION [2002] AATA 824

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2000/1166

VETERANS' APPEAL DIVISION )
           Re      JOHN STEWART LAMB
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr K L Beddoe, Senior Member

Date20 September 2002
PlaceBrisbane

Decision      The Tribunal sets aside the decision under review and remits the matter to the respondent with a direction that the amount of the overpayment of service pension is $74,998.40.
  (Sgd) K L Beddoe
  Senior Member
CATCHWORDS
VETERANS' AFFAIRS – age pension - overpayment – failure to disclose assets – whether overpayment has been correctly calculated

Veterans' Entitlements Act 1986 s 57

REASONS FOR DECISION

20 September 2002 Mr K L Beddoe, Senior Member

The applicant has been in receipt of an age service pension since 1983. The respondent reassessed the applicant's pension for the period 29 January 1987 to 15 May 2000 resulting in an alleged overpayment of pension amounting to $87,907.50.
The quantum of the overpayment claimed has since been substantially adjusted to correct errors and to acknowledge concessions made by the respondent. The overpayment is now said to be $74,998.40.
The main contributing factor to the claimed overpayment is the applicant's alleged failure to disclose shares held in New Zealand companies. He disclosed shareholdings in Australian companies.
The applicant acknowledges that there has been some overpayment of pension but disputes the quantum and the period of overpayment.
The cancellation of pension in 2000 is not in dispute. At the hearing the applicant conducted his own case and Mr Stoner represented the respondent. The documents lodged in the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were before the Tribunal as the T documents, except the document marked T33 which was excluded by the Tribunal on an objection by the applicant.
Oral evidence was given by the applicant and further documents were tendered and marked as exhibits. The parties were given leave to make further submissions in writing after the hearing. The applicant made further written submissions but the respondent, after requesting additional time, decided not to make any further submission.
The applicant was a farmer near Hamilton, New Zealand, when he married in 1950. Three years later he and his wife moved to Australia and he has lived in Australia from that time. A bank account was maintained in New Zealand.
In 1972 the applicant's father died and the applicant inherited shares in companies. He also inherited shares and monies from his mother's estate ten years later. The applicant said in evidence that he had also purchased some shares in New Zealand. These shares were added to shares he inherited and were gifted to his daughter in 1994.
The particular problem in this case is shares held by the applicant in a company which I will call Stanford. The shareholding was both purchased and inherited. The shares were of a relatively low value until the company entered into arrangements with its shareholders to buy back shares. The applicant did not participate in the buy back and the consequence was that his shares became much more valuable because of the reduction in capital and increasing profits.
The applicant asserts, but I do not accept, that he took the inherited shares on trust for the benefit of his children/grandchildren. He described an informal fiduciary arrangement for the benefit of the grandchildren. He conceded that he had sold some of the shares and that he had used some of the proceeds to purchase a house when he moved from Toowoomba to Brisbane. He justified this on the basis that it was permissible for him to use the funds for his own purposes. Whether he sold inherited shares or purchased shares is not clear.
The applicant's bank account in New Zealand, although disclosed to the Tribunal, has not previously been disclosed to the respondent. He said that the balance of that account fluctuates between $7,000 (NZ) and $14,000 (NZ). No justification has been given for not disclosing the bank account to the respondent.
The applicant does seek to make a more general justification in relation to his failures over the years to disclose his New Zealand assets. That is that these assets were subject to New Zealand taxation and the income derived was applied for the benefit of his two daughters.
Somewhat inconsistently the applicant did disclose shareholdings in two New Zealand public companies in 1994 and his pension was re-assessed. The Stanford shares were not disclosed, he says, because they were not listed on the Australian Stock Exchange.
The applicant did not dispute an analysis of his New Zealand shareholdings as set out in Exhibit 1. Nor does the applicant dispute that the decision to cancel his pension from 22 February 2000 due to his assets being in excess of the allowable amount.
I am satisfied, relying on the material before me that the applicant's assets at February 2000 exceeded the allowable amount by an amount in excess of $150,000.
Consideration
Section 57 of the Veterans' Entitlements Act 1986 ("the Act") sets out rights of review in relation to decisions of the respondent relating to, amongst other matters, a claim for a service pension.
Sub-section 57(2) relevantly provides that a pensioner who is dissatisfied with a decision of the respondent reducing the rate of service pension may request the Commission to review the decision. Document T36 is the applicant's request for review in this case. Document T39 is the decision on review which affirmed the earlier decision (section 57B).
Section 175(2) of the Act relevantly provides that where the respondent affirms a decision under section 57B of the Act then a person may apply to this Tribunal for review of the affirmed decision.
While section 46M of the Act refers to biannual valuation of assets, the respondent has proceeded on a quarterly assessment of value. There is no consequence in this case because the applicant's assets were considerably in excess of the allowable amount at all relevant times. In particular I am satisified that the Stanford shares were correctly included as property of the applicant and were not subject to obligations of such a nature that the shares could be said to be beneficially owned by others.
There is nothing in the material before me that supports a view that the claim for overpayment, as now conceded by the respondent, is other than the correct amount of the overpayment. That there has been an overpayment of service pension is beyond argument and there is nothing to show that the amended amount is other than a reasonable calculation of that overpayment.
The applicant does not dispute the cancellation of his pension from February 2000.
The formal decision (T39) is no longer contended for by the respondent and therefore should be set aside. The matter will be remitted to the respondent with a direction that the amount of overpayment is $74,998.40.
I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of Mr K L Beddoe, Senior Member
Signed:       S Oliver
                    Associate
Date of Hearing  28 November 2001
Date of Decision  20 September 2002
The Applicant Appeared in Person
For the Respondent                 Mr J Stoner, Advocate