CM5056 Section 31 Review Powers

REPATRIATION COMMISSION GUIDELINES

CM 5056 - Section 31 Review Powers

STRATEGY

The Repatriation Commission agreed to the following strategy for the extended use of section 31 review powers:

• to examine all the available evidence on file in relation to incoming applications to the Veterans' Review Board (VRB) and conduct a section 31 review wherever possible or prepare a section 137 report within 42 days,
• to conduct section 31 reviews upon request, and
• to make appropriate contact with the claimant or their representative where a specific request for review under section 31 has been made, to address such matters as explanation of the original decision, clarify the basis of the request for section 31 review and allow for further evidence to be presented.

The aim is to make the right decisions at the primary level (including section 31 review) and reduce the flow of applications to the VRB and Administrative Appeals Tribunal.

PROTOCOL

The Commission expects that the following protocol will apply:

Administration

1. An ongoing section 31 review capability in each state office is to be maintained to conduct reviews in accordance with the strategy.
2. A section 31 review should be conducted by an officer (herein referred to as a “review officer”) of higher classification than the original decision-maker.

Screening

3. All incoming applications to the VRB should be examined by a Review Officer (a process referred to as “screening”).  As far as is practicable, “screening” of applications to the VRB should be conducted within the legislative timeframes for the preparation of section 137 reports to avoid the need for preparation of these reports where possible.
4. If the Review Officer decides not to intervene as part of the “screening” process, then brief reasons should be recorded on the file.  This is an accountable decision by the Review Officer which should be transparent.  It is an important element of the Department's quality assurance process.  A copy of the reasons for non-intervention should be included in the Section 137 report.  The review officer should advise the claimant and/or the claimant's representative of the outcome of the “screening” process.  Where the review officer considers the issues of the claim differently, or considers different issues to the original decision-maker, these differences should be reflected in the reasons for non-intervention and advice to the claimant.
5. Where the review officer reviews the original decision under section 31 and:

• revokes the original decision and substitutes it with another decision; or
• varies the original decision;

the review officer should provide reasons for the decision and advise the claimant and/or the claimant's representative that there is a right to apply to the VRB to review the new or varied decision.

Requests for Section 31 review

6. Requests for section 31 reviews by claimants or ex-service organisations should be in writing.  Claimants and ESO representatives should be encouraged to use the application forms designed for the purpose.
7. Unrepresented veterans or dependants making requests for section 31 reviews should be encouraged to obtain ESO representation.
8. Where a claimant or a claimant's representative has made a specific request for review under section 31, a review officer should make appropriate contact with the claimant or representative to address such matters as :

• explaining the original decision,
• ascertaining the basis of the section 31 request or VRB application,
• clarifying the issues and
• establishing what additional evidence, if any, the applicant/representative has obtained or intends to obtain.

9. If the claimant or representative submits a specific request for review under section 31, the Review Officer should examine the case and either:

• vary the original decision, record a decision and provide reasons to the claimant and/or the claimant's representative for the decision; or
• decline to intervene under section 31, record the decision not to intervene and provide to the claimant and/or the claimant's representative reasons for the decision not to intervene.  The reasons should include the key requirements for the claim to succeed and the key areas in which the evidence is deficient.

In each situation, the reasons should address the contentions or issues raised and the evidence submitted.  In non-intervention cases the Review Officer should advise the applicant or representative, and the VRB, that the application for review can proceed as normal.

Whether the Review Officer decides to intervene or not, a copy of that decision should be sent to the VRB to supplement the section 137 report.

10. Section 31 reviews should be conducted only once in a particular case, unless exceptional circumstances apply (eg there is a clear error made in the section 31 review, or additional evidence that is substantial, meaningful and critical is subsequently provided and would clearly result in a different decision).  Subsequent reviews will not be contemplated where the applicant or representative re-presents evidence that has already been considered.
11. Section 31 reviews should not be conducted once a certificate of readiness is furnished by the applicant or the applicant's representative to the VRB, unless the VRB has been advised of, and agrees to, the intention to conduct a review.

In these circumstances, the Review Officer should check to see if the VRB holds any further evidence and ask for that evidence to be forwarded so that it can be considered in the review.  If the VRB has sought evidence, the Review Officer should await the evidence before proceeding to review.

Quality Assurance and monitoring

12. A national recording and reporting framework for section 31 review activities will be maintained.
13. A Quality Assurance process will be maintained for section 31 review activity.
14. A mechanism should be in place for feedback to be provided by review officers to claims assessors on cases where section 31 intervention occurs.