C31/1997 DETERMINING COMPENSATION CLAIMS WHERE RMA OR SMRC INVESTIGATION IS PROPOSED OR UNDERWAY

DATE OF ISSUE:  22 MAY 1997

DETERMINING COMPENSATION CLAIMS WHERE RMA OR SMRC INVESTIGATION IS PROPOSED OR UNDERWAY

Purpose

1.This Departmental Instruction is to advise of the effect of a Repatriation Commission decision (CM4916) on the use of s31 reviews.

2.Current policy allows for s31 action to be opened in matters where there is a formal investigation under s196G of the Veterans' Entitlements Act 1986. This delay  mechanism is commonly referred to as “parking”.

3.This is now changed.  This advice is intended to replace all previous  Departmental Instructions (B22/95 and 19/97).

4.The status of matters at the Repatriation Medical Authority (RMA) and the Specialist Medical Review Council (SMRC) has no effect on the determination of any claim nor will it cause a s31 review to be raised.

The approach to all claims

5.There will now be a single approach to all claims lodged for disability pension.

6.In brief, all claims will be determined regardless of the status of applications for review of any medical conditions at the RMA or the SMRC.  No s31 action is required in matters where the relevant condition is under investigation.

7.All existing s31 actions can now be completed and the applicants advised that their claim has or has not been accepted.  All claims are determined in accordance with the Statements of Principles in force at the time a decision is made.

8.This development simplifies claims processing.  Those matters in the process of being determined by the Commission, the Veterans' Review Board (VRB) or the Administrative Appeals Tribunal (AAT) can proceed to conclusion.

·Cases that can be accepted according to a SoP continue to be accepted.

·Cases that do not have a contention that matches a factor in a SoP can be rejected.

·Cases where a s31 action had been opened in the past can be determined in accordance with an existing SoP.

The reasons for this change

9.The result of continuing with the current policy would have been increasing numbers of cases remaining undetermined at the VRB and at the AAT with consequent blowout in the average times taken.

10.The other and potentially more serious outcome would have been a backlog of matters at the RMA and the possibility of no further work on the revision of earlier Statements of Principles or the development of new ones.

11.Within the State Offices there would have been an appearance of a problem with the times taken to process s31 matters.  The purpose of s31 was to provide a quick solution to an identified problem.  Where a s31 had been opened (under the previous approach) the time taken before resolution of a claim meant that it appeared that a s31 took too long to be decided.

The legal position

12.The President of the AAT heard the first Statements of Principles (SoP) matter as a test case.  This was the matter of Jenkin and Repatriation Commission.  Her decision followed the common law principle that delay in determining claims is inappropriate in circumstances where Parliament may or may not change the law.

13.The decision in Jenkin and in the Federal Court matter (VVFA and Specialist Medical Review Council) confirmed that SoP are legislative instruments and that practice of  “parking”, that is delaying or deferring, while a change in the law is sought, is inappropriate.

14.Since then Deputy President McDonald published reasons for a decision involving eight (8) matters (McMillan and Repatriation Commission) where the solicitor had asked for adjournments on the grounds of

·SoP being prepared by RMA; or

·SoP being reviewed under s196G; or

·SoP being reviewed by SMRC.

15.He ruled that adjournments in all such scenarios were not contemplated by the legislation in either its form or its content.

16.Matters at the VRB and the AAT will be determined by those Tribunals. Advocates at VRB or AAT proceedings should not agree with applicants to delay the determination of those matters.  Delegates of the Repatriation Commission will now determine claims on the basis of the SoP that exists at the time of decision.

Action by States

17.The paragraph in CCPS referring to RMA investigation and raising of S31 reviews will be deleted.  In the interim, staff should manually delete this paragraph.

18.All outstanding s31 where it was raised because of an RMA investigation under s196G are to be determined.

19.A suggested form of words is at Attachment A

20.Contact with National Office on this matter should be directed to

Neil Bayles (06 289 4713) as the Director (National Operations Policy) or

John Douglas (06 289 6485) as the Director (Disability Compensation Policy).

P REECE

Division Head

Compensation Support

    May 1997

ATTACHMENT A

Suggested form of words for letters to applicants who will now have their claim finally determined.

(CLAIM FOR DISABILITY)

On   /  /  you were advised that the Repatriation Medical Authority (RMA) is undertaking an investigation of {condition name}and that the Department would be initiating a Section 31 Review should the RMA investigation result in a change to the Statement of Principles (SOP) which would lead to an acceptance of your claim.

Following a recent decision by the Administrative Appeals Tribunal the Department has now decided that it is no longer appropriate to commence reviews when the RMA notifies that it will be undertaking an investigation of a SOP.  The Department has also decided that any outstanding reviews raised because of an RMA investigation will now be discontinued.

If you have not already done so it is recommended that you now lodge an application with the Veterans' Review Board for a review of the decision rejecting {condition name).

Should you have any questions concerning this matter please contact me on {phone number).

(DEATH CLAIM)

On   /  /  you were advised that the Repatriation Medical Authority (RMA) is undertaking an investigation of {condition name}and that the Department would be initiating a Section 31 Review if the RMA investigation results in a change to the Statement of Principles (SOP) which would lead to an acceptance of your claim.

Following a recent decision by the Administrative Appeals Tribunal the Department has now decided that it is no longer appropriate to commence reviews when the RMA notifies that it will be undertaking investigation of a SOP.  The Department has also decided that any outstanding reviews raised because of an RMA investigation will now be discontinued.

If you have not already done so it is recommended that you now lodge an application with the Veterans' Review Board for a review of the decision rejecting your claim.

Should you have any questions concerning this matter please contact me on (phone number).