AN02 Reasons for Decision in Restoration of War Widows' Pensions

Advisory from Disability Compensation Branch

No 2 of 2002

This is an advisory note only. It is not a Repatriation Commission Guideline or a Departmental Instruction.   The advice is not intended to conflict with the proper application of the Veterans' Entitlements Act 1986 or the judgements of the Courts.  It may be subject to change as a result of cases at the AAT or interpretation by the Courts of the legislation.  Nevertheless it represents a considered view that should be taken into account by all delegates.

REASONS FOR DECISION IN RESTORATION OF WAR WIDOWS' PENSIONS

National Office provided a draft of the letter that should be used, with suitable additions and modifications for each circumstance, for accepted and non-accepted claims for reinstatement of a war widow's pension.

The additions and modifications are determined by the particular facts of the case.

Statement of Facts

Every sample rejection letter has to have appropriate information added.  The additions in every case are the facts that the decision-maker relied on when making a determination and a clear statement of the reason that the claim was not accepted.

These letters constitute the decision being made and are subject to an appeal to the Administrative Appeals Tribunal (AAT).   The AAT is likely to be critical of decisions that do not allow an applicant or a tribunal to understand the reasons for decision.

It is apparent from some letters that the reasons for decision are inadequate and any Court would determine that the reasons were insufficient for an ordinary person to understand why that decision was made.

The minimum requirements

Before all else you must be satisfied as to the identity of the claimant.

The minimum that can be said to constitute sufficient reasoning to make the decision a legal one means that there must be statement of the evidence that you used.

There must be statement whether that evidence was sufficient for you to be satisfied on the balance of probabilities that

• The claimant was eligible for and receiving a War Widow's pension on or before 28 May 1984; and
• War Widow's pension was granted under a repealed Act because the claimant was a widow of a deceased member of the Forces or mariner as defined in those Acts; and
• That the claimant had married or re-married on or before 28 May 1984; and
• The war widow's pension was cancelled only because she married or re-married on or before 28 May 1984.

What materials might be available for a decision-maker to consider?

If, after investigation, there is still insufficient evidence for all of the criteria to be met then the claimant is not a "reinstated pensioner". Self-serving statements from a claimant would of themselves be insufficient without more evidence. This is not an absolute reflection on the veracity of what is being said or written by the claimant. It is just prudent decision-making to corroborate such statements.

In addition to checking archived Departmental records, including Veterans' Children Education Scheme files, corroboration might come from a variety of sources.

The same is true when checking the claimant' statements about the deceased veteran's circumstances (dates and places of birth, service, marriage, death) and her remarriage details against documentary sources.

If desirable a face to face interview should be arranged.

Where death during World War 2 remains an issue, details of men and women who died whilst serving in the forces of Commonwealth countries from 1914 to 1921 and from 1939 to 1947 can be found at the Commonwealth War Graves Commission website at http://www.cwgc.org.uk/

Did she seek assistance from the AIF Canteens Funds Trust, the Services Canteens Trust Fund, and the Soldiers' Children Education Board for the education of her children (National Archives of Australia holds records from the pre-VCES schemes)?

If the only outstanding matter is whether the claimant had been a war widow or not, asking for any paperwork held by her or others which could provide pointers to payment of the pension.  This could include

• old bank passbooks,
• copies of old tax returns,
• accountant's correspondence,
• old Social Security correspondence,
• pre-1957 Post Office passbooks for war widow's pension payment,
• details about children's education through VCES or other Commonwealth schemes.

The claimant might also be able to give you contact details of people who could vouch for her being a war widow in the past, including,

• past GPs and specialists,
• Ministers of religion,
• the War Widows' Guild of Australia,
• Legacy.

Some investigatory options exist to pursue through the National Archives of Australia if verification of previous status is an issue. There are old DVA client files/index cards, which might hold details of grants of a war widow's pension and include:

• Beneficiary or "B" files that might contain details of WW pension grant,
• WW2 New Guinea Civilian files where WW pension might have been granted under a repealed Act, and
• Index cards, which might record details of war widow, pension grants.

Any Paper Accession Lists held by the NAA (or your Registry) for a particular Series should be checked beforehand as they might contain claimants' names.  State Office Registries should be able to extract relevant DVA files from National Archives of Australia (NAA), especially where identification is confirmed from a Paper Accession List.

NAA contact details can be found at http://www.naa.gov.au/about-us/contact/

Before you make a decision to reject

The Repatriation Commission wants every applicant to have every chance to establish the case for re-instatement.  Where a decision is to be made because of insufficient material the applicant should be offered a chance to make a further written statement about the circumstances of the payment.

The sort of further material that you might ask for

If you have very little to go on then ask the applicant if she can provide any statements from friends or family.  If not, then what about writing down what she remembers of receiving the payment or any of the ancillary services or benefits

.

If she remarried after 1950 did she receive a payment as a gratuity when her war widow's pension was cancelled?  Does she remember how it was paid to her or how much it was?

The gratuity payment

In 1931 (during the depression) and as a result of the Financial Emergency Act 1931, the 1914 provision was restored and benefits were again cancelled immediately upon remarriage.

In 1950 the Australian Soldiers' Repatriation Act 1950 was amended to provide for the payment of a remarriage gratuity (lump sum) to remarried war widows.  This was equivalent to 26 payments or one year of war widow's pension.

This means that anyone remarried between 1931 and 1950 would never have been eligible for a gratuity payment.  The non-receipt of this payment might be an indication that no war widow's pension was in payment.  However, there are bound to be cases where a war widow's pension was paid and the widow claims that she never received the gratuity payment she was entitled to.

In every case where the gratuity is claimed a separate investigation is to take place.  That matter is to be determined after the decision on restoration and is to be treated as a separate issue.

National Office is gathering materials to show that it was not possible to have missed a proper payment of gratuity if the Repatriation Department was notified of the remarriage of a war widow.

The rejection letter

A letter is attached that contains examples of some of the facts that might be available and some the reasons that might be given for your decision in light of those facts.

John R Douglas

Director

Policy Eligibility and Research

11 January 2002

Attachment A

Dear Mrs Kassiloff,

I received your “Claim for Pension by a War Widow who remarried prior to 1984”, on 19 October 2001.

As you are aware the Government in its 2000 – 2001 Budget initiative, decided to restore the War Widow's pensions to widows who remarried on or before 28 May 1984 and consequently had their pension cancelled.

The criteria for restoration, all of which must be met are:

• you must have been eligible for and receiving a War Widow's pension on or before 28 May 1984; and
• the War Widow's pension must have been granted under one of the repealed Acts because you were a widow of a deceased member of the Forces as defined in those Acts or a widow of a deceased Australian Mariner as defined; and
• you must have been married or re-married on or before

28 May 1984; and

• Your pension must have been cancelled, under the repealed Act, only because you married or re-married on or before 28 May 1984.

“Repealed Act” means an Act specified in Part I, II, III, IV or V of Schedule 1 of the Veterans' Entitlement Act 1986 or the Seamen's War Pensions and Allowances Act 1940.

If these four criteria are met I must make a verification determination that you are a “reinstated pensioner” for the purpose of restoring your War Widow's pension.

You have provided me with,

• Your claim form and its information
• the marriage certificate for you an d the late Mr Hartwell
• the marriage certificate  for you and Mr Kassiloff
• proof of the death of your first husband, and a statement about the payment of your war widow's pension from 1946 to 1950.

In addition I have recovered records held by the Department that show,

• The date of death and cause of death of your veteran/ first husband.

I have investigated your claim and find I am unable to be satisfied that you were in receipt of a War Widow's pension on or before 28 May 1984.

There is insufficient material available to me to allow me to verify that you are a reinstated pensioner.

• The material available to me indicates that you never applied for a war widow's pension after the death of your first husband.

• There is nothing to indicate that your husband's death was war caused.

• There is a decision made in 1949 that your first husband's death was not war caused.

• You remarried before the death of your first husband.

• You were divorced from your first husband.

Unfortunately, for the reasons given above, I am unable to determine that you are a reinstated pensioner and therefore you are ineligible for the restoration of the War Widow's Pension under the provisions of the Veterans' Entitlements Act 1986.

Right of Appeal

If you believe that this decision is incorrect in terms of the legislation, you have formal rights of appeal.

Your right of appeal is to the Administrative Appeals Tribunal. An application to the Administrative Appeals Tribunal must be lodged within three months of the date of this letter. The three month period may be extended upon application to the Tribunal.  The address of the Tribunal is:

Deputy Registrar
Administrative Appeals Tribunal
GPO Box 9955

CAPITAL CITY  STATE  POSTCODE

If you would like further information, please call me on xxxxxxxx.

Yours sincerely

Delegate of the Repatriation Commission

    January 2002