Tehan and Repatriation Commission

[2009] AATA 687

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 687

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/0118

VETERANS’ APPEALS DIVISION		)         No 2009/0141
Re		MICHAEL TEHAN AND ANGELINE TEHAN

Applicants

And REPATRIATION COMMISSION  

Respondent

DECISION

Tribunal Mr A Sweidan, Senior Member  

Date7 September 2009

PlacePerth

Decision The Tribunal affirms the decisions under review.  

..(sgd) Mr A Swedian...........

Senior Member

REASONS FOR DECISION

7 September 2009	Mr A Sweidan, Senior Member
Background

1.      On 29 July 2008, the applicants submitted a notification of a change in circumstances to the Department of Veterans’ Affairs and stated that the allocated pension belonging to Michael Tehan appeared to have previously been incorrectly recorded by the Department as a “managed investment”.

2.      On 23 September 2008, a Delegate of the Repatriation Commission reassessed the applicants’ rate of service pension in accordance with the 29 July 2008 notification, increasing it with effect from 29 July 2008.

3.      On 20 October 2008, the applicants applied for a review of the reassessment of their pensions by a Senior Delegate of the Repatriation Commission.

4.      On 19 December 2008, a Senior Delegate of the Repatriation Commission affirmed the Delegate’s decision of 23 September 2008.

5.      The applicants now seek review of the Senior Delegate’s decision by this Tribunal.

Facts

6.      The Senior Delegate’s findings were as follows.

History

7.      Mr and Mrs Tehan are currently receiving service pension payable under part III of the Veteran’s Entitlements Act 1986 (VEA). On 23 September 2008, a delegate of the Repatriation Commission increased their rate of pension following an advice and supporting document received  on 29 July 2009 regarding Mr Tehan’s allocated pension. It is this decision that is under review.

8.      Mr and Mrs Tehan’s claim for service pension was completed on 9 October 2002 with effect from 6 July 2002. At the time the form was completed, Mr Tehan correctly indicated that he did not have any income streams.

9.      However, later advice received in July 2008 showed the commencement date as 27 September 2002.

Legislation           

10.     In considering the contention I have had regard to section 56G of the VEA. This section explains the date of effect of favourable determination as:

“(1)     The day on which a determination under section 56C or 56F (in this section called the favourable determination) takes effect is worked out in accordance with this section.

Notified change of circumstances.

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

…”          

11.     In this case, the favourable determination is in accordance with section 56C of the Act.

12.     I have referred also to section 54 of the VEA 1986 which contains the legislative parts requiring a pension recipient to notify the Department about certain changes in their circumstances. In compliance with section 54, the Department sends regular notices to pensioners reminding them of their obligations. Mr and Mrs Tehan, as less than maximum rate pension recipients, are sent quarterly advices, which require them to notify the Department within 14 days of any change of circumstances that would affect their rate of pension, including changes in their financial assets. An examination of their file shows that they have been sent a reminder of their obligations on several occasions from date of grant.

13.     Mr Tehan would have received his letter advising him of his rate of service pension after 9 October 2002 and was obligated to advise the department that his circumstances had changed i.e. he had commenced an allocated pension with effect from 27 September 2002.

Determination                

14.     Therefore, the date of effect of the changes implemented by the Delegate, appear to be in accordance with the abovementioned provisions.

15.       While I can understand Mr and Mrs Tehan feeling that they should be entitled to the increase in service pension from the earlier date, unfortunately there is no discretion to backdate the effective payment date when granting such increases in service pension. In this situation the legislation concerning date of change is binding and I have no legal basis to disregard this requirement. I am bound by the legislation as was the Primary Delegate.    

16.     Having carefully considered all aspects of this appeal I am reasonably satisfied that the earliest date that can be used to increase Mr and Mrs Tehan’s service pension must be the date on which the department was first notified of Mr Tehan’s allocated pension, that being 29 July 2008.

17.     Therefore I affirm the Delegate’s decision of 23 September 2008.       

Issues for the Tribunal

18.      Whether, on the material before it, the Tribunal may be reasonably satisfied that the applicants notified the Repatriation Commission (through the Department of Veterans’ Affairs) of a change in circumstances leading to a favourable determination prior to 29 July 2008, and if so, on what date such notification was made.

Relevant Documents and Evidence Before the Tribunal

19.     The documents before the Tribunal consisted of the Section 37 statement and T documents numbered T1/1 to T23/100 and Additional T documents (appended to the respondent’s statement of facts, issues and contentions). Mr Tehan gave oral evidence.

Facts and Tribunal’s Findings

20.     The Tribunal finds the facts as follows based on the relevant documents and oral evidence of Mr Tehan.

21.     On 20 September 2002, the applicants submitted a claim for service pension. (T3/9)  The applicants provided details of their financial affairs, including personal superannuation plans with BT Funds Management. (T3/21 – 24). No information regarding an allocated pension was contained in the claim forms.

22.     Mr Tehan claims that he told the officer with whom he dealt that he would be starting an allocated pension at a future date. There is no documentary evidence to support this claim, which is contrary to the information contained in the claim forms.     

23.     Subsequently, on 8 November 2006, an officer of the Department of Veterans’ Affairs wrote to Mrs Tehan requesting that she supply updated product information concerning her investment with BT Financial Services. (Additional T documents)  An undated note on the file copy of that letter indicates that Mr Tehan telephoned the officer and advised of current BT Superwrap balances of $127 325 for himself and $264 320 for Mrs Tehan.  On 13 November 2006, a letter was sent to the applicants showing that change and that the BT Superwrap investments were being treated as managed investments.

24.     Then, on 6 November 2007, Mr Tehan wrote to the Department of Veterans’ Affairs and advised that Mrs Tehan’s superannuation account was being closed and the funds transferred to a pensions account, income from which would commence to be paid on 20 November 2007. (Additional T documents)  Mr Tehan included a statement from BT Financial Services indicating that this was an allocated pension.  The letter is stamped to indicate that service pension was reassessed on 23 November 2007.

25.      On 20 March 2008, Mr Tehan contacted the Department of Veterans’ Affairs by telephone and advised of further changes in the applicants’ investments, including the value of his investment with BT Superwrap as being $112,319 and Mrs Tehan’s pension account now being valued at $246,875. (Additional T documents)

26.     On 29 July 2008, Mr Tehan finally advised the Department of Veterans’ Affairs that his investment with BT Financial Services was an allocated pension, attending in person to do so. (Additional T documents)

Tribunal’s Findings

27.     The Tribunal finds on the evidence that Mr Tehan did not inform the Repatriation Commission of the characterisation of his investment with BT Superwrap as an allocated pension until 29 July 2008.  In contrast, he had done so in the case of Mrs Tehan’s account on 6 November 2007.

28.     The Tribunal cannot, on the evidence before it, be reasonably satisfied that Mr Tehan notified the respondent prior to 29 July 2008 of a change in his circumstances leading to a favourable determination.  Any increase in his service pension as a result of his investment being properly characterised as an allocated pension cannot, therefore be effective until 29 July 2008.

Decision

29.     The Tribunal affirms the decisions under review.

I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of Mr A Sweidan, Senior Member

Signed: (sgd) T Freeman..........

Associate

Date/s of Hearing  10 August 2009
Date of Decision  7 September 2009
Applicants’ Representative      Self represented    
Respondent’s Representative  Mr C Ponnuthurai
  Department of Veterans' Affairs