Hoskins and Repatriation Commission

[2002] AATA 755

DECISION AND REASONS FOR DECISION [2002] AATA 755

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2002/423

VETERANS' APPEALS  DIVISION       )          
           Re      Dorothy Hoskins  
  Applicant
           And    Repatriation Commission          
   Respondent

DECISION

Tribunal       Ms N Bell     

Date3 September 2002

PlaceSydney

Decision      The Tribunal affirms the decision under review.         
  ..............................................
  [SGD]Ms N Bell   Member
CATCHWORDS
VETERANS' AFFAIRS – widow – remarriage –"dependant" of veteran – eligibility for pension – claim refused – decision under review affirmed
Veterans' Entitlements Act 1986 – ss. 11, 13, 13AG
Repatriation Act 1920

REASONS FOR DECISION

3 September 2002   Ms N Bell, Member            

1. This is an application by Mrs Dorothy Hoskins ("the Applicant") for review of the decision of the Repatriation Commission ("the Respondent") dated 6 September 2001, affirmed by the Veterans' Review Board on 22 February 2002, that Mrs Hoskins is not entitled to claim a pension under the Veterans' Entitlements Act 1986 ("the Act").

2. The hearing before the Tribunal was conducted by telephone. Mrs Hoskins spoke on her own behalf and the Respondent was represented by Ms Philippa Hook. The documents lodged under section 37 of the Administrative Appeals Tribunal Act 1975 were before the Tribunal ("the T documents").

3. It is not in dispute that Mrs Hoskins married the late Mr Clement Aurisch in 1939 and that he died in 1968, having served in the AIF from 22 December 1941 to 11 December 1945.  It is also not in dispute that Mrs Hoskins remarried in 1970.

4. Mrs Hoskins had claimed in respect of Mr Aurisch's death in 1968 and that claim was rejected and an appeal disallowed under the provisions of the RepatriationAct 1920 (documents T7, T8 and T9).

5. Section 13 of the Act provides in part:

   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.

6. 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.

7. The issue for the Tribunal to determine in this application is therefore whether Mrs Hoskins is a dependent of the veteran.

8. Mrs Hoskins told the Tribunal that she considered that the decision, made in 1970, to reject her claim for a pension was wrong because she is of the view that the late Mr Aurisch's death did arise out of his war service.  However, that earlier decision is not before the Tribunal and it has no jurisdiction to deal with it.

9. Mrs Hoskins expressed her frustration with the Respondent's decision to refuse her earlier and more recent claims and noted some of the difficulties she experienced during Mr Aurisch's service as the mother of a small child with her husband away from home. She referred to instances she was aware of where widows of veterans who had remarried were paid a pension. 

10. It is clear that, because Mrs Hoskins remarried, she does not fall within the definition, in section 11 of the Act, of a dependant of the veteran. It follows that she is not eligible, under section 13 of the Act, to receive a pension as a dependant of the veteran.

11. Section 13AG of the Act provides for the reinstatement of the pension of a widow who was eligible for and receiving a pension on or before 28 May 1984 under a repealed Act and who because of remarriage had her pension cancelled under an Act. Mrs Hoskins has never been in receipt of a pension under any of the repealed Acts and so the question of reinstatement under section 13AG does not arise.

12. The Tribunal appreciates Mrs Hoskins' position and understands her frustration. The Tribunal accepts her evidence as to the difficulties she faced during her late husband's service. However, she is not a dependent within the meaning of the Act and this means that her claim for a pension must be rejected.
    Decision

13. The decision under review is affirmed.

I certify that the 13 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell

Signed:         .....................................................................................
  Associate

Date/s of Hearing  14 August 2002
Date of Decision  3 September 2002
Solicitor for the Applicant         self represented
Solicitor for the Respondent    Phillipa Hook