C06/2005 VALIDITY OF CLAIMS FOR PENSION RECEIVED AT AN OFFICE OF THE DEPARTMENT IN AUSTRALIA AFTER THE DEATH OF THE VETERAN.

Purpose

To advise Claims Assessors of action to be taken on receipt of a claim from a veteran after he or she has died.

Introduction

Recently a claim for pension was lodged with the Department after the claimant had died.  The claim had been completed and signed prior to his death and forwarded to the Department.  After posting the claim, but before it was received, the veteran died.  Legal advice is that such a claim is valid for the following reasons:

3. Under the Veterans' Entitlements Act 1986 (the Act) a claim or an application is deemed to have been made when it is received at an office of the Department in Australia.  Although some provisions seem to contradict this, the view has been affirmed in Re McGowan and Repatriation Commission (1994) 32 ALD 215.
4. A veteran may make a claim under the Act.
5. A veteran, as defined by the Act, is “a person (including a deceased person) who is ... taken to have rendered eligible war service”.

Eligibility to be paid a pension or an increase in pension

If a deceased veteran has made a valid claim the Repatriation Commission (the Commission) is required by law to determine that claim according to the prescribed procedure.

In assessing the entitlement to pension for the claimed disease and the percentage of impairment occasioned by the disease, the relevant period to be considered is the date from which the claim is made.

Where the veteran is deceased at the date the claim is made, he or she is no longer suffering any incapacity.  As a result no pension would be payable.

Action

On receipt of a claim for a disability pension from a veteran who has since died, the Claims Assessor is to accept the claim as valid and follow the required assessment procedures.  However, the assessor is to determine that as the veteran is deceased at the commencement of the assessment period, he or she is not suffering an incapacity and no disability pension can be granted.

The reason for following the procedures as normal is to assist in establishing eligibility for other entitlements including a War Widow's Pension or an Orphan's Pension.  These are determined with reference to the deceased veteran's eligibility for a disability pension.