DATE OF ISSUE: 28 NOVEMBER 2002
AAT REVIEWS OF INCOME SUPPORT DECISIONS – POLICY INPUT AND NOTIFICATION OF PENDING APPEALS
INTRODUCTION
Purpose of Instruction |
This instruction clarifies the role of the Income Support Policy Section in providing policy advice on matters that are to be reviewed by the AAT. The procedures for monitoring, and reporting on, Income Support cases which are scheduled for AAT hearing have also been revised. This instruction replaces the previous Departmental Instruction, C26/2001, which is rescinded. |
AAT Reviews |
AAT reviews are an important component of the system of administrative law. They provide an avenue for the independent external review of Departmental decisions, based on interpretations of the relevant law and policy and an assessment of the individual merits of the case. Clearly, some AAT decisions will involve issues that will have implications for the administration of income support within the Department. It is important that the issues considered, and the judgments arising out of the AAT consideration of income support cases, are reflected in the policy framework adopted by the Department. |
Role of Income Support Policy Section |
The role of the Income Support Policy Section primarily involves the overall monitoring of the progress and outcome of AAT cases. It also includes the consideration of case issues and providing policy input in the preparation of cases, where this is sought by State Offices.
The monitoring of income support decisions, for which an application for AAT review has been made, will allow the policy implications of the cases to be identified and for policy revisions to be made where necessary. To this end, the assistance of State Offices is sought in advising the Income Support Policy Section of all cases where an application for AAT review of a decision has been made, following the internal review of the case under section 57 of the VEA. Brief case details only, including a description of the issue to be reviewed, the position of the State Office, the grounds for seeking review, and the AAT timeframe, are required so that the progress of the case can be monitored. The details to be referred to the Income Support Policy Section are outlined below.
The Income Support Policy Section will provide a policy response on the issues raised by AAT cases being prepared by State Offices, where this is requested. It is not expected that policy input will be required in all cases, but it may be appropriate in situations where the existing policy parameters are unclear or fail to address the income support issues in question. Cases where a legal ruling or interpretation is sought should also be referred to the Income Support Policy Section, which will then arrange for referral to the Legal Services Group. Where policy input is requested, this should be sought at the case preparation stage, to allow sufficient time for the issues to be properly considered and a response to be forwarded prior to the AAT hearing dates. State Offices should advise the date by which a policy response is required, with particular reference to the AAT timeframe. |
Qualifying service cases |
Cases involving the issue of Qualifying Service are monitored by the Disability Compensation Branch, and should not be referred to Income Support Policy Section. |
Private trusts and companies cases |
As at present, all AAT cases involving issues arising out of the ownership or control of private trusts or companies are to be referred to the Income Support Branch in National Office. |
Information to be provided |
The following information on AAT casework should be referred, for monitoring purposes –
3.State Office position 4.Veteran's position (grounds for seeking review) 5.Does the State Office assessment of the reviewable decision indicate that it is sound, if not why not? 6.Next critical action (eg 1st preliminary conference, Directions Hearing, Hearing) and date. 7.Advocate's comment 8.Advocate's name and contact number The information should be forwarded by e-mail to NAT Policy Advisings Income Support. |
List of current AAT cases |
The listing of current AAT cases maintained by the Income Support Policy Section is attached. It would be appreciated if State Offices could review and amend this listing, including providing details of any current AAT cases which do not appear on the list, and forward the updated listing to NAT Policy Advisings Income Support. |
AAT Hearings on the papers |
If the AAT or an Advocate wishes to have an Income Support matter determined by the AAT “on the papers”, specific approval to do so should be sought from either the Director Income Support Policy or the Branch Head, Income Support. A minute requesting instructions to have the matter determined on the papers should provide:
These requests can also be e-mailed to NAT Policy Advisings Income Support. |
Contact |
The contact person in this matter is Brian Butler, Income Support Policy Section, on (02) 6289 6110. |
Jeanette Ricketts
Atg Branch Head
INCOME SUPPORT
27 November 2002
Attachment
Income Support Policy current IS AAT cases – Alphabetical – updated November 2002
NAMECourtAppLodgedDir Hrg1st conf2nd confHearingSTATETYPEADVOCATE/LEGAL CONTACT Counsel
CHEETHAMAATV 02/06/2002 WA SP — C PONNUTHURAI
Issues:
Awaiting details of case, informed on 9/10/02 that details were to come.
COTTRELLAATV 02/06/2002 NSW — SP — J MARSH
Issues:
Inclusion of director loans totalling $397,752 to Jewellyn Pty Ltd as assets in pension assessment decision made on 4 January 2002. Veteran out of time to lodge appeal to Tribunal and sought extension of time on basis the matter was actively been contested because of ministerial correspondence. The Commission originally opposed the application for an extension of time but reconsidered. Substantive issue is whether the loans are legally irrecoverable. Matter has yet to be set down for the first preliminary conference. Further up date from advocate sought 12/8/02.
EISENHAUERAATV 06/08/2002 QLD — SP — JEFF KELLY
Issues:
Loan of $240,000 to daughter held in assessment.
GIBBS, ESTATE OFAATV SA — GREG DOUBE
Issues:
Section 57 review done on 4/3/02. Vet and spouse had lived at same address since 1991 but did not marry until February 2000 when the 5 years were up after she handed a farm worth about $700,000 to her son. Before he died, the veteran & his widow on being interviewed said they were in a committed relationship from July 1995 and this was taken as an admission of a marriage like relationship since that date. Pension from 1995 to the date of marriage was reassessed accordingly. Because of her assets, she was ineligible to receive SP during that period. $23,000 is still outstanding on the debt. Likely children challenge existence of defacto relationship but grounds for appeal not specified. First PC is 16/10/02.
GOLLANDAATV 02/06/2002 NSW — T&C — J WILSON (LEGAL)
Issues:
Trusts and companies -private company, Mayfields Cordials Pty Ltd has issued share capital of 100 A class shares, and 12046 B class shares. Only the A class shares had voting rights and the veteran held 52 of them, the veteran's son held a further 24 A class shares and a John Parkes held the remaining 24 shares. John Parkes is unrelated to the veteran or his son. According to the ASIC search the company had 3 directors, the 3 men above who held the class A shares. The company had not traded since 1983., The financial statements for the company indicated a loan to the veteran of $99,228.92 and a loan from the veteran to the company of $1630.91. Upon internal review, 100% of the assets and income of the company was attributed to the veteran. Net assets of the company were at the time $149,438.07. Matter has been referred to Legal and their investigations have revealed that the company was original incorporated in 1958. A copy of the articles under Table A of the relevant NSW Companies Act vindicates that Mr Kerr was then Governing director of the company with absolute veto over voting rights. Mr Kerr still is Governing Director of the company but this was not recorded on ASIC records because there was no obligation to notify that information at the time. Furthermore, the veteran has sold all his shares in the company following the internal review decision and has no involvement. Decision to be reviewed by Martin McGlashan in light of further evidence obtained by the Legal area and it si likely the case will be conceded by the Commission.
JOHNSONAATV 28/05/2002 VIC — PBS — R DOUGLASS
Issues:
Pension Bonus Scheme – partner registered with Centrelink for Scheme since 21/6/1999 and working full time. Partner service pension was claimed along with service pension in claim lodged on 20/6/2001. The claim form did not ask partner to indicate whether she was registered with the scheme, only the veteran. The partner tried to claim the Pension Bonus from Centrelink but was directed to DVA as she was not claiming the Age pension. She ceased employment on 3/8/2001 and lodged a claim for the PBS with DVA on 15/8/01. By this time, the service pensions had been granted on 27/6/2001 with effect from 14/6/2001. The claim for the Pension Bonus was refused because she had received a pension (section 45TC refers). Case referred to policy on 18/9/02 – advised claim for bonus cannot be paid because section 45UK(3) cannot apply as it overridden by the general qualification for the PBS contained in section 45TC – case referred to Legal on 26/9/02 for advice re defective administration. Celia de Winter handling.
LEE-WARNERAATV QLD — T&C
Issues:
Application of T&C rules but veteran's solicitor wants to prepare documentation, which would in effect allow the veteran to retrospectively resign from involvement in the entity in question. Details have been sought from QLD advocacy – John Stoner but he does not return from rec leave until August 26. Instructions have been received by Policy on 8/10/02 to examine case in light of additional material provided by applicant. Brian Butler made original decision and has examined the new information. To be discussed with Advocacy QLD as matter listed for hearing in Cairns on 28/11/02. Julie Wilson (Litigation) handling.
MAJORAATV — VIC — T&C — R Douglass
Issues:
Assets from the trust valued at $521,202.68 were held in the veterans and spouse's assessment for pension purposes. As a consequence, service pension was cancelled under the assets test. Decision to attribute 100% of these assets to the vet and spouse, as they were the only shareholders in the private company concerned. Commission's statement of facts and contentions has been lodged, matter listed for hearing on 21/8/02 but veteran withdrew the application before it was heard. Veteran then sought to reinstate the application but pulled out just before a directions hearing scheduled for 24/9/02 to determine the matter proceeded. The veteran is now going to lodge a new application and will lose any backdating as he is out of time. It is likely that the matter will be listed for hearing in early November. Stuart Kennedy handling.
PAULAATV — SA — T&C — G Doube
Issues:
Trusts and companies – private company, veteran and spouse sole directors, reviewable decision attributed 60% of income and assets to vet and spouse. The veteran's daughters jointly owned 40%. Decision claimed to be wrong in fact but no other reasons cited for the appeal. First PC 22/10/2002.
SEERYAATV 05/04/2002 — 01/08/2002 — SA — OVERPAYMENT — G Doube — TH
Issues:
Assessment of overpayment from 1996-2001 – debt of $19,925.24. Appeal from decision to raise overpayment. Jurisdiction to review decision to be opposed.
SERNACKAATV
Spouse – complex financial structure – daughter's involvement. TPC 13/12/02.
SHULTZAATV — QLD — OVERPAYMENT — J WILSON
Issues:
Veteran applied for a SP is eligible but because of income/assets in excess, he is not entitled. Family trust owns family home, veteran claims he pays rent to the trust, Centrelink had granted some benefit (to be clarified) possibly a Age Pension but have cancelled payments and raised a debt. Applicant wants to merge the Centrelink and VEA proceedins but we oppose this. Next TPC, Maroochydore, 7/11/2002. He also has another court matter in WA on 30/10/02 but we do not know the nature of the proceedings.
WILLIAMSAATV 23/04/2002 — 13/06/2002 — VIC — SP-PBS — R DOUGLASS
Issues:
Pension Bonus Scheme – refusal of application to register for scheme. Veteran now has QS – FESR extensions which commenced 1/1/2001. Primary decision made on 2/5/2001 refused registration because of veteran's age and referred to requirement to register within 13 weeks. Decision is demonstrably wrong because this veteran's special date of eligibility is 13 weeks from 1/1/2001. We received notification from the veteran that he wanted to register for the scheme before the 13 weeks was up but formal application to register was not received until about 2 weeks out of time. Delegate doing internal review declined to do so because of jurisdiction. Application to Tribunal is clearly out of time but we are considering option of reconsidering the decision not to register under the discretion to accept a late application. I await a response fro0m Greg Heitch about this option. Followed up 8/8/02 re progress on revised decision, awaiting advice from Robert Douglass. 26/9/02 – Robert Douglass reported that veteran had withdrawn appeal but was following up to see whether the decision had been reconsidered at the primary level. Robert to advise Policy re outcome.
WOODBRIDGEAATV 27/08/2002 — QLD — SP T McCONNELL
Issues:
Valuations of rural property “Green Acres” near Binalong, NSW - vet and spouse with son operate the farm, which is 320 ha in area. The son conducts his own piggery business on the farm as well as taking part in the grazing business of his parents. Primary decision made 16/3/2001 – total assets assessed at $772,701 and because the vet had transferred the farm to the son on 15/12/2000 for no valuable consideration, a deprived asset of $569,000 was held in the assessment under sections52E and 52GA based on the AVO valuation. On 19/6/2001, the decision was reviewed but the delegate accepted the AVO valuation without seeking a new valuation. The AVO has now done a further valuation of $877,000 but having regard to allowable deductions, the value of the deprived asset has been reassessed at $342,000. The case was considered for the RAFS Scheme but it would appear the vet satisfies all the criteria except for the farmer's income test (s.49J). The Certificate of Title for the property – first schedule describes the estate as a perpetual lease and the second schedule refers to a Closer Settlement Lease 1947/16 Boorowa subject to the Closer Settlement Acts & Closer Settlement Amendment (Conversion) Act 1943 and Crown Lands Consolidation Act, 1913. Now issue of an equitable interest in relation to the CLS lease has been raised. This issue will be examined but Commission is to write to applicant pointing out that the son's contributions have already been recognised in the revised value held for the deprived asset.