Collier and Repatriation Commission

[2007] AATA 1134

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1134

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  Q200600827

VETERAN’S APPEALS DIVISION		r
Re		MARION COLLIER

Applicant

And  REPATRIATION COMMISSION

Respondent

ORAL DECISION

Tribunal Dr EK Christie, Member

Date28 February 2007

Place:Brisbane

Decision The decision under review is affirmed. This means that Mrs Collier’s application for review is unsuccessful.
The possibility of an Act of Grace payment in the factual circumstances is raised.

...........................[Sgd].............

MEMBER

CATCHWORDS

VETERANS’ AFFAIRS – veterans’ entitlements – eligibility – dependant - Act of Grace payment –observations on therapeutic jurisprudence

Haidar v Secretary, Department of Social Security (1998) 157 ALR 359

WRITTEN REASONS FOR ORAL DECISION

15 March 2007 Dr EK Christie, Member     

1.       This is an application by Mrs Marion Collier for a review of a decision made by the Veterans’ Review Board (“the VRB”) on 17 August 2006 that decided that Mrs Collier was not eligible to lodge a claim for pension in respect of the death of her father, the late veteran, Edwin Muller.  Her claim had been lodged on 19 December 2005, and the application form completed was titled “Claim for Pension, by a widow, widower or other dependent of a deceased veteran” (T4 folio 51).

2.      At the hearing, Mrs Marion Collier represented herself.  The respondent was represented by Terry Thrupp, a Departmental Advocate.

3. At the hearing the Tribunal had in evidence before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the “T” Documents, Exhibit 1) and the various exhibits lodged by the parties.

4.      The general facts were not in dispute and may be stated briefly.  The late Mr Muller rendered eligible service in the Australian Army from 7 September 1942 until his discharge on medical grounds (medically unfit) on 26 November 1945.  Service records produced at the hearing revealed that, amongst his medical conditions at that time, was the condition of hypertension, a blood pressure recording of 155/105 was noted.  Mr Muller died on 12 December 1972.  The certified cause of death shown on the Death Certificate was Fibrosis of the Lung, Congestive Recurrent Bronchitis and Congestive Cardiac Failure. 

5.      A claim for ischaemic heart disease for the late Mr Muller was rejected as being war-caused over a sequence of appeals from 18 November 1966, 24 November 1967 to 31 May 1968.

6.      On 30 January 1975, the late veteran’s widow (Sarah Muller) lodged an informal claim for a widow’s pension for a respiratory condition.  Knowledge of her claim was first given at the hearing.  No other details were available.

7.      On 3 March 1975, the veteran’s widow, Sarah Muller, lodged a claim for a war widow’s pension.  On 23 July 1975, the Repatriation Board rejected the claim that the veteran’s death was war-caused.

8.      On 3 November 1975, the Assistant Commissioner (as Delegate of the Repatriation Commission) rejected the cause of death as being war-caused.  On 10 August 1976, the War Pensions Entitlements Appeal Tribunal rejected the appeal that the veteran’s death was war-caused. 

9.      On 30 October 1999, the veteran’s widow, Sarah Muller, died.

10.     On 19 December 2005, a claim to have the late veteran’s death accepted was lodged by the applicant, the daughter of the late veteran, Mrs Catherine Collier, as the “next-of-kin”.  At the time the applicant’s age was 52.

11.     The late veteran had the following service related disabilities:

·Recurrent Suppurative Mastitis Left

·Left Inguinal Hernia

12.He also had the following non-service related disabilities:

·Chronic Bronchitis

·Pulmonary Calcification

·Hypertension (Mild)

·Ischaemic Heart Disease

·Hypochromic Anaemia

·Death

The Issues to be Decided

13.     The only issue for the Tribunal to decide in relation to the claim lodged on 19 August 2005 was whether Mrs Collier met the statutory requirements to be eligible to lodge a claim and to receive entitlements in respect of her father – the late veteran.

REASONS FOR THIS APPLICATION FOR REVIEW

14.     Mrs Collier gave a number of reasons for bringing this application for review (Exhibit 1, Folio “D”).  Essentially, these reasons reflect misinformation relating to the available information before the administrative decision-makers in deciding the various claims made for entitlements under veterans legislation over time.  The alleged misinformation related to claims made by the late veteran and his widow.  In this regard, Mrs Collier has raised issues concerning the actual capability of her late father to undertake paid employment, the true state of his heath and the connection between death and the impacts of the surgical procedure for a mastectomy and their consequences upon the later veteran.  The mastectomy was performed on the late veteran by a Repatriation Commission approved doctor in 1946.  Mrs Collier states that the need for the mastectomy arose as a result of an injury received in the left breast in 1943. 

15.     Mrs Collier has relied on FOI searches to obtain information to provide a more complete history of her late father’s medical state over time.

STATUTORY REQUIREMENTS AND CASE LAW

16.     The Veterans’ Entitlements Act 1986 (“the VE Act”) prescribes the statutory requirements that are relevant to Mrs Collier’s application for review. In this application for review, I consider all the evidence and information before the Tribunal as at the date of the hearing “to the extent those facts are relevant to the decision by reference to the subject matter, scope and purpose of the legislation…”.

[See Haidar v Secretary, Department of Social Security (1998) 157 ALR 359 at 367].

17. Sections 14 and 16 of the VE Act entitles a veteran or a dependant of a late veteran, to make the claim of the type made by Mrs Collier on 19 December 2005. Mrs Collier, would have to satisfy all of the statutory requirements to be recognised as a “dependent”.

18. Mrs Collier satisfies s 11(1)(d) of the VE Act as she was a “child of the veteran” at the time of the late veteran’s death.

19. However, s 5F of the VE Act prescribes age limits that must be satisfied in order to come within the definition of a “dependent child”.  Specifically, Mrs Collier must be between the ages of 16 to 25 and to be receiving full-time education at the time her claim was lodged.

20. Under s 19(9) of the VE Act, the date a claim is lodged is the “application day” and the relevant period to consider is the “assessment period”.  The assessment period is the period from the application day to, in this case, an appeal to the AAT, the date the matter is determined by the Administrative Appeals Tribunal.  That is, consideration of the status of Mrs Collier as a “dependent child of the late veteran” can only be evaluated on the facts that applied between 19 December 2005 to the date of this decision.

CONSIDERATIONOF THE ISSUES AND FINDINGS OF FACT

21. Mrs Collier was aged 52 years at the time her claim was lodged on 19 December 2005 and so does not satisfy the statutory requirements of being a dependent child of the late veteran at the time her claim for a pension was lodged and throughout the assessment period as prescribed by the VE Act.

22. The decision under review is the decision of the Veterans Review Board made on 17 August 2006. The only facts that are relevant for me to review in this decision are within the boundaries set by sections 5F, 14, 16 and 19 of the VE Act which relate specifically to Mrs Collier’s eligibility for her claim lodged for a pension. The other matters raised by Mrs Collier (see para.14) are not relevant facts to be considered in relation to the decision under review.

23.     However, in fairness to Mrs Collier, it needs to be stated that Mrs Collier is not seeking a pension as a dependent child of the late veteran as at the time her claim was lodged in December 2005.  Rather, her issues primarily relate to the inequity surrounding past administrative decisions and unsuccessful claims made for pensions sought by her late father and mother.  Her claim for the pension in December 2005, arose because this was the pathway the Commission’s staff in Sydney had told her to pursue.

DECISION

24.For all of the above reasons, the Tribunal affirms the decision under review.

25.     Whilst this outcome may seem harsh, it would be more appropriate to describe the outcome as unfortunate.  The legislation gives me no other option than to make such findings.  There is no discretion in the legislation for the Tribunal to make any other decision, as a matter of law, for Mrs Collier.

OBSERVATIONS

26.     Therapeutic jurisprudence (Wikpedia, 2007[1] is a term first used by two United States Professors David Wexler and Professor Bruce Winick in 1987.  It represents a new perspective, for studying the role of lawyers and judges and how the legal process may, or may not, produce beneficial consequences for individuals involved in the legal process.  Therapeutic jurisprudence has been applied in an effort to reframe the role of the lawyer.  It conceives lawyers practicing with an ethic of care and heightened interpersonal skills, who value the psychological well being of the parties as well as their legal rights and interests, and to actively seek to prevent legal problems through creative problem-solving approaches.

[1] En.wikipedia.org/wiki/

27.     In this context, the Tribunal makes the following observations.

28.     Firstly, Mrs. Collier could consider the application of Finance Circular Number 2006/05 (Australian Government, Department of Finance and Administration) to the issues that she has raised (in para.14). This Finance Circular particularizes, amongst other things, the principles and application for Act of Grace payments by Commonwealth Government agencies under the Financial Management and Accountability Act 1997 [“FMA Act”].

29.     The following materials in the Finance Circular give an overview of Act of Grace payments:

“13. The act of grace powers under section 33 of the FMA Act allow the Finance Minister and his or her delegates to authorise one-off and periodic payments to individuals or other bodies (such as companies) in special circumstances.

14. The act of grace mechanism:

·     may be appropriate in relation to losses that have occurred as a   direct result of:

a. the involvement of an agency of the Australian Government, where that involvement had an unintended outcome in the claimant’s circumstance; or

b. the application of Commonwealth legislation, where the application has had an unintended, inequitable or anomalous effect on the claimant in his or her particular circumstances (including in cases where the agency has acted correctly in administering the legislation involved);

·     may operate in such a way that conditions are attached to   payments;

·     is used where the paramount obligation to the claimant is moral,   rather than legal (see paragraph 20 of Attachment B: Act of Grace   Payments);

·     is generally confined to claims related to FMA Act agencies and the   legislation they administer;

·     can cover economic and non-economic losses sustained; and

·     is not applicable in circumstances where:

a. the proposed payments could be construed as literally supplementing other payments that have explicitly been ‘capped’ by Parliament in other legislation; or

b. in some cases where there is legislation that sets conditions for particular benefits, and the proposed act of grace payments would be applied to all or most beneficiaries on an ongoing basis, or for a significant period of time; or

c. the proposed payments could be construed as creating a scheme that would replace case-by-case consideration of the merits of specific claims.”

30.     Attachment B of the Finance Circular describes the Act of Grace power, and the principles and processes that underlie decisions to accept or decline requests.

“The nature of the act of grace power

8. Subsection 33(1) of the FMA Act provides:

“If the Finance Minister considers it appropriate to do so because of special circumstances, he or she may authorise the making of any of the following payments to a person (even though the payment or payments would not otherwise be authorised by law or required to meet a legal liability): one or more payments of an amount specified in the authorisation (or worked out in accordance with the authorisation); periodical payments of an amount specified in the authorisation (or worked out in accordance with the authorisation), during the period specified in the authorisation (or worked out in accordance with the authorisation)’…

Which types of claims are generally examined in the act of grace context and what are the exceptions to the ‘rules’?

21. The conditions under which act of grace claims are approved can broadly be characterised as where the Minister or delegate considers the Australian Government has a moral obligation, as opposed to a legal obligation, to provide redress because:

·the direct role of an agent/agency of the Australian Government has caused an unintended or inequitable result for the individual or entity concerned;

·the application of Commonwealth legislation has produced a result that is unintended, anomalous, inequitable or otherwise unacceptable in a particular case (including in cases where the agency has acted correctly in administering the legislation involved); or

·the matter is not covered by legislation or specific policy, but it is intended to introduce such legislation or policy, and it is considered desirable in a particular case to apply the benefits of the relevant provisions prospectively.

22. The act of grace power is used generally as a last resort, where there is no other remedy that could be used to effectively compensate a person for a loss he or she has suffered (or would suffer were an act of grace payment not approved).

23. As a general rule, claims will not be examined in the act of grace context until a claimant has exhausted all other means available to him or her…”

31.     In relation to the Act of Grace policy, it is possible that the outcome of this application for review, as covered by the provisions of the Veterans’ Entitlements Act, in Mrs Collier’s factual circumstances, may have led to a result that may be considered by Mrs Collier as an “unintended anomalous, inequitable, unjust or otherwise unacceptable result”.  On consideration of the overall circumstances, it may even lead to a conclusion “that there is a moral obligation on the Commonwealth to make a payment”

32.     In order to pursue an Act of Grace Payment, Mrs Collier, as a first step, needs to establish contentions she made to this Tribunal (and the VRB) that relate to discrepancies, and possibly misinformation, relating to the actual nature of her late father’s medical conditions from the time of discharge and their application to the assessment of the late veteran’s past claims - as well as the claim made by Mrs Collier’s mother for a widow’s claim.  In addition, the factual status of the late veteran’s work capability from the time of discharge.  The next step, would be for her to consider whether this information satisfies any of the conditions for eligibility for an Act of Grace claim and then to decide, whether or not to pursue an Act of Grace claim.

33.     I must emphasise that the Tribunal has no power whatsoever to order that an Act of Grace Payment be made to Mrs Collier. The process for such a payment is for Mrs Collier to make a claim to the Repatriation Commission for an Act of Grace payment and to request that her claim be assessed under the specified eligibility criteria.  The final authority to grant an Act of Grace payment does not rest with the Tribunal, but the Minister for Finance or their appointee.

34.     The final observation I make is that it may have been worthwhile for both parties to have considered the Alternative Dispute Resolution process of neutral evaluation to resolve this application for review.  Such a process is now available in the AAT and it has many advantages for bringing a problem-solving approach to addressing the issues raised by Mrs Collier – notwithstanding that the decision under review would have still been affirmed as a matter of law.

I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of Dr EK Christie, Member

Signed:         
  Legal Research Officer

Date of Hearing  28 February 2007
Date of Decision  28 February 2007
Written reasons for decision     15 March 2007
The applicant appeared in person
For the Respondent                  Mr T Thrupp, Departmental Advocate