Advisory from Disability Compensation Branch

No 4/99

This is an advisory note only.  Disability Compensation Branch and Legal Services Group have agreed this policy view.  It is not a Repatriation Commission Guideline or a Departmental Instruction.   The advice is not intended to conflict with the proper application of the Veterans' Entitlements Act 1986 or the judgements of the Courts.  It may be subject to change as a result of further interpretation by the Courts of the legislation.  Nevertheless it represents a considered view that should be taken into account by all delegates.

THE POWER TO REMAKE A DECISION

Background

From time to time it is discovered that a decision made in the past was made improperly.  That can be because of a mistake by a decision-maker, the inclusion of material that later proves to be false, the use of supporting material that does not relate to the veteran or claimant or the misapplication of the law.

The Minister and his advisers, and the Repatriation Commission and its advisers have been embarrassed in the past when action is taken to revoke decisions or to apply s31 to review decisions.

This advice is about common errors in decisions revealed by quality assurance checks or brought to the attention of the Department by representatives of the veteran or claimant.

It is about the correction of a decision where an obvious error has occurred and in law there is no basis for eligibility or in some cases for payment.  Such a situation can only be resolved according to law.  The action required is to treat the original claim as one that has had no decision made.  In other words the previous decision was never made.

This approach applies equally to income support, qualifying service, compensation and all allowance matters.

Most common forms of 'error'

Errors of omission

Only part of a claim has been decided and a disability has been overlooked.  It may be that a period of eligible service has been missed.  The original delegate, using the s19 powers, can correct this and complete the decision.

Errors of commission

A common example is an incorrect effective date or a wrong diagnosis. It may also be that a piece of information that applied to another person or event or the wrong medical report was used when making the decision.

If s 31(1) is available then the Team Manager or Review Officer can intervene to review the decision and substitute a new one.  The availability of s3 1(1) is affected by time limits relating to time has not expired for seeking formal review from the Veterans' Review Board or the Administrative Appeals Tribunal.  The more common situation is for the discovery of fundamental errors to occur many years later.

Where the time limits in s 31(1) have expired then s 31(6), 31(7) or 31(8) have to be considered.  The use of one or the other is critical and must be used according to the circumstances.

S31(6) applies only when a matter comes to light that was not available to the various decision-makers because of either a refusal or a failure to provide the relevant information.

S 31(8) applies only when the Commission believes that the rate of pension or allowance is lower than the correct rate.  This provision allows the decision-maker to make a new decision that applies the proper rate of pension from the original assessment date of the pension or allowance.

Decisions without merit

The Delegate may have properly exercised his or her delegations but has, nevertheless, simply made the wrong decision.  The clearest example is where a factor in a Statement of Principles has been identified as the basis of accepting a claim but there is nothing in the evidence to support the decision.   Decisions of this type should be reviewed under s 31(6) but only by the Senior Review Officer (DVA Executive Level 1 in NSW, Qld and Vic or an equivalent officer in SA, Tas and WA) or in National Office by an officer with an equivalent delegation.

Some decisions are not in 'error'

A decision is not in error or unlawful if another person looking at the decision would have simply arrived at a different conclusion.  The decision after all has to be one that satisfied the decision-maker at the time.

A decision discovered many years later to be inconsistent with the new law or a new interpretation of the law by the Courts is not an “error” that can be corrected by another person

In the past there were decision made on the basis of a Court interpretation of the meaning of allotted.  Because the Parliament has changed the law to define allotment in a particular way it does not mean that those early decisions are wrong, improper or illegal.

A similar situation arises in respect of qualifying service and decisions made concerning “theatre of war” provisions and “incurred danger”.  A decision is still correct if it was reasonable for a delegate to have made that decision on the information that was available.  It is not wrong because there is now a new policy on some matter that was decided in the past by a different approach.

Action to take when rendering a decision null and void

The first consideration in all matters where an error has been found is the power of the decision-maker to have made the decision.

If the decision-maker never had such a power or delegation to make that decision then the decision is rendered null and void and a decision remains to be made.

The improper exercise of a function, that is exercise without the authority, is called ultra vires, simply meaning beyond powers.  Any ultra vires decision is voided on discovery.

However sometimes there are matters where a decision-maker has exercised the full extent of his or her power and yet cannot go back and make a new decision.  This is called “functus officio”, simply meaning the officer's task is finished.

What is the difference?

The case of Leung v. Minister for Immigration (1997) 150 ALR 76 deals with the concept of functus officio and what to do about decisions that are invalid by law.

The term functus officio refers to the position of a decision-maker who has properly exercised the duties of the position and made a decision.  The decision-maker cannot go back and change that decision.  This is because the law says that once the decision-maker has completed the job and made a complete decision there remains nothing more for that person to do in regard to the claim.

This concept does not apply where the decision was at all times an invalid one.  A decision can be invalid because the decision-maker did not have the power or delegation to make the decision in the first place or that there is a wrong application of the law.  This also applies to a decision based on policy approaches where that policy has no basis in law or more recent law has overtaken the policy application.

Where a decision was made on an incorrect factual basis, it is void, and thus functus officio does not apply to deny the decision-maker the right to remake the decision.

Finkelstein J in Leung said:

"To ignore an invalid decision [ie, to treat it as if it does not exist] is not to revoke it. It is merely to recognise that that which purports to be a decision does not have that character. To decide the matter again is not a reconsideration of it. It is in fact the original exercise of the power to make the decision. Hence, the rule embodied in the expression 'functus officio' has no application to such a case. Nor is there any need to find either an express or an implicit power of reconsideration. Those doctrines, to the extent that they are applicable to administrative decision-making, only apply to validly made administrative decisions."

Operation in a review situation

Should any Review Officer, conducting a s 31 review as an example, discover that the original decision was wrong in law then the decision is void.  A decision must then be made on the original claim that at law has remained undecided.  In the circumstances the delegation of the officer who is making the new, but now the primary decision, must be appropriate, that is the person must have the proper delegation and/or powers.

The same applies to Income Support Review Officers exercising a s 57 delegation.  For qualifying service cases and consequent grants of service pension the same rules apply.  If at some later date it is apparent that the veteran did not have the service claimed, or did not serve in the area claimed or at the times claimed, then the primary decision is a nullity.  That is there is no decision that has been made on the original claim.  A delegate must make a new decision with the appropriate authority and powers.

This may also arise in the context of a case before the Veterans' Review Board or the Administrative Appeals Tribunal.  A matter that is in front of either body is removed if the primary decision is void.  However, the question of whether that was a proper exercise of power and whether the matter has been properly removed remains a question for the Board or Tribunal to decide as a matter of jurisdiction.

Making the new decision

The delegation of the officer who is making the new primary decision must be appropriate to the mater to be decided and be within the powers of that delegation.

All the original appeal rights are open to the claimant if they still exist.  If there are new appeal provisions then those that apply at the time of the later decision are the ones that apply to the applicant.

The question of a basic eligibility is still a question that can properly be decided by the Board or the Tribunal as part of their consideration of jurisdiction.

Recovery action

In all cases of claims that are decided afresh and are decided such that there is no entitlement to allowance or pension then payment of further pension must be cancelled, not simply suspended.  Any money that has been paid out has been unlawful and is subject to normal recovery of debt provisions of the VEA.  However, where the payment of pension or allowance was not the result of the claimant's false or misleading information but rather from a Departmental failure such a a mistake of omission or commission then consideration for write-off or waiver is available to the Department.

Advice to the Repatriation Commission

All cases where a decision is to be made that a benefit in payment is to be cancelled because of an incorrect decision must be advised to the relevant State Director, the Deputy Commissioner and to the Branch Head Disability Compensation.  Advice from the Legal Services Group will be provided as necessary or required.

The Repatriation Commission will be advised in circumstances where there is a likelihood of adverse reaction and where the issue is an important mater of policy or law.

It is safe to always assume that a complaint will be made to the Minister about any action that cancels a previous entitlement or eligibility.  Careful minutes of every step of the process, letters sent and received and actions undertaken must be maintained for immediate reporting to National Office and/or for a brief to the Minister for Veterans' Affairs.

Previous advice

Previous assistance was given in a related area on the use of s 31 (6) powers.  This is different to the situation where a decision is discovered to be a null and void.

The Repatriation Commission is empowered under s 31 (6) to cancel, suspend or decrease a pension or attendance allowance having regard to:

•   a matter that affects the payment, or the rate of payment that was not before the Commission, Veterans' Review Board, or the Administrative Appeals Tribunal when the decision to grant the payment was made, or

•   the refusal or failure by a person to comply with a provision, or notice under s 5A or request under s.32(c) of the VEA, or

•   the special or intermediate rate pensions, if the veteran is working, or is capable of working, in excess of the prescribed hours.

The Commission has delegated its s 31 (6) powers to:

• Deputy Commissioners
• Division Head, Compensation & Support
• Branch Head, Disability Compensation, and
• Nominated officers in the States

Qualifying service and rescinding decisions

Departmental Instruction C14 of 1999 published on 21 May 1999 deals with rescinding decisions concerning individuals who were previously accepted as having rendered qualifying service.

Where to get further information

Further information on

• the power to remake decisions; or
• whether a decision-maker is truly functus officio, or
• whether the original decision-maker operated ultra vires; or
• whether the original decision is null and void,

can be obtained from Carolyn Spiers in the Legal Services Group or John Douglas in the Disability Compensation Branch.

Questions on eligibility, qualifying service, operational service, peacekeeping service, warlike and non-warlike service should be addressed to John Douglas or to the Policy, Eligibility and Research Section in the first instance.

Questions on recovery action need to be addressed at the same time as any decision on eligibility is being made.  All officers involved in remaking a decision should check the proper procedures in your State.

WR Maxwell Branch Head Disability Compensation                November 1999

GJ Johannes Acting Branch Head Legal Services Group         November 1999