Quinn and Repatriation Commission
[2002] AATA 760
•21 August 2002
DECISION AND REASONS FOR DECISION [2002] AATA 760
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2002/328
VETERANS' APPEALS DIVISION )
Re LILY QUINN
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr E K Christie, Member
Date21 August 2002
PlaceBrisbane
Decision The Tribunal affirms the decision under review. This means Mrs Quinn's application for review is unsuccessful.
.
(Sgd) EK Christie
Member
CATCHWORDS
VETERANS' AFFAIRS – War Widows Pension – remarriage prior to 1984 – whether entitled to reinstatement of pension
Veterans' Entitlement Act 1986 s 13AL, 70(11)
Departmental Policy Guidelines Part 3 Chapter 9 Act of Grace Payments
WRITTEN REASONS FOR ORAL DECISION
4 September 2002 Dr E K Christie, Member
This is an application by Lily Quinn to review a decision of the Repatriation Commission dated 4 April 2002 that, because Mrs Quinn was not in receipt of a War Widow's pension on or before 28 May 1984, Mrs Quinn was ineligible for the restoration of the War Widow's Pension payable under the provisions of the Veterans' Entitlements Act 1986.
At the hearing Lily Quinn represented herself. Mr D McAninly represented the Commission.
The Tribunal had in evidence before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the "T" Documents) (Exhibit 1).
Issues to be decidedThe only issue for the Tribunal to decide was whether Mrs Quinn was eligible for the restoration of the War Widow's Pension paid to her.
Relevant LegislationThe relevant legislation under the Veterans' Entitlements Act 1986 in this application for review is as follows:
(a)Section 70 deals with the "Eligibility for War Widow's Pension".
"70 (11) Where a dependant of a deceased member of the Forces or of a deceased member of a Peacekeeping Force (not being a reinstated pensioner or a child of the member) re-marries or marries after the death of the member:
(a)the Commonwealth is not liable to pay a pension to the dependant under this section unless the decision by the Commission, the Board or the Administrative Appeals Tribunal, as the case may be, to grant the pension:
(i)was made before the commencement of this Act; or
(ii)was or is made after the commencement of this Act upon consideration or re-consideration of a claim for that pension that was duly made (whether before or after the commencement of this Act) before the re-marriage or marriage occurred; and…"
(b)Section 13AG deals with "Reinstatement of the War Widow's Pension"
"13AG (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…"
Evidence of Lily Quinn
Mrs Quinn explained to the Tribunal the circumstances that led to her failing to apply for a War Widow's pension following the death of her husband in 1955.
(a)She had married in 1944 and her husband was a RAAF fighter pilot who had been severely traumatised by events and stressors he had experienced during war time service in the South Pacific. Mrs Quinn said that when he returned home he could not hold a job down for more than a few months at a time and was always trying to "run away from reality". He would escape by constantly running into the bush or his father's farm in Victoria. Because of his traumatised behaviour Mrs Quinn lived with constant depression that required medication.
(b)Her husband was killed in a freak accident in 1955 when he was crushed by a falling tree. At this time she was 4 ½ months pregnant and had a 9 year old daughter.
(c)Mrs Quinn said that the impact of her husband's death exacerbated her depressive condition even further.
(d)Mrs Quinn lived in a small country town in Victoria (Maffra). Mrs Quinn said that no one in the town told her that she might be eligible for a War Widow's pension. Also, because she was a newcomer to the town, she knew few people and so this reduced the opportunity for her to find out about her entitlement rights.
(e)As a result of being unaware of her rights to a War Widow's pension entitlement, she had brought up her daughters herself without any assistance from the Department; she eventually had to find paid employment.
(f)Finally, Mrs Quinn said that she did not think of applying for a War Widow's pension at any time because "she honestly did not know" about her rights to entitlement. Also, she did not think about a pension because she was too distraught over the entire trauma she faced in her life over many years living with her late husband as well as his subsequent death – and because of her need for constant medication for depression.
Mrs Quinn said that she married in 1975 "for company" but the marriage proved unsuccessful.
Submissions of the Repatriation CommissionMr McAninly said that at the time of her husband's death in 1955, there were no Departmental administrative processes in place to advise Mrs Quinn that she could apply for a War Widow's pension.
Mr McAninly said that he accepted the truthfulness of Mrs Quinn's evidence and accepted the description of her late husband's behaviour after the war. "Escapes into the Country" were a good common indicator of someone who had been traumatised by wartime experiences.
Mr McAninly concluded that because Mrs Quinn did not meet the statutory requirements for being eligible for the grant of War Widow's pension, then such a pension could not be reinstated to her now.
Consideration of the IssuesThe objective of the Tribunal is to review administrative decisions not only on their merits, but in accordance with the law at all times. The relevant law in Mrs Quinn's case is the Veterans' Entitlement Act 1986.
The Tribunal has considered the relevant sections of the Act in relation to Mrs Quinn's application for review and makes the following conclusions:
(a)Mrs Quinn does not satisfy subsection 70(11) of the Act, as in the absence of her applying for a War Widow's Pension, there has been no decision to grant the War Widow's pension to her (emphasis added); and
(b)Mrs Quinn does not satisfy all of the requirements of subsection 13AG of the Act – notwithstanding that she may have been eligible for a War Widow's Pension on or before 28 May 1984. However, as she did not actually receive a War Widow's Pension, a War Widow's Pension had not been cancelled in Mrs Quinn's case.
As a result of these conclusions and applying the legislation, the Tribunal can make no other finding other than to find that Mrs Quinn cannot have the War Widow's Pension reinstated to her.
Whilst this outcome may seem harsh, it would be more appropriate to describe the outcome as unfortunate. The legislation gives the Tribunal no other option than to make such a finding as there is no discretion in the legislation for the Tribunal to make any other decision based on the factual evidence Mrs Quinn has provided to the Tribunal.
However, the Tribunal does raise for the consideration by Mrs Quinn and the Repatriation Commission, the Departmental Policy Guideline "Act of Grace Payments" (Part 3 Chapter 9).
The Departmental Policy Guideline states as follows:
"Section 3 Act of Grace Payments
What is an Act of Grace payment
An Act of Grace payment may be made where a person has suffered a loss. Although there is no legal liability on the Commonwealth to meet the loss, it is considered that the Commonwealth bears some responsibility for the loss. In certain special circumstances a person that may not have met the eligibility criteria for …pension …may be considered under the 'act of grace' provisions. An act of grace payment is not a service pension…
Eligibility for an Act of Grace payment
Eligibility for an Act of Grace payment depends on the claimant's circumstances and a wide range of matters may be taken into account to determine eligibility although there is no set eligibility criteria for an Act of Grace payment, claims may be considered where:
a person received incorrect advice leading to detriment, but where there is no legal liability,
a matter is covered by legislation, but its application produces a result which is unintended, anomalous, inequitable or otherwise unacceptable,
it is considered desirable to apply the benefits of proposed legislation, or
there are other special circumstances where there may be a moral obligation to make a payment.
Request for an Act of Grace payment
Requests for 'Act of Grace payments' can arise from almost any aspect of Commonwealth administration and include payments normally paid under Part III (service pension) or Part IIIA (income support supplement) of the VEA.
Claims for Act of Grace payments
A claim for an Act of Grace payment should first be considered under the criteria for 'compensation for detriment caused by administrative error'. If a claim satisfies that criteria it will be determined under the compensation for detriment provisions. Claims that do not satisfy the compensation criteria may be determined under the Act of Grace provisions."
In relation to the "Act of Grace Policy" the Tribunal considers that there is no issue for a claim under the Policy, "Compensation for Detriment caused by Administrative Error" as there were no departmental administrative processes in place in 1955 to advise War Widows of their entitlement to a pension (see para 8).
However, the Tribunal accepts the evidence of Mrs Quinn as evidence of the truth and accepts her explanation for not applying for a War Widow's pension as plausible. The trauma and the constant depression she suffered from experiencing her husband's behavioural and emotional difficulties, in returning from war (which would appear to reflect symptoms of Post Traumatic Stress Disorder), the tragic loss of her husband in a freak accident, her need for constant medication for depression considered in the context the complete absence of any Departmental administrative processes at this time to make Mrs Quinn aware of her legal rights to a War Widow's Pension has produced a legislative outcome under the Veterans' Entitlement Act that the Tribunal concludes to be an "unintended, anomalous, inequitable, unjust or otherwise unacceptable result" in Mrs Quinn's particular circumstances (emphasis added). On consideration of the overall circumstances, it may even lead to a conclusion "that there is a moral obligation on the Commonwealth to make a payment".
The Tribunal emphasises that it has no power whatsoever to order that an Act of Grace Payment be made to Mrs Quinn. The process for such a payment is for Mrs Quinn to make a claim to the Repatriation Commission for an Act of Grace payment and to request that her claim be assessed under the specified eligibility criteria. The final authority to grant payments under Act of Grace does not rest with the Tribunal, but the Minister for Finance or their appointee.
For all of the above reasons, the Tribunal affirms the decision under review.
I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of Dr E K Christie, Member
Signed: .....................................................................................
S Oliver
AssociateDate/s of Hearing 21 August 2002
Date of Decision 21 August 2002
Date of Written Reasons 4 September 2002
Applicant Mrs L Quinn
Respondent Mr D McAninly
0
0
0