VICKI MURRAY and THE REPATRIATION COMMISSION

[2009] AATA 518

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 518

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No. 2007/3642

DIVISION		)
Re		VICKI MURRAY

Applicant

And THE REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Dr I Alexander, Member

Date8 July 2009  

PlaceSydney  

Decision The decision under review is affirmed. 

...................[sgd]......................

Dr I Alexander
  Member  

CATCHWORDS

Funeral benefit – death of veteran – operational service – service rendered by veteran – war-caused death – whether veteran died from terminal illness – indigent circumstances

Relevant Act/s

Veterans’ Entitlements Act 1986 – sections 98B, 99 and 100

REASONS FOR DECISION

8 July 2009   Dr Ion Alexander, Member            

Background

1.      In this proceeding, Mrs Murray seeks review of a decision of a senior delegate of the Repatriation Commission on 22 May 2007 to affirm a prior decision of the Commission to refuse her claim for the grant of a funeral benefit in respect of the death of her mother who was a veteran.

2.      The late veteran, Mrs Isobel Wright, served in the Australian Army and her eligible war service under the Veterans’ Entitlements Act (“the VE Act”) was from 9 May 1944 to 13 July 1945.

3.      Mrs Wright died in the Concord Repatriation General Hospital (CRGH) on 26 July 2006 as a result of “septic shock” associated with “Ecoli septicaemia and urinary tract infection”  and “acute obstruction of the left kidney with possible pelvicalyceal rupture”

Consideration of Legislation

4. Following the death of a veteran, the eligibility for the grant of a funeral benefit is determined by sections 98B, 99 and 100 of the VE Act.

5. Section 98B provides for the automatic grant of funeral benefits to the estate of a deceased veteran if, immediately before the veteran died, he or she was being paid a pension under Part II of the VE Act or if the veteran had been made a prisoner of war during a period of operational service.

6. On the evidence before me, Mrs Wright had no accepted service-related disability, did not receive a pension under Part II of the VE Act prior to her death nor had she rendered any operational service.

7. Therefore, I find that there is no entitlement for the grant of a benefit under section 98B of the VE Act.

8. Section 99 of the VE Act determines that the Commission may grant a funeral benefit towards the funeral expenses incurred in respect of the funeral of a veteran whose death was war-caused, who died in indigent circumstances, who died in an institution, who died after having been discharged from an institution in which the veteran was being treated for a terminal illness or who died at home while being treated for a terminal illness.

Consideration of Evidence

9.      In oral evidence, Mrs Murray indicated that prior to her admission to CRGH in July 2006 her mother had lived relatively independently in her own strata unit with regular home help and intermittent assistance from her family.

10.     In a letter dated 19 June 2007, Dr Cullen, Senior Specialist Department of Geriatric Medicine at CRGH stated that Mrs Wright was admitted to CRGH on 16 July 2006 for investigation of pain in her right leg.   The leg pain was considered to be due to L5 nerve root compression in the context of multi-level spinal canal stenosis. Mrs Wright responded well to initial treatment and was transferred to the Aged Care Rehabilitation ward for continuing care.

11.     On the evening of 24 July 2006, Mrs Wright became acutely unwell and complained of abdominal and loin pain. She developed septic shock and died two days later on 26 July 2006 despite vigorous treatment in the Intensive Care Unit.

12.     An abdominal CT scan carried out prior to her death revealed an obstructed left kidney with additional findings suggesting rupture of the left pelvicalyceal system.

13.     It is clear from the evidence before me that prior to her death, Mrs Wright was not indigent and not being treated for a terminal illness, either in an institution or at home.

14.     Furthermore, there is no evidence before me that her death was in any way related to her war service.

15. Therefore, I find that there is no entitlement for the grant of a benefit under section 99 of the VE Act

16. Section 100 provides for the grant of a funeral benefit in respect of the death of dependants of deceased veterans and on the evidence before me, this section has no application in this proceeding.

Conclusion

17. After having considered all the evidence and for reasons set out above, I find that Mrs Murray was not eligible for a grant of a funeral benefit under the VE Act in respect of the death of her mother, which means that her claim has been unsuccessful.

Decision

18.     The decision under review is affirmed.  

I certify that the eighteen (18) preceding paragraphs are a true copy of the reasons for the decision herein of
Dr I Alexander, Member.

Signed:  ................................[sgd]..........................................
  Associate

Date of Hearing  12 June and 2 July 2009
Date of Decision  8 July 2009
Appearance for the Applicant        Self-represented
Appearance for the Respondent    Tim O’Reilly, Department of Veterans’ Affairs