Sleep v Repatriation Commission

[2008] AATA 1101

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 1101

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/1939

VETERANS' APPEALS DIVISION		)
Re		KENNETH JOHN SLEEP

Applicant

And REPATRIATION COMMISSION  

Respondent

DECISION

Tribunal Mr J G Short (Member)

Date10 December 2008

PlaceAdelaide

Decision The decision of the Repatriation Commissioner dated 13 August 2007, as affirmed by a decision of a review officer dated 19 March 2008, which reduced Mr Sleep’s rate of service pension from 26 August 2007, is affirmed.

..............................................

J G SHORT
  (Member)

CATCHWORDS

VETERANS’ AFFAIRS – veterans’ entitlements – service pension – application of assets test – superannuation products – reduction in pension rate – decision affirmed

Veterans’ Entitlements Act 1986 s 5Q, 52(1)

REASONS FOR DECISION

10 December 2008   Mr J G Short (Member)    

1.      The application is for review of a decision of the Repatriation Commission (the Commission) dated 13 August 2007 to reduce Mr Sleep’s rate of service pension and Mrs Sleep’s rate of partner pension, in reflection of the value of superannuation products with effect from 26 August 2007.  The decision was affirmed by a review officer on 19 March 2008.

2.      Mr Sleep was at all relevant times in receipt of special rate of pension.  Mr Sleep was also entitled to receive service pension, and Mrs Sleep, a partner pension. 

3. Mr Sleep attained the age of 60 years on 26 August 2007. The Commission’s decision was to apply an assets test with effect from 26 August 2007 and to include in Mr Sleep’s assets, superannuation products which he held on 26 August 2007. The Commission submitted that a person’s investment in a superannuation fund remains exempt from the assets test until a person reaches pension age. From that date, a person’s investment in a superannuation fund is no longer exempt and must form part of a person’s assets for purposes of calculating the appropriate rate at which service pension should be paid. Section 52(1)(f) of the Veterans’ Entitlements Act 1986 (the VE Act) relevantly provides as follows:

“52       Certain assets to be disregarded in calculating the value of a person’s assets

(1)In calculating the value of a person’s assets for the purposes of this Act (other than sections 52G, 52H, 52JA, 52JB, 52JC, 52JD, 52ZA and 52ZCA), disregard the following:

…

(f)the value of the person’s investment in:

(i)a superannuation fund; or

(ii)an approved deposit fund; or

(iii)a deferred annuity; or

(iiia)an ATO small superannuation account;

until the person:

(iv)reaches pension age; or

(v)commences to receive a pension or annuity out of the fund;

…”

4.      Mr Sleep turned 60 years of age on 26 August 2007 and as of that date,  he held the following superannuation products:

·AMP Capital Investors – N Link Personal Super – Balanced Direct Initial (A)

·AMP Capital Investors – N Link Personal Super – Balance Direct Investment Units

·Colonial X State Govt. Insurance Commission – S Personal Super Bond – Capital Guaranteed

5.      On 7 September 2007, the Commission received advice that Mr Sleep’s superannuation balance was, at that time, nil.  In response to this advice, the commission, with effect from 7 September 2007, disregarded the value of Mr Sleep’s superannuation products.

6.      Mr Sleep argued that his service pension, granted on the basis of permanent incapacity, should be exempt from the assets test.  Mr Sleep said that his special rate of disability pension had been granted in reflection of various medical conditions which had been accepted as being war-caused.  Mr Sleep said that his service pension, and Mrs Sleep’s partner service pension, were an adjunct to, or their eligibility for receipt of these payments, arose out of the same conditions for which he was granted special rate of disability pension.  As such, Mr Sleep suggested that his service pension took on the character of a special rate of disability pension and as his disability pension was not subject to an assets test, his service pension should also be exempt from such a test.  Mr Sleep suggested that as his incapacity has not improved, his service pension should not change.

consideration

7.      I have considered Mr Sleep’s contentions, ventilated at hearing and summarised in the last paragraph.  I have also considered all of the documents submitted by Mr Sleep and contained in the T documents, together with a statement of Mr Sleep dated 30 October 2008 and a letter from Mr Sleep dated 15 April 2002.

8.      Service Pension is defined in s 5Q of the VE Act as meaning:

“service pension means:

(a)       an age service pension; or

(b)       an invalidity service pension; or

(c)       a partner service pension.”

Defined in this way, an invalidity service pension falls under the definition of “service pension” in the Act and, in terms of the assets test, is not distinguished from the general assets test provisions applying to service pensions.

9. Pursuant to s 52(1)(f) of the VE Act, the value of Mr Sleep’s superannuation products are to be disregarded in calculating the value of his assets until he reaches pension age.

10. Pension age for veterans is defined in s 5Q of the VE Act which prescribes that a man reaches “pension age” when he turns 60 years.

11.     I could not find any legislative support for Mr Sleep’s contention that a service pension, provided on the basis of invalidity, is to be exempt from the assets test.  Whether this should be the case, and Mr Sleep strongly argues that it should be exempt, is not a matter for this Tribunal.  The legislation clearly provides that service pension is not exempt from the assets test and that superannuation products are only exempt from this test until a recipient attains the age of 60 years.  This occurred on 26 August 2007.  Thereafter, Mr Sleep divested himself of these products and the Commission were advised of this change in circumstances on 7 September 2007.  His rate of service pension thereafter, no longer reflected the holding of any superannuation products by Mr Sleep.

12.     I have carefully considered Mr Sleep’s submissions ventilated at hearing and his contentions, contained in various documents provided by him and now found in the T documents and in his statement dated 30 October 2008 and in a letter dated 15 April 2002. 

13.     Having considered all of Mr Sleep’s arguments, and having carefully reviewed the relevant legislation, I have formed the view that the Commission appropriately applied the governing legislation and in these circumstances, I affirm the decision under review.

I certify that the 13 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J G Short (Member)

Signed:         .........J Coulthard...............................................
  Associate

Date of Hearing  7 November 2008
Date of Decision  10 December 2008
Advocate for the Applicant       Self-represented

Advocate for the Respondent   Mr A Crowe

DVA