Louth and Repatriation Commission (Veterans' entitlements)
[2021] AATA 3641
•13 October 2021
Louth and Repatriation Commission (Veterans' entitlements) [2021] AATA 3641 (13 October 2021)
Division: VETERANS’ APPEALS DIVISION
File Number: 2020/8563
Re:Raymond Louth
APPLICANT
AndRepatriation Commission
RESPONDENT
DECISION
Tribunal:L Rieper, Member
Date of Decision: 13 October 2021
Place:Hobart
The application is dismissed under s 42B(1) of the Administrative Appeals Tribunal Act 1975 (Cth).
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L Rieper, Member
CATCHWORDS
VETERANS’ AND MILITARY COMPENSATION – rate of service pension – Asgard allocated pension – whether deemed income amendments apply – effect of continuous Centrelink Income Support – decision superseded – application dismissed.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
CASES
Re Currey and Australian Community Pharmacy Authority [2007] AATA 1963
Re Filsell and Comcare [2009] AATA 90REASONS FOR DECISION
Ms L Rieper, Member
13 October 2021
THE APPLICATION
The Respondent seeks the dismissal of this application under s 42B(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) on the basis that the continuation of the application for review is misconceived and lacks reasonable prospects of success.
The Respondent says that the issues before the Tribunal have all been resolved in favour of the Applicant and the reviewable decision superseded so that further review of the reviewable decision is unnecessary and pointless.
BACKGROUND
By application lodged with the Tribunal on 24 December 2020, the Applicant sought review of the Respondent’s decision dated 18 November 2020 which affirmed a determination dated 24 July 2020 that retrospectively reduced the rate of service pension to which the Applicant and his wife were entitled for the period from 14 August 2015 to 16 September 2018 (the decision under review). This was to take account of deemed income from the Applicant’s Asgard Infinity eWRAP Pension Account (the Asgard Allocated Pension) which had not previously been assessed. It resulted in overpayments being raised against the Applicant and his wife.
On 11 June 2021, an officer of the Department of Veterans’ Affairs advised the Applicant by email that:
Upon further review of our overpayment investigation, we discovered that Mr Louth was on a continuous Income Support benefit with Centrelink prior him transferring to DVA’s Service Pension and as such the Asgard Allocated Pension should have been recorded in their DVA assessment as an Asset from date of grant 14/08/2015.
We have recalculated the original overpayment raised for the period 14/08/2015 to 16/09/2018 to $1,105.33 each from the original amount raised of $2,967.07 each, a reduction of $1,861.74 each – Mr & Mrs Louth were assessed under the asset test for period 14/08/2015 to 11/03/2016.
As the original debts raised have already been repaid from portion deductions from their ongoing pension payments, refunds of $1,861.74 each will be paid to their nominated bank accounts within the next week.
We will need to undertake an action shortly to update Mr & Mrs Louth’s assessment with details of the Asgard Allocated Pension - the last Income Stream Schedule we received is dated 19 August 2020. Could you please supply us with the latest schedule within 14 days.
On 11 June 2021, the Applicant’s representative forwarded the above email, together with his email in response to the Tribunal, advising:
Clearly, as I have stated in past communications “this settles the matter, once and for all” in Mr Louth’s favour.
Please therefore cease any further AAT hearings (emphasis in original).
On 2 July 2021, the Tribunal held a directions hearing and, with the consent of the parties, vacated the hearing that had been listed to take place on 20 August 2021.
The application to dismiss
Section 42B(1) of the AAT Act relevantly provides:
(1)The Tribunal may dismiss an application for the review of a decision, at any stage of the proceeding, if the Tribunal is satisfied that the application:
(a) is frivolous, vexatious, misconceived or lacking in substance; or
(b) has no reasonable prospect of success; or
(c) is otherwise an abuse of the process of the Tribunal.
On 20 August 2021, the Respondent advised the Tribunal that in its submission, there were no outstanding issues for the Tribunal to determine.
On 23 August 2021, the Tribunal set a timetable for the parties to file and serve submissions in respect of the question of dismissal and advised that the application for dismissal would be determined on the papers. In addition to the submissions provided for in the timetable, the Applicant’s representative sent an email to the Tribunal and the Respondent’s representative on 20 September 2021 to which the Tribunal has had regard.
THE PARTIES’ SUBMISSIONS
The Respondent
The Respondent filed submissions dated 3 September 2021. In summary the Respondent says that:
(a)Since 11 June 2021 the Applicant has:
(i)continued to agitate for the refund of the balance of the amount he repaid not already refunded; and
(ii)contended that there is a need for the Tribunal to make findings of fact in relation to the primary decision dated 29 July 2021 which determined the rate of his Service Pension from 13 August 2021 and in particular, about the correctness of the assessment of the total value of all his real estate used for the purpose of that decision.
(b)The “practical” issue before the Tribunal was whether the deemed income amendments applied to the Applicant’s Asgard Allocated Pension in the period from 14 August 2015 until 16 September 2018. This question was resolved in the Applicant’s favour as a result of the Respondent’s decision made on 11 June 2021. That decision has effectively superseded the reviewable decision.
(c)Had it been necessary for the Tribunal to make a determination about the treatment of the Applicant’s Asgard Allocated Pension in the period 14 August 2015 to 16 September 2018, the Tribunal would have remitted to the Respondent the calculation of any consequential adjustments to the Applicant’s pension rates in that period. As those calculations have already been made by the Respondent, there is no longer a need for that to occur.
(d)Neither the refund of any monies paid by the Applicant in respect of an overpayment, nor the primary decision made on 29 July 2021, are matters in which the Tribunal has jurisdiction.
The Respondent asks that the application be dismissed as the Applicant has refused to withdraw the application.
The Applicant
The Applicant says that the matter has not been fully resolved and that “[w]hat we have always sought the Tribunal to review and rule on is the original and continued incorrect assessment by DVA of Mr and Mrs Louth”.[1]
[1] Applicant’s reply to Respondent’s dismissal application, dated 6 September 2021.
Unfortunately, the submissions filed on behalf of the Applicant do not directly address the dismissal application but instead raise complaints about the Respondent and the review process. In particular, concerns are raised about:
(a) when the Respondent became aware that the Applicant was on a continuous Income Support benefit from Centrelink; and
(b) the contents of a spreadsheet the Respondent provided to the Applicant on 29 June 2021 setting out the calculations used to determine the refund paid to the Applicant following the decision of 11 June 2021. The Applicant’s representative stated that:
This spreadsheet (as attached to this email, though it has also been previously provided to the tribunal by the RESPONDENT) quite clearly demonstrates a second ongoing incorrect assessment of Mr and Mrs Louth.
The Recorded financial Assets is what we now seek clarification and a ruling on via the tribunal.
In his email dated 20 September 2021, the Applicant’s representative further stated:
I reiterate the matter before the tribunal is the ALLEGED overpayment, which to date has only partly refunded. The remaining contention that we seek the tribunals (sic) review of, is the basis for the remaining ALLEGED overpayment.
CONSIDERATION
The Tribunal is mindful that the power to dismiss proceedings under s 42B of the AAT Act is a power that should be exercised cautiously.[2] However, a lack of practical benefit to the Applicant may be a reason for exercising the discretion under s 42B.[3]
[2] Re Filsell and Comcare [2009] AATA 90.
[3] See for example, Re Currey and Australian Community Pharmacy Authority [2007] AATA 1963.
The Respondent concedes that the application for review had merit at the time it was made. The Tribunal accepts that concession. The issue now is whether, in light of the decision of 11 June 2021, it is misconceived or has no reasonable prospects of success.
The Tribunal’s role in this matter is limited to reviewing the decision of 18 November 2020. It has the power to affirm, vary or set aside the decision under review and either make a decision in substitution or remit the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.[4]
[4] AAT Act s 43.
The decision of 18 November 2020 affirmed an earlier decision of 24 July 2020 to retrospectively reduce the Applicant and his wife’s rate of service pension with effect from 14 August 2015 until 16 September 2018 and to raise an overpayment totaling $5,934.14. The Tribunal notes that only Mr Louth has lodged an application for review with the Tribunal.
The Applicant’s representative signed a Statement of Facts, Issues and Contentions on 14 May 2021 in which he asserted:
Basically, the issue is the non-disclosure to DVA of Mr Louth’s ASGARD Account Based Pension (ABP) when he applied for service pension after attaining age 60…
He also stated in the Applicant’s Statement of Facts, Issues and Contentions:
…the CRUX of the matter is that Mr Louth unequivocally disputes the basis of DVAs assessed income of this APB and therefore the quantum of overpayment.
The evidence before the Tribunal establishes that on 11 June 2021, the decision of 18 November 2020 was set aside and it was accepted that the Applicant had been “on a continuous Income Support benefit with Centrelink prior him transferring to DVA’s Service Pension and as such the Asgard Allocated Pension should have been recorded in their DVA assessment as an Asset from date of grant 14/08/2015”. The overpayments which had previously been raised were later recalculated, and refunds issued to Applicant and his wife.
It is clear from the correspondence between the parties and the Tribunal that the resolution of the issue regarding the treatment of the Asgard Allocated Pension initially satisfied the Applicant. The Applicant’s representative advised the Tribunal on 11 June 2021 that the matter had been settled “once and for all” in the Applicant’s favour.
It is also apparent that the issues now being agitated by the Applicant do not arise out of the reviewable decision.
Firstly, the question of when the Respondent became aware that the Applicant was on a continuous income support benefit from Centrelink is irrelevant to any benefit the Applicant is now seeking. The Respondent concedes that the Applicant was in receipt of income support and determining the timing cannot result in a more favourable decision for the Applicant.
Secondly, the email from the Applicant’s representative dated 20 September 2021 shows that what the Applicant now seeks to have reviewed are the calculations contained in the spreadsheet that the Respondent provided to the Applicant on 29 June 2021. Those calculations do not form any part of the decision currently before the Tribunal.
The Tribunal is satisfied that there is no utility in proceeding with a review of the decision of 18 November 2020. To the extent the Applicant takes issue with the calculation of his service pension entitlements for the period 14 August 2015 to 16 September 2018, they are the subject of a subsequent recalculation which is not before the Tribunal. To the extent that there is an issue between the parties as to the correct amounts payable to Mr and Mrs Louth currently and going forward, the Tribunal has no jurisdiction to deal with that matter.
The Tribunal is also satisfied that no practical purpose would be served by a review of the decision under review because that decision has been superseded.
It is therefore appropriate to dismiss the application under s 42B(1) of the AAT Act because it is now misconceived and has no reasonable prospects of success.
DECISION
The application is dismissed under s 42B(1) of the Administrative Appeals Tribunal Act 1975 (Cth).
I certify that the preceding 29 (twenty-nine) paragraphs are a true copy of the reasons for the decision herein of L Rieper, Member.
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Associate
Dated: 13 October 2021
Date of hearing: Determined without a hearing in accordance with s 34J of the Administrative Appeals Act 1975
Advocate for the Applicant:
Mr Theo Marinis Solicitor for the Respondent Mr David Wilson
Australian Government Solicitor
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