Mitchell and Repatriation Commission
[2006] AATA 361
•7 April 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 361
ADMINISTRATIVE APPEALS TRIBUNAL )
) No D2005/14
VETERANS’ APPEALS DIVISION ) Re ROSEMARIE MITCHELL Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Ms MJ Carstairs, Member Date7 April 2006
PlaceDarwin
Decision For reasons given orally at the hearing the Tribunal affirms the decision under review.
................[Sgd]....................
M J CarstairsMember
CATCHWORDS
VETERANS’ AFFAIRS – widow’s pension – legislation only allows for back payment of pension of 3 months from date of application.
Ryde v Repatriation Commission [2005] FCAFC 108
REASONS FOR DECISION
7 April 2006 MJ Carstairs 1. Rosemarie Mitchell sought review with this Tribunal of a decision made by the Veterans’ Review Board (the VRB) dated 9 June 2005, the effect of which was to refuse to pay Mrs Mitchell’s widow’s pension earlier than 3 months before her claim, which was lodged with the respondent on 7 September 2004.
2. The only issue for this Tribunal is to review the same subject matter that was traversed by the VRB, that is, what date of effect can be set under the Veterans’ Entitlements Act (the Act) 1986 for Mrs Mitchell’s pension.
BACKGROUND
3. Mrs Mitchell is the widow of Leslie Harvey Mitchell, a veteran who served in World War II, including a period of operational service in New Guinea between 1943 and 1947. The veteran and Mrs Mitchell married on 23 March 1949.
4. The veteran died on 26 May 1997 at the age stated on the death certificate of 77 years. Due to the veteran’s ill health, he and Mrs Mitchell had been living separately in Queensland before he died. Mr Mitchell resided in an aged care facility. However there was no question Mrs Mitchell was his next of kin, and would come within the definition of dependant in the Act. Shortly after the veteran died, Mrs Mitchell moved to Darwin with her son, Leslie Mitchell, who is her carer. She was receiving a service pension prior to the veterans’ death and continued to do so after his death.
5. The veteran had never made disability claims upon the respondent, and for that reason at his death he had no medical conditions determined as being related to his war service. The respondent now acknowledges that the condition of diabetes mellitus, which was recorded on the veteran’s death certificate as one cause of death, was related to the veteran’s smoking during war service. Mrs Mitchell is paid widow’s pension now, as a result of the claim she made in September 2004.
6. On 7 September 2004, on a form headed Claim for Pension by a Widow, Widower or other Dependant of a Deceased Veteran, which bore the number D2663-11/99 (T6), Mrs Mitchell claimed widow’s pension. This was shortly after learning in about August 2004 that her daughter Robyn Ehrnholm (the deceased veterans’ step daughter), had lodged a claim form with the respondent on 10 November 2000 which was headed Claim for Disability Pension and Medical Treatment and/or Application for Increase in Disability Pension. This claim form carried the identifying number D2582-5/97 (T9).
7. In document T9, Mrs Ehrnholm, or some other person who may have assisted her in completing the form, had marked the form in 2 places the handwritten words For Memorial Purposes Only. At the part of the form requesting a signature as Next of Kin those words were crossed out and instead the words Contact Person (daughter) were substituted. No relevant questions referring to any medical disability or illness which the veteran may have suffered were completed; these were left blank. However it did emerge from the evidence, though the document was not exhibited by the respondent as part of the T-documents, that a smoking Questionnaire was filed with D2582-5/97 (T9). It seems that Mrs Ehrnholm did not tell her mother that she had lodged this form seeking a commemoration on the veteran’s grave.
8. The options provided for signing on Departmental form D2582-5/97 (T9) were by declaration by the veteran personally, or by declaration by an appointed representative of the veteran. For the reasons set out below, I concluded that Mrs Ehrnholm was not a person who validly could sign this form as a claim under the Act.
9. However as a result of lodging form D2582-5/97 in 2000, and it being accepted and processed within the Department of Veterans’ Affairs, two things occurred:
§ Mrs Ehrnholm was sent a curiously worded letter dated 16 November 2000 (T8) which read:
“This letter is about your application received 10 November 2000 for War Graves commemoration for the late Leslie Mitchell.
Eligibility for such recognition depends on whether or not the death of the late veteran can be regarded as war-caused as defined in Section 8 of the Veterans’ Entitlements Act.
That Act however, makes no provision for War Graves commemoration, I am therefore unable to make a formal determination responding to your request. However, if I were to make such a determination, I would make a finding, on the evidence available, that death in this case, was war-caused.”
§ A plaque was placed in the veterans grave with the inscribed words:
L.H. Mitchell, aged 77. Loved Husband of Rose, Father of Robyn, Carol and Leslie.
10. Mrs Mitchell is deeply disturbed that this plaque could have been erected on the veteran’s grave without her knowledge or consent. She had purchased the grave site for her husband, herself, and her son to be buried together and she considers that no-one else has the right to erect any form of memorial on the grave. She does not agree with the form of words used on it, and she wishes to have the plaque removed. As stated above, she believes that she is owed an apology and that the experience has been detrimental to her health.
11. Mrs Mitchell has said a number of times that she has never authorised her daughter Mrs Ehrnholm to act on her behalf. She stated in a letter dated 12 March 2005:
“The Department of Veterans Affairs (DVA) has not been informed at any time that Mrs Ehrnholm (my daughter) was legally authorised to act on my behalf, because she isn’t…” (T1 folio 15)
She stated in a letter dated 20 June 2005:
“I was and am my late husbands surviving next of kin; not my married daughter Mrs R Ehrnholm. Both Departments must know, my late husband Leslie Harvey Mitchell was not Robyn’s natural father…” (T1 p3).
12. I was advised at the hearing that war grave commemoration is determined under policy guidelines, with no underpinning of statutory provisions (T1, p19) determining the entitlement. Nevertheless war grave commemoration is only given where a veterans’ death has been determined as war-caused in accordance with s8 of the Act. Thus, in this case, despite the absence of such a formal determination a commemorative plaque was authorised and now stands on the veterans’ grave.
13. It seems from a file note (T27) dated 3 November 2004 that the usual practice within the Department when an application for war grave commemoration is lodged is that the respondent would check whether the widow was receiving payment and/or was alive, and they would be approached and advised to make an application for widow’s pension. This did not happen in this case. Furthermore, Mrs Ehrnholm did not tell her mother about the commemorative plaque until about August 2004, nor, it seems, about the letter sent to her (T8) outlining the in principle determination that the veteran’s death was war-caused.
LEGISLATION
14. This Tribunal’s review powers derive from the Act. In regard to pensions under Part II of the Act, which is the part under which the wife of a deceased veteran may apply for a pension in her own right, the source of this Tribunal’s power is through s175 of the Act, after a review completed by VRB.
15. Perusal of Mrs Mitchell’s application to the Tribunal, set out in document T1 reveals that it was addressed both to the Tribunal, and to the then Minister for Veterans’ Affairs, the Honourable De-Anne Kelly, MP. It is fair to say that Mrs Mitchell in T1, after making reference to the VRB decision in one paragraph, raises a number of matters, some of which are of an internal departmental/procedural nature or refer to the process for commemorations on the graves of deceased veterans. These matters do not come within the ambit of review by this Tribunal. They have been addressed internally in a number of written communications from the Department of Veteran’s Affairs or the Minister’s Office to Mrs Mitchell.
16. I reiterated to Mrs Mitchell and to her son, who represented her at the hearing that this Tribunal cannot review the decision made to reject Mrs Mitchell’s claim for compensation for the actions taken by the Department of Veterans’ Affairs. Mrs Mitchell has been advised that she can seek a review of these other matters with the Ombudsman and I now understand that it is her intention to do so.
17. It was clear from the correspondence on the file that Mrs Mitchell has been deeply upset by what has happened. If there have been errors made by the Department on matters that fall outside the Tribunal’s jurisdiction, this Tribunal cannot require that the Department issue an apology to her for what has occurred. The powers of this Tribunal are to affirm decisions correctly made, or to remake decisions where they are incorrect, providing that the decisions are within the Tribunal’s jurisdiction.
18. Having looked at the provisions in the Act relating to claims, and the provisions dealing with dates of effect in regard to claims, I agree with the VRB that the only date of effect that is available for Mrs Mitchell’s widow’s pension is 7 June 2004, three months before the claim Mrs Mitchell made on her own behalf in September 2004.
19. This is because Part II of the Act provides for pensions and, where a veteran has died, s13(1)(c) provides that the Commonwealth is liable to pay compensation by way of a pension, to the veteran’s dependants, where the death of the veteran was war-caused. Dependent is defined in s11 in relation to veterans and deceased veterans as being, amongst others, the partner, the widow or a child. Child is defined in s5F of the Act as being a young person under 16 or still in fulltime education but under 25, which points to the issue of dependency under the Act as intending to ensure that the needs of young persons are covered until they are able to provide for themselves. Child of a veteran is defined in s11 as the natural or adopted child of the veteran, or a young person who was in fact dependant on the veteran at the time of the veteran’s death. Mrs Ehrnholm does not come within any of these categories of dependant. It is important to clarify this as there are a number of ways in which claims can be made under the Act, but I was satisfied that Mrs Ehrnholm was not a person who could make a claim that related to war caused disability or death under the Act.
20. Certain payments after the death of a veteran are made automatically to dependants: s13A of the Act. This is not such a case, because the veteran had none of the qualifying circumstances set out in s13A. Any entitlement to a pension arising from the veteran’s death required the making of a claim: s14 of the Act. 14(3) provides:
“3) A claim for a pension:
(a) shall be in writing and in accordance with a form approved by the Commission;
(b) shall be accompanied by such evidence available to the claimant as the claimant considers may be relevant to the claim; and
(c) is to be lodged at an office of the Department in Australia in accordance with section 5T and is taken to have been made on a day determined under that section.”
21. It seems to me that the claim form that Mrs Ehrnholm lodged in 2000 was one, generally speaking, that did comply with s14(3), in the sense that it was on a form approved by the Commission. I infer that the numbering D2582-5/97 (T9) and D2663-11/99 (T6) on each of the forms lodged in 2000 and 2004 as well as other markings on those forms establishes that they were forms approved by the Commission :s14(3)(a). This however does not assist Mrs Mitchell in terms of relying on the lodging of the form in 2000 to backdate widow’s pension to that time, because Mrs Ehrnholm was not a person who could make a claim at all. Those who may claim are identified s16 of the Act. Section 16 sets out the following:
“A claim under subsection 14(1) for a pension ….. for a dependant of a deceased veteran, ……may be made:
(a) by the veteran or dependant, as the case may be;
(b) with the approval of the veteran or dependant, as the case may be, by another person on behalf of the veteran or dependant;
(c) in the case of a veteran or dependant, as the case may be, who is unable, by reason of physical or mental incapacity, to approve a person to make the claim or application on his or her behalf—by another person, being a person approved by the Commission, on behalf of the veteran or dependant;
…..
22. Mrs Ehrnholm was not a dependant in her own right and Mrs Mitchell has made it plain that she has never authorised Mrs Ehrnholm to act on her behalf on any matter to do with the veteran (see para 11 above). Clearly Mrs Ehrnholm had no other approval referred to in s16(3). For these reasons the claim form lodged as part of a process to secure the commemoration on the grave cannot be taken as a claim for widow’s pension.
23. The provisions for setting of the date of effect in Mrs Mitchell’s claim are as provided for in s20(1) of the Act. Mrs Mitchell’s claim for widow pension and the consequent setting of the date of effect only relates to the claim that she made on her own behalf in 2004. Although the circumstances of the case differ from those applying here, support is also lent to this conclusion by the reasoning of the Full Federal Court in Ryde v Repatriation Commission [2005] FCAFC 108. That case makes plain that the legislative scheme generally commences claims afresh.
24. I have concluded that the form lodged in 2000 was a form approved by the Commission , and for that reason s20(2) of the Act does not apply, as that deals with the situation where an initial claim is lodged otherwise than in a form approved by the Commission. But in addition to that, Mrs Mitchell cannot take the benefit of any backdating under s20(2) of the Act. That sub-section provides:
“…..
(2) Where:
(a) a person makes a claim for a pension in writing, but otherwise than in accordance with a form approved for the purposes of paragraph 14(3)(a);
(b) the person subsequently makes a claim for the pension in accordance with a form so approved:…..
and thus envisages that the person referred to in s20(2)(a) and s20(2)(b) are the same person. Clearly that is not the case here, in relation to the form lodged in 2000 by Mrs Ehrnholm (T9) and that lodged by Mrs Mitchell in 2004 (T6). In accordance with s20(1) of the Act the correct date of effect for the only valid claim for pension as the dependant and widow of the veteran was 7 June 2004, three months before Mrs Mitchell claimed.
DECISION
25.For the reasons given orally, the Tribunal affirms the decision under review.
I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of MJ Carstairs, Member
Signed: [Sgd]
Legal Research OfficerDate of Hearing 7 April 2006
Date of Request for written reasons 7 April 2006
For the Applicant Mr L Mitchell (son)
For the Respondent Mr T Harrison, departmental advocate.
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