Duncan and Repatriation Commission

[2003] AATA 508

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 508

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  V2003/109        

VETERANS’ APPEALS DIVISION		)
Re		DOROTHY CORA DUNCAN

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal  Mr John Handley, Senior Member

Date 30 May 2003

Place Melbourne

Decision  The decision under review is affirmed.

...............................................

Senior Member

VETERANS’ ENTITLEMENTS ‑ applicant a widow of a veteran ‑ widows pension denied in 1975 ‑ applicant remarried in 1977 ‑ not then receiving a pension ‑ whether she is a “dependant” ‑ whether she is a “reinstated pensioner” ‑ decision affirmed.

Veterans’ Entitlements Act 1986 ss11(1) and 13AG(1)

Finn v Repatriation Commission (an unreported decision G48 of 1990

delivered on 17 August 1990)

Re MacDonald J A M and Repatriation Commission (1994) 34 ALD 797

REASONS FOR DECISION

30 May 2003   Mr John Handley, Senior Member

1.      Mrs Duncan is the widow of the late Edward Joseph Lakeman who died on 7 June 1973.  She made an application for a pension upon the War Pensions Entitlement Appeal Tribunal who decided on 5 June 1975 that the death of her husband was not “due to war service”. 

2.      Mrs Duncan remarried on 29 December 1977.  She has applied to the respondent for a widows pension arising from her marriage to the late Mr Lakeman upon the basis that she is a “reinstated pensioner”‘ within the meaning of s13AG of the Veterans’ Entitlements Act 1986 (“the Act”). 

3.      The application for pension was the subject of proceedings before this Tribunal in V2002/215 which was lodged in March 2002.  Mrs Duncan then sought to review a decision made by a delegate of the respondent on 23 January 2002.  The delegate then decided there was no entitlement.

4.      During a preliminary hearing on 17 May 2002, when Mrs Duncan was then represented by Mr De Marchi, she withdrew her application. 

5.      In the present application Mrs Duncan again applied on 6 August 2002 to the respondent and her application was again rejected on 8 August 2002.  An appeal was lodged with the Veterans’ Review Board (“the VRB”) who decided on 15 November 2002 to affirm the decision made by the respondent.  These proceedings were lodged with this Tribunal on 28 January 2003.

6. Eligibility for pension is to be found at s13 of the Act which provides at subsection (1) that if the death of a veteran was war-caused, the Commonwealth is liable to pay a pension “to the dependants of the veteran”. 

7. Section 11 (1) of the Act defines “dependants” as

(a)the partner; or

(b)a non-illness separated spouse; or

(c)a widow or widower (other than a widow or a widower who marries or re-marries); or

(ca)a reinstated pensioner; or

(d)a child;

of the veteran.

8. Section 13AG(1), of the Act which was inserted by amending Act No. 102 of 2001 (Veterans’ Affairs Legislation Amendment (2001 Budget Measures) Act 2001) with effect from 4 September 2001 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.

9.      At the hearing of this appeal which was convened in Mildura on 20 May 2003, Mr Horan appeared on behalf of Mrs Duncan and Mr Douglass appeared on behalf of the respondent.  Mr Horan also appeared on behalf of Mrs Duncan at the VRB.

10.     At the hearing before this Tribunal Mr Horan submitted that if the Statements of Principles presently existing had existed in 1975 when Mrs Duncan lodged her appeal with the War Pensions Entitlement Appeal Tribunal “it would have been obvious” that that Tribunal would have found that the death of the late Mr  Lakeman was associated with his smoking habit which commenced in service.

11.     Additionally Mr Horan submitted that there was discrimination against widows who were receiving a pension and who had remarried on or before 28 May 1984 because they became known as “reinstated pensioners”.  He said that the effect of the amending legislation has been to treat Mrs Duncan “harshly” because although she did remarry before 28 May 1984 she was not then receiving a pension as the widow of the late Mr Lakeman.

12.     Mr Douglass on behalf of the respondent submitted that the only issue for determination was “dependancy”. He said a clear interpretation of s13AG(1) prohibited Mrs Duncan from recovering a widows pension, because whilst she may have been “eligible” she was not “receiving” a pension on or before 28 May 1984.

CONCLUSION AND REASON

13. Prior to the amendment introducing s13AG, a widow who was in receipt of a pension, lost that entitlement upon remarriage.

14. Section 13AG permitted widows in the above situation to have their pensions reinstated if:

(i)they were eligible for and receiving a pension as widow on or before 28 May 1984; and

(ii)they remarried on or before 28 May 1984; and

(iii)the pension was previously cancelled only because of remarriage.

15. If any discrimination existed previously, it was to end a pension entitlement upon remarriage. This has been corrected by s13AG.

16. Dependancy under the Act – unlike the concept of dependancy in many other personal injuries Statutes – is not concerned with financial or economic dependency. So long as a person fits within any one of the categories of persons referred to in s11(1), dependancy exists.

17. Section 13AG is constructed conjunctively and all of its component parts must be satisfied. Mrs Duncan was not in receipt of pension prior to 28 May 1984. Pension was therefore not cancelled upon her remarriage. There was nothing to cancel. Consequently there was no pension which could be reinstated. She is not a “reinstated pensioner”. Additionally, she does not have the status of any of the other persons referred to in s11(1). She is therefore not a “dependant”.

18.     Mr Douglass relied on a decision of Pincus J in Finn v Repatriation Commission (an unreported decision G48 of 1990 delivered on 17 August 1990) and Re MacDonald J A M and Repatriation Commission (1994) 34 ALD 797. These decisions usefully discuss the meaning of “widow” for the purposes of the Act, however they are not strictly applicable to the present case (they were the decided before the s13AG amendment). The review sought by Mrs Duncan concerns her status as a “dependant” within the meaning of s11(1) and as a “reinstated pensioner” within the meaning of s13AG, neither of which she is able to satisfy.

19. Statements of Principles have no relevance to any proceedings in veterans’ legislation before 1 June 1994 (refer to s120A and s120B of the Act). It is only from that date that the reasonableness of a hypothesis is to be assessed by reference to Statements of Principles. It is therefore irrelevant to consider whether the Tribunal in 1975 would have found a connection between service and death had Statements of Principles then existed. For the reasons given earlier, Mrs Duncan cannot now pursue a claim for pension, absent Statements of Principles, because she cannot establish dependancy.

20.     The Parliament decided that reinstated pensioners could be dependants.  Mrs Duncan clearly is not a reinstated pensioner and the consequence for her may be harsh, as Mr Horan submitted.  It is not clear to me why the Parliament decided upon the date 28 May 1984 or why only widows in receipt of pensions prior to that date were, by an amendment in 2001, to be regarded as “dependants”:

21.     The language of the amending Act is clear and unambiguous, its objective and purpose is obvious.  I am obliged to apply the legislation, despite the consequence to Mrs Duncan.

22.     The decision under review must be affirmed.