.....................[sgd].........................

VETERANS' AFFAIRS - entitlements and benefits - whether the Tribunal has jurisdiction to review decision - Tribunal found no jurisdiction

Veterans' Entitlements Act 1986 (Cth), ss 56B, 57A, 175, 205, 206

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

Re Roberts and Repatriation Commission (1992) 26 ALD 611

1. These applications to the Tribunal arise with respect to service pensions received by Carlo and Linda Moretti in the period 19 September 2000 to 25 March 2005 (the relevant period). The applications refer to a decision made on 25 September 2007 (the substantive decision), that by reference to the relevant period, the Morettis had been overpaid service pensions totalling in excess of $53,000.
2. Mr Moretti died after the date of the substantive decision, and Mrs Moretti now continues his application for review, as executor of her husband's estate, as well as having an application in her own right. Their accountant, Mr S Cavallaro, of Cavallaro Leonardi Accountants, attended the hearing on Mrs Moretti's behalf.
3. The respondent opposes these two applications on "jurisdictional" grounds. As the respondent's argument runs, it can be summarised briefly as follows:
   • when Mr and Mrs Moretti were sent the written reasons for the substantive decision, the respondent told them that they had three months in which they could seek review of the decision. No written application was made within that three month period.
4. There was no real dispute about that sequence of events in this case. What can be gleaned from the written material was:
   • in 2006, the respondent provisionally advised Mr and Mrs Moretti that there might be a problem with their service pensions paid in the relevant period, and that they may have been overpaid; and
   • over the course of the next year, a delegate of the respondent carried out the review that had been flagged, and then forwarded to the Morettis the "Statement of Reasons" for the substantive decision, claiming for recovery of the sum of $53,361.50. The delegate's covering letter set out the available review rights, pointing out the need to request a review within three months from the date of the letter. The substantive decision being dated 25 September 2007, the Morettis had until about the end of December 2007 to request a review; and
   • the documents filed with the Tribunal indicate that following upon the substantive decision a number of a telephone contacts were made between the respondent's delegate and the Morettis' accountants. During several of those telephone calls, the accountant flagged Mr and Mrs Moretti's intention to seek review. Equally plainly, no written application for review was lodged; and
   • the Morettis' written application for review ultimately arrived about the end of February 2008, more than a month after the allotted time. For this reason, the review officer declined to re-examine the substantive decision, stating simply that the application was out of time.
5. The documentary materials before me included brief notes of the discussions in the telephone calls. On 23 October 2007, Mr Cavallaro rang the Department of Veterans' Affairs to complain about the substantive decision, explaining that the Morettis' income and assets were regularly updated with the Department and it could not be right that they had been overpaid. The file note recorded that Mr Cavallaro as saying he would write in "a.s.a.p". On 23 November 2007, someone at the Department of Veterans' Affairs again rang Mr Cavallaro's office to query when the request for review might be lodged. Mr Cavallaro was not available to take that call. On the next occasion (5 December 2007) an officer recorded that Mr Cavallaro was "off sick".
6. Bearing in mind the expiration of the appeal period, any telephone calls after December - and there were several in January and February 2008 - were too late. The statutory period had passed. Nevertheless, file notes dated 21 January, 14 February, and 18 February 2008 recorded that Mr Cavallaro had telephoned stating that he did not agree with the overpayment and that he still wished to appeal on behalf of the Morettis.

THE NATURE OF THE SUBSTANTIVE DECISION AND RIGHTS OF REVIEW

1. There are a number of points that ought be made about requests to this Tribunal for the review of decisions about overpayments of service pension. The first and most general is that a number of past Tribunal decisions have recognised two distinct aspects of the decision-making process in relation to such overpayments.
2. A most recent comprehensive outline of this distinction, and of the Tribunal's powers with respect to the two aspects, is to be found in Deputy President Forgie's decision in Nelson and Repatriation Commission [2007] AATA 1069; (2007) 94 ALD 418.
3. First, there is the aspect of decision-making that deals with preliminary matters relevant to raising an overpayment. This, in the usual cases, can be characterised as a "reconsideration of the rate at which service pension has been paid". Review of such matters can usually fall within the jurisdiction of this Tribunal. Review rights are provided by specific sections in the Veterans' Entitlements Act 1986 (the Act).
4. However, with respect to the other aspect of decision-making in debt cases, namely calculating the debt and electing to recover it, the case law unquestionably makes plain that this Tribunal lacks jurisdiction to review such matters. This is because the Act is silent on review rights, and for the reasons set out in Nelson[1] this means that jurisdiction has not been accorded to the Tribunal.
5. It was evident to me that in the Morettis' case, the substantive decision comprehended both aspects of the decision-making process. That is, it entailed a reconsideration of the rate of service pension paid to the Morettis in the relevant period, and it dealt with the overpayment, its calculation as a debt, and its recovery.
6. As to the first matter, the substantive decision referred to the rate of service pension, a matter arising under s 56B of the Act, and (internally) reviewable under s 57A. However, it could only be reviewed internally if review was sought within 3 months. This is as required by s 57A(1) of the Act:

(1) A request for review of a decision under section 57 must:

(a) be made within 3 months after the person seeking review was notified of the decision; and

(b) set out the grounds on which the request is made; and

(c) be in writing; and

(d) be lodged at an office of the Department in Australia in accordance with section 5T.

1. If the Morettis had made (internal) applications for review in a timely way, it is evident that at least part of the substantive decision (as it related to the rate of payment of service pension in the relevant period), potentially was reviewable by this Tribunal. However, once the time to request a review lapsed, there existed no discretion on the review officer's part (or on the part of this Tribunal), to extend time to the Morettis to have the substantive decision reviewed. This became a "jurisdictional" matter at the Tribunal level of review, because the review officer had declined to review the decision, on the grounds that time had elapsed. No matter can be heard by this Tribunal without a review officer having internally reviewed the decision. Section 175(2) of the Act provide for this.
2. Mr Stoner submitted, correctly in my view, that Re Roberts and Repatriation Commission (1992) 26 ALD 611, per President O'Conner J, is authority for the point that the time limits in the Act should be strictly observed. For one thing, the time limit is quite generous. For another, the absence of any discretionary provision to extend the time indicates a statutory intention of strict compliance. The requirement in s 57A of the Act that the application must be in writing lends some support for that view.
3. Lack of jurisdiction is even plainer with reference to the aspect of raising and recovery of debts. Those matters are dealt with under a different part of the Act - Part XII, headed "Miscellaneous". Section 205 in Part XII of the Act is the relevant section. The Act does not provide for bringing these matters in Part XII before the Tribunal. In that sense - as fully explained in Nelson[2] - the Tribunal is not given jurisdiction under the Act. The failing was not one arising from a late lodgement, but was more fundamental than that, arising in the Act itself.

1. The substantive decision had two aspects to it. The decision reviewed the adjustment of the rate of service pension paid to the applicants, and gave them a limited time in which to seek review of that matter. The Morettis had review rights, but they were lost when not exercised within time. On the other aspect of the substantive decision, there would seem to be no time bar to Mrs Moretti asking the respondent to reconsider the debt and its recovery under s 206 of the Act. The Act does not set time limits within which a person concerned by a debt and its recovery, may raise the matter with the respondent.
2. I have no doubt that the respondent, on its own motion, and without a request for review from Mrs Moretti, could re-look at the aspect of its decision-making under s 206. However, these comments are merely by way of observation; these matters do not come under the Tribunal's jurisdiction.
3. It may well be the case that should Mrs Moretti ask the respondent to look again at the debt and its recovery, the collateral question of the Morettis' assets and income profile in the relevant period could be raised as part of background matters relevant to the debt.
4. I note, in conclusion, that Mr Cavallaro is conversant with other available review rights, including to the Ombudsman's Office. However, as to the applications to this Tribunal, the Tribunal lacks jurisdiction to review the substantive decision.

I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of M J Carstairs, Senior Member

Signed:....................[sgd]..........................................................

Advocate for the Respondent Mr J Stoner, Department of Veterans' Affairs

[1] Re Nelson and Repatriation Commission (2007) ALD 418.

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