Stephenson and Repatriation Commission
[2001] AATA 668
•13 July 2001
DECISION AND ORAL REASONS FOR DECISION [2001] AATA 668
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S1999/99
VETERANS' APPEALS DIVISION )
Re GERALD NEVILLE STEPHENSON
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Miss WJF Purcell
Date13 July 2001
PlaceAdelaide
Decision For the reasons given orally at the Hearing of this matter, the Tribunal varies the decision under review only insofar as the date of effect will be 19 September 1997 in lieu of 25 September 1997. In all other respects the Tribunal affirms the decision under review.
(Signed)
(W J F PURCELL)
Senior Member
CATCHWORDS
VETERANS' AFFAIRS - veterans' entitlements - Service Pension - Partner Service Pension – whether applicant notified Department of reduction in balance of term deposit – request for increase in Service Pension to be backdated-
Veterans' Entitlements Act 1986 s.56G(2)
ORAL REASONS FOR DECISION
13 July 2001 Miss WJF Purcell (Senior Member)
This is an application for review of a decision of a delegate of the Repatriation Commission (the Commission) of 4 November 1997, which determined that Service Pension should be increased with effect from 25 September 1997. The decision was affirmed by a delegate of the Commission on 17 December 1998.
The evidence before the Tribunal comprised the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T Documents), together with an exhibit tendered by the applicant, who gave oral evidence and appeared on his own behalf. Mr Doube, Departmental advocate, represented the Commission.
The applicant, who is 75 years of age, was granted Service Pension, as a single pensioner, with effect from 27 May 1993. Following a claim for Service Pension from the applicant's spouse, Janet Stephenson, Partner Service Pension was granted from 15 February 1996, whereupon the applicant's Service Pension was reduced from the single rate to the married rate on 29 February 1996. Subsequently Partner Service Pension was backdated to 1 February 1996. Details of Mrs Stephenson's income and assets were included in the Service Pension assessment. One of these investments was a term deposit of $66,980.63 with Australian Central Credit Union (the term deposit).
On 19 September 1997, the applicant advised the Commission by telephone that the balance of his wife's term deposit had been reduced to $6,000.00, and that the balance had been decreasing steadily since the end of 1995. He is recorded as stating also, that "he didn't think he had to tell us because the bank advised us" (T6/23). The Commission ascertained subsequently, that the funds had been expended on home improvements, and on 4 November 1997, Service Pension for the applicant and Mrs Stephenson was re-assessed and increased with effect from 25 September 1997, being the first pay day after notification.
On 10 December 1997, the applicant requested a review, and in his letter in support stated (T5/27):
"Thank you for your letter of 5 November 1997 regarding the adjustment to our Service Pensions effective from 25 September 1997.
We are seeking a review of that decision in order to implement the back-dating of the increases to those several dates from when the "term deposits etc" and the consequential income was periodically reduced. These additional arrears are easily calculated from the information already supplied to an officer in the Department, who was querying the veracity of what we were claiming.
As was said at the time of notification, your office was not informed earlier when each reduction occurred because we had been definitely told by a member of staff in the Department that we did not need to report such changes as the Department obtained them automatically from the financial institutions concerned. Although we were dubious at the time, we were reassured that this was the case; and this understanding on our part seems indeed to be reinforced by the advice generally tendered in the usual letters which say in part that there is no requirement to tell the Department of changes etc. unless the total assets reach a certain level.
It did not immediately register with either of us that no action had been taken on these financial asset reductions. It was not until September that we realised that there had been no adjustment.
We ask that this failure to notice that we were being short-changed be not turned into a penalty, and that an equitable back-dated adjustment be calculated and paid."On 6 January 1998, the Commission advised that, in the course of investigations in relation to a possible overpayment, they acquired a balance of $65,388 in the term deposit as at 23 July 1996, and had recalculated the Service Pensions using the more up-to-date balance. This resulted in arrears being paid retrospectively from 1 August 1996 up to 24 September 1997. On 20 January 1998, the applicant informed the Commission, in the course of a telephone conversation, that he was still dissatisfied with the decision. On 17 December 1998 the delegate affirmed the decision and in his Statement of Reasons said, in part, (T13/64-65):
"…
I have noted Mr Stephenson's contention that he was informed by a departmental officer that he did not have to advise of changes in the account balances of financial institutions, as the department obtained these details automatically. Unfortunately without knowing the exact form of words used in the conversation between Mr Stephenson and the departmental officer, I cannot comment on whether he was given incorrect advice or whether there was some misunderstanding. In any event there is no record on file of this conversation.
The department does not automatically obtain information from financial institutions. The obligation rests with the pensioner to advise the department of any changes in their financial circumstances.
I note on file that the original advice letter sent to both Mr and Mrs Stephenson when their service pensions were initially granted, and subsequent advices which have been sent at least annually, indicated that they should notify the department if their combined income or assets changed. In addition the quarterly advice sent to Mr and Mrs Stephenson in March 1997 stated their full list of income and assets, and showed that the balance of $66,980 in the Australian Central Credit Union was still being assessed for service pension purposes.
The legislation under which I am bound does not allow for discretion in such cases, and as such, I must make my determination in accordance with Section 56G(2) of the VEA. In the absence of any other evidence of earlier notification of Mr and Mrs Stephenson's periodic withdrawals from the Australian Central Credit Union term deposit, I hereby determine that the decision of the Delegate of the Repatriation Commission of 5 January 1998 was in line with the provisions of the legislation, and I therefore affirm the decision."
On 15 March 1999, the applicant applied to this Tribunal for a review of the decision and in his letter in support of the application stated, in part (T1/1-2):
"…
It is worthy perhaps of note, that notwithstanding assertions that the Act forbids it, backdated adjustments to our pensions were made as a result of the DVA making an inquiry of its own volition to a financial institution and despite the provision of Sec 56G(2). It is ironic I suppose that this minor correction was achieved as a result of DVA pursuing its agenda of standover tactics to bolster its fantasy that I had been overpaid as a result of some allegedly untrue information I had supplied earlier. It seemed to us at the time in question, and it seems to us now, that DVA does indeed make enquiries of institutions from time to time if it thinks it will, and acts on the responses it receives if it thinks fit. As the DVA seems to do as it likes in this regard we did not regard the advice we were given as anything remarkable.
Neither the DVA nor Mr Brown apparently believes that we received such advice; both parties seem not to care whether we did or not as one or both shelter behind the wording of the Act or ignore it whenever it suits the purpose.
The fact remains that we have indeed been underpaid, and furthermore, no matter what the file may say to the contrary neither I nor my wife, either separately or conjointly, have been overpaid at any time; we remain out of pocket. With regard to the matter just touched upon, is it not time that these stupid accusations that have hung over us for so long, and which are so hurtful and distressing in the extreme, be withdrawn? We deserve a handsome apology from those responsible for starting this particular hare, but in light of the recent discriminatory treatment meted out in regard to the widening of eligibility for the Gold card, I wont hold my breath.
I am ashamed and feel besmirched and demeaned at having to pursue these matters in this way; but I am not at all surprised, for I have gained the impression that the common way in which the DVA deals with its customers, with only minor exceptions, is arrogant, condescending and rude cloaked with a pseudo veneer of formality. Their usual attitude seems to exude an aura of meanness and penny-pinching and ordinarily a contemptuous disregard of the wishes of its mainly frail and elderly clients who seem to be regarded as importunate nuisances.
On the question of an appeal, if you are all so ham-strung by the wording of the Act and no-one has any discretion, then please tell me; if I am flogging a dead horse say so and we can all cease wasting each others time."
This matter, together with a conjoined matter, was listed for Hearing before the Tribunal on 24 January 2000. The other matter settled, and the Hearing was vacated. On 5 April 2000, a preliminary conference was held, and the matter was listed for Hearing on 8 August 2000. On 14 July 2000, the applicant requested that the Hearing be vacated, on the basis that he had been ill, and had not had time to lodge certain documents, and was under the impression that if these documents were lodged, the matter might settle.
On 16 March 2001 the Tribunal listed a Telephone Directions Hearing for 5 April 2001, to ascertain whether the Application had been finalised or, if not, whether the parties were ready to proceed. The applicant indicated at the Telephone Directions Hearing that he wished to pursue another matter, and requested that the Hearing be listed, but not before 1 July 2001. The Hearing was listed for today, 13 July 2001.
Section 56G(2) of the Veterans' Entitlements Act 1986 (the Act) has been amended since the making of the reviewable decision and as far as is relevant for the purposes of the review reads:
"56G Date of effect of favourable determination
….
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.
…"The applicant maintains that he and his wife were given advice by a Departmental Officer that there was no need to advise of a reduction in the amount of a term deposit, as the Department had access to that information. He maintains also, that in the light of his experiences with the Departmental Officer, and advice in the past, he wanted to make the point known, that there was room for maladministration. He has written now to the Minister, on 8 July 2001, in the following terms (Exhibit A1):
My wife and I have been disadvantaged financially by being erroneously led to believe by an officer of the DVA that the DVA would automatically adjust our pension rate upwards as our savings were periodically drawn down.
An instance whereby a reduction in an asset from $66,980.00 to $6,000 was not acted upon has been justified by the DVA on the grounds that no advice was received by them. My wife and I are clear that we were told orally by a departmental officer that the Department automatically adjusted its payments on the information obtained from the financial bodies concerned.
We seek Compensation for Detriment Caused By Defective Administration.
The Department has all the necessary documentation including letters of support for my credibility which were tendered in another matter conceded by your Department in January 2000. However, I attach a copy of the response that I made in March 1999 to an internal review carried out in December 1998. Since then the matter has been in abeyance before the AAT.
We would be pleased if this request for compensation could be processed reasonably quickly as it has already dragged on for some time."The Commission submits that the applicant and his spouse were under an obligation to advise the Department of any change in investments. The Commission is not under a duty to check and update ongoing account balances. The significant change in the balance of the term deposit is a notifiable event. The date of effect of a determination is governed by section 56G(2) of the Act. The legislation has been amended so that the date of effect is now the day on which the advice was received, or, on the day on which the change occurred, rather than on the first pension day after these events. The appropriate date of effect, under the current legislation, was therefore 19 September 1997, the date of the applicant's advice.
I have examined the whole of the evidence carefully and in detail, and taken into account the parties' submissions. The applicant has maintained at all times that he and his wife were provided with misleading information. This has meant that they have acted to their detriment. The applicable legislation, section 56G(2) of the Act, however, is specific, and there is not, in my view, any discretion available to the decision-maker, nor to this Tribunal, to vary the date of effect.
The letters of advice which are forwarded to pension recipients in relation to the current assets/income information held by the Department, in assessing the rate of payment, specify the obligation to notify of events, such as a change in the level of assets. It might be helpful if such forms advised recipients specifically, that in addition to an obligation to advise of an increase in assets and/or income, that it would be in their best interest to advise promptly, of any decrease relevant to the assets and income test.
Section 56G(2) of the Act specifies the date of effect – and I'm obliged to apply the legislation. I consider that the decision under review should be varied only insofar as to give effect to the recently amended legislation. For these reasons, the Tribunal varies the decision under review only insofar as the date of effect will be 19 September 1997 in lieu of 25 September 1997.
I certify that the 15 preceding paragraphs are a true copy of the reasons for the decision herein of Miss WJF Purcell
Signed: (J Coulthard)
Personal Assistant
Date/s of Hearing 13 July 2001
Date of Decision 13 July 2001
Counsel for the Applicant In person
Solicitor for the Applicant -
Counsel for the Respondent Mr Doube
Solicitor for the Respondent Department of Veterans' Affairs
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