13.1.4 Decision Making

The following decisions are a formal decision point which must be made by a delegate with appropriate authority:

• whether a person is an eligible child of a veteran under subsection 116C(1) of the VEA

• whether a person is an eligible grandchild of a Vietnam veteran under subsection 116CC(1) of the VEA

• whether a person is eligible for payment of education allowance under the VCES or MRCAETS instruments 

• who receives payment under paragraphs 3.2.3, 3.3.4, 3.4.2 and 3.5.2 of the Instruments (including any change in who receives payment) 

• the rate of education allowance under part 3 of the Instruments (including any change in the rate of payment) 

• whether a student receives a scholarship under Part 7 of the Instrument

• whether a student receives fares allowance, additional tuition, special assistance or rent assistance under Part 5 of the Instrument

• the decision to cease payment of fares allowance or rent assistance under Part 5 of the Instrument

• ceasing payment due to unsatisfactory progress under paragraph 2.5.2 of the Instruments 

• reinstating payment under paragraph 2.5.3 of the instrument where a student has resumed satisfactory progress. 

If a delegate decides to vary the rate of education allowance under part 3 of the Instruments, then the delegate must also make a new decision on who receives the payment under paragraph 3.2.3, 3.3.4, 3.4.2 or 3.5.2 of the Instruments. 

Prior to making a decision, the person must be informed of the intent to make the decision and provided with a reasonable opportunity to respond. Any response that is provided by the person must be taken into account. The decision must be recorded in accordance with DVA’s Information Governance Framework and Record Management Policies to ensure transparency and accountability for any decisions made by a DVA delegate. The decision must be provided to the individual in writing, along with the reasons for the decision and information on their appeal rights (see section 13.1.5 Review of Decisions). 

13.1.5 Review of Decisions

Review of decisions under the MRCAETS

Paragraph 8.2 of the MRCAETS Instrument sets out MRCAETS review provisions. 

A beneficial approach should be taken to interpreting paragraph 8.2.2, such that any decision made under the scheme which effects the rights or interests of a person is reviewable under paragraph 8.2. This includes decisions to cancel a benefit (which are determinations under paragraph 8.1.1 relating to eligibility) and decisions to cease/suspend a benefit under paragraphs 2.5 and 2.10. 

As set out in paragraph 8.2 of the Instrument, a request for review of a decision must be provided within three months of the person receiving the decision. Reviews should be undertaken by a person who was not involved in the original decision (including any person who has oversight or managerial responsibilities for the person who made the decision). 

Following a review, an applicant can apply under paragraph 8.2.8 of the Instrument to the Administrative Review Tribunal (previously known as the Administrative Appeals Tribunal) for review of the decision to affirm or vary the original decision.

Separate from the review pathways set out in the Instrument, claimants can also apply to a court for judicial review. The court cannot consider the merits of the decision (i.e. whether it was the correct decision to make), but it can determine whether a decision was lawfully made.

Review of decisions under the VCES 

Section 8.2 of the VCES instrument sets out the VCES review provisions. 

In accordance with subsection 8.2.2 of the Instrument, a student, parent, guardian or trustee may make an application for a review of a decision.  An application for review must be made within 3 months of receiving a copy of the decision. 

Separate review rights are set out under section 116D of the VEA in relation to decisions under subsection 116C(1) (whether a person is an eligible child of a veteran) or 116CC(1) (whether a person is an eligible grandchild of a Vietnam veteran). There are no timeframes for a request for review under 116D of the VEA. 

Reviews should be undertaken by a person who was not involved in the original decision (including any person who has oversight or managerial responsibilities for the person who made the decision). 

Under the VCES, applicants are not able to apply to the Administrative Review Tribunal (previously the Administrative Appeals Tribunal) for review of the decision to affirm or vary the original decision. 

Separate from the review pathways set out in the Instrument, claimants can also apply to a court for judicial review. The court cannot consider the merits of the decision (i.e. whether it was the correct decision to make), but it can determine whether a decision was lawfully made.

Decisions which contain a legal error  

There is no express power for to undertake an own motion review under the Instruments. While section 347 of MRCA allows the Commission (or a delegate of the commission) to undertake own motion reviews of determinations, this power does not extend to decisions made under the MRCAETS Instrument (see MRCA section 345(2)(e)). 

In some circumstances where it is obvious that a decision contains a legal error, the Commission can reconsider the decision and determine that it should be treated as invalid and of no effect. Where this applies, a new decision can be made. If a legal error may have occurred the delegate must seek policy advice.