Miller and Repatriation Commission

[2007] AATA 1753

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1753

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/2783

GENERAL ADMINISTRATIVE DIVISION		)
Re		DESMOND MILLER

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Ms N. Isenberg, Senior Member

Date11 September 2007

PlaceSydney

Decision The Administrative Appeals Tribunal has no jurisdiction under section 25 of the Administrative Appeals Tribunal Act 1975 to hear this application.

................[sgd].............................

Ms N. Isenberg
  Senior Member

CATCHWORDS

VETERANS - jurisdiction to review decision declining provision of circulation socks – application of section 175 of the Veterans’ Entitlements Act 1986 - no reviewable decision – no jurisdiction to hear application

LEGISLATION

Administrative Appeals Act 1975 – section 25

Veterans’ Entitlements Act 1986 – sections 84, 90, 111, 119, 120, 175

REASONS FOR DECISION

11 September 2007 Ms N Isenberg, Senior Member

1.      An interlocutory hearing was held before me on 16 July 2007 and 17 August 2007 to determine whether the Administrative Appeals Tribunal (“the Tribunal”) has jurisdiction to review a decision made by the Department of Veterans’ Affairs (“the Department”), in relation to the provision of circulation socks to Mr Miller.  Mr Miller (“the Applicant”) was self represented, and the Respondent was represented by Ms Harry.

background

2.      Mr Miller told me that he had been denied treatment for his accepted disability of diabetes mellitus by not being reimbursed by the Department for his circulation socks.   

3.      On 8 May 2007, Mr Miller wrote to the Department making a claim for the provision of circulation socks as part of the treatment for his accepted disabilities, particularly diabetes. On 15 May 2007, an Officer of the Department advised Mr Miller that circulation socks were not approved by the Department as an item listed in the Rehabilitation Appliances Program Schedule of Equipment.  As such, the request for circulation socks was refused.

4.      On 17 May 2007, Mr Miller wrote to the Department requesting a review of the decision, and on 14 June 2007 an Officer of the Department advised that the original decision was upheld.

5. Mr Miller submitted that the provision of circulation socks was properly characterised as “treatment” under section 80 of the Veterans’ Entitlements Act 1986 (“VEA”), and that “treatment” should therefore be provided under section 84(1)(c). He said that an application for “treatment” need not be made formally. He referred me to the definition of “gold card” in respect of eligibility for treatment, but this was in the context of seniors’ concession allowance.

relevant legislation

6. Section 90 of the VEA provides that the Repatriation Commission may prepare a written document known as the Treatment Principles. The Principles outline the circumstances, and applicable conditions, in which the Commission may provide treatment for persons eligible under the VEA, and outline “the policies under which the Commission may provide, or accept financial responsibility for the cost of, treatment for persons eligible under the Act.” Pursuant to section 90(3), the Principles are binding on the Commission in the exercise of its powers under Part V of the VEA.

7.      I was provided with a copy of the Treatment Principles, and referred to Part 11 in relation to the Provision of Rehabilitation Appliances.  An extract of a schedule relating to diabetic equipment was also provided.  This did not include circulation socks.  

consideration and findings of the tribunal

8.      On the basis of the material before me, I needed to consider whether the Tribunal has the power to review Mr Miller’s substantive application.

9.      The Administrative Appeals Tribunal Act 1975 (“the AAT Act”) does not, itself, set out the decisions that may be reviewed by the Tribunal. Instead, section 25 of the AAT Act states that an enactment may provide for review of decisions made in the exercise of powers conferred by that enactment, or conferred by an instrument such as rules, regulations or by-laws made under that enactment. Accordingly, the Tribunal has no jurisdiction unless there is a legislative instrument that confers jurisdiction. Consequently, to determine whether the Tribunal has jurisdiction to review a particular decision, reference must be made to the legislation governing the original decision. Further, whilst a piece of legislation may confer jurisdiction on the Tribunal to review decisions, the conferral may not relate to all decisions made under that relevant piece of legislation. Therefore, care must be taken to ensure that jurisdiction has indeed been given to the Tribunal in relation to the specific decision under consideration.

10.     Having regard to Mr Miller’s contentions, I reviewed the relevant legislation to ascertain if the relevant part of the legislation gives jurisdiction to the Tribunal.

11. The Tribunal’s power to review decisions of the Repatriation Commission is found in Part X of the VEA. Section 175 sets out the types of decisions that may be reviewed by the Tribunal, and include:

·Veterans’ Review Board decisions concerning disability pension and attendant allowance - section 175(1);

·Reinstatement of verification determination - section 175(1A);

·Repatriation Commission internal review of service pension or qualifying service determinations – section 175(2);

·Repatriation Commission internal review of decisions relating to an advance payment of pension – section 175(2AAA);

·Repatriation Commission internal review of decisions relating to Repatriation Pharmaceutical Benefits Card – section 175(2AAAA);

·Repatriation Commission internal review of decisions relating to Seniors Health Card – section 175(2AA); and

·Repatriation Commission internal review of decisions relating to a determination of a class of persons included in the definition of eligible child in subsection 116(1) – section 175(5).

12. Unfortunately, there is no provision in section 175 for review of a decision to decline treatment as contended by Mr Miller. No provision of section 175 gives the Tribunal power to review a decision made by the Repatriation Commission in relation to items such as circulation socks. Further, no other provision in the VEA gives the Tribunal power to review this decision.

13. Section 175(4) of the VEA, however, would confer jurisdiction on the Tribunal in matters relating to, inter alia, clothing allowance. I therefore adjourned the matter in order for the Repatriation Commission to make submissions on whether circulation socks were items covered by the clothing allowance provisions and to investigate whether Mr Miller was eligible for clothing allowance. The Repatriation Commission reviewed Mr Miller’s files, and noted that he had not made a claim for clothing allowance. In accordance with section 111(2)(a) of the VEA, an application for clothing allowance must be made in accordance with the prescribed form.

14.     No application for clothing allowance has been made, and there is no deeming provision that can operate to allow Mr Miller’s application for the circulation socks (as treatment) to be taken as such an application.

15.     I note that Mr Miller has been invited to complete an application for clothing allowance, but he has declined to do so.  As discussed above, refusal of a claim for clothing allowance can be reviewed by the Tribunal.  Having said that, the entitlement to clothing allowance is limited, and Mr Miller may require assistance in completing an application of this kind if he wishes to pursue his entitlement for circulation socks.

DECISION

16. The Administrative Appeals Tribunal has no jurisdiction under section 25 of the Administrative Appeals Tribunal Act 1975 to hear the application.

I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N. Isenberg, Senior Member

Signed:         [Skye Owen]
  Associate

Date of Hearing(s)  16 July 2007 and 17 August 2007
Date of Decision  11 September 2007
Appearance for Applicant  Self-represented

Advocate for the Respondent                    Ms K. Harry, Department of Veterans’ Affairs