The Estate of the late Sarah Isabella Stewart and Repatriation Commission
[2014] AATA 161
[2014] AATA 161
Division VETERANS' APPEALS DIVISION File Number
2013/5019
Re
The Estate of the late Sarah Isabella Stewart
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Mr R G Kenny, Senior Member
Date 25 March 2014 Place Brisbane The Tribunal has no jurisdiction in respect of the application for review.
............................Sgd.........................................
Mr R G Kenny, Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – Pensions and benefits – Death of war widow - Payments of Income Support Supplement and Bereavement Payment to estate of a war widow – Request by executor of estate to review rates of those payments - Executor of estate has no standing to seek review by the Repatriation Commission of the rates of those payments – The Administrative Appeals Tribunal has no jurisdiction to review the application
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth), ss 5E(1), 5Q, 13(1), 14, 30(1), 45A, 45S, 53P, 53Q, 57, 57A, 57B, 120(4), 121, 126, 175(2)
Administrative Appeals Tribunal Act 1975 (Cth) s 25
CASES
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307
Melis and Australian Postal Corporation [2014] AATA 58
Repatriation Commission v Smith (1987) 15 FLR 327
Secretary, Department of Social Security v Alvaro (1994) 34 ALD 72
Thayananthan v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 297
Zubair v Minister for Immigration and Indigenous Affairs (2004) 211 ALR 261
REASONS FOR DECISION
Mr R G Kenny, Senior Member
25 March 2014
BACKGROUND
Bevan Stewart (“Mr Stewart”) is an executor of the estate of his late mother,
Sarah Isabella Stewart (“Mrs Stewart”), a war widow[1] who died on 24 November 2012. At the time of her death, Mrs Stewart was in receipt of a war widow’s pension (“WWP”) under s 13(1) of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”)[2] and also income support supplement (“ISS”) in accordance with s 45A of the Act.[3] On being informed of Mrs Stewart’s death, the Repatriation Commission (“the respondent”) cancelled her WWP payments with effect from 13 November 2012, being the start of the pension instalment period in which she died. That was done in accordance with s 121(4) of
the Act. However, the payment for that pension instalment period had already been paid into Mrs Stewart’s nominated bank account by the respondent thereby creating an overpayment of WWP. One instalment of the ISS payment continued after Mrs Stewart’s death in accordance with s 53Q of the Act.[4] One instalment of the bereavement payment (“BP”) was also made in accordance with that provision of the Act.
[1] As the term is defined in s 5E(1) of the Veterans’ Entitlements Act 1986 (Cth).
[2] The rate of payment is determined in accordance with s 30 of the Act.
[3] The rate of payment is determined in accordance with s 45S of the Act.
[4] See also s 53P of the Act. Those provisions are in Part IIIB of the Act, as referred to in the definition of “pension” in s 5Q of the Act.
Information about Mrs Stewart’s WWP, ISS and BP was communicated to Mr Stewart by letters from the respondent on 27 and 29 November 2012. In a letter dated
6 December 2012, Mr Stewart referred to the overpayment of WWP and contended that, because the WWP was cancelled, Mrs Stewart should have been entitled to the higher rates of payment paid by Centrelink under social security legislation. On 18 March 2013, Mr Stewart wrote to the respondent in the following terms:
I refer to my conversation with Ms Lesley Taylor this morning advising me that the Repatriation Commission has declined my request for waiver of the recovery of an alleged overpayment of my mother’s War Widows pension.
I therefore request that the Department retrospectively increases the rate of her Income Support Supplement to the rate that she would have received under Centrelink with effect from the date of cancellation of her War Widows pension. This request also extends to the rate of Bereavement Payment.
That letter was treated by the respondent as an application to review the decisions of the respondent concerning the payments of ISS and BP. On 19 April 2013, a delegate of the respondent determined that the rates of both the ISS and the BP had been correctly calculated. On 26 April 2013, Mr Stewart wrote to the respondent requesting a review, under s 57(2)(d) of the Act, of the decisions concerning ISS and BP. On 4 July 2013, in purported reliance on s 57 of the Act, another delegate of the respondent affirmed the decision relating to those matters. On 1 October 2013, Mr Stewart applied for further review by the Administrative Appeals Tribunal (“the Tribunal”).
CONTENTIONS
For the respondent, Mr Bruce Williams submitted that Mr Stewart had no standing under the Act to initiate the reviews which the respondent undertook on 19 April 2013 and
4 July 2013 and no standing under the Act or the Administrative Appeals Tribunal
Act 1975 (Cth) (“the AAT Act”) to seek further review by the Tribunal. In particular, he referred to s 126 of the Act and submitted that this did not extend to someone inMr Stewart’s circumstances.
Mr Stewart submitted that the respondent’s decisions were made in accordance with s 57 and s 57B of the Act and that the decision of 4 July 2013 was reviewable by the Tribunal under s 175(2) of the Act. He referred to s 25(1) of the AAT Act and submitted that this enabled the matter to proceed in the Tribunal. He also submitted that standing was afforded to him through s 126(2) of the Act.
The issue for determination is whether Mr Stewart had standing to seek review of the decisions made by the respondent to pay ISS and BP to the estate of Mrs Stewart, to seek review in respect of the amounts of those payments, and to seek review, by the Tribunal, of the decision purportedly made by the respondent under s 57 of the Act.
STANDARD OF PROOF
The standard of proof for determining those issues is set out in s 120(4) of the Act which requires that such matters be determined to the Tribunal’s reasonable satisfaction.
This imports the civil standard of proof so that matters must be determined on the balance the probabilities.[5]
[5] Repatriation Commission v Smith (1987) 15 FCR 327 at 335.
CONSIDERATION
The provisions of the Act, in so far as relevant, referred to by Mr Stewart read:
57 Claimants and service pensioners may seek review of certain decisions
(1) A claimant who is dissatisfied with a decision of the Commission:
(a)in relation to a claim for a qualifying service determination under section 35B; or
(b)in relation to a claim for a service pension or income support supplement; or
(c)in relation to a request under section 52Y (financial hardship);
may request the Commission to review the decision.
(2) A pensioner who is dissatisfied with a decision of the Commission:
(a)cancelling or suspending a service pension or income support supplement; or
(b)terminating the suspension of a service pension or income support supplement; or
(c)reducing or increasing the rate of a service pension or income support supplement; or
(d)refusing a request for an increase in the rate of a service pension or income support supplement; or
(e)in relation to a request under section 52Y (financial hardship);
may request the Commission to review the decision.
(3) A person who is dissatisfied with a decision of the Commission under Part IIIAB (pension bonus and pension bonus bereavement payment) may request the Commission to review the decision. However, this rule does not apply to a decision of the Commission under:
(a)section 45TE (approval of form); or
(b)section 45TG (approval of places and persons); or
(c)section 45TO (declaration of non accruing membership); or
(d)paragraph 45UK(1)(b) (approval of form).
57A Application for review
(1) A request for review of a decision under section 57 must:
(a)be made within 3 months after the person seeking review was notified of the decision; and
(b)set out the grounds on which the request is made; and
(c)be in writing; and
(d)be lodged at an office of the Department in Australia in accordance with section 5T.
(1A)A request lodged in accordance with section 5T is taken to have been made on a day determined under that section.
(2) If a request for review of a decision is made in accordance with subsection (1) the Commission must review the decision.
(3)If the Commission has delegated its powers under this section to the person who made the decision under review, that person must not review the decision.
57B Commission’s powers where request for review
(1)If the Commission reviews a decision under this Division, the Commission must affirm the decision or set it aside.
(2) If the Commission sets the decision aside it must, subject to subsection (3), substitute a new decision in accordance with this Act.
(3) If the decision set aside is:
(a)a decision to cancel, suspend or reduce the rate of a service pension or income support supplement under section 56D or 56E; or
(b)a decision to increase the rate of a service pension or income support supplement under section 56C;
the Commission need not substitute another decision.
126 Death of a claimant
(1)On the death of a claimant, the claim does not lapse in respect of any period before the death of the claimant, but the legal personal representative of the claimant, or a person approved by the Commission, may take such action in respect of the claim as the claimant could have taken if the claimant had not died and, for that purpose, the legal personal representative or person so approved shall be treated as the claimant.
(2) On the death of a pensioner, the legal personal representative of the pensioner, or a person approved by the Commission, may take such action in respect of a variation of, or the suspension or cancellation of, the pensioner’s pension effected before the death of the pensioner, or effected after the death of the pensioner as from a date before the death of the pensioner, as the pensioner could have taken if he or she had not died and, for that purpose, the legal personal representative or person so approved shall be treated as the pensioner.
(3)……
(4) In this section, claim means a claim in accordance with section 14, 35B, 36D, 37D, 38D, 39D or 45I, an application in accordance with section 15, and an application for review under Division 16 of Part IIIB, section 135 or 175, and claimant has a corresponding meaning.
175 Applications for review
(1)……
(1A)……
(2)Where the Commission, under section 57B, affirms a decision of the Commission referred to in section 57 or sets it aside and substitutes another decision for it, a person may apply to the Administrative Appeals Tribunal for a review of the decision so affirmed or substituted.
It is common ground that the payments of ISS and BP in this matter were made by the respondent pursuant to provisions in the Act which operated automatically upon the respondent’s receipt of information concerning Mrs Stewart’s death. For that reason, neither the ISS nor the BP was the subject of a claim.
Mr Stewart contended that s 126 of the Act gave him standing to seek review of the rate at which the ISS and BP were paid. The respondent’s letter of 4 July 2013 purported to be a review “under s 57 of the Veterans Entitlement Act 1986”. Though no reference is made to s 57B of the Act in that letter, it would seem to have been made in purported reliance on that provision. The term “claimant” is used in s 57 of the Act. That term is not defined generally in the Act. However, ss 57, 57A and 57B of the Act fall within Division 16 of Part IIIB of the Act and, in accordance with s 126(4) of the Act, the term “claimant” in s 57 of the Act extends to a person who has sought review of a decision under that provision.
It is not disputed that Mr Stewart is the legal personal representative of Mrs Stewart.[6]
As I read it, s 126(1) of the Act applies where a claim or an application for review of a decision is made under the Act but not processed before the death of the claimant.
The section enables the claim to be continued by the legal personal representative who is treated as the claimant for that purpose under s 126(4) of the Act. That is not the position in this matter because Mrs Stewart’s claim had been fully processed before her death and no review was sought by her in relation to ISS or BP. I am reasonably satisfied that
s 126(1) has no application in this matter
[6] A copy of Mrs Stewart’s will was in evidence as was a grant of probate by the Supreme Court of Queensland dated 17 January 2013.
As I read s 126(2) of the Act, the legal personal representative may take action in respect of a variation, suspension or cancellation of a pension where that variation, suspension or cancellation was effected before the pensioner died. It also enables the legal personal representative to take action after the death of a pensioner in respect of a variation, suspension or cancellation of a pension where that variation, suspension or cancellation was effected after the death of a pensioner but from a date before the pensioner died.
In each of those cases, the legal personal representative is treated as the claimant for that purpose under s 126(4) of the Act. In that way, decisions adverse to the deceased, which had effect before death, may be remedied through the actions of the legal personal representative. However, the actions which may be taken by the legal personal representative are limited to those which Mrs Stewart could have taken if she had not died. Clearly, if Mrs Stewart had not died, the single instalments of the ISS and BP would not have been paid and could not be the subject of any review by her.
I am reasonably satisfied that s 126(2) does not apply to Mr Stewart.
I am reasonably satisfied that the respondent did not have jurisdiction to review the decision through the operation of ss 57, 57A or 57B of the Act. Mr Stewart is only a claimant under s 57(1) of the Act for the limited purposes set out in s 126. As noted above, this does not extend to reviews of the single payments of the ISS and BP.
Indeed, in any event, s 57 makes no reference to reviews of BP payments. Mr Stewart is not a “pensioner” under the Act and, accordingly, s 57(2) of the Act is not applicable to him. The application of s 57(3) of the Act is in relation to pension bonuses under
Part IIIAB of the Act and is not relevant in this matter. While it is accepted that
Mr Stewart raised an objection with the respondent about the ISS and BP payments, it was not done through any of the formal processes in s 57 of the Act. The procedure in
s 57A of the Act is applicable only to s 57 requests and does not apply in this matter. That is also the case with the power of the respondent to review decisions under s 57B of the Act as it is limited to reviews under Division 16 of the Act which relates to s 57 reviews only. While the respondent’s letter of 4 July 2013 purported to be a “decision” under s 57 of the Act, it was not and can only be characterised as an informal advice to Mr Stewart about the ISS and BP payments.
Where an enactment provides that an application may be made to the Tribunal for review of certain decisions, the Tribunal has jurisdiction, under s 25 of the AAT Act, to conduct that review. That provision reads:
25 Tribunal may review certain decisions
(1) An enactment may provide that applications may be made to the Tribunal:
(a)for review of decisions made in the exercise of powers conferred by that enactment; or
(b)for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment
Such provision is made under s 175(2) of the Act where the respondent, under s 57B of the Act, affirms a decision of the Commission referred to in s 57 of the Act. Mr Stewart contended that this enables the Tribunal to review the decision in the letter of
4 July 2013. However, as I am reasonably satisfied that neither s 57 nor 57B of the Act applies in this matter, I am also reasonably satisfied that s 175 of the Act does not confer jurisdiction on the Tribunal in the manner contended by Mr Stewart.
The Tribunal has jurisdiction to review a decision which was made in purported exercise of a statutory power even where the decision–maker was not empowered to exercise that power.[7] However, in this matter, the focus is not on the decision-maker but on
Mr Stewart who lacked the capacity under the Act to request the respondent to make the decision concerning the rate of ISS and BP. He also lacked the capacity to seek review of the respondent’s decision by the Tribunal.[8] In this circumstance, the Tribunal has no jurisdiction in respect of Mr Stewart’s application for review.
[7][8] See Melis and Australian Postal Corporation [2014] AATA 58.
DECISION
The Tribunal does not have jurisdiction in respect of the application.
I certify that the preceding 17 (seventeen) paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member ............................Sgd.........................................
Associate
Dated 25 March 2014
Dates of hearing 10, 13 & 20 February 2014 Advocate for the Applicant Craig Stewart Solicitors for the Respondent Bruce Williams, Department of Veterans' Affairs
See Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307, 314, 337, 342-343;
Zubair v Minister for Immigration and Indigenous Affairs (2004) 211 ALR 261; Thayananthan v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 297; and Secretary, Department of Social Security v Alvaro (1994) 34 ALD 72, 78.
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