Repatriation Commission and Iain Booth
[2014] AATA 322
•26 May 2014
[2014] AATA 322
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/6288
Re
Repatriation Commission
APPLICANT
And
Iain Booth
RESPONDENT
DECISION
Tribunal Ms N Bell, Senior Member
Date 26 May 2014 Place Sydney The Tribunal sets aside the decision under review and remits it to the Repatriation Commission with directions that, pursuant to section 14(5) of the Veterans’ Entitlements Act 1986, Mr Booth was not empowered to make his second claim on 9 November 2011.
...........[Sgd].............................................................
Ms N Bell, Senior Member
CATCHWORDS
PRACTICE AND PROCEDURE – VETERANS' AFFAIRS – Veteran lodges two claims for disability pension with Repatriation Commission – what constitutes finally determined claim – finally determined – whether Veteran's second claim validly made – decision under review set aside and remitted
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), s 29(3), 29(7)
Veterans' Entitlement Act 1986 (Cth) ss 14(5), 14(7), 176(4), 176(4)(a), 176(4)(b)
CASES
Bramwell v Repatriation Commission (1998) 51 ALD 56
Formosa v Secretary, Department of Social Security (1988) 46 FCR 117
Jebb and Repatriation Commission (2005) 86 ALD 182
Re Filsell and Comcare (2009) 109 ALD 198
Repatriation Commission v Bey (1997) 79 FCR 364
Roberts and Repatriation Commission (1992) 27 ALD 408Roberts v Repatriation Commission (1992) 39 FCR 420
REASONS FOR DECISION
Ms N Bell, Senior Member
26 May 2014
In August 2009, Iain Booth lodged his first claim for disability pension with the Repatriation Commission for the conditions of PTSD, depressive disorder and alcohol abuse. The Commission refused his claim in December 2009. Mr Booth appealed the decision of the Commission to the Veterans’ Review Board and on 3 May 2011, the Board found he suffered from PTSD, major depression and alcohol dependence, and affirmed the decision of the Commission.
On 9 November 2011, Mr Booth lodged a second claim for disability pension and on 25 November 2011, the Commission refused his claim again.
In March 2012, Mr Booth applied for a review of the Commission’s decision with the Veterans’ Review Board. On 26 August 2013, the Board set aside the decision of the Commission and decided that Mr Booth should be paid a pension.
On 4 December 2013, the Repatriation Commission lodged an application in this Tribunal for review of the Veterans’ Review Board’s August 2013 decision.
There are particular time limits on veterans lodging applications for review by this Tribunal of decisions made by the Veterans’ Review Board. The starting point is that veterans may lodge an application for review no later than three months after the terms of the Board’s decision are given to the veteran (section 29(3) Administrative Appeals Tribunal Act 1975 as modified by section 176(4)(a) of the Veterans’ Entitlements Act 1986). However, under section 29(7) of the Administrative Appeals Tribunal Act, the Tribunal may extend the time for the making of an application for review of a decision if satisfied that it is reasonable in all the circumstances to do so. In the case of decisions made under the Veterans’ Entitlements Act, section 176(4)(b) of that Act imposes a limit on the time until which such an extension of time may be granted. The time limit for extensions of time to lodge an application for review is no more than twelve months after the date on which the terms of the Board’s decision are given to the veteran.
The Commission contends that, pursuant to section 14(5) of the Veterans’ Entitlement Act 1986, which precludes the making of a claim for the same injury or disease when an earlier claim has not yet been finally determined, Mr Booth was not empowered to make his second claim. The Commission contends that Mr Booth had up until May 2012 to seek a review of the Veterans’ Review Board’s May 2011 decision on his first claim because he could have, but did not, apply for an extension of time up until May 2012. His second claim was made in November 2011. The Commission contends that the Board’s August 2013 decision should be set aside and the matter remitted to the Commission with a direction that the claim was not validly made.
Mr Booth contends that his first claim had been finally determined by the time he made his second claim in November 2011. He says this is so because the time for lodging an application for review with this Tribunal expired in August 2011, some three months prior to Mr Booth’s second claim, and not when the time for seeking an extension of time for lodging an application for review expired.
The issue for me to consider is when Mr Booth’s first claim was finally determined.
I understand that the matter is of particular importance to Mr Booth because he turned 65 on 25 April 2014, affecting his eligibility and entitlement under the more generous provisions of the Veterans’ Entitlement Act.
WHEN WAS MR BOOTH’S FIRST CLAIM FINALLY DETERMINED?
Section 14 of the Veterans’ Entitlements Act provides relevantly:
14 Claim for pension
(1) Subject to subsection (2), a veteran, or a dependant of a deceased veteran other than a reinstated pensioner, may make a claim for a pension in accordance with subsection (3).
…
(3) A claim for a pension:
(a) shall be in writing and in accordance with a form approved by the Commission;
(b) shall be accompanied by such evidence available to the claimant as the claimant considers may be relevant to the claim; and
(c) is to be lodged at an office of the Department in Australia in accordance with section 57 and is taken to have been made on a day determined under that section.
…
(5) Where:
(a) a veteran has made a claim for a pension under this section in respect of incapacity from a particular injury or disease; and
(b)the claim has not been finally determined;
the veteran is not empowered to make another claim for a pension under this section in respect of incapacity from that injury or disease.
…
(7) For the purposes of this section, a claim is finally determined when either:
(a) a decision that has been made in respect of the claim is not subject to any form of appeal or review; or
(b) a decision that has been made in respect of the claim was subject to some form of appeal or review, but the period within which such an appeal or review could be instituted has ended without an appeal or review having been instituted.
Mr Booth submitted he has been prejudiced by the Commission’s failure to raise this point before now because the Commission entertained his second claim and raised no such point then or with the Veterans’ Review Board. Mr Booth submitted that the Commission is estopped from invoking section 14(5) now.
The weight of opinion, as expressed by this Tribunal over the years, is that estoppel does not operate in administrative law and, in particular, does not apply to a review by this Tribunal, standing as it does in the shoes of the original decision maker rather than as an exercise of judicial review (Jebb and Repatriation Commission (2005) 86 ALD 182; Re Filsell and Comcare (2009) 109 ALD 198).
I was also referred to Bramwell v Repatriation Commission (1998) 51 ALD 56, Formosa v Secretary, Department of Social Security (1988) 46 FCR 117 and Roberts v Repatriation Commission (1992) 39 FCR 420, to the effect that estoppel does not apply to administrative decision making where the issues to be determined involve rights and obligations rather than the exercise of administrative discretions.
While it is regrettable that the application of section 14(5) of the Veterans’ Entitlements Act was not raised when Mr Booth made his second claim in November 2011, the Commission is not prevented from raising the issue now.
Mr Booth submitted there is no automatic right of review once the three month period has expired. He submitted that the words “an appeal or review having been instituted” in subsection 14(7)(a) do not encompass an application for extension of time to institute an appeal or review.
Clearly, a decision to extend the time for lodging an application for review is, within any applicable statutory limitations such as the 12 month limit that applies in this case, an exercise of discretion. However, the language of the subsection is broad and it necessarily contemplates uncertainty of outcome following a range of possible actions, as indicated by the words “some form of appeal or review … could be instituted” (emphasis added).
I was referred to the following passage in the judgment of O’Connor J in Roberts and Repatriation Commission (1992) 27 ALD 408 at 416 as indicating that the potential 12 month period in which to lodge an application for review decisions under the Veterans’ Entitlements Act is the final frontier of an applicant’s exercise of rights:
The payment of pensions and benefits is not open-ended in that veterans must satisfy certain eligibility criteria. A system of review involving the Veterans' Review Board and the Administrative Appeals Tribunal has been set up under the Act. Time limits are set in s57A for internal reviews, s135 for review by the Veterans' Review Board and in s176 for review by the tribunal. At all levels of the review system then parliament has evinced an intention, based on public policy, that veterans should not have an unlimited time in which to pursue their claims. In recognition, however, that the class of persons to whom the Veterans' Entitlements Act applies may have difficulty the normal 28 day time limit under s 29 of the Administrative Appeals Tribunal Act has been lengthened.
In this case the time limit for lodging applications with the tribunal is 3 months. If an application is not lodged within that time certain consequences flow, but an applicant is not deprived of all rights. An extension of time may be granted up to 12 months. This is a case where substantial compliance is not possible. Either an application is lodged within the prescribed time or it is not. (Emphasis added)
It was submitted on behalf of the Commission that the veteran's right, as described by O'Connor J, does not expire until the relevant 12 month period has passed and that while the right exists to seek leave to appeal, the claim cannot be said to be finally determined. It was submitted that the right to make an application for an extension of time to this Tribunal is of itself 'some form of appeal or review'.
I am inclined to the view that section 14(7) should be interpreted to include, in the range of matters constituting “some form of appeal or review” that “could be instituted”, an application for an extension of time in which to lodge an application for review.
Mr Booth submitted that section 119 of the Act means that section 14(7) should be interpreted so as to benefit Mr Booth. In this regard I was referred by the Commission to the Full Federal Court’s comment in Repatriation Commission v Bey (1997) 79 FCR 364 at 373, that:
... the material either points to a connection or it does not. If it does not, the deficiency cannot be remedied by resort to a procedural provision such as s 119(1)(g). The requirement to act according to substantial justice does not displace the Tribunal's obligation to act in accordance with law ... .
It was submitted for the Commission that the Veterans’ Entitlements Act operates in a manner that makes the veteran's claim valid or not valid and that section 119 does not assist the veteran to turn an invalid claim into a valid claim. I agree with this submission. I also agree that it would be a different matter if Mr Booth had exercised his right, within 12 months, to seek an extension of time to lodge an application and an extension had been refused by the Tribunal. However, he did not seek any extension of time.
Mr Booth submitted that it cannot have been the intention that section 14(7) be implemented in a “pedantic, too technical, or narrow way, when veterans are unrepresented throughout the process”. The file indicates, and I was informed by Counsel, that Mr Booth had the benefit of advice and representation from an advocate experienced in the operation of the Veterans’ Entitlements Act and a regular advocate in this Tribunal, albeit not legally qualified, from the time of his first claim and throughout the processes that followed, including his second hearing before the Veterans’ Review Board. It is not quite correct to say that Mr Booth was unrepresented. In any event, I heard no evidence from Mr Booth as to his understanding of the meaning of the relevant provisions. The submission is not persuasive. Section 14(7) clearly requires final determination before a veteran is “empowered” to make another claim in respect of the same injury or disease.
For the reasons set out above, I conclude that Mr Booth’s first claim was finally determined at the expiration of 12 months from the date on which he was given a document setting out the terms of the Veterans Review Board decision, that is, it was finally determined in May 2012. It follows that Mr Booth was not empowered to make a further claim in respect of the same injury or disease at the time of his second claim on 9 November 2011.
DECISION
The Tribunal sets aside the decision under review and remits it to the Repatriation Commission with directions that, pursuant to section 14(5) of the Veterans’ Entitlements Act 1986, Mr Booth was not empowered to make his second claim on 9 November 2011.
I certify that the preceding 24 (twenty -four) paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member. ........[Sgd]................................................................
Associate
Dated 26 May 2014
Date of hearing 16 May 2014 Applicant In person Counsel for the Applicant Ms M Rebehy Solicitors for the Applicant KCI Lawyers Counsel for the Respondent Ms K Eastman SC Solicitors for the Respondent AGS
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