Amends DI No.

C14/1999

Replaces DI No.

N/A

Purpose

To advise of the Commissions' agreement to adopt a standardised approach to all cases where incorrect determinations regarding eligibility for entitlements are identified. The Commissions' decision applies to determinations made under the Veterans' Entitlements Act 1986 (VEA), Safety, Rehabilitation and Compensation Act 1988 (SRCA) and the Military Rehabilitation and Compensation Act 2004 (MRCA).

The general principle on which the Commissions have agreed is that an incorrect determination should not create an entitlement to a benefit. If a determination is not made in accordance with the statutory criteria, the grounds for allowing the person to continue to receive the benefit should be reviewed.

Therefore, if a determination has been made to grant a benefit to which a person is not entitled, then the determination may need to be revoked. However, review powers are not universal. The process to be followed when an incorrect determination is identified is set out in this instruction. This instruction covers the process for addressing determinations made within jurisdiction as well as determinations that constitute a jurisdictional error.

Overview of the process

The following is an overview of the steps to be followed in all cases of incorrect determinations. Further detail for each step is provided later.

1. Location to consider whether a formal review of the incorrect determination can be initiated by the Department under any of the applicable legislative provisions.
2. Location to consider whether the determination was made within jurisdiction or if it may constitute a jurisdictional error.
3. Location to consider if person has alternative eligibility under another Act, maintaining the requirements of the Information Privacy Principles.
4. Report (template at Attachment A) to Deputy Commissioner/Assistant Secretary providing the details of the incorrect determination.
5. Deputy Commissioner/Assistant Secretary to decide whether to refer the case to Case Escalation Panel or to request that location to review the case.
6. Location or Panel to review the case, ensuring the Commission has met its duty to afford procedural fairness.

Statutory review provisions

Generally, an incorrect determination should be addressed through existing statutory review rights where one exists. The Commission has the power to review certain decisions made under the VEA, SRCA and MRCA. The statutory review rights are outlined below.

VEA review rights – disability pension

Section 31 of the VEA allows the Commission to review certain matters relating to disability pension. For example, subsection 31(1) of the VEA allows reconsideration of decisions relating to disability pensions where the appeal period (to the VRB) is still open.

Subsection 31(4) of the VEA allows reconsideration where the evidence before the Commission when it made its decision was 'false in a material particular.

Subsection 31(6) of the VEA allows the Commission to review a determination to grant or vary a disability pension. However, this provision can only be enacted where information is brought to the Commission's attention that wasn't available at the time of the original determination. Its scope to review above general rate disability pensions is also limited, subject to section 24A of the VEA where relevant.

VEA review rights – service pension

Division 15 of Part IIIC, relating to variation and termination, provides the Commission with various own motion powers, including to reduce, cancel or suspend a service pension.  However, the powers do not extend to qualifying service determinations.

SRCA review rights

Section 62 of the SRCA allows the Commission to reconsider a determination it has made.

MRCA review rights

Section 347 of the MRCA allows the Commission to initiate a reconsideration of any original determination made by the Commission.  This power is not available if the Veterans' Review Board (VRB) or Administrative Appeals Tribunal (AAT) has already considered the determination.

When not to use statutory review rights

There are three exceptions to applying the statutory review provisions to address an incorrect determination.

Firstly, where the incorrect determination has been made by an external review body such as the VRB or AAT, and the Commission has previously had the opportunity to appeal the decision, it is not appropriate for the Department to review the decision based on the original facts.

Secondly, there is no express provision in the VEA for the Commission to initiate a review of an incorrect qualifying service determination

Thirdly, there are limited cases where an incorrect determination has previously been reviewed by the Department and an undertaking has been made to the person to continue their benefit. These cases will not be reviewed.

What if a review cannot be initiated?

Where a review cannot be initiated under statutory review rights, the doctrine of 'functus officio' (having discharged a duty) prevents a decision maker from remaking a valid decision which has been made. This means that the determination must stand, unless it is found to be invalid on the grounds of 'jurisdictional error', fraud or the provision of incorrect information.

Jurisdictional error

Advice must always be sought from Legal Services and Assurance (L&SA) Branch on whether a determination constitutes a jurisdictional error, however, generally it covers:

• acting in bad faith or beyond power;
• failure to accord natural justice;
• misconstruction of the statute or a jurisdictional fact;
• failure to take into account a relevant matter; or
• reliance on an extraneous consideration.

If you consider that a determination may contain one or more of these elements, seek advice from LS&A.

Determinations within jurisdiction

In contrast, an incorrect view of the facts of the case which results in an incorrect determination is an error within jurisdiction and is not a jurisdictional error, e.g., full and correct facts were presented but the delegate misinterpreted the facts or granted benefits on the basis of a misread date.

An incorrect determination that has been made within jurisdiction stands and can only be reconsidered where the Commission has a statutory review right, including a case of fraud or the provision of incorrect information.

Consideration of alternative eligibility

When considering the revocation of benefits incorrectly granted, the person's eligibility for other benefits under all Acts must be explored. If an alternative means of eligibility can be identified which provides access to the benefits that replace those incorrectly granted (thereby reducing the need for any further redress), this approach should be recommended.

The Information Privacy Principles (IPP) require that information can only be used for the purpose it was collected, unless an exemption applies. The guidelines for the IPPs indicate that the individual's consent to the use of the information for another purpose is the most reliable exemption. For this reason, unless already provided, it is recommended that the person's consent be obtained before investigating alternative eligibility.

Report to DC/AS

The findings of the investigations into all incorrect determination cases are to be notified to the local Director and Deputy Commissioner or Assistant Secretary using the template report at Attachment A. On the basis of the information provided in the report, the Deputy Commissioner or Assistant Secretary will decide whether to refer the case to the Case Escalation Panel in Canberra or direct the location to conduct the review.

The cases to be referred to the Panel are those where:

• the decision is clearly outside of the law, or
• where the legislation is silent and the decision contravenes stated policy, or
• there is clearly no entitlement to the benefits granted.

Case Escalation Panel

The Case Escalation Panel, has been established to consider those cases that are not able to be resolved by the location.

The panel comprises the First Assistant Secretary Rehabilitation & Support Division, Assistant Secretary Case Escalation and MRCA Review Branch, Assistant Secretary Determination Support and Reviews Branch, Assistant Secretary Rehabilitation & Entitlements Policy Branch, the Principal Legal Adviser and the relevant Deputy Commissioner/Assistant Secretary.  The panel members may also include other staff in any discussions/investigation as necessary.

The panel will convene in a timely way and come to a decision on the case.

Referrals to the Escalation Panel

Referrals to the Case Escalation Panel must be made by the Deputy Commissioner/Assistant Secretary.  The referral should follow the format of the report at Attachment A and comprise:

• a timeline of the case,
• all relevant decisions,
• what specific loss of eligibility would occur and any possible alternative eligibility identified during the process,
• any communication with the client,
• any other detail considered relevant, and
• a recommendation from the location.

The report should be emailed to escalationpanel@dva.gov.au.

Implementing Escalation Panel decisions

A small Secretariat from within the Case Escalation Branch will convene the Panel and write up the Panel's findings.

The Panel will subsequently make a recommendation to the relevant Deputy Commissioner/Assistant Secretary, who will then inform the location of the recommendation which is to be implemented.

The Repatriation Commission and the Military Rehabilitation and Compensation Commission have requested that the Secretariat report back on the number of cases referred to the Case Escalation Panel, the recommendations made by the Panel, and the outcomes.

Procedural fairness

The VEA, SRCA and MRCA impose a duty on the Commissions to afford procedural fairness. Procedural fairness requires that a person is aware of, and has the opportunity to respond to, the content of material obtained from a source other than the person, which is adverse to the person and which the decision-maker proposes to take into account.

Specifically, when proceeding with the reconsideration of an incorrect determination, the person must be informed of any adverse information obtained through the investigation which the decision-maker proposes to take into account in deciding the matter. The notice must not give the impression that the matter has been pre-determined but that a decision would be made following the receipt of a response. LS&A should be consulted if in doubt.

The person should not be contacted before the report is made to the Deputy Commissioner/Assistant Secretary, and care must be taken in the timing of the contact so that the amount of time between contact and when the matter is able to be finalised is minimised.

Debts arising from incorrect determinations

Debts arising as a result of a payment of entitlements granted as a result of an incorrect determination should be addressed under the Department's existing debt recovery guidelines.

The Overpayments Management Manual for VEA debts allows the waiver of debts that have occurred solely as a result of the Department's error (Administrative Error waiver category) only if two further conditions are met, that is, the payment was received in good faith and the debt was not discovered or a request for repayment was not made within six weeks of it occurring.

The Overpayment Guide for SRCA and MRCA debts has no specific categories of waiver but describes the most common example of where the Commonwealth may have a moral obligation to waive a debt as being where the debt rose because of delegate error, was received in good faith, and the severe financial hardship of the person would be worsened by recovery of the debt.

For debts under VEA, SRCA and MRCA, write-off should always be the first consideration if recovery is not considered appropriate.

Compensation

The Compensation for Detriment caused by Defective Administration scheme may be an appropriate avenue to consider consequential future loss that the person may suffer consequent due to the error (e.g., an inability to secure private health insurance due to a person's medical history). Information about the CDDA Scheme is in CEI 5.19.

Contact

Should cases be identified in the future where incorrect determinations have been made, the escalation process detailed above should be followed.

Enquiries about this Instruction should be directed to the Liability and Service Eligibility Mailbox.

Cases to be referred to the Case Escalation Panel should be emailed to escalationpanel@dva.gov.au, using the report template at Attachment A.