MCDERMID and REPATRIATION COMMISSION

[2011] AATA 834

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 834

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  2011/0974

VETERANS’ APPEALS DIVISION		)
Re		WILLIAM MCDERMID

Applicant

And  REPATRIATION COMMISSION

Respondent

DECISION

Tribunal  Senior Member Bernard J McCabe

Date 25 November 2011

Place Brisbane

Decision  The Tribunal does not have jurisdiction to hear the matter.

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Senior Member

CATCHWORDS

VETERANS’ AND MILITARY COMPENSATION ― service pension ― compensation payments ― excluded income ― no jurisdiction

Safety Rehabilitation and Compensation Act 1988

Veterans’ Entitlements Act 1986, ss 5H, 30D, 74

Neil and Repatriation Commission (1998) 27 AAR 88

REASONS FOR DECISION

25 November 2011 Senior Member Bernard J McCabe

1.The applicant, Mr McDermid, is a veteran who suffers from a number of health problems. He receives benefits under both the Safety Rehabilitation and Compensation Act 1988 (“the SRCA”) and the Veterans’ Entitlements Act 1986 (‘the VEA”). That creates a challenge: because the service pension paid under the VEA is income-tested, the respondent needs to work out how to account for the payments received by the applicant under the SRCA. In the past, individuals in the applicant’s position were disadvantaged because the benefits under the SRCA were effectively double-counted. That anomaly has now been straightened out, but Mr McDermid doubts his case has been handled properly.

2.He has two concerns. The first of them relates to the interpretation of s 74 of the VEA. The respondent says Mr McDermid receives payments under the SRCA in respect of lumbar spondylosis which exceed the amount he would be entitled to receive under Part IV of the VEA. Because those amounts qualify as compensation payments within the meaning of s 74(1), a pension is not payable under Part IV of the VEA by reasons of s 74(8). The respondent says the Commission has not decided to withhold payments under Part IV of the VEA. The Act simply mandates that outcome given the facts. There is no reviewable decision as such, so there is nothing to give the Tribunal jurisdiction.

3.Mr Williams, for the Commission, relied on the decision of Justice Matthews, the president of the Tribunal, in Neil and Repatriation Commission (1998) 27 AAR 88. That case dealt with s 30D of the VEA. Her Honour decided that since the provision was self-executing in the sense that the law mandated an outcome without requiring a decision of the Commission to implement it, there was no reviewable decision that was subject to the Tribunal’s jurisdiction. Mr Williams says the same reasoning applies in this case: the terms of s 74(8) in particular direct an outcome.

4.Understandably, Mr McDermid did not squarely address the jurisdictional issue in his submissions. He focused instead on what he believes is the error in the respondent’s approach to his case. He explained in his submissions that at least part of the payments, or the pension, should be attributed to a shoulder condition rather than a lumbar spine condition. He argues the Commission has applied s 74 incorrectly.

5.I think the respondent’s interpretation of the legislation is correct in that there is no reviewable decision for the Tribunal to consider. That means I cannot entertain Mr McDermid’s arguments in relation to the operation of s 74.

6.Mr McDermid’s other concern arises out of the operation of s 5H. Although the Tribunal does not have jurisdiction to deal with this matter, I shall explain, for the sake of completeness, why Mr McDermid would be unsuccessful on this point.

7.The Commission says an amount of $610.68 was properly deducted from the applicant’s income so that total income was reduced from $2990.27 to $2379.59. In order to explain how it reached this conclusion, Mr Williams took me through the history of the legislation in his submissions.

8.Prior to amendments to the VEA in 2002, the calculation of Mr McDermid’s pension would have taken into account the full amount of compensation payments he received under the SRCA. As a practical matter, that means the applicant’s income would be $2990.27, and his pension would be assessed accordingly. That would have resulted in a substantially reduced pension. The amendment to the legislation in 2002 had the effect of reducing the weight given to the compensation payments received under the SRCA when calculating the entitlements under the VEA. Specifically, the definition of excluded income in s 5H(8) was amended so that any compensation payment that had already been used to reduce the rate of disability pension could be counted as excluded income and deducted from the applicant’s total income. Mr Williams says the delegate has done that properly. Mr McDermid disagrees.

9.The argument is difficult to follow, but – as I understand it - Mr McDermid says the Commission has not so much avoided double counting, as the legislation intended, it has actually triple-counted because it has taken into account payments made in respect of some disabilities that are not service-related. If that is the argument, then I do not see the problem. The income received in respect of any non-service-related injuries would count as ordinary income and be included in the assessment process.

10.I cannot see any error in the respondent’s calculations. In those circumstances, I do not see how the applicant can succeed even if the Tribunal had jurisdiction to hear the matter.

I certify that the 10 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe

Signed: .....................................................................................
  Associate

Date of Hearing   9 August 2011
Date of Decision   25 November 2011
Applicant   Self-represented
Advocate for the Respondent   Mr B Williams