B06/1994 RECORDING AND ADVISING CLIENTS OF DECISION TO REDUCE/CANCEL SERVICE PENSION

DATE OF ISSUE:  10 FEBRUARY 1994

RECORDING AND ADVISING CLIENTS OF DECISION TO REDUCE/CANCEL SERVICE PENSION

PURPOSE

To advise the correct procedures for informing service pensioners of decisions made under Division 18 of Part III of the VEA which reduce the rate of or cancel pension from a date prior to the date of the decision, (thereby creating an overpayment) and for advising them of their right of appeal.

BACKGROUND

2.Two recent appeals to the AAT were dismissed for want of jurisdiction.  The Tribunal has suggested to a third applicant that she may wish to consider withdrawing her appeal in the light of the decision in those two cases.

3.In both cases the primary decision as noted on file was "that an overpayment had occurred".  The clients were advised that if they disagreed with the income or asset details forming the basis of the reassessment or the period during which the overpayment occurred, they had the right to apply for a review of the Delegate's decision to reassess their pension from the start of the overpayment period.  They were also advised "there is no right of review concerning recovery of an overpayment".

4.Subsequently both clients appealed to the Repatriation Commission for a review under s57 of the VEA.  In the reasons for decision the determining officer stated that the decision under review was "that there was an overpayment of pension".  In each case, the decision of the delegate was affirmed.  The advice to the clients was "If you are dissatisfied with any aspect of my decision, you may apply to the Administrative Appeals Tribunal to have the decision reviewed".

5.Subsequent to the review, appeals were lodged with the AAT but dismissed for want of jurisdiction.  The Tribunal argued that the clients were appealing a decision that an overpayment had occurred, which is not listed as a type of decision that can be reviewed under s57.  The review decision itself, although stated as being made under s57, was also questioned by the Tribunal.  It was suggested it was only a statement or conclusion that an overpayment of service pension had occurred and was not a valid s57 decision.  As such, it was not within the jurisdiction of the Tribunal to review it.

6.In neither case did the Tribunal address the fact that because the determining officer had affirmed the primary decision, it was in fact the primary decision which was being appealed to the AAT.  In any event, as the original decision also purported to be a decision "that there was an overpayment of service pension" this would not have assisted the veteran.

7.This highlights several problems, the most significant being that clients are effectively being denied a right of review by the AAT because of poor wording of Repatriation Commission decisions.  The following procedures should be followed to avoid further problems of this nature and to allow clients their right of appeal.

PROCEDURES

Recording of the primary decision

8.The correct description and wording of a decision must be used for the client to be able to appeal under s57. The decision is to reduce the rate of/cancel service pension under Division 18 of Part III of the VEA.  As a result of this decision an overpayment has arisen.  There is no such decision as "there has been an overpayment of service pension".

Advice of the decision

9.The same wording used by the delegate to record the reduction/cancellation  decision must be employed in the advice to the client so that they clearly understand that their pension has been reassessed, and the rate of service pension has been reduced/cancelled, from a date before the date of the decision, eg the decision is to reduce the rate of/cancel service pension with effect from (date) because of failure/misrepresentation etc.

Advice of appeal rights

10.The client should understand what can and cannot be appealed.  A service pensioner can appeal a decision to reduce the rate of/cancel pension but not an overpayment, eg You may appeal the decision to reduce/cancel your pension from (date).  The decision to recover the overpayment either by lump sum or limitation is not an appealable decision under the Veterans' Entitlements Act.

Reviewing a s57 appeal

11.Determining officers  should be clear about what they are reviewing.  Where there has been a decision under Division 18 of Part III, the appeal under s57 is for review of a decision to reduce/cancel the rate of service pension with effect from (a particular date).

What is the decision?

12.Where the primary decision is affirmed, it must be clear that the original decision (that the rate of service pension is reduced/cancelled with effect from (date)) has been reviewed and the decision of the delegate is affirmed.  There is not a new decision unless the primary decision is set aside.

Advice of review decision

13.The determining officer's advice to the client should state "I have reviewed the decision to reduce/cancel service pension with effect from (date) and have affirmed the delegate's decision of (date) which was to reduce/cancel the rate of service pension with effect from (date)".

What does client appeal to AAT?

14.The client can appeal the primary delegate's decision (to reduce/cancel the rate of service pension) which was reviewed and affirmed.  The letter to the client advising the determining officer's decision should advise "If you are dissatisfied with any aspect of my determination you may apply to the Administrative Appeals Tribunal for a further review of the delegate's decision of (date) to reduce/cancel the rate of service pension from (date)".  The "delegate's decision of (date)" is of course the primary decision.

15.If you have any inquiries in relation to this matter please call Ann Donnelly on (06) 289-6441.

NATIONAL PROGRAM DIRECTOR

BENEFITS