Lingard and Repatriation Commission (Veterans’ entitlements)
[2015] AATA 939
•4 December 2015
Lingard and Repatriation Commission (Veterans’ entitlements) [2015] AATA 939 (4 December 2015)
Division
VETERANS' APPEALS DIVISION
File Number
2015/0244
Re
Roger Lingard
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Deputy President Dr Christopher Kendall
Date 4 December 2015 Place Perth Decision under review affirmed.
.................[sgd].......................................................
Deputy President Dr Christopher Kendall
CATCHWORDS
VETERANS SERVICE PENSION – Informal claim – Notification of informal claim – Claim returned after three month statutory period – Request for backdating of claim date to date of informal claim on basis that veteran did not understand or notice dates noted on claim form or on basis of compassionate ground due to ill health
LEGISLATION
Veterans’ Entitlements Act 1986 – section 36B
REASONS FOR DECISION
Deputy President Dr Christopher Kendall
4 December 2015
BACKGROUND
If a veteran files a claim for a service pension but it is not a “formal claim” meeting the requirements of s 36F of Veteran’s Entitlement Act 1986 (the “Act”), s 36B(2) of the Act authorises backdating to the date of the initial informal claim if a proper claim is made within three months after notification that the informal claim was not a “proper” claim. Where there was no such notification to the veteran about the initial informal claim, no such time limit applies.
Roger Lingard first notified the Department of Veterans Affairs (the “Department”) of his intention to claim a Service Pension on 10 February 2014.
Mr Lingard was subsequently sent claim forms to be completed by him and returned to the Department.
The first page of the “Claim for Service Pension Part A – Eligibility” form that was sent to Mr Lingard contained a box labelled as follows:
OFFICE USE – to be completed when forms are issued
The same box contained the following information:
Informal claim received 10/01/2014
This claim needs to be returned by 10/05/2014Mr Lingard submitted his claim form for Service Pension on 4 June 2014.
On 4 July 2014, a delegate of the Repatriation Commission granted a Service Pension on the grounds of age with effect from 4 June 2014.
On 23 July 2014, Mr Lingard applied for review of the date of effect of the decision. In effect, Mr Lingard argued that the date of effect should be 10 February 2014 (the date of his informal claim) – not 4 June 2014 (the date the Department received Mr Lingard’s claim form).
On 2 October 2014, a service pension review officer affirmed the delegate’s decision.
On 16 January 2015, Mr Lingard applied to the Administrative Appeals Tribunal (the “Tribunal”) for review of the service pension review officer’s decision.
ISSUES
The Tribunal is asked to determine whether the date of grant of Mr Lingard’s pension can be backdated from 4 June 2014 (the date the Department received Mr Lingard’s claim form) to 10 February 2014 (the date Mr Lingard made an informal claim).
To answer this question in the affirmative, the Tribunal must be satisfied that, pursuant to section 36B(2)(d)(ii) of the Act, Mr Lingard either returned his claim form within the three month statutory period or was not “notified” that he was required to return his claim form within that period.
RELEVANT LEGISLATION
The legislation relevant to this matter is found in the Veteran’s Entitlements Act 1986. Relevantly, the Tribunal notes the following provisions:
Division 3—Age service pension
Subdivision A—Eligibility for and payability of age service pension
36B Age service pension generally not payable before claim
Provisional commencement day
(1)An age service pension is not payable to a veteran before the veteran’s provisional commencement day.
(1A)Subject to subsection (2), a veteran’s provisional commencement day is the day on which the veteran claims the age service pension.
Initial incorrect claim followed by proper claim
(2) If:
(a)a veteran makes a claim (in this subsection called the initial claim) for age service pension; and
(b)the claim is not a proper claim; and
(c)on the day on which the veteran makes the initial claim, the veteran is eligible for age service pension; and
(d)the veteran subsequently makes a proper claim:
(i)within 3 months after being notified that the initial claim was not a proper claim: or
(ii) if the veteran was not so notified—at any time;
then the veteran’s provisional commencement day is the day on which the initial claim was lodged.
Subdivision B—Claim for age service pension
36D Need for a claim
A veteran who wants to be granted an age service pension must make a proper claim for that pension. .
36F Making a claim
(1) To be a proper claim, the claim must be:
(a)made in writing; and
(b)in accordance with a form approved by the Commission; and
(c)accompanied by any evidence available to the claimant that the claimant considers may be relevant to the claim; and
(d)lodged at an office of the Department in Australia in accordance with section 5T.
EVIDENCE
Letter from the Applicant to the Department of Veteran’s Affairs dated 2 June 2014 (T3)
It is not disputed that Mr Lingard’s application was not received by the Department until 4 June 2014. When he returned his application, Mr Lingard also sent a letter to the Department which reads as follows:
My initial enquiry reference making a claim was on the 10/02/2014 with a return date of 10/5/2014.
Enclosed is the claim which took longer than the documentation we needed to hook up the Rankin A Gas Platform to the Modules? Main problem was that each contact with DVA to ask questions was met with confusing instructions or advice which when asked again was different. The most frustrating conversation was had March/April with I regret to say a claims officer based in Perth. Firstly the lady had a strong accent which for me was very difficult to understand and we both became frustrated. The questions were related to our SMSF and Private Company and with no disrespect she knew as much about companies as I do about government. The call ended badly with the application tossed in the bin.
Thankfully after talking to nicer people they encouraged me to continue with the application but consequently it took some time. For this I apologise and trust you
understand.
Note that I have not had to provide a tax return since 2008 as I have not received any income since about 2002. I have lived of super draw downs and a good wife until now.
It is apparent from the above correspondence that Mr Lingard did receive the relevant claim form and, arguably, was aware of the return date of 10 May 2014.
Correspondence between Mr Lingard and the Department
Mr Lingard indicated to this Tribunal that he had numerous conversations with the Department about his application. The Tribunal does not doubt him in this regard. Mr Lingard presented as both sincere and credible before this Tribunal, albeit understandably quite frustrated by what had occurred in relation to his initial application for a pension.
There is little evidence in relation to the conversations Mr Lingard had with the Department, either prior to or after he returned his claim form.
The Tribunal notes the evidence before the Commission that there is an electronic record in Mr Lingard’s electronic file (aDVAnce) made on 26 March 2014 which states that the subject of this telephone call was in relation to: “about completing claim for service pension forms”. The Tribunal notes, however, as did the Commission, that no further details have been recorded to confirm what was discussed during this telephone conversation.
In relation to other conversations between Mr Lingard and the Department, the Tribunal notes the following other evidence.
Email from Margarete Mumme to Robert Vere, Income Support Service Officer, Department of Veterans’ Affairs, dated 8 July 2014 (T9)
This email reads as follows:
Re: WSS499 Lingard
Can you call vet please.
You can call any time after 7am.
He was thinking he might have his claim backdated.
He said that after speaking to Liz he sent a covering letter explaining why his claim was late.
I said to him that I thought it was probably our decision that we hadn't received the claim within 3 months of the informal claim so we'd only granted from date of receipt but vet said that he at least wanted this explained and his covering letter acknowledged and responded to.
File note of ‘Margarete’, Department of Veterans’ Affairs, dated 9 July 2014 (T10)
This file note reads as follows:
Rang back vet in respect to call missed on 8 July 2014,
I stated that I read his letter dated 2 June but determined that his claim was to commence from date of date of notification being 4 June, I apologised that he did not receive a written response and offered to do so but he stated that speaking to me now would be OK,
Explained to vet the significance of the date bottom left hand corner on Part A to which vet replied that he didn't even know it was there until he lodged the claim,
\/et was ok at first but began getting shirty even though he stated he understood, Vet hung up on me before I had a chance to explain that he had the right to appeal.
I rang him back - I advised him that he could appeal my decision - he stated that all the documents I sent him were in the bin and again hung up on me.
Letter from Glenda Lingard to Department of Veterans Affairs dated 21 July 2014 (T11)
Mr Lingard’s wife, Glenda Lingard, wrote a letter to the Department as follows:
As Roger's wife I am writing with regards to the DVA letter dated the 04/07/14 confirming the pension. The letter made no response to the reason provided for the late reply of the application. This lead to a phone call which according to Roger treated the back payment issue as frivolous and apparently quote "ignored".
As I understand, Roger's claim forms were posted out on 10/2/2014 but he was not aware that they had to be returned within 3 months even though he acknowledges there is a informal claim received date and return date indicated. Had he been aware what this meant he would have applied for an extension or as suggested posted the forms in incomplete.
At the application time he was bedridden following a major back operation (Poste nor Interbody Fusion with Dynamic Stabilisation) and was not able to commence processing the claim until well into March because of recovery. The reason he applied for the forms straight after leaving hospital was that Doctor Miles indicated it could be a long and painful recovery that could last from 6 months to 3 years. He still remains in recovery from leg nerve complications after surgery with the latest prognosis another 2 years. He attempted to put together the necessary documents on and off depending on his health and state of mind.
Another delay was caused by waiting for the accounts for our SMSF to be returned from ATO via our accountant. In addition he was getting mixed messages from each telephone call made to the DVA from the many operators who take the calls, some appear very knowledgeable and helpful some very young and not.
A gentleman from Perth office was very helpful at one stage and after the expiry Liz Hayman was exceptionally helpful but it was only then Roger realised he was over the deadline but Liz kindly suggested he get it in right away with a letter of explanation. A major problem was that only Parts A & B were sent, the Private company form D0600 was not included although it was made clear that we had a private company and SHSF (sic)when requesting the forms from Eva Lopez who I could never find after?
He has in his letter explained the unpleasant exchange he had when trying to find where the company information is entered given he did not know he didn't have the correct form. Apparently it had to be posted which delayed matters even more.
My husband like many other Veterans who were WIA has put up with a lot over the past 45 years making few claims and was determined he would never need a pension. It has been 13 years since he was forced to retire for health reasons, and while encouraged to claim the pension before now he decided not to. Being who he is he has both funded our life over those years (with support from me) and worked tirelessly for charity including Veteran Groups.
I would ask that DVA take a compassionate stance in this matter given the myriad of circumstance (sic) that caused the claim to be received 16 working days late based on your calculations and the penalty of over $5,000.00 seems harsh to say the least.
As a veterans wife of 43 years I acknowledge they are not the easiest people to deal with both for you and me and if this penalty stands it will have a significant detrimental financial effect on us. Life should not be this hard!
I look forward to a favourable outcome.
Commission Determination and Statement of Reasons dated 2 October 2014 (T2)
The Tribunal also notes that, in summarising the evidence before it, the SSAT had regard to the letter from Mrs Ingram provided above. The Commission then found as follows:
DETERMINATION
Reviewed under Section 57A of the Veterans' Entitlements Act 1986 (VEA),
The date of grant of Service Pension is 4 June 2014 in accordance with Section 36B of the Veterans' Entitlements Act 1986
The decision by a Delegate of the Repatriation Commission dated 4 July 2014 is affirmed.
STATEMENT OF REASONS
On 23 July 2014 the Department received a request from Mrs Lingard for a review of a decision by a Delegate of the Repatriation Commission dated 4 July 2014 that the grant date for Service Pension is 4 June 2014.
Mr and Mrs Lingard were advised of the decision by letter dated 4 July 2014, and this is a valid request for review under Section 57A of the Veterans’ Entitlements Act 1986 (VEA).
...
Background Information
Mr and Mrs Lingard lodged a claim for Service Pension on the grounds of age with the WA office of the Department on 4 June 2014.
Mr Lingard’s Qualifying Service had been determined on 26 June 2014.
Service Pension was granted on 4 July 2014 with effect from 4 June 2014.
...
Findings
Section 120(4) of the VEA requires me, as Delegate of the Repatriation Commission, in considering this review, to do so according to my reasonable satisfaction.
Mr Lingard contacted the Department on 10 February 2014 to enquire about his eligibility for Service Pension and to request the claim forms be sent to him to complete and return to the Department.
There is an electronic record on Mr Lingard’s file (aDVAnce) that a Delegate issued both Part A & Part B of the Claim for Service Pension forms.
The Claim for Service Pension Part A - Eligibility form that was issued to Mr Lingard on page one contains a box for office use which states the following:
• Informal claim received 10/02/2014
•This claim needs to be returned by 10/05/2014
There is an electronic record in Mr Lingard’s electronic file (aDVAnce) made on 26 March 2014 which states that the subject of this telephone call was in relation to “About completing claim for service pension forms”, however, no further details have been recorded to confirm what was discussed during this telephone conversation.
There is no other documentation on Mr Lingard’s file or electronic records to show that discussions occurred in relation to the backdating of the claim for Service Pension, as such, I cannot either confirm nor deny what was discussed in relation to l the possibility of backdating Mr and Mrs Lingard’s claim for Service Pension.
This determination is therefore purely based on the legislation in relation to the date of effect that Service Pension can legally be granted from.
The available evidence indicates that Mr Lingard first notified the Department of his intention to claim Service Pension on 10 February 2014 and that the Claim for Service Pension was received by the Department on 4 June 2014.
I note the comments made by Mrs Lingard in the request for review letter received by the Department on 23 July 2014 and the letter by Mr Lingard dated 2 June 2014 which was received by the Department on 4 June 2014, however, I am required to make this determination in accordance with legislation, the Veterans' Entitlement Act 1986.
I find that the earliest date of grant for Mr and Mrs Lingard to be granted Service Pension is 4 June 2014 in accordance with section 36B of the Veterans’ Entitlement Act 1986.
Mr Lingard’s application to the Tribunal for review of the Commission’s decision, dated 14 January 2015
In his application for a review of the Commission’s decision, Mr Lingard provided the following reasons for this request:
The findings of the review were “purely based on the legislation”, therefore the string of mitigating circumstances were ignored due to lack of evidence. Given my explanation conveyed by my wife it appears harsh and unfair given my circumstances. The fact the DVA cannot produce electronic records of my phone calls for help does not mean I did not make them. [original emphasis]
Mr Lingard’s Oral Evidence before this Tribunal
In evidence before this Tribunal, Mr Lingard repeated what had been said before the SSAT. He explained further that he had not returned the claim form by the required 10 May 2014 deadline because he did not fully understand what it meant or that the relevant dates as indicated on the claim form were meant for his attention. He also explained that he was unwell during this period and had had significant difficulty obtaining information from the Department. In the circumstances, he asked that the Tribunal find either that he had not been “notified” as per section 36B(2))d)(ii) of the Act or that his claim date be backdated on compassionate grounds.
ANALYSIS
The Tribunal has considerable sympathy for the frustrations expressed by Mr Lingard in relation to this matter.
The Tribunal notes that the notice Mr Lingard received (which the Department claims was intended to notify him that he needed to return his application by 10 May 2014) is contained in a box at the bottom of a page and marked “OFFICE USE”. It would not, arguably, be unusual for someone in Mr Lingard’s position to assume that the information contained therein was not directed at him.
The Tribunal can only refer to and rely on the evidence before it and the legislation relevant to the matter before it.
It is clear from the evidence before it that Mr Lingard was aware of the required filing date indicated on the claim form. There is little evidence about what was or was not said to Mr Lingard when he spoke to Department staff but Mr Lingard himself acknowledges that he did receive the relevant claim form.
What Mr Lingard is really asking the Tribunal to do is take into account his apparent confusion in relation to what he was supposed to do and his ill health at the relevant time.
Unfortunately for Mr Lingard, the Tribunal cannot assist him in that regard.
The wording in section 36B(2)(d)(ii) is restrictive and offers little scope to accommodate disadvantage of the sort outlined by Mr Lingard.
Section 36B(2)(d)(ii) would only apply here if there was evidence that Mr Lingard was not “notified – at any time” that his initial claim (here, his verbal claim made on 10 February 2014) was an informal claim.
On the evidence before the Tribunal, Mr Lingard admits that he did indeed receive the claim form. This is also acknowledged by his wife. What he and Mrs Lingard argue, however, is that they did not understand the form, did not think the relevant information was meant for them or, because of his state of health and the problems he was having completing the form, it would be unfair to expect him to complete the form by the 10 May 2014 deadline, (also indicated on the claim form).
The Act does not allow for “backdating” of the sort requested here if someone is physically or mentally unwell or if someone does not understand what they are supposed to do. It simply requires the Department to notify an applicant that they need to respond by a certain date. On the evidence before the Tribunal, Mr Lingard was “notified” of his obligations. Accordingly, the Department did adhere to its statutory requirements and there is no statutory discretion that would allow the Department (or the Tribunal) to override that statute, regardless of how sympathetic it is to Mr Lingard’s unfortunate personal circumstances.
Mr Lingard did not return his claim form within the three month statutory period required by the Act. He was notified that he was required to do so.
As such, the Tribunal finds that the earliest date of grant for Mr Lingard to be granted Service Pension is 4 June 2014 in accordance with section 36B of Act.
DECISION
For the reasons outlined above, the decision under review is affirmed.
I certify that the preceding 36 (thirty-six) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr Christopher Kendall. ...............[sgd].........................................................
Administrative Assistant
Dated 4 December 2015
Date of hearing 19 November 2015 Applicant In person (Self-represented) Representative of the Respondent Mr C Ponnuthurai
Department of Veteran's Affairs
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