Ryde and Repatriation Commission

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2004] AATA 274
ADMINISTRATIVE APPEALS TRIBUNAL )
) No. N2003/1573

VETERANS' APPEALS DIVISION )

Re ELNA PEREZ RYDE

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member M D Allen
Date16 March 2004
PlaceSydney

Decision The decision under review is affirmed.
(Sgd) M D Allen
...............................................

Senior Member

CATCHWORDS
VETERANS’ ENTITLEMENTS – Application to backdate pension to date of husband’s death in 1991 – Successful claim being third claim made was lodged with Respondent in 2001 – No legislative provisions enabled pension to be backdated beyond date permitted by the successful claim – Decision under review affirmed .
Veterans' Entitlements Act 1986 – s20.
REASONS FOR DECISION

16 March 2004 Senior Member M D Allen
1. Pursuant to an application lodged with the Tribunal on 7 October 2003, the Applicant sought review of a decision by the Respondent dated 17 May 2001 and affirmed by the Veterans’ Review Board on 31 July 2003 that granted her a War Widow’s Pension and determined that the pension would be paid as and from 7 February 2001. The Applicant had claimed for the said pension pursuant to an application lodged on 7 May 2001.
2.Section 20 of the Veterans’ Entitlements Act 1986 (“the VEA Act”) reads, inter alia:
“(1) Where a claim in accordance with section 14 for a pension is granted, the Commission may, subject to this Act, specify as a date that a determination under subsection 19(3) takes effect in respect of the claim, a date not earlier than 3 months before the date on which the claim for a pension, in accordance with a form approved for the purposes of paragraph 14(3)(a) was received at an office of the Department in Australia.”

Subsection (3), section 20 then goes on to provide:
“Nothing in this section empowers the Commission to specify as a date that a determination of a claim under subsection 19(3) takes effect in respect of a person who has made a claim for a pension under section 14, a date before the date that the person became eligible to be granted the pension.”

3. As stated above in accordance with those provisions, the Applicant's pension was dated as and from and with effect from 7 February 2001, a date three months prior to the lodgement of her successful claim. The Applicant has agitated both before the Veterans’ Review Board and before this Tribunal her contention that her claim should be backdated to the date of her late husband's death, which was in 1991. There has been lodged on her behalf a Statement of Facts and Contentions, dated 18 December 2003, which document was taken in and marked as Exhibit A1. That document provides no legal arguments as to how the provisions of section 20 of the VEA Act can be circumvented.
4. It is true that if the Applicant's previous application, which was on 23 September 1991 had been successful, she would have been entitled to pension as and from the date of her husband's death in 1991. The facts are that claim was not successful and indeed a second claim made by the Applicant was also not successful. As to the original claim, it was also considered by the Veterans’ Review Board and by this Tribunal and rejected. It is quite clear that where section 20 of the VEA Act refers to the date from which a grant of claim for pension can take effect, it refers to a successful claim. There is nothing in the Act which permits either the Repatriation Commission or this Tribunal upon review, to backdate a claim to an earlier unsuccessful application.
5.The decision under review is therefore affirmed.

I certify that the 5 preceding paragraphs are a true copy of the reasons for the decision herein of:
Senior Member M D Allen

Signed:         (Sgd) K. Wong                  .......................................................................................
  Associate
Date of Hearing  13 January 2004
Date of Decision  16 March 2004
Representative for the Applicant    Self-represented
Advocate for the Respondent      Mr Nigel Bunn

The case involved a claim by a veteran's widow for the backdating of her pension to the date of her husband's death in 1991. The widow had previously made two unsuccessful claims before finally succeeding with her third claim in 2001. She sought to have her pension payments backdated to the date of her husband's death. The Repatriation Commission reviewed her application and affirmed the original decision not to backdate her pension beyond the date of her successful claim.

The primary legal issue before the court was whether the Repatriation Commission had the authority to backdate the widow's pension to the date of her husband's death, despite the absence of any statutory provisions that would allow such a backdating beyond the date of the successful claim. The court had to consider whether the Commission's decision was in accordance with the relevant legislative framework, specifically the Veterans' Entitlements Act 1986.

The court found that the statutory provisions under the Veterans' Entitlements Act 1986 did not permit the backdating of the pension beyond the date of the successful claim. The court held that the Commission's decision was correct as there were no legislative provisions that would enable the pension to be backdated to the date of the veteran's death. The court confirmed that the Commission's decision was in line with the legislative framework and accordingly affirmed the decision under review.

ORDERS:
The decision under review is affirmed.

CaseChat Overview and Summary

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Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established