Advisory from Disability Compensation Branch

No 9/2000

This is an advisory note only.  Disability Compensation Branch and Legal Services Group have agreed this policy view.  It is not a Repatriation Commission Guideline or a Departmental Instruction.   The advice is not intended to conflict with the proper application of the Veterans' Entitlements Act 1986, the Administrative Appeals Tribunal Act 1975 or the judgements of the Courts.  It may be subject to change as a result of further interpretation by the Courts of the legislation.  Nevertheless it represents a considered view that should be taken into account by all delegates.

DE NOVO Investigation at the AAT review of the primary decision

Purpose

An issue has arisen concerning the position of the Repatriation Commission at various review levels where decisions have already been made on some questions.  This is important where the primary claim is under review at the AAT and the Repatriation Commission now challenges an earlier decision but has not itself lodged an application for review of the particular issue.

This Advisory is intended for Directors, Team Managers and Advocates.  A simpler version is available for Claims Assessors and those with a lesser exposure to the law and decisions in the Tribunals and Courts.

AAT Powers

Section 25 of the Administrative Appeals Tribunal Act 1975 ('the AAT Act') provides the Administrative Appeals Tribunal ('the AAT') with the power to review certain decisions.  The extent and nature of the power of the AAT power to review decisions has been the subject of numerous court and AAT decisions.  Mr Justice Smithers in Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 rejected the proposition that the role of the AAT is to simply satisfy itself that that the decision under review was one that an administrator acting reasonably might have made.  The Court held that the role of the AAT is to decide for itself that a decision made by the administrator was the right decision.  The duty of the AAT is to satisfy itself that that the decision under review is a decision that, in its view, was objectively the right decision one to be made.

Other provisions of the AAT Act further add to the extent and nature of the AAT's power to review a decision.  Subsection 43(1) of the AAT Act provides that, for the purpose of reviewing a decision, the AAT may exercise all the powers and discretions that are conferred on the original decision-maker and has the power to affirm, vary or set aside the decision under review.  Section 33(1)(c) of the AAT Act provides that the AAT “may inform itself on any matter in such manner as it thinks appropriate”.  Mr Justice Gray in Calderaro v Secretary, Department of Social Security (1991) 14 FCR 244 held that the AAT is not bound to accept evidence merely because it is uncontradicted.  The duty placed on the AAT is to be persuaded as to the truth of that evidence.  In Adamou v Director-General of Social Security (1985) 3 AAR 321 the AAT stated that it must directly inform itself upon all matters relevant to its decision.

Accordingly, the AAT Act itself requires the AAT to stand in the shoes of the original decision-maker and make a decision taking account of all of the evidence that is available up to the date that it hands down its decision.  Unlike judicial review (which is limited to a review based on finding an error of law), the AAT review is a merits review which results in a de novo review of the facts and law by the AAT.   This approach is to the advantage of the applicant since the applicant can bring forward material that was not put to the original decision-maker.

The colloquy is that the whole decision is under review and that it is possible that additional information may lead to a reduced outcome for the applicant.  This is a matter for the applicant and his or her representative to take into account when pursuing the appeal.  This potential “risk” was shown in the case of Re Fitzmaurice and Repatriation Commission (1987) 13 ALD 723.  In that case it was held that it was not open to an applicant to challenge only that part of the decision of the Veterans' Review Board assessing the rate of pension and not also the Board's finding on the entitlement question.  The AAT found that this was one decision under section 25 of the AAT Act and that the AAT was required to review the finding of both the rate of the pension and the actual finding of incapacity.

Repatriation Commission powers

In specified circumstances, the Repatriation Commission has the power under section 31 of the VEA to review entitlement to a pension or attendant allowance and, if appropriate, to cancel, suspend or vary the pension or attendant allowance payable to a person.  For example:

• Within 3 months of the date a person is notified of a decision regarding a claim for a pension, an application for an increased rate of pension or attendant allowance, the Commission may review and vary the decision: paragraph 31(1)(a).  
• Where an application for review has been made to the Veterans Review Board but has not been determined by the Board, the Commission may review and vary the decision: paragraph 31(1)(b).  However, in practice where a Certificate of Readiness has been lodged with the Veterans Review Board, the Commission will not intervene under paragraph 31(1)(b).

Where an application for review has been made to the AAT (other than by the Commission) but has not been determined by the Tribunal, the Commission may review the decision under review.  However, in these circumstances the Commission can only vary the decision with the consent of the applicant: subsection 31(2).

• The Commission may at any time review and vary a decision where the evidence before the Commission when it made the decision was false in a material particular: subsection 31(4). 
• Where a matter that affects the payment of a pension or attendant allowance was not before the Commission, Board or Tribunal when the decision to grant or vary the pension or attendant allowance was made, the Commission may review and cancel, suspend or decrease the rate of pension granted by the original decision: paragraph 31(6)(a).  Note that in applying this provision to the assessment of special rate or intermediate rate pension, the Commission must take account of section 24A of the VEA.
• Where the Commission is satisfied that, having regard to a matter that affects the payment of a pension or attendant allowance, the rate of pension or attendant allowance is less than it should be, the Commission can review and increase the rate of pension or attendant allowance: subsection 31(8).

It is not the usual practice of the Commission to have a matter that is before the AAT referred back for a section 31 review.  The Commission takes the view that a matter at the AAT is able to be determined on the basis of the 'final facts', that is there are no appeals based on the facts after the AAT.

Referral back to the primary decision-maker would create three further levels of fact finding, s31, VRB and AAT.  It is certainly possible to do this and this is supported by the ability of a claimant to appeal a s31 decision to the VRB and therefore to the AAT.

Summary

The Repatriation Commission policy is that any matter is open at the AAT where the material reveals a materially different fact or basis for the original grant MUST be re-examined in accordance with the provisions of the Veterans' Entitlements Act 1986.

In matters where a dispute arises as to the original facts the issues MUST be settled in the Administrative Appeals Tribunal and not referred back to the primary level

.

The claimant and the representative should be advised of this at the first preliminary conference. This includes advice that if at any time during the course of the proceedings, even after the first PC, matters come to light that would throw material doubt on any part of the original decision, the original decision may be reconsidered.

Where there is any doubt as to the significance or materiality of the new facts, the opinion of the State Office Compensation area should be sought.  If there are still unresolved concerns the matter should be referred to National Office.

John Douglas

Director

Policy Eligibility and Research

2 June 2000