Lowth and Repatriation Commission (Veterans' entitlements) - [2024] AATA 2692

Lowth and Repatriation Commission (Veterans' entitlements) [2024] AATA 2692 (25 July 2024)
Division:GENERAL DIVISION
File Number:2023/1502
Re:Bruce Lowth
APPLICANT

Repatriation CommissionAnd
RESPONDENT

DECISION
Tribunal:Member McLean Williams
Date:25 July 2024
Place:Brisbane

The decision under review is affirmed.
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Member McLean Williams
CATCHWORDS
VETERANS’ AFFAIRS – Defence-related claims – accepted medical condition – correct date of effect – period for an application lodgement – whether discretion to extend time limit to lodge application is permissible – decision under review affirmed.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Electronic Transaction Act 1999 (Cth)
Military Rehabilitation and Compensation Act 2004 (Cth)
Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (Cth)
Veterans’ Entitlement Act 1986 (Cth)
CASES
Boylan v Repatriation Commission [2023] AATA 2052
De Waard v Repatriation Commission [2021] AATA 316
Re Cecil William Roberts v Repatriation Commission [1992] AATA 76
REASONS FOR DECISION
Member McLean-Williams
25 July 2024
PRELIMINARY

The Applicant, Mr Bruce Lowth, is a serving member of the Royal Australian Air Force (‘RAAF’), who seeks review before the Tribunal of a decision made on 21 October 2022 by the Veteran’s Review Board (‘VRB’). By that decision the VRB had affirmed an earlier decision – as had been made on 9 March 2022 – that determined that the date of effect for Mr Lowth’s accepted condition of irritable bowel syndrome (‘IBS’) under the Veterans’ Entitlement Act 1986 (‘the VEA’) must be set as being from 15 July 2020.
There is no dispute that Mr Lowth continues to suffer from IBS, which is an artefact of his having originally suffered severe gastroenteritis whilst engaged in military service whilst serving in the Middle East during the 1980s. The only issue in dispute is the correct date of effect for the acceptance of that condition.
FACTUAL BACKGROUND
Mr Lowth was born on 30 August 1962, and is 61 years of age.
Mr Lowth served in the permanent air force from 23 January 1979 until 22 December 2006. Thereafter, Mr Lowth has served in the RAAF reserve, from 22 December 2006 until now.
Mr Lowth has a number of accepted medical conditions under the Veterans’ Entitlements Act 1986 (‘the VEA’), the Military Rehabilitation and Compensation Act 2004 (‘the MRC Act’), and under the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (‘the DRC Act’). From amongst these, it is only the condition of IBS, which was first accepted under the DRC Act on 28 July 1983 that is here relevant.
On 23 September 2019 Mr Lowth lodged a claim for a disability pension referable to his accepted condition of IBS.[1]
[1] Exhibit 1: T4, pages 21-26.
On 7 August 2020 the following determinations (‘the determinations’) were made:
(i)Claim for IBS denied, under the VEA. [2]
(ii)Claim for IBS denied, under the MRC Act;[3] and
(iii)Claim for IBS denied, under the DRC Act.[4]
[2] Exhibit 1: T8, pages 39-43.
[3] Exhibit 1: T9, pages 44-48.
[4] Exhibit 1: T10, pages 49-53.
On 9 October 2020 the Department e-mailed Mr Lowth and advised that the 7 August 2020 determinations were available for perusal by means of Mr Lowth’s ‘MyService’ portal. Further copies of the determinations were also attached to the 9 October 2020 e-mail.[5] For present purposes it is uncontentious that Mr Lowth was aware of the determinations on 9 October 2020.
[5] Exhibit 1: T14, page 54.
On 15 January 2021 Mr Lowth requested a review of the determinations,[6] noting in particular that his service record had included periods of operational service, yet the determinations had held that his IBS was not related to his service.
[6] Exhibit 1: T12, page 60.
On 22 July 2021 Mr Lowth requested a further application for review for entitlement of his IBS condition to also be considered under the VEA.[7]
[7] Exhibit 1: T18, page 73.
On 8 December 2021 the VRB determined that the 7 August 2020 decision under review should be set aside, substituting a decision that Mr Lowth’s condition of IBS was in fact caused by hazardous service connected with his RAAF service, and remitted the matter back to the Repatriation Commission for assessment of the rate of disability pension to be paid from 23 June 2019[8] under the VEA.
[8] Exhibit 1: T21, page 79.
On 2 February 2022 Mr Lowth was advised that it was not possible for the same condition to be accepted under both the MRC Act and the VEA and that it must be accepted only under one or the other.[9] On 3 February 2022 Mr Lowth consented to the dismissal of his application under the MRC Act,[10] such that accordingly, on 7 February 2022, Mr Lowth’s application to the VRB for review of the MRC Act decision was dismissed.[11]
[9] Exhibit 1: T23, page 100.
[10] Ibid.
[11] Exhibit 1: T25, page 104.
On 9 March 2022 the VRB reviewed the decision made by the VRB on 8 December 2021, and Mr Lowth’s condition of IBS was accepted as service-related with effect from 15 July 2020.[12] The 9 March 2022 determination of the VRB was made having regard to s.157(2)(a) of the VEA, which provides:
(2)Where the Board, upon its review of a decision of the Commission, sets aside that decision and substitutes another decision for it, or varies that decision:
(a)if the effect of the substituted decision, or the varied decision, as the case may be, is to grant a pension or attendant allowance to a person, the Board may fix, as the date from which the Board's decision is to operate:
(i)if the person made application for the review within 3 months after service on the person of a copy of the Commission's decision--a date not earlier than the earliest date as from which the Commission could, if it had not refused to grant a pension or attendant allowance, as the case may be, to the person, have approved payment of a pension or of attendant allowance to the person; or
(ii)in any other case--a date not more than 6 months before the date on which the person's application for review of the Commission's decision was received at an office of the Department in Australia
[12] Exhibit 1: T27, page 107.
The 9 March 2022 determination had also applied s.31(3) of the VEA, which provides:
(3)The Commission may, for the purpose only of correcting a manifest error, vary the date approved by the Board as the date as from which a decision of the Board made in substitution for a decision of the Commission is to operate.
On 11 March 2022 Mr Lowth lodged with the VRB an application for review of the Repatriation Commission determination dated 9 March 2022.[13]
[13] Exhibit 1: T28, pages 110-113.
By a decision made on 11 April 2022 Mr Lowth’s rate of disability pension was increased to 100% of the general rate, with effect from 15 July 2020.[14]
[14] Exhibit 1: T30, pages 120-125.
On 21 October 2022 the VRB affirmed the earlier determination dated 9 March 2022,[15] in respect of the date of effect for acceptance of Mr Lowth’s claim for IBS, which had been set as being 15 July 2020 by the Repatriation Commission in its decision on 9 March 2022. It is this decision that is now under review before the Administrative Appeals Tribunal.
[15] Exhibit 1: T33, pages 130-138.
The 21 October 2022 VRB decision was also made against the backdrop of s.135 of the VEA, which provides:
Review of decisions in respect of pensions and attendant allowances
(1)Where a person:
(a)who has made a claim for a pension in accordance with section 14;
(b)who has made application for a pension, or for an increased pension, in accordance with section 15; or
(c)who has made an application for attendant allowance under section 98;
is dissatisfied with any decision of the Commission in respect of the claim or application (including a decision under section 20 or 21 approving a date from which payment of a pension, or payment of a pension at a higher rate, may be made, but not being a decision under subsection 19A(1)), the person may, subject to this Act, make application to the Board for a review of the decision of the Commission.
(2)Where the Commission, upon a review under section 31 of a decision in relation to a pension or attendant allowance, has made a further decision:
(a)revoking that decision; or
(b)revoking that decision and substituting a new decision; or
(c)varying that decision;
the veteran, or the dependant of a deceased veteran, as the case may be, affected by that further decision may make application to the Board for a review:
(d)of the further decision of the Commission revoking that previous decision; or
(e)of the new decision of the Commission that was substituted for that previous decision; or
(f)of that previous decision as varied by the further decision of the Commission.
(3)Where the Commission makes a determination:
(a)under subsection 31(6) cancelling or suspending, or decreasing the rate of, a pension or attendant allowance;
(b)under subsection 31(8) increasing the rate of a pension or attendant allowance; or
(c)under subsection 31(9) fixing the date of re - commencement of a pension or attendant allowance that has been suspended;
the veteran, or the dependant of a veteran, as the case may be, affected by that determination may make application to the Board for a review of that decision of the Commission to cancel or suspend that pension or attendant allowance, to decrease or increase the rate of that pension or attendant allowance or fixing the date of re - commencement of that pension or attendant allowance that has been suspended, as the case may be.
(4)Subject to subsections (5) and (5A), an application under subsection (1) or (2) to the Board to review a decision of the Commission may be made within 12 months after service on the person to whom the decision relates of a copy of that decision in accordance with subsection   34(2), but not otherwise.
(5)An application under subsection (1), (2) or (3) to the Board to review a decision of the Commission:
(a)assessing a rate of pension or increased rate of pension;
(b)refusing to grant a pension on the ground that the extent of the incapacity of the veteran is insufficient to justify the grant of a pension;
(c)refusing to increase the rate of a pension;
(d)reducing the rate of a pension; or
(e)cancelling or suspending a pension, or fixing the date of re - commencement of a pension that has been suspended;
may be made within 3 months after service on the person to whom the decision relates of a copy of that decision in accordance with subsection 34(2), but not otherwise.
(5A)An application by a person under subsection (1), (2) or (3) to the Board to review a decision of the Commission, whether the decision was made before or is made after the commencement of this subsection, refusing to grant an application for attendant allowance under section 98 may be made within a period of 3 months after service on the person of notice of the decision or within a period of 3 months after the commencement of this subsection, whichever last expires, but not otherwise.
(6)If:
(a)the Commission, upon a review under section   31 of a decision (the original decision ) of a kind referred to in subsection   (1), (2) or (3), has made a further decision:
(i)revoking that decision; or
(ii)revoking that decision and substituting a new decision; or
(iii)varying that decision; and
(b)application had not, before the further decision was made, been made to the Board for a review of the original decision;
application is not to be made for a review of the original decision but may be made for a review:
(c)of the further decision of the Commission revoking the original decision; or
(d)of the new decision of the Commission that was substituted for the original decision; or
(e)of the original decision as varied by the further decision of the Commission.
(7)If:
(a)the Commission, upon a review under section   31 of a decision (the original decision ) of a kind referred to in subsection   (1), (2) or (3), has made a further decision:
(i)revoking that decision; or
(ii)revoking that decision and substituting a new decision; or
(iii)varying that decision; and
(b)an application had been made to the Board for a review of the original decision but the hearing of the application:
(i)had not commenced before the further decision was made; or
(ii)had commenced but was not completed before the further decision was made;
the application is to be treated as if it were an application made for a review:
(c)of the further decision of the Commission revoking the original decision; or
(d)of the new decision of the Commission that was substituted for the original decision; or
(e)of the original decision as varied by the further decision of the Commission.
FINDINGS OF THE VRB
Ultimately, the VRB had determined that Mr Lowth’s application for review had not been made within three months as required, and in circumstances in which there was no power under the VEA to exercise any discretion to extend the time limit for the making of an application for review.
The VRB also found that an application for review in respect of an entitlement issue – if lodged outside the three month time limit – is not invalid, yet in those circumstances s.157(2) of the VEA operates to limit the date of effect of any decision by the VRB substituted for a decision of the Repatriation Commission to a date that is no more than 6 months prior to the date of receipt of the application for review to the VRB. As Mr Lowth had submitted his application for review to the VRB on 15 January 2021, the date six months prior to the date of lodgement was 15 July 2020, meaning that because of s.157(2) this date becomes the deemed date of acceptance for the claim for IBS. In all these circumstances, the VRB merely affirmed the prior decision of the Repatriation Commission, as had been made on 9 March 2022.
APPLICANT’S CONTENTIONS
In now seeking a further review of the VRB decision before the Administrative Appeals Tribunal, Mr Lowth contends that although his application for review was six days after the last date for ‘ordinary’ receipt of an Application for Review, it should nonetheless still be accepted; and that the period between 23 December 2020 and 15 January 2021 should be excluded from the calculation of the three month timeframe for lodgement of an application for review, by reason that Mr Lowth was ‘on leave’ until 3 January 2021, and as such did not have the means to access his defence department e-mail account, to which the e-mail dated 9 October 2020 had been sent, advising him of the determinations dated 7 August 2020.
Mr Lowth further contends that on 14 August 2020 he had requested that his personal e-mail address be added to all future correspondence, yet the 9 October 2020 e-mail advising him of the determinations had still been sent to his defence e-mail address only, to which Mr Lowth does not always have regular access.
Furthermore, Mr Lowth contends that the determinations letter enclosed with the 9 October 2020 e-mail had represented:
‘You have 12 months from the date of this letter in which to apply for a review. However, to gain maximum benefit, you should lodge your application for review within 3 months’.
RESPONDENT’S CONTENTIONS:
The Respondent accepts that the determination letters were sent as attachments to an e-mail sent to Mr Lowth’s defence department e-mail address on 9 October 2020, however the Respondent notes that these were simultaneously available to Mr Lowth by means of his ‘MyService’ portal, which had remained accessible even whilst Mr Lowth was on annual leave, and thus unable to access his defence department e-mail.
Although it is conceded that the determinations letters attached to the 9 October 2020 email had specified that Mr Lowth had made the representation specified in paragraph [23] (above), the Respondent submits that the very next paragraph had then specified:
‘Details of the appeal process, including applicable timeframes, and how to provide feedback to DVA or an external organisation can be downloaded via
The Respondent contends that section 14 of the Electronic Transaction Act 1999 (‘the ETA’) is also applicable, such that the time when Mr Lowth first received advice of the existence of the determinations was on 9 October 2020, by means of the e-mail sent to his defence department e-mail address on that date; and Mr Lowth was not thereafter constrained to only lodging any further application for review to one emanating from his defence department e-mail address; as the VEA merely requires that advice of lodgement of an application for review be given to the Department ‘in writing’, which might conceivably have taken the form of an e-mail from another e-mail address, or even a lodgement by Mr Lowth by means of letter, sent by ordinary post.
Although the excision of the period of Mr Lowth’s annual leave from the calculation of the 3-month review period would enable Mr Lowth’s application for review to be deemed to have been made within time, the Respondent submits that s.157(2) of the VEA simply does not permit that to happen. Nowhere in the VEA is there any provision enabling the waiver of time limits. In Re Cecil William Roberts v Repatriation Commission [1992] AATA 76 it was observed (at [31]) that:
‘The time limits set by the Act must be complied with strictly. They are in fact generous in their terms. Although a detrimental effect flows to applications if they are not met, that does not outweigh considerations such as certainty in the decision-making process and a recognition that if claims are to be pursued that it must be done in a timely manner’.
The Respondent submits that the fact that there is no discretion to consider an out-of-time application, or any ability to consider an earlier date of effect for a determination, is a matter that has been similarly confirmed in both Boylan v Repatriation Commission [2023] AATA 2052; and in De Waard v Repatriation Commission [2021] AATA 316.
CONSIDERATION
The Tribunal determines that in accordance with s.14 of the ETA, Mr Lowth was advised of the fact of the 7 August 2021 determinations by way of the e-mail that he had received addressed to his defence department e-mail address on 9 October 2020, which was many weeks before his taking annual leave, which did not commence until 23 December 2020. Mr Lowth also had access to the determinations at all times by means of his ‘MyService’ portal.
There is no legislative power available to the Tribunal under the VEA to extend time or to accept a late application nunc pro tunc.
In accordance with s.135 of the VEA, the three-month period within which Mr Lowth was required to lodge any review of the decisions notified to him on 9 October 2020 was to be within 3 months after 9 October 2020. Yet, Mr Lowth did not submit his application for review until 15 January 2021, in circumstances in which there is no statutory discretion that might be invoked to accept the application outside the specified three-month period. In these circumstances, in accordance with s.157(2)(a)(ii) of the VEA, the earliest date from which Mr Lowth’s condition of IBS can be accepted becomes 6 months prior to 15 January 2021, meaning that Mr Lowth’s IBS condition can only be accepted from 15 July 2020, which is the date that has already been affirmed as the correct commencement date by the VRB, in its decision made on 21 October 2022.
In all the circumstances the correct and preferable decision is that the date for acceptance of Mr Lowth’s IBS condition is 15 July 2020.
DECISION

The decision under review is affirmed.

1. I certify that the preceding 33 (thirty-three) paragraphs are a true copy of the reasons for the decision herein of Member McLean Williams

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Associate
Dated: 25 July 2024

Dates of hearing:

On the Papers

Applicant:

Self-represented

Solicitors for the Respondent:

Sparke Helmore Lawyers

Dates of hearing:	On the Papers
Applicant:	Self-represented
Solicitors for the Respondent:	Sparke Helmore Lawyers