Short and Repatriation Commission

[2007] AATA 1934

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1934

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/1311

VETERANS’ APPEALS DIVISION		)
Re		GRAHAM SHORT

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Dr K S Levy, RFD, Senior Member

Date9 November 2007

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

..................[Sgd]........................

SENIOR MEMBER  

CATCHWORDS

VETERANS’ AFFAIRS – claim for arrears of rent assistance – applicant claims he was not advised of the obligation to notify the department of changes in his rent – evidence of six notices given to the applicant – the date of effect of the favourable determination is the date the applicant advised the department of the change – decision under review is affirmed

Veterans’ Entitlements Act 1986 (Cth) ss 36N, 54, 56G, 57A, 175, Schedule 6

RepatriationCommission v Gordon & Others (1990) 100 ALR 255

REASONS FOR DECISION

9 November 2007	Dr K S Levy, RFD, Senior Member
INTRODUCTION

1. Graham Short (the applicant) claims arrears of rent assistance. He sought review of the original decision of a delegate of the Repatriation Commission dated 6 October 2006 which approved an increase in rent assistance with effect from 5 October 2006. That decision was affirmed by another delegate under s 57A of the Veterans’ Entitlements Act1986 (the Act).

ISSUE

2.      Is Mr Short entitled to arrears of rent assistance for the period 20 March 2004 to 4 October 2006?

EVIDENCE

3.      The application which is the subject of this review, was dated 24 October 2006.  Mr Short states that he had never in the past been told by the Department of Veterans’ Affairs that he needed to contact the department if his rent increased.  He had many telephone and personal discussions with officers of the department but stated that he had never been advised of the requirement to provide rental information.  He first became aware that he may not be getting his due entitlements of rent assistance following an article in a Senior’s magazine.  He saw reference to there being a “sliding scale” of entitlements.  He spoke to departmental officers on the telephone and was advised that there was a booklet which all veterans should have received.  He did not recall receiving a copy of that publication but another one was mailed to him. On receipt of that, he then went into the department and asked where the reference to a “sliding scale” was.  Mr Short’s evidence was that the departmental officer was completely uninformed of those provisions.

4.      The record shows that the history of Mr Short’s knowledge and experience of dealing with the issues of rent assistance was that he had received a number of letters dating back to 1998.  On 4 January 2001, Mr Short notified the department of a change of address and also provided a copy of a current rent receipt, which was for $210.00 for the period 24 November 2001 to 8 December 2001.  That amount was a reduced amount of rent from that previously recorded (previously $290.00 per fortnight) but no variation to the rent assistance was made as Mr Short was still entitled to the maximum rent assistance.

5.      Mr Short stated that he made a number of enquiries over the years but on each occasion was told that the record indicated that he was receiving the maximum rent assistance.  However, on 20 March 2004, there was an increase in the threshold of rent assistance. Mr Short was then entitled to an increase in the amount of rent assistance he could receive.  As he had not notified the department of any change in rent payable for the period 4 January 2001 to 5 October 2006, the department determined that he was not entitled to any arrears of rent assistance for the period 20 March 2004 to 4 October 2006.  

6.      Mr Short’s oral evidence emphasised that he was angered by the treatment he received ever since he was accepted for a service pension.  He indicated that when he first applied for a service pension through the Department of Defence, he was told that he had never served in South Vietnam.  He had numerous phone calls disputing the department’s record.  He then stated he wrote “the most abusive letter” to the department about the decision of “idiots” in the department.  After receiving a phone call from an Air Commodore who was able to attest to Mr Short being on the flight that this officer flew to South Vietnam, he was then accepted for a service pension.

7.      His experience since that time with the Department of Veterans’ Affairs has obviously been equally aggravating.  His contact with the department was only so that he might get some “help”, but he provided evidence that the officers with whom he often dealt had little knowledge of the department’s systems and veteran’s entitlements.  He was particularly incensed by the “arrogance” of the departmental officers.

8.      He stated however, that he had letters from the department over the years but he had not been getting letters “as of late”.  He claimed he was entitled to arrears of payment of rent assistance as he had never been told of his obligation to inform the department of the amount of rent payable.

CONSIDERATION

9.      In determining the issue before the Tribunal, I make the following findings of fact:

(1)      Mr Short received a letter dated 15 June 1998.  That letter showed payments made to him of service pension, rent assistance and      pharmaceutical allowance.  It also was accompanied by a booklet sent     to veterans at that time advising of information on pensions,            allowances, as well obligations and rights of service pensioners.  It also      referred to services available. The booklet set out obligations (things he            needs to tell the department about) and, inferentially, things he did not need to tell the department about. That letter informed him of the    requirement to advise the department of change in the amount of rent     paid by him, and other issues within 21 days.

The letter also had an attachment. The attachment included, inter alia, a section on “rent assistance”. It described that a service pensioner’s entitlement to rent assistance “depends on the amount of rent you pay and your family circumstances”.  It described the amount paid as being 75 cents in the dollar for the amount of rent paid over the stated rent limits.  It then set out the rent limits (per fortnight) and the maximum amount of rent assistance payable (per fortnight).

(2) The letter dated 24 June 2001 which was forwarded to Mr Short contained almost identical information and a similar format to the letter of 15 June 1998.  The letter of 24 June 2001 also had an attachment in similar terms to the attachment enclosed with the letter dated 15 June 1998.

(3) A letter of 21 June 2003 was provided to Mr Short.  That letter was similar to previous letters above with the exception that it did not specify the current rates payable to Mr Short of service pension, rental assistance or pharmaceutical allowance.  However, it did contain an attachment similar to the attachments to previous letters.

(4)Mr Short also received a letter dated 20 June 2004.  That letter and an attachment, were similar in form and content to the letter of 21 June 2003.

(5)Mr Short received a letter dated 19 June 2005.  This letter was again similar to the content and format of the letter and attachment of 21 June 2003.

(6)Mr Short received the letter dated 18 June 2006.  That letter and its attachment were also in similar form and content to the letter dated 21 June 2003.

(7)Mr Short has experienced frustration over a period of time in dealing with departmental officers. 

(8)He complied with the requirement of notifying the department of a change in rent assistance on 4 January 2001.  However, he has not again advised of a change of rent payable until 5 October 2006.

THE LAW

10. Section 36N provides for rent for service pensioners to be payable in accordance with the rate calculator. Schedule 6, Module C of the Act provides a rate calculator, with respect to rent assistance. It is provided in Module C that rent assistance is to be added to the maximum basic rate of service pension, where an applicant is eligible for rent assistance. The Tribunal has jurisdiction to consider the application for review of this decision (s 175(2) of the Act).

11. The real issue to be determined is whether Mr Short is entitled to arrears as claimed. This depends on the requirement for him to provide advice to the department of a change in circumstances (s 54(1)(d)). Where he has been provided with notice of the obligation to advise the department and there is a change in entitlements, and where a “favourable determination” is made in relation to his entitlements, the commencing date of the new entitlements are those as set out in s 56G(2), which provides as follows:

“56(G) Date of effect of favourable determination

(1) ………

Notified change of circumstances

(2) If:

(a) the favourable determination is made following a person having advised the Department of a change in circumstances;  and

(b) the change is not a decrease in the rate of the person’s maintenance income;

the determination takes effect on the day on which the advice was received or on the day on which the change occurred, whichever is the later”.

12.     I have carefully considered all of the evidence and the submissions made by Mr Short and the Repatriation Commission in determining whether arrears are payable.  I empathise with Mr Short’s circumstances.  He has a very negative view of government bureaucracy, and based on the evidence he presented, his view is understandable.  He has sought assistance in trying to understand his entitlements and that has not been facilitated by his dealings with a number of staff of the department. 

13.     He argued that he has not been provided with relevant information and that he has now been financially disadvantaged.  He said that he had not received notices.  From the findings of fact above, it is apparent however that he received notices in June for 6 of the years between June 1998 and June 2006.  His evidence about correspondence from the department was that he had not received letters “of late”.  He also could not recall receiving a booklet about his entitlements although he acknowledged another was sent to him.  But this is not a case of trying to establish the delivery of notices to him in the ordinary course of the post.  As in Repatriation Commission v Gordon & Others (1990) 100 ALR 255, it was said that not receiving notices is not the same as non delivery (per Spender J). The evidence here does not raise a reasonable doubt that Mr Short had no previous knowledge. There is evidence of at least six notices being sent to the applicant and that he complied with the obligation to inform the department of a change in his rent payable on at least one occasion in 2001. He did not then inform the department of any further changes until 5 October 2006. Mr Short stated that he now realises what he has to do for the future. Mr Smith, for the respondent, undertook to provide some assistance to Mr Short in having a draft letter of information which he could send to the department periodically to ensure that he got a response with the information of interest to him from time to time. Such a draft letter would be able to be used to advise changes to the department in the rent he pays so that he might then be paid his correct entitlements in a more timely way.

14. The facts show that the letter of advice of obligations and entitlements had been provided from the department on at least six occasions over the past 8 years. There have been quite a number of phone calls and personal discussions with officers of the Department of Veterans’ Affairs, frustrating as they have been for Mr Short. Nevertheless, the law requires Mr Short be given notice under s 54 and I am satisfied he has received such notices. Section 56G(2) also sets out the effective date of the decision to pay entitlements following a “favourable determination”. That provision does not provide any discretion as a matter of law to the original decision maker. This Tribunal is similarly constrained.

15.     Therefore, the date of effect of the favourable determination is the later of the date of the advice received by the department or the date the change occurred.  In this case, that date is the date of advice to the department, 5 October 2006.  In those circumstances therefore, the only decision which can be made according to the statutory requirements is that arrears can only be paid from 5 October 2006.  In other words, arrears of rent assistance cannot be paid for the period 20 March 2004 to 4 October 2006.

16.     As a result of the reasoning above, the decision under reviewed must be affirmed. 

I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of Dr KS Levy, RFD, Senior Member

Signed:         .....................................................................................
           F Kamst, Legal Research Officer

Date/s of Hearing  17 September 2007
Date of Decision  9 November 2007
Applicant  Mr Short himself
Respondent  Mr M Smith, departmental advocate