Nunn and Repatriation Commission
[2006] AATA 651
•25 July 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 651
ADMINISTRATIVE APPEALS TRIBUNAL № V2004/1069
VETERANS’ AFFAIRS DIVISION
Re: evelyn nunn
Applicant
And:REPATRIATION COMMISSION
Respondent
DECISION
Tribunal: Mr Egon Fice, Member
Date:25 July 2006
Place:Melbourne
Decision:The Tribunal affirms the decision under review.
(sgd) Egon Fice
Member
VETERANS’ AFFAIRS – widow’s claim for pension – widow re-married – whether dependant for purposes of s 11 of the Act – reinstated pensioner
Veterans’ Entitlements Act 1986 ss 11, 13(8), 13AG, 14, 100
Stafford v Repatriation Commission (1995) 56 FCR 121
Finn v Repatriation Commission 17 August 1990, G48/1990
Robin Creyke and Peter Sutherland, Veterans’ Entitlements Law, The Federation Press (2000)
REASONS FOR DECISION
25 July 2006 Mr Egon Fice, Member
1. Mrs Evelyn Nunn was married to Mr Douglas Thomas Fairbairn, until his death in 1973. Mr Fairbairn was a World War II veteran. Mrs Nunn remarried on 18 November 1978. Her second husband, Mr Cecil Phillip John Nunn, is now also deceased. In January 2002 Mrs Nunn lodged a claim for a war widow’s pension. Her claim was rejected by the Repatriation Commission (the Commission) and her appeal to the Veterans’ Review Board (VRB) was unsuccessful. Mrs Nunn now seeks a review of the VRB decision.
RELEVANT FACTS
2. Mrs Nunn married Mr Fairbairn on 28 January 1939. He died on 2 October 1973 from acute on chronic respiratory failure.
3. Mr Fairbairn served in the Australian Army from 25 June 1941 to 26 April 1945. He served in the Middle East and South West Pacific areas. This constitutes operational service as defined in s 6 of the Veterans’ Entitlements Act 1986 (the Act).
4. On 18 January 2002 Mrs Nunn lodged a claim for a war widow’s pension. That claim was rejected by the Commission on 31 January 2002. The VRB affirmed the Commission’s decision on 30 August 2004, on the basis that Mrs Nunn did not satisfy the definition of dependant in accordance with s 11 of the Act.
CORRECT PROCEDURE
5. Mr Peter Dalmau, an advocate with the Bass Coast Veterans and Dependants Welfare Centre, who appeared on behalf of Mrs Nunn, argued that the correct procedure for the Tribunal to adopt in a case such as this is to first determine whether Mr Fairbairn’s death was war-caused as that term is defined under s 8 of the Act. As I understood his submission, Mr Dalmau contended that a war widow’s pension claim generated a number of questions which had to be determined and that each of those decisions in their own right generated an entitlement to other benefits. As an example, Mr Dalmau said that if a determination were made that Mrs Nunn was a war widow, she and her family should be entitled to war grave status for Mr Fairbairn ‘s grave and eligibility for funeral benefits under s 99(1)(a) of the Act.
6. According to Mr Dalmau, the next step that should be taken is to determine whether Mrs Nunn falls within the definition of war widow as is set out in s 5E of the Act. It is only after these two issues have been decided that, according to Mr Dalmau, a determination should be made as to whether Mrs Nunn is entitled to the war widow’s pension.
7. With respect, the approach suggested by Mr Dalmau makes no sense at all. To begin with, a war widow is defined in the Act as a woman who was not only legally married to a veteran immediately before his death, but who was also receiving a pension. Clearly Mrs Nunn cannot fall within the definition. Also, Mrs Nunn’s application to the Commission which was the subject of review by the VRB is in respect of a war widow’s pension only. She has made no claim whatsoever for any other benefits or entitlements under the Act. Although Mr Dalmau relied on the reasons given in Stafford v Repatriation Commission (1995) 56 FCR 121, that case was very different to this matter. In that case, Mr Stafford had lodged a pension claim relying on four claimed war-caused disabilities. The Commission decided that two of the claimed conditions were not war-caused and that there was no disease or injury covered by the other two claimed conditions. On appeal to the VRB, Mr Stafford said he was dissatisfied with the original decision because the two conditions which were found not to be war-caused had originated during his war service. The VRB found against Mr Stafford and it confined its review to the decision that the two claimed conditions were not war-caused. It did not address the Commission’s original finding regarding the other two claimed conditions which were refused on the grounds that there was no disease or injury. Mr Stafford then sought review by this Tribunal in respect of all four claimed conditions. The Tribunal found, in a preliminary decision, that Mr Stafford’s war service was not operational service within s 6(I) of the Act and that it, in any event, lacked jurisdiction to review those aspects of the Commission’s decision that had not been reviewed by the VRB. On appeal to the Federal Court, Northrop J held that the Tribunal had jurisdiction to review the whole of the Commission’s decision despite the fact that the VRB had only reviewed part of that decision. The fact that the VRB had only reviewed part of the Commission’s decision was an error but it could not be used to limit the review jurisdiction of this Tribunal. Northrop J also held that there was no error of law involved in the Tribunal’s decision as Mr Stafford’s war service did not constitute operational service.
8. It should be apparent that the matters dealt with by Northrop J in Stafford are vastly different to Mrs Nunn’s claim. Mrs Nunn’s claim to the Commission involved only one issue: that is whether she is entitled to a war widow’s pension. Although, upon review, that decision may well involve a number of issues arising out of the interpretation of the Act, the Tribunal is not required to necessarily address each issue that may arise if it is satisfied, for example, that Mrs Nunn does not meet the very first requirement to be eligible for a war widow’s pension. If Mrs Nunn cannot satisfy the definition of a dependant in s 11 of the Act, and the Act requires a claim for a pension to be made by a dependant of a deceased veteran, then clearly that would end the matter. After making such a finding, there would be no reason to proceed to determine whether the veteran’s death was war-caused. The same of course could be said if there was a claim before this Tribunal for funeral benefits under s 100 of the Act, because such a benefit is only granted to a dependant, other than a reinstated pensioner, who has died in indignant circumstances. The first task of the Commission would be to determine whether the person was in fact a dependant as defined under the Act. If it found that the applicant fell within the definition, it would then proceed to examine whether that person had died in indignant circumstances. Again, nothing would be achieved by examining whether the person died in indignant circumstances if it were clear to the Commission that the person was not a dependant.
ELIGIBILITY FOR WIDOW PENSION
9. Claims for pensions are made under Division 3 of the Act. Certain dependants of a deceased veteran are automatically entitled to be paid a pension under s 13A, as are reinstated pensioners under s 13B of the Act. Otherwise, claims for pensions under s 14 can only be made by a veteran or a dependant of a deceased veteran other than a reinstated pensioner. It should be clear that the first consideration by the Commission, the VRB or this Tribunal would be to determine whether Mrs Nunn is a person who is eligible either to be automatically paid a pension or to make a claim for a pension. A dependant is defined under s 11 of the Act as follows:
11(1) In this Act, unless the contrary intention appears:
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.
Note 1: A veteran may have more than one dependant of the kind referred to in paragraphs (a) to (d) at the same time.
Note 2: For the meaning of reinstated pensioner see section 11AA.
Note 3: Subsection (4) affects the meaning of widow in paragraph (c).
(2)Without limiting the generality of subsection (1) in its application to a veteran (including a veteran who has died) who is, or was:
(a)a descendant of an indigenous inhabitant of the Torres Strait Islands; or
(b) a male aboriginal native of Australia;
who served during World War 2 in the Defence Force at a rate of pay less than the minimum rate of pay that was prescribed as payable to a male member of the Australian Military Forces and whose services have been terminated by discharge or death, a person whom the Commission, by instrument in writing, determines to be, for the purposes of this section, a person who is dependent on the veteran is a dependant of the veteran.
(3)In subsection (1), a reference to a veteran shall be read as including a reference to a person who is a member of the Forces, or a member of a Peacekeeping Force, as defined by subsection 68(1).
(4) In paragraph (1)(c), widow does not include a reinstated pensioner.
Note: For the meaning of reinstated pensioner see section 11AA
10. Quite clearly, a widow or a widower who marries or remarries is not a person who falls under the definition of dependant for the purposes of the Act.
11. Nevertheless, Mr Dalmau argued that because Mrs Nunn’s second husband is now deceased, she is no longer married for the purposes of the definition in s 11. The Federal Court of Australia in Finn v Repatriation Commission (unreported decision of Pincus J dated 17 August 1990, G48/1990) considered the case of a veteran who had remarried and then was again widowed. Pincus J said, at page 4:
…
The difficulty is that s. 14, read with the prima facie definition of “dependant” in s.11, makes no provision for the making of a claim by a person who once was, but is not at the date of the making of a claim, a veteran’s widow…
His Honour went on to say, at page 6:
However, since the more general question was argued – that is, the general question of the date on which one determines widowhood for the purpose of s.14 – I think I should express my view about it. It is that the Board’s decision on the point seems to me correct. I can see no sufficient justification for reading the expression “dependant of the deceased person” in s. 14E of the VE Act as extending to a person who once was, but is not at the date of the claim, such a dependant. More particularly, it does not seem to me that a woman who was once but no longer is the widow of the deceased veteran can make a claim under s. 14.
12. The Tribunal, as it is required to do, has followed the decision of Pincus J in Finn.
13. Undeterred by the decision in Finn, Mr Dalmau contended that s 13(8)(a)(ii) of the Act provides another avenue under which Mrs Nunn may be eligible for a widow’s pension. In order to examine that point more fully, I need to briefly set out the history of Mrs Nunn’s first claim for a widow’s pension.
14. Shortly after Mr Fairbairn’s death on 2 October 1973, Mrs Nunn applied for a pension in about February 1974. Her application was rejected on 5 April 1974 by the Repatriation Board and she then appealed that decision to the Repatriation Commission. The Repatriation Commission rejected her appeal on 6 June 1974 and Mrs Nunn then further appealed to the War Pensions Entitlement Appeal Tribunal. On 5 March 1975 her appeal to the Tribunal was rejected on the basis that Mr Fairbairn’s death was not considered to be due to war service.
15. Prior to commencement of the Act on 22 May 1986, the relevant section dealing with widow pensions was s 10 of the War Pensions Act 1914. Under that section, a widow’s pension was cancelled upon remarriage. As Creyke and Sutherland maintain, in Veterans’ Entitlement Law, that seemed to be too harsh and the legislation was changed so that cancellation would be delayed, initially for two years, and subsequently for twelve months after remarriage. The Explanatory Memorandum to the Veterans’ Entitlements Bill 1985 stated, at page 18:
…
Sub-clause 13(8) will provide that a claimant for a war widow’s pension must be unmarried at the time of the grant of pension. If a war widow remarries or marries after the grant of pension she will be able to retain entitlement to that pension.
16. However, as Creyke and Sutherland explained, although a widow had to be unmarried at the time of the grant of the pension, that did not prevent the grant of a pension many years after the death of a husband, nor did it clarify the position of a widow who had remarried and subsequently became a widow a second time or was divorced. Accordingly, the Act was amended by the Veterans’ Affairs Legislation Amendment Act 1988, which commenced on 22 December 1988. The Explanatory Memorandum to the Bill, at page 8, stated:
11. Section 13 of the Principal Act provides, in part, the eligibility criteria for the grant of pensions to the dependants of deceased veterans.
12. Sub-section 13(8) specifically provides that a widow who remarries after 22 May 1986 (the commencement date of the Principal Act) may retain a pension granted before that date or be granted a pension after that date where the claim was lodged and/or the decision to grant was made before the marriage.
13. This sub-section works in combination with subsection 5(1) of the Veterans’ Entitlements (Transitional Provisions and Consequential Amendments) Act 1986 which provides that a widow who remarried after 28 May 1984 and before 22 May 1986 may retain an existing widow’s pension. Subsection 5(3) of that Act enables a widow remarried after 28 May 1984 to claim a pension within 12 months after the marriage where that pension would have been granted had she not remarried.
14. Clause 7 would insert a new subsection 13(8A) in the Principal Act.
15. New sub-section 13(8A) would clarify the original intention of the legislation that a widow’s pension may only be paid in respect of a married or remarried widow in respect of the period after marriage or remarriage where the event took place after 28 May 1984.
16. Pensions granted contrary to the original intention between 22 May 1986 and the commencement of this new provision would not be affected.
…
17. It is clear that s 13(8) of the Act was intended to be a transitional provision. It was intended to apply to a widow who remarried after 22 May 1986 but who had been granted the pension prior to that date or was granted a pension upon consideration or reconsideration of applying for the pension which was made before the marriage or remarriage occurred.
18. Mr Dalmau argued that this application was in fact a reconsideration of Mrs Nunn’s claim for the widow’s pension made in 1974. However, with respect, that cannot be correct. Mrs Nunn’s claim made in 1974 was fully considered and reconsidered at that time. Her current application is not for reconsideration of that claim but rather a new claim. This Tribunal has no power under the Act to reconsider a decision made by the War Pensions Entitlement Appeal Tribunal in 1974. Even if I am wrong about that, s 13(8) of the Act only applies to a dependant of a deceased veteran who marries or remarries after the death of the veteran and after 22 May 1986. There was no dispute about the fact that Mrs Nunn remarried in November 1978.
19. Although I agree with Mr Dalmau’s submission that s 13(8) was designed to have a transitional effect, it does so because it permits a widow who has married after 22 May 1986, and who was granted a pension by a decision made by the Commission, the VRB or this Tribunal either before 22 May 1986 or, where a claim was lodged before marriage or remarriage, and the decision was made to grant the pension, on subsequent consideration or reconsideration of that claim, to retain the pension. It cannot apply to a new claim made in 2002.
20. To put questions of entitlement to a widow’s pension beyond doubt, s 13(8A) was introduced by s 7 of the Veterans’ Affairs Legislation Amendment Act 1988. It applies to a dependant of a deceased veteran who has married or remarried following the death of the veteran, but on or before 28 May 1984. That section provides that the Commonwealth is not liable to pay a pension to a dependant unless the decision by the Commission, the VRB or this Tribunal to grant a pension was made before the commencement of s 7 of the Veterans’ Affairs Legislation Amendment Act, which was 22 December 1988; and a decision granting a pension to a dependant made after 22 December 1988 by either the Commission, the VRB or this Tribunal is void and of no effect. Section 13(8A) clearly excludes Mrs Nunn from eligibility for a widow’s pension.
21. It appears that Mrs Nunn’s application in 2002 was prompted by an amendment to the Act by the Veterans’ Affairs Legislation Amendment (2001 Budget Measures) Act 2001, which came into effect on 4 September 2001. That amending legislation resulted in the introduction of s 13AG into the Act. Insofar as it is relevant, s 13AG provides:
(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.
…
22. A reinstated pensioner is defined under s 11AA of the Act as a person who the Commission has determined under s 13AG to be a reinstated pensioner. Under s 13(7A) of the Act, the Commonwealth is liable to pay a pension to a reinstated pensioner. Reinstated pensioners are war widows who remarried on or before 28 May 1984 and, upon remarriage, had their pensions cancelled. Therefore, as is set out in s 13AG(1)(a), a person eligible for reinstatement must have been eligible for and receiving a pension on or before 28 May 1984 under one of the repealed Acts. Even if I were to consider that Mrs Nunn was eligible for the pension on or before 28 May 1984, it is common ground between the parties that she was not receiving a pension on or before that date. Therefore, she cannot be regarded as a reinstated pensioner. That also precludes her from being defined as a dependant for the purposes of s 11 of the Act. She is not entitled to be automatically paid the pension under s 13B of the Act because she does not qualify as a reinstated pensioner.
CONCLUSION
23. Because Mrs Nunn cannot be classified as a reinstated pensioner, in order for her to receive a widow’s pension, she must make a claim for a pension under s 14 of the Act. The only persons who may make a claim for a pension under s 14 are a veteran or a dependant of a deceased veteran. A dependant of a veteran, including a veteran who has died, is defined under s 11 of the Act. That definition expressly excludes a widow or widower who marries or remarries. As Mrs Nunn remarried in 1978, it is clear that she is not a dependant for the purposes of the Act. Section 13(8) of the Act does not assist Mrs Nunn at all. She remarried prior to the commencement of the Act on 22 May 1986 and therefore the section is not applicable to her. Furthermore, her application made in 2002 for a pension is not a consideration or reconsideration of a claim which she made for the widow’s pension in 1974. It is a fresh claim. Because Mrs Nunn is not a dependant under s 11 of the Act, she is not eligible to make a claim for a widow’s pension. Therefore, the decision made by the VRB on 30 August 2004 must be affirmed.
I certify that the twenty‑three [23] preceding paragraphs are a true copy of the reasons for the decision of:
Mr Egon Fice, Member
(sgd) Olympia Sarrinikolaou
Clerk
Date of hearing: 22 June 2006
Date of decision: 25 July 2006
Advocate for the applicant: Mr P. Dalmau
Advocate for the respondent: Mr R. FergussonSolicitor for the respondent: Advocacy Section, Department of Veterans’ Affairs
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