The Veterans' Review Board (VRB)

Veterans' Review Board

Extract from the VRB Annual Report 1996-97, Brigadier W.D. (Bill) Rolfe (Rtd), Principal Member

Objectives, Function and Powers

Objectives:

The VRB was established to implement the Government's decision to adopt the recommendations of the Administrative Review Council that a statutory review body be established to review on the merits of the case primary decisions made by delegates of the Repatriation Commission on claims for pension. To this end the VRB aims to:

(a) finalise high numbers of applications for review;
(b) do so at a quality level that affords a high assurance that review decisions are correct;
(c) complete all process stages subject to the VRB's control on a timely basis; and
(d) undertake reviews in a manner that is efficient to resource usage.

Function:

The VRB was established by the Repatriation Legislation Amendment Act 1984 and began operations on 1 January 1985. It was continued in existence by the Veterans' Entitlements Act 1986, which came into effect on 22 May 1986. Since then the VRB's operations have been governed by the Veterans' Entitlements Act 1986 and its companion legislation, the Veterans' Entitlements (Transitional Provisions and Consequential Amendments) Act 1986.

The VRB is a part of the governmental machinery for the delivery of Repatriation benefits to veterans and their dependants, the principal components of which are:

the Department of Veterans' Affairs;
the Repatriation Commission;
the VRB; and
the Administrative Appeals Tribunal.

Although the VRB comes within the Minister for Veterans' Affairs portfolio and for administrative purposes is included as a sub-prograrn in the Department of Veterans' Affairs, it is an independent statutory authority. The Minister has no statutory powers of direction over the VRB.

The VRB's function is to review decisions of the Repatriation Commission on such matters as:

claims for the acceptance of injury or disease as war/defence caused;
claims for war widows'/widowers' pensions;
assessment of the rate of pension paid for war/defence caused incapacity; and
claims for the grant of attendant allowance.

Powers:

The powers of the VRB are set out in the Veterans' Entitlements Act 1986.

Claims for the grant of pension or allowance, or applications for increase in pension rate, are lodged with and investigated by the Department of Veterans' Affairs. They are then decided by the Repatriation Commission. In most cases, this decision is made by an officer of the Department of Veterans' Affairs to whom the Repatriation Commission has delegated its power of decision-making.

In conducting a review of a decision, the VRB may, by section 139(3) of the Veterans' Entitlements Act 1986, exercise all the powers and discretions of the primary decision-maker to grant or assess pension or allowance.

It may affirm, vary or set aside the decision under review and, where appropriate, substitute its own decision.

Decisions of the VRB are, in turn, appealable to the Administrative Appeals Tribunal. Appeals against decisions of the AAT may be made, only on a question of law to the Federal Court of Australia.

Decisions of the VRB must be made under and in accordance with the Veterans' Entitlements Act 1986.

Upon its establishment, the VRB adopted the aim of doing all it could to ensure that those seeking a review, receive quickly their proper entitlement under Repatriation law.

Organisation

The VRB performs its adjudicative functions by the allocation of members to the hearing of particular cases.

Membership of the VRB is in a number of categories - the Principal Member, Senior Members (currently all of whom are qualified in law), Services Members (selected from lists of candidates submitted to the Minister by ex-service and related organisations), and Members.

The Principal Member is responsible for the efficient operation of the VRB and the arrangement of its business, including its procedures and the constitution of its panels. . The Principal Member cannot direct any member on the law or on the decision to be made in a particular case.

For the purpose of conducting a review, a VRB panel is usually constituted by:

the Principal Member or a Senior Member, who presides;
a Services Member; and
a Member.

A quorum of two members may sit if one of the three members who was to constitute the panel becomes unavailable. As a matter of practice, every reasonable effort is made to replace an unavailable member to avoid the need for the remaining two members to sit as a quorum.

With the consent of the Minister for Veterans' Affairs, the VRB may be constituted by one member sitting alone.

Depending on the number of cases available for hearing, panels generally sit for most weeks of the year in each State capital. As the need arises and subject to availability of resources, panels also sit in various regional centres.

The VRB has no formal deputy structure interposed between the Principal Member and the various categories of members. An Advisory Council assists the Principal Member in the performance of his statutory duties.

In performing its adjudicative functions, members of the VRB are assisted by a number of administrative officers.

The VRB has its Principal Registry in Canberra and a Registry in each State capital. The National Director is responsible to the Principal Member for the direction and co-ordination of the activities of the staff ]he National Director is assisted by two Directors. One is responsible for the VRB's operations and the other for the VRB's legal and information services. A Registrar in each State is responsible to the National Director for the administrative operations of the VRB in his or her State.

VRB Procedures

The Veterans' Entitlements Act 1986 sets out the broad procedural requirements to be followed by the VRB in dealing with applications. In implementing these requirements, the VRB has supplemented and built upon them with additional procedures designed to meet the principles of natural justice and sound management practices.

In most cases, the procedures which actually govern the processing of an application are quite straightforward. The following paragraphs provide a brief outline in relation to the review of decisions regarding disability or war widow'slwidower's pensions.

The parties to a review by the VRB are the applicant and the Repatriation Commission. Each may be represented at the hearing, but only by a person who does not have legal qualifications.

An application to the VRB has to be in writing and lodged with the Department of Veterans' Affairs. An entitlement application has to be received by the Department within 12 months of the applicant's receipt of advice of the decision he or she wishes to challenge. An assessment application (or an application for review of a decision on a claim for attendant allowance) has to be lodged within 3 months of receipt of the advice.

Within 6 weeks of receiving an application, the Department has to provide the applicant with a report prepared in accordance with section 137 of the Veterans' Entitlements Act 1986. The applicant then has 28 days, or such further period as he or she may request, to provide the Department with written comments on the report. At the end of that period the Department formally transmits the relevant documents to the VRB. The documents comprise:

the Departmental Report;
any comments or further evidence submitted by the applicant in response to the Departmental Report; and
any further evidence obtained by the Department as a result of the applicant's response.

The Commission can review its initial decision in the light of the applicant's comments, or any further evidence submitted by the applicant or obtained by the Department, and may delay the transmission of the above documents to the VRB while a review is conducted under section 3 1 of the Veterans' Entitlements Act 1986. On receiving these documents from the Department, the VRB, in accordance with section 148 of the Veterans' Entitlements Act 1986, writes to the applicant and Commission requesting written advice about whether they intend to be represented at the hearing. In addition the applicant is asked whether he or she wishes to:

attend the hearing of the application;
discuss the application with the VRB by telephone during the hearing; or
have the VRB deal with the application in his or her absence.

Where neither party wishes to be represented at or participate in a hearing ("in absentia" cases), the application is normally placed before the VRB for a decision without further correspondence with the parties. Such applications, where available, are also listed under the system of Standby Cases in substitution for hearings postponed on notice too short to enable a hearing for another case to be arranged. Under subsection 148(4) of the Veterans' Entitlements Act 1986, cases can also be listed "in absentia" where an applicant fails to respond to the VRB's request to advise whether the applicant wishes to appear at the hearing.

Both parties are notified of the hearing where either wishes to be represented or participate. A hearing is arranged as soon as possible, except where a party is not ready to proceed or requests a postponement.

The general practice is to list cases for hearing in the chronological order in which they become available to list - that is, when the applicant andlor advocate certify that they are ready to proceed to hearing. This is done by the lodging with the VRB of a "Certificate of Readiness for Hearing". Cases are not listed for hearing in the chronological order in which applications for review are lodged.

In the light of recommendations contained in the Veterans' Entitlements Act Monitoring Committee Reports, the VRB commenced an Administrative Screening process of applications in February 1990. The VRB decided to adopt the term "administrative screening" instead of "call-over" as the term "call-over" is easily confused with well-established procedural operations in other jurisdictions.

The aims of Administrative Screening are to maximise the productivity of the VRB by ensuring:

effective administrative processing of applications;
maximum listings before each panel; and
that a maximum number of applications listed are ready for final determination.

The achievement of these aims will be measured by:

(a) an increased finalisation rate of applications heard by panels; and
(b) administrative action leading to the dismissal of applications that are not being actively pursued.

As stated previously, the VRB's procedures provide for cases to be listed for hearing following the lodgement of a "Certificate of Readiness for Hearing", by an applicant or representative. The cases are usually listed for hearing in the order in which certificates are received by the VRB. However, as noted by the Monitoring Committee, "the late withdrawal of cases, or late requests for adjournments or postponements, often mean that substitution of another hearing is not possible". This means that available hearing slots are wasted. Administrative screening is therefore designed to monitor at various intervals the progress and preparedness for hearing of all cases with the VRB.

As part of the procedures to achieve effective case management, Registrars have the following powers:

Cases are examined by Registrars with a view to clarifying the issues, ensuring jurisdiction and standing, and checking sufficiency of information.
At certain intervals, Registrars contact applicants or their representatives, usually by telephone, to discuss progress and the preparedness of their applications with a view to listing for hearing.
In certain circumstances, Registrars may recommend to the Department that further investigations/information, essential to the application being finalised but not necessarily supportive to either party, be sought.
While the "Certificate of Readiness for Hearing" system still operates: applications may be listed at the Registrar's direction in certain circumstances;
- the Registrar can refer an application to a Senior Member for Preliminary Review; and
- the Registrar can dismiss an application in certain circumstances.

The VRB recognises that there may be circumstances in which some cases should be afforded an urgent listing priority. An early hearing may be arranged where medical certification indicates that a delay in hearing may cause prejudice to an applicant's mental or physical health or that deterioration in an applicant's health over time may prejudice the effectiveness of a later hearing, or where an applicant is in severe financial distress which might be alleviated by a successful outcome to an application.

In these circumstances, and with co-operation between applicants, advocates, the Repatriation Commission and the Department of Veterans' Affairs, a hearing can be arranged at very short notice.

The VRB is not bound by technicalities or the rules of evidence. Hearings are informal and normally conducted in private. The presiding member determines who may be present and, if requested by the applicant, may permit a hearing to take place in public. Although not usual, witnesses may be summoned and evidence may be taken on oath or affirmation.

Apart from "in absentia" cases, all hearings are recorded on audiotape to provide an accurate record of what is said. Copies of these tapes are made available to the parties on request, or the original tape recording may be listened to at the VRB's premises.

Issues are decided according to the opinion of the majority of members constituting the VRB panel. A copy of the decision and reasons of the VRB is mailed to each party, the applicant's representative and the Department of Veterans' Affairs.

The VRB decision may affirm, vary or set aside the decision under review. If the decision is to set aside, the VRB must substitute its own decision.

The VRB may adjourn the hearing of a review, either at the request of the parties or of its own volition. Upon an adjournment the VRB may also request the Secretary of the Department of Veterans' Affairs to seek additional information, reports or evidence for consideration by the VRB.

The applicant or Repatriation Commission may apply to the Administrative Appeals Tribunal for a review of a VRB decision affirming, varying or setting aside the decision under review. Applications can also be made to the AAT for review of decisions taken by the VRB pursuant to the dismissal legislation. From a decision of the AAT, a party may appeal to the Federal Court of Australia on a question of law. Under the Administrative Decisions (Judicial Review) Act 1977, the Federal Court of Australia may review any VRB decision on the basis that the VRB has erred in law, on a ground set out in the Act.

The above paragraphs reflect the procedures followed in most cases. In some cases, however, an application will raise different considerations - for example, questions may arise as to whether an application comes within the scope of VRB review as set out in section 135 of the Veterans' Entitlements Act 1986, or whether there is some statutory bar in that Act on the VRB reviewing the decision m question, or there may be information provided to the VRB which may cause physical or mental detriment to the applicant if directly disclosed. Procedures governing these limited circumstances are set out in the VRB Procedure Manual.