Harrison and Repatriation Commission

[2004] AATA 512

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 512

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2003/1091

VETERANS' APPEALS  DIVISION		)
Re		PATRICIA HARRISON

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member McCabe

Date21 May 2004

PlaceBrisbane

Decision For reasons given orally at the hearing, the Tribunal affirms the decision under review.  

...............Sgd.........................

Senior Member

CATCHWORDS

PROCEDURE – jurisdiction – applicant did not appeal original decision – whether Tribunal has jurisdiction to review original decision – decision affirmed

REASONS FOR DECISION

21 May 2004 Senior Member McCabe    

Introduction

1.      Mrs Patricia Harrison is the widow of the late Clifford Harrison. Mr Harrison served in the merchant navy during World War II. In March 1994, the applicant claimed a war widow’s pension from the Commission. The claim was rejected on 26 September 1995 on the basis that there was insufficient evidence to link the veteran’s death with the circumstances of his service.

2.      The applicant accepts she was advised of her right to appeal the respondent’s decision to the Veterans’ Review Board. She did not exercise that right. She said she thought she needed to gather extra evidence. She knew her late husband had been a smoker and that he had started smoking during the war. She searched for evidence for the next several years.

3.      Mrs Harrison made a fresh claim for the pension in 2002. She had additional evidence. The claim was accepted. Now she wants to revisit the earlier claim. She wants to appeal that decision. The Veterans’ Review Board said it could not hear the appeal. The respondent says her appeal is out of time.

4.      The matter was heard on 21 May 2004.  The applicant represented herself.  The respondent was represented by Mr McAninly, a departmental advocate.  The Tribunal decided to affirm the decision under review.  Oral reasons were given at the hearing.  This is a copy of those reasons.

The relevant legislation

5.      The Veterans’ Entitlements Act 1986 says a war widow may apply for a pension. If the claim is rejected, the applicant may appeal at first instance to the Veterans’ Review Board: s 135. Section 135(4) goes on to say:

6.      “…an application under subsection (1) or (2) to the Board to review a decision of the Commission may be made within 12 months after service on the person to whom the decision relates of a copy of that decision in accordance with subsection 34(2), but not otherwise.”

7.      Regrettably for Mrs Harrison, the legislation is clear. She did not bring her appeal within 12 months of the original decision. The decision cannot now be challenged in the Veterans’ Review Board. The Tribunal does not have jurisdiction to step in and hear an appeal either.

8.      Section 20 deals with the date of effect of successful applications. Where an application is successful, it is taken to have effect up to three months prior to the date on which the claim was received by the respondent. In Mrs Harrison’s case, that meant her pension was effectively paid from 24 June 2002. It is impossible to fix an earlier date.

Conclusion

9.      The decision under review is affirmed.

I certify that the 9 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member McCabe

Signed:         .....................................................................................
  Associate: Thomas Ritchie

Date/s of Hearing: 21 May 2004
Date of Decision: 21 May 2004
The applicant represented herself.  
The respondent was represented by Mr McAninly, a departmental advocate.