VETERANS' AFFAIRS - service pension - overpayment - rate of payment - obligation to notify Commission of certain event or change of circumstances - question of jurisdiction - Tribunal does not have jurisdiction to review the decision - application dismissed

Social Security Act 1991 (Cth)

Veterans' Entitlements Act 1986 (Cth) - ss 56B, 57, 57(1)(b), 57(2), 57A, 57A(1), 57B, 205, 205(1), 205(8), 205(1A) and 175

Gault and Repatriation Commission [2016] AATA 622

Moretti and Repatriation Commission [2008] AATA 1067

Nelson and Repatriation Commission [2007] AATA 1069; (2007) 94 ALD 418

Rayfield and Repatriation Commission [2014] AATA 772

1. Mr Xuong Dich Au and his wife, Ms Mai Le ('the Applicants'), have been in receipt of the service pension pursuant to the Veterans' Entitlements Act 1986 (Cth) (the Act) since 2009. One of the obligations imposed on them by the Act is to inform the Repatriation Commission ('the Respondent') of changes in their income or assets.
2. On 13 March 2018, the Respondent reduced the Applicants' service pensions under section 56B of the Act with effect from 27 March 2018 following the lodgement by them of a Review of Personal and Financial Circumstances Form on 21 December 2017.[1] In this Form, the Applicants provided updates in relation to their business and employment income as well as amounts held in their superannuation and bank accounts.[2] On the same date, the Applicants were advised of this reduction to their service pensions and informed that their case was being referred for investigation of a possible overpayment.[3]
3. On 1 August 2018, a delegate of the Respondent retrospectively reduced the Applicants' service pensions with effect from 31 October 2013 up to and including 16 July 2018 ('the relevant period').[4] This reduction was to reflect increases in their employment and business income and other financial and non-financial assets which the delegate found were not notified to the Respondent. Records obtained from financial institutions and the Australian Taxation Office confirmed that the Applicants' actual account balances and business income were higher than that contained in the data held by the Respondent which had previously been provided to it by the Applicants.[5] On the same date, the Applicants were notified that a debt of $11,014.98 had been raised against each of them for the overpayment of the service pension during the relevant period.[6]
4. In an email to the Respondent dated 31 August 2018, the first named Applicant requested a review of the delegate's decision in relation to the overpayment of his and his wife's service pension.[7] He stated that he disagreed 'with the calculation of the overpayment in your calculation sheet'.
5. On 10 December 2018, a delegate of the Respondent reviewed the decision under section 57A and affirmed it under section 57B of the Act.[8] The delegate found that the Applicants failed to notify the Respondent of significant changes in earnings, business income and other assets within the required 14 day notification period. The delegate concluded that during the relevant period, the Applicants received rates of service pension in excess of the amount to which they were entitled. The difference is the amount of the service pension overpayments to the Applicants, which had been correctly calculated as $22,029.96 and is recoverable under section 205 of the Act.
6. On 20 March 2019, the Applicants applied to the Administrative Appeals Tribunal ('the Tribunal') for review of the decision.[9]
7. The review application was heard at hearings in Sydney on 25 September 2019 and 19 December 2019. The Applicants attended the hearings in person and were unrepresented.

1. Division 16 of Part IIIB of the Act provides for claimants and service pensioners to seek review of certain decisions. Section 57(1)(b) provides that a claimant may request the Respondent to review a decision by it in relation to a claim for a service pension.

57 Claimants and service pensioners may seek review of certain decisions

(1) A claimant who is dissatisfied with a decision of the Commission:

(b) in relation to a claim for a service pension or income support supplement; or

may request the Commission to review the decision.

(2) A person who is dissatisfied with a decision of the Commission:

(a) cancelling or suspending a service pension ...; or

(c) reducing or increasing the rate of a service pension ...;

may request the Commission to review the decision.

1. Sub-section 57A(1) requires that the person seeking review apply for it within three months of being notified of the decision.
2. Section 57B sets out the Respondent's powers where it receives a request for a review. If the Respondent reviews a decision under Division 16, it 'must affirm the decision or set it aside'. If it sets aside the decision, it must, subject to s 57B(3), substitute a new decision in accordance with the Act. It need not substitute a new decision if the decision to set aside is:

(a) a decision to cancel, suspend or reduce the rate of a service pension ... under section 56D or 56E; or

(b) a decision to increase the rate of a service pension ... under section 56C;

1. Part XII of the Act, entitled "Miscellaneous", provides for the overpayment of service pension. Sub-section 205(1) provides,

(1) This section applies where:

(a) in consequence of a false statement or representation, or of a failure or omission to comply with this Act, the regulations or any other legislative instrument made under this Act, an amount has been paid by way of pension, allowance or other pecuniary benefit under this Act that would not have been paid but for the false statement or representation or but for the failure or omission;

1. Section 205(8) of the Act defines 'recoverable amount' to mean 'an amount paid as mentioned in [s 205](1)(a)'. Section 205(1A) makes the recoverable amount recoverable in one of the ways specified, including by deductions, by proceedings in a court of competent jurisdiction or by instalments.
2. There is no provision in Part XII for review by the Respondent of decisions relating to overpayments. The only review rights specified in this Part apply in relation to decisions made by the Respondent in relation to amounts paid, or purported to have been paid, under the Social Security Act 1947 (Cth) or the Social Security Act 1991 (Cth).
3. The Tribunal's power to review decisions in respect of service pensions is provided for in Part X of the Act. The general power to seek a review by the Tribunal of decisions of the Respondent is set out in s 175 of the Act. Sub-section 175(2) provides:

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.

1. Previous Tribunal decisions have recognised two distinct aspects of the decision-making process in relation to the overpayment of a service pension. The most comprehensive outline of this distinction, and of the Tribunal's powers with respect to these two aspects, is contained in Deputy President Forgie's decision in Nelson and Repatriation Commission [2007] AATA 1069; (2007) 94 ALD 418 ('Nelson'). As DP Forgie recognised in Nelson, the first aspect of the decision-making process is that which deals with the basis on which the overpayment is raised which, in this case, is a change to the rate at which service pension is paid to the Applicants. Such a decision may be the subject of review by both the Respondent and the Tribunal.
2. The second aspect of decision-making in overpayment cases is the calculation of the overpayment and the decision to recover the consequent debt. It is this aspect of the decision-making process in relation to which the Applicants seek review by the Tribunal. In this case, there is what appears to be a decision made by the Respondent following an internal review under section 57B with respect to the calculation of the service pension overpayments and their recovery under section 205 of the Act. Whether this is an accurate description of the Respondent's actions depends upon the interpretation of section 57B and the operation of section 57 of the Act. As outlined above, section 57 sets out the circumstances in which persons dissatisfied with decisions of the Respondent may seek a review of the decision. It lists a variety of decisions which are capable of being made the subject of an internal review. These do not include decisions to raise and recover service pension payments alleged to have been overpaid. The decisions cannot therefore be the subject of an application for internal review under s 57A, nor can they be the subject of an application to the Tribunal for a review pursuant to s 175(2) of the Act. Accordingly, the Tribunal does not have jurisdiction to review the overpayment decisions, including the calculation of the overpayments.
3. This finding is consistent with earlier determinations of the Tribunal. In Nelson, DP Forgie concluded as follows in relation to overpayment decisions:

In all the cases in which it was considered, the Tribunal concluded that it did not have jurisdiction to review a decision to raise and recover an overpayment. Whether it had jurisdiction to review whether the pensioner had been in breach of the notification requirements or the rate of pension that would have been payable during the relevant period is a different matter. On their face, the vast majority of the cases have decided that the Tribunal does not have jurisdiction to review a decision to raise and or recover an overpayment of service pension when there has been a failure to comply with an obligation to notify of certain events. In giving their reasons they have, in essence, based their conclusion on the view that s 56B is a self-executing or self-operating provision. That conclusion is the basis of their further conclusion that a decision under s 56B is not a decision of the sort described in s 57 and so cannot be a decision reviewed by the Commission under s 57B and reviewable by the Tribunal under s 175.

1. DP Forgie's reasoning and findings in Nelson were approved of and applied in the Tribunal's subsequent decisions in Re Moretti and Repatriation Commission [2008] AATA 1067, Rayfield and Repatriation Commission [2014] AATA 772, and Gault and Repatriation Commission [2016] AATA 622.

1. Having considered the relevant provisions of the Act and the authorities outlined above, the Tribunal is satisfied that the Respondent's decision in relation to the calculation and recovery of overpayments of service pension to the Applicants during the relevant period is not a reviewable decision and the Tribunal does not have jurisdiction to determine the matter.

1. The Tribunal does not have jurisdiction in this matter and accordingly dismisses the application for review.

I certify that the preceding 21 (twenty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member Linda Kirk

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