Jones and Repatriation Commission [2002] AATA 629 (18 June 2002)

Last Updated: 30 July 2002

DECISION AND REASONS FOR DECISION [2002] AATA 629

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/1389

VETERANS' APPEALS DIVISION )

Re TERRY NORMAN JONES

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr M J Sassella Senior Member

Date 18 June 2002

Place Sydney

Decision The tribunal affirms that part of the respondent's decision which was to cancel, with effect from 15 October 1996, the applicant's Disability Pension in respect of idiopathic thrombocytopaenic purpuria.

[SGD] M J SASSELLA

Senior Member

CATCHWORDS

VETERANS' ENTITLEMENTS - Disability Pension - idiopathic thrombocytopaenic purpura - primary decision made in ignorance of relevant Statement of Principles - whether pension can be cancelled because matter not before Commission when decision made

Veterans' Entitlements Act 1986 ss 31(6)(a), (b), (7), 120(4), 120B(1), (3).

Repatriation Commission v Richardson (2001) 66 ALD 80

Davis v Repatriation Commission (1997) 74 FCR 577

REASONS FOR DECISION

18 June 2002 Mr M J Sassella Senior Member

HISTORY OF APPLICATION

1. On 30 June 1994 Mr Terry Norman Jones ("the applicant") lodged with the Department of Veterans' Affairs ("DVA") a claim for a Disability Pension payable under the Veterans' Entitlements Act 1986 ("the Act") (T5). He claimed in respect of hearing loss and tinnitus, tinea pedis and rashes on legs. It is the rashes that are of interest in the present matter. The rashes were diagnosed by Mr Jones's general practitioner as dermatitis (T5/23). In follow up examinations the symptoms were described as chronic rash on legs since service. Occasional increased redness and two sore scaly areas (T6/28).

2. On 25 March 1995 a delegate of the Repatriation Commission ("the respondent") accepted that sensorineural hearing loss of the right ear and tinea were linked to eligible service with effect from 30 March 1994 (T10). The dermatitis claim was deferred. No pension was payable because the GARP (Guide to the Assessment of Rates of Veterans' Pensions (5^th ed), (http://www.dva.gov.au/pensions/policy/garp/garp.htm)) rating was 0%.

3. On 28 April 1995 a delegate rejected the claim for dermatitis (T11). This was because the condition was regarded as purpuric eruption due to reasonably large doses of drugs (the analgesic Epelin) taken for a back condition resulting from a work accident occurring in August 1990. There was no reasonable connection, on the evidence, connecting the taking of the drugs with service.

4. On 13 January 1997 the applicant lodged a fresh claim for a Disability Pension in respect of skin rashes due to exposure to chemicals whilst cleaning the ship (T12). He said he became aware of the condition in 1977/78. Mr Jones's general practitioner diagnosed chronic contact dermatitis.

5. On 12 May 1997 a delegate of the respondent accepted idiopathic thrombocytopaenic purpura ("ITP") as defence caused (T15). This was without reference to a Statement of Principles ("SoP") gazetted on 26 February 1997 which concerned ITP. It was decided that a pension was payable at 10% of the general rate with effect from 15 October 1996.

6. On 30 June 1997 Mr Jones lodged with the Veterans' Review Board ("the VRB") an application for review of the decision in T15 (T16). He appealed against the determination in relation to ITP and submitted that the accepted diseases were under-assessed by the respondent.

7. On 4 September 1997 a delegate within DVA reviewed the decision in contention in accordance with s 31 of the Act (T17). She decided not to intervene as there was no evidence suggesting anything wrong with the decision under review.

8. On 1 December 1998 the VRB consented to Mr Jones's withdrawal of the appeal in relation to acceptance of ITP as defence caused and adjourned to consider further issues of assessment (T19). This was communicated to Mr Jones on 15 December 1998 (T19).

9. On 12 August 1999 a delegate of the respondent decided to revoke the decision in T15 recognising ITP as defence caused and assessed the pension as payable at 10% of the general rate with effect from 12 May 1997 (T2/2D-2H).

10. On 1 October 1999 the applicant lodged with the VRB an application for review of the decision in T2/2D-2H (T24).

11. On 17 July 2001 the VRB affirmed the decision to assess the rate at 10% of general rate and affirmed the decision to revoke the determination granting pension in respect of ITP (T29).

12. On 12 September 2001 the applicant lodged with the Administrative Appeals Tribunal ("the tribunal") an application for review of the VRB's decision in T29 (T1).

BACKGROUND

13. Mr Jones was born on 21 August 1951 (T5). He enlisted in the Royal Australian Navy ("the navy") on 7 April 1969 (T3/19A). He was engaged for nine years and was discharged on 6 April 1978. He saw operational service between 17 November and 5 December 1969 and from 16 March to 11 October 1971. He rendered eligible defence service from 7 December 1972 to 6 April 1978 (T2).

HEARING, APPEARANCES AND EVIDENCE

14. The tribunal convened a hearing in this matter in Sydney on 18 June 2002. Mr T McCombe of the Vietnam Veterans' Association represented Mr Jones. Ms S Breuer of the DVA Advocacy Service represented the respondent. This hearing was to consider the preliminary question of the effectiveness of the decision to revoke the decision that Mr Jones's ITP was a defence caused disease. If that exercise of power was ineffective then the matter is disposed of. If that exercise of power was valid then it will be necessary to obtain further expert evidence on the nature of Mr Jones's condition and its relationship to his service.

15. The tribunal had before it a quantity of documentary material which was taken into evidence and given exhibit numbers as follows:

* Exhibit TD1 - Section 37 Statement and associated documents (exhibits T1 - T30) provided by DVA on 10 October 2001.

* Exhibit TD2 - Supplementary documents from Mr Jones's DVA file, provided on 14 June 2002.

* Exhibit A1 - Applicant's statement of facts and contentions, 13 June 2002.

* Exhibit R1 - Respondent's statement of facts and contentions, 14 June 2002.

* Exhibit R2 - Records from the NSW Compensation Court.

* Exhibit R3 - Dr L Joengbloed's clinical notes.

RELEVANT LEGISLATION

16. At this stage of the matter the only relevant legislation is s 31(6)(a) and (b), (7), 120(4), 120B(1), (3) of the Act.

VETERANS' ENTITLEMENTS ACT 1986

Review by Commission

31.(1) ...

...

(6) Where the Commission is satisfied that:

(a) having regard to any matter that affects the payment of a pension or attendant allowance, being a matter that was not before the Commission, the Board or the Administrative Appeals Tribunal, as the case requires, when the decision to grant the pension or attendant allowance, or a decision to vary the rate of the pension or attendant allowance, was made;

(b) by reason of a refusal or failure of any person to comply with a provision of this Act;

...

in a case to which paragraph (a), (b) or (c) applies, a pension or attendant allowance should be cancelled or suspended or is being paid at a higher rate than it should be or, in a case to which paragraph (d) applies, a pension is being paid at a higher rate than it should be, the Commission may, by determination in writing, cancel or suspend or decrease the rate of the pension or attendant allowance, or decrease the rate of the pension, as the case may be, with effect, subject to subsection (7), from the day on which the determination was made or such later day as is specified in the determination.

...

(7) Where a determination is made under subsection (6):

(aa) by reason of the Commission having regard to a matter that affects the payment of a pension or attendant allowance in the circumstances specified in paragraph (6) (a); or

(a) by reason of the refusal or failure of a person to comply with a provision of this Act, other than:

(i) subsection 127 (4) in relation to a notice under paragraph 127 (1) (f); or

(ii) subsection 128 (4); or

(b) by reason that an amount has been paid by way of pension or attendant allowance that, but for the false statement or misrepresentation of any person, would not have been paid;

a date earlier than the date of the determination may be specified in the determination as the date as from which the cancellation, suspension or decrease, as the case may be, is to take effect.

...

Standard of proof

120.(1) ...

...

(4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.

Note: This subsection is affected by section 120B.

...

Reasonable satisfaction to be assessed in certain cases by reference to Statement of Principles

120B.(1) This section applies to any of the following claims made on or after 1 June 1994:

(a) a claim under Part II that relates to the eligible war service (other than operational service) rendered by a veteran;

(b) a claim under Part IV that relates to the defence service (other than hazardous service) rendered by a member of the Forces.

Note 1: Subsection 120 (4) is relevant to these claims.

Note 2: For hazardous service and member of the Forces see subsection 5Q (1A).

...

(3) In applying subsection 120 (4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war-caused or defence-caused only if:

(a) the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and

(b) there is in force:

(i) a Statement of Principles determined under subsection 196B (3) or (12); or

(ii) a determination of the Commission under subsection 180A (3);

that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.

FINDINGS ON MATERIAL QUESTIONS OF FACT WITH REFERENCE TO THE EVIDENCE AND OTHER MATERIAL IN SUPPORT OF THOSE FINDINGS

17. The tribunal has found that the decision to revoke the determination whereby the applicant was accepted as suffering from a defence caused disease of ITP was a valid decision and the revocation was legally effective.

18. The tribunal has accepted the arguments advanced on the respondent's behalf in this matter.

section 31(6)(a)

19. This provision accords to a decision-maker a discretion to cancel, suspend or alter the rate of a pension being paid to a veteran if certain conditions are fulfilled. In paragraph (a) the condition required is that there must be a "matter which affects the payment of a pension ... being a matter that was not before the Commission ... when the decision to grant the pension ... or a decision to vary the rate of the pension ... was made".

20. In the instant case the respondent argued that the making of the decision to grant a Disability Pension in respect of ITP was a decision made by the delegate in the absence of a matter affecting the grant of a pension. That matter was, first, the existence and gazettal of the SoP on ITP. Section 120B of the Act requires, in assessing whether a veteran qualifies for a Disability Pension on the basis of his or her defence service, that a decision-maker can reach a state of reasonable satisfaction that the claim should be granted under s 120(4) of the Act only by reference to any Statement of Principles relevant to the disease or injury in contention. That mandatory requirement was overlooked here, apparently because the decision-making tool utilised by delegates had not been modified to include a reference to the, then newly promulgated, SoP.

21. Second, the delegate had considered whether that the veteran's contact with chemicals when working on the ship during defence service could have contributed to his ITP (ex TD2/7-8). The SoP makes clear that ITP is idiopathic and recognises that the only possible service-related factor would have been an inability to obtain appropriate clinical management of the condition. This flows from factor 5(a) of SoP 20/97. Thus it might be said that a matter affecting the question of payment of a Disability Pension that was not before the Commission was definitive information that there is no medically recognised connection between exposure to chemicals and contraction of ITP.

22. The issue for the tribunal is whether the absence of knowledge of either or both of these two matters amounts relevantly to a matter that was not before the Commission when the decision to grant a pension was made. On the basis of the decision of the Federal Court of Australia in Repatriation Commission v Richardson (2001) 66 ALD 80 the tribunal finds that this absence of knowledge did amount to a matter that was not before the Commission at the relevant time.

23. In that case the Repatriation Commission had revoked decisions recognising depressive disorder, post-traumatic stress disorder and psychoactive substance abuse as war caused. The Commission did this because the VRB, in relation to a review concerning other conditions, had obtained new information from the Army Office suggesting that these psychiatric conditions were not war caused. Dowsett J said in paragraph 18 at page 86 of the report:

"Should the commission consider that either the original decision to grant the pension or any subsequent decision to vary the rate was made without access to relevant material, then it may consider whether or not the pension or allowance should be cancelled, suspended, or the rate reduced. In the present case the commission asserted that the original decision to grant the pension and subsequent decisions to vary the rate (perhaps excluding that of 20 January 1998) were all made in ignorance of the Army Office material. It was open to the commission to be satisfied that such material affected the payment of the pension, that it was not before it, the board or the tribunal when those relevant decisions were made, and that the pension ought to be reduced. If it was so satisfied, then it was entitled to reduce the pension, which is what it purported to do."

24. The tribunal notes that the material in the Richardson case (above) was in existence at the time of the making of the relevant decisions, that it was not known to the decision-makers and that it apparently was known to certain people in DVA. Nevertheless, the Federal Court was prepared to hold that the relevant information was not before the actual decision-maker acting for the Commission. The court applied no principle of constructive knowledge. The tribunal considers that the information in the present case, notably the SoP, was likewise not known about by the decision-maker, although its existence was known about elsewhere within DVA. The tribunal regards Richardson (above) as a relevant and binding authority and considers the facts of the present case not convincingly distinguishable from those in Richardson (above).

25. The tribunal considered the arguments put forward by Mr McCombe on Mr Jones's behalf and comments as follows:

* Dr Kumeran, a DVA departmental medical officer, had advised the claims assessor that the skin rashes were not likely to be due to the use of chemicals while cleaning the ship (ex TD2/3) before the primary decision was made. This material, equivalent to the contents of the SoP, was before the Commission when the decision was made. The tribunal considers that this argument was answered by the court in Richardson. The issue reduces down to what was actually before the decision-maker at the time of the decision-making.

* The revocation occurred following advice from Dr Chin, another departmental medical officer, who was not a specialist on skin diseases. In the Federal Court case, Davis v Repatriation Commission (1997) 74 FCR 577, a decision was held to have been effectively revoked because new specialist evidence was forthcoming from a professor. Dr Chin occupied no such exalted position. The tribunal understands the submission. However, Dr Chin's medical opinion is still relevant, even if of less weight than a specialist opinion might be. The weight to be accorded her opinion might dictate whether the discretion to revoke the decision should have been exercised. The tribunal has held that the correct decision was to revoke the determination to recognise ITP as defence caused primarily because of the delegate's ignorance of the SoP, an essential reference in decision-making in accordance with the Act.

* The Commission is under a duty, in accordance with s 19 of the Act to investigate thoroughly all claims. The tribunal agrees with this proposition. However, it is something of a leap to suggest from this that an oversight in a particular case can result in a veteran benefiting for potentially many years from receipt of a pension to which he or she was not entitled. In the tribunal's view, s 31(6)(a) was enacted to remedy such a situation.

section 31(6)(b)

26. The respondent submitted that s 31(6)(b) was satisfied in that the Commission's delegate's failure to apply the SoP was "a refusal or failure of any person to comply with a provision of th[e] Act".

27. The tribunal has not elected to pursue this argument given that the matter has been resolved by reference to s 31(6)(a) and it is unnecessary to consider the applicability of s 31(6)(b).

CONCLUSION

28. The tribunal has decided that the respondent's decision to cancel the applicant's pension in respect of ITP was a power open to it. It further decides that, on the material available to the delegate, the preferable decision would have been to refuse the claim. Section 31(7) permits the date of effect of such a decision to be earlier than the date of the decision to cancel the pension where powers are exercised under s 31(6)(a). It is probably preferable to describe what has occurred as a retrospective cancellation of pension rather than a revocation, as the decision-maker and the tribunal have described it thus far. The substantial result is unaffected by the terminology used.

29. The parties, as was discussed at the hearing, will need to obtain further evidence as to the true nature of Mr Jones's disease and its likely connection with service. The tribunal will need to resume its hearing to consider that evidence and the parties' submissions in due course.

DECISION

30. The tribunal affirms that part of the respondent's decision which was to cancel, with effect from 15 October 1996, the applicant's Disability Pension in respect of idiopathic thrombocytopaenic purpuria.

I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella

Senior Member

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

Associate

Date of Hearing 18 June 2002

Date of Decision 18 June 2002

Counsel for the Applicant Mr T McCombe, Vietnam Veterans' Association

Solicitor for the Applicant N/a

Counsel for the Respondent Ms S Breuer, DVA Advocacy Service

Solicitor for the Respondent N/a