Radford and Repatriation Commission (Veterans' entitlements)

[2018] AATA 3913

Radford and Repatriation Commission (Veterans' entitlements) [2018] AATA 3913 (27 September 2018)

Division:VETERANS' APPEALS DIVISION

File Number(s):      2018/0759

Re:Adrian Radford

APPLICANT

AndRepatriation Commission

RESPONDENT

DECISION

Tribunal:A G Melick AO SC, Deputy President

Date:27 September 2018

Date of written reasons:        17 October 2018

Place:Hobart

For the reasons given orally at the conclusion of the hearing, the decision under review is affirmed.

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

A G Melick AO SC, Deputy President

CATCHWORDS

VETERANS’ AFFAIRS – service pension – rate of service pension – automatic termination or automatic reduction of pension – decision under review affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth), s 43(2A)

Veterans’ Entitlements Act 1986 (Cth), ss 56A, 56B, 56C, 56D

WRITTEN REASONS FOR ORAL DECISION

A G Melick AO SC, Deputy President

17 October 2018

1. On 27 September 2018 at the conclusion of the hearing of this matter, the decision and the reasons for that decision were given orally. The Applicant requested written reasons for the oral decision pursuant to s 43(2A) of the Administrative Appeals Tribunal Act 1975 and those reasons are set out below.

2. Prior to 24 May 2017 the Applicant and his wife were in receipt of a service pension and a partner service pension. On 24 May 2017 the Applicant’s service pension was increased to the maximum single rate and his partner’s service pension was reduced to nil, resulting in a liability from overpayment from the Applicant's partner.

3. The Applicant's partner authorised him to institute a review of the decision to require a repayment from her and accordingly, although the liability was hers, the Applicant was the relevant party in these proceedings. There was no objection taken by the Respondent to such a course.

4. I accept the statement of facts, issues and contentions prepared by the Respondent, which very carefully and correctly set out the factual circumstances and the law applying in this matter:

   Increase and Reduction of Pension

   1On 23 June 2017 the respondent determined that:

   (a)Mr Radford's Service Pension was to be increased to the maximum single rate with effect from 24 May 2017; and

   (b)(i) Mrs Radford's Partner Service Pension was reduced to nil with effect from 24 May 2017; and

   (ii) the change in pension had resulted in an overpayment of $405.29

   2On 7 July 2017 the respondent determined that the period of overpayment of Mrs Radford's pension was from 13 October 2016 until 7 July 2017 and the amount of overpayment was $3703.33.

   3On 22 August 2017 Mr Radford applied for review of the decisions.

   4On 15 January 2018 the respondent reviewed the decision under s 57B and affirmed the decision.

   5On 19 February 2018 an application for review was made to the Tribunal.

   FACTS

   6On 12 July 2016 Mr and Mrs Radford applied for Service Pension.

   7On 6 October 2016 Mr Radford and Mrs Radford were granted Service Pension and Partner Service Pension, respectively, from 12 July 2016.

   8Because Mrs Radford received income from employment, pension was paid at the reduced rate of $142.05 each per fortnight, $201.75 with pension supplements.

   9The determination included notice that Mr and Mrs Radford must notify the respondent within 14 days "of changes to your circumstances which might affect the rate of your pension" and enclosed the booklet You and Your Pension:

   "a notice under section 54 .. (which) sets out your obligations to ensure that your pension is paid at the right rate. If you do not tell us of any of these changes within the required time, you may be overpaid."

   10On 24 May 2017 Mr Radford informed the respondent that he had separated from his wife and on 9 June 2017 he advised that the separation had occurred in "10/2016".

   11On 20 June 2017 Mrs Radford advised that the separation occurred on 13 October 2016.

   12On 23 June 2017 the respondent determined that Mr Radford's Service Pension was to be increased to the maximum single rate with effect from 24 May 2017. His pension was no longer affected by Mrs Radford's employment income.

   13On the same day the respondent determined that Mrs Radford's Partner Service Pension was reduced to nil with effect from 24 May 2017 and there had been an overpayment of $405.29. Following the separation, Mrs Radford's employment income was assessed solely in relation to her Partner Service Pension and was above the limit where pension ceases.

   14On 7 July 2017 the respondent determined that the period of overpayment of Mrs Radford's pension was from 13 October 2016 until 7 July 2017 and the amount of overpayment was $3703.33.

   CONTENTIONS

   15Mr Radford contends that the dates of effect of the changes to his and Mrs Radford's pension should be the same.

   Increase of Mr Radford’s Pension

   16The respondent submits that, where there has been a change of circumstances which affects the rate of Service Pension, an increase in the rate of pension takes effect on the day advice of the change was received by the respondent or on the day on which the change occurred, whichever is the later (s 56G relating to a s 56C decision).

   Reduction of Mrs Radford’s Pension

   17Where a notice has been given requiring a person to inform the respondent within 14 days of events or changes of circumstances which might affect the payment of pension and the person does not inform the respondent within the 14 days, the pension ceases to be payable to the person on the day on which the event or change in circumstances occurs (s 56A – s 56B relating to s 54 notices).

   18In the decision of 8 October 2016 granting Service Pension, Mr and Mrs Radford were advised that they must notify the respondent within 14 days "of changes to your circumstances which might affect the rate of your pension" and the booklet You and Your Pension, "a notice under section 54" setting out the obligations to inform the respondent, was provided.

   19The respondent submits, therefore, that as Mr and Mrs Radford did not inform the respondent of their separation until seven months after the event, date of effect of the reduction of Mrs Radford's pension is 13 October 2016, the date of separation.

   20Sections 56A and 56B refer to an "Automatic termination" and an "Automatic rate reduction". The respondent submits that the Tribunal cannot review an automatic termination or reduction of pension, though it may be able to consider evidence leading up to the event in order to consider whether an automatic termination or reduction occurred.

   Overpayment and Debt

   21The respondent submits that the Tribunal cannot review the raising of an overpayment, a debt to the Commonwealth or waiver of debt.

   (References to Tribunal documents omitted)

   EVIDENCE

5. The Applicant gave evidence by telephone at the hearing, during which he appeared to accept that the responsibility for the giving of notice about the change in circumstances lay with him rather than his wife.

6. The Applicant contended that the dates of his wife’s service pension being curtailed and his pension increasing should be the same.

7. When the relevant provisions of the Act, including the 14 day notice period, were discussed with him, he indicated that he had good reasons for not complying with them, including the turmoil in his life caused by the cessation of a 28 year relationship and him just upping stumps, leaving and becoming uncontactable.

   CONSIDERATION

8. I have considered the file very carefully and listened to what the Applicant had to say in oral evidence, and I appreciate his circumstances. However, I am satisfied that the calculations set out in the statement of facts, issues and contentions are correct and that I do not have discretion.

9. Section 206 of the Veterans’ Entitlements Act 1986 (the Act) provides that the waiver of a debt, or debts, arising under or as a result of the Act are a matter for the Commission. The combined effect of sections 56A, 56B, 56D, and in relation to section 56C, is that I do not have discretion to review the decision or change it.

   DECISION

10. The decision under review is affirmed.

I certify that the preceding 10 (ten) paragraphs are a true copy of the written reasons for the decision herein of A G Melick AO SC, Deputy President

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

Associate

Dated: 17 October 2018

Date(s) of hearing:	27 September 2018
Advocate for the Applicant:	Mr R Fitz, Launceston RSL
Advocate for the Respondent:	Mr K Rudge, Department of Veterans' Affairs