Lowth and Repatriation Commission (Veterans' entitlements)

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.