C39/1997 INFORMAL CLAIMS FOR DISABILITY COMPENSATION

DATE OF ISSUE:  31 JULY 1997

INFORMAL CLAIMS FOR DISABILITY COMPENSATION

The purpose

·              restate the policy on informal claims and

·              provide information and examples on how the policy is to be applied.

This instruction has been prompted by the decision of the Federal Court on an appeal by Lucy Margaret MORROW on 14 February 1997.

Introduction

Sections 19(9) - application day, 20 and 21 of the Veterans' Entitlements Act allow for the date of effect of a pension grant or a pension increase to be based on the date of receipt of an informal claim.

An informal claim is a written document (other than an approved form) that shows a clear intention to make a claim for a pension or for an increase in pension.

These sections should be seen as merely extending the retrospectivity of pension payments by providing alternative circumstances for setting the application day in s19(9).

Morrow case

The Morrow case concerns an appeal to the Veterans' Review Board that was made more than 12 months after a decision not to grant a war widows pension.  The appeal was refused as the application was out of time.  A subsequent re-application to the Repatriation Commission was successful.  The appeal to the Federal Court sought to have the out of time appeal to the VRB  deemed an informal claim and hence, for the war widows pension to have an earlier date of effect.

Justice Branson J. of the Federal Court, in response to an argument that s.119 should be applied, stated that:

“The obligation of the Repatriation Commission to “act according to substantial justice and substantial merits of the case without regard to legal form and technicalities” cannot, in my view be called in aid to give the document a character which is not fairly open having regard to its terms and the circumstances in which it was brought in to existence.”

In short, the letter of appeal plainly stated that it was an appeal to the VRB against a decision.  It was not an application to the Repatriation Commission for a pension and it therefore was not an informal claim.

Guidelines and examples.

·              An informal claim can only be made by a person who is entitled to make a formal claim.  A letter from the friend or relative of a veteran (other than a personal legal representative) cannot be or become an informal claim.

·              An informal claim cannot be made if a formal claim cannot be made, for example if the condition has been claimed before and appeal rights still exist.

·              Neither a telephone calls nor an office record of a telephone call can constitute an informal claim.  An informal claim must be from the claimant in writing. (Note: a telephone call can be an informal claim for a service pension.)

·              A request for an approved claim form does not, in itself, constitute an informal claim.

·              A document that states that a person intends to claim or might claim or is thinking of claiming a pension or pension increase cannot be an informal claim.

·              Freedom of Information Request forms cannot be informal claims as the clearly stated purpose is merely to examine Departmental records, whether or not it also states that the underlying purpose is research for a claim.

·              A letter stating that the veteran wants to claim a veterans affairs pension lacks sufficient detail to become an informal claim.  It is not specific as to the condition being claimed or whether it is a service or disability pension.

Informal Claim Requirements

·              To be deemed an informal claim there must be:

-              an approach to the Department or Repatriation Commission in writing

-              sufficient information to identify the name and address of the veteran,

-              the purpose must be fairly plainly stated, a claim for a pension or pension increase

-              the nature of the condition claimed must be fairly plainly stated - a diagnosis or symptoms (or death) or that a condition/s have worsened.

WR MAXWELL

BRANCH HEAD

DISABILITY COMPENSATION