Harris and Repatriation Commission
[2002] AATA 1193
•20 November 2002
DECISION AND REASONS FOR DECISION [2002] AATA 1193
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2002/469
VETERANS APPEALS DIVISION )
Re OLGA HARRIS
Applicant
And REPATRIATION COMMISSION
RespondentDECISION
Tribunal Ms N Bell, Member
Date20 November 2002
PlaceSydney
Decision The Tribunal affirms the decision under review.
……………………………………
Ms N Bell
Member
CATCHWORDS
VETERAN'S AFFAIRS - application for war widow's pension – jurisdiction – meaning of "reinstated pensioner" – definition of "dependant" – Tribunal has no jurisdiction
Veterans' Entitlement Act 1986 sections 11, 11A, 13, 13AG
REASONS FOR DECISION
20 November 2002 Ms N Bell, Member
This is an application by Mrs Olga Harris ("the Applicant") for review of the decision of the Repatriation Commission ("the Respondent") dated 23 January 2002 to reject the Applicant's claim on 24 October 2001 for restoration of a war widow's pension.
The following facts are not in dispute. The Applicant was married to Harold Earnest Harris ("the Veteran") who died on 3 February 1963, having served in the Second World War. The Applicant originally applied for war widow's pension in 1963 and her claim was rejected on the basis that the veteran's death was not related to his war service.
Following a further claim by the Applicant for war widow's pension, lodged on 1 April 1985, the Respondent accepted the veteran's death was war-caused and granted war widow's pension to the Applicant with effect from 1 January 1985.
However, the Applicant had remarried in 1975 and divorced in 1979. The Respondent, on learning of the Applicant's remarriage, revoked its decision to grant war widow's pension with effect from 15 October 1985.
The Applicant lodged a further claim for war widow's pension on 24 October 2001.
ISSUES
Section 13 of the Veterans Entitlements Act 1986 ("the Act") provides in part:
"13 Eligibility for pension
(1) Where:
(a) the death of a veteran was war-caused;…
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;…
in accordance with this Act."
Section 11 of the Act defines "dependant" as follows:
"dependant, in relation to a veteran (including a veteran who has died), means:
(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."The issue for the Tribunal to determine in this application is therefore whether Mrs Harris is a dependent of the veteran.
Because Mrs Harris remarried, it is clear that she does not fall within the definition of a "dependant" of the veteran under section 11(c) of the Act. It remains for the Tribunal to consider whether the Applicant is, pursuant to section 11(ca) of the Act, a "reinstated pensioner" and thereby falls within the definition of a dependent of the veteran. Section 11AA of the Act provides that a person is a "reinstated pensioner" if the Repatriation Commission has determined the person to be so under section 13AG of the Act. Section 13AG of the Act provides:
"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.
(2) A determination under this section:
(a) must be in writing; and
(b) takes effect from the day, under section 13B, that pension becomes liable to be paid to the reinstated pensioner.
(3) In subsection (1):
Australian Mariner has the meaning it had in the Seamen's War Pensions and Allowances Act 1940.
pension means:
(a) in relation to a repealed Act set out in paragraph (a) of the definition of repealed Act—pension (other than service pension) payable to a widow under that repealed Act in respect of the death of a member of the Forces; and
(b) in relation to the Seamen's War Pensions and Allowances Act 1940—pension payable to a widow under that Act in respect of the death of an Australian Mariner.
repealed Act means:
(a) an Act specified in Part I, II, III, IV or V of Schedule 1; or
(b) the Seamen's War Pensions and Allowances Act 1940.(4) A reference in subsection (1) to a member of the Forces is a reference to:
(a) a member of the Forces within the meaning of:
(i) Divisions 1, 6 and 8 of Part III of the Repatriation Act 1920; or
(ii) the Repatriation (Far East Strategic Reserve) Act 1956; or
(iii) the Repatriation (Special Overseas Service) Act 1962; and
(b) a member of the Forces, or a member of a Peacekeeping Force, as defined by subsection 68(1) of this Act; and
(c) a member of the Interim Forces within the meaning of the Interim Forces Benefits Act 1947; and
(d) a person the incapacity or death of whom was taken, by section 7A of the Repatriation (Special Overseas Service) Act 1962, to have resulted from an occurrence that happened during a period of special service of the person as a member of the Forces."
Section 13AG of the Act provides for three essential requirements to be met before it can be determined that a person is a reinstated pensioner:
i) The person must have been 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;
ii) The person must have remarried on or before 28 May 1984; and
iii) The person's pension must have been cancelled under the repealed Act only because the person married or remarried.
As to the first requirement, there is no dispute that the Applicant did not receive a war widow's pension before 28 May 1984. Pension was granted to her with effect from 1 January 1985 after her claim on 1 April 1985. Although the pension is stated to have been granted to the Applicant under the Repatriation Act 1920 (see pages 4 – 5, T documents), a "repealed Act " within the meaning of section 13AG(3), it cannot be said that the Applicant was eligible for and receiving a pension before 28 May 1984. It follows that the Applicant does not satisfy the requirement in section 13AG(1)(a) and cannot be determined to be a reinstated pensioner. The consequence of this is that the Applicant does not fall within the definition of a "dependent" in section 11 of the Act and so does not qualify to receive a pension. At the hearing both parties' representatives acknowledged this as the only available conclusion, given the terms of the Act.
The Applicant gave evidence of her second marriage to the effect that it was not a "marriage like relationship". She described it as a marriage in name and legal status only. The Tribunal accepts her evidence without reservation. Mr Davis argued on her behalf that, for this reason, it should not be regarded as a marriage for the purposes of the operation of section 13AG. There is no scope in the legislation to allow the Tribunal to regard a legal marriage as anything but a marriage.
It was also argued on behalf of the Applicant that, had the veteran's death been recognised in 1963 as war-caused and had she not remarried in 1975, she would now be in receipt of the war widow's pension. That may be correct. However, the decision made in 1963 to reject the Applicant's claim for war widow's pension is not before the Tribunal and it has no jurisdiction to review it.
For the reasons outlined above, the Tribunal affirms the decision under review.
I certify that the 14 preceding paragraphs are a true copy of the reasons for the decision herein of MS N BELL, Member
L Bonouvrie
Signed: ……………………………………………
AssociateDate of Hearing 5 November 2002
Date of Decision 20 November 2002
Advocate for the Applicant Richard Davis
Advocate for the Respondent Trina McConnell
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