C14/2007 The Power to Revisit a Previous Decision under Section 31

Purpose

This instruction explores the general scope of the power contained in s.31 of the Veterans' Entitlements Act 1986 (VEA) with respect to reviewing decisions previously made by the Repatriation Commission (“Commission”) and its delegates.

Introduction

Reviewing a past decision by the Commission may be appropriate where that decision was not satisfactory on the basis of the law, the available evidence or the basis of new evidence which has come to light since the decision was made.

In such cases, a s.31 review gives the Commission the power to review its previous decisions in order to ensure that veterans' entitlements under the VEA are commensurate with the available evidence and with a proper application of the law.

The Commission's power to revisit a previous decision emanates from:

1. Section 31 of the VEA; and

2. The general law.

Before a decision can be revisited, it must be determined whether it is a decision to which s.31 applies.  If it does not, then the Commission may look to the general law for legal support of the proposed review.  However, it is not the purpose of this instruction to consider the powers available to the Commission at general law.  Questions concerning the Commission's ability to revisit decisions in circumstances where s.31 does not apply should be forwarded to the Director, Advising and Public Law, Legal Services Group.

Introduction (continued)

Section 31 provides the Commission with a power to review a decision on a claim or application for a pension under ss.14 and 15 or attendant allowance under s.98, which it may apply under the following circumstances:

• where the time has not expired for a claimant, dissatisfied with a Commission decision, to seek a review by the Veterans' Review Board (“VRB”) (ss.31(1)).

• where an application for review by the VRB has been lodged but has not been determined (ss.31(1));

• where an application for review by the AAT has been lodged but has not been determined (ss.31(2));

• to vary an effective date of a VRB decision where the date was set in error (ss.31(3)); and

• where the Commission is satisfied that evidence before it when it made a decision was false in a material particular (ss.31(4)).

In addition to the above, the Commission may revisit a decision to vary, cancel or suspend a rate of pension (ss.31(6) – (8)), depending on the specific circumstances of the case.

Protocol for Conducting a Section 31 Review

All incoming applications to the Veterans' Review Board (VRB) for review are to be screened in the first instance to see if the original decision remains appropriate.

A review officer, of APS6 or higher classification, is to screen applications within the legislative timeframe (6weeks) for the preparation of s.137 reports of evidence relevant to the review.  As a general rule the initial screening should be completed within 1-2 weeks of receipt of the application for review.

If the existing evidence does not support the original decision, the Commission may in its discretion:

• review the original decision; or

•     alter an inappropriate rate of payment.

The option to review an original decision must be exercised in good faith and for a proper purpose.

If the review officer does not intervene following the screening process, the reasons for this outcome are to be recorded in a brief file note which is to be included in the s.137 report.

If the review officer decides to intervene following the screening process and intends to take the following action that would result in an unfavourable outcome for the applicant the review officer is to advise the claimant (and/or the claimant's representative) of the reasons for intervening and the possible outcome.  The situations where this must be done is where the review officer intends to:

•                  revoke the original decision and substitute it with a new decision, or
•                  vary the original decision.

In this situation, a review officer is not to make a decision to revoke or vary the original decision without advising the claimant of that intention and allowing time for the claimant to respond with further information to support the claim.

Irrespective of whether the claimant accepts the outcome of the s.31 review, the review officer is to advise the claimant:

• of the full reasons for the further decision, and
• if the outcome of the s.31 review is not accepted, then the matter will proceed for review by the VRB, unless the application is withdrawn.

Subsection 31(1)

Under this subsection the Commission has the discretion to review a decision in relation to a claim or application for a pension, an increase of pension or attendant allowance under sections 14, 15 or 98, respectively.

This power of review may only be exercised, however, at any time before a person's right to apply to the Veterans' Review Board (“Board”) for a review of that decision has expired.  Generally, the time limit to apply is 12 months from the date on which the veteran received notice of the decision.

There are instances where the Commission can only conduct a review no later than 3 months after the veteran received the decision.  This reduced time limit applies where the reviewable decision related to any one of the following:

1. an assessment of the rate of pension or increased rate of pension;

2. a refusal to grant a pension on the ground that the extent of the incapacity of the veteran was insufficient to justify the grant of a pension;

3. a refusal to increase the rate of pension;

4. a reduction in the rate of pension, or a cancellation or suspension of a pension, or the fixing of a date to recommence a suspended pension;

5. a refusal to grant an application for attendant allowance under s.98.

Under this subsection the Commission may also conduct its review if an application for review has been made to the Board but only where that application has not been determined by the Board.

If the Commission reviews a decision under ss.31(1) it may choose to make any variations that it sees fit and may set as the date of effect, a date not earlier than the earliest date which the VRB may have set, had the VRB conducted the review of the decision.

In practice, however, the Commission does not intervene under this subsection after a Certificate of Readiness has been lodged with the VRB.

Subsection 31(2)

Where a veteran has applied to the Administrative Appeals Tribunal (“AAT”) for review under s.175 of the Act, under subsection 31(2) the Commission can review that decision whether it was made by the Commission or the Board, provided that the AAT is yet to make a determination on the application.

If a review under this subsection is to be conducted, the Commission may only make variations with the consent of the applicant.  Any variations that are consented to by the applicant may take effect from a date that the AAT could have specified had it made the variation itself.

The Commission is excluded from reviewing a decision under this subsection, where the Commission itself was the applicant to the AAT.

Subsection 31(3)

If an error has been made regarding the date of effect of a Board decision the Commission may alter the date of effect for the purposes of correcting this error.

Subsection 31(4)

This subsection allows the Commission to review a decision where the prior decision was based on evidence that was false in a material particular.  The use of the terminology 'false in a material particular' makes it clear that this provision may only be used where the false evidence has had a material influence on the outcome of the decision in question.  If a review under this subsection leads the Commission to vary the relevant decision, that variation may take effect from any date considered appropriate by the Commission.

Example: An applicant on one occasion gives the date of an event as 6 December and on another occasion gives the date of the same event as 8 December.  This is generally not a “material particular” since the date may not affect the outcome.

Subsection 31(5)

This subsection does not award a power of review but merely qualifies the power to review under s.31(1).  Where the Commission elects to review a decision under ss. 31(1)(a) it will assume an application for review was lodged with the Board on the day the Commission commenced its review.

Subsection 31(6)

Under ss.31(6) the Commission may cancel, suspend or reduce the rate of a pension previously granted or assessed by the Commission, the Board or the AAT.

Altering a payment under ss.31(6) does not constitute a review for the purposes of the Act, it is an exercise of powers granted to the Commission.

This is an important distinction because the power to obtain evidence under s.32 is available to the Commission for “reviews” under s.31, not the exercise of statutory powers such as those contained in this subsection.

Subsection 31(5A) in connection with 31(6)(a)

This provision relates directly to the exercise by the Commission of its powers under ss.31(6).  Subsection 31(5A) allows the Commission to require a veteran, to undergo a medical examination or consent to the release of information for the purposes of a review under ss.31(1) – (4), or for the purposes of the exercise of the Commission's powers in ss.31(6)(a) and (b).

The Commission must make this request in writing.

If the additional information, which has been obtained as a result of the request under ss.31(5A), was not previously before the Commission, or discloses a failure to comply with a section of the VEA, the Commission may cancel, suspend, or reduce payments, under ss.31(6).

Example: The grant of a Special Rate pension to a veteran depended in part on his Post Traumatic Stress Disorder (PTSD) connected to his service.  All that is required to trigger a review of the Special Rate pension decision is new evidence.  Subsection 31(5A) allows the Commission to request the veteran to undergo a medical examination.  This examination may reveal new evidence.

The power under ss.31(5A) should not be used except where there is good reason to believe that the obtaining of further information will demonstrate that a particular decision in relation to a veteran's entitlements under the VEA should be altered.

Subsection 31(6)(a)

To use the powers under this subsection, the following conditions must be satisfied:

1. a matter exists, which affects the payment of the pension or allowance to the veteran in question;
2. that matter was not before the decision-maker when the initial decision was made (“a new matter”); and
3. the new matter leads to the conclusion that a payment should be cancelled or suspended, or is being paid at a higher rate than it should be.

Any new matter under this subsection must be substantially new to allow the Commission to act.  For example, a new doctor's report will not constitute a new matter if it simply repeats material previously before the Commission.

A matter need not have existed at the time of the Commission's original decision.

The Commission can take into account matters that were not, or could not have been, considered in the initial decision.

Subsection 31(6)(b) & (c)

These two subsections enable the Commission to cancel, suspend, or reduce a payment if it is satisfied that:

• a person has failed or refused to comply with a provision of the Act; ss.31(6)(b) or

• a person has refused or failed to comply with a notice served under ss.31(5A) or with a request made under ss.32(1)(c).

It should be noted that the term “person” in s.31(6)(b) does not just apply to the pension recipient.  It can also apply to a Delegate and consequently can permit the correction of errors where there has been a failure to apply and/or the erroneous application of the provisions of the VEA in granting an entitlement or assessing the level of pension.

Section 24A and its effect on ss.31(6)

Where the Commission is or will be liable to pay a pension to a veteran at the Intermediate or Special Rates, that rate will continue as long as a DP continues to be payable for the life of the veteran in question unless any of the following occurs:

1. the initial decision to grant the rate of pension was based on misleading or false information;

2. the veteran in question has undertaken or has become capable of undertaking any one of the following categories of remunerative work:

1.                                                     A period of time equal to 50% or more of the time ordinarily worked by a person engaged in work of that kind on a full time basis (in calculating the time, the Commission does not take into account overtime); or

2.                                                     A weekly period of 20 hours or more of a form of work that does not fit into category 1 above; or

3.                                                     A weekly period of more than 8 hours of work if eligible for the Special Rate under s.24.

Therefore, if a veteran, who is receiving or has become eligible, in the eyes of the Commission, to receive a pension at the Intermediate or Special Rate, falls within any of the exceptions in ss.24A (i) – (ii) above, in relation to that veteran's eligibility for a rate of pension higher than the general rate, then the Commission's power under ss.31(6)(d) may be implemented.

It is also important to remember that s.24A was inserted into the VEA to overcome certain decisions of the Federal Court which had held that a veteran needed to satisfy the alone test in ss.24(1)(c) of the Act on an ongoing basis in order to remain entitled to the special rate pension.

As such, the provision was never intended to and does not displace the ordinary review provisions under the VEA.  So for instance, a decision granting pension at the Special Rate might still be reviewed under ss.31(1) and a decision of the Board granting pension at the Special Rate is still liable to be appealed to the AAT by the Commission under s.175.

Importantly, s.24A does not displace the Commission's power to use ss.31(6)(a) in circumstances where a decision to grant pension at the Special Rate has been shown to be incorrect on the basis of new evidence.  Similarly, s.24A would not protect a decision to grant Special Rate which has resulted from a misapplication of the relevant provisions of the VEA.

Subsections 31(6A) and (6B)

If a pension is being paid at a higher rate than appropriate because a veteran's incapacity is less than 10%, then under ss.31(6A) the payment must be cancelled.  Even if the pension is cancelled, under ss.31(6B) the veteran will still be held to have a war-caused illness or disease.

Subsection 31(7)

This subsection allows the Commission to set a date earlier than the date of its determination as the date of effect of any decision to cancel, suspend or vary the rate of a pension where a determination has been made under the provisions of ss.31(6):

•    because a new matter under paragraph 31(6)(a) affects the rate of pension; or
•    for a failure to comply with a section of the VEA [except for notices under   paragraph 127 (1)(f) or subsection 128(4)]; or
•    as the result of misrepresentation.

the Commission may alter the date of effect of a payment to one earlier than the date of the determination.

Subsection 31(8)

This subsection enables the Commission to increase the rate of the pension or attendant allowance where it is satisfied that the rate is less than it should be.  The date of effect of a determination under this subsection commences from any date the Commission sees fit on the condition that the date set by the Commission is not prior to the date of the initial decision had that initial decision been correct in the first instance.

The Commission may use the information gathering powers of ss.31(5A) for the purpose of exercising its power under this subsection.

Subsection 31(9)

In the event that the Commission has determined that the payment of an attendant allowance should be suspended, it may in that determination also fix a date for recommencement of that allowance.  Alternatively, the Commission may, at some later date make a further determination to fix a date to recommence payment of the allowance.

Neither of the above applies if the payment is cancelled altogether.

Subsection 31(10)

This subsection provides that a decision by the Commission not to intervene under s.31 is not a reviewable decision.

Further clarification on the application of Section 31 and on the Commission's power to revisit decisions generally

If you require assistance regarding the application of s.31 in a particular case, or if you are considering re-visiting a previous decision in circumstances where s.31 does not apply, then you should seek advice from Legal Services Group in the ACT Office.  Your enquiries should be forwarded to line managers who should then contact:

Director

Advising and Public Law

Legal Services Group