Vicars and Repatriation Commission

[2004] AATA 1022

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1022

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2004/47

VETERANS' APPEALS  DIVISION		)
Re		DAVID FRANK VICARS

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Ms A F Cunningham (Part-time Member)

Date30 September 2004

PlaceHobart

Decision The decision under review is affirmed.

[Sgd A F Cunningham].

Part-Time Member

CATCHWORDS

Veterans’ Entitlements – rate of aged service pension – receipt of overseas UK pension – meaning of “income” - decision affirmed.

Veterans’ Entitlements Act 1986 – s5H(1),(2)

Re Ridley and Director-General of Social Security (1983) 5 ALN 96.

REASONS FOR DECISION

30 September 2004 Ms A F Cunningham (Part-time Member)           

1.      Mr Vicars has sought the review of a decision of a senior delegate of the Repatriation Commission made on 27 February 2004, which affirmed a decision of a delegate of the Repatriation Commission made on 4 December 2003 reducing the Mr Vicars’ rate of service pension from $434.95 per fortnight to $427.68 per fortnight with effect from 25 November 2003.

2.      Mr Vicars currently resides in the United Kingdom.  Both parties consented to the Tribunal determining the application on the basis of the documentary evidence filed without the need for the parties to appear before the Tribunal.

3.      Mr Vicars’s application for review was submitted by letter addressed to the Tribunal and received on 29 April 2004.    In his letter of appeal  Mr Vicars stated that he strongly objected to “the action of Veterans’ Affairs”.    However  Mr Vicars did not specifically address the decision under review.   The Tribunal is uninformed as to the basis of the appeal.   In his letter Mr Vicars contends that he is “from a good family” and referred  in particular to their Christian lifestyle and influences.   Mr Vicars also referred to his work as a photographer with the RAF, but failed to refer to the decision to reduce his pension, which is the subject of this appeal.   A subsequent letter was received by the Tribunal on 13 July 2004 in response to the Tribunal’s letter regarding the hearing process but did not address the grounds of appeal.

4. Other documentary evidence before the Tribunal comprised the T documents which were lodged pursuant to s37 of the Administrative Appeals Tribunal Act 1975.

5.      The delegate’s decision made on 4 December 2003 to reduce Mr Vicars pension was as a result of information received from  Mr Vicars advising that the rate of his British Retirement Income (BRI) had increased to £38 per week.    In a letter from the Commission Mr Vicars was asked to advise the date of the BRI increase.    He was also reminded of his obligations in relation to the provision of information regarding variances to his financial circumstances.

6.      Mr Vicars requested a review of the decision which was completed by a delegate of the Repatriation Commission on 27 February 2004.   After a review of Mr Vicars pension file, the delegate affirmed the original decision made on 4 December 2003 to reduce  Mr Vicars service pension in light of receipt of the BRI.

7.      Mr Vicars was sent a letter by an income support officer on 15 October 2003, which included a statement of circumstances for him to complete for the purposes of updating his financial details.    In his claim form completed on 7 August 2001, Mr Vicars had advised that he was in receipt of a British Retirement Pension in the weekly sum of £33.52.

8.      In his request for a review of the original decision to reduce his pension, Mr Vicars stated that he had informed the pension office that he did not want a British pension.

9.      As correctly stated in the delegate’s decision of 27 February 2004 an applicant’s claim for an aged service pension can be rejected on the basis that an applicant refuses to claim a comparable foreign pension to which they are entitled.  

10. The evidence is that Mr Vicars is in receipt of a British service pension and as such the amount received from this source constitute income in accordance with sub-section 5H(1) of the Veterans’ Entitlements Act 1986 (“the Act”).   This sub-section defines income as:

“(a) an income amount earned, derived or received by the person for the person's own use or benefit.”

Sub-section 5H(2) defines:

“(2) A reference in this Act to an income amount earned, derived or received is a reference to:

(a        an income amount earned, derived or received by any means; and

(b)an income amount earned, derived or received from any source (whether within or outside Australia).”

11. In accordance with the above definitions, the amounts received by Mr Vicars by way of his British Service pension clearly constitute income for the purposes of the calculation of Mr Vicars pension entitlement under Schedule 6, Part II of the Act.

12.     The Tribunal on many prior occasions has held that the receipt of an overseas pension constitutes “income” in accordance with the above definition.   Specifically, a United Kingdom pension was class as “income” by the Tribunal in Re Ridley and Director-General of Social Security (1983) 5 ALN 96.

13. Mr Vicars has not contended that the reduced amount had been incorrectly calculated in accordance with the appropriate rate calculator provisions contained in the Act, nor that the date of commencement of the pension reduction from 25 November 2003 was incorrect. A copy of a letter addressed to Mr Vicars requesting information as to when the date of the UK pension increased to £38 per week suggests that this was in June 2003.

14.     In the absence of contrary evidence, the Tribunal has no basis upon which it can do other than affirm the decision under review in accordance with the appropriate legislation.    Whilst the Tribunal has considered the information provided by the applicant in his letter dated 13 March 2004, the Tribunal’s decision must be determined in accordance with the appropriate legislation. It has no discretion to consider the matters raised by Mr Vicars.

15.     The decision under review is affirmed.

I certify that the 15 preceding paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Part-time Member)

Signed  K L Miller (Administrative Assistant)

Date/s of Hearing  Matter decided on the papers.
Date of Decision  30 September 2004