Administrative Appeals Tribunal of Australia|1991-03-21

Re Gordon Francis Davidson and Repatriation Commission [1991] AATA 68; 13 AAR 195 (21 March 1991)

Veterans' Affairs - application for review erroneously sent to Department - prima facie application not made within time set by section 177(2)(a) of Veterans' Entitlements Act 1986 - Department under duty to actively assist applicant - Department was Tribunal's de facto agent obliged to forward application to Tribunal

Veterans' Affairs - ascertainment of date of claim - informal written claim and formal claim made - pension to be paid 3 months prior to date of informal claim pursuant to section 20(1) of Veterans' Entitlements Act 1986

The Tribunal decides to set aside the decision under review and, in substitution for it, it decides that the Commonwealth is liable to pay pension in accordance with the provisions of Part II of the Veterans' Entitlements Act 1986 to the applicant for incapacity resulting from a war-caused disease or war-caused diseases, namely dermatitis with discoid eczema and pruritis ani, with effect from 21 February 1985.

The decision under review in these proceedings is a decision of the Repatriation Commission made on 20 January 1986 which refused the applicant's claim for pension and treatment for a condition claimed by him to be discoid eczema. That decision had been affirmed by the Veterans' Review Board on 29 May 1989. The decision under review was made under the Repatriation Act 1920 ("the Repatriation Act") but affirmed under the Veterans' Entitlements Act 1986 ("the Veterans' Entitlements Act"). At the hearing of the application the applicant was represented by Mr R. Ball, a solicitor, and the respondent by Mr K. Gunton, a departmental officer.

2. At the commencement of the hearing the documents lodged with the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were tendered in evidence. Mr Ball and Mr Gunton then informed the Tribunal that the respondent now accepted that the applicant was suffering from dermatitis with discoid eczema and pruritis ani and that that disease or those diseases was or were war-caused, so that the Commonwealth was liable to pay pension to him for incapacity resulting from it or them. Having examined the documents which were tendered in evidence, I am satisfied that there is evidence to support that concession and that a decision in terms of the concession, which was accepted by Mr Ball as appropriately worded, should be the basis of the Tribunal's decision as to the Commonwealth's liability to pay pension. However, the parties informed the Tribunal that there was a dispute between them as to the date from which payment of the pension should be approved. There were two problems in relation to the date. The first was that the application for review was lodged with the Tribunal more than three months after the day on which the documents setting out the terms of the Veterans' Review Board's decision was furnished to the applicant. The second problem related to ascertainment of the date on which the applicant had made his claim for pension.

3. The first problem arose in somewhat unusual circumstances. After the Veterans' Review Board had made its decision it sent the applicant a copy of the decision with a covering letter dated 7 June 1989. The letter contained the following paragraph:-

decision with which you are dissatisfied. If this

is the case, you have a right to apply to the

Administrative Appeals Tribunal for review of the

Board's decision. The Repatriation Commission

also has this right. Details of your right to

apply to the Tribunal, and of the sources from

which you might seek legal or financial

assistance, are attached."

The documents lodged with the Tribunal do not include a copy of the details referred to in the last sentence of that paragraph. It is not clear, therefore, whether the applicant was told of the address of the Administrative Appeals Tribunal or not. Mr Ball informed the Tribunal that the applicant had noted on his copy of the letter that he had received it on 13 June 1989 and that shortly afterwards he had phoned the Department of Veterans' Affairs and spoken to an officer there. However, the applicant no longer had any recollection of having done so or why he had done so.

4. On 25 August 1989 the Department of Veterans' Affairs received from the applicant a letter addressed to the Deputy Commissioner, Department of Veterans' Affairs, the first paragraph of which read "I am again appealing against the Board's decision of 7th June 1989, which as you know is my right, for a review of the Board's decision". Although the decision of the Board was made on 29 May 1989 and it was the letter that was dated 7 June 1989, there was no suggestion that the applicant was referring to any other decision of the Board. The applicant's letter was sent to the Tribunal by the Department with a letter dated 21 September 1989 which began:-

"Please find enclosed an application to the

Administrative Appeals Tribunal received by this

Department on 25 August 1989. The original of Mr

Davidson's letter was forwarded to the Veterans'

Review Board after being incorrectly classified."

The two letters were received by the Tribunal on 25 September 1989. That date was more than three months after the date on which the applicant had received the Board's letter.

5. Sections 20 and 177(2)(a) of the Veterans' Entitlements Act read together have the effect that, if an application for review of a decision of the Board is made within three months after receipt by the applicant of a document setting out the terms of the decision, the earliest date which the Tribunal may approve as that from which pension is to be paid is three months before the date on which the claim for pension was made. However, if the application is made more than three months after the document was received by the applicant, section 177(2)(b) provides that the earliest date which the Tribunal can approve is a date not more than six months before the date on which the application to the Tribunal for review was itself made. As in the present case the applicant's claim was made more than four years before the application to the Tribunal was made, the period between the dates which the Tribunal may approve in the first of those situations from that which it may approve in the second is of considerable length.

6. Mr Gunton submitted that the application in the present instance had not been made until the applicant's letter had reached the Tribunal, so that section 177(2)(b) applied. He said that it was irrelevant that it had been received by the Department of Veterans' Affairs approximately three weeks before the expiration of the period of three months referred to in section 177(2)(a) and that the Department had neither forwarded it to the Tribunal expeditiously nor informed the applicant that he should have sent it not to the Department but to the Tribunal. Mr Ball, on the other hand, referred to the fact that the applicant was an elderly veteran, not legally represented at the time, and submitted that the Department had had a duty to take one or other of those actions. He submitted that the failure of the Department to do that should not be permitted to prejudice the applicant.

7. Provision for making application to the Tribunal for review of a decision is contained in section 29 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act"). Paragraph (d) of sub-section (1) of that section requires that, if the terms of the decision to be reviewed were recorded in writing and set out in a document furnished to the applicant, his application for review is to be lodged with the Tribunal within the prescribed time. The time is prescribed in sub-sections (2) and (3), sub-section (2) being amended by section 176 of the Veterans' Entitlements Act for the purposes of applications for review of decisions made under that Act. I am satisfied that the reference in section 177(2)(a) to the application being "made" is to the lodging of the application with the Tribunal. Prima facie, therefore, the application in these proceedings was not made within the time set by section 177(2)(a).

8. However, it is necessary to consider whether in the circumstances it should be taken to have been lodged when it was received by the Department of Veterans' Affairs or within a reasonable time thereafter, in which case it would have been made within the prescribed period. I am unable to accept the validity of - or indeed the propriety - of Mr Gunton's submission that the Department of Veterans' Affairs owed no duty to the applicant to deal with his letter in a way which would have resulted in his application for review being lodged with the Tribunal within the period of three months. The Department is a department of the Commonwealth. The Commonwealth is liable to pay pension under the provisions of the Veterans' Entitlements Act. The Department of Veterans' Affairs is responsible, under the Minister, for the administration of that Act. The Veterans' Entitlements Act is beneficial legislation providing for pensions to be paid to persons within a class many of whose members are of advanced years and which, since it is a cross-section of the general community of persons of their age, necessarily includes many who lack communication skills and experience of reading and acting upon written instructions. That being so, the Department undoubtedly has a duty to assist them more actively as required by the circumstances of the individual case and not simply to write letters to them informing them of their rights and thereafter to remain passive.

9. In the circumstances which arose in the present case, where the applicant made it known by his letter that it was intended to initiate an appeal agains the Veterans' Review Board's decision, the Department had a duty to give him appropriate assistance. It knew, or should have known, of the provisions of section 177; it is most unlikely that the applicant did so. It is, in my view, quite reprehensible for it now to attempt to deny that it had that duty.

10. Mr Gunton asserted that the Department of Veterans' Affairs did not receive the applicant's letter as agent of the Tribunal. As a general proposition it is undoubtedly true that the Department is not the Tribunal's agent in the sense of being authorized by the Tribunal to act on its behalf. However, from the perspective of an unsophisticated veteran the Department and the Tribunal are institutions of the Commonwealth not totally unrelated to one another in their functions. In the circumstances of the present case, therefore, I consider that although the Department did not receive the applicant's letter as the Tribunal's de jure agent, it was the Tribunal's de facto agent because of the obligation which it had to pass the letter on to the Tribunal. I have come to the conclusion, therefore, that the application in these proceedings is to be regarded as having been lodged with the Tribunal when, or within a reasonable time after, it was received by the Department and certainly before the expiration of the period referred to in section 177(2)(a).

11. I turn now to the second problem, ascertainment of the date of the applicant's claim. In the determination under review the respondent stated that it was lodged on 21 May 1985. Among the documents lodged with the Tribunal pursuant to section 37 of the AAT Act is a claim dated 12 June 1985 apparently received by the respondent on 13 June 1985. Mr Gunton informed the Tribunal that the departmental file showed that there had been a discussion between the applicant and an officer of the Department about his medical conditions on 29 May 1985. However, he could find nothing on the file to show that any document had been received from the applicant on 21 May 1985. In May and June 1985 section 24(4) of the Repatriation Act provided that the Repatriation Commission might approve payment of pension from a date three months before the date on which a claim for the pension was made in writing informally, i.e. not in accordance with a form approved for the purpose of such a claim, provided that a claim in the proper form was subsequently made within three months. In view of the reference by the Repatriation Commission to a claim having been lodged on 21 May 1985 and in view of the note of the discussion about the applicant's medical conditions on 29 May 1985, I consider it likely, notwithstanding the absence of any informal written claim in writing being on the departmental file now, that such an informal written claim was lodged on 21 May 1985. Consequently I am satisfied that, if the claim made on 13 June 1985 was a valid claim, at the time when the decision of the Repatriation Commission was made in January 1986 the Repatriation Commission could have approved a date three months before 21 May 1985 for the commencement of payment of pension if it had found that pension was payable.

12. However, also among the documents lodged pursuant to section 37 of the AAT Act is a claim for pension for incapacity resulting from dermatitis; it is dated 23 October 1984 and was apparently received by the Department of Veterans' Affairs on 24 October 1984. On 8 August 1969 the condition had been diagnosed as discoid eczema but a claim made at that time had been rejected by a Repatriation Board. The applicant had appealed to the Repatriation Commission but the Repatriation Commission had disallowed the appeal. The applicant had then appealed to the War Pensions Entitlement Appeal Tribunal, which had dismissed the appeal in July 1970. When the claim dated 23 October 1984 was received, the Department of Veterans' Affairs wrote to the applicant noting those facts and stating that "a claim may only be re-opened if you are able to produce further evidence which was not available when the claim was last considered and which in the opinion of the Repatriation Commission would constitute grounds for re-opening the case". Mr Gunton was unable to explain the basis upon which that statement was made, saying only that it must have been based on the legislation in force at the time] Mr Ball was also unable to assist the Tribunal.

13. In 1984 section 107VM of the Repatriation Act provided that, if at any time after a decision had been made by the Repatriation Review Tribunal on a review pursuant to an application made under section 107VC affirming the decision of the Repatriation Commission the applicant submitted further evidence to the Repatriation Commission, and if the Commission was satisfied that the further evidence was evidence that would have been relevant to the making of the decision affirmed by the Tribunal, the Commission should reconsider the claim. By virtue of section 49(1)(a) of the Repatriation Acts Amendment Act 1979 the decision of the War Pensions Entitlement Appeal Tribunal was deemed to be a decision of the Repatriation Review Tribunal made on review in pursuance of an application under section 107VC.

14. Neither party made any submission as to the effect of the provisions of section 107VM on the right of a person in 1984 to make a new claim under section 24 of the Repatriation Act for pension in respect of an injury or disease which was the subject of an earlier claim which had been rejected and in respect of which his appeals against the rejection had been affirmed by the Repatriation Commission and the Repatriation Review Tribunal. However, the provisions of section 107VM related expressly to that situation; in my view, it was intended that section 107 should make exclusive provision for it. That being so, I am satisfied that the view expressed by the Department in its letter to the applicant in response to the claim dated 23 October 1984 was correct. Consequently that purported claim was not a valid claim.

15. From 1 January 1985 section 107VM was repealed and not replaced by any provision having a like effect. I am satisfied that the informal claim made on 21 May 1985 and the formal claim lodged on 13 June 1985 were valid and constituted the claim in respect of which the decision under review was made. I find, therefore, that the earliest date from which payment of the pension can be approved is, by virtue of section 20(1) of the Veterans' Entitlements Act, 21 February 1985. It is clear that for some considerable time before the claim was made the applicant was suffering from the medical conditions in respect of which pension is payable. Accordingly, I have approved payment of the pension for incapacity resulting from those conditions from 21 February 1985.

Entitlements Act 1986

Appeals Tribunal Act 1975

Acts Amendment Act 1979

Re Gordon Francis Davidson and Repatriation Commission [1991] AATA 68; 13 AAR 195 (21 March 1991)

At a glance

Court

Decision date

Source

Judgment (27 paragraphs)

Re Gordon Francis Davidson and Repatriation Commission [1991] AATA 68; 13 AAR 195 (21 March 1991)

Legislation Cited (3)