Elizabeth Wheeler and Repatriation Commission
[2015] AATA 109
•27 February 2015
[2015] AATA 109
Division VETERANS' APPEALS DIVISION File Number
2014/1512
Re
Elizabeth Wheeler
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Ms N Isenberg, Senior Member
Date 27 February 2015 Place Sydney The decision under review is affirmed.
........................[sgd]................................................
Ms N Isenberg, Senior Member
CATCHWORDS
VETERANS' AFFAIRS - service pension - strict criteria - decision affirmed
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth); ss 7A, 36
REASONS FOR DECISION
Ms N Isenberg, Senior Member
27 February 2015
BACKGROUND TO THE APPLICATION
The applicant, Elizabeth Wheeler, served in the Women’s Auxiliary Air Force (WAAF) between 8 April 1942 and 9 October 1946.
Mrs Wheeler’s application for a service pension was refused by the Respondent, the Repatriation Commission. She seeks review of that decision by this Tribunal.
LEGISLATION
Eligibility for service pension is set out in sections 36 and 7A of the Veterans’ Entitlement Act 1986, which relevantly provides:
36 Eligibility for age service pension
(1)Subject to subsection (4), a person is eligible for an age service pension if the person:
(a)is a veteran; and
(b)has rendered qualifying service; and
(c)has reached pension age.
Note 1A:For veteran see subsection 5C(1).
Note 1:for qualifying service see section 7A.
Note 2:For pension age see section 5QA.
7A Qualifying service
(1)For the purposes of Parts III and VA and sections 85 and 118V, a person has rendered qualifying service:
(a)if the person has, as a member of the Defence Force:
(i) rendered service, during a period of hostilities specified in paragraph (a) or (b) of the definition of period of hostilities in subsection 5B(1), at sea, in the field or in the air in naval, military or aerial operations against the enemy in an area, or on an aircraft or ship of war, at a time when the person incurred danger from hostile forces of the enemy in that area or on that aircraft or ship; or
(ii) rendered service after 29 October 1945 in respect of which the person has been awarded, or has become eligible to be awarded, the Naval General Service Medal or the General Service Medal (Army and Royal Air Force) with the Minesweeping 1945‑51 Clasp, the Bomb‑Mine Clearance 1945‑53 Clasp, the Bomb and Mine Clearance 1945‑49 Clasp or ...
CONSIDERATION
Mrs Wheeler joined the WAAF when she was 19 years old. Her four years of service as a telephone operator took her to Bradfield Park, New Lambton, Amberley in Central Queensland and Uranquinty outside Wagga Wagga.
In order for the applicant to be eligible for service pension she needs to have rendered “qualifying service”. The definition of “qualifying service” set out in s 7A is quite specific, and affords no discretion to me. Mrs Wheeler did not serve outside Australia during World War II, and did not incur danger while rendering service in a period of hostilities in operations against the enemy. There was no evidence that she was eligible for any of the decorations mentioned in s 7A(1)(a)(ii).
As such, I must find that she does not have qualifying service. Consequently, she is not eligible for the service pension.
DECISION
The decision under review is affirmed.
OTHER OBSERVATIONS
Mr Wheeler had made submissions on his wife’s behalf. He contended that it was unfair that his wife had served her country and that now she was denied any support from the government. At the hearing, I and the respondent’s advocate, Mr O’Reilly, outlined some aspects of the Veterans’ Entitlement Scheme to Mr Wheeler. The age service pension, to which this application relates, is a form of age pension, available as an alternative to the Centrelink age pension, but which is available to veterans who meet the eligibility criteria (discussed above) at an earlier age.
Another type of pension is the service disability pension. A veteran, including someone with the applicant’s service, may claim on a condition-by-condition basis. Mr O’Reilly offered to send Mr Wheeler further information regarding the claims process. Mr and Mrs Wheeler may wish to discuss this with their doctor. Another avenue for enquiry regarding a claim for a disability service pension may be with the local Returned and Services League (RSL) or other veterans’ groups.
At the hearing, I enquired whether Mr and Mrs Wheeler had explored their eligibility for at least part age pension with Centrelink. Mr Wheeler said that to date they had not done this; this may be an avenue for them to explore.
I also suggested that Mr Wheeler discuss with his local council what services it offers for assisting older members of the community, which are extensive in most local councils. In this regard, I note that there may be assistance available to Mr Wheeler in caring for his wife. An assessment by the local Aged Care Assessment Team may also assist.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member ...........................[sgd].............................................
Dated 27 February 2015
Date of hearing 9 February 2015 Advocate for the Applicant Self-Represented Advocate for the Respondent Dept. Veterans Affairs
0
0
1