STEVEN BELL and Repatriation Commission
[2013] AATA 548
•5 August 2013
[2013] AATA 548
Division VETERANS' APPEALS DIVISION File Number(s)
2013/2303
Re
STEVEN BELL
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Deputy President PE Hack SC
Date 5 August 2013 Place Brisbane The application is dismissed for want of jurisdiction.
.....................[SGD]..............................................
Deputy President PE Hack SC
CATCHWORDS
PRACTICE AND PROCEDURE – JURISDICTION – Whether application to Veterans’ Review Board was made outside statutory time limit – Whether the Veterans’ Review Board had power to review the decision of the Repatriation Commission – Application dismissed for want of jurisdiction
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth), ss 15(1), 135(1), 135(4), 135(5), 175
CASES
Re Smith & Repatriation Commission [1987] AATA 383
REASONS FOR DECISION
Deputy President PE Hack SC
5 August 2013
In February 2012 the applicant, Mr Steven Bell, was in receipt of a disability pension payable pursuant to s 13 of the Veterans’ Entitlements Act 1986 (Cth) (the VEA). That pension was payable, in part, because the respondent, the Repatriation Commission, had earlier accepted that Mr Bell was incapacitated from a war-caused condition, posttraumatic stress disorder. On 17 February 2012 Mr Bell's representative lodged a claim with the Commission by which he sought an increase in his disability pension on the basis that his posttraumatic stress disorder had become worse since the last assessment by the Commission.
On 29 February 2012 a delegate of the Commission determined to continue the payment of disability pension at 100% of the General Rate.
In January 2013, some 11 months after the Commission’s decision, Mr Bell applied to the Veterans’ Review Board for a review of the decision of 29 February 2012. On 26 March 2013 that Board decided to "affirm the decision under review" although reference to the Board’s reasons demonstrates that it did so on the basis that Mr Bell's application had been made outside the statutory time limit and that the Board had no power to vary or alter the decision.
By this application, lodged on 15 May 2013, Mr Bell seeks a review of the Board's decision.
The Commission has put in issue the Tribunal’s jurisdiction to deal with the application. For the reasons that follow, the Commission's argument must be accepted and the application dismissed. The Tribunal does not have power to review the Board's decision as the Board itself had no power to review the Commission's decision given Mr Bell's delay in making his application to the Board.
To understand why that is so it is necessary to set out some provisions of the VEA. So far as is presently relevant, s 13 of the VEA makes the Commonwealth liable to pay a pension, by way of compensation, to a veteran incapacitated from a war-caused injury or war-caused disease. Section 14(1) of the VEA permits a veteran to make a claim for pension in accordance with later subsections. It did not apply to Mr Bell as he was already in receipt of a pension. It was s 15(1) of the VEA that applied to Mr Bell. It reads,
A veteran who is in receipt of a pension under this Part in respect of the incapacity of the veteran may apply, in accordance with subsection (3) of this section, for an increase in the rate of the pension on the ground that the incapacity of the veteran has increased since the rate of the pension was assessed or last assessed.
Where such an application is made the Secretary is obliged to investigate the matter and cause the claim or application to be submitted to the Commission for its consideration and determination[1].
[1]See s 17, VEA.
Provision is made by Division 3 of Part IX of the VEA for the review by the Board of decisions of the Commission. Section 135(1) is in these terms,
Where a person:
(a)who has made a claim for a pension in accordance with section 14;
(b)who has made an application for a pension, or for an increased pension, in accordance with section 15; or
(c)who has made an application for attendant allowance under section 98;
is dissatisfied with any decision of the Commission in respect of the claim or application (including a decision under section 20 or 21 approving a date from which payment of a pension, or payment of a pension at a higher rate, may be made, but not being a decision under subsection 19A(1)), the person may, subject to this Act, make application to the Board for a review of the decision of the Commission.
The time for the making of such an application is governed by ss 135(4) and (5) of the VEA. They provide,
(4)Subject to subsections (5) and (5A), an application under subsection (1) or (2) to the Board to review a decision of the Commission may be made within 12 months after service on the person to whom the decision relates of a copy of that decision in accordance with subsection 34(2), but not otherwise.
(5)An application under subsection (1), (2) or (3) to the Board to review a decision of the Commission:
(a)assessing a rate of pension or increased rate of pension;
(b)refusing to grant a pension on the ground that the extent of the incapacity of the veteran is insufficient to justify the grant of a pension;
(c)refusing to increase the rate of a pension;
(d)reducing the rate of a pension; or
(e)cancelling or suspending a pension, or fixing the date of re-commencement of a pension that has been suspended;
may be made within 3 months after service on the person to whom the decision relates of a copy of that decision in accordance with subsection 34(2), but not otherwise.
Mr Bell relies on s 135(4) of the VEA as providing him with a period of 12 months after receipt of the Commission’s decision to seek a review of it by the Board. Had that been the case his application was made within time. But that is not the case. The generality of s 135(4) is modified by, that is, it is made subject to, the particular provisions of subsections (5) and (5A). The latter has no relevance however s 135(5)(c) of the VEA does. Mr Bell applied under s 15 of the VEA to increase the rate of his pension. The Commission refused to increase the rate of his pension. Thus there was a decision of the Commission refusing to increase the rate of a pension. By virtue of s 135(5) of the VEA Mr Bell could make an application to the Board to review such a decision within 3 months after service of a copy of that decision but not otherwise.
Mr Bell did not comply with the time limit imposed for an application to review a decision of the Commission refusing to increase the rate of his pension. There was thus no power in the Board to review the Commission’s decision. Ideally, the Board ought to have refused Mr Bell’s application on the basis that it had no power to review the Commission’s decision; to “affirm” the decision as the Board did was apt to confuse the issue, but the reasons the Board gave for adopting the course it took were undoubtedly correct.
The Tribunal’s jurisdiction to review decisions of the Board derives from s 175 of the VEA. It provides,
(1)Where a decision made by the Commission has been reviewed by the Board upon a request made under section 135 and affirmed, varied or set aside, then, subject to section 29 of the Administrative Appeals Tribunal Act 1975, application may be made to the Administrative Appeals Tribunal for a review:
(a)of the decision of the Commission that was so affirmed;
(b)of the decision of the Commission as so varied; or
(c)of the decision made by the Board in substitution for the decision so set aside;
as the case may be.
Despite the language used by the Board in its decision of 26 March 2013 it could not, in law, affirm the decision of the Commission; the only decision open to it was to refuse Mr Bell's application on the grounds that it lacked power to review the Commission's decision. There was no review by the Board and no valid application made by Mr Bell under s 135 of the VEA. There is then no power for this Tribunal to review the decision made by the Board. Mr Bell's application must be dismissed for want of jurisdiction.
Mr Bell relied on the decision in Re Smith & Repatriation Commission[2]. It does not assist him. The issue in that case was the date of effect of a decision of the Tribunal. It says nothing that would cast doubt on the plain words of s 135(5) of the VEA.
[2] [1987] AATA 383.
I certify that the preceding 11 (eleven) paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC ............[SGD].............................................
Associate
Dated 5 August 2013
Date(s) of hearing 1 August 2013 Advocate for the Applicant Mr P Gejas Advocate for the Respondent Mr J Kelly, Department of Veterans' Affairs
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