Parker and Repatriation Commission (Veterans' entitlements) - [2023] AATA 3179

Parker and Repatriation Commission (Veterans' entitlements) [2023] AATA 3179 (5 October 2023)
Division:GENERAL DIVISION
File Number(s): 2021/4361
Re:Roderick Leon Parker
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Senior Member George
Date:5 October 2023
Place:Adelaide

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets-aside the reviewable decision made by the delegate of the Respondent dated 26 April 2021 and remits the matter with a direction that the Applicant was eligible to be paid a Service Pension within the terms of section 45TC(1)(a) of the Veterans’ Entitlement Act 1986 (Cth) at the time he lodged his claim for a Pension Bonus on 13 November 2020.
...................[Sgnd].........................
Senior Member George
CATCHWORDS
VETERANS AFFAIRS – pension bonus scheme – service pension – whether assets double counted – set-off – decision under review set-aside
LEGISLATION
ADMINISTRATIVE APPEALS TRIBUNAL ACT 1975 (CTH)
Veterans’ Entitlements Act 1986 (Cth)
CASES
Gye v McIntyre (1991) 171 CLR 609
Metal Manufactures Pty Limited v Morton [2023] HCA 1
SECONDARY MATERIALS
REASONS FOR DECISION
Senior Member George
5 October 2023

This is an application for review of a decision of a delegate of the Respondent that Mr Roderick Leon Parker (“the Applicant”) was not eligible to receive payment of a Service Pension, and who’s claim for a Pension Bonus under the Veterans’ Entitlement Act 1986 (“the Act”) was disallowed.
The Applicant was born in July 1930 and is aged 93 years. He served in the Royal Australian Air Force between 1948 and 1956. He is a veteran of the Korean War and he also served in Japan.[1]
[1] Exhibit R1, T-Documents, T3, Application for Gold Card for Veterans of Australia’s Defence Force, page 19.
On 18 June 2018, the Department of Human Services wrote to the Applicant to inform him that he was registered as a member of the Pension Bonus Scheme.[2]
[2] Exhibit J1, Joint Hearing Book, page 4.
In November 2020, the Applicant completed applications for payment of a Service Pension and a Pension Bonus.[3] These documents were lodged on 13 November 2020.[4]
[3] Exhibit R1, T-Documents, T7, Claim for Service Pension – Part A – Eligibility, pages 30-45; T8, Claim for Service Pension or Income Support Supplement – Part B – Income and Assets (and attachments), pages 46-107.
[4] Exhibit R1, T-Documents, T1.1, Reviewable decision, page 9; Exhibit J1, Joint Hearing Book, Applicant’s Statement, page 27.
On 25 January 2021, a delegate of the Respondent determined that the Applicant was not eligible for payment of a Service Pension on the basis that the Applicant’s assessed assets were above the threshold that allowed for payments. The letter was dated 27 January 2021.[5]
[5] Exhibit R1, T-Documents, T14, Determination, rejecting claim for payment of service pension, pages 155-157.
On 25 January 2021, a delegate of the Respondent furthermore decided that the Applicant was not eligible for payment of a Pension Bonus on the basis that the application was made out of time and also that no Service Pension was…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] AATA 3179
Decision Date: 5 October 2023

CaseChat Overview and Summary

This matter concerned an appeal by the Applicant, Mr Parker, against a decision by the Repatriation Commission to deny him payment of a Pension Bonus. The Applicant had lodged a claim for the Pension Bonus on 13 November 2020, which was received by the Commission on the same day as his claim for a Service Pension. The Commission had determined that the Applicant was ineligible for the Pension Bonus primarily because his claim was lodged outside the prescribed 13-week lodgement period following his retirement on 16 March 2020, and also because he was not eligible for a Service Pension due to his assets exceeding the statutory threshold. The Administrative Appeals Tribunal was required to determine whether the Applicant was entitled to the Pension Bonus and, crucially, whether he was eligible for a Service Pension at the time he lodged his claim.

The Tribunal considered whether the Applicant's circumstances warranted an extension of the lodgement period for the Pension Bonus, particularly in light of the COVID-19 pandemic and his age. A key legal issue was whether the Applicant's assets were correctly assessed for the purpose of determining his eligibility for a Service Pension. The Applicant contended that certain assets, specifically his equity in a company and a withdrawal from that company, had been double-counted in the Commission's calculation, thereby inflating the total asset value above the permissible limit.

In its reasoning, the Tribunal accepted the Applicant's submission that the Commission had engaged in double-counting of assets. It found that the net equity of the company, which included shareholder advances, had been included in the asset calculation, and a subsequent withdrawal by the Applicant from those advances was also counted as a personal asset. This dual inclusion meant the Applicant's assets were incorrectly assessed as exceeding the threshold for a Service Pension. The Tribunal also noted that the Applicant's engagement in full-time work from home during the pandemic, despite not attending an office, met the criteria for continuing to work.

Consequently, the Tribunal set aside the decision of the delegate of the Repatriation Commission dated 26 April 2021. The matter was remitted with a direction that the Applicant was eligible to be paid a Service Pension within the terms of section 45TC(1)(a) of the Veterans’ Entitlement Act 1986 (Cth) at the time he lodged his claim for a Pension Bonus on 13 November 2020.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

For completeness, an issue regarding Goods and Services Tax liabilities was raised during the hearing. It is unnecessary to make specific findings on this issue given the findings made above. Furthermore, the operation of s 56G of the Act would almost certainly preclude the Tribunal from making a favourable finding regarding this issue as of 13 November 2020.DECISION Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets-aside the reviewable decision made by the delegate of the Respondent dated 26 April 2021 and remits the matter with a direction that the Applicant was eligible to be paid a Service Pension within the terms of section 45TC(1)(a) of the Veterans’ Entitlement Act 1986 (Cth) at the time he lodged his claim for a Pension Bonus on 13 November 2020.

Ratio Decidendi

Legal Principle Established

The Respondent has neatly summarised the Pension Bonus as “a once only, tax-free lump sum payment which is payable to a person who upon reaching the retirement age or the qualifying age, defers retirement and continues working for at least one year”.[11][11] Exhibit J1, Joint Hearing Book, Statement of Position of the Respondent, page 32, paragraph [24].CONSIDERATION The central issue for the Tribunal to consider is whether the Applicant is entitled to the Pension Bonus, and in particular whether the Applicant was eligible to be paid a Service Pension within the terms of s 45TC(1)(a) of the Act at the time he lodged his claim for a Pension Bonus at 13 November 2020, which required his total assets at this time to be under $583,000. [12][12] Exhibit J1, Joint Hearing Book, Statement of Position of the Respondent, page 42, paragraph [2]. The Respondent’s Statement of Position, dated 14 July 2023, sets out the background facts of this matter in chronological form. Having regard to that chronology, and the documents upon which it relies, the Tribunal is satisfied of the following facts:(a)On 8 September 2009, the Applicant completed an application to Register with the Pension Bonus Scheme;(b)On 11 December 2009, the Repatriation Commission confirmed that the Applicant and his partner had decided to register with Centrelink. Accordingly, their Pension Bonus Registrations with DVA had been withdrawn;(c)On 16 March 2020, the Applicant retired or ceased working;(d)On 9 November 2020, the Applicant completed an Application for payment of a Pension Bonus;(e)On 11 November 2020, the Applicant completed a Claim for Service Pension;(f)The Respondent received the Claim for Service Pension and the application for Pension Bonus on 13 November 2020;(g)On 25 January 2021, a delegate of the Respondent decided that the Applicant was not eligible for payment of the Pension Bonus for the following reasons:(i)the claim was not lodged within the required lodgement period – being 13 weeks after the date of retirement. The lodgement period ended on 15 June 2020, 13 weeks after the Applicant’s retirement on 16 March 2020; and(ii)there was no Service Pension payable.(h)On 27 January 2021, a delegate of the Respondent determined that the Applicant was not eligible for payment of a Service Pension as the value of the Applicant’s assets was above the threshold that would allow for payments. The Applicant’s assets needed to be below $538,000, but his assets were calculated to be $588,284.37. The calculation of the figure of $588,284.37 in assets was included in a letter to the Applicant dated 27 January 2021,[13] which was itemised as follows:[13] Exhibit J1, Joint Hearing Book, Income/Assets Summary, page 157. (i)‘Business’, with a value of $263,905.00;(ii)‘Managed Investments’, with a value of $98,088.00;(iii)‘Savings Bank Accounts’, with a value of $158,302.00;(iv)‘Loans, Bonds and Debentures’, with a value of $26,000.00;(v)‘Shares’, with a value of $3,989.37; and(vi)‘Other Assets’, with a value of $38,000.(i)On 16 March 2021, the Applicant’s accountant sought review of the determination dated 25 January 2021 for the following reasons:1. “Special circumstances – COVID 19During COVID-19 lockdowns, Mr Parker exercised caution by staying home as much as possible, in accordance with Commonwealth Government policy. It is unreasonable to be disqualified on the grounds that documentation was not completed within a certain time, during a pandemic, by someone who is over 90 years old. It is contrary to government policy to disregard Mr. Parker’s adherence to Commonwealth Government guidelines, of not leaving his home during the pandemic. For such a critical decision to lapse due to COVID lockdown, without special consideration is without care and grace for a veteran.2. Working hoursMr Parker managed and was a Director, Powershift Tractors (NSW) Pty Limited, which finally closed in 2020, having lost a large contract at the Kimbricki Waste Disposal Centre, on renewal of the contract, a tendering process. Mr Parker was working full-time from home, managing a fleet of earth-moving equipment (eighteen units), staff of between 10 and 12 (depending upon needs), ordering fuel, speaking to suppliers, negotiating disputes, authorizing payroll as though her were at an Office in Sydney. The hours worked exceeded 0 hours a week, even though attendance at the Centre may have been once a week.3. Personal AssetsIncluded in the assets is the net equity of the Company at 30 June, 2020, totalling $263,905. An asset of the Company are shareholder advances of $288,534, Mr Parker, share of the loan is 50%, $127,757. Mr Parker withdrew $100,000 when the business closed, in anticipation the Company would be wound up within twelve months. The $100,000 is in his bank account. The net assets include this figure, so is double accounting the asset.Mr Parker’s equity in the Company is 60% and Mr Kevin Mole’s is 40%. To include the total nets assets, when the full assets are not due to him, ignores Corporations Law.[14](j)On 26 April 2021, the Respondent affirmed the determination dated 25 January 2021 and the determination dated 27 January 2021. [14] Exhibit R1, T-Documents, T16, Request for Reconsideration, pages 160-161.