Lee and Repatriation Commission (Veterans’ entitlements)

[2016] AATA 438

Lee and Repatriation Commission (Veterans’ entitlements) [2016] AATA 438 (28 June 2016)

Division	Veterans' Appeals Division
File Number(s)	2015/5054
Re	Nae Ham Lee
APPLICANT
And	Repatriation Commission
RESPONDENT

DECISION

Tribunal	Ms N Isenberg, Senior Member
Date	28 June 2016
Place	Sydney

The decision under review is affirmed.

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

Ms N Isenberg, Senior Member

CATCHWORDS

VETERANS’ AFFAIRS – veterans’ entitlements – pension bonus scheme – qualification – application lodged out of time – decision affirmed

LEGISLATION

Veterans’ Entitlements Act 1986 (Cth) s 45TD

REASONS FOR DECISION

Ms N Isenberg, Senior Member

28 June 2016

1. The applicant, Nae Ham Lee, seeks review of a decision by the Repatriation Commission dated 29 June 2015 which affirmed a decision dated 25 March 2015 that determined that he was ineligible to register for the Pension Bonus Scheme. 

   CONSIDERATION

2. The Pension Bonus Scheme provided a once-only, tax-free lump sum payable to a person who, on reaching pension age, voluntarily deferred retirement for at least one year, up to a maximum of 5 years.  The Pension Bonus Scheme provided an incentive for older Australians to remain in the workforce and thereby defer receipt of income support pension. 

3. The Pension Bonus Scheme closed to people who had not reached pension age or qualifying age before 20 September 2009.  People who were eligible before that date, but had not yet applied, were able to register for the scheme until 1 July 2014, after which date the scheme closed to new registrations: Veterans’ Entitlements Act 1986 (Cth) s 45TD.

4. Mr Lee, who is now aged 69, said that he had first heard about the Pension Bonus Scheme about 10 years ago when it was first introduced.  He read about it in a Korean language newspaper.  He thought there was a commencement date but that no end date was specified, as far as he could recall.  However, he said he did not pay much attention because he did not think, at that time, that he would need income assistance at all. 

5. However, his circumstances changed, and in January 2013 he went to the Department of Veterans’ Affairs (DVA) to enquire about eligibility for the service pension and other benefits.  He took some information about his service as an allied veteran in the South Korean Army.  He was given a claim form for service pension, which included a reference to the Pension Bonus Scheme.  It was noted on the form that he had made the informal inquiry on 24 January 2013 and he said he was told - as was recorded on the form - that if he lodged his formal application by 24 April 2013, his pension, if he was eligible, was payable from the date of the informal inquiry.  At the same time, it appears he was asked to provide information about his service in the South Korean Army – the ‘qualifying service form’.  He took both forms home to complete.  He said that because he had left Korea over 40 years ago he needed to obtain, from his family home in Korea, his certified discharge papers, which it appears, would be necessary to establish that he had qualifying service.  I accept that gathering the information about his service took some time, and that that was at least part of the reason the applicant was delayed in submitting his formal claim.

6. Also, he said, during the time he was gathering the information, the claim form was damaged when he was moving house.  A friend obtained another form for him and he re-wrote the form, but recycled the page on which the DVA officer had recorded the date of the informal claim.  There was also the requirement for witnesses and this also caused a delay in lodgement of the form. 

7. On 16 December 2014 the applicant attended the DVA office to lodge the claim form (and the qualifying service form).  With the claim form he lodged an application to register with the Pension Bonus Scheme.  By that time, however, registration for the scheme had closed.

8. Mr Lee submitted that it was unfair that he was precluded from registering for the scheme.  His understanding was that the scheme worked such that the “longer [he worked], the better” in terms of the calculation of the bonus, so he did not think there was any urgency in making his application.  Also, he did not think when it was introduced that there was an end date, and as he does not have television, and did not have time to read newspapers, he did not learn of the closing date until his application for registration was refused.  He is an active member of the Korean Veterans’ Association, and nobody, including the president, knew of an end date, which, it appears, was introduced in the May 2013 Budget.  While DVA, he said, had specifically informed the Korean Veterans’ Association about the introduction of the Pension Bonus Scheme, it had not notified veterans about the introduction of an end date.  

9. He particularly objected to having been told by someone in the Department that it was “bad luck” that he had been refused registration. 

10. I accept that it was necessary for DVA to require Mr Lee to provide information about his service so as to satisfy itself about his eligibility for any type of pension. I am also sympathetic to the fact that it may have taken a great deal of time for Mr Lee to assemble that information.  

11. At the time of Mr Lee’s attendance to make his informal claim the change to the closure date had not been made.  If he had been able to lodge his claim form any time before 1 July 2014, according to the Department’s policy guidelines, his registration for the Pension Bonus Scheme would have been accepted. 

12. However the legislation is clear: registration for the pension bonus scheme closed on 1 July 2014.  As a result this Tribunal does not have any discretion to extend that date. 

    DECISION

13. The decision under review is affirmed.

I certify that the preceding 13 (thirteen) paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member

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

Associate

Dated 28 June 2016

Date(s) of hearing	15 June 2016
Applicant	In person
Solicitors for the Respondent	Department of Veterans' Affairs