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9.2.2 Right of review under the VEA

9.2.2.1The Commission's powers to vary, cancel or suspend an income support pension are contained in Division 15 of Part IIIB VEA. Section 56 VEA, section 56A VEA and section 56B VEA provide for automatic reduction or termination of a pension. Section 56C VEA, section 56D VEA, section 56E VEA, section 56EA VEA, section 56EB VEA and section 56EC VEA allow the Commission to make a determination to vary, cancel or suspend a pension.

9.2.2.2Determinations (and assessments) are regarded as 'decisions' (refer section 5Q VEA) and therefore can be reviewed under the VEA.

9.2.2.3Initially the client may apply to the Repatriation Commission for a review of the primary decision. Section 57 VEA empowers the Repatriation Commission, or a person with delegated powers under this section, to review primary decisions. However, because section 57 VEA only provides a right of review to claimants or pensioners who are dissatisfied with a specific decision of the Commission, the automatic reduction or termination of a pension under section 56 VEA, section 56A VEA and section 56B VEA are not reviewable under the VEA. As self-operating/self-executing provisions, the delegate is neither able nor required to make a decision on a particular case. It is the view of Legal Services Group in National Office that the AAT has no right of review in automatic termination or reduction matters.

9.2.2.4However, in Re Cunningham and Repatriation Commission (1997a), the AAT considered that it has the capacity to examine whether all the requirements of paragraphs 56B(a)-(e) VEA were satisfied. If each of the conditions were satisfied, then there was no further right of review. However, if all of the conditions were not met, then the question arises as to whether a right of review should occur on the application of section 56D VEA.

9.2.2.5While under section 57 VEA there is no formal right of review against the decision to recover an overpayment, a pensioner may request to have a review of the original decision which led to the overpayment. Similarly, while there is no formal right of review against an automatic cancellation/reduction, a pensioner may request an officer of the Department to informally examine the facts of the case which lead to the reduction/cancellation. This would not be considered a formal review under section 57 VEA and therefore the decision would not be appealable to the AAT.

9.2.2.6When determining whether a pensioner has a right of review under the VEA, the key factor that needs to be considered is under which section of the VEA the income support pension was varied.

9.2.2.7Decisions which may be reviewed under section 57 VEA are:    

VEA ?

Review of Decisions – claimants and service pensioners

Section 57(1) VEA

VEA ? (go back)

57(1)              A claimant who is dissatisfied with a decision of the Commission:

(a)              in relation to a claim for a qualifying service determination under section 35B; or

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

(c)              in relation to a request under section 52Y (financial hardship);

may request the Commission to review the decision.

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

(a)              cancelling or suspending a service pension or income support supplement; or

(b)              terminating the suspension of a service pension or income support supplement; or

(c)              reducing or increasing the rate of a service pension or income support supplement; or

(d)              refusing a request for an increase in the rate of a service pension or income support supplement; or

(e)              in relation to a request under section 52Y (financial hardship);

may request the Commission to review the decision.

(3)              A person who is dissatisfied with a decision of the Commission under Part IIIAB (pension bonus) may request the Commission to review the decision. However, this rule does not apply to a decision of the Commission under:

(a)              section 45TE (approval of form); or

(b)              section 45TG (approval of places and persons); or

(c)              section 45TO (declaration of non-accruing membership); or

(d)              paragraph 45UK(1)(b) (approval of form).

9.2.2.8A request for a review of a decision under section 57 VEA must:

  • be made within 3 months after the person seeking the review was notified of the decision. A person is taken to have been notified of a decision by the Commission when a properly addressed, pre-paid and posted, letter advising of the decision has been delivered to the claimant. It is considered reasonable to allow five working days for delivery of this letter, as set out in section 163 in the Evidence Act 1995
  • set out the grounds on which the request is made
  • be in writing; and
  • be signed by the person seeking the review, or by their authorised representative where applicable.

9.2.2.9The procedures to be followed on receipt of a request for a review by a client are contained in P0/C15 of the CLIK Procedure Library.

9.2.2.10When advising a client of a reassessment of SP or ISS, and of the overpayment amount, care must be taken in the wording of that advice to ensure that the review provisions are clearly explained. For example:

“The Veterans' Entitlements Act 1986 provides for review of certain decisions. If you are dissatisfied with my decision to reduce/cancel your pension, you may apply for a review of the decision. Any application for review must:

  •       be in writing; and
  •       be lodged within 3 months of the date you receive this letter; and
  •       contain a statement setting out why you disagree with my decision.

There is no right of review in relation to the recovery of an overpayment. If you apply for a review, the overpayment must still be repaid. If your application is successful, any money repaid will be refunded to you.”

9.2.2.11Action to recover an overpayment is to proceed even when a request for review of the original decision has been lodged. This also applies to the imposition, and recovery, of a penalty interest and administrative charge incurred by the debtor.

9.2.2.12Except for reductions or cancellations arising from failure to comply with a section 54 VEA notice (i.e. automatic reduction or termination), if the client is dissatisfied with the review decision, there is a further avenue of appeal to the Administrative Appeals Tribunal (AAT). Therefore, the letter to the client advising the determining officer's decision must also contain a paragraph advising of this right of review unless it arises from a failure to comply.