Cochran and Repatriation Commission

[2003] AATA 146

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 146

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2002/695

VETERANS' APPEALS DIVISION		)
Re		SHIRLEY FRANCIS COCHRAN

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr IR Way, Member

Date14 February 2003 

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

(Sgd) IR Way
  Member

CATCHWORDS

VETERANS’ AFFAIRS – benefits and entitlements – war widow’s pension – restoration – whether the applicant is a “reinstated pensioner” – whether applicant entitled to pension

Veterans’ Entitlements Act 1986

REASONS FOR DECISION

14 February 2003  Mr IR Way, Member           

1.      This is an application by Shirley Francis Cochran (“the applicant”) for review of a decision of the Repatriation Commission dated 15 February 2002, which determined that the applicant is not a reinstated pensioner and as such is not eligible for the restoration of the war widow’s pension under the provisions of the Veterans’ Entitlements Act 1986 (“the Act”). 

2.      There is no disagreement between the parties that the Tribunal should deal with this matter on the papers before it without proceeding to a formal hearing. 

3. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1-T3) and a Certificate of Marriage between Victor Charles Atkins and Shirley Francis Hargreaves dated 29 March 1975.

4.      On the material before it the Tribunal makes the following findings of fact:

(a)Victor Charles Atkins (“the veteran”) was born on 9 January 1912 and served in the Australian Army during World War II, including being interned as a prisoner-of-war of the Japanese military forces for three and a half years.

(b)On 29 March 1975, the veteran married Shirley Francis Hargreaves who was born on 22 February 1947.

(c)The veteran died on 14 November 1979 at which time he was receiving disability pension at the rate of 90% (with effect from 2 March 1973).

(d)There is no record of the cause of the veteran’s death in the papers before the Tribunal. 

(e)At the time of his death the veteran’s dependants were:

·        Ross Hargreaves (date of birth 10 June 1969)

·Vicky Atkins (date of birth 19 July 1972)

·Tamara Atkins (date of birth 28 November 1973)

·Jasmine Atkins (date of birth 24 August 1976)

(f)Some time after the death of the veteran the applicant remarried and subsequently divorced. 

(g)In 2001 the applicant listed dependant children as follows:

·Colleen Cochran (date of birth 13 February 1981)

·Margaret Cochran (date of birth 16 June 1982)

·Jamie Cochran (date of birth 20 December 1983)

5.      In support of the applicant’s claim for a war widow’s pension, the applicant’s daughter Jasmine Hiotis stated:

“I am writing on behalf of my mother, Shirley Francis Cochran, who was recently denied the War Widow’s Pension.

The only criteria my mother did not totally fit was that although she was eligible for the War Widow’s Pension before 28/5/84, she was not actually receiving it.  This was, in a nutshell, due to her special circumstances at the time in which she did not fit the typical war widow stereotype.  You see, when my father died (14/11/79) my mother was left to support four young children.  She was therefore advised (in Nov 79 by Casino Veteran Affairs, NSW) that although she was certainly eligible for the War Widow’s Pension, she should instead accept the supporting Mother’s Pension as Veteran Affairs did not have the correct set-up to support a mother with four dependent children.

This is the only reason my mother was not receiving the War Widow’s Pension on or before 28/5/84.  Therefore, please reconsider my mother’s request due to these circumstances.  She has had an extremely difficult time since my father (a former POW of three and a half years) died prematurely, to receive the War Widow’s pension would give her much relief.

My mother really does deserve the assistance the War Widow’s Pension would provide her and I truly believe she is fully eligible once her case is looked at more closely.  …”

Legislative Framework

6.      The Commonwealth Government in its 2000-2001 Budget Initiative determined that war widows’ pensions would be restored to widows who remarried on or before 28 May 1984 and consequently had their pensions cancelled. 

7.      The criteria for restoration, all of which must be met, are:

·     “you must have been eligible for and receiving a War Widow’s pension on or before 28 May 1984; and

·     the War Widow’s pension must have been granted under one of the repealed Acts because you were a widow of a deceased member of the Forces as defined in those Acts or a widow of a deceased Australian Mariner as defined;

·     you must have been married or re-married on or before 28 May 1984; and

·     your pension must have been cancelled, under the repealed Act, only because you married or re-married on or before 28 May 1984.”

8. With respect to verification, section 13AG of the Act provides as follows:

“(1) The Commission must determine that a person is a reinstated pensioner if the Commission is satisfied that:

(a)the person was eligible for and receiving a pension, on or before 28 May 1984, under one of the repealed Acts as a widow of a deceased member of the Forces or a widow of an Australian Mariner; and

(b)the person remarried on or before that date; and

(c)the pension was cancelled under the repealed Act only because the person married or remarried.

(2)       A determination under this section:

(a)       must be in writing; and

(b)takes effect from the day, under section 13B, that pension becomes liable to be paid to the reinstated pensioner.

(3)       In subsection (1):

Australian Mariner has the meaning it had in the Seamen’s War Pensions and Allowances Act 1940.

pension means:

(a)in relation to a repealed Act set out in paragraph (a) of the definition of repealed Act – pension (other than service pension) payable to a widow under that repealed Act in respect of the death of a member of the Forces; and

(b)in relation to the Seamen’s War Pensions and Allowances Act 1940 – pension payable to a widow under that Act in respect of the death of an Australian Mariner.

repealed Act means:

(a)an Act specified in Part I, II, III, IV or V of Schedule 1; or

(b)the Seamen’s War Pensions and Allowances Act 1940.

(4)       a reference in subsection (1) to a member of the Forces is a reference to:

(a)       a member of the Forces within the meaning of:

(i) Divisions 1, 6 and 8 of Part III of the Repatriation Act 1920; or

(ii) the Repatriation (Far East Strategic Reserve) Act 1956; or

(iii) the Repatriation (Special Overseas Service) Act 1962; and

(b)a member of the Forces, or a member of a Peacekeeping Force, as defined by subsection 68(1) of this Act; and

(c)a member of the Interim Forces within the meaning of the Interim Forces Benefits Act 1947; and

(d)a person the incapacity or death of whom was taken, by section 7A of the Repatriation (Special Overseas Service) Act 1962, to have resulted from an occurrence that happened during a period of special service of the person as a member of the Forces.”

Consideration

9.      With respect to the death of the veteran, there is no record on the papers before the Tribunal as to the cause of his death.  The veteran’s daughter Jasmine has stated that her father died prematurely.  The Tribunal notes that the veteran’s death occurred in Rappville (via Casino) and was reported to the Department of Veterans’ Affairs on the advice of the Casino Police (T3/G); and that it would appear from this document that the death of the veteran was as a result of a motor vehicle accident.

10.     In the absence of any documentation to indicate otherwise, the Tribunal is satisfied that the veteran’s death was not due to his war service.  In arriving at this conclusion the Tribunal has taken into account the statement of the applicant’s daughter (Jasmine) that “the Casino Veterans’ Affairs told the applicant in November 1979 that she was certainly eligible for a war widow’s pension”.  The Tribunal notes that Jasmine at this time was three years old.

11.     There is no record in any of the papers before the Tribunal to show that the veteran’s wife was paid a war widow’s pension and the Tribunal, noting that this fact is consistent with the other evidence before it, finds that the applicant was not, on or before 28 May 1984, eligible for and receiving a war widow’s pension.

12.     The Tribunal is therefore satisfied that the applicant does not meet all of the criteria for restoration of pension as set out in paragraph 7 above, not having been eligible for and receiving a war widow’s pension on or before 28 May 1984.

13.     For the reasons given above the Tribunal affirms the decision under review.

I certify that the 13 preceding paragraphs are a true copy of the reasons for the decision herein of Mr IR Way, Member

Signed:         .......................................................................................
  Associate

This matter was heard on the papers
Date of Decision  14 February 2003

The Applicant Represented Herself
For the Respondent                 Mr D McAninly, Departmental Advocate