Lees and Repatriation Commission

[2006] AATA 238

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 238

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2004/650

VETERANS’ APPEALS DIVISION		)
Re		ANTHONY LEES

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member B J McCabe

Date14 March 2006

PlaceBrisbane

Decision The date of effect of the Tribunal’s decision is 4 February 2001.

..........[Sgd]........

BJ McCabe

SENIOR MEMBER

CATCHWORDS

VETERANS’ AFFAIRS – Tribunal set aside a decision of the repatriation commission – date of effect of the Tribunal’s judgment

Veterans Entitlements Act 1986, s 20, s 157, s 177

REASONS FOR DECISION

14 March 2006 Senior Member B J McCabe

1.      The Tribunal set aside the respondent’s decision to deny the applicant’s claim under the Veterans Entitlements Act 1986 (the VEA) in respect of an alcohol abuse or dependence condition on 4 January 2006. The decision is reported at [2006] AATA 2. I did not reach a conclusion as to the date of effect of the decision because the parties had not made any submissions on the point. I gave them the opportunity to do so. Solicitors for the applicant and respondent subsequently filed written submissions with the Tribunal.

2.      Section 20 of the VEA provides the respondent may determine the date of effect is “a date not earlier than 3 months before the date on which the claim for a pension…was received at an office of the Department in Australia.” If the Commission rejects a claim but the claim is subsequently accepted by the Veterans’ Review Board, s 157(2) permits the Board to specify a date of effect not earlier than the earliest date on which the Commission could have approved payment of the pension. If the Board affirmed the Commission’s decision but that decision is subsequently overturned by the Tribunal, the Tribunal is entitled to fix a date of effect that is not earlier than the earliest date that could have been fixed by the Board: s 177(2). (The position is different if the applicant did not apply for review within the prescribed time limits.)

3.      In this case, the original application for a pension was lodged with the Department of Veterans’ Affairs on 4 May 2001. The claim was finally determined by the Tribunal on 4 January 2006. The effect of the legislation is that the earliest date of effect from which the applicant’s pension can take effect is three months prior to the date on which the claim was lodged, ie, 4 February 2001.

4.      The submissions filed on behalf of the applicant referred to a separate claim filed on 5 January 2001. The applicant did not seek a review of the Commission’s decision to refuse that claim. The applicant persisted instead with the claim lodged on 4 May 2001. It follows the claim lodged on 5 January 2001 is irrelevant to these proceedings.

conclusion

5.      The date of effect of the Tribunal’s decision is 4 February 2001.

I certify that the 5 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member B J McCabe

Signed:         Associate      Adam Ryan

Date of Decision  14 March 2006