Symons and Repatriation Commission

[2007] AATA 1267

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1267

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V 200600955

VETERANS’       AFFAIRS       DIVISION		)
Re		PETER FREDERICK VICTOR SYMONS

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr Egon Fice, Member

Date30 April 2007

PlaceMelbourne

Decision The Tribunal affirms the decision under review.

(sgd) Egon Fice

Member

VETERANS’ AFFAIRS - Commonwealth veteran – pharmaceutical benefits card – service in cadet corps – qualifying service – continuous full-time service – War Certificate A

Veterans’ Entitlements Act 1986

REASONS FOR DECISION

30 April 2007  Mr Egon Fice, Member

1.      On 25 August 2006 Mr Peter Frederick Victor Symons lodged a claim with the Repatriation Commission (the Commission) for a Repatriation Pharmaceutical Benefits Card (the Card).  On 30 August 2006 a delegate of the Commission decided that Mr Symons was not a Commonwealth veteran within the meaning of the Veterans’ Entitlement Act 1986 (the Act) and was therefore not entitled to the Card.

2.      A claimant for the Card may, if dissatisfied with the decision of the Commission, request the Commission to review the decision (s 93Z of the Act).  Mr Symons made such a request.  On 8 September 2006 a service pension review officer, acting as a delegate of the Commission, upheld the Commission’s initial decision.  Mr Symons now seeks a review of the Commission decision by the Administrative Appeals Tribunal (the Tribunal) pursuant to s 175(2AAAA) of the Act.

3.      The only issue before the Tribunal is whether Mr Symons’ previous military service in the United Kingdom is such that he satisfies the definition of Commonwealth veteran in s 5C(1) of the Act.

RELEVANT FACTS

4.        Mr Symons was born on 6 June 1928.  He joined the Westminster City School at Palace Street, London in September 1936 and was a student at that school until Easter 1945.  Between 3 September 1939 and 29 October 1945 he served with what he described as Queen’s Westminster Pre Service Unit (the Pre Service Unit).

5.        After leaving school at Easter 1945, Mr Symons trained as an apprentice motor mechanic.  On 7 November 1946 he was called up for military service and joined the Territorial Army.  He was discharged from the Army on 24 March 1949.  The Queen’s Westminster Regiment was a regiment of the British Territorial Army.

6.        Service with the Pre Service Unit was on a voluntary basis.  The unit was also called the Queen’s Westminster Cadet Corps.  According to Mr Symons, as a member of the unit he was bound by military rules and failure to comply with a command would have resulted in his dismissal.  The Pre Service Unit was commanded by a member of staff at the Westminster City School.  He was not a member of the permanent defence forces.  Mr Symons said that the service he rendered could involve him being away from school for several days at a time.  It included manoeuvres and exercises and annual training camps.  He continued his service with the Pre Service Unit after he left school and began training as an apprentice motor mechanic.  From time to time, members of the Pre Service Unit were called out to assist in cleaning up debris following bombing raids on London.  His service with the Pre Service Unit was unpaid and his employer released him for duty when he was required to attend unit training or assisting in the clean up following bombing raids.  As a member of the Pre Service Unit he could not be ordered overseas or to participate in active combat.  His service with the Pre Service Unit enabled him to qualify for a War Certificate A which was awarded on 29 June 1944.

THE LEGISLATIVE SCHEME

7.        The eligibility criteria for the Card are set out in s 93M of the Act which provides:

(1)       A Commonwealth veteran, an allied veteran or an allied mariner is eligible for a pharmaceutical benefits card under this Part if the veteran or mariner:

(a)is 70 years of age or older; and

(b)has rendered qualifying service during a period covered by paragraph (a) or (b) of the definition of period of hostilities in subsection 5B(1); and

(c)has been an Australian resident for a continuous period of at least 10 years.

Note 1:  For qualifying service see section 7A and Division II of Part III.

Note 2:  For Australian resident see section 5G.

…

8.      The first criterion which Mr Symons must meet is the definition of Commonwealth Veteran, which is set out in s 5C of the Act.  It defines a Commonwealth Veteran in the following way:

Commonwealth veteran means a person who rendered continuous full‑time service as a member of:

(a)       the naval, military or air forces; or

(b)       the nursing or auxiliary services of the naval, military or air forces; or

(c)       the women’s branch of the naval, military or air forces;

of a Commonwealth country during a period of hostilities.

9.      To fall within the definition of Commonwealth veteran, the claimant must have rendered continuous full time service during a period of hostilities.  As far as it is relevant to Mr Symons case, the period of hostilities described under s 5B of the Act is World War 2 and the period is stated to be between 3 September 1939 and 29 October 1945 inclusive. 

10.     One of the eligibility criteria in s 93M is that the person has rendered qualifying service during a period of hostilities.  Qualifying service for the purposes of assessing eligibility for the Pharmaceutical Benefits Card is set out in s 7A of the Act.  In so far as it is relevant, it provides that:

(1)       For the purposes of Parts III and VA and sections 85 and 118V, a person has rendered qualifying service:

…

(b)if, during a period of hostilities, the person has, as a member of the defence force established by a Commonwealth country, rendered, in connection with war or war‑like operations in which the Naval, Military or Air Forces of Australia were engaged:

(i)        service, in an area outside that country, at a time when the person incurred danger from hostile forces of the enemy in that area; or

(ii)       service within that country, being service in respect of which the person has been awarded, or has become eligible to be awarded, a campaign medal; or

…

(2)       In subparagraphs (1)(b)(ii) and (1)(h)(ii):

campaign medal, in relation to service during the period of World War 2 from its commencement to and including 29 October 1945, means:

(a)any of the following medals:

(i)        1939‑45 Star;

(ii)       Atlantic Star;

(iii)       Air Crew Europe Star;

(iv)      Africa Star;

(v)       Pacific Star;

(vi)      Burma Star;

(vii)     Italy Star;

(viii)     France and Germany Star; or

(b)any other medal declared by the regulations to be a campaign medal in relation to service during that period.

ELIGIBILITY

11.             To be eligible for the Card, Mr Symons must meet all of the eligibility criteria for the issue of that card under the Pharmaceutical Benefits Scheme.  There is no dispute that Mr Symons is 70 years of age or older and that he has been an Australian resident for a continuous period of at least ten years.  However, Mr Symons would appear to have difficulty satisfying the definition of Commonwealth veteran.  The first issue is whether the Pre Service Unit can be said to be part of the naval, military or air forces…of a Commonwealth country.  My concern is that, although described as a Pre Service Unit by Mr Symons, the unit was a Cadet Corps.  This is evident from a reference written by the officer commanding the Pre Service Unit in 1946 which is written on the letterhead of Queen’s Westminster Cadet Corps.  The address on the letterhead is the Westminster City School in London.  Cadet Corps were not considered to be part of the naval, military or air forces of the United Kingdom.  Associate Professor J McCarthy, who is a Visiting Fellow at the Australian Defence Force Academy, provided evidence that the Queen’s Westminster Cadet Corps, while affiliated with the Queen’s Westminster Regiment, did not form part of the British Army’s Order of Battle.  He also said that it was doubtful whether the cadet force in general was subjected to formal military discipline.  Members could leave if they pleased, did not live in barracks or an authorised billet, and could not be charged under any military discipline act or code of conduct.  Even if I am wrong about that, to fall within the definition of Commonwealth veteran, Mr Symons needs to have rendered continuous full time service.  His own description of the activities in which he participated while a member of the Pre Service Unit makes it quite clear that the service was not full time in the sense that every working day, save for any leave entitlements, was devoted to those activities. 

12.             Because he does not satisfy the definition of a Commonwealth veteran for the purposes of the Act, Mr Symons’ claim must necessary fail.  However, even if I am wrong about that, there are other problems which would exclude Mr Symons.

13.             If the Pre Service Unit did form part of the naval, military or air force of the United Kingdom during a period of hostilities as defined in the Act, in order to qualify for the Card, Mr Symons must have rendered qualifying service.  As can be seen from the definition of qualifying service in s 7A of the Act, Mr Symons must have engaged in service in connection with war or war-like operations at a time where he incurred danger from hostile forces of the enemy in the area that he served.  Further, that danger must have been incurred in connection with war or war-like operations in which the naval, military or air forces of Australia were engaged.  It should be reasonably clear that because members of the Pre Service Unit could not be posted to active service because they were below the legal age to be subjected to active service (Associate Professor McCarthy’s evidence); it is not possible for Mr Symons to meet the relevant part of the definition dealing with qualifying service.  Although he may have been exposed to some danger when helping to clean up after bombing raids on London, that activity could not properly be described as rendering service in connection with war or war-like operations in which the naval, military or air forces of Australia were engaged. 

14.             Furthermore, although Mr Symons was awarded a War Certificate A as a result of his service in the Pre Service Unit, that is not a campaign medal as defined in s 7a(2) of the Act.  However, Mr Symons submitted that men in the United Kingdom who were conscripted into the British Army on or before 10 October 1945 were eligible to receive the 1939-1945 Star.  This was just 19 days before the war ended.  Therefore, according to Mr Symons, as he served more than 19 days as a full time member of the Queen’s Westminster Regiment, he should qualify.  Unfortunately for Mr Symons, his service with the British Army, although well in excess of 19 days, does not fall within the qualifying service definition.  It was service rendered after the end of the war and it did not make him eligible to receive the 1939-1945 Star.

CONCLUSION

15.             Despite having rendered valuable service with the Pre Service Unit during a period of hostilities as defined under the Act, Mr Symons does not satisfy the definition of a Commonwealth veteran in the Act.  His service with the Pre Service Unit was not full time service with the naval, military or air force of the United Kingdom, thereby excluding that service from the definition.  Furthermore, the service which he rendered as a member of the Pre Service Unit does not satisfy the definition of qualifying service in the Act.  Unfortunately for Mr Symons, he is not eligible for the Pharmaceutical Benefits Card.  Therefore, the decision made by the Commission on 8 December 2006 must be affirmed.

I certify that the fifteen [15] preceding paragraphs are a true copy of the reasons for the decision herein of:

Mr Egon Fice

Signed: Ursula Noyé

Clerk

Date/s of Hearing:  9 March 2007
Date of Decision:  30 April 2007
Advocate for the Applicant:         Self-represented
Advocate for the Respondent:      Mr R. Douglass, Department of Veterans’ Affairs