Warren Blake and Secretary, Department of Defence
[2012] AATA 780
•9 November 2012
[2012] AATA 780
| Division | GENERAL ADMINISTRATIVE DIVISION |
| File Number | 2012/2487 |
| Re | Warren Blake |
| APPLICANT | |
| And | Secretary, Department of Defence |
| RESPONDENT |
DECISION
| Tribunal | Regina Perton, Member |
| Date | 9 November 2012 |
| Place | Melbourne |
The Tribunal affirms the decision under review.
...............................[sgd].........................................
Regina Perton, Member
DEFENCE
Defence Home Ownership Assistance Scheme – subsidy certificate – applicant former member of Australian Army - inability to utilise certificate within validity period – application for fresh certificate – application refused as only one certificate available to former member – lack of discretion to take account of reasons why initial certificate not utilised.
Defence Home Ownership Scheme Act 2008 ss 13, 16, 17
Defence Home Ownership Scheme Regulations 2008 regulation 25
REASONS FOR DECISION
Regina Perton, Member
9 November 2012
Warren Blake served with the Australian Army (the Army) from 2001 to 2004, including operational service in East Timor. Mr Blake was discharged from the Army in December 2004 due to service related compensable conditions.
On 22 October 2010 Mr Blake applied for a subsidy certificate that would enable him to receive a subsidy under the Defence Home Ownership Assistance Scheme Act 2008 (the Act). The assistance scheme provides eligible Australian Defence Force (ADF) members and certain former members with access to a subsidy on the interest incurred on their home loan; a person who is given a subsidy certificate must either already have a loan in relation to which subsidy may be payable or take out such a loan within 12 months of being given the subsidy certificate.
Unfortunately, Mr Blake was unable to take out a loan within 12 months of the certificate being issued primarily due to his service related medical conditions; as a result, the subsidy certificate ceased to have effect. On 23 November 2011 Mr Blake applied for a further subsidy certificate. The request was refused on the basis that he had previously applied for, and been granted a certificate.
On 7 December 2011 Mr Blake applied for internal review of the decision to refuse his application. On 18 May 2011 the decision was affirmed. Mr Blake was advised that there is no discretion under the legislation to take his personal medical situation into consideration when determining his eligibility for a new subsidy certificate.
On 19 June 2012 Mr Blake lodged an application for review with the Tribunal. He gave his reason for seeking review as:
I believe the decision is unfair.
The issue for the Tribunal is whether Mr Blake qualifies for an additional subsidy certificate as a result of his 23 November 2011 application.
LEGISLATION
The Defence Home Ownership Assistance Scheme Act 2008 (the Act) and Defence Home Ownership Assistance Scheme Regulations 2008 (the Regulations) commenced on 1 July 2008.
Regulation 25 of the Regulations provides that a person who is discharged from the ADF prior to the commencement of the scheme will be eligible as an ‘Old Scheme Member’ under section 13 of the Act if they satisfy certain eligibility conditions:
Regulation 25 – Eligibility – incapacitated persons
This regulation provides access to a home loan interest subsidy for those former ADF members who were incapacitated persons under the DFHLA and unable to apply for a benefit before its finishing day due to their compensable disability. The regulation includes both those who are unable to apply at all under the old scheme before it finishes on 30 June 2010, and those granted an extended period to apply which they cannot use due to the intervention of the finishing day.
Section 16 of the Act sets out the circumstances in which a person may be given a subsidy:
Decision to give subsidy certificate--general
Scope
(1) This section applies if a person applies for a subsidy certificate in accordance with section 14.
Decision to give, or to refuse to give, subsidy certificate
(2) The Secretary must give a subsidy certificate to the applicant if:
(a) section 17, 18, 19 or 20 applies; and
(b) either:
(i) the applicant has a service credit (see section 46); or
(ii) for a case in which section 18 (surviving partners) applies--the applicant has a service credit, or would, if the subsidy certificate were in force, have a service credit (because of the operation of section 63).
(3) The Secretary:
(a) must refuse to give a subsidy certificate to the applicant if subsection (2) does not apply; and
(b) despite subsection (2), may refuse to give a subsidy certificate to the applicant under that subsection if, in relation to a previous entitlement period:
(i) the applicant failed to comply with section 42 (which deals with the disclosure of changes of circumstances); or
(ii) the Secretary has revoked an authorisation of the payment of subsidy to the applicant under section 44.
Section 17 of the Act sets out the criteria that the Secretary must be satisfied of in order to grant a subsidy certificate:
Decision to give subsidy certificate--eligible applicants
(1) Subject to this section, the Secretary must give a subsidy certificate to the applicant if the Secretary is satisfied that the applicant:
(a) is eligible; and
(b) does not hold a subsidy certificate that is in force; and
(c) if the applicant is not a member of the Defence Force--has not previously applied for a subsidy certificate since he or she stopped being a member of the Defence Force.
Time of application for subsidy certificate--incapacitated members
(2) If the applicant is eligible as an incapacitated member, the Secretary may give a subsidy certificate to the applicant under subsection (1) only if:
(a) the application for a subsidy certificate is made within 2 years after the applicant stopped being a member of the Defence Force because of his or her compensable condition; or
(b) the Secretary is satisfied that the applicant's compensable condition caused or contributed to the applicant's failure to apply for a subsidy certificate within that 2 years.
Time of application for subsidy certificate--separated members
(3) If the applicant is eligible as a separated member, the Secretary may give a subsidy certificate to the applicant under subsection (1) only if the application for a subsidy certificate is made within 2 years after the applicant stopped being a member of the Defence Force.
IS MR BLAKE ELIGIBLE FOR ANOTHER SUBSIDY CERTIFICATE?
Mr Blake was medically discharged from the Army on 22 December 2004 for service related compensable conditions. Due to his medical conditions Mr Blake is unable to regain a deployable profile in any trade within the Army and therefore is unsuitable for employment within the Army. Regulation 25 of the Regulations provides that the Defence Home Ownership Scheme extends to a person discharged prior to the commencement of the Scheme (2008) as an ‘Old Scheme Member’ under section 13 of the Act if they satisfy certain eligibility criteria.
The respondent determined that Mr Blake satisfied the criteria contained in regulation 25. Mr Blake also satisfied the criteria contained within s 16 and 17 of the Act in response to his application of 22 October 2010 and was issued with a subsidy certificate on 5 November 2010.
According to the respondent’s records, prior to the expiry of his subsidy certificate, Mr Blake contacted DHOAS staff to enquire about the possibility of the 12 month validity period being extended due to his medical issues. In an email sent to the DHOAS staff on 31 August 2011 Mr Blake asked for the validity period to be extended:
…I would like for you to consider granting me a 12 month extension to my entitlement. [D]ue to my service related conditions I have been unable to use my benefit in the allotted time frame. [D]ue to my severe ptsd I have not been in a frame of mind where I would have been able to safely apply for a loan.
Once the validity period on the subsidy certificate issued to Mr Blake expired, he wrote a further email to DHOAS staff on 7 November 2011:
…now that my entitlement has lapsed I am formally asking for an extension. I feel that as I was unable to use it due to medical conditions that I sustained in the army and am covered under dva for I feel I should be able to get one. I have a mental disorder and have been in and out of hospital as well as having surgery so I was not able to use it in time. I am currently going through the banks now so I know that I will use it in the next 12 months. If you need a medical certificate that wont be a problem.
In response to Mr Blake’s request an email was sent to him on 7 November 2011 in which he was told that no extension was possible and that an application for a further subsidy certificate would be rejected:
As previously advised in my earlier email we are unable to offer extensions to the 12 month validity period of the DHOAS Subsidy Certificate as per the Defence Home Ownership Assistance Scheme Act 2008.
If you wish to apply for a new Subsidy Certificate you will need to do so by completing the DHOAS Application for a Subsidy Certificate form…
As you have separated from the ADF and have been granted your one Subsidy Certificate post discharge if you apply, your application will be declined.
After contacting DHOAS staff by telephone and email on several occasions to discuss the expiry of the certificate, Mr Blake lodged an application for a further subsidy certificate on 23 November 2011. The request was denied.
Under the Act an application for a subsidy certificate may only be made once after a person stops being a member of the ADF. This limitation is contained within s 17(1) of the DHOAS Act. Section 17(1)(c) requires that for a certificate to be issued, where the applicant is no longer a member of the ADF, they must not have previously applied for a subsidy certificate since ceasing to be a member of the ADF. Mr Blake applied for, and was issued with, a subsidy certificate on 5 November 2010.
Mr Blake can only be issued with a subsidy certificate if he can satisfy the requirements contained within section 17(1) of the Act. Mr Blake cannot satisfy the requirement contained in s 17(1)(c) of the Act, which limits the number of certificates to one when a person stops being a member of the ADF.
The Tribunal is unable to make a decision favourable to Mr Blake as there is no power contained within the legislation for it to do so. It is unfortunate that there is no discretion available given the difficult circumstances Mr Blake was in during the period for which the subsidy certificate was valid.
DECISION
The Tribunal affirms the decision under review.
| I certify that the preceding 20 (twenty) paragraphs are a true copy of the reasons for the decision herein of Regina Perton, Member. |
.............................[sgd]...........................................
Assistant
Dated 9 November 2012
| Date of hearing | On the papers |
| Date final submissions received | 28 September 2012 |
| Applicant | Warren Blake |
| Counsel for the Respondent | Mr W Sharpe |
| Solicitors for the Respondent | Sparke Helmore |
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