MacDonald and Repatriation Commission (Veterans' entitlements)
[2017] AATA 1451
•18 August 2017
MacDonald and Repatriation Commission (Veterans' entitlements) [2017] AATA 1451 (18 August 2017)
Division:VETERANS' APPEALS DIVISION
File Number(s): 2014/4370
Re:Norman MacDonald
APPLICANT
Repatriation CommissionAnd
RESPONDENT
DECISION
Tribunal:Senior Member A. Nikolic AM CSC
Date:18 August 2017
Date of written reasons: 12 September 2017
Place:Melbourne
The decision under review is affirmed.
[sgd]........................................................................
Senior Member
VETERANS’ ENTITLEMENTS — eligibility for payment of pension bonus –– where applicant received social security benefit after special date of eligibility – decision under review affirmed.
LEGISLATION
Administrative Appeals Tribunal Act 1975
Social Security Act 1991
Veterans' Entitlements Act 1986CASES
Negri v Secretary, Department of Social Services [2016] FCA 879
Kondos v Secretary, Department of Families, Community Services and Indigenous Affairs [2006] AATA 997
Iuele v Secretary, Department of Families, Community Services and Indigenous Affairs [2013] AATA 70
Derrick v Secretary, Department of Families, Community Services and Indigenous Affairs [2009] AATA 375
Rodham v Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 1331SECONDARY MATERIALS
Second reading speech on the Social Security and Veterans' Affairs Legislation Amendment (Pension Bonus Scheme) Bill 1998
REASONS FOR DECISION
Senior Member A. Nikolic AM CSC
Mr Norman MacDonald has asked the Tribunal to review a decision by the Repatriation Commission (the Commission) to refuse his application to register for the Pension Bonus Scheme (the Scheme).[1]
[1] T-documents, hereafter referred to as Exhibit R1, pp.3-5.
The hearing was held on 18 August 2017, at the conclusion of which I delivered my decision ex tempore. On 28 August 2017 Mr MacDonald requested a statement in writing of the reasons for my decision. These are the reasons requested, which accord with the requirements of section 43(2B) of the Administrative Appeals Tribunal Act 1975. In providing them I have had regard to the decision of Bromberg J in Negri v Secretary, Department of Social Services [2016] FCA 879, which considered the extent to which the Tribunal could elaborate upon its oral reasons when producing written reasons. His Honour stated at [27]:
‘...As long as the reasoning remains consistent, there can be no objection to the provision of a more-elaborate exposition of the same reasoning that was orally explained. What is not permissible is altered or new reasoning. The Tribunal is not permitted to substantially divert from the reasoning upon which its decision was made, but is permitted to explain that reasoning differently and, in doing so, is required to address the matters specified in s 43(2B).’
Background to the Application
On 13 July 2010 Mr MacDonald applied to the Commission to register for the Scheme.[2] On 27 February 2013 a delegate of the Commission decided he was ineligible to register, because he had received a disqualifying income support payment after his 60th birthday on 28 May 2008.[3] The Commission advised Mr MacDonald that due to the operation of section 45TC of the Veterans’ Entitlements Act 1986 (the Act):
‘…eligibility to participate is lost where a person has received a payment of social security pension or benefit (other than carer payment) or an equivalent DVA payment since reaching pension age/qualifying age for the bonus…’[4]
[2] Exhibit R1, p.12.
[3] Exhibit R1, pp.20-21.
[4] Exhibit R1, p.20.
Mr MacDonald did not appeal within three months of being notified of this decision as required under section 57A of the Act. His application lapsed as a consequence.
On 30 August 2013 Mr MacDonald made a further application to register with the Scheme and for payment of pension bonus.[5] On 30 October 2013 a delegate of the Commission again found he was ineligible to register or receive the bonus, advising Mr MacDonald:
‘…legislative provisions governing participation in the Pension Bonus Scheme provide that eligibility to participate is lost where the person has received the payment of social security pension or benefit…since reaching pension age / qualifying age for the bonus…
In this regard, Centrelink advised that you received…(Newstart Allowance) from 05/07/2010 to 14/08/2010.[6]
[5] Exhibit R1, pp.23-50.
[6] Exhibit R1, p.52.
Mr MacDonald requested a review of this decision and on 26 June 2014, a Review Officer of the Commission advised him that the decision had been affirmed.[7] In his application to the Tribunal, Mr MacDonald contends that:[8]
[7] Exhibit R1, p.6.
[8] Exhibit R1, p.5.
(a)‘the approval of Newstart Allowance was an administrative error’;
(b)‘the payment of Newstart Allowance was an unlawful payment’;
(c)he was ‘not qualified to receive Newstart Allowance’ under section 593(g) of the Social Security Act 1991;
(d)the verbal and printed information provided by Centrelink staff about the Scheme was misleading;
(e)the verbal and printed information provided by DVA staff about the Scheme was misleading;
(f)the ‘first notification of ineligibility came 4.5 years into the Scheme’;
(g)the ‘first notification of ineligibility came 2.5 years after registration into the Scheme’;
(h)‘an obligation to repay monies paid under Newstart Allowance should have been raised’;
(i)‘repayment of monies received under Newstart Allowance have already been repaid’;
(j)‘the natural appeal process after the first notification of ineligibility was deliberately circumvented by a Senior Review Officer,’ who Mr MacDonald named; and
(k)the aforementioned Senior Review Officer ‘acted as a prejudiced person who deliberately and knowingly gave false information and false responses to circumvent’ Mr MacDonald’s appeal rights.
LEGISLATIVE FRAMEWORK
In his second reading speech on the Social Security and Veterans' Affairs Legislation Amendment (Pension Bonus Scheme) Bill 1998, the then Minister for Family Services stated:[9]
‘…
A person must be registered as a member of the scheme in order to qualify for a bonus payment. Generally, registration will occur when a person qualifies for age pension—currently 65 years for men and 61 years for women—or the relevant Department of Veterans' Affairs payment. During the registration process potential members will be required to provide information relevant to the operation of the scheme. The objective of the registration process is to ensure that people receive advice about the scheme, allowing them to make an informed choice about whether to participate in the scheme. It will also provide them with information on how to comply with the scheme's requirements. (emphasis added)
…
[9] Second Reading Speech by the Hon. W. Smith, Minister for Family Services, 26 March 1998, accessed 30 August 2017.
This case relates to the receipt of Newstart Allowance as a disqualifying benefit under the Scheme. Newstart is defined as a ‘social security benefit,’ because section 5Q(1) of the Act gives that expression the same meaning as it has under the Social Security Act 1991. Section 23 of the Social Security Act 1991 defines a ‘social security benefit’ to also include Newstart Allowance.
Section 5QA(2) of the Act provides that the pension age for a male veteran is when he turns 60.
Section 45TB(1) of the Act provides that a veteran’s Special Date of Eligibility (SDOE) for a designated pension is the first day on which they become eligible for an age service pension.
Section 45TD of the Act provides that a person could only apply for registration under the Scheme prior to 1 July 2014.
Section 45TH(1)(a) of the Act provides that if a veteran’s SDOE for a designated pension occurs on or after 1 July 1998, the person must lodge an application during the period that begins 13 weeks before the person’s SDOE for the designated pension and ends 13 weeks after that date.
Qualification for the Scheme is provided for at section 45TC of the Act:
Qualification for pension bonus
Deferral of age service pension
(1) A person is qualified for a pension bonus if:
(a) the person starts to receive an age service pension at or after the time when the person makes a claim for the pension bonus; and
(b) the person has not received an age service pension at any time before making a claim for the pension bonus; and
(c) the person is registered as a member of the pension bonus scheme; and
(d) the person has accrued at least one full-year bonus period while registered as a member of the pension bonus scheme; and
(e) the person has not received:
(i) a social security pension (other than a carer payment); or
(ii) a social security benefit; or
(iii) a service pension (other than an age service pension or a carer service pension); or
(iv) income support supplement (other than income support supplement that is payable as a result of the operation of subclause 8(3) of Schedule 5);
at any time after the person's special date of eligibility for an age service pension; and
Note: Even though the person may not have actually received an amount of social security pension or benefit because the rate of the pension or benefit was nil, in some cases the person will be taken to have received the pension or benefit if adjusted disability pension (within the meaning of section 118NA) was payable to the person or the person's partner: see subsection 23(1D) of the Social Security Act.
(f) the person has not already received:
(i) another pension bonus; or
(ia) DFISA bonus; or
(ii) a pension bonus within the meaning of the Social Security Act.
THE ISSUE
The issue before me is whether Mr MacDonald was eligible to register with the Scheme and to receive pension bonus.
EVIDENCE OF MR MACDONALD
During the hearing Mr MacDonald tendered a folder of material that was accepted into evidence.[10] It approximated an Applicant’s Statement of Facts, Issues and Contentions, with nine tabbed folders containing documents that Mr MacDonald considered relevant to this matter. Much of the material related to Mr MacDonald’s contention that he should never have been paid Newstart Allowance from July 2010, and, if those payments had not been made, he would be eligible for the Scheme. He claims to have repaid the amount received in Newstart Allowance, including a deemed interest rate of 4%, contending he ‘was not entitled to receive this payment...’[11] This issue was previously considered by the Tribunal in October 2016,[12] with the member finding at [11] that:
‘…the decision to grant Newstart allowance to the applicant was technically correct. The applicant did not contest in any way that he had not applied for, or met the eligibility criteria for, Newstart allowance. The current application before the Tribunal to review whether the decision to grant the applicant Newstart allowance was correct, cannot succeed.’
[10] Exhibit A1.
[11] Exhibit A1, pp.12-13.
[12] Re MacDonald and Secretary, Department of Social Services [2016] AATA 776 (3 October 2016).
I reminded Mr MacDonald at the commencement of the hearing that the reviewable decision before me related solely to the Commission’s refusal of his application to register for the Scheme. I further reminded him that it was not appropriate to re-hear:
(a)his application regarding the legality of Newstart payments made to him, which had previously been decided by the Tribunal, and which Mr MacDonald had chosen not to appeal; or
(b)his application under the Compensation Detriment caused by Defective Administration (CDDA) Scheme, which had been previously decided in June 2016.
As an unrepresented Applicant, I gave Mr MacDonald significant latitude in making whatever remarks and submissions he felt supported his case. These often strayed into matters with questionable relevance to his current application before the Tribunal. In his oral evidence Mr MacDonald submitted that:
(a)Despite completing ‘corps training’ as an infantry soldier, he was never posted to a rifle company, but was ‘targeted’ for ‘specialist roles’ by ‘a couple of warrant officers’ who had been watching him;
(b)These roles included involvement in a secret organisation under the CSIRO, which undertook ‘quietly on the side…medical experiments and other things’ at places like the School of Military Engineering;
(c)One of these experiments involved the administering of chemical nerve agents to Australian Army soldiers, which could kill a person within ’20 seconds;’
(d)The soldiers exposed to these nerve agents were taken to ‘within five seconds of death’ before being given an ‘antidote to the nerve agent’ in the form of ‘spring-loaded injections;’
(e)Mr MacDonald had acted as a ‘number 2’ during these experiments, explaining that a ‘number 2 and number 3’ acted as ‘take down men…rugby players who knew how to handle bodies that were out of control.’ I inferred from Mr MacDonald’s description that his role was to restrain the violent convulsions of soldiers approaching death from intentional exposure to chemical weapons, so that an ‘antidote’ could be administered;
(f)Approximately 60 per cent of Mr MacDonald’s medical records, which related to ‘very top secret and sensitive medical tests…chemical weapons testing…gas testing…nerve agents,’ were missing when he accessed his file through a Freedom of Information request; and
(g)Conversations with a ‘Lieutenant Colonel in Russel Hill’ and an unnamed ‘long-lost friend’ from the Central Army Records Office had privately disclosed to Mr MacDonald that many of his medical records had inexplicably ‘disappeared.’
When I asked Mr MacDonald to more clearly illuminate the link between these issues and his application before the Tribunal, he explained that because of his involvement in these secret tests and his expectation that his medical records would subsequently ‘disappear,’ he anticipated that he ‘might have difficulty’ in getting DVA applications approved. He contended that these difficulties had been exacerbated by Centrelink’s payment of Newstart Allowance to him, which he considered was unlawful. He submitted that if the disqualifying payment was ‘rescinded, changed or removed, then there appears no other obstacle’[13] to his application under the Scheme succeeding.
[13] Exhibit A1, p.5.
Mr MacDonald spoke in detail about his approaches to both Centrelink and DVA between 5 – 13 July 2010 to make enquiries and collect brochures about options open to him after losing his job. He claimed to have accumulated ‘a lot of brochures…[and]…all of the fact sheets that were on the website for DVA…[and talked]…to people on the telephone at DVA…[and]…called into their office in the city.’ MacDonald recounted in detail the conversations he had with staff from both agencies regarding his entitlements, including specific advice he claims to have received about the effects of certain payment on other entitlements. He said that during the visit to the DVA office, he brought along the ‘brochure from DSS’ about the Pension Bonus Scheme administered by Centrelink, to compare with the brochure from DVA. He said they were ‘worded very very similar…the only difference was the age.’ Mr MacDonald stated that when he asked the DVA representative about Newstart Allowance, the response he received was ‘we don’t handle Newstart, you’ll have to ask DSS…or Centrelink.’ He said that in response to a further question about the impact of receiving age pension, the DVA representative ‘was quite honest’ in advising him that ‘if you apply for the age pension that will automatically cancel the pension bonus.’
Mr MacDonald stated that he ‘hadn’t registered’ for the Scheme when he turned 60, because ‘that was something new’ to him, but he nevertheless applied to register in 2010. He claimed not to have ‘a lot of experience with Centrelink at that stage...and thought it was…a conduit for…DVA...’ Ultimately, he considered the information provided by both agencies to be ‘false and misleading.’[14] His contention is partly based on Newstart Allowance not being specifically listed as an exclusionary benefit on the pamphlets he collected. Mr MacDonald stated he ‘expected to see a list’ and considers it was not ‘an accidental thing that Newstart Allowance was missing off that list.’ He contends that omission and the subsequent actions of staff from both agencies were purposefully intended to deprive him of his legitimate claim under the Scheme. He describes those actions as ‘collusion,’ stating: ‘they…deliberately lied to me, and this lack of action…appeared to be a deliberate attempt to void my appeal lodgement time….My allegation is that there was collusion between DVA and DSS to deprive a future claim for pension bonus by the fact that DSS would approve the Newstart Allowance and therefore negate any claim for pension bonus after that date.’ Mr MacDonald claimed to have ‘evidence to prove…there was communication between both…[agencies]…prior to…[his]…Newstart Allowance being approved.’ In this regard he tendered a single-page Centrelink computer printout referring to a claim he apparently made for Disability Support Pension (DSP) in July 2010, which was accepted into evidence.[15] Mr MacDonald said this document had been part of the T-documents tendered in an earlier application before the Tribunal. Extended discussion ensued in relation to the probative value of this exhibit.
[14] Ibid.
[15] Exhibit A2.
Notwithstanding an earlier decision of the Tribunal that Newstart payments made to Mr MacDonald were ‘correct,’ he continues to maintain they were unlawful. He agreed, however, that he had signed and submitted an application for Newstart Allowance and received payments commencing from 5 July 2010. But Mr MacDonald insists he only agreed to receive these payments because of specific advice from the Centrelink representative that it would not affect his entitlements under the Scheme.
RESPONDENT’S SUBMISSIONS
Mr Rudge for the Commission submitted that interactions between DVA and Centrelink were nothing more than interagency ‘communication’ that occurred ‘all the time’. He contended that the advice provided to Mr MacDonald by the Centrelink representative regarding the effect of Newstart Allowance on his pension bonus entitlement was entirely correct, because that advice related to the separate scheme administered by Centrelink, for which the relevant age was 65. Mr Rudge also highlighted that consistent with Mr MacDonald’s own evidence, questions he put to the DVA representative about Newstart Allowance had not been responded to, with Mr MacDonald referred to Centrelink.
Mr Rudge contended that the decision to pay Mr MacDonald income support was entirely appropriate given the circumstances and there was no dispute from him that he had received those benefits – perhaps until November 2010 given evidence at the hearing about overpayments and subsequent Centrelink recovery action.
Mr Rudge handed up a number of cases he sought to rely upon, particularly relating to the issue of discretion when considering qualifying requirements for the Scheme. These included:
(a) Kondos v Secretary, Department of Families, Community Services and Indigenous Affairs [2006] AATA 997, in which the Tribunal concluded at [7] that ‘the Act provides no discretion in relation to the requirement that a person not have received an age pension at any time before making a claim for the pension bonus.’
(b) Iuele v Secretary, Department of Families, Community Services and Indigenous Affairs [2013] AATA 70, in which the Tribunal concluded at [21] that: ‘There is no flexibility in the legislation concerning the receipt of age pension prior to registration for the Pension Bonus Scheme. The Tribunal does not have discretion to ignore the criteria set out in the Act.’
(c) Derrick v Secretary, Department of Families, Community Services and Indigenous Affairs [2009] AATA 375, in which the Tribunal concluded at [31] that: ‘…Mr Derrick was not eligible for the pension bonus because he had prior to applying for pension bonus received age pension for which he became eligible. There is no discretion for the Tribunal to consider the broader circumstances unless they relate to matters such as the erroneous payment referred to in Rodham. Here, although the payment may not have complied with the best administrative practice, it could not be categorised as erroneous as was the case in Rodham.’ Mr Rudge made the point that the ‘lack of advice to Mr Derrick did not make the payment an erroneous payment.’
(d) Rodham v Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 1331, in which the Applicant’s disqualifying payment for the Pension Bonus Scheme was found to result from a clear Centrelink error, because Mr Rodham had no intention of applying for a payment, which was subsequently and erroneously made to him. Mr Rudge contended that Mr MacDonald’s matter was not similarly infected by a discernable Centrelink error.
TRIBUNAL’S CONSIDERATION
I acknowledge that there is no onus of proof on Mr MacDonald in relation to his claim for a benefit under the Act. But beyond his assertions about secret nerve agent experiments and missing medical records, there was no objective, independent evidence adduced that would enable me to place any weight on these matters as factors relevant to his application. I therefore place no weight on this evidence.
I can understand from Mr MacDonald’s evidence how the existence of two pension bonus schemes, coupled with the often-complex interaction between Centrelink and DVA-administered entitlements, and the nature of the advice he claims to have received from both agencies, may have caused him some confusion. I have noted his contention that Centrelink owed him a duty to consider how the granting of income support payments might interact with other entitlements beyond Centrelink’s legal authority – including those administered by DVA. He maintains that Centrelink failed to exercise that duty and he was misled as a consequence. However, matters relating to the granting of Newstart Allowance to Mr MacDonald were previously considered by the Tribunal in 2016,[16] which found that he was qualified for Newstart Allowance and the payments made to him were ‘correct.’ It was perhaps unavoidable that this hearing traversed much of the same ground covered in that 2016 hearing, but the evidence again showed that the Newstart Allowance received by Mr MacDonald was not only ‘correct’ but unexceptional. He was unemployed at the time and after consulting with Centrelink, signed an application for assistance. He was found eligible to receive payments, which were subsequently made to him. There is nothing in the evidence presented by Mr MacDonald at this hearing to inform a conclusion that the Newstart Allowance he received was erroneous or unlawful or capable of being rendered legally void.
[16] Re MacDonald v Secretary, Department of Social Services [2016] AATA 776 (3 October 2016).
I have considered Mr MacDonald’s submission that he reasonably expected Newstart Allowance to have been specifically identified as a disqualifying payment in the material he sourced from Centrelink and the DVA. I do not accept that submission. It is neither reasonable nor required by law that every disqualifying payment be detailed in such pamphlets, which are not intended to be comprehensive sources of information regarding financial entitlements. As for his contention that the two pension bonus schemes were indistinguishable except for the age that applied to each and he thought Centrelink was a ‘conduit’ for DVA, the evidence shows that Mr MacDonald made separate enquiries and applications to both agencies during the period in question. That included sourcing information by visiting each agency, downloading information from websites, and collecting numerous pamphlets. He was aware of the difference in age between the two schemes – 60 years of age for the DVA-administered scheme and 65 years of age for the Centrelink-administered scheme. Both pamphlets explicitly stated a pension bonus could only be paid to those who had not received an ‘income support payment.’ He gave evidence that a Commission representative had informed him that receipt of a DVA pension, for example, would automatically cancel his entitlement to pension bonus. When he asked the DVA representative about Newstart Allowance, she was quick to advise him ‘we don’t handle Newstart, you’ll have to ask Centrelink.’ I am reasonably satisfied therefore that Mr MacDonald should have been aware that the pension bonus schemes under social security and veterans’ legislation were different in important respects and were administered by two separate agencies.
Section 45TC(1)(c) of the Act requires that a veteran must first be registered as a member of the Scheme to qualify for pension bonus. I find from the available evidence that Mr MacDonald was never registered and was therefore ineligible to receive pension bonus.
Section 45TH(1)(a) of the Act requires that if a person’s SDOE for a designated pension occurs on or after 1 July 1998, they must lodge an application to register for the Scheme during the period beginning 13 weeks prior to their SDOE and ending 13 weeks after that date. Mr MacDonald was therefore required to lodge his application to register for the Scheme 13 weeks either side of his 60th Birthday on 28 May 2008. In his oral evidence, Mr MacDonald acknowledged he had not done so. A letter accompanying his 2010 application to register for the Scheme similarly stated:
‘I am now to understand that I should have applied for the “Pension Bonus Scheme” prior to September 2009…unfortunately I was unaware of the scheme’s existence prior to last week as I have never approached or discussed retirement with the Department or anyone else.’[17]
[17] Exhibit R1, p.12.
There is no discretion in relation to the timing provisions of the Act for application and registration. A person ‘must’ apply within the periods specified. I therefore find that Mr MacDonald’s first application to register for the Scheme on 13 July 2010 was over two years after his SDOE and his second application on 30 August 2013 was over five years after his SDOE. It follows that Mr MacDonald’s applications to register for the Scheme did not comply with section 45TH(1)(a) of the Act.
The evidence shows that Mr MacDonald was already in receipt of Newstart Allowance when lodging his first application to register under the Scheme in 2010, with Centrelink records showing his Newstart Allowance commenced on 5 July 2010.[18] This constitutes a disqualifying payment for the Scheme under section 45TC(1)(e)(ii) of the Act.
[18] Exhibit R1, p.22.
I have considered Mr MacDonald’s submission that ‘monies received under Newstart Allowance have already been repaid.’ But there is no discretion in the Act to enable a veteran to regain qualification for the Scheme by repaying a disqualifying benefit. It is the receipt of a social security benefit, which Mr MacDonald does not contest, that disqualifies him from the Scheme.
As detailed earlier, I afforded Mr MacDonald significant latitude in putting his case as an unrepresented applicant. But his contention regarding collusion between the Department of Veterans’ Affairs and the Department of Social Services to intentionally deprive him of a future claim for pension bonus is entirely without merit. The document he tendered during the hearing,[19] which he considered was proof of that collusion, was nothing more than an internal record about an unrelated DSP application, which is solely a Centrelink-administered entitlement. It did not prove, as Mr MacDonald contended, that officers of these agencies acted with mala fide intent. The document records that pending consideration of Mr MacDonald’s DSP claim, he had been ‘granted Newstart Allowance from 5 July 2010 to 16 July 2010.’ A subsequent note relates to reminders about his reporting obligations pending resolution of the DSP claim. This document does not show any communication between DVA and Centrelink, or discussion regarding any DVA-related entitlement. There is nothing in Mr MacDonald’s evidence that supports his contention that staff in Centrelink and DVA deliberately colluded to void his lodgement time to register for the Scheme. The evidence shows these two agencies communicated in an entirely appropriate way to administer his applications.
[19] Exhibit A2.
CONCLUSION
Mr MacDonald was never registered for the Scheme as required by section 45TC(1)(c) of the Act. His applications to register in 2010 and 2013 did not comply with the requirements of section 45TH(1)(a) of the Act.
Mr MacDonald received a social security benefit after his SDOE, which constitutes a disqualifying payment for Pension Bonus by reason of section 45TC(1)(e)(ii) of the Act. It therefore follows that the decision to refuse his application to register under the Scheme was correct.
DECISION
The decision under review is affirmed.
37.
38. I certify that the preceding 36 (thirty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Nikolic AM CSC
[sgd]........................................................................
Associate
Dated: 12 September 2017
Date of hearing: 18 August 2017 Applicant: In person Advocate for the Respondent: Mr Ken Rudge, Department of Veterans' Affairs
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