Linwood and Repatriation Commission (Veterans’ entitlements)
[2016] AATA 708
•15 September 2016
Linwood and Repatriation Commission (Veterans’ entitlements) [2016] AATA 708 (15 September 2016)
Division VETERANS’ APPEALS TRIBUNAL File Number
2014/2037
Re
Mark Linwood
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal
Deputy President Bernard J McCabe
Date
15 September 2016
Place
Brisbane
The decision under review is affirmed.
........................................................................
Deputy President Bernard J McCabe
Catchwords
Administrative Law – Veterans’ Affairs - veterans’ entitlements – pension - pension in respect of psychiatric condition - rate of pension - date of effect of liability decision – decision under review is affirmed
Legislation
Veterans’ Entitlements Act 1986 (Cth) s 20
Administrative Appeals Tribunal Act 1975 (Cth) s 42D
Cases
Linwood and Repatriation Commission [2015] AATA 704.
Linwood v Repatriation Commission [2016] FCA 90.
REASONS FOR DECISION
Deputy President Bernard J McCabe
15 September 2016
Mr Mark Linwood applied for a disability pension under the Veterans’ Entitlements Act 1986 (Cth) (the VE Act). His claim form is dated 6 December 2012, and it is included in the documents provided pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). The Commission initially rejected the claim, and its decisions were affirmed by the Veterans’ Review Board and this Tribunal.[1] But the Tribunal’s decision was set aside by the Federal Court.[2] The matter was remitted to the Tribunal to be determined according to law. In the course of his reasons, Logan J pointed out the Commission was entitled to reconsider its position and make a concession on the question of liability in light of the evidence discussed at the hearing, and which had come to light in a separate affidavit that was unable to be considered by the Court.[3]
[1] Linwood and Repatriation Commission [2015] AATA 704
[2] Linwood v Repatriation Commission [2016] FCA 90
[3] Ibid [60]
After hearing submissions from the parties in the wake of the appeal, I concluded the Tribunal was only able to deal with the applicant’s claim in respect of his psychiatric condition. I was satisfied the Federal Court had not remitted the Tribunal’s decision with respect to the applicant’s asthma condition. In the meantime, the Commission had conceded it was liable to pay a pension in respect of the applicant’s psychiatric condition. The applicant was unwilling to accept that concession but I decided to remit the matter to the Commission pursuant to s 42D of the AAT Act so it could formally reconsider its position. (The Commission was not at liberty to change its decision while the matter was still before the Tribunal, so it was acting properly in seeking orders from the Tribunal).[4]
[4] Linwood and Repatriation Commission [2016] AATA 407
The Commission formally reconsidered its decision with respect to liability and, as foreshadowed, accepted the applicant’s psychiatric condition was related to his service. The Commission concluded the date of effect of the liability decision was 14 September 2012. The Commission’s decision to that effect was dated 15 July 2016.
The Commission also assessed the applicant as being entitled to a pension paid at 80% of the General rate.
Mr Linwood is unhappy with the decision made under the remittal. He says the Commission made a mistake about the date of effect. He also says he is entitled to a pension paid at a higher rate. I will deal with each of those issues separately.
The date of effect
Mr Stephen Wise, a lay advocate, represented the applicant at the resumed hearing. Mr Wise provided written submissions by email dated 7 September 2016. Those submissions set out a number of complaints about the process Mr Linwood has endured to this point. I will return to some of these matters below. The submissions do not directly address the date of effect issue, although they question whether the applicant might have an entitlement that relates back to his first and unsuccessful application for a pension in 1997.
Mr Wise appeared to accept at the hearing that it was impossible to backdate a successful claim for a pension to the date on which an earlier unsuccessful claim was made. The language in s 20 of the VE Act confirms the earliest date of effect is three months prior to the date on which the completed claim ‘was received at an office of the Department in Australia’. I was told the claim form was signed on 6 December 2012 and posted on the same day. The claim form provided to me in the s 37 documents bears a date stamp saying it was received by the Department of Veterans’ Affairs at its Sydney office on 14 December 2012.
Mr Wise said the respondent’s solicitor had suggested in earlier correspondence that the date of effect was 6 September 2012. The Commission subsequently said that was an error. I accept that is so. There is no way a letter posted on 6 December 2012 in Bundaberg could have been received by the Commission on the same day. Mr Linwood said it was passing strange that the letter was not received in Sydney (he said he recalled sending it to Brisbane) until 14 December 2012. Mr Linwood took that delay as further evidence of the Commission persecuting him.
It is true there is a lengthy gap between the date on which the claim form was posted and when it was date-stamped in Sydney. Mr Hanson, who appeared for the Commission, had no explanation for the delay although it was not so long as to be remarkable. In the circumstances, I have no reason to doubt the document was received on 14 December 2012. That is the date that should be used for the calculation of the date of effect pursuant to s 20 of the VE Act. In the circumstances, I accept the date of effect was 14 September 2012.
The rate of pension
Mr Linwood is incensed by the Commission’s decision to pay the pension at 80% of the General rate. He and Mr Wise pointed to evidence from an expert psychiatrist that says Mr Linwood is totally and permanently incapacitated for work. They expressly deny the applicant’s ankle or asthma conditions play any role in his incapacity. Mr Linwood insists those conditions are a furphy. He says he should be paid at a higher rate.
Mr Linwood may be right in his criticisms – but that is not a matter for me at this point. Now the Commission has accepted it is liable for the psychiatric condition, the decision-making process before the Tribunal is at an end. The separate decision about the rate of pension should be reviewed by the Veterans’ Review Board. If Mr Linwood is unsuccessful there, he could return to this Tribunal. Hopefully that will not be necessary.
Other issues
Mr Linwood and Mr Wise made a number of angry allegations about the performance of the Commission, the Veterans’ Review Board, the Tribunal and the Australian Government Solicitor. Mr Wise referred to an earlier request that I recuse myself from further involvement in the proceedings, although he did not press that request at the hearing. Mr Wise appeared to assume the Federal Court’s order all but awarded a special rate pension to the applicant, when in fact it dealt with the preliminary question of liability for one of his conditions. Mr Wise argued that the weight of evidence favoured granting the applicant a pension at the special rate, and that the failure to accept that claim was inherently unreasonable.
It is not appropriate for me to express a view as to the rate at which the applicant’s pension should be paid. That question is now before the Veterans’ Review Board. There is no point responding to the other criticisms at this juncture.
Conclusion
The Commission’s decision to accept liability for the applicant’s psychiatric condition with a date of effect of 14 September 2012 is affirmed. These proceedings are now concluded.
I certify that the preceding 14 (fourteen) paragraphs are a true copy of the reasons for the decision herein of Deputy President Bernard J McCabe ........................................................................
Assistant
Dated 15 September 2016
Date of hearing 9 September 2016 Advocate for the Applicant Stephen Wise Solicitors for the Respondent Australian Government Solicitor
0
3
0