Greene and Repatriation Commission [1999] AATA 899 (30 November 1999)

Last Updated: 7 December 1999

DECISION AND REASONS FOR DECISION [1999] AATA 899

ADMINISTRATIVE APPEALS TRIBUNAL )

) No T1997/42

VETERANS' APPEALS DIVISION )

Re JANET VALMAI SIMPSON GREENE (Deceased)

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Ms A F Cunningham (Part-time Member)

Date 30 November 1999

Place Hobart

Decision The decision under review is affirmed.

[Sgd S F Cunningham]

Part-Time Member

CATCHWORDS

Social Security - partner service pension - grant of overseas surviving spouse pension - obligation to notify of change in circumstances - question of imputed knowledge - overpayment raised.

Veterans' Entitlements Act 1986 - s.56A

REASONS FOR DECISION

30 November 1999 Ms A F Cunningham (Part-time Member)

1. An application was lodged for the review of a decision made by a senior delegate of the Repatriation Commission dated 26 November 1996 which affirmed a decision of a delegate of that Commission dated 4 October 1996 determining that an overpayment of service pension in the sum of $9,534.60 had occurred. The application for review was lodged by the applicant on 21 March 1997. However the applicant died on 28 May 1997 and the application for review was continued by the applicant's son, Mr. Phillip Sims, who was granted probate of the applicant's will by the High Court at Auckland on 15 January 1998.

2. The applicant's claim is pursued in accordance with the provisions of s.126 of the Veterans' Entitlements Act 1986 ("the Act").

3. Both parties to this appeal agreed to the Tribunal determining the application on the basis of the written material before it. The written material included the T documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975, a memorandum of submissions made on behalf of estate of Janet Greene dated 9 March 1999 and lodged by Mr. G. M Cameron as counsel for the applicant, the respondent's submissions dated 17 May 1999 lodged by Mr M Castle for the Repatriation Commission and the applicant's response dated 21 June 1999. The Tribunal also had before it the Repatriation Commission's file relating to the issues before it which was lodged with the Tribunal on 16 February 1999.

4. The T documents reveal and there appears to be no dispute as to the following facts:

(a) Following the death of Mrs. Greene's husband, George Greene on 7 December 1994, Mrs. Greene was in receipt of a partner service pension pursuant to division 5, Part III of the Act.

(b) On 19 April 1995, Mrs. Greene was forwarded a letter by the respondent Department in response to her income statement received 12 April 1995 advising that her service pension would remain unchanged. In that letter she was advised of her obligation to inform the respondent Department within 21 days of any change in her circumstances.

(c) On 17 May 1995 Mrs. Greene completed an application for a surviving spouse pension from the New Zealand Income Support Service.

(d) The application was forwarded to the Department of Social Welfare, Nelson, New Zealand by covering letter from Mr. R O'Shea of the Commonwealth Department of Veterans' Affairs, Queensland branch.

(e) Mrs. Greene was advised by letter dated 11 August 1995 of the award of surviving spouse's pension as from 10 May 1995.

(f) By letter dated 9 July 1995 Mrs. Greene advised the respondent Department of her intention to reside permanently in New Zealand.

(g) A letter was forwarded by Mr. R O'Shea of the Department of Veterans' Affairs to the Department of Social Welfare, Nelson, New Zealand on 17 July 1995 advising of the lodging of a Form WAR2A on behalf of Mrs. Greene and her new contact address in Auckland, New Zealand.

(h) Mrs. Greene subsequently received various requests for financial information concerning the sale of her Queensland home and application of the proceeds of sale. All such requests for information were promptly responded to by Mrs. Greene.

(i) That following a request dated 5 June 1996 by the respondent Department, Mrs. Greene duly completed an income statement on 16 June 1996. In the statement Mrs. Greene advised of the receipt of her New Zealand service pension.

(j) Following the receipt of this information and further inquiries made by the respondent Department, Mrs. Green was notified of the possibility of an overpayment on 4 October 1996. She was also informed of her obligation to notify the Department within 21 days of any change in her circumstances.

(k) By letter dated 7 October 1996, Mrs. Greene was informed that a review of her service pension was conducted by a delegate of the Respondent who determined that because of her failure to advise of the grant of war widow's pension within 21 days, an overpayment of service pension for the period 14 September 1995 to 9 October 1996 had been raised in the total sum of $9,534.60. This sum represented the amount of service pension that had been paid to Mrs. Greene to which she was not entitled during the aforementioned periods. A request for payment within 21 days was made. The total sum has subsequently been repaid to the respondent Department.

5. The respondent maintains that the full amount of $9,534.60 was recoverable pursuant to the provisions of the Act. It contends that the New Zealand surviving spouse's pension is a pension "payable under the law of a foreign country" and as such meets the definition provisions under s.5E thus classifying Mrs. Greene as a "war widow". The provisions of s.38C of the Act provide in sub-section 2 that a partner service pension is not payable to a war widow or a war widower. It is the respondent's contention that Mrs. Greene was thus not entitled to receipt of her partner service pension as from 14 September 1995 being the first pension payday after the grant of the surviving spouse pension and by virtue of the provisions of s.56A of the Act the pension automatically terminated as from that date.

6. In essence the provisions of s.56A of the Act provide that where a person receiving a service pension is given a notice under s.54 requiring the person to inform the Department "of the occurrence of an event or change in circumstances within a specified period" and the event or change in circumstances occurs and the person does not inform the Department within the notification period and because of the occurrence of the event or change in circumstances the person ceases to be eligible for the pension, the pension ceases to be payable immediately after the day on which the event or change in circumstances occurs. Further, that if the person ceases to be eligible for a pension under this subsection the pension is cancelled.

7. It was submitted on behalf of the applicant that there was sufficient justification arising from the circumstances in this case for Mrs. Greene to hold an honest and reasonable belief "that the Department had already been informed and knew of the pension grant". It was conceded on behalf of the applicant that Mrs. Greene had received advice as to her obligation to notify the respondent Department of any change in her circumstances and receipt was acknowledged of the letter referred to above dated 19 April 1995 in which Mrs. Greene was specifically informed of her obligations under s.54 of the Act and in particular to advise of the grant of any pension or benefit from an overseas authority. However the applicant relied on the fact that Mrs. Greene's application for a New Zealand pension was lodged and processed through the respondent Department which must thus "be imputed with knowledge of the situation". It is also evident from the T documents that correspondence from the New Zealand Income Support Service was forwarded to the respondent Department (pages 55-56 of the T documents). It is noted that this letter pre-dates the New Zealand service application form.

8. In letters addressed to the respondent, Mr. Sims, the son of the late applicant, has stated that what is in question, is not the applicable legislation but the "fairness of the application of the law". He contends that where discretion is allowed a decision should be made in favour of those persons whom the applicable legislation is designed to assist.

9. The question remains as to whether or not the Tribunal does have a discretion in the application of the relevant legislation or whether the provisions of requisite sections are absolute in their requirements. As the legitimacy of the request made by the respondent Department pursuant to the provisions of s.54 is not in issue, attention must be directed to the provisions of s.56A which provide for the automatic termination of a pension entitlement in the event of the recipient not complying with a s.54 notification. Section 56A reads as follows:

"56A Automatic termination--recipient not complying with section 54 notification obligations

(1) Where:

(a) a person who is receiving a service pension or income support supplement is given a notice under section 54; and

(b) the notice requires the person to inform the Department or a specified officer of the occurrence of an event or change in circumstances within a specified period (in this section called the notification period); and

(c) the event or change in circumstances occurs; and

(d) the person does not inform the Department or specified officer of the occurrence of the event or change in circumstances within the notification period in accordance with the notice; and

(e) because of the occurrence of the event or the change in circumstances

(i) the person ceases to be eligible for the pension or income support supplement; or

(ii) the pension or income support supplement ceases to be payable to the person;

the pension or income support supplement ceases to be payable to the person immediately after the day on which the event or change in circumstances occurs.

(2) If the person ceases to be eligible for a pension under subsection (1), the pension is cancelled."

10. It is the Tribunal's view that the provisions requiring a pension recipient to notify the Department of any change in circumstances are absolute and mandatory. This was done by letter dated 19 April 1995. The remaining issue is whether Mrs. Greene was entitled to assume that the respondent Department was in possession of the relevant information regarding her change in circumstances as maintained by Mrs. Sims.

11. Some reliance was placed on a letter attached to the applicant's submission written by Valerie McNaughton of the New Zealand War Pensions Department dated 2 October 1998 in which she states:-

"The Department of Veterans' Affairs acts as an agent for many of our pensioners living in Australia and as a result they have copies of, or are aware of many of the pensions that are received by N.Z. ex-servicemen and their widows living in Australia.

It is our understanding that when an applicant approaches DVA they ´register' the claim on their computer system before sending it on to us so that suggests that they would have been aware that she had applied for a Surviving Spouses Pension. Periodically they follow up any outstanding applications, i.e. they enquire as to the result... ."

12. There is no dispute that the respondent Department was aware of Mrs. Greene's application for a surviving spouses pension, indeed they submitted the relevant application to the New Zealand authorities. The question remains whether it was reasonable to presume that they were aware of the result of the application. As the respondent has correctly pointed out, the lodgment of an application does not automatically result in the successful grant of a service pension. The applicant must meet the requisite guidelines in order to qualify. There is no evidence contained in the material before the Tribunal upon which it can conclude that the respondent Department was aware of the outcome of the application for surviving spouses pension. The Tribunal does not agree that merely because the respondent Department assisted and encouraged Mrs. Greene to make the application and corresponded with the relevant New Zealand authority, it was thus imputed with any knowledge as to the outcome of the application. The relevant legislation makes it clear that the obligation rests with the pension recipient to inform the Department of any change in her circumstances, in this case the grant of an overseas pension, which is what Mrs. Greene failed to do.

13. Whilst the Tribunal understands that Mrs. Greene may have been confused and perhaps misled in her dealings with the respondent Department and by the documentation supplied to her, in particular the document entitled "Service Pension and Foreign Pensions" contained in annexure C to the applicant's submissions, nevertheless the Tribunal is obliged to apply and interpret the law as it stands. There is no discretion to permit avoidance of the mandatory provisions of s.56A which would enable acceptance of an honest but mistaken belief on behalf of the pension recipient.

14. The Tribunal having so found it must determine whether the provisions of s.56A have been satisfied in order to justify cancellation of the pension in question. As outlined above, concession was made on behalf of the applicant that Mrs. Greene received a letter from the respondent Department dated 19 April 1995 which set out her obligations in accordance with s.54 of the Act requiring her to inform the Department of a change in circumstances, thus sub-paragraphs (a) and (b) of s.56A are deemed satisfied. It is noted that a subsequent request for details of income was sent to Mrs. Greene by letter dated 10 March 1995 and was complied with on 12 April 1995 when she answered "NO" to the question as to whether or not she was in receipt of any overseas or other pension, which she was not at that time. However the Tribunal finds as a result Mrs. Greene would have then been put on notice that the receipt of an overseas pension was a relevant factor in determining her ongoing eligibility and/or amount of pension payable. The respondent claims that a further request for information was forwarded by letter dated 21 February 1996 to which it received no response, a further request being sent on 5 June 1996. It is noted that it was claimed on behalf of the applicant that Mrs. Greene did not receive the request dated 21 February 1996.

15. The Tribunal determines that the requisite change in circumstances in accordance with sub-paragraph (c) of s.56A occurred when Mrs. Greene was advised of the grant of her surviving spouse pension by letter dated 11 August 1995, she not having been in receipt of that type of pension previously.

16. There is no dispute on the facts and the Tribunal finds that Mrs. Greene did not notify the Department of the grant of her surviving spouse pension within the requisite notification period and thus sub-paragraph (d) is satisfied.

17. The Tribunal further finds that upon the grant of Mrs. Greene's surviving spouse pension she became ineligible to the continued receipt of her partner service pension in accordance with the provisions of s.38C subsection (2) which states that a partner's service pension is not payable to a war widow or war widower. It was conceded on behalf of the applicant that Mrs. Greene being in receipt of a pension "payable under the law of a foreign country" satisfied the definition of war widow under s.5E of the Act. The Tribunal finds that it was the change in Mrs. Greene's circumstances in the granting of her overseas pension that in accordance with the provisions of s.38C of the Act ceased her eligibility for her Australian partner service pension.

18. In accordance with the provisions of sub-section (2) of s.56A the pension is cancelled if the person ceases to be eligible under the provisions of sub-section (1). The Tribunal having found that each of the sub-sections (a) to (e) are satisfied to the reasonable satisfaction of the Tribunal in each instance, it has no alternative but to determine that Mrs. Greene's pension be cancelled from when the change in circumstances first occurred. The Tribunal thus affirms the decision under review which determined that Mrs. Greene's partner service pension be cancelled with effect from 14 September 1995, being the first pension payday after the grant was made by the relevant New Zealand authority. The Tribunal accepts the calculations presented for the relevant period from 14 September 1995 to 9 October 1996 which indicate an overpayment of service pension in the sum of $9,534.60.

19. The decision under review is accordingly affirmed and the appeal dismissed.

I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Part-time Member)

Signed: .....................................................................................

Personal Assistant

Date/s of Hearing Matter decided on the papers. (Overseas application)

Date of Decision 30 November 1999