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2.5 Reconsiderations of Determinations on Own Motion
What is a review own motion?
A reconsideration on own motion (known colloquially as a ‘review own motion’) under section 347 of the Military Rehabilitation and Compensation Act 2004 (MRCA), allows a delegate to review an original determination. The discretionary power under section 347 will result in the Commission making a determination to revoke, confirm or vary the original determination. A review own motion ultimately allows the Commission to make a determination and change the outcome for the claimant’s entitlement unless the determination confirms the original.
A reconsideration on own motion is best described as a mechanism allowing a delegate to step back into the shoes of the original decision maker who previously made an original determination under the Act, review the merits of the claim, and have the opportunity to vary, revoke or confirm that determination. In most cases the reconsideration on own motion will be exercised to vary or revoke an original determination, and this will change the outcome for a client (such as whether liability for a condition is accepted, or an amount of compensation payable).
This advice should be read in conjunction with the guidelines developed by Legal Services.
Whilst there are many reasons for a review own motion, it should not be common practice for delegates to return to earlier decisions made by different delegates and amend those determinations based on different or modern views or interpretations of the historical evidence.
So, while DVA has the ability to review old decisions on our own accord via section 347 of the MRCA, a delegate is not required to undertake a forensic audit of all past evidence and determinations when considering a reassessment of a person’s entitlement under MRCA.
For delegates who are considering remaking a decision under section 347 the following advice may be helpful and provide guidance:
Consider the operational effect of the decision. Might the decision have harsh, unwarranted or unintended consequences?
Determine the attitude of the affected party. Remaking the decision may assist in avoiding unnecessary litigation. (A key point for section 347 reviews under the Single Appeal Pathway)
Consider whether the decision has wider implications. Who or what is likely to be affected if the decision is remade?
Ideally, a review own motion should be used to foster good administration, taking into account, for example, finality, consistency, fairness, flexibility and accountability.
In some circumstances it may be more appropriate to suggest to the veteran that they lodge a fresh claim rather than exercising the reconsideration power. However, as reapplying may impact on timeframes and dates of entitlement it is possible that reconsideration, where available, will be more beneficial to a veteran.
PI Specific Guidance
In exercising their delegation, the delegate has the ability to apply discretion in deciding whether to undertake a reconsideration own motion, it therefore follows that in some cases it would not serve as a matter of good administrative decision making to reconsider on own motion a determination. For example, if a client has a contemporary compensation claim or ability to make such a claim, it may be better suited that the delegate consider the fresh claim and assess the person’s current circumstances and corresponding entitlement. For more information and the policy of review own motions specifically relating to Permanent Impairment claims, see Chapter 5.19.
If a review own motion is conducted and the delegate remakes a decision that results in a less beneficial outcome for the client, the delegate must consider the Department’s policy advice and follow the steps for procedural fairness for the client.
Certain circumstances where a Review Own Motion is not permissible:
As provided for by subsections 347(5) and (6) it should be noted that the use of the reconsideration power under section 347 is not always legally permissible.
Veterans’ Review Board
Although the section 347 power may be used repeatedly under the legislation, it is only available up until the time a Veterans’ Review Board (VRB) decision is made.
Where a matter is before the VRB and a Certificate of Readiness has been provided to the VRB the General Counsel’s Branch must be consulted if the exercise of the section 347 powers is being considered.
Administrative Appeals Tribunal
Subsection 348(1) allows for the Military Rehabilitation and Compensation Commission (MRCC) to vary certain decisions after they have been determined by the VRB. Those determinations are:
Original determination where the VRB has affirmed that determination and the MRCC’s determination therefore remains on foot; and
A VRB determination in substitution for the original MRCC decision.
The reconsideration may only occur where:
An application has been lodged with the AAT for review of the affirmed or substituted determination;
The AAT has not made a determination; and
The claimant has consented to the variation.
The requirement for consent is consistent with the AAT Act requiring that decisions not be altered when they are before the AAT unless the parties consent.
As there will be an application before the AAT, delegates of the MRCC should only consider this option in consultation with the General Counsel’s Branch as the AAT will need to be kept informed and a consent order likely made by the AAT.
Where a determination has been varied using the power in subsection 348(1), this determination is a reviewable determination and any appeal is to the AAT not the VRB. This is logical in that the original reviewable decision will already be before the AAT.