CURRAN and REPATRIATION COMMISSION
[2011] AATA 402
•10 June 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 402
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/4762
VETERANS' APPEALS DIVISION ) Re KATHLEEN CURRAN Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Associate Professor J B Morley RFD, Member Date10 June 2011
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
..............[Sgd]................................
District Registrar
CATCHWORDS
VETERANS’ AFFAIRS – War widow’s pension – Applicant in receipt of war widow’s pension following death of first husband – Pension cancelled following remarriage prior to 1984 – Legislative amendment restored eligibility for pension following remarriage prior to 1984 – Applicant failed to lodge application for reinstatement of pension for eight years due to dementia – Applicant in receipt of pension from date of lodgement of application – No scope for backdating date of effect of payment of pension – Decision under review affirmed
Veterans’ Entitlements Act 1986 (Cth) s 13AA, 13AB, 13AC, 13AE, 13AF, 13AG, 13B
Veterans' Affairs Legislation Amendment (2001 Budget Measures) Act 2001 (Cth), Schedule 3
Financial Management and Accountability Act 1997 (Cth) s 33
Veterans’ Affairs Legislation Amendment (2001 Budget Measures) Bill 2001 (Cth)Re Florence Shanahan and Repatriation Commission [2007] AATA 2028
REASONS FOR DECISION
10 June 2011 Associate Professor J B Morley RFD, Member INTRODUCTION
1. On 5 October 2010 a delegate of the Repatriation Commission made a decision under s 13AG of the Veterans’ Entitlements Act 1986 (Cth) (“the Act; also referred to as “the VEA”) that payment of Mrs Kathleen Curran’s reinstated war widow’s pension was to commence on 27 August 2010. This was the date she lodged her application for pension by a war widow who remarried prior to 1984. The following is a review of that decision.
BACKGROUND
2. The late veteran George Vincent James Watson (“the veteran”), after being taken on strength by the Australian Military Forces on 14 February 1942, rendered operational service in Port Moresby, Morotai, Tarakan, Balikpapan and Makassar. He was discharged from 2/2 Australian Pioneer Battalion on 26 April 1946.[1]
[1] T-Documents, Folios 1, 3, 5, 6, 7 and 8.
3. Following his discharge, the veteran resumed his pre-enlistment employment as a professional jockey[2] and married the applicant on 13 March 1948.[3] He worked in the Darling Downs region and they resided in Toowoomba. They had one child, a son.[4] After some 20 years, the veteran was granted a Veterans' Affairs pension for his accepted service-related disability of anxiety state. Eventually, following his premature retirement from the workforce because of ill-health, his pension was increased to the Special Rate.
[2] T-Documents, Folio 9.
[3] T-Documents, Folio 20.
[4] T-Documents, Folio 24.
4. The veteran died on 3 February 1980, aged 59 years. His Death Certificate indicated his occupation as a retired builder's labourer.[5] He and the applicant had been married 32 years. The applicant, then still residing in Toowoomba, was granted the war widow's pension.
[5] T-Documents Folios 23 and 24.
5. The applicant married her second husband, one Sidney John Curran, on 12 November 1981.[6] He also was a professional jockey[7], and they moved to the Gold Coast. On 15 January 1982 the applicant was advised by the Deputy Commissioner of the Department of Veterans' Affairs (“DVA”) that her war widow's pension had been cancelled from 13 November 1981 due to her remarriage.[8]
[6] T-Documents Folio 27.
[7] T-Documents Folio 28.
[8] T-Documents Folio 30.
6. On 25 July 2009 Mr Curran died, aged 83 years, in the Gold Coast Hospital. The residence of both Mr Curran and the applicant was recorded as being Biggera Waters.[9]
[9] T-Documents Folio 28.
7. A year later the applicant, now aged 88 years[10], lodged an application for reinstatement of a pension by a war widow who remarried prior to 1984.[11] The application was accompanied by a covering letter.[12] The claim documents and the letter both were dated 27 August 2010.
[10] T-Documents Folio 14.
[11] T-Documents, Folios 13 – 17.
[12] T-Documents, Folios 17 and 18.
8. In response to her claim, on 5 October 2010 she was advised, by a delegate of the Repatriation Commission, that she was eligible to be considered a reinstated war widow's pensioner under s 13AG of the Act. Payment of the pension was to commence on 27 August 2010, as this was the date of the lodgement of her claim for pension by a war widow who remarried prior to 1984.[13]
[13] T-Documents, Folios D and E.
9. On 29 October 2010, she wrote to the District Registrar of the Tribunal requesting a review of the start date of her application for pension by a war widow who remarried prior to 1984.[14]
[14] T-Documents, Folios B and C.
ISSUE
10. The Tribunal is to determine if the applicant is entitled to reinstatement of her war widow’s pension from a date prior to the lodgement of her claim.
LEGISLATION
11. In 2001, the Veterans' Affairs Legislation Amendment (2001 Budget Measures) Act 2001 (Cth) (“the Amendment Act”) was enacted, coming into effect on 1 January 2002. Schedule 3 of the Amendment Act was concerned with the reinstatement under the Act of previous war widow’s pensioners whose pensions had been cancelled by remarrying on or before 28 May 1984.
12. The background to these amendments was outlined in the Explanatory Memorandum to the Veterans’ Affairs Legislation Amendment (2001 Budget Measures) Bill 2001 (Cth) (“the Bill”).[15] This reads, in part:
The War Pensions Act 1914 provided that a war widow's pension was to be cancelled on re-marriage. In 1916 the matter was reconsidered and the Parliament decided that the pension should continue for two years after a re-marriage. This provision was included in the Repat. Act when it came into operation in 1920. The two-year continuation provision was discontinued by the Financial Emergency Act 1931, the pre-1916 situation was reinstated whereby the pension was cancelled on re-marriage.
On 2 November 1950, the legislation was amended to provide a re-marriage gratuity. As a result, war widows who re-married immediately relinquished their pension and any associated benefits and received a gratuity equivalent to 12 months of the war widow's pension. On 29 May 1984 the then Minister for Veterans' Affairs announced the continuation of pension benefits for war widows who re-married or married. Legislation was enacted as part of the VEA. The continuation applied only to those widows who married or re-married on or after 29 May 1984.
These amendments to the VEA will enable the payment of a war widow's pension and associated benefits to those war widows whose pensions were cancelled only because the widow re-married or married on or before 28 May 1984.
...
This measure provides for the payment of pension where that pension was originally granted under one of a number of Acts which have now been repealed ...
[15] Exhibit 2, pp 10 – 11.
13. The Amendment Act inserted a new Division 2A after Division 2 in Part II of the Act, entitled "Verification determinations for reinstated pensioners". This commenced with a new section, 13AA:
13AA Application for verification determination
A person who wants to be determined by the Commission to be a reinstated pensioner (a verification determination) must make a proper application.
14. Next, s 13AB states:
(1) An application for a verification determination may be made:
(a)by the person (the applicant) who wants to be determined to be a reinstated pensioner; or
(b)with the approval of the applicant, by another person on behalf of the applicant.
(2)If the applicant is unable, by reason of physical or mental incapacity, to approve a person to make the application on his or her behalf, the Commission may approve another person to make the application.
15. Section s 13AC proscribes that the application must be in writing and on a Commission-approved form, which must be accompanied by relevant supporting evidence:
13AC Application for verification determination
An application for a verification determination:
(a)must be in writing and in accordance with a form approved by the Commission; and
(b)must be accompanied by such evidence available to the applicant as the applicant considers may be relevant to the application; and
(c)is to be lodged at an office of the Department in Australia in accordance with section 5T and is taken to have been made on a day determined under that section.
16. Sections 13AE and 13AF set out the duties of the Commission and the Commission's Secretary in processing and considering the application.
17. The next section, 13AG, reads:
13AG Verification determination
(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.
...
18. This concludes Division 2A. Section 13B then provides that the reinstated pension will be automatically paid without the reinstated pensioner then having to make a claim for payment:
13B Reinstated pensioners to be automatically paid pension
(1)If the Commission makes a determination under s 13AG that a person is a reinstated pensioner, the pension payable to the reinstated pensioner under subs 30(1) is payable:
(a) without the reinstated pensioner having to make a claim for the pension under s 14; and
(b) without the Commission having to make a determination under s 19.
(2)The Commonwealth is liable to pay the pension from the later of the following dates:
(a)1 January 2002; or
(b)the date that an application for the determination in respect of the reinstated pensioner was lodged under s 13AD.
EVIDENCE
19. The applicant was present at the hearing. However, the only witness was the applicant's son, Robert John Watson, who presented her case to the Tribunal.
20. Mr Watson told the Tribunal that he had assisted his mother to complete the forms for her claim for reinstatement of her pension[16]; and by preparing and writing her two letters: that of 27 August 2010 which accompanied her claim form[17]; and her letter of 29 October 2010 which requested this review.[18]
[16] T-Documents, Folios 13 – 16.
[17] T-Documents, Folios 17 – 18.
[18] T-Documents, Folios B and C.
21. He had undertaken these on her behalf because several years before she had been diagnosed with dementia. As he had stated in the second letter, after Mr Curran had died he and his family cared for her; she has been living with them from September 2009.
22. The first letter stated, in part:
... Several years ago, my son (Mr Robert Watson) told me about the current rule change, and he encouraged me then to re-apply for the War Widow's Pension. At the time, and after all these years, I did not want to re-visit the past. I still find it upsetting revisiting the war injury issues related to my first husband George Watson. However, since the death of my second husband, I would now appreciate the extra support that the War Widow's Pension would offer me.
In 1981 I moved from Toowoomba with my second husband to live at … Biggera Waters, Queensland. We lived at the [Biggera Waters] address until his death (see Death Certificate attached) in July 2009.[19]
My residential address is still [Biggera Waters] but because of recent health issues, I have been staying with my family at …Toowoomba. I am hoping to return to my [Biggera Waters] address, but that will depend upon improvements with my health. Therefore, I would appreciate it if you would send all correspondence related to my application C/-… Toowoomba, the address recorded above.
...
[19] T-Documents, Folio 28.
23. In the second letter requesting review of the start date of her reinstated pension, Mr Watson had written on her behalf:
In October 2010 my Pension for a War Widow who remarried prior to 1984 was granted (see letter copy attached). I was encouraged to apply at this time for the reinstatement of the Pension by my son Mr Robert Watson. He and his family are currently caring for me due to my ill health issues. One of the main reasons why I did not apply earlier for the Pension was that I really did not believe I was eligible. This belief was based on the fact that it was cancelled when I married my second husband.
As the Department of Veteran's Affairs had my address, I assumed that if I were eligible I would have been notified officially by the Department and informed that I could re-apply for the Pension. I have lived at … Biggera Waters for almost thirty years. The Department used the [Biggera Waters] address to inform me that my pension had been cancelled (see letter copy attached) after my marriage to Mr Curran.[20] So I assumed that the Department would have officially contacted me to inform me that I could re-apply for the Pension when there was a rule change.
I am therefore hoping that you will review my claim, and based on the reasons provided above, backdate my claim to when I was made eligible for the Pension under the new rules...
... And by requesting that my pension payment be reviewed, and possibly backdated, does not mean that I do not fully appreciate the benefits that come from being reinstated for the Pension in October 2010.
...
As noted above, had I been officially informed by the Department of Veterans' Affairs of the rule change; I would have been more confident that I was eligible to have my Pension by a War Widow who remarried prior to 1984 reinstated.
Because of my current health issues it was only with the full support (applicant's emphasis) of my son Mr Robert Watson that I was able to re-apply for the War Widows Pension at this stage. And I have asked him to write this letter on my behalf ...
[20] T-Documents, Folios 30 – 31.
24. In his evidence-in-chief, Mr Watson told the hearing that his parents had known each other for some time before his father had enlisted. However, after he had returned from the War in April 1946, his mother had delayed marrying him for almost two years because of his psychiatric problems. He had then enjoyed some success in his riding career before his health deteriorated; but for the last 15 years of his life his mother had had to care for him, particularly after he had to cease working. Over that time, his father’s mental health problems had caused his mother much distress, and he frequently abused her physically.
25. Mr Watson told the Tribunal that on re-marrying, his mother had wanted to put her life with his father behind her. Mr Curran was not a veteran, and because his mother's war widow's pension had been cancelled she accepted that this was immutable. On that basis, she had assumed that it was unnecessary to keep herself further informed of Veterans' Affairs matters.
26. In addition, about 10 years ago, the cognitive changes of her dementia had first become apparent, ie at about the time that the Amendment Act had been promulgated. In particular, she had been unaware of the announcement in 2001 of the changes.
27. Mr Watson also said that several years ago on Anzac Day, a year or so before Mr Curran died, he made a casual inquiry at the Toowoomba RSL sub-branch. At that time he had been told that his mother was ineligible for the war widow’s pension. However, shortly after, someone from the RSL contacted him to inform him of the 2001 amendments to the Act. Nevertheless, it was not until almost a year after the applicant had come to live with him that Mr Watson decided to follow this up for her.
28. Under cross-examination Mr Watson stated that, several years before Mr Curran's death, his mother's dementia had been confirmed and Mr Curran had been granted a Centrelink Carer's Pension for her. It was only in 2008, when Mr Curran himself became very ill, that he had discussed with his mother the possibility of having her war widow’s pension reinstated. He explained that he had not mentioned her diagnosis of dementia in letters to the Commission because of his mother's sensitivities about it. Her health problems had also been compounded by her having needed breast surgery about six years ago.
29. Because of her diagnosed dementia, the advocate for the respondent, Mr Williams, agreed not to call the applicant for cross-examination.
CONSIDERATION
30. The Tribunal was satisfied of Mr Watson's credibility, which was well evident in the directness and consistency of his oral testimony and in the letters.
31. He submitted that reinstatement should be backdated for the following reasons:
· His mother’s acceptance that the cancellation of her war widow’s pension in 1981 was immutable;
· Having remarried, her fervent wish to put behind her the distressing memories of her marriage to the veteran, reinforced by nearly 28 years of happy marriage to Mr Curran;
· Her lack of awareness of the public announcements of the 2001 Amendment Act; and
· Her cognitive difficulties due to her dementia, starting about the time of the Amendment Act and progressing since, thereby reducing her ability to appreciate the changes to the Act.
32. Accordingly, Mr Watson pleaded there were special circumstances to Mrs Curran’s case, involving her cognitive difficulties.
33. Additionally, it was possible that Mrs Curran's move to Toowoomba shortly after her second husband's death (while retaining her Biggera Waters address) may have been a factor in delaying the making of her application for reinstatement of her widow's pension. There was no evidence presented to the Tribunal to show that the respondent had attempted unsuccessfully to contact her at her Biggera Waters address.
34. However, as cogent as the above factors may be, the Act in its present form unfortunately does not accommodate them. Regarding this, two points can be made.
35. First, there is no statutory obligation placed on the respondent to arrange for previous war widow's pensioners who remarried before 1984 to be directly informed individually that they were eligible to become reinstated pensioners. The intendment of the Act is that it remains the responsibility of previous war widow’s pensioners or someone on their behalf to make an application for reinstatement.
36. As noted in paragraphs 13 and 15 above, the actions then to be taken are embodied in ss 13AA and 13AC of the Act.
37. Sections 13AG and 13B indicate that it is only after these reinstatement application steps have been satisfied, to result in the former pensioner being verified as a reinstated pensioner, that the reinstated pensioner then has no need to make a claim for the payment of war widow’s pension. It is then that the respondent becomes encumbered with an obligation, which is to set in train the payment of the pension.
38. Second, on the matter of the applicant's cognitive incapacity to comply with these statutory requirements, the one provision which addresses the circumstance of mental incapacity is s 13AB(2).[21] However, this subsection only applies if the former pensioner is incapable of approving another person to make her application for reinstatement. The respondent then may approve another person to make the application; but, notably, the application must still be made.
[21] See paragraph 14.
39. Relevantly, the Act contains no provision for the backdating of the date of effect of reinstatement of the pension to earlier than the date that the application was made on grounds of special circumstances. Section 13B solely states that payment is to commence from the later date of either 1 January 2002, or the date that the application for the pensioner's reinstatement was lodged.
40. The hearing was adjourned in order that Mr Williams, for the respondent, might seek further instructions on the correct application of s 13B of the Act. On 13 May 2011 he advised the Tribunal:
In this matter the DoE (date of effect) is the date of the application for reinstatement, being the latter date mentioned in s 13B(2). As you are aware there is no discretion in the VEA (Veterans Entitlements Act 1986) to vary the dates of effect and, in this case, the outcome is clear and uncontroversial.
41. In his letter, Mr Williams further submitted:
The respondent maintains that section 13B does not raise an ambiguity in determining the meaning of the date of commencement full of pension, on a plain reading of the section the date of commencement is the later of the dates specified in the section.
42. Clearly, that is correct: s 13B does not raise an ambiguity. The Tribunal does not have any discretion to vary the date of effect. Therefore, under the Act, the Tribunal has no alternative than to deny Mrs Curran's claim for backdating.
43. This means that, as a result of Mrs Curran's special circumstances of being both diverted and incapacitated from understanding the necessity for her to make the application for reinstatement, the provisions of the Act cannot assist her beyond her present position.
44. Elements of this appear to be at odds with the stated purpose of the Amendment Act. In his Second Reading Speech of the Bill on 28 June 2001, the then Minister for Veterans' Affairs, the Hon Bruce Scott MP, said:
Since taking office, this government has given a high priority to providing appropriate recognition for the service and sacrifice of veterans and addressing anomalies that have deprived some members of the veteran community of their rightful entitlements. With its latest budget, the government has again demonstrated its commitment to the veteran community, through initiatives to benefit former prisoners of war held by Japan; war widows who lost their pensions upon remarriage and Commonwealth and allied veterans who served alongside Australians during the two world wars. This bill will give effect to key initiatives in the Veterans' Affairs budget. It will amend the Veterans' Entitlements Act 1986 to restore entitlements to war widows who remarried before 1984 and had their pensions cancelled.
The war widow's pension was established to compensate Australian women whose husbands died on active duty or from war-caused injuries or illness following their return from service. However, if they chose to remarry, they were no longer entitled to that compensation. The introduction of the Veterans' Entitlements Act in 1986 recognised the unfairness of this situation and ensured that war widows who remarried in the future would keep their entitlements. However, the decision to limit the change to widows who remarried after May 1984 has meant that for almost two decades there have been two classes of war widows. These amendments will ensure that widows whose partners have died for their country will be treated equally under the repatriation system (Tribunal's emphases).[22]
[22] Australia, House of Representatives Hansard 28 June 2001 p 28813.
45. Had Mr Watson not made his casual inquiry at the Toowoomba RSL in 2008, and had he not been assisted at the RSL, Mrs Curran might still be languishing without the benefit of her war widow's pension. Without such an inquiry, Mrs Curran’s cognitive incapacity potentially may have left her without a war widow’s pension entirely. As it happened, because of her great reluctance to "(revisit) the war injury issues"[23] relating to her first husband, it was yet another year after Mr Curran had died before she could be persuaded to apply for her reinstatement as a war widow's pensioner, this being a period now approaching a full nine years after the changes to the Act first came into force.
[23] See paragraph 22.
46. It is evident that, notwithstanding the Minister’s declared intention, because of the drafting of its relevant provisions, the Act has come uncomfortably close to failing Mrs Curran completely. Examined in this light, the eventual adequacy of her belated reinstatement is questionable.
47. However, the Tribunal draws to Mrs Curran's attention the ‘act of grace power’ in s 33 of the Financial Management and Accountability Act 1997 (Cth) (“FMA Act”). This allows the Finance Minister or his or her delegates to approve payments to individuals on a discretionary basis, due to special circumstances. The Finance Circular 2009/09 “Discretionary Compensation and Waiver of Debt Mechanisms” acts as the Departmental Policy Guideline on the approval of act of grace payments. The Circular states, at paragraph 8:
Act of grace payments
8.The act of grace power under section 33 of the FMA Act allows the Finance Minister or delegate to authorise one-off and periodic payments to individuals or other bodies (such as companies), if he or she considers it appropriate because of special circumstances. Guidance on the act of grace mechanism is provided at Attachment B.
48. Attachment B then goes on to state, at paragraph 5:
The nature of the act of grace power
5.‘Special circumstances’ are not defined for the purposes of section 33(1) of the FMA Act, and are ultimately a matter for the decision maker to assess. Generally these circumstances are considered to apply where the decision maker is satisfied that:
…
•the application of Commonwealth legislation or policy is alleged to have had an unintended, anomalous, inequitable or otherwise unacceptable result in the applicant’s circumstances, and that those circumstances were:
a. specific to the applicant;
b.outside the parameters of events for which the applicant was responsible or had the capacity to adequately control; and
c.consistent with what could be considered to be the broad intention of the relevant legislation;
…
49. The Tribunal has no authority to order act of grace payments.[24] The process for such a payment is for Mrs Curran first to consider whether an unintended, inequitable, anomalous or otherwise unacceptable result has occurred. An application in these circumstances may be warranted. Final authority to grant an Act of Grace payment rests with a delegate of the Minister for Finance.
[24] Re Florence Shanahan and Repatriation Commission [2007] AATA 2028 at [56].
DECISION
50. The decision under review is affirmed.
I certify that the 50 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor J B Morley RFD, Member
Signed:.........................[Sgd].....................................................
Danielle Armstrong, Research AssociateDate/s of Hearing 30 March 2011
Date of final submission 16 May 2011
Date of Decision 10 June 2011
The applicant was represented by her son Mr Robert WatsonThe respondent was represented by Mr Bruce Williams
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