Daly and Repatriation Commission
[2003] AATA 860
•1 September 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 860
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2003/60
VETERANS' APPEALS DIVISION ) Re AMY IRENE DALY Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Brigadier R D F Lloyd, Member Date1 September 2003
PlacePerth
Decision The Tribunal affirms the decision under Review ...........(sgd R D F Lloyd)....................
Member
CATCHWORDS
VETERANS’ AFFAIRS – Veterans’ Entitlements – claim for war widows pension – veteran served in RAN during World War 2 – operational service – died 1968 and claims/appeals by widow (the applicant) during 1968/69, that veteran’s death was war caused, unsuccessful – applicant remarried 1972 – new applications made 2001/02 and associated appeals all unsuccessful despite new evidence concerning death being service related obtained by applicant under FOI – applicant deemed by respondent under current legislation not to be a dependant for pension purposes at the time of new application(s) – Veterans’ death regarded by respondent as early as 1986 as having been war caused, but eligibility for entitlements under the Act now determined to be limited to services of War Graves Office only – in view of belated acceptance that death of veteran was in fact service related, in current claim/appeal the applicant seeks recognition as a war widow with related pension entitlement on a retrospective basis, but for a limited period of 1968 to 1972 only – despite apparent unfairness of end result to applicant the Tribunal affirms the decision under review on basis that applicant is not currently a dependant as defined
Veterans’ Entitlements Act 1986 ss 8(1), 9(1), 11((1), 13(1), 13(6), 13(8A), 13AA, 13AG, 99(1)
REASONS FOR DECISION
1 September 2003 Brigadier R D F Lloyd, Member 1. This is an application before the Administrative Appeals Tribunal (“the Tribunal”) by Amy Irene Daly (“the applicant”) for a review of a decision of the Veterans’ Review Board (“the VRB”) dated 22 November 2002. The VRB decision affirmed an earlier decision of the Repatriation Commission (“the respondent”) of 20 June 2002 which determined that Mrs Amy Daly is not entitled to claim a war widow’s pension under the Veterans’ Entitlements Act 1986 (“the Act”), because she is not a dependant as defined in that Act.
2. The applicant attended the hearing. She was not formally represented by an advocate, but was assisted at the hearing by her two daughters – Robyn Withnell and Janice Chamberlain. The respondent was represented by Mr C Ponnuthurai. The Tribunal had before it the documents filed by the respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the T documents”). In addition, the following documents were tendered by the applicant and taken into evidence:
· Exhibit A1: Letter to Mrs A Daly from Major General P.R. Phillips – National President of the RSL – dated 15 May 2003.
· Exhibit A2: Copy of letter from National President of the War Widows Guild of Australia (Mrs K Ross) to the State President of the Guild (Mrs H Donald) dated 22 June 2003.
· Exhibit A3: Copy of letter to Mrs Daly from the Assistant Secretary/Treasurer (J. Knight) of the War Widows Guild of WA – covering the Exhibit A2 letter – dated 7 July 2003.
No additional documentary evidence was provided by the respondent at the hearing and no respondent witnesses were called to give evidence. The applicant and her two daughters attending the hearing were sworn and all three provided evidence during the proceedings, which was of assistance to the Tribunal.
Veterans’ service and applicant’s relationship
3. The Veteran on whose service and subsequent death the applicant’s claim is based is Robert Frank Withnell. He served in the RAN during World War 2 on HMA ships at sea, having enlisted in 1941, and until his discharge in 1946. This was operational service as defined in the Act. Mr Withnell died on 2 September 1968 at the early age of 43 years after suffering considerable illness and distress. The certified cause of death is “myocardial infarction (12 hours) due to alcoholism” (T4 page 10). His widow (the applicant), who was then left with two young children, subsequently remarried on 3 June 1972 and became Mrs Daly. This marriage did not last (T19 page 44).
History and applicant’s contention
4. It is of importance, in the Tribunal’s opinion, to consider the matter currently before it in the context of the total history of the applicant’s contention, her claims and appeals. In summary this is set out below:
(a) September 1968 – Veteran dies in Claremont mental institution of a heart attack, where he was being treated for chronic alcoholism. The evidence further indicates that, according to the applicant (T19 page 43), he suffered in post war years also from a nervous condition and depression. He had been a heavy smoker and this was acknowledged in the Departmental Medical Report completed in November 1968.
(b) The applicant claimed for war widow’s pension on 21 October 1968 on the basis that she contended that her husband’s death was attributable to, or had been contributed to in a material degree, by his war service.
(c) This initial claim was rejected by a Repatriation Board (the then relevant authority) on 26 November 1968 (T6 page 15), as death not being war-caused. No documented reasons were given. However at the Tribunal hearing the respondents’ representative noted, as does the Tribunal, that as this was prior to the subsequent Federal and High Court decisions in Repatriation Commission v Law, the acknowledged heavy smoking habit of the veteran would not have been investigated further and appropriately taken into account, as it later would have been and certainly would have been today. It was further contended that other relevant health conditions the veteran had prior to death also were not properly investigated and taken into account at the time.
(d) The applicant appealed the Repatriation Board’s decision, however this was disallowed by a Delegate of the Repatriation Commission on 13 March 1969 (T8 page 17). No documented reasons were given.
(e) The applicant then appealed to the War Pensions Entitlement Appeals Tribunal (WPEAT). That Tribunal’s decision dated 11 November 1969 was that Mr Withnell’s death was not related to his service and the appeal was disallowed (T10 page 20). No documented reasons were given.
(f) The evidence is that, at this stage, the applicant was having great difficulty coping financially as a widow and mother of two young children. According to her evidence, as a consequence she remarried in June 1972 (to another ex-serviceman).
(g) In 1986-87 the applicant pursued the matter again with the respondent, resulting in a review and subsequent decision to regard the veterans’ death as service related “within the meaning of section 8 of the Act” (T12 page 22 and T13 page 23, which correspondence from the respondent then talks about eligibility for War Graves services). Other relevant correspondence 1986-2002 is dealt with as part of the history that continues below and in paragraph 5 that follows.
(h) In November 2001 the applicant lodged a further claim in accordance with the new provisions under s 13 of the Act – relating to widows who remarried. The claim form is headed “Claim for Pension by a War Widow Who Remarried Prior to 1984” (T15 page 30 to 33). This new claim was rejected by a Delegate of the respondent on 13 November 2001 on the basis that the applicant “…was not previously receiving a war widow’s pensions prior to 28 May 1984. She is therefore not eligible for reinstatement of the war widow’s pension from 01 January 2002 in accordance with Section 13 Division 2A of the Veterans’ Entitlements Act 1986” (T17 page 39). The Delegate gives further explanation to the applicant in a letter dated 28 November 2001 – which could be regarded as reasons for this decision (T18 page 40 and 41). This also indicated the applicant’s right of appeal to the Tribunal.
(i) The applicant, as a consequence, lodged an appeal to the Tribunal on 7 December 2001 (T19 page 43 to 45). This appeal letter was copied to the following:
·“Minister for Veterans’ Affairs – Ms Danna Valle (sic).
·Mr Greg Edgley – Dept of Veterans’ Affairs [the Delegate involved].
·The Commonwealth Ombudsman
·The Hon Daryl Williams – Local Member for Tagney [and Commonwealth Attorney-General]
·Ms Trish Rowland – RSL Perth”
The comments by the applicant in her December 2001 appeal letter to the AAT are of particular significance in understanding her point of view in this matter. Some relevant extracts are provided as follows:
“…I have attached copies of all relevant documents for your information. I believe the decision not to grant me a War Widow’s Pension from 1.1.2002 is wrong and I am deeply aggrieved by yet another rejection from this department. Further, I believe I am entitled to back payment of the pension from 2.9.68 to 3.6.72.
The history of this recent decision is as follows: On the 2nd September 1968 my late husband Robert Frank Withnell died of a heart attack in the Claremont Mental Institution where he was being treated for chronic alcoholism. He was 43 years of age at the time. I was widowed with two daughters.
Robert had served in the Australian Navy as a Leading Seaman and took part in active service overseas from 1941-1946. He did not drink prior to the war, but became an alcoholic in the years following. He also suffered from malaria…and severe dermatitis (which he had been hospitalised for on a number of occasions and was treated for up until his death). He also had a nervous condition and suffered from depression and stress from experiences during the war which, I believe, caused his chronic alcoholism.
At the time of Robert’s death, I applied for the War Widow’s Pension to assist with the raising of our two children, but this was denied on the grounds that the department did not accept that my husband’s death was due to war service. I appealed this decision but was not successful…The anxiety I had suffered during this period was immense and I did not feel I could endure much more. I was angry that my husband had suffered so much serving in war, yet none of this was recognised by Veterans’ Affairs.
On 3rd June 1972 I married James Daly, also a returned serviceman. This marriage was not successful and we subsequently separated. In February 1987 the Repatriation Commission made the decision to accept Robert’s death as due to his war service…on receiving this information, I enquired about my eligibility for the War Widow’s Pension, but was told that because I had remarried, I was ineligible…I was told that…the decision to accept Robert’s death as due to war service was only in relation to the War Graves Office…to my mind Robert’s death either was, or was not, due to war service…
In the Governments’ 2000-2001 Budget initiative, the decision was made to restore the War Widows’ Pension to widows who had remarried prior to May 28, 1984. Finally I believed I would receive what I know my late husband Robert would have expected (emphasis added).
I made the necessary application only to be advised by Veterans’ Affairs that although I had remarried prior to 1984, because I did not have a pension to restore I was not eligible under the Government’s initiative. I could not believe their response…
My argument is that my eligibility for a pension was made in February 1987 when I was advised by Miss Coomber – Due to the Repatriation Commission’s recent decision to accept your late husband’s death as due to his service, you now become eligible for the $50.00 grant payable at the date of death.
If I was eligible for the grant payable at the date of death, then I believe I should have been eligible for a Widow’s Pension from the date of death (emphasis added)…
To my understanding I should have been paid a War Widow’s Pension from 2.9.68 [date of death] to 2.6.72 [day before remarriage], as Veterans’ Affairs has attributed my late husband’s death to war service – as I had declared back in 1968, when I first applied for the War Widows Pension…
I was just 41 when I first applied for the War Widow’s Pension and now at 74 years of age, I am still battling to receive what I know is rightfully due…”
(j) On 21 March 2002 the applicant lodged a request that her December 2001 appeal to the AAT be withdrawn (T21 page 54) and this was agreed to by the Tribunal (T21 page 53). The withdrawal of that appeal was apparently the result of the applicant having obtained further evidence under FOI and having been advised to rather pursue her case through the Committee for Review of Veterans’ Entitlements.
(k) From the available documentation, the next apparent step taken was the applicant making “a retrospective claim for the War Widow’s Pension”. This is dated, on the T documents copy, as 28/4/02 but it is more likely to have been 28 May 2002 as it is stamped as having been received by the Department on 29 May 2002 (T23 page 59 to 64). The applicant’s covering letter, dated 28 May 2002, is at T22 page 55 to 57. Some relevant extracts of this are worthy of recording in these Reasons, as follows:
“…Over the past three months my two daughters and I have accessed important information through the [FOI] Act which will more than substantiate my original claim. Medical records provided by the Royal Australian Navy Office in Canberra have brought new and critically important information to light.
An interesting aspect of the research into my late husband’s medical history is that nowhere previously has Veterans’ Affairs acknowledged that Bob [Mr Withnell] had sought medical treatment for depression and anxiety prior to leaving war service in 1946 (emphasis added)…It would appear that Dr Owen, his Repat appointed doctor, was likewise unaware of his history of depression and anxiety for which he was treated at HMAS Rushcutter over a five month period, whilst still in war service.
The medical officer treating him in February 1946, [according to the records] prescribed my late husband Gin and Iron as the treatment for depression. Surely a questionable remedy to be given to a 22 year old war traumatised sailor…this depression and anxiety continued post war, with underlying causes never treated.
…It wasn’t long after the war that he became alcohol dependent. This in turn…leading to further hypertension and eventual death by myocardial infarction at age 44(sic).
…in 1987 [nearly 20 years after the initial claim and the veteran’s death and funeral] I received a payment of $50 towards the cost of my late husband’s funeral expenses…this was paid under section 99(1)(a) of the Act which reads:
The Commission may grant a benefit, called a funeral benefit…in respect of the funeral of a veteran whose death was war-caused (emphasis added)
This section of the Act does not state that the acceptance of war caused death only relates to a war grave as has been argued by…DVA…- if his death was considered ‘war caused’ for a funeral benefit, how is that different to war caused for a Widow’s Pension[?]…”
(l) This May 2002 claim by the applicant was rejected by the respondent on 20 June 2002 on the basis “…that she is not a dependant as defined in the Act” (T2 page 7 and 8). As a consequence the matter was referred to the VRB. As well, the applicant requested a review by a Senior Delegate of the respondent under s 31 of the Act in a letter dated 4 July 2002 (T24 page 65 and 66).
(m) A Senior Delegate of the respondent refused the applicant’s claim (under s 31 review) and in a letter dated 28 August 2002 in part states as follows (T26 page 67):
“…I have considered your contention that your application relates to a retrospective claim for War Widow’s Pension for the period 2nd September 1968 to 2nd June 1972; that is from the time of your late husband’s death to the date you remarried…after thoroughly examining the provisions of the Act I am unable to find any legislative authority which could allow me to retrospectively grant your application…
There is no doubt that Mr Withnell died from conditions related to his war service, and I am confident that if all of the evidence had been available when you initially applied for the War Widow’s Pension, your claim would have been successful (emphasis added)…”.
(n) The VRB, on 22 November 2002, affirmed the earlier decision of the respondent (of 20 June 2002), which had determined that the applicant was not entitled to claim War Widow’s Pension under the Act. The VRB’s Decision and Reasons (T29 page 77 to 79) does not set out the history of the matter as this Tribunal has attempted to do, but simply points to s 11 of the Act. It concludes with the statement “…The applicant remarried and accordingly does not qualify under the Act to receive a Widow’s Pension…”. The Tribunal’s view of this is that, whilst that statement is in part correct, it by no means accurately or adequately reflects the applicant’s situation. In any event however, it is this VRB decision that in fact is the decision now under review by the Tribunal.
(o) The applicant lodged her current application for that review by the Tribunal on 13 February 2002, together with documented grounds for appeal – which are set out in the T documents at T1 page 5 and 6. The matters included in her grounds for appeal have already been covered in the Tribunal’s references to other documents, however two aspects stand out and are worthy of repetition.
·Her quote from the Senior Delegate of the Repatriation Commission (paragraph 4(m) above), that “…There is no doubt that Mr Withnell died from conditions related to his war service…” and in her own words as follows:
·“All I have ever wanted was to be granted the War Widow’s Pension back in 1968 when I so desperately needed help…I asked DVA to retrospectively grant me the pension, as in their own words they now agree that my late husband’s death was war caused…I am not happy that on one hand DVA accepts that I was (sic) should have been granted the pension in 1968, but that they are not in a position to acknowledge their error and correct the injustice that has been done to me. I only seek reimbursement from 1968 to 1972…”.
Other relevant documented evidence
5. The Tribunal notes other relevant documentation in the T documents and in particular the following:
(a) the respondent’s Director (Determinations) comment dated 4 December 1986 as follows (T11 page 21):
“Withnell RF: If a claim for pension in respect of this veteran’s death had been lodged by a person eligible to claim such pension, the claim would have been allowed on the basis that death would now be determined to have been war caused within the meaning of s 8 of the VEA [Section 8 of the Veterans’ Entitlements Act]…”.
(b) Letter from Hon Daryl Williams – Commonwealth Attorney General, to Deputy Commissioner DVA dated 18 February 2002 (T20 page 49), which in part states as follows:
“The chronology of actual events is not questioned. However, I note that even though a War Widow’s Pension was not granted to Mrs Daly on the death of her first husband, Mr Robert Withnell, in 1968, a subsequent inquiry in 1987 established that he did die from conditions related to his war service.
It is also noted that because Mrs Withnell remarried in 1972, the decision was made not to pay her a War Widow’s Pension. As the 1987 inquiry established without question that her husband had died from war related conditions, I would appreciate advice as to why Mrs Daly was not considered a War Widow at that time, at least between 1968 and 1972 when she remarried. As legislation changes allowed War Widows who had their pension cancelled on remarriage prior to May 28, 1984, to be reinstated as War Widows, Mrs Daly appears to have been excluded.
It appears that after the 1987 inquiry Mrs Daly should have been granted a War Widow’s Pension from 1968 when her first husband, Mr Withnell, died.
I would be very interested to know the reasoning behind the decisions…”
(c) Deputy Commissioner (DVA) response letter to the Attorney General dated 1 February 2002 (T20 page 50) in part states:
“…There is really very little I can add to my earlier advice [T20 page 47 and 48]. As explained in the attached correspondence from the Office of the Minister for Veterans’ Affairs “…there is no provision in the legislation for widows who no longer meet the definition of a dependant to claim a War Widow’s pension…”
(d) The attachment to the Deputy Commissioner letter from the Minister’s Office referred to above is dated 23 January 2002 addressed to Mrs Daly, and is at T20 page 51 and 52. Relevant extracts are as follows:
“…the Minister understands that your original claim for War Widows pension was rejected by the then Repatriation Board in 1968, and a subsequent appeal disallowed in 1969. She also understands that, following a request by you in 1986 to have the case reviewed, a determining officer accepted your husband’s death as war caused but could not grant war widow’s pension as you had already remarried in 1972 and were no longer a dependant of your first husband.
…In 1977, the Repatriation Act was amended to require Repatriation determining authorities to…grant a claim unless satisfied beyond reasonable doubt that there were insufficient grounds for doing so. Before these amendments...a claim could only be decided on the balance of probabilities. In deciding your claim in 1987, the determining officer was bound by the new standard of proof and was not satisfied beyond reasonable doubt that your husband’s death was not related to his war service… [Hence the decision that it was war caused, as indicated above in paragraph 5(a) and as referred to in 5(b) also].
…as claims are determined in accordance with the law as it stands at the time of application, a successful claim does not mean that an earlier unsuccessful claim was decided incorrectly…”
6. The Tribunal particularly notes the following aspects from the documented evidence set out in paragraph 5 above:
(a) That despite its earlier determinations, including appeal determinations, as at December 1986, and no later than 1987, the respondent acknowledged that the Veteran’s death had in fact been due to his service, ie. it was war caused in terms of the Act.
(b) This reversal of opinion by the respondent, as is clear from the evidence, came about largely because the appropriate evidence supporting the applicant’s 1968 claims and appeals was apparently not before those determining authorities. It could be strongly argued that it should have been. It was available in Service records which would seem to have been accessible by the respondent at the time, but certainly not readily accessible by the applicant under the circumstances then prevailing. It took her initiative, under FOI, in 2001-02 to expose and obtain for herself this hitherto unpresented and relevant evidence – which had been in the records, and in the Tribunal’s opinion available to the respondent, from the outset (1968).
(c) The strong inference in the attachment to the letter from the Deputy Commissioner DVA (paragraph 5(d) above) is that the change in the standard of proof requirement in the Act in 1977 was of particular significance in the applicant’s case. This, in the Tribunal’s opinion, is not necessarily valid. In fact it is considered by the Tribunal that, had the appropriate evidence been sought and used by the determining authorities in 1968, they would have been likely to have found in favour of the applicant at that time – even on the ‘balance of probabilities’ basis which then applied under the Act. There is little doubt that this Tribunal would have done so and the respondent’s representative agrees.
(d) In the light of the aspects covered in paragraphs 6(a), (b) and (c) above, the response by DVA to the Attorney General’s queries would seem inadequate. However, the Deputy Commissioner in his letter of 9 January 2002 to the Attorney General (T20 page 47) had in fact pointed to the critical issue that had prevented the acceptance of the applicant’s claim in 2002. This was that “…Mrs Daly’s most recent application to this office was for reinstatement as a War Widow under the Government’s 2001-2002 Budget initiative. This initiative is specifically in relation to those Widows who were in receipt of the War Widows Pension and through remarriage prior to 28 May 1984 had their pension cancelled. As Mrs Daly was not in receipt of a War Widows Pension at that time she is not eligible under the provisions of this Budget initiative…” Despite this comment, the matter of the applicant’s claim for retrospective acceptance/payment of pension for the limited period of 1968 to 1972 does not appear, from the available evidence, to have been addressed until the Senior Delegate’s letter to her of 28 August 2002 (T26 page 67 and paragraph 4(m) of these Reasons). This point, it is noted, also was not included in the response by DVA to the Attorney General, already referred to.
(e) Whilst on the aspect of the applicant’s claim for retrospectivity - for a limited period only, the Tribunal further notes that this point is not addressed at all in the respondent’s Reasons for Decision of 20 June 2002 (T2 pages 7 and 8). The VRB’s Decision and Reasons of 22 November 2002 (T29 page 77 to 79) makes a mention of this retrospective aspect only as part of describing the applicant’s case. It is not covered in the Board’s Determination or the reasons for it. In both cases the Tribunal, whilst appreciating that both authorities have dealt in brief with the eligibility issue under the Act, regards it as unfortunate that an applicant’s main thrust of claim and appeal, as in this case, is not adequately addressed in formal Reasons for Decision.
Eligibility Under the Act – The Law
7. Provision is made under the Act for the payment of pensions to dependants of Veterans, including deceased veterans. The term “dependant” is defined in s 11(1) of the Act, the relevant part of which states as follows:
“dependant, in relation to a veteran (including a veteran who has died), means:
(a) the partner; or
(b) …
(c) a widow or widower (other than a widow or widower who marries or remarries); or
(ca) a reinstated pensioner;
(d)…
of the veteran…”
8. Eligibility for pension is prescribed in the Act and includes in s 13(1) that:
“(1) where:
(a) the death of a veteran was war-caused; or
(b) …
the Commonwealth is, subject to this Act, liable to pay:
(c) in the case of the death of the veteran – pensions by way of compensation to the dependants of the veteran; or
(d) …
in accordance with this Act.”
9. The term “reinstated pensioner” is contained in s 11(1) of the Act – as referred to in paragraph 7 above. Verification requirements for reinstated pensioners are set out in s 13AA (Division 2A) of the Act. The more relevant section is s 13AG which in part states:
“(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 … (emphasis added) 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.”
10. Also of relevance are ss13(8A) and 14(6), (7) of the Act.
·S13(8A) states as follows:
“Where a dependant of a deceased Veteran (not being a reinstated pensioner…) has remarried or married after the death of the veteran but on or before 28 May 1984:
(a) the Commonwealth is not liable to pay a pension to the dependant under this section unless the decision by the Commission, the Board or the Administrative Appeals Tribunal, as the case may be, to grant pension was made before the commencement of Section 7 of the Veterans’ Affairs Legislation Amendment Act 1988; and
(b) a decision granting a pension to the dependant under this section made after the commencement referred to in paragraph (a) by the Commission, the Board or the Administrative Appeals Tribunal (including a decision granting such a pension as from a date before that commencement) is void and of no effect.”
·S14 deals with the “Claim for Pension” and states in part as follows:
“(6) Where:
(a) a person has made a claim for a pension under this section in respect of the death of a veteran; and
(b) …
(7) For the purposes of this section, a claim is finally determined when either:
(a)a decision that has been made in respect of the claim is not subject to any form of appeal or review; or
(b)a decision that has been made in respect of the claim was subject to some form of appeal or review, but the period within which such an appeal or review could be instituted has ended.”
In the applicant’s case, in relation to the s14 provisions described above, the allowed period(s) for further appeal concerning her original 1968 claim, under current legislation, had run out prior to the renewed claim in 2002. In terms of the Act, the original claim had been “finally determined” and hence the 2002 ‘renewed’ claim must be regarded as a new claim, ie. the process of claim was being started anew. That being the situation, current limiting backdating rules of the Act apply and these, in the Tribunal’s opinion, preclude the backdating/retrospective concept sought by the applicant.
Tribunal conclusions and findings of fact
11. The evidence clearly establishes, and the Tribunal finds accordingly, that:
(a) Mr Withnell was a Veteran as defined in the Act, with extensive operational service in World War 2.
(b) He suffered chronic illnesses post service and died on 2 September 1968. His accepted disabilities at that time were apparently not the cause of death.
(c) The applicant (Mrs Daly) in 1968 applied for acceptance as a war widow (and pension) on the basis that she contended her husband’s death was war caused.
(d) This claim was rejected, likewise on appeal. These 1968-69 decisions were made on the basis of what has subsequently been acknowledged (since 1986 or perhaps even earlier) as incomplete evidence. Had that evidence been obtained by the relevant determining authorities, the death of the veteran would have been accepted as war caused at the time of the original application(s) by the widow. This is acknowledged by the respondent.
(e) At the time of the original application(s) the applicant was the widow of the veteran and a dependant as defined in the Act.
(f) She ceased to be a dependant, as defined in the Act, when she remarried in June 1972 (noting that she was not in receipt of a War Widows Pension at that time).
(g) The hitherto undisclosed evidence concerning the veteran’s service and medical history, referred to in paragraph 11(d) above, came to light solely due to the applicant’s perseverance.
(h) The applicant is not a reinstated pensioner, nor would she be eligible to be so classified, under the provisions of the Act, as she was not “… receiving a pension [war widow’s pension] on or before 28 May 1984 …”. Neither obviously is it a matter of continuation of a pension, under the Act, as no war widow’s pension was previously being received.
(i) The applicant’s remarriage in 1972 did not survive, however under the Act this does not revive her status as the widow/dependant of the deceased veteran.
(j) The applicant’s current claim, formerly initiated in 2002 (with subsequent appeals) and made on the basis of seeking retrospectivity for a limited period is, under the Act, a new claim. To be eligible under the provisions of the Act for a war widow’s pension she must be a dependant of the deceased veteran at the time of lodgement. In terms of the definition contained in the Act, there is no alternative but for the Tribunal to find that as at the date of application in 2002 she was not a dependant, nor is she currently a dependant of her first husband – the deceased veteran.
End Conclusion
12. This is, in the Tribunal’s opinion, a sad and most unfortunate case. Quite clearly Mr Withnell’s death was war caused – and not just for War Graves Office purposes. There is strong indication that, with more thorough investigation by the relevant authorities following the applicant’s initial application in 1968, this was most likely to have been the finding at the time. The applicant would as a consequence have been granted a war widow’s pension and despite her subsequent remarriage would have been eligible for that to continue. Instead what we have, in the Tribunal’s view, is an imposed unfairness on a person who was the wife, then widow of a World War 2 veteran whose death was belatedly accepted as being war caused.
13. Mrs Daly’s current application, which is retrospective in nature by default – caused by circumstances not of her making, but rather in the Tribunal’s opinion that of the respondent’s initial decision makers – is to be commended for its limited extent of claim. The four years recognition she has asked for seems to be the least she understandably believes she deserves. The Tribunal agrees, but has no jurisdiction unfortunately to grant it. The payment of $50.00 to the applicant towards the cost of the veteran’s funeral expenses nearly 20 years after the funeral could reasonably be regarded – at least in her mind – as adding insult to injury.
14. Notwithstanding all this, the Tribunal has, under the Act, no alternative but to deny the applicant’s claim – on the grounds that she is not a dependant of the deceased veteran, as defined in the Act. That aspect aside, nor could the Tribunal, under the Act, grant the retrospectivity requested by the applicant.
15. It is the Tribunal’s opinion, under the unfortunate circumstances of this case, that the respondent has an ongoing obligation – in view of its history – to see that some form of justice prevails for the applicant in relation to her claim, despite the restrictions imposed by the current Act. Whilst it is not normally the role of the Tribunal to make such recommendations, in this instance it feels bound to express its strongly held view in this regard. As a consequence of the Tribunal’s decision in this matter, and unless the respondent is able to find some alternative method of meeting the applicant’s very modest request, the Tribunal believes she should be compensated in some way as a gesture of recognition and as a special case. The respondent’s underlying responsibility in veterans’ matters should lend itself to it at least sponsoring, indirectly if necessary, an ‘act of grace’ payment being granted to the applicant.
16. The remedial action recommended above of course would not properly compensate Mrs Daly for the difficulties she endured as the widow of the veteran, particularly from 1968 to 1972. However, it may provide some comfort to a woman who should be recognised in hindsight by those concerned as having been in fact entitled to be accepted as a war widow at the time, but who in error (or at best because of inadequate investigation) was deemed not to be so classified.
Decision
17. For the above reasons, pursuant to s43 of the Administrative Appeals Tribunal Act 1975, the Tribunal’s decision is to affirm the Veterans’ Review Board decision under review of 22 November 2002.
I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of
Signed: ...............(sgd V Wong)......................................
AssociateDate/s of Hearing 4 August 2003
Date of Decision 1 September 2003
Counsel for the Applicant In person
Counsel for the Respondent Carl Ponnuthurai
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