Purpose

This Instruction replaces DI C12/2000 Researchers for Historical and Factual Information.  It clarifies what information:

·      should be provided to researchers;

·      cannot be provided to researchers; and

·      what researchers can and cannot be asked to do.

Background

Staff dealing with claims for disability compensation or income support matters should first refer to existing resources within the Department of Veterans’ Affairs (DVA).  Usually, the required information can be found using the following resources:

·      Earlier reports on the veteran’s file;

·      The Consolidated Library of Information and Knowledge (CLIK);

·      The Compensation Claims Processing System (CCPS); and

·      The Eligibility Module (ELMNet).

In cases where either internal resources cannot resolve the issues raised in a claim or where there is doubt on issues of fact, then outside resources (including a commissioned research report from a contracted researcher) can be used.

These external reports should be requested judiciously rather than as a matter of routine.  For example, they should not be requested just because a claim is for either post traumatic stress disorder or for qualifying service in a certain area.

Advice to Claimant

If a research report is needed, the claimant or the claimant’s representative should be advised that a report is being commissioned to research part of the claim.

Contracted researchers

Only researchers or research organisations that have a contract with DVA can be asked to undertake research and provide reports.  If required, DVA National Office can provide a list of contracted researchers and their Curriculum Vitae.

In the researcher’s contracts, the DVA staff member requesting a report is referred to as the Liaison Officer.  The liaison officer should be familiar with the standard service agreement used by DVA.   

The liaison officer would normally be a claims assessor (for disability claims) or a single point of contact officer (for income support claims).  In this Departmental Instruction, claims investigator is used as a generic description.

Selection of a researcher

Claims investigators may select any contracted researcher they believe is appropriate for their request.  In every instance, the claim investigator should contact the researcher to confirm the researcher is available to undertake the project within the time required.

Privacy Act 1988

All requests for reports are subject to the Privacy Act 1988 and the Privacy Principles.  Privacy Principle 10 requires that only the information necessary for the contracted person to provide the service should be provided to them.

Under no circumstances is the researcher to be provided with a medical or psychiatric report.  The claims investigator must provide the researcher with only that part of any clinical history taken by a doctor, psychiatrist or other medical professional that relates to the claimed stressor, trauma, event or occurrence.

Similarly, the researcher should not be provided with a copy of the veteran’s contentions.  Rather, the claims investigator needs to clearly identify those portions of the veteran’s contentions that require clarification and request a report that specifically addresses the factual basis of these points only. 

Please note that if there is a breach of the Privacy Act 1988, the officer concerned may be held liable for any of their actions which led to the breach .

Request letters

Letters requesting information from researchers should:

·      contain the claims investigator’s direct telephone number and e-mail address clearly displayed on the front page of the request (e-mail is often the best way for researchers to seek clarification);

·      cite the DVA contract held by the researcher;

·      contain a general statement that the report is required for the purpose of determining a claim under the Veterans’ Entitlements Act 1986;

·      clearly outline the task required of the researcher;

·      clearly set out which facts of the case require clarification;

·      provide specific information relating to the claimant; and

·      identify a preferred or critical due date for completion of a report.

Be specific in setting the researcher’s task.  There must be no doubt about what is being asked of the researcher.   

Do not make broad requests such as “Please investigate the attached contentions” and attach copies of various papers, or “Please provide information on (name of ship) in the Indian Ocean during the 1960’s.”

Do not include the veteran’s perceptions or feelings at the time of described events.  For example, “I was very frightened” or “I was overcome by the stench of the decomposing bodies”.  Instead, ask the researcher questions such as “Were there decomposing bodies?” or, “Was there a noticeable smell from decomposing bodies?” 

Attachment A is an example of a poorly worded request for investigation of contentions. 

 Attachment B illustrates the same request changed by using open questions and removing emotive language.

Questions addressed to researcher

The request letter should contain a list of questions to be addressed by the researcher.  These questions can be of a general nature, such as “what were the duties of a driver?” or they can be specific requests for information on incidents the veteran may have referred to in the claim, such as “was there a shooting incident in a Sergeants’ Mess Bar in Vietnam on Christmas Eve in 1967”.

Do not request the researcher’s personal opinion.  For example, do not ask the researcher if he/she considers the claimant is telling the truth, or the likelihood that something occurred. 

Information needed by researchers

Researchers have asked that if known the following information be provided in each case so that their investigations can be better focussed:

·      Identity of claimant.  Full name, date of birth and service particulars of the applicant (including date of death if deceased).

·      Name changes. Any change in the given names or surnames of the veteran  (eg Smith aka Jones - if different to the service documents).  This is often relevant where a servicewoman has married and/or remarried.

·      Claimant’s consent. A copy of the signed Declaration or Statement on the DVA application form which consents to the release of medical, clinical and other information from DVA, Defence or other organisations in relation to the claims.  Ensure that the Declaration or Statement clearly shows the claimant’s name as well as signature.

·      Service Records.  A copy of the individual Veteran’s RAN, Army or RAAF Service Records (showing periods of operational service, posted unit, rank and trade held at the time of the research period). For Army service, a copy of Part A of the B103 should be supplied.

If DVA is aware that the person claims for particular service that is not supported by Defence Records, this should be specified.

·      Sub unit/section. Details of the claimant’s sub unit/section and the name of the sub unit/section commander, where available.  Also include the normal duties of the claimant at the time for which the research report is requested.

·      Serving members. Indicate whether the Claimant is still a serving member of the Australian Defence Force, with their present rank and unit.

·      Scope of the Report. A precise description of the facts you wish to have clarified by the research report.  Often the material contained in psychiatrist’s reports, witness statements, Veterans’ Review Board (VRB) documentation, etc can vary significantly.  Please note that statements drawn from the notes of a psychiatrist may not accurately represent the veteran’s claim.  Rather, such statements may only reflect the psychiatrist's own understanding.  If possible, the facts of a case as contained in a psychiatrist’s report should be checked with the veteran prior to being included in the research request.

Take care to ensure that the statements provided to the researcher reflect what the claimant has stated rather than reflecting the views of a second party.

Where a veteran indicates any uncertainty of the details provided (eg. I think it was …,  It was probably …), the researcher should be advised of these qualifications as it will affect the breadth of their research. 

Information needed by researchers (continued)

·      Additional Information. Please provide a precis of any additional claims from VRB Decision and Reasons and Transcript of Evidence.  Do not provide the whole transcript as this would breach the Privacy Principles.

Cited incidents

If possible, the following information in relation to specific incidents claimed by a veteran should also be gathered and provided to the researcher.

·      What happened?

·      When? (preferably a date, but otherwise a month/year, or if nothing else, whether it was early, mid or late in the veteran's tour)

·      Time (day or night)?

·      Where (place, nearest town or village, road route)?

·      Name of operation (if applicable)?

·      With whom (identity of his sub-unit, unit or ship)?

·      Numbers and nature of casualties (allied, enemy, age & gender)?

·      Names of victims (where known)?

·      Witnesses (names of other persons present)?

·      Was the incident reported (if so to whom)?Was the incident  investigated by civil or military police?

·      Was the incident reported in Newspapers?

·      Names of the Veteran's superior Non Commissioned Officers,  Senior Non Commissioned Officers or Officers with knowledge of the events?

Information that cannot be given

The researcher cannot be informed of the purpose or nature of the claim, the diagnosis being investigated, the name or profession of any medical services provider or any medical or claims history.

Assisting the researcher

The claims investigator should assist the researcher as much as possible to ensure that the research report is timely and contains the information required to assist in their investigation of the veteran’s claims.  This assistance could include things such as speaking to the researcher soon after they have been asked to undertake research to check whether they could assist the researcher’s task in any way, or to clarify the request if necessary. 

The claims investigator should actively encourage the researcher to contact them at any time to obtain further guidance and instruction.  For example, if the researcher becomes aware of the existence of potential witnesses to an incident, but has been tasked only to look at official records, they should contact the claims investigator for further instruction.

What the report should contain

Research reports are available to the claimant and their representative.  The reports as well as the DVA request for those reports are available to the VRB, the Administrative Appeals Tribunal and to the Federal Court.  Therefore, it is important that the report, as well as the request, is of a high quality and can withstand critical examination. 

The report should be factual and non-judgemental and contain references to the materials that were used in the research.  The researcher should report the evidence based on the materials researched, and may comment on whether an event did or did not occur or whether there may be a possibility of such an event not being recorded. 

Witness contacts

The researcher should report all contacts made with other persons as part of the research and the substance of the discussions as they relate to the questions posed.  The researcher should clearly identify those contacts and whether the information was provided verbally or in writing.  Where verbal, the researcher should note whether the record of conversation or the words attributed to the person in the report have been agreed or cleared by them.

What the report should not contain

The report must not contain any comment on what might constitute an illness, or satisfy a factor in the Statement of Principles or a term such as “stressor”.  The task of reaching conclusions of that nature is reserved solely for the decision-maker having regard to the diagnostic criteria and the relevant Statement of Principles.

The report must not contain or imply any opinions of the researcher on the veteran, the truthfulness of the veteran, the value of his or her service, the reasons for his or her actions or the reasons for making the claim.  For example, in the statement “the veteran was a COOK ” the fact that the word “cook” is capitalised could be interpreted as a demeaning emphasis, especially where the same word, or any other word, is not capitalised in the remainder of the report.

Although the researcher may well deduce what the claim is about, that conclusion must not be part of the report.

Acceptance of the report

Before accepting a research report the claims investigator should satisfy themselves of the integrity of the report.  They should read the report as soon as possible after it is received, and before accepting the report, the claims investigator should ensure that:

·      it is clear and contains responses to the questions posed;

·      the sources of the information provided are referenced by the use of footnotes;

·      it is consistent within itself (for example, names are correctly spelt throughout, the claimant’s units are correct, there are no contradicting elements); and

·      it is not argumentative in tone and does not contain inappropriate material such as personal opinions or gratuitous comments.

If the report does not meet these requirements, the researcher should be asked to amend their report.

Use of reports

A decision-maker may refer to the findings of the researcher to assist in their determination.  However, a decision-maker must not simply adopt the researcher’s opinion on whether the events did or did not occur without a proper examination of the basis for that opinion. 

The decision-maker, in deciding whether the events that a claimant relies on occurred or not, and whether the claimant was present or not, must consider the whole of the material available to them.

Right of Reply

Veterans have a right of reply to research reports before an adverse decision is made.  This is covered in detail in Departmental Instruction C02/2004 Right of Reply for Veterans in Relation to Research Reports. 

Veterans may also request their own research reports (at their own expense) to support their claims.

Filing the report

Only the report by the researcher should be put on the veteran’s file.

Invoices, preliminary reports and correspondence with the researcher must be placed on a general file for that researcher or on another general file.  This material should not appear on the veteran’s file.

Payment of Invoices

The Department’s contractual obligation is that it must make payment within thirty days of accepting the report.

Feedback to the researcher

If possible, advise the researcher when the case has been finalised, for example when the claim has been determined and the appeal process exhausted.  This enables the researcher to put away notes and other material relating to their report. 

Do not advise the researcher of the outcome of the case.

Reporting

It is possible, and indeed likely, that questions will be asked by the Repatriation Commission, the Minister, or by a Member of Parliament or Parliamentary Committee.  Each State must be able to report on all researchers used, their cost and the number of reports sought.

Purpose

This instruction supplements Departmental Instruction No C12 of 2000 concerning the use of historical and factual research reports. 

From now on, before a claim is refused due to material in an historical researcher's report, a copy of the report will be provided to the claimant and their representative.

Background

Where a veteran has provided information about a particular incident or experience in support of their claim and the delegate wishes to confirm the details of the incident, they may request a research report. This occurs most often when a psychiatrist’s report lists a number of ‘severe stressors’. The research report will analyse the available military history and provide discussions with other relevant military personnel to show whether the evidence supports the veteran’s contention. At the time the claims assessor requests the research report, a letter is also sent to the veteran informing them that the research report has been requested.

Issue

The use of research reports to confirm information provided by a veteran for a claim has been a contentious issue for the ex-service community. Many veterans feel they should be given the opportunity to comment on the report before an adverse primary decision is made. This would allow the veteran the opportunity to dispute the findings of the report. The veterans argue that when a claim is finalised without their input and results in a non-favourable decision, this leads to unnecessary review proceedings.

Procedures

Effective immediately, when the completed research report is received by the delegate, and they are considering making an adverse decision based on the report, they will forward a copy to the veteran, together with a letter offering a period of 21 days within which to respond to the report.

A delegate may not finalise a case adversely upon receipt of a research report without first giving the veteran an opportunity to comment.

If the veteran does not respond to the report within 21 days the delegate may finalise the case.

If the veteran does respond, this will be considered along with all other information available. At the Delegate’s discretion further comment from the historical researcher may be sought. If this results in a further report, a copy should be sent to the veteran together with a further opportunity to comment.

Sample letter

 Dear Mr Smith,

I refer to my letter of xx date informing you that I was requesting an historical report from a researcher to provide further detail on your application for a disability pension.

This report has now been completed and I am attaching a copy for your information.

If you wish to comment on the information contained within this report, please respond within 21 days of the date of this letter. If you do not respond within this timeframe your claim will proceed to finalisation. 

Yours sincerely,

Delegate of the Repatriation Commission