9.2.1.1 — If a client is dissatisfied with a decision by a delegate of the Repatriation Commission which results in an overpayment being raised, the client has the right under the VEA to have that decision reviewed.

9.2.1.2 — There is no right of review under the VEA against the recovery of the overpayment. However, applications for review of the rate of recovery on hardship grounds are considered. A debtor may also request for a debt to be waived under section 206 [3] VEA. For guidelines relating to waiver of a debt refer to this manual's Section 7.18 Waiver. Although debt recovery may not be reviewed under the VEA, the client does have other options for redress: - a complaint could be made to the Ombudsman or judicial review could be sought under the Administrative Decisions (Judicial Review) Act 1977 (sections 5 or 6). These are discussed further in this chapter.

Further information on the client's right of review in connection with recovery of a Centrelink debt by the Department of Veterans' Affairs is contained in this manual's Section 8.6.2 Right of Appeal in Chapter 8 Centrelink/DVA Recovery.

The rate of DFISA, which ceased 1 January 2022, was determined by a simple mathematical formula based on the rate of social security income support and disability pension (now known as Disability Compensation Payment) that the person was receiving and their partner's rate of disability pension (now known as Disability Compensation Payment). Therefore, there is no scope for such a decision to be reviewed under section 57 [4] of the VEA. When a person was dissatisfied with the rate of DFISA that they were receiving, the concern may rest with the primary payment (the social security income support payment the person is qualified for) or the actual calculation of DFISA. If it is the primary payment that is of concern, a review should be instigated under social security law. If the problem is the calculation, although no formal procedure is in place, DVA should investigate all reasonable requests. Failing resolution, redress can be made through the Ombudsman, or judicial review could be sought under the Administrative Decisions (Judicial Review) Act 1977. These options are discussed further in this chapter.

9.2.2.1 — The Commission's powers to vary, cancel or suspend an income support pension are contained in Division 15 of Part IIIB [6] VEA. Section 56 [6] VEA, section 56A [6] VEA and section 56B [6] VEA provide for automatic reduction or termination of a pension. Section 56C [6] VEA, section 56D [6] VEA, section 56E [6] VEA, section 56EA [6] VEA, section 56EB [6] VEA and section 56EC [6] VEA allow the Commission to make a determination to vary, cancel or suspend a pension.

9.2.2.2 — Determinations (and assessments) are regarded as 'decisions' (refer section 5Q [6] VEA) and therefore can be reviewed under the VEA.

9.2.2.3 — Initially the client may apply to the Repatriation Commission for a review of the primary decision. Section 57 [6] VEA empowers the Repatriation Commission, or a person with delegated powers under this section, to review primary decisions. However, because section 57 [6] VEA only provides a right of review to claimants or pensioners who are dissatisfied with a specific decision of the Commission, the automatic reduction or termination of a pension under section 56 [6] VEA, section 56A [6] VEA and section 56B [6] VEA are not reviewable under the VEA. As self-operating/self-executing provisions, the delegate is neither able nor required to make a decision on a particular case. It is the view of Legal Services Group in National Office that the AAT has no right of review in automatic termination or reduction matters.

9.2.2.4 — However, in Re Cunningham and Repatriation Commission (1997a), the AAT considered that it has the capacity to examine whether all the requirements of paragraphs 56B(a)-(e) [6] VEA were satisfied. If each of the conditions were satisfied, then there was no further right of review. However, if all of the conditions were not met, then the question arises as to whether a right of review should occur on the application of section 56D [6] VEA.

9.2.2.5 — While under section 57 [6] VEA there is no formal right of review against the decision to recover an overpayment, a pensioner may request to have a review of the original decision which led to the overpayment. Similarly, while there is no formal right of review against an automatic cancellation/reduction, a pensioner may request an officer of the Department to informally examine the facts of the case which lead to the reduction/cancellation. This would not be considered a formal review under section 57 [6] VEA and therefore the decision would not be appealable to the AAT.

9.2.2.6 — When determining whether a pensioner has a right of review under the VEA, the key factor that needs to be considered is under which section of the VEA the income support pension was varied.

9.2.2.7 — Decisions which may be reviewed under section [6] 57 VEA are:    

57(1)              A claimant who is dissatisfied with a decision of the Commission:

(a)              in relation to a claim for a qualifying service determination under section 35B; or

(b)              in relation to a claim for a service pension or income support supplement; or

(c)              in relation to a request under section 52Y (financial hardship);

may request the Commission to review the decision.

(2)              A pensioner who is dissatisfied with a decision of the Commission:

(a)              cancelling or suspending a service pension or income support supplement; or

(b)              terminating the suspension of a service pension or income support supplement; or

(c)              reducing or increasing the rate of a service pension or income support supplement; or

(d)              refusing a request for an increase in the rate of a service pension or income support supplement; or

(e)              in relation to a request under section 52Y (financial hardship);

may request the Commission to review the decision.

(3)              A person who is dissatisfied with a decision of the Commission under Part IIIAB (pension bonus) may request the Commission to review the decision. However, this rule does not apply to a decision of the Commission under:

(a)              section 45TE (approval of form); or

(b)              section 45TG (approval of places and persons); or

(c)              section 45TO (declaration of non-accruing membership); or

(d)              paragraph 45UK(1)(b) (approval of form).

9.2.2.8 — A request for a review of a decision under section 57 [6] VEA must:

• be made within 3 months after the person seeking the review was notified of the decision. A person is taken to have been notified of a decision by the Commission when a properly addressed, pre-paid and posted, letter advising of the decision has been delivered to the claimant. It is considered reasonable to allow five working days for delivery of this letter, as set out in section 163 in the Evidence Act 1995
• set out the grounds on which the request is made
• be in writing; and
• be signed by the person seeking the review, or by their authorised representative where applicable.

9.2.2.9 — The procedures to be followed on receipt of a request for a review by a client are contained in P0/C15 of the CLIK Procedure Library.

9.2.2.10 — When advising a client of a reassessment of SP or ISS, and of the overpayment amount, care must be taken in the wording of that advice to ensure that the review provisions are clearly explained. For example:

“The Veterans' Entitlements Act 1986 provides for review of certain decisions. If you are dissatisfied with my decision to reduce/cancel your pension, you may apply for a review of the decision. Any application for review must:

•       be in writing; and
•       be lodged within 3 months of the date you receive this letter; and
•       contain a statement setting out why you disagree with my decision.

There is no right of review in relation to the recovery of an overpayment. If you apply for a review, the overpayment must still be repaid. If your application is successful, any money repaid will be refunded to you.”

9.2.2.11 — Action to recover an overpayment is to proceed even when a request for review of the original decision has been lodged. This also applies to the imposition, and recovery, of a penalty interest and administrative charge incurred by the debtor.

9.2.2.12 — Except for reductions or cancellations arising from failure to comply with a section 54 [6] VEA notice (i.e. automatic reduction or termination), if the client is dissatisfied with the review decision, there is a further avenue of appeal to the Administrative Appeals Tribunal (AAT). Therefore, the letter to the client advising the determining officer's decision must also contain a paragraph advising of this right of review unless it arises from a failure to comply.

9.2.3.1 — The AAT is an appellate tribunal within the Commonwealth administration. It is a high level independent body which reviews decisions of Ministers, public officials and authorities on the merits of those decisions. An essential feature of the AAT is that it is a mixed tribunal with a wide ranging jurisdiction (that is, extending over many subject areas). Members of the AAT include judges, lawyers and experts in areas of decision making which fall within its jurisdiction.

9.2.3.2 — The procedures of the AAT are relatively informal and hearings may be held by telephone. Usually a preliminary conference will be held between the parties to see if agreement can be reached without the need for a hearing.

9.2.3.3 — The AAT has the power to affirm, vary, or set aside the delegate's decision and substitute its own decision. It may also remit the matter to a delegate for reconsideration in accordance with any directions or recommendations they make.

9.2.3.4 — It must be emphasised that the AAT does not have the power to review any administrative decision, but has jurisdiction conveyed upon it by legislation such as the VEA. Therefore the legislative basis for AAT review of decisions made under the VEA is contained in Part X [6] VEA.

175(2)              Where the Commission, under section 57B VEA, affirms a decision of the Commission referred to in section 57 VEA or sets it aside and substitutes another decision for it, a person may apply to the Administrative Appeals Tribunal for a review of the decision so affirmed or substituted.

9.2.3.5 — It is therefore important that decisions made by delegates are correctly worded. A determination citing incorrect legislative references as bases of the decision can lead to the AAT finding that they have no jurisdiction to review the case and this can effectively deny the person their entitlement to a review of the Department's decision by an independent body.

9.2.3.6 — A decision made by the Commission using AAT guidelines is considered to be a decision made at the primary level and carries a right of review under subsection 57(1) [6] VEA or subsection 57(2) [6] VEA. In such cases, the claimant or pensioner must be advised of their right of review.

9.2.3.7 — Recovery action is to proceed even where an appeal has been lodged with the AAT, unless the debtor obtains a stay order from the AAT. This also applies to the imposition and recovery of any penalty interest and administrative charge incurred.

9.2.4.1 — Both parties to an AAT appeal have a further right of appeal to the Federal Court and, by leave, to the High Court. However, these rights exist only in relation to questions of law.

9.2.4.2 — In other words, the AAT has the final decision on questions of fact but its interpretation or application of the law can be challenged in the Federal Court. Decisions of the Federal Court and the High Court are binding on the Department and the AAT.

9.2.4.3 — Recovery action is to proceed even where an appeal to the courts has been lodged, unless the court issues a stay order at the request of the debtor. This also applies to the imposition and recovery of any penalty interest and administrative charge incurred.

9.2.5.1 — The Commonwealth Ombudsman is empowered to investigate (informally and in private) complaints about administrative actions of Australian Government departments and most statutory authorities (known as 'agencies'). A pensioner may approach the Commonwealth and Defence Force Ombudsman at any time (either in writing or via a telephone inquiry) about any matter in relation to an overpayment. However the Ombudsman will not usually investigate a complaint if there is a right of review still open which has not been exercised, or if there is a review in progress.

9.2.5.2 — The Ombudsman's office is primarily concerned with maladministration and its role is to make recommendations for resolution of the dispute. Complaints regarding delays or dissatisfaction with the service given, rather than the merits of the determination, are investigated. The Ombudsman can compel people to answer questions or produce documents in the course of an investigation, but has no power to actually review decisions made under the VEA. Recommendations will be made to correct any decision that the Ombudsman finds was unjust, unreasonable or incorrect. The Ombudsman cannot substitute his decision for the Department's decision, but may inform the Prime Minister and the Parliament if recommendations are not acted upon within a reasonable time.

9.2.5.3 — Recovery action is to proceed even where a client has lodged a complaint with the Ombudsman. This, again, applies to the imposition of any penalty interest and administrative charge incurred.

9.2.6.1 — Under the Administrative Decisions (Judicial Review) Act 1977 [AD(JR) Act], 'a person who is aggrieved by a decision' is entitled to obtain a statement of reasons and apply to the Federal Court for a review of that decision.

9.2.6.2 — A 'person who is aggrieved' is widely interpreted to include any persons whose interests are adversely affected by the decision. Therefore, a person may apply under the AD(JR) Act for a review by the Federal Court of a decision to recover an overpayment of income support pension.

9.2.6.3 — Decisions may be reviewed by the Federal Court under the AD(JR) Act on a number of grounds, including:

• procedures required by law were not observed
• there was no evidence or other material to justify the decision
• a failure or refusal to make a decision.

9.2.6.4 — Generally a request will be treated as an AD(JR) Act request if it specifically refers to the AD(JR) Act, or if it is worded along the line of a request for a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving reasons for the decision.

9.2.6.5 — As in relation to the AAT provisions, the entitlement to obtain reasons for a decision is independent of any action being taken to have the decisions reviewed.