Veterans Reviews and Appeals

Contributed by Robin Creyke and Peter Sutherland and current to July 2018.

There is a right of appeal or review for most veterans matters. These include internal review by the Commission and external review by the Veterans’ Review Board (VRB) and the Administrative Appeals Tribunal (AAT). The review before the Commission, the VRB and the AAT reconsiders the decision with the evidence before the Commission, and any evidence received subsequently, and the reviewer reconsiders all aspects of the decision including the law, the facts and any relevant policy. Review by the Commission and the VRB is relatively informal. Advocates, but not legal practitioners, can appear at the VRB as a support for the veteran. Review by the AAT is more formal, however the veteran may be represented, including by a legal practitioner.

Review by the courts is available, by a single Federal Court judge and on further review, the Full Court of the Federal Court, and the High Court. Few cases go to the High Court. The review by the courts is generally limited to a question of law. Review by the courts is more formal and generally legal representation is necessary.

Disability Pension and Attendant Allowance

There is a right of internal review by the Commission. If the veteran remains dissatisfied there is a right of review by the VRB, and to a further review by the AAT.

Service Pension

There is a right of internal review by the Commission which may be initiated by the Commission or by the veteran. If the veteran remains dissatisfied with the outcome, a further appeal is to the AAT. There is no right of review by the VRB.

Statements of Principle

There is also a right of review of a SoP by the Repatriation Medical Authority, on further review by the Specialist Medical Review Council and a right to judicial review by a federal or state supreme court. Cases at the courts on SoPs are very rare.

Time Limits for Applications for Review

Time limits for specific benefits are shown under the discussion of the benefits. In general, time limits for pensions start from the date of notification to the veteran of a decision. An application for review of a decision by the Commission must be lodged with DVA within 3 months of the date of the decision (s 57A). There is a 12 month time limit for lodgement of a review by the VRB for a disability pension, and 3 months for a decision relating to attendance allowance, rate of pension, that the person’s incapacity is insufficient for a grant of pension, or cancellation or suspension of a pension. The Principal Member of the VRB may dismiss a claim not brought to a hearing within a reasonable time. The Principal Member may reinstate the claim if the dismissal was in error, or it is appropriate to do so.

There is a 3 month time limit for lodgement of a review by the AAT. An appeal to the Federal Court must be commenced within 28 days of receipt of the decision. There are varying time limits for an appeal to the High Court. Extensions of time may be sought.

Internal Review by the Commission

Review by the Commission can take one of three forms:

• A review by the Commission of claims for pension, increased pension or for an attendant allowance;
• A review by the Commission when an application for review by the VRB or the AAT has been lodged but not finalised;
• Own motion reviews by the Commission in circumstances including correction of errors, a decision made on false evidence, receipt of new evidence, to approve a date for variation of a decision, or variation of the rate of payment of pension: Davis v Repatriation Commission (1997) 74 FCR 577.

There is a right of review by the Commission for decisions for:

• Clothing allowance;
• Bereavement payment;
• Funeral benefits;
• Decoration allowance;
• Victoria Cross allowance;
• Recreation transport allowance;
• Loss of earnings allowance.

Decisions concerning the special allowance are reviewable by the Commission and on further review by the AAT.

Review by the VRB

The VRB reviews decisions on entitlement and assessment matters relating to:

• Disability pensions, whether war-caused or defence-caused;
• Related widow(er) and dependent child pension;
• Attendance allowance; and
• Assessment of rates of pension.

A veteran may be represented by an advocate before the VRB. The advocate may not be legally qualified.

Review by the AAT

The AAT can review:

• Decisions of the VRB relating to disability pension and attendance allowance;
• Verification decisions for reinstatement of widow(er) pension;
• Service pension and income support payment decisions;
• Clean energy payment decisions;
• Advance payment of pension;
• Refusal of a pharmaceutical benefits card;
• Refusal of a seniors’ health card;
• Decisions relating to benefits and allowances;
• Decisions relating to the Veterans’ Vocational Rehabilitation Scheme;
• Decisions whether a child is eligible for the Veterans’ Children Education Scheme;
• Dismissal of applications under s 155 by the VRB;
• Crisis payment;
• Repayment of travelling expenses obtained by false or misleading statements; and
• Decisions to reject an application for motorcycle purchase assistance.

An appeal opens the whole decision to reconsideration. An applicant cannot seek to have only one aspect of the decision, for example, the rate of pension, reviewed when the decision involved both a finding as to eligibility for, as well as setting a rate of payment of, a pension: Bramwell v Repatriation Commission (1998) 158 ALR 623.

Applications for review by the AAT must be in writing, give the reasons for the application, and be lodged within the time limit. There is no filing fee: Administrative Appeals Tribunal Regulations 2015 (Cth) regs 21-23.