procedural. Order that the Tribunal does not have power to review assessment of the applicant's rate of pension, except as that question arises if the applicant is successful with respect to his claim for...
Key principles
Under s 175 of the Veterans' Entitlements Act 1986 the Administrative Appeals Tribunal may review only a decision of the Commission that has been reviewed by the Veterans' Review...
Where the applicant limited the Board review to the claim for fractured T12 vertebrae, the Tribunal does not have power to review the assessment of the applicant's rate of...
The principle in Repatriation Commission v Stafford that a 'decision' under s 175 can be deconstructed into component determinations and an applicant can withdraw part of an...
Issues before the court
Whether the Administrative Appeals Tribunal can review the respondent's assessment of the applicant's rate of pension where the Veterans' Review...
Whether an applicant's failure to seek review of an assessment to the Veterans' Review Board, despite being informed of appeal rights, allows the...
Interpretation of 'decision' in s 175(1) of the Veterans' Entitlements Act: whether it encompasses component determinations that an applicant can...
Plain English Summary
The Tribunal held that because Mr Holloway asked the Veterans' Review Board to consider only his claim for a fractured T12 vertebra, and the Board did so and rejected it, the Tribunal cannot now review other decisions (in particular the rate of pension assessment) that were not put before the Board. The Tribunal's jurisdiction under s 175 is limited to decisions that the Board reviewed; assessment can only be revisited if the fractured T12 claim is accepted and assessment becomes relevant.
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Deep Dive
1,617 words · generated 30/06/2026
What happened
Daniel Holloway lodged a veterans' entitlements claim on 1 March 2007 identifying multiple medical conditions and expressly indicating both a claim and an application for increase in pension. Delegates on different occasions accepted some conditions and refused others. On 18 June 2007 a delegate accepted two conditions (upper limb and shoulders), increased the pension assessment to 70% and refused the right knee claim and the fractured T12 vertebra claim (first decision) (see Reasons [9]). Holloway subsequently sought internal review, and the respondent accepted the right knee claim under s 31 review and deferred assessment at that time (second decision) (see Reasons [10]-[11]). After resignation and an application for special rate, a delegate amended assessment to 100% of the general rate but declined payment at the higher special or intermediate rates, citing contributions from the not-accepted fractured T12 condition (third decision) (see Reasons [13]-[14]). Internal review affirmed that assessment (fourth decision) and advised Holloway of his review rights (see Reasons [16]).
Cited legislation
1 cited instrument linked from this judgment.
Holloway then sought review by the Veterans' Review Board. Importantly, his written application and the submissions by his advocate expressly limited the Board review to the refused fractured T12 claim; the advocate stated that the applicant did not seek review of any other aspects of the delegate's decision (see Reasons [17]-[19]). The Board confined its consideration accordingly and rejected the fractured T12 claim. Holloway appealed to the Administrative Appeals Tribunal under s 175 of the Veterans' Entitlements Act 1986.
The Tribunal was asked to determine whether, in addition to reviewing the refusal of the fractured T12 claim (which had been put before the Board), it also had power to review the Commission's pension assessment decisions that had not been before the Board. The Tribunal held that it did not have that power, except insofar as assessment became relevant if the fractured T12 claim were accepted (see Reasons [31]).
Why the court decided this way
The Tribunal's decision rests on statutory structure and prior authority. Section 175 provides that an application to the Administrative Appeals Tribunal lies where a decision of the Commission has been reviewed by the Board. The Tribunal emphasised that the starting point is to identify precisely what the Veterans' Review Board did review (see Reasons [21], [23]). The central legal principle the Tribunal applied, drawn from Repatriation Commission v Stafford, is that the "decision" under the Act can be parsed into component determinations. An applicant may elect to have the Board review some but not all component determinations; parts not requested for review are not before the Board and therefore cannot be reviewed by the Tribunal under s 175 (quoted and relied upon at Reasons [25]-[26], applied at [27]-[31]).
On the facts, Holloway's application to the Board, and his advocate's written submissions, were clear and unambiguous: the Board was asked to review only the refusal of the fractured T12 claim. The Board confined its consideration to that claim and rejected it. The assessment decisions (the third and fourth decisions which fixed pension at 100% and declined special or intermediate rates) were not put before the Board, and Holloway had not sought review of them through the Board. The Tribunal therefore concluded it lacked jurisdiction to consider the assessment decisions: jurisdiction is coterminous with what the Board reviewed under s 175 (see Reasons [23], [27]-[31]). The Tribunal also rejected the applicant's argument that because assessment remained 'on the table' with the original decision-maker, the Tribunal could address it; this would be inconsistent with the Stafford principle and the statutory framework (see Reasons [30]).
Before and after state of the law
Before Holloway, the Full Federal Court in Repatriation Commission v Stafford had already explained that a "decision" under the VEA can be treated as consisting of component determinations; an applicant can limit what is to be reviewed, and parts not requested under s 135 will not be reviewed by the Board, thus falling outside the Tribunal's jurisdiction under s 175. Holloway applies that principle directly to a common situation: where assessment questions arise separately from acceptance of particular conditions.
After Holloway, practitioners should be clear that the Tribunal's jurisdiction remains tied to what was before the Board. If an applicant wants pension assessment or rate questions to be open to Tribunal review, they need to ensure those matters were expressly raised before the Board. Holloway confirms that the Tribunal cannot, as a matter of jurisdiction, expand the Board's scope, and that procedural choices made at Board stage have binding consequences for later Tribunal review.
Key passages with plain-English translation
Key passage (Reasons [31]):
Text: "The Tribunal does not have the power to review assessment of the applicant's rate of pension, except as that question arises if Mr Holloway is successful in his claim for 'fractured vertebrae T12'."
Plain-English translation: Because Holloway only asked the Board to look at whether a T12 fracture was service-related, the Tribunal cannot now examine the earlier decisions about how much pension he should get unless the Tribunal first accepts the T12 claim. The Tribunal's power is limited to what the Board reviewed.
Key passage (Reasons [25]):
Text (quoting Stafford): "If the word 'decision' ... is understood as comprehending not only the decision as to the ultimate entitlement ... but also each determination as to whether a condition of entitlement ... has been satisfied, withdrawal pursuant to s 155 ... may be effected."
Plain-English translation: A single 'decision' can be broken into bits (each condition, each determination). You can withdraw parts of your review application, and things you did not ask the Board to look at will not be looked at later by the Tribunal.
Key passage (Reasons [17]-[19]):
Text: The applicant's advocate: "... to review that part of the decision refusing the claim for fractured vertebra. The applicant does not seek review of any other aspects of the delegate's decision."
Plain-English translation: Holloway's representative told the Board they only wanted the Board to consider the refused fractured vertebra claim and nothing else; that choice defined the Board's jurisdiction and therefore the Tribunal's.
What fact patterns trigger this precedent
An applicant lodges a multi-issue claim (for example several medical conditions and a concurrent application for increase in pension) and then, at the Veterans' Review Board stage, expressly limits the Board review to only a subset of those issues (for example, one particular condition).
A delegate has made separate determinations: acceptance/refusal of particular conditions, and assessment of pension rate. The applicant asks the Board to review only the acceptance/refusal of a condition and not the assessment decisions.
The Board confines its review to those issues expressly raised and refuses or accepts them without remitting assessment.
The applicant then applies to the Administrative Appeals Tribunal seeking review of the Commission's broader decision including assessment matters that were not reviewed by the Board.
In such fact patterns Holloway dictates that the Tribunal is confined to reviewing only what the Board reviewed; assessment decisions not put before the Board are not within Tribunal jurisdiction unless they become necessary as a consequence of the Board accepting a condition.
How later courts have treated it
In this Reasons for Order the Tribunal follows the Full Federal Court's analysis in Repatriation Commission v Stafford. Holloway explicitly cites and applies Stafford (see Reasons [25]-[26]) and also refers to Fitzmaurice and Bramwell as contextual authority on the structured review mechanism under the VEA (see Reasons [22]). Holloway operates at the Tribunal level to apply Stafford's principle to the common procedural situation where applicants narrow Board review.
Practitioners and later Tribunal panels will treat Holloway as a firm application of Stafford within the VEA context: the Tribunal will not assume jurisdiction over matters the Board did not review. It reinforces the lesson that choices at the Board stage have binding consequences for Tribunal review.
Still-open questions
Timing and inadvertent limitation: Holloway emphasises express and unambiguous limitation to Board review. It is less clear how the Tribunal will treat a case where the applicant's limitation was inadvertent or where the Board, through its procedures or transcript, could be seen to have considered additional matters without explicit withdrawal. Will the Tribunal permit expansion of scope where there is ambiguity about what the applicant sought? Holloway stresses clarity; ambiguity remains a practical issue.
Remitted assessments and incremental review: Holloway notes that it is usual practice for a review body that accepts a claim to remit assessment to the respondent (see Reasons [19]). Where a Board accepts a condition and remits assessment, subsequent Tribunal review of assessment will be governed by the mechanics of remittal. The present decision leaves open the practical interaction between remittal, subsequent delegate decisions, and Tribunal jurisdiction where remitted assessment is later determined by the Commission.
Interaction with s 31 internal reviews and timing: Holloway's procedural history involved internal reviews, deferred assessment and multiple delegate decisions. Questions remain about how closely the Tribunal will scrutinise whether a later delegate decision formed part of 'the decision' that the Board reviewed, particularly where timing between s 31 reviews, delegate adjustments, and Board applications is tight.
Proving 'unambiguous' limitation: The Tribunal relied on the applicant's written application and advocate's submissions. The threshold for 'clear and unambiguous' could be contested in other cases; the decision leaves unsettled precisely how explicit an applicant must be and what documentary or transcriptary evidence suffices to demonstrate they limited the Board review.
Practical takeaway for practitioners: if the client wants Tribunal review of assessment or other component determinations, ensure those matters are expressly put before the Veterans' Review Board. Holloway enforces procedural discipline: a decision to limit Board review will limit Tribunal jurisdiction.
Judgment (21 paragraphs)
[1]
Holloway and Repatriation Commission [2009] AATA 432 (15 June 2009)
The Tribunal does not have the power to review assessment of the applicant's rate of pension, except as that question arises if the applicant is successful with respect to his claim for "fractured vertebrae T12."
[4]
Mr Holloway, through his solicitor Mr B Piper, has raised the ambit of matters under review in his application to the Tribunal.
On its face, Mr Holloway's application in Form 1, appears to state plainly:
[5]
The veteran disagrees with the decision that his back injury was not caused by or related to his service...[1]
[6]
In that regard, it is beyond question that Mr Holloway has applied for review of his claim for "fractured T12 vertebrae," as he described the condition in his claim form, lodged with the respondent on 1 March 2007. That was what the Veterans' Review Board reviewed on 28 August 2008, and so that is on review here, at the applicant's request. That is because, in accordance with s 175 of the Veterans' Entitlements Act 1986 ("the Act"), a veteran can seek review of "a decision of the Commission [that] has been reviewed by a Board".
What also is clear, noting that Mr Holloway is presently paid at the maximum general rate of pension (that is 100%), is that if Mr Holloway's claim for fractured vertebrae is successful before the Tribunal, the Tribunal has the power to consider his entitlement to special and/or intermediate rates of pension ("the above general rates"). That too, is in accordance with provisions in the Act.
Mr Piper submits, however, that quite apart from this, it is open to the Tribunal to look at the question of Mr Holloway's entitlement to the above general rates, even if his claim for "fractured T12 vertebrae" fails. That is the nub of the issue that I must now consider: whether the Tribunal can review the assessment of Mr Holloway's rate of pension, if he is unsuccessful with respect to his claimed condition.
[7]
Before deciding the question of the ambit of Tribunal review, it is helpful to have an understanding of what has taken place in the course of Mr Holloway's reviews to date. Such a history assists in delineating what is reviewable here.
The starting point is Mr Holloway's claim. Its full details do not matter, but it is worth noting that the claim commenced as one relating to four medical conditions. The claim form specifically identified that Mr Holloway was lodging both:
a claim; and
an application for increase in Mr Holloway's rate of pension. [2]
These distinctions (between a "claim" and an "application for increase") are reflected in ss 14 and 15 of the Act. They may set in train a number of consequences, including, for the successful applicant, those with respect to setting dates of effect for favourable outcomes; and for setting time limits for further review. There may be consequences also for identifying the boundaries of subsequent review.
That said, it is sufficient to note that after the claim was lodged, a delegate on 18 June 2007:
accepted that two of the four conditions the subject of the claim (upper limb and shoulders), were related to Mr Holloway's Army service[3]; and
increased Mr Holloway's pension assessment to 70% of the general rate of pension, backdated in accordance with the Act to 1 December 2006 ("the first decision").
[8]
This meant that the right knee condition, and fractured T12 vertebrae were claims that had been refused, on the grounds that they were not related to Mr Holloway's service.
[9]
Mr Holloway, however, did not let matters rest there. He next asked (5 September 2007)[4] for a "review of my disability support pension", specifically, that his pension be increased to one of the above general rates, because he could not work more than 20 hours per week. He also requested that his right knee condition now be accepted, referring to a DVA letter "granting the claim". As the accompanying document made plain, Mr Holloway had made a successful claim with respect to the right knee under another Act, which deals with the workers' compensation rights of defence personnel. I would simply note that Mr Holloway's remark that the claim was now granted appears to be confusion on his part, not uncommon, where a medical condition can give rise to separate entitlements under two Acts. Mr Holloway, it should be noted, made no mention of the other outstanding claim for T12 fracture.
The respondent efficiently treated this letter as a request for review (utilising s31 of the Act, which allows for an internal review) and granted the right knee claim (the "second decision"). As the acceptance of this condition related to the first claim, and the request for review was made within time, Mr Holloway obtained the benefit of the same date of effect as was applied to the originally accepted conditions, i.e. 1 December 2006. The delegate, at this point of time, chose to defer assessment, stating that he lacked sufficient information to determine that question.
I would note however that Mr Holloway, as a result of being assessed at 70% of the general rate by the first decision, had a right to have the question of the above general rates looked at on any such reassessment. The above general rate questions were only of passing interest in the first decision; the delegate noting that Mr Holloway then was still working.
The next development came in October 2007 with Mr Holloway notifying his resignation. Accordingly, he now asked to be paid at the special rate (an application for increase), providing a supporting letter from his employer, to the effect that Mr Holloway was terminating his employment due to his service-related disabilities[5]. The respondent appears to have incorporated this additional information into the review Mr Holloway had sought on 5 September 2007, there being an outstanding consideration of assessment, which the second decision maker, it will be recalled, had deferred.
[10]
..... to review that part of the decision refusing the claim for fractured vertebra. The applicant does not seek review of any other aspects of the delegate's decision[10].
[11]
Mr Holloway's advocate fulsomely set out submissions with respect to connections between his T12 fracture and defence service,[11] addressing this through the applicable Statement of Principles for fractures. The submission concluded by stating that, should Mr Holloway be successful before the Board, he was asking that assessment of pension be remitted to the respondent. In accordance with the applicant's express wish, the Veterans' Review Board confined its considerations to reviewing the claim for fractured T12 vertebrae.
I had the advantage of reading the transcript of the hearing before the Veterans' Review Board; I note the Board mentioned that were the claim to be accepted, they would remit assessment to the respondent. This itself is unremarkable, and is a course frequently adopted in external reviews, quite apart from being in accordance with the applicant's wishes. In the event, the Board rejected the claim for the fracture, and accordingly was not called upon to re-assess (or remit) pension.
Before leaving this history of the review, I would emphasise that the Veterans' Review Board was not asked to, nor did they, review the third and fourth decisions (assessing the rate of pension).
[12]
It is s175 of the Act that enables an appeal to be made to the Administrative Appeals Tribunal ("the Tribunal"). Section 175(1) makes plain, that it is "a" decision of the Commission that has been reviewed by the Board and affirmed, varied or set aside, that may be made the subject of application for review by the Tribunal. The Tribunal may then review "the" decision of the Commission, as so affirmed or varied, or "the" decision of the Board in substitution for "the" decision so set aside.
In Fitzmaurice v Repatriation Commission[1989] FCA 147 Wilcox J noted that the critical question was what constituted the decision of the Board. As was observed by Weinberg J in Bramwell v Repatriation Commission(1998) 51 ALD 56, the Act provides for a highly structured mechanism by which claims to benefits are made, assessed and granted, as well as "elaborate mechanisms for review"[12].
In Mr Holloways' case there were a number of decisions that were amenable to review, in particular the first decision, with its outstanding claim for fracture at T12, and the third decision about assessment - as to which, I have already mentioned, he had been amply alerted about his rights of review[13]. I am satisfied that he appealed only one of these decisions to the Veterans' Review Board, that is, the first decision.
Having considered the parties' submissions in this matter, I am satisfied that the position as stated by the respondent with reference to what is now on review by this Tribunal is correct. The respondent's position can be summarised as follows:
Mr Holloway chose to limit his application to the Veterans' Review Board to the question of entitlement for T12 fracture, despite the respondent advising him of appeal rights on several occasions; and
[13]
If the word "decision" in the phrase quoted from s 135 is understood as comprehending not only the decision as to the ultimate entitlement which was the subject of the claim or application but also each determination as to whether a condition of entitlement stated in the Act has been satisfied, withdrawal pursuant to s 155 of the application for review of one or more of those determinations may be effected. And in the written application to the board for review of one or more of the determinations of the Commission as to whether conditions of entitlement have been satisfied may be excepted from the decisions of which review is sought, leaving for review only the ultimate decision as to entitlement and the determinations not excepted[14].
[14]
If the Commission's delegate's decisions that Mr Stafford did not suffer either chronic obstructive airways disease or hypertension had not been the subject of the application for review by the Board, or if those decisions had been withdrawn by Mr Stafford from the Board's review, then those decisions would not in our opinion have been susceptible of review by the Tribunal. Neither in Fitzmaurice v Repatriation Commission..... nor in any other decision of this court to which we were referred was anything said which would stand in the way of understanding the word "decision" in s 175(1)(a) as comprehending every decision of the Commission which was not the subject of review, either because it was not a decision in respect of which application for review was made or because application to review it had been withdrawn. The right conferred by s 175(1) to apply to the Tribunal for review arises only "[w]here a decision made by the Commission has been reviewed by the Board upon a request made under s 135 and affirmed. What is not requested under s 135 is not reviewed by the Board".
[15]
In my view, this is apt to describe what happened in Mr Holloway's case. Mr Holloway, not illogically, chose to pursue certain claims first, and let others, specifically as related to assessment, lie. In that regard, Mr Holloway's application for review to the Veterans' Review Board; and the written submissions determine the matter.
I do not accept Mr Piper's submission that the Board somehow impermissibly limited Mr Holloway's claim and refused to look at assessment matters. The transcript confirms this. There was no separate request for a review of assessment of his pension, despite Mr Holloway having been advised that was a course open to him. When Mr Holloway applied to the Board, he was within the time limits for review of the third decision, bearing in mind that he was told of his review rights then, and this was amply reinforced in writing by the fourth decision-maker.
The Board made but limited reference to assessment matters, only in the context of discussing usual practice, which is, remitting assessment where a review body accepts a claim. Taken in context, the Boards discussions do not support a conclusion that pension assessment was otherwise before the Board.
In that regard, Mr Piper's supplementary submission[15] that as long as the matter was before the original decision-maker then the matter can be dealt with by the Tribunal, is plainly wrong, and inconsistent with the principles expressed in Stafford.
[16]
The Tribunal does not have the power to review assessment of the applicant's rate of pension, except as that question arises if Mr Holloway is successful in his claim for "fractured vertebrae T12". The respondent's rejection of that claim was reviewed by the Veteran's Review Board. As a consequence, under s 175 of the Act, this then provides the limit of what the Tribunal has before it on review.
The Tribunal will conduct hearings in Darwin in the week commencing 24 August 2009. This matter will be listed for substantive hearing in those sittings. Pending listing, this matter is remitted to the Tribunal's conference processes.
[17]
I certify that the 34 preceding paragraphs are a true copy of the reasons for the order herein of M J Carstairs, Senior Member
[15] Supplementary submission, undated, at paragraph 3.
Legislation Cited (1)
Entitlements Act 1986
AI Analysis
Outcomeprocedural
Disposition:
Order that the Tribunal does not have power to review assessment of the applicant's rate of pension, except as that question arises if the applicant is successful with respect to his claim for fractured vertebrae T12; matter listed for substantive hearing if needed (see [31]-[32]).
On 23 October 2007 (this then being the "third decision") a delegate:
increased Mr Holloway's pension to 100% general rate; and
rejected payment at the above general rates, on the grounds, in effect, of contributions from Mr Holloway's non-accepted disability of fractured T12 vertebrae (and what appears to be resultant back pain).
Mr Holloway then asked for further review (requesting another s 31 internal review) of the assessment[6]. This was carried out, but the assessment outcome did not change; his pension remained at 100% (the "fourth decision")[7].
Importantly, this fourth decision (on 10 January 2008) clearly advised Mr Holloway's review rights, stating that Mr Holloway had not lodged, but should consider lodging, a request for review with the Veterans' Review Board, and telling him (correctly) that he had until 24 January 2008 to do so (this being the expiry of the three month statutory time limit for a review of the third decision).
Then on 15 January 2008, Mr Holloway, with the assistance of an advocate from the Returned and Services League, sought a review of the rejection of what was now the sole remaining claimed medical condition not yet granted under Mr Holloway's initial claim: fractured T12 vertebrae[8]. Mr Holloway specifically indentified in writing that he wanted the first decision reviewed by the Veterans' Review Board.
If there could be any doubt of this, it would be dispelled by the content of the advocate's submission to the Veterans' Review Board[9]. That stated, in clear terms, that the review was limited to Mr Holloway's claim for fractured T12 vertebrae:
where, as here, the veteran clearly and unambiguously limited what was on review, the Veterans' Review Board was correct to limit their review accordingly. Thereafter, that defines the scope of Tribunal review.
The second of these submissions accords with the Full Federal Court decision in Repatriation Commission v Stafford(1995) 38 ALD 193. The facts of that case need not be recited, except to observe that a Veterans' Review Board had limited the scope of review impermissibly, in that what was reviewed was not consistent with what the veteran had sought in his application to the Board. This was not corrected because the hearing was conducted on the papers. In other words the Veterans' Review Board had misstated the decision under review before it. On appeal Northrop J had observed that it would be a strange result if a veteran could be denied a right of review where the Board failed to consider parts of the decision being reviewed by it but nevertheless affirmed the whole of the Commission's decision. The Full Federal Court clearly agreed.
So whilst factual background in Stafford was different, the Full Federal Court went on to make plain was that it was quite open to an applicant to deconstruct the "decision" under review into its component parts and so limit the ambit of review: