Neil and Repatriation Commission (Veterans' entitlements)

Neil and Repatriation Commission (Veterans' entitlements) [2020] AATA 89 (30 January 2020)
Division:VETERANS' APPEALS DIVISION
File Number: 2019/4302
Re:Andrew Neil
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Member K. Parker
Date:30 January 2020
Place:Melbourne

The Tribunal affirms the decision under review.
....................[sgd]............................................
Member K. Parker
Catchwords
VETERANS’ ENTITLEMENTS – application for loss of earnings allowance – application lodged out of time – applicant allegedly misinformed and not aware of time limit – further complexity arising due to initial non-acceptance of the claimed injury followed by acceptance two years subsequently – no discretion to extend time under statute – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (Cth)
Veterans’ Entitlements Act 1986 (Cth)
Veterans’ Entitlements (Special Assistance – Motorbike Purchase) Regulations 2001 (Cth)
Veterans’ Entitlements (Special Assistance) Regulations 1999 (Cth)
REASONS FOR DECISION
Member K. Parker
30 January 2020

This application is about whether the Applicant, Mr Andrew Neil, should be granted a loss of earnings allowance under s 112 of the Veterans’ Entitlements Act 1986 (Cth) (the Act) in respect of a number of periodic absences from work as a result of suffering a war-caused post-traumatic stress disorder (PTSD).
There were no issues in dispute about whether Mr Neil was a “veteran” at the relevant time, whether his injury of PTSD was war-caused or whether his work absences occurred as a result of the PTSD.
The only issue in this application arose from the late submission of Mr Neil’s application (i.e. after the statutory time limits under the Act had expired).
CHRONOLOGY
In 1985 Mr Neil was enlisted into the Australian Army and served in East Timor from 1999 to 2003 (Operations Spitfire; Faber; Stabilise; Warden; Tanager; and Citadel) and in the Solomon Islands (Operation Anode).[1]
[1] The Respondent lodged a set of documents with the Tribunal in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth), which will be referred to as the T-Documents. Refer T-Documents T10.
In 2015 Mr Neil was diagnosed with severe PTSD.[2]
[2] Refer T-Documents T1/7.
Mr Neil was intermittently absent from work on account of his PTSD during periods falling between 5 February 2015 and 19 March 2017.[3]
[3] Refer T-Documents T7/25.
On 27 August 2015, Mr Neil submitted a “claim for compensation for injury or disease” with the Department of Veterans’ Affairs (DVA) in relation to this injury.[4] Mr Neil was referred to a DVA specialist to be medically examined.
[4] Refer T-Documents T10/44.
On 7 January 2016, the DVA rejected Mr Neil’s claim.[5] This decision was referred to a delegate of the DVA for reassessment (due to the introduction of a “straight-through processing” policy).
[5] Refer T-Documents T11/55.
Separately, on 4 April 2018 Mr Neil submitted a claim under the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (Cth) (DRCA) in respect of a neck condition (neck claim).[6] The DVA referred the matter to a DVA Contracted Medical Adviser for review and diagnosis.
[6] Refer T-Documents T12.
On 10 May 2018, the DVA reviewed Mr Neil’s application and accepted his condition of “Chronic Posttraumatic Stress Disorder” as being war-caused with effect from 27 May 2015.[7] Mr Neil was notified about this decision by the VEA Claims Delegate (delegate) from the DVA by email.[8] In this email, the delegate informed Mr Neil as follows:[9]
As discussed, I have also attached an Application for Loss of Earnings Allowance and a link to the factsheet so you can see if this might apply to you. If you would like to test your eligibility you can complete and return the form.
[7] Refer T-Documents T16/67.
[8] Refer T-Documents T16/66.
[9] Ibid.
The application form and the factsheet referred to in the delegate’s email stated that an application for loss of earnings must be lodged within 12 months of the beginning of the period of loss of earnings being claimed.[10]
[10] Refer T-Documents T7/22 and T9/41.
On the same day (10 May 2018), a project officer at the DVA wrote to some of her DVA colleagues in relation to Mr Neil’s “DP assessment” (which the Tribunal understands to be a reference to his pension assessment).[11] The project officer referred to Mr Neil’s pension assessment and stated as follows:[12]
…
Mr Neil has an outstanding MRCA case for a cervical condition, and he is due to have surgery tomorrow. This will put him out of action for about 3 weeks. I have sent him the LSQ and advised there is no rush (due to his incapacity), and also that he can seek ESO assistance.
Mr Neil sees a local GP for his physical conditions: Dr Soe of Gap Rd Medical, 46 Gap Rd Sunbury. He has not seen her for PTSD yet but would be willing to as she is quite good. He has not seen a psychiatrist recently.
Mr Neil works full time normally, although has had periods off work in the past due to mental health and is off work at the moment for his cervical condition.
…
[11] Refer T-Documents T17/69.
[12] The reference to LSQ is a reference to “lifestyle questionnaire” -
By letter dated 11 May 2018, Mr Neil was advised to arrange to be medically examined as part of the investigation for his application for an increase (to his pension).[13]
[13] Refer T-Documents T18/70.
On 22 May 2018, Mr Neil sent an email to the project officer attaching the completed Lifestyle Questionnaire.[14]
[14] Refer T-Documents T19/71.
On 6 June 2018, the DVA sent Mr Neil a progress report in relation to his neck claim, advising that the Contracted Medical Adviser had completed the review and the delegate would endeavour to finalise his claim.
On 9 July 2018, Mr Neil sent an email to the DVA attaching a document completed by his doctor entitled “Re: DVA entitlements review…Investigation of Disability Pension…”[15] In this email Mr Neil stated:
…My doctor has also advised me she needs extra time to complete the Loss of Earnings document which I will return as soon as I receive it back from her…
[15] Refer T-Documents T22/75.
On 11 July 2018, the DVA notified Mr Neil by letter that it had made a decision regarding the assessment of his disability pension, granting the pension at 70% of the General Rate with effect from 27 May 2015.
On 23 July 2018, the DVA sent a further progress report to Mr Neil in relation to his neck claim advising that the delegate had requested a further opinion regarding the contribution of his “DRCA service including East Timor” to this injury.[16]
[16] Refer T-Documents T24/81.
On 18 August 2018, the DVA accepted Mr Neil’s neck claim.[17]
[17] Refer T-Documents T25 – neck condition was described by the DVA as “cervical spondylosis with C6 and C7 nerve root impingement with effect from 14 March 2018”.
On 3 September 2018, Mr Neil submitted a “Qualifying Service Request” form to the DVA.[18]
[18] Refer T-Documents T26/85.
On 5 January 2019, Mr Neil lodged an application for loss of earnings allowance (LOEA application).[19]
[19] Refer T-Documents T7.
On 16 January 2019, the DVA rejected Mr Neil’s LOEA application on the basis that, in effect, it was submitted out of time (first decision).[20] It seems that on the same day, Mr Neil was contacted by a DVA delegate in the Primary Claims Branch of the Clients’ Benefits Division. This delegate sent Mr Neil an email referring to their telephone conversation and attaching the determination letter and a factsheet, which referred to the time limit applicable to LOEA claims. The delegate also made the following apology:[21]
As discussed you advised when speaking to the Department previously you were advised that there was no time limit.
I do apologise for the misinformation, they may have been referencing incapacity payments, which is administered through a different act, the [DRCA]. link above provides the factsheet for incapacity payments and the application form.
Your post traumatic stress disorder is currently accepted under the [VEA], you may claim to have this condition accepted under the DRCA, you may then apply for incapacity payments. For more information on making a claim under DRCA…
[20] Refer T-Documents T6.
[21] Refer T-Documents T6.
In reply to this email, on 16 January 2019 Mr Neil sought a review of the first decision.[22] In Mr Neil’s email when he made this request, he stated:[23]
…As I mentioned I was told there was no time frame for me submitting my application. This was during a conversation with one of your delegates when they called me to see how I was going with my paperwork. I explained at the time that I was experiencing a delay in receiving the required documentation back from the doctors. They told me not to be too worried about it as there is no time limit as to when my claim can be processed. Since then I have followed through with the doctors, had surgery for another accepted condition, tried to manage my PTSD whilst also trying to maintain full time employment.
[22] Refer T-Documents T5/16.
[23] Ibid.
On 4 April 2019, a delegate of the DVA affirmed the first decision (second decision) and stated they had no discretion to process claims received outside the time period.[24]
[24] Refer T-Documents T4.
On 11 April 2019, Mr Neil sought a further explanation. The DVA treated this request as a further application for review.
On 18 April 2019, the DVA affirmed the second decision (third decision).[25]
[25] Refer T-Documents T2.
On 17 July 2019, Mr Neil sought review of the third decision by the Veterans’ Appeals Division of the Administrative Appeals Tribunal (Tribunal).
RELEVANT LEGISLATION
Section 112 of the Act provides (as relevant) as follows:
Time for applying for certain benefits
(1A)   An application for bereavement payment under section 98AA in respect of a deceased veteran must be made within 12 months after the death of the veteran.
(2)     An application for loss of earnings allowance for a period in respect of which a person has suffered a loss of salary or wages, or loss of earnings on his or her own account, as set out in subsection 108(2), (3), (4) or (5), shall be made within 12 months after the commencement of that period.
(3)     An application for travelling expenses in connection with travel referred to in subsection 110(1), (1A) or (2) must be made within:
(a) 12 months after the completion of that travel; or
(b)   if the Commission thinks that there are exceptional circumstances that justify extending that period--such further period as the Commission allows.
(4)      An application made to the Commission for the grant of:
(aa) bereavement payment under section 98AA; or
(b) loss of earnings allowance; or
(c) travelling expenses;
after the expiration of the period applicable to the application by virtue of subsection (1A), (2) or (3), as the case requires, is of no force or effect.
ISSUES
The issues arising for determination are whether Mr Neil’s LOEA application has any force or effect, and whether the Tribunal otherwise has any discretion to extend the time for submission of that application after the expiry of the 12 month statutory time limit arising under s 112 of the Act.
CONTENTIONS
Upon lodging his application for review by this Tribunal, Mr Neil stated on the application form that he considered the DVA’s decision to refuse his claim for LOEA was wrong because:[26]
I was diagnosed with severe PTSD in 2015. I submitted a claim with DVA asking them to recognise that my diagnosed condition was service related. After being referred to a DVA specialist I was informed that my condition was not service related. In 2018 I received notification that the original decision in 2015 had been reviewed. The delegate apologised to me and informed me that there had been an error and that they now recognise that my PTSD could be contributed to my service in the Australian Regular Army.
I had significant time off work whilst I was…dealing with the effects of my condition and getting used to the side effects of prescribed medication. After being informed that my condition had now been recognised, I submitted a claim for loss of earnings to DVA. This was done within a few months of being told my condition had now been recognised.
I received notification that my claim for loss of earnings had not been accepted as I had not submitted it within 12 months of my original claim in 2015. I appealed this decision as as far as I was concerned I was not entitled to submit it back in 2015 as DVA had not accepted that my condition was service related. On being informed of the review and being told that my condition had been recognised I took steps to have the appropriate documents completed by my medical practitioners and submitted the claim at the earliest opportunity which was within six months of the review.
I claim that DVAs decision is wrong regardless of their policy as any reasonable person would not submit a claim for loss of earnings if DVA had incorrectly decided to deny my condition was service related when originally submitted.
[26] Refer T-Documents T1/7.
Mr Neil contended that he was told by a delegate of the DVA that there was no time frame for submitting his LOEA application – see paragraph [22] and [23]. Mr Neil also contended that his LOEA application was made within 12 months of the decision made by the DVA to accept his claim for the PTSD injury, being 10 May 2018.
The Repatriation Commission (Commission) contended that:
·subsection 112(4) stipulates that “an application made to the Commission…after the expiration of the period applicable to the application by virtue of subsection…(2)… is of no force or effect”; and
·because Mr Neil’s LOEA application was submitted more than 12 months after the commencement of the period of loss of earnings (between 5 January 2015 and 19 March 2017), it is of no force or effect and his application before this Tribunal cannot succeed.
At the hearing, Mr Rudge who was representing the Commission further contended that even if the Tribunal were to take the first day of the last period of absence that took place between 5 January 2015 and 19 March 2017, being 18 March 2017, Mr Neil’s application was still lodged more than 12 months after this date (i.e. the LOEA application was lodged on 5 January 2019).
Mr Rudge confirmed that the wording of section 112 of the Act would seem to be clear that the Tribunal does not have the power to extend the time for submission of an LOEA application beyond 18 March 2017 at the very latest.
CONSIDERATION
As indicated to Mr Neil at the hearing, the Tribunal is most sympathetic to his position. Based on the information that was reportedly provided to Mr Neil, the complexity of the claims processes under the Act and the fact that Mr Neil was unrepresented, it was reasonable for Mr Neil to have misunderstood that there was no time limit in relation to making a LOEA application and that he had no need to rush to submit his application given the challenges he was experiencing at the time. On the face of the evidence before the Tribunal, it seemed that Mr Neil was misinformed.
Mr Neil also misunderstood that he could not lodge an LOEA application unless his claim for his PTSD injury had first been accepted by the DVA. Again, the Tribunal is sympathetic as to how this misunderstanding on the part of Mr Neil came about, as the conclusion he made about this had some inherent logic to it. Mr Neil did not seek out nor was he provided with assistance from a legal or other adviser, because he said at the hearing that the quantum of his claim was only modest in size.
If the Tribunal had discretion under the Act to extend the time for lodgement of Mr Neil’s LOEA application, it is likely to have exercised such discretion in a way favourable to Mr Neil based on his particular circumstances. However, based on the Tribunal’s interpretation of the ordinary meaning of the wording of s 112(4) of the Act, no such discretion arises under the Act in respect of extending the time for lodgement of an LOEA application out of time.
The wording of s 112(4) of the Act makes clear that an LOEA application must be submitted within 12 months after the commencement of the period in respect of which a person has suffered a loss of salary or wages, or loss of earnings on his or her own account, for it to have force or effect. There appears to be no scope for the Tribunal to interpret this provision other than it imposes a strict time limit on the submission of LOEA applications by veterans under the Act. Lending support to this conclusion, in the same provision (i.e. s 112(3)(b) of the Act) discretion to extend the time limit for applications made in respect of travelling expenses does arise under the Act. If Parliament had intended for a similar discretion to apply to LOEA applications, the Tribunal considers that s 112 of the Act would have included a similar provision to that contained in s 112(3)(b), in reference to applications for LOEA as well as applications for travelling expenses.
At the hearing, Mr Rudge suggested that Mr Neil may wish to consider making a claim for compensation for defective administration, based on the evidence given that he was misinformed about whether any time limit applied. At the hearing, the Tribunal also encouraged Mr Neil to consider doing so and that he may also wish to consider seeking legal advice in relation to whether he is entitled to pursue a claim for incapacity payments under the DRCA, as had been highlighted to Mr Neil previously by one of the DVA delegates.[27]
[27] Refer T-Documents T4/14.
At the hearing, consideration was given as to whether Mr Neil may be able to claim special assistance under s 106 of the Act. However, it was identified that this was not a viable avenue for Mr Neil because a review of the regulations prescribing the circumstances in which, and the conditions subject to which, the Commission may grant assistance or benefits to a person, did not apply to the facts of Mr Neil’s case.
CONCLUSION
Unfortunately the Tribunal has no discretion to extend the time for lodgement of Mr Neil’s LOEA application. It was lodged out of time and in accordance with s 112(4) of the Act, has no force or effect.
Accordingly, the Tribunal affirms the decision under review.

43.

I certify that the preceding forty two (42) paragraphs are a true copy of the reasons for the decision herein of Member K Parker.

..............[sgd]...........................................
Associate
Dated: 30 January 2020
Date of hearing: 21 January 2020
Applicant:In person

Advocate for Respondent: Mr Ken Rudge, Repatriation Commission

[2020] AATA 89

30 January 2020

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Statutory Construction

Procedural Fairness

Standing

Remedies