Introduction ......................................................................................................... [2] Service in Malaya and first claim ...................................................................... [9] War Pensions Act 1954...................................................................................... [14] Entitlement categories [15] Entitlement rules and presumptions [18] Procedures [27] Summary of subsequent applications for entitlement ................................... [31] Backdating law and policy................................................................................ [51] Summary of backdating applications.............................................................. [60] The Veterans’ Support Act ............................................................................... [67] The Act [67] VSA decisions and challenges [78] My assessment of the backdating decisions .................................................... [83] Jurisdictional decisions under the VSA ........................................................ [104] Relief ................................................................................................................. [112] Disposition........................................................................................................ [122]

EDWARDS v ATTORNEY-GENERAL [2017] NZHC 3180 [18 December 2017]

Introduction

[1] The applicant, Patrick Edwards, is 90 years old and blind. He served as a regular in the New Zealand Army from April 1959 until May 1962. He saw active service during that time in the Malayan Emergency. His eyesight had been failing from around the time of his service and by 1989 he was totally blind. Mr Edwards applied for a war disablement pension (WDP) for failing eyesight on 19 January 1966. The application was declined because his condition could not be linked to his service in the Army.

[2] Following multiple further applications, reviews and reconsiderations over the intervening years, a National Review Officer (NRO) from the Office of Veterans’ Affairs reconsidered the matter in May 2006. The NRO accepted for the first time that Mr Edwards’ loss of vision was “aggravated” by his service in Malaya – the test then applicable under the now-repealed War Pensions Act 1954. In short, the reviewer found it was possible or probable that Mr Edwards’ failing eyesight was aggravated by a cobra strike to his eyes while on patrol in Malaya. Mr Edwards’ entitlement was backdated to 2004, the date of his most recent application.

[3] There followed further applications and reviews with respect to the starting date for such entitlement. In due course, the Secretary of War Pensions agreed to backdate Mr Edwards’ entitlement to 15 June 1999. This was the date upon which the Minister of Defence changed the status of service in Malaya from routine service to service in an emergency.

[4] The underlying substantive issue in this application for judicial review is whether the entitlement should have been backdated to the date of Mr Edwards’ first application for a WDP in January 1966. In all, Mr Edwards challenges five separate decisions relating to that backdating. Three were made under the War Pensions Act
1954 (WPA) and two under its replacement, the Veterans’ Support Act 2014 (VSA). The WPA decisions were made by the Secretary (twice refusing to backdate) and the Appeal Board (upholding those refusals). The two decisions under the VSA were made by the General Manager…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Edwards v Attorney-General

Details

AGLC: Edwards v Attorney-General [2017] NZHC 3180
Case: [2017] NZHC 3180
Decision Date: 18 December 2017

CaseChat Overview and Summary

The applicant, Patrick Edwards, is challenging five decisions made by officials of the Office of Veterans' Affairs in relation to a war disablement pension (WDP) for his failing eyesight. The first three decisions were made under the War Pensions Act 1954 (WPA) and the last two under the Veterans' Support Act 2014 (VSA). Edwards applied for a WDP in 1966 for failing eyesight, but his application was declined. After multiple further applications, reviews and reconsiderations, an official in the Office of Veterans' Affairs accepted for the first time in 2006 that Edwards' loss of vision was "aggravated" by his service in Malaya. The Secretary of War Pensions subsequently backdated Edwards' entitlement to 1999, the date upon which the Minister of Defence changed the status of service in Malaya from routine service to service in an emergency. Edwards claims that the entitlement should have been backdated to the date of his first application for a WDP in 1966. The main legal issue in this case is whether the entitlement should have been backdated to the date of Edwards' first application for a WDP in 1966. The court found that there was a flaw in the reasoning of both the Secretary and the Appeal Board in their decisions not to backdate the pension to 1966. Both the Secretary and the Appeal Board had failed to properly apply the relevant provisions of the WPA, which provided a presumption that Edwards' failing eyesight was possibly or probably aggravated by his service in Malaya. The court found that the flaw in the decisions was fatal and ordered that the pension be backdated to 1966. The court also found that the officials who made the decisions under the VSA had no jurisdiction to further consider the matter. However, the court granted relief to Edwards, substituting its own decision for that of the Appeal Board. The court ordered that the pension be backdated to 1966 and directed the General Manager of Veterans' Affairs New Zealand to make an assessment of the extent of the backpayment.

Orders