ROBERT TOMBLIN and REPATRIATION COMMISSION

[2010] AATA 363

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 363

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No. 2010/0242

VETERANS’ APPEALS DIVISION		)
Re		ROBERT TOMBLIN

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Ms N Isenberg, Senior Member

Date18 May 2010

PlaceSydney

Decision The decision under review is affirmed.

.................[SGD]...........................

Ms N Isenberg

Senior Member

CATCHWORDS

VETERANS’ ENTITLEMENTS – service pension – date from which pension is payable – no discretion- the Tribunal decides that the decision under review is affirmed

LEGISLATION

Veterans’ Entitlements Act 1986: s37B

CASE LAW

Re Donohue and Repatriation Commission [2008] AATA 823

Ryde v Repatriation Commission [2005] FCAFC 108

Morrow v Repatriation Commission (1997) 44 ALD 797

The Oanh Nguyen and Repatriation Commission [2009] AATA 784

Alsford and Repatriation Commission [2010] AATA 160

Goulevitch and Repatriation Commission [1994] AATA 148

REASONS FOR DECISION

18 May 2010

Ms N Isenberg, Senior Member

1.      The decision under review is the decision of a senior delegate of the Department of Veterans Affairs (DVA) that affirmed the decision of a delegate to grant Mr Tomblin service pension with effect from 6 August 2009.

ISSUE BEFORE THE TRIBUNAL

2.      Is 6 August 2009 the earliest date from which service pension is payable to Mr Tomblin.

BACKGROUND

3.      Mr Tomblin served in the Royal Australian Navy. He served in HMAS Sydney during its voyages as a troop carrier during the Vietnam war and also HMAS Duchess.

4. In 2006 he received a ‘Gold Card’, an identification provided to a person who is eligible for treatment for all injuries or diseases under s 85(4A) of the Veterans’ Entitlements Act 1986 (VE Act).  He had the following accepted disabilities:

·Bilateral sensorineural hearing loss;

·Solar keratosis of the head, arms, trunk and legs;

·Osteoarthrosis of the right knee;

·Osteoarthrosis of the left knee;

·Malignant neoplasm of the prostate;

·Non melanotic malignant neoplasm of the head, arms, trunk and legs.

5.      On 13 September 2006 Mr Tomblin lodged a claim for an increase in disability pension, and on 5 October 2006 lodged a claim for disability pension for psychiatric conditions.  Those claims were disallowed, and a lengthy review process ensued.  Ultimately, on 16 July 2009, his claim was settled and his pension was increased to the Special (‘TPI’) Rate, with effect from 13 June 2006.  

6.      At the time he was informed he would be paid pension at the Special Rate Mr Tomblin was invited by DVA to apply for a service pension.  Mr Tomblin contends that he would have applied for the service pension at an earlier time but that he was not advised to do so by the DVA. 

7.      Mr Tomblin also contended that his claim for disability pension may be construed as an ‘improper’ claim for service pension on the basis of permanent incapacity. However, Mr Tomblin did not press this contention at hearing. 

LEGISLATIVE BACKGROUND

8.      Section 37B of the VE Act provides that, unlike a disability pension, an invalidity service pension is not payable before the date on which a veteran submits a claim for this pension.  This is a strict rule and the Tribunal has no discretion to vary the date of effect of a decision to grant service pension with effect from the date of application. This is subject, however, to exception indicated in section 37B(2). The exception provides that where the veteran has made an improper claim, which is subsequently rectified by the veteran making a proper claim, payments can be backdated to the date of the improper claim providing certain conditions are met.  

APPLICANT’S EVIDENCE and SUBMISSIONS

9.      Mr Tomblin submitted that DVA had a duty to help veterans, and that included informing veterans of their rights and potential entitlements. He felt that DVA had failed in that duty. 

10.     He understood that DVA’s position was that it was inadequately resourced to cross-reference veterans who, having met criteria for one benefit, might also be eligible for another benefit.  Mr Tomblin submitted that, as a consequence of this, DVA was failing veterans and he had met many veterans and widows who were unaware of their entitlements. 

11.     As to his knowledge of his own entitlements, Mr Tomblin conceded that he received DVA’s monthly newsletter which, amongst other things, contains information about benefits and increases in pension.  He also gave evidence that he had received advice about his entitlements from the Vietnam Veterans’ Association of Australia (VVAA) since 2004.  Mr Tomblin said his VVAA advocate could not now recall if she had asked DVA on his behalf for service pension application forms, but it is clear that no application was made on his behalf before 2009. This omission he may wish to pursue elsewhere  He had also received specialist (veterans’) legal advice in respect of his disability pension, and Special Rate application which culminated in settlement at the Tribunal last year.     

12.     Mr Tomblin also raised the decision of Goulevitch and Repatriation Commission [1994] AATA 148. It was noted by the Respondent that this matter was decided prior to Morrow v Repatriation Commission (1997) 44 ALD 797 and Ryde v Repatriation Commission [2005] FCAFC 108, giving rise to the possibility that it was inconsistent with these later decisions. Further to this, the Respondent also noted that Goulevitch could be distinguished on its facts.

CONSIDERATION

13.     I accept that Mr Tomblin considers that his treatment has been unfair and that, on behalf of the wider veterans’ community, he considers that they have been let down by DVA.  He contends that had he been told when he made his further claim for disability pension that he may also be entitled to a service pension, on account of stopping work due to ill health, he would not have delayed making a claim for service pension.  

14.     In ReDonohue and Repatriation Commission [2008] AATA 823 the Tribunal found that (at 17), although veterans’ legislation is of a beneficial type, that does not extend to the Tribunal the power to ignore the fact that no claim was actually lodged; in the present matter, until 6 August 2009. That means, unfortunately for Mr Tomblin, I have no discretion to vary the decision that is the subject of his application to this Tribunal. As a result I must affirm the decision under review.

15.     For completeness, I considered whether the application for disability pension dated 5 October 2006 might be considered to be an ‘improper’ claim for service pension under s 37B(2) of the VE Act.  I was referred to the cases of Ryde v Repatriation Commission [2005] FCAFC 108, Morrow v Repatriation Commission (1997) 44 ALD 797, and The Oanh Nguyen and Repatriation Commission [2009] AATA 784 and Alsford and Repatriation Commission [2010] AATA 160, in which the Full Federal Court, the Federal Court, and the Tribunal respectively held that a claim for pension must be on the approved form or at least indicate what the claim is intended for. A claim for pension cannot subsequently be re-interpreted to have another meaning.

16.     While I accept that it might be helpful if DVA were to engage in some cross-referencing to provide potentially eligible veterans with information that they may be entitled to make a claim, DVA does not, in my view, have an obligation to do so.  The entitlement scheme under the VE Act is a matter of public record.  DVA has an elaborate website and an informative newsletter.  Further, information about entitlements is readily available through ex–service organisations, of which the RSL and the VVAA are but two.  Any veteran can test his or her entitlement to a variety of benefits at any time.  I accept that there may be veterans who choose not to associate with other veterans or ex-service organisations, and that those veterans may benefit if DVA had some ‘outreach’ type of service. 

DECISION

17.     For the above reasons, I affirm the decision under review.

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: .........[sgd]............................................................................
           Associate

Date of Hearing  11 May 2010
Date of Decision  18 May 2010
  Applicant in person       
Counsel for the Respondent     Mr G Purcell
Solicitor for the Respondent     Department of Veteran’s Affairs