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Factsheet MRC27 - Reconsideration and Review of Decisions

Purpose

This Factsheet provides information for requesting a reconsideration or a review of a decision (or ‘determination’) made under the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (DRCA) or the Military Rehabilitation and Compensation Act 2004 (MRCA) by members and ex-members of the Australian Defence Force.  For information on reviews of decisions under the Veterans’ Entitlements Act 1986 (VEA), please see Factsheet DP84.

Assessment of a claim

When you make a claim for compensation for an injury, disease, illness or death that you believe is related to service, a Delegate of the Military Rehabilitation and Compensation Commission (the Commission) will consider your claim under the provisions of the DRCA and/or MRCA. Once a decision about your claim is made, a letter will be sent to you advising of the decision and detailing the reasons for that decision. This letter will contain information on how to seek a review of the decision if you are dissatisfied with the outcome.

Review or reconsideration?

If you have received a letter from DVA notifying you of a decision, and you think the decision is wrong, you have the right to ask for a review.  A review is the same as an appeal and will re-examine the facts and circumstances of the case to determine if an appropriate decision has been made. If you request a review of decision, you are expressing your dissatisfaction with the decision and appealing against it.

The options available to you to request a review will depend on which legislation your decision has been made under. If the decision was made under the DRCA, you can apply for a ‘reconsideration’ which is a type of internal review conducted by a DVA officer who was not involved in making the original decision.

From 1 January 2017, a single appeal pathway to the Veterans’ Review Board (VRB) will exist for claimants under the MRCA. Prior to this date, MRCA claimants have had a choice to pursue a review by the VRB or a reconsideration by another DVA officer.

What decisions can be reconsidered or reviewed?

Many of the decisions that are made under the DRCA and MRCA can be reconsidered or reviewed if the person making the claim is not satisfied with the decision.

The decisions that are open to reconsideration and review include, but are not limited to, decisions relating to:

  • initial liability for an injury, disease, illness or death;
  • incapacity for service or work benefits;
  • permanent impairment compensation payments;
  • payment for household and attendant care services;
  • payment for the costs of modification to your home, car or workplace;
  • provision of rehabilitation services;

and

  • You may request a reconsideration if:
  • you do not agree with the decision;
  • you are not satisfied with the reasons given for the decision in your claim; or
  • you have more evidence to support your claim.

How do I apply for a review?

DRCA claimants

A request for reconsideration under DRCA (section 62) must be made in writing and must be lodged with DVA no later than 30 days after you receive advice of the decision you wish to have reconsidered.

MRCA claimants

For decisions made prior to 1 January 2017, MRCA claimants may choose to have the decision reviewed by the VRB or request a reconsideration by a DVA officer (section 349). When submitting a request for reconsideration, the process as described above for DRCA claimants applies, including the 30 day time frame.

Applications to the VRB must be lodged in writing no more than 12 months from the date of the decision you wish to have reviewed.

For MRCA decisions made on or after 1 January 2017, single appeal pathway to the VRB will exist for MRCA claimants, removing the ability to seek reconsideration by a DVA officer. The Commission will reconsider original determinations on its own initiative.

In all cases (both DRCA and MRCA), your application should set out your reasons for requesting a review. You must state why you think the decision is incorrect. It is not sufficient to simply state that you consider the initial decision wrong. If you have further information or evidence to support your claim, you should include it with your request for a reconsideration.

If you are collecting new supporting evidence for your claim but have not obtained it by the end of the application period (i.e., 30 days or 12 months), you should still send in your request for review. In your request, you should advise DVA of the evidence that you are seeking and when you think you will be able to provide it.

What happens after I apply for a review?

For DRCA claimants and those MRCA claimants who seek reconsideration of a decision made prior to 1 January 2017, an officer who was not involved in making the original decision will undertake the reconsideration of your claim. This is to ensure that you receive a fair and impartial re-assessment of your claim. When the reconsideration is finalised you will receive written advice of the outcome of the reconsideration and the reasons for the further decision.

For applications for review by the VRB, DVA will screen all requests for review upon receipt and will notify claimants once this has occurred.  Should the decision remain unchanged through the screening process, the appeal will proceed to the VRB. You or your representative will be advised of the outcome of the screening process.

For appeals that proceed to the VRB, a report will be prepared for you within six weeks of DVA receiving your review application.  The report will detail all the evidence under the control of DVA that is relevant to your application and the screening review process. The report will then be provided to you and the VRB.

The VRB is independent of DVA, the Repatriation Commission and the Military Rehabilitation and Compensation Commission. It reviews decisions ‘on the merits’. This means that the VRB takes a fresh look at the facts, law and policy relating to the decision and arrives at its own decision. The VRB must make the legally correct decision or, where there can be more than one correct decision, the preferable decision.

For more information on the VRB, please see Factsheets VRB01 – VRB06.

How do I request a review by the Administrative Appeals Tribunal (AAT)?

If you remain dissatisfied with the outcome after your claim has been reconsidered by a DVA officer or reviewed by the VRB (as the case may be), you can apply to the AAT for a review of that decision. The letter notifying the outcome of the reconsideration or review will include details of your right of appeal to the AAT.

The AAT is an independent review body with power to conduct merits review of administrative decisions made under Commonwealth laws, including all decisions of the VRB as well as decisions made by delegates of the Military Rehabilitation and Compensation Commission under DRCA and MRCA.

For more information on the AAT, please see Factsheet DP68.

Will I be entitled to legal aid and/or costs for my application to the AAT?

Legal aid may be available at the AAT for a review of a DVA decision.  Legal aid applications by DVA clients are exempt from means testing but are subject to a merits test and decision by the state/territory legal aid commissions.

Legal aid commissions are independent bodies established under state and territory legislation. Commissions determine eligibility for their legal services and the extent of assistance they will provide in individual cases.

In addition to representation in the AAT, legal aid commissions may also provide advice and/or legal task assistance for people preparing an application to the VRB, including any alternative dispute resolution processes. However, a lawyer is not able to appear before a VRB hearing.

More information about legal aid commissions and the types of services they provide can be found on each commission’s website (centrally located at www.nationallegalaid.org/).

Please note that legal aid is not available to MRCA clients who select the reconsiderations pathway in respect of pre-1 January 2017 determinations, either at the reconsiderations stage or at the AAT. However, legal or associated costs may be awarded by the AAT in certain circumstances (see below). 

Financial assistance for people appearing before the AAT may be provided by the Attorney-General’s Department at www.ag.gov.au.  Further information about this, including eligibility criteria, can be found in the Attorney General's Legal Financial Assistance Information Sheet (PDF 204 KB).

Legal or associated costs relating to an AAT application can be awarded in some circumstances at the AAT, at the discretion of the Tribunal.

Please note the following change for MRCA clients from 1 January 2017.

For pre-1 January 2017 determinations under the MRCA, there is no provision for the award of costs in the AAT where the client appeals a VRB decision. 

For post-1 January 2017 determinations under the MRCA, costs may be awarded by the AAT on appeals from the VRB, at the discretion of the Tribunal. However, costs will not be awarded in the following circumstances:

  • new documentary evidence is presented, and it could have been provided to the VRB by the claimant without unreasonable expense or inconvenience, and the AAT is satisfied the VRB would have made a more favourable decision;
  • legal aid was granted at the VRB or AAT;
  • the claimant failed, without reasonable excuse, to appear at the hearing of the review by the VRB;
  • the claimant failed to comply with a direction of the VRB in some circumstances;
  • the claimant failed to comply with a notice to supply information before the Commission made the original determination; and
  • if the AAT remits the case back to the Commission because new evidence was presented.

Can the Commission or a Service Chief initiate a reconsideration of a decision?

A Commission Delegate (or a Delegate of an ADF Service Chief in relation to decisions about rehabilitation of serving members) who was not involved in the original decision to carry out a reconsideration can initiate a reconsideration of a decision.

This action would usually occur where:

  • further information becomes available that is relevant to a compensation claim;
  • it is found that some issue was not properly considered by the original Delegate; or
  • an obvious error in the original decision is discovered.

More Information

DVA General Enquiries

Phone: 1800 555 254 *

Email: GeneralEnquiries@dva.gov.au

DVA Website: www.dva.gov.au

Factsheet Website: www.dva.gov.au/factsheets

* Calls from mobile phones and pay phones may incur additional charges.

Related Factsheets

Disclaimer

The information contained in this Factsheet is general in nature and does not take into account individual circumstances. You should not make important decisions, such as those that affect your financial or lifestyle position on the basis of information contained in this Factsheet. Where you are required to lodge a written claim for a benefit, you must take full responsibility for your decisions prior to the written claim being determined. You should seek confirmation in writing of any oral advice you receive from DVA.

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10 September 2018