Weldon and Repatriation Commission
[2013] AATA 417
•21 June 2013
[2013] AATA 417
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/0209
Re
Thomas Weldon
APPLICANT
And
Repatriation Commission
RESPONDENT
DIRECTION
Tribunal Ms N Bell, Senior Member
Date 21 June 2013 Place Sydney This application for review will be listed for a directions hearing to determine the future progress of the matter.
..........[sgd]..............................................................
Ms N Bell, Senior Member
CATCHWORDS
PRACTICE AND PROCEDURE – application for special rate – correct date of application – whether the provisions of section 24 of Veterans Entitlement Act can be applied for increase to the special rate of pension – direction for review to be determined for future progress
LEGISLATION
Veterans Entitlements Act 1986 (Cth), ss 20, 21, 24, 19(9), 31, 31(10), 135, 135(1)
REASONS FOR DIRECTION
Ms N Bell, Senior Member
21 June 2013
This concerns the question of whether the provisions of section 24 of the Veterans Entitlements Act 1986 applicable to persons under the age of 65 can be applied to the application for increase to the special rate of pension made by Thomas Weldon. This turns on the question of the correct application date, which is defined in the Act (s 19 (9)) as the day on which an application was received at an office of the Department of Veterans’ Affairs. It is agreed by the parties that if the application day fell after Mr Welden turned 65 then section 24 cannot apply and Mr Weldon’s application for special rate of pension must fail.
For the reasons set out below I have concluded that the relevant application day fell after Mr Weldon turned 65.
In 1995 a decision was made to grant Mr Weldon a pension in respect of generalised anxiety disorder.
On 11 April 2007 Mr Weldon lodged a Lifestyle Questionnaire with the Department of Veterans’ Affairs. It referred to a range of psychiatric symptoms and provided the name and telephone number of his psychiatrist. It was treated as an informal application for an increase of his rate of pension.
On 3 May 2007, Mr Weldon lodged a formal claim in respect of “depression” and an application for an increase of his rate of pension.
On 11 May 2007, the Repatriation Commission determined that Mr Weldon’s Depressive Disorder was war caused, with effect from 3 February 2007, and that his pension should continue at 100% of the general rate of pension.
On 9 June 2009, Mr Weldon lodged a claim for posttraumatic stress disorder (PTSD), irritable bowel syndrome and chronic obstructive airways disease. On 14 January 2010, the Commission accepted PTSD, irritable bowel syndrome and chronic obstructive pulmonary disease, with effect from 9 March 2009, and continued his pension at 100% of the general rate.
On 21 March 2011, the Commission reviewed (under section 31 of the Act) its decision of 14 January 2010 and decided, among other things, that PTSD was accepted, with effect from 3 February 2007 instead of 9 March 2009, and pension was continued at 100% of the general rate.
On 4 April 2011, Mr Weldon applied to the Veterans’ Review Board for review of the Commission’s decision of 21 March 2011.
On 18 November 2011, the decision (to accept PTSD and continue payment at 100%) was affirmed by the Board, noting a date of effect of 9 March 2011, three months prior to the date of the claim in accordance with the provisions of the Act.
On 18 January 2012, Mr Weldon applied to this Tribunal for review of the decision of the Board of 18 November 2011.
The Commission submitted that the decision under review, and therefore the decision before the Tribunal, is the decision that flowed from the application made by Mr Weldon on 9 June 2009 which was subsequently reviewed by the Commission pursuant to section 31 and reviewed and varied by the Board.
Pursuant to section 20 of the Act, the earliest date of effect of a determination as to pension is three months prior to the date of claim. The Commission submitted that the Act provides for no earlier date of effect.
Section 31 provides for reviews by the Commission of its own decisions in its discretion. The provision also states that if the Commission refuses or fails to review a decision in relation to a pension, the refusal or failure to review is not subject to review by the Board or by this Tribunal (s 31(10)).
The review under section 31 arose following a request by the legal representative of Mr Weldon to:
1. Review the decision of 11 May 2007 and vary that decision to provide that Mr Weldon’s claim for Depressive Disorder and Post Traumatic Stress Disorder is accepted, with effect from 11 January 2007 and make a new pension assessment from that date; and
2. Review the decision of 1995, in respect of GAD and vary it by substituting PTSD for GAD.
The discretionary review that was undertaken by the Commission was expressed to be a review of the decision made by the Commission on 14 January 2010. So much is clear on the face of the review decision.
The reasons for the review decision include the following:
Having considered all the issues in your case I am satisfied that there are no grounds to intervene and vary the decisions dated 20 March 1996 and 11 May 2007 under section 31 of the Veterans’ Entitlements Act 1986.
In relation to the decision dated 20 March 1996, there is no evidence that Mr Weldon was suffering from posttraumatic stress disorder on 20 March 1996. Mr Weldon consulted Dr Lambeth and Dr Thomson in 1995 and 1997 respectively and neither of these psychiatrists were able to diagnose posttraumatic stress disorder.
In relation to the decision dated 11 May 2007, although it did not fully answer the claim, the part of the claim which was determined was correct.
I have, however, decided to review the Delegate’s decision of 14 January 2010 accepting Mr Weldon’s claim for posttraumatic stress disorder with effect from 9 March 2009.
This is because posttraumatic stress disorder should have been answered in the decision dated 11 May 2007 and accepted with effect from 3 February 2007.
The reasons, as well as the decision itself, make it clear that there was no review of any decision except for the decision of 14 January 2010.
Confusion arises from the section 31 review decision’s purporting to alter the date of effect of the 2010 decision to accept PTSD. Counsel for Mr Weldon took me to the background concerning the earlier claim Mr Weldon had made in 2007 for “depression”. He submitted that this claim should have been taken as a claim for PTSD and that the Commission review officer had in effect reviewed the Commission’s decision on this earlier claim, remedying a failure by the Commission to consider PTSD as part of the earlier claim.
That is not what the review decision says, and nor is it possible according to the law.
Counsel submitted, in answer to the suggestion that the review officer acted without power, that “[i]t would be extraordinary if a review delegate was not conversant with the bread and butter provisions governing the Commission’s powers”. The extraordinariness of a review officer acting without legislative support may be noteworthy but it is no answer to the inevitable conclusion that he or she has acted without any legislative basis.
It was also submitted by Counsel for Mr Weldon that
… it is clear that the Commission dealt with the decision to accept PTSD, having regard to its finding that it had been the subject of the claim lodged on 3 May 2007. It acted to cure the delegate’s failure to deal with that outstanding claim when making the decision on 14 January 2010. It’s reasoning was brief but it unambiguously was dealing with and deciding that earlier claim for PTSD.
It is accurate that the Commission dealt with the decision to accept PTSD. It did so by reviewing it. Reference to other earlier decisions does not amount to a review of those decisions. The review officer’s reasons for decision, as set out above, make explicit that the only decision reviewed was the decision of 14 January 2010.
The review officer made an error by purporting to alter the date of effect of the 2010 decision to accept PTSD. It is clear that the Veterans’ Review Board thought so, concluding as follows:
As the delegate only intervened in the decision dated 14 January 2010, the Board has no power to go back to earlier decisions and dates of effect related to earlier decisions. The assessment period, in relation to the matter under review by the Board, can only commence from 9 March 2009 which is 3 months prior to the date of application on 9 June 2009 when the veteran applied for PTSD and other conditions.
The decision that is before this Tribunal is the decision as varied by the Board, including the variation outlined in the part of the Board’s decision extracted above.
That the Commission may have failed to deal with part of a claim in 2007, or that the review officer purported to do something remedial for which he had no power under the Act, does not matter for the purposes of determining the appropriate application date for the current application to this Tribunal. The date of effect of the decision to accept PTSD as a war caused condition cannot be any earlier than 9 March 2009. There is no construction of the Act that would allow otherwise.
The remedy for any failure by the Commission to accept a claim for PTSD that may have been made earlier than the claim in 2009 lies in the usual avenues for review of the decision on that claim. It does not lie in the review of a later decision in respect of another claim.
Counsel for Mr Weldon submitted that when Mr Weldon applied to the Veterans’ Review Board for review of the section 31 decision, he applied only for review of the decision to assess pension at 100% of the general rate and did not apply for a review of the decision setting a date from which payment of pension may be made. Counsel sought to separate out these matters and characterise them as separate and distinct decisions. The point of this appeared to be that the application for review filed by Mr Weldon with this Tribunal made no specific mention of a decision as to date of payment or date of effect and so, in Counsel’s submission, that decision as to date of effect remains intact and beyond the scope of this Tribunal’s review.
This submission was based on a somewhat strained construction of section 135(1) that relies on an inference that the particular mention in section 135(1) of “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” means that such a decision should be treated as a separate and distinct decision that, in order to be reviewed, must be explicitly and separately identified in any application to the Board or to this Tribunal for review.
Section 135(1) provides:
135 Review of decisions in respect of pensions and attendant allowances
(1) Where a person:
(a) who has made a claim for a pension in accordance with section 14;
(b) who has made 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.
This submission ignores the language of section 135(1) which is inclusive of decisions under sections 20 and 21 in the range of decisions of which review may be sought. The words of the section do not distinguish such decisions. They include them. The better interpretation is that the words of the section include “date of effect” decisions as ancillary to decisions on claims for pension or applications for increases in pension. The placement of the inclusive phrase in brackets following immediately after the words “claims or application” supports this interpretation.
To interpret the provision otherwise would mean that all of the decisions as to “date of effect” that have been reviewed by this Tribunal ancillary to applications for review of decisions as to grant of pension or rate of pension were not properly before the Tribunal. It would require veterans to precisely itemise, as a matter of course, every ancillary or subsidiary decision in every application to this Tribunal for review whenever a decision in respect of a claim or application is sought to be reviewed.
In his submission, Counsel illustrated the likely effect of his own argument. He listed as examples of other separate and distinct decisions that would require the explicit itemisation he maintains is necessary, decisions as to “operational service, whether [a person has] a disease, whether the disease is related to service, and the date of effect, and any assessment that follows from a decision granting a claim.”(Transcript, p.8) Counsel argued,
They’re all separate decisions and you have the right to appeal whichever one or more you’re dissatisfied with to the Tribunal. So what I’m saying in this case, the only decision that’s been appealed to the Tribunal is that assessing the rate of pension.” (Transcript, p.8)
I reject this submission.
The application date is 9 June 2009. Mr Weldon turned 65 on 9 September 2007.
It follows that the provisions of section 24 of the Veterans Entitlements Act 1986 applicable to persons under the age of 65 cannot be applied to the application for increase to the special rate of pension made by Mr Weldon.
DIRECTION
This application for review will be listed for a directions hearing to determine the future progress of the matter.
I certify that the preceding 37 (thirty -seven) paragraphs are a true copy of the reasons for the direction herein of Senior Member Bell. ............[sgd]............................................................
Associate
Dated 21 June 2013
Date of hearing 16 April 2013 Counsel for the Applicant C Colborne Solicitors for the Applicant Legal Aid Commission of NSW, Veterans Advocacy Service Advocate for the Respondent T O'Reilly, DVA Advocacy Section
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