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.
.................[SGD].................
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]…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Lowth and Repatriation Commission (Veterans' entitlements) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2024] AATA 2692
Decision Date: 25 July 2024

CaseChat Overview and Summary

This matter concerned an appeal by Mr Lowth against a decision of the Repatriation Commission regarding the date of effect for the acceptance of his Irritable Bowel Syndrome (IBS). While it was not disputed that Mr Lowth suffered from IBS as a result of severe gastroenteritis during his military service in the 1980s, the sole issue before the Tribunal was the correct date from which this condition should be accepted for entitlement purposes. Mr Lowth had lodged a claim for a disability pension in September 2019, and subsequent determinations in August 2020 denied his claim under the Veterans' Entitlements Act 1986 (VEA), the Military Rehabilitation and Compensation Act 2004 (MRC Act), and the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (DRC Act).

The Tribunal was required to determine whether Mr Lowth's application for review of these determinations was lodged within the statutory time limits, and if not, whether there was any discretion to extend those limits or to backdate the acceptance of his condition to an earlier date. The core legal question was the interpretation and application of the timeframes for lodging review applications under the VEA and the availability of any discretion to permit out-of-time applications or to set an earlier date of effect for acceptance of a condition.

The Tribunal reasoned that Mr Lowth was formally advised of the August 2020 determinations on 9 October 2020, and had continuous access to these determinations via his 'MyService' portal. Under section 135 of the VEA, a three-month period is prescribed for lodging a review application from the date of notification. Mr Lowth did not lodge his review application until 15 January 2021, which was outside this statutory timeframe. The Tribunal held that there is no legislative power under the VEA to extend time or accept a late application retrospectively. Consequently, in accordance with section 157(2)(a)(ii) of the VEA, the earliest date from which Mr Lowth's IBS condition could be accepted was six months prior to the date of his review application, which was 15 July 2020. This date had already been affirmed by the Veterans Review Board.

Accordingly, the Tribunal affirmed the decision under review, establishing 15 July 2020 as the correct date of effect for the acceptance of Mr Lowth's IBS condition.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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.