Clifford and Repatriation Commission
[2002] AATA 907
•10 October 2002
DECISION AND REASONS FOR DECISION [2002] AATA 907
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2002/301
VETERANS' APPEALS DIVISION )
Re PHYLLIS CLIFFORD
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr M Griffin, Member
Date10 October 2002
PlaceSydney
Decision The decision under review is affirmed.
[SGD] Mr M Griffin
Member
CATCHWORDS
VETERANS' AFFAIRS – war widow's pension – reinstatement of pensions for widows who remarried on or before 28 May 1984 – whether or not Applicant is eligible for reinstatement of pension – whether Applicant was in receipt of a pension, on or before 28 May 1984, under one of the repealed Acts as a widow of a deceased member of the forces
Veterans' Entitlement Act 1986 – section 13AG
REASONS FOR DECISION
10 October 2002 Mr M Griffin, Member
the application
This matter involves an application for review of a decision by a delegate of the Repatriation Commission ("the Respondent") to reject a "Claim for Pension by a War Widow who remarried prior to 1984". The Applicant is Mrs Clifford. Her claim for the pension was lodged on 29 October 2001. The delegate's decision was made on 11 February 2002 (T2). The application for review was lodged with the AAT on 1 March 2002.
backgroundThe late Mr Reuben Gordon Pollock (Army No. VX15354) served in the Australian Army during World War II from 16 May 1940 to 10 September 1945. The Applicant married the late Mr Pollock on 9 September 1950. Mr Pollock died on 29 October 1960 and the certified cause of his death was "bronchopneumonia (days); erosion of duodenum by growth (weeks); reticulum cell sarcoma (months)" (Exhibit R2).
At the time of his death, Mr Pollock was in receipt of a 20 per cent "war pension" (now known colloquially as "disability pension" or "General Rate of pension"). This pension was in respect of accepted conditions of "seborrhoea capitis and anxietystate" as decided by the Repatriation Board on 19 July 1951. The Applicant, as the widow of Mr Pollock, was entitled to the wife's rate of that "war pension". This was not a War Widow's Pension because Mr Pollock's death was not accepted as war-caused. The Repatriation Board decided this on 8 March 1961. The Applicant appealed that decision which was subsequently affirmed by the Repatriation Commission on 17 May 1961. The Applicant made a further appeal to the War Pensions Entitlement Tribunal, which decided, on 31 October 1961, "The Tribunal is unable to accept your late husband's death as due to or materially contributed to by his war service" and disallowed the appeal.
The Applicant married Mr Clifford in 1996.
In the 2000/2001 Budget the Government announced measures to enable the payment of a war widow's pension to those widows whose pension was cancelled only because the widow married or remarried on or before 28 May 1984. In October 2001 Mrs Clifford lodged a "Claim for pension by a War Widow who remarried prior to 1984", which was refused on 11 February 2002, and that decision is now the subject of this application for review.
the hearingThe application was heard by this Tribunal on 17 July 2002. The Applicant was unwell and could not participate in the hearing. She was represented by her husband, Mr Clifford, who spoke to the Tribunal by telephone. The Respondent was represented by Ms McConnell, an advocate from the Department of Veteran Affairs.
There were tendered into evidence the documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1 – T4, pp1-10) ("the T-documents"), together with Exhibit R1 being the Respondent's Statement of Facts and Contentions and Exhibit R2 being a letter from the Department enclosing 13 pages of Department file records relating to the late Mr Pollock.
the legislationSection 13AG(1) of the Veterans' Entitlements Act 1986 ("the Act") sets out the criteria which must all be met for a person to be determined to be a reinstated pensioner. They are as follows:
·the person must have been eligible for and receiving a pension on or before 28 May 1984;
·the pension must have been granted under one of the repealed Acts because the person was a widow of a deceased member of the Forces or a widow of a deceased Australian Mariner;
·the person must have been married or re-married on or before 28 May 1984; and
·the person's pension must have been cancelled, under the repealed Act, only because the person married or re-married on or before 28 May 1984.
submissions
Mr Clifford indicated that the facts as set out in Exhibit R1 were not in dispute. The Tribunal was informed that the Applicant had elected, sometime in the 1970s, to take a lump sum payment rather than continue to receive the quite small fixed rate of the pension which had been payable to her from the late Mr Pollock's 20 per cent rate of pension.
Mr Clifford submitted that it was likely that the original decision about Mr Pollock's death not being war caused was wrong. He pointed to changes in medical opinion as to the causes of cancer and suggested the 1961 decision, if taken today, could be different.
The Respondent submitted that the Applicant was never in receipt of a War Widow's Pension. Although she did receive a small war pension, the Respondent submitted that this pension was granted to the Applicant as a "dependent female" – not a widow of the late Mr Pollock. It was submitted that, in failing to meet the criteria set out under section 13AG(1) of the Act, the Applicant cannot be determined to be a reinstated pensioner.
findings of fact and reasonsThe Tribunal has considered the relevant legislation, the documentary evidence and the submissions by Mr Clifford on behalf of the Applicant, and Ms McConnell on behalf of the Respondent. The Tribunal notes and endorses the Respondent's recognition of the exemplary service, in the defence of his country by the late Mr Pollock. The Tribunal notes the submission by Mr Clifford as to the changes in medical opinion about the causative factors in the onset of the late Mr Pollock's cancer. However, the Tribunal has no medical or other expert evidence to contradict the previous findings about the cause of Mr Pollock's death and its relation (if any) to his war service. In any event, this is not an application for review of that 1961 decision which was affirmed on subsequent appeals.
This is an application for review of a decision to reject a "Claim for Pension by a War Widow who remarried prior to 1984". The application was made following legislative changes introduced to allow the reinstatement of War Widow's Pensions for those persons who were receiving such a pension on or before 28 May 1984 and whose pension was cancelled only because the person married or re-married on or before 28 May 1984.
I make the following findings:
that the late Mr Pollock served in the AMF during WWII from 16 May 1940 to 10 September 1945;
that the Applicant married the late Mr Pollock on 9 September 1950;
that Mr Pollock died on 29 October 1960 and that the Repatriation Board did not accept the death of Mr Pollock as due to his war service;
that at the time of his death Mr Pollock was in receipt of a 20 per cent "disability pension" and that as the wife of Mr Pollock, the Applicant received the wife's rate of that pension;
that during the 1970s the Applicant elected to take a lump sum in lieu of continued payment of that "disability pension" and that this occurred some years before 28 May 1984, well before her re-marriage to Mr Clifford;
that the Applicant was never in receipt of a War Widows Pension or any other pension as defined for the purposes of section 13AG of the Act; and
that the Applicant did not ever have a pension cancelled because she remarried.
The Applicant's personal circumstances do not fall within the specific criteria of the legislation and the Tribunal has no discretion to vary any of these criteria. In so finding, I conclude that the Applicant is not eligible for reinstatement of pension pursuant to section 13AG(1) of the Act.
Accordingly, the decision under review is affirmed.
I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M Griffin, Member
Signed: O. Caragianni .....................................................................................
AssociateDate of Hearing 17 July 2002
Date of Decision 10 October 2002
Representative for the Applicant Mr Clifford
Advocate for the Respondent Ms McConnell
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