Kenrick and Repatriation Commission [2003] AATA 109 (6 February 2003)

Last Updated: 7 February 2003

DECISION AND REASONS FOR DECISION [2003] AATA 109

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V02/947

VETERANS' APPEALS DIVISION	)
	Re	SHIRLEY KENRICK

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

Mrs Joan Dwyer, Senior Member

Date 6 February 2003

Place Melbourne

Decision

The Tribunal affirms the decision under review.

(Sgd) Joan Dwyer

Senior Member

FUNERAL BENEFITS- whether deceased died "in indigent circumstances" - whether applicant a "dependent" - meaning of "dependent child" - application of policy set out in departmental Guide - decision affirmed

PRACTICE AND PROCEDURE - non appearance of applicant - decision on the papers

Veterans' Entitlements Act 1986 ss 5F, 11(1) and 100

Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60

Re Becker and Minister for Immigration and Ethnic Affairs (1977) 1 ALD 158

REASONS FOR DECISION

6 February 2003

Mrs Joan Dwyer, Senior Member

1. This is an application for review of a decision to refuse Mrs Kenrick a grant of funeral benefit, for which provision is made in s 100 of the Veterans' Entitlements Act 1986 ("the Act"). Under s 175(4)(a) of the Act, the decision under review is a decision made by a delegate of the Repatriation Commission on 12 July 2002 and affirmed by a Senior Delegate on 9 August 2002.

2. The hearing was listed for 10.00am on Tuesday, 28 January 2003. There was no appearance for Mrs Kenrick. Mr R Douglass, an advocate with the Department of Veterans' Affairs appeared for the respondent. A member of staff of the Tribunal twice telephoned her home and spoke to a Mr Kenrick who said that Mrs Kenrick was out. On the second occasion the member of staff left a message for Mrs Kenrick to telephone the Tribunal on her return. Mr Douglass said that because Mrs Kenrick was not legally represented he did not apply under s 42A(2) of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") for the matter to be dismissed without the Tribunal proceeding to review the decision. The Tribunal therefore tentatively adjourned the matter to 2.15pm that day.

3. When the Tribunal had not heard from Mrs Kenrick by 2pm on 28 January 2003, Mr Douglass was advised that the hearing would not proceed that day. The Tribunal arranged for the District Registrar to send a letter to Mrs Kenrick which read as follows:

This matter was listed for hearing at 10.00 am today. The Tribunal records show that you were sent a notice advising you of the date of hearing on 24 December 2002.

You did not appear at the hearing. Mr R. Douglass an advocate with the Department of Veterans' Affairs appeared for the Repatriation Commission. Shortly after 10.00 am a member of staff telephoned and spoke to a Mr Kenrick on your home telephone number. He said you were out.

Two more telephone calls were made today. On the second call a message was left asking you to call the Tribunal on your return.

You did not return that call.

The Tribunal has not finalised your file. If you no longer wish to proceed with the hearing would you please sign and return the enclosed notice of withdrawal. Alternatively please advise within seven (7) days if you would like the matter to be adjourned to another hearing date or if you would like the Tribunal to decide it on the papers.

If I do not hear from you in seven (7) days the Tribunal will deliver a decision on the papers.

There was no reply to that letter. The Tribunal, as foreshadowed in its letter, has therefore prepared this decision on the papers.

4. The Tribunal had before it the documents ("the T documents") lodged pursuant to s 37 of the AAT Act and the documents attached to the respondent's Statement of Facts and Contentions which it has marked as respondent's exhibits as follows:

R1 Repatriation Commission Decision 7 May 2002 granting war widows pension and accompanying letter.

R2 Extract from Shorter Oxford English Dictionary

R3 Title Search Report

5. Section 100 of the Act provides, so far as relevant, as follows:

100 Funeral benefits - dependants of deceased veterans

(1) If:

(a) a dependant (other than a reinstated pensioner) of a deceased veteran, being:

(i) a veteran whose death was war-caused; or . . .

has died in indigent circumstances, the Commission may grant a benefit, called funeral benefit, towards the funeral expenses incurred in respect of the funeral of the dependant.

. . .

(2) A funeral benefit under this section in respect of a deceased dependant of a deceased veteran is a sum of $572 or an amount equal to the amount paid or payable in respect of the funeral of the deceased dependant, whichever is less.

. . .

6. There is no dispute about the fact that Mrs Kenrick's foster mother, Mrs Joyce Elaine Dunkley, was a dependent of a deceased veteran whose death was war-caused. Mrs Dunkley died on 13 June 2002. The only issue is whether Mrs Dunkley "died in indigent circumstances".. Unless Mrs Dunkley died in indigent circumstances, the Act does not empower the Commission or this Tribunal to grant funeral benefit towards the funeral expenses incurred in respect of the funeral of Mrs Dunkley.

7. There is no definition in the Act of the term "indigent circumstances". The T documents at pp14-18 include an extract from the internal Department of Veterans' Affairs Guide to Supplementary Benefits of September 1992 ("the Guide") indicating the circumstances which the Repatriation Commission considers constitute "indigent circumstances". Paragraph 2.5 of the Guide provides as follows:

2.5 - INDIGENT CIRCUMSTANCES

2.5.1 A veteran or a dependant may be regarded as having died in indigent circumstances, when the deceased is survived by a dependant and the assets of the estate do not exceed the liabilities, including funeral expenses, by $500.'

2.5.2 For the purposes of determining indigency in those cases:

2.5.2.1 assets of the estate will include:

* money in hand, in a bank or - other financial institution, or on loan; ..

* money due to be paid to the estate in lieu of long-service leave or furlough, or by a provident fund or under a superannuation scheme;

* shares, investments and legacies;

* any real estate, other than the home in which the person resided;

* motor vehicles, stock in trade, equipment;

* proportionate value of any property held in join tenancy or account; and

* payments in excess of $200 from an industrial policy. . . [The explanation of this term is completely meaningless. It clearly requires review.]

2.5.2.2 assets of the estate will not include:

* the value of the permanent home and contents of the permanent home of the deceased;

* a car used for private purposes;

* payments or benefits received from a Contributory Funeral Benefit Fund; and

* the amount of any funeral benefit paid under the Veterans' Entitlement Act or the Social Security Act.

2.5.2.3 Liabilities of the estate will include all debts outstanding against the estate, including reasonable funeral expenses. As the value of the deceased's home, furniture and private car is disregarded, any mortgage on that property or debt secured against these assets will not be included as a liability of the deceased.

2.5.4 Where the veteran or dependant is not survived by a dependant, the veteran or dependant will be regarded as having died in indigent circumstances if the assets of the estate are not sufficient to meet all liabilities, including funeral expenses.

2.5.4.1 assets of the estate will include:

* money in hand, in bank or other financial institution, or on loan;

* money due to be paid to the estate in lieu of long-service leave or furlough or by a provident fund or under a superannuation scheme;

* shares, investments or legacies;

* real estate, including the permanent home and contents of the permanent home of the deceased;

* motor vehicles (including a car used for private purposes), stock in trade, equipment;

* proportionate value of any property held in joint tenancy or account; and

* payments from an industrial policy where such policy forms part of the estate.

2.5.4.2 Liabilities of the estate will include all debts outstanding against the estate, including any mortgage or debt against the home or other assets and reasonable funeral expenses not covered by a Contributory Funeral Benefit Fund payment received or receivable.

8. The Tribunal is bound by the Act, but is not bound by the terms of a Guide or Handbook. However, as they express the policy of the Department, the Tribunal should have regard to such documents and for reasons of consistency will apply the policy in those documents unless it seems that it is not consistent with or, does not fully or adequately reflect the legislation. (Re Becker and Minister for Immigration and Ethnic Affairs (1977) 1 ALD 158). In Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at pp69-70, Bowen CJ and Deane J said:

In a matter such as the present where it was permissible for the decision-maker to take relevant government policy into account in making his decision, but where the Tribunal is not under a statutory duty to regard itself as being bound by that policy, the Tribunal is entitled to treat such government policy as a relevant factor in the determination of an application for review of that decision. It would be contrary to common sense to preclude the Tribunal, in its review of a decision, from paying any regard to what was a relevant and proper factor in the making of the decision itself. If the original decision-maker has properly paid regard to some general government policy in reaching his decision, the existence of that policy will plainly be a relevant factor for the Tribunal to take into account in reviewing the decision. On the other hand, the Tribunal is not, in the absence of specific statutory provision, entitled to abdicate its function of determining whether the decision made was, on the material before the Tribunal, the correct or preferable one in favour of a function of merely determining whether the decision made conformed with whatever the relevant general government policy might be.

It is not desirable to attempt to frame any general statement of the precise part which government policy should ordinarily play in the determinations of the Tribunal. That is a matter for the Tribunal itself to determine in the context of the particular case and in the light of the need for compromise, in the interests of good government, between, on the one hand, the desirability of consistency in the treatment of citizens under the law and, on the other hand, the ideal of justice in the individual case. It may be that the Tribunal concludes, on the material before it, that a particular government policy which had been applied by an administrative officer in making a decision which the Tribunal was reviewing was, in itself, unobjectionable and that the need for consistency in the particular area of administrative decision-making was such that, in the circumstances of the case, the correct or preferable decision was that which resulted from the application of that policy to the facts of the matter before it. An example of an area of decision-making where such an approach might, in the particular case, be appropriate is that involving the discretionary grant of statutory licences in circumstances where no statutory guidelines are laid down and the personal qualifications or characteristics of the prospective licensee are unimportant. Such a decision, even though it involves the application of government policy to the relevant facts, is the outcome of the independent assessment by the Tribunal of all the circumstances of the particular matter. It is to be contrasted with the uncritical application of government policy to the facts of the particular matter which represents an abdication by the Tribunal of its functions. In practice, the borderline between the two classes of decision may well be blurred and it is inevitable that there will be cases in which it is difficult to discern, from the published reasons of the Tribunal, on which side of the border the particular decision of the Tribunal lies. It is, however, desirable that, in any case where the Tribunal reaches the conclusion that the particular circumstances are such as to make the correct or preferable decision that which results from an application of some government or ministerial policy to the particular facts, the Tribunal makes it clear that it has considered the propriety of the particular policy and expressly indicates the considerations which have led it to that conclusion. This is particularly so in matters such as the review of a deportation order where no two cases will be identical and where personal liberty will commonly be involved.

9. In order to perform its function of determining whether the decision made was on the material before it is "the correct or preferable one", the Tribunal must consider the meaning of the term "indigent circumstances". It is only with an understanding of the meaning of that term, that the Tribunal will be able to decide whether the departmental policy set out in the "Guide to Supplementary Benefits" is consistent with the legislation and in other respects "unobjectionable".

10. Mr Douglass attached to his Statement of Facts and Contentions an extract from the Shorter Oxford English Dictionary Volume 1. It shows the relevant meaning of "indigent" as follows:

1. Lacking in what is requisite; wanting, deficient . . . Lacking the necessaries of life; needy, poor ME. . . .

11. The Tribunal also looked at the Macquarie Dictionary and Random House Dictionary definitions of the word "indigent" and at the Oxford Thesaurus. The Thesaurus suggested that words having the same or a similar meaning to "indigent" were:

indigent adj. needy, poor, destitute, poverty-stricken, in want, penniless, impoverished, penurious, impecunious, necessitous, Colloq (dead or flat) broke, stony-broke, hard-up, short, on one's uppers. . . .

12. The Macquarie and Random House dictionaries, so far as relevant, defined the word "indigent" as follows:

Macquarie - lacking the necessities of life.

Random House - lacking food, clothing and other necessities of life because of poverty needy, poor, impoverished, 2. destitute

13. The only information before the Tribunal about Mrs Dunkley's financial position, as at the date of her death, is that she was in receipt of war widow's pension of $452.60 per fortnight, which included pharmaceutical allowance payments. Mrs Dunkley had been in receipt of that payment only since 16 May 2002. The decision to pay her a war widow's pension was made on 7 May 2002, with effect from 23 January 2002. There is no evidence before the Tribunal as to the amount of the arrears payment which was paid to Mrs Dunkley, nor as to when it was received. If pension was payable at $452.60 per fortnight, the arrears would have been approximately $3,600.

14. The claim completed by Mrs Kenrick stated that when Mrs Dunkley died the total value of money in accounts in her name was $1,040 (Tdocs p5), and the cost of the funeral was $5,021 (Tdocs p9). A title search shows that Mrs Dunkley was the registered proprietor of her home at Reservoir (R3), although Mrs Kenrick wrote in a letter to the Tribunal dated 4 September 2002 (Tdocs p1):

OUR house is all I have - again my problem, not yours. Why should I have to consider selling it because Mum shared ownership. Why should she be punished now for striving all her life to own a house.

15. There is no evidence that Mrs Dunkley died "in indigent circumstances". There is no evidence that she was unable to pay for the necessaries of life or was "lacking in what is requisite", or was "destitute" or "impoverished" or "penniless" or "lacking food, clothing and other requisites of life because of poverty". Mrs Dunkley owned an unencumbered house and had no debts other than funeral expenses.

16. Thus, if this matter were to be decided solely on the words used in s 100 of the Act, the claim for a funeral benefit would fail. However it is appropriate to consider the policy set out in the extract from the Guide to Supplementary Benefits. It is apparent that a policy decision has been made to apply different tests for determining whether a person "died in indigent circumstances", depending on whether or not the person is survived by a dependent. The significant difference is that where the deceased was survived by a dependent, the value of the home in which the person resided is disregarded. If the person who died is not survived by a dependent, the assets are taken to include the permanent home of the deceased.. Similarly, there has been a policy decision to accept that a person who is survived by a dependent, "died in indigent circumstances" if the assets of the estate do not exceed the liabilities including funeral expenses, by $5000. That may be more generous than the legislation requires, but is perhaps appropriate in the context of legislation of a beneficial nature. Where the person was not survived by a dependent, the test in the Guide is probably more consistent with the Act. It states that the person will be regarded as having "died in indigent circumstances", if the assets of the estate are not "sufficient to meet all liabilities, including funeral expenses".

17. The term "dependent" is defined in s 11(1) of the Act as follows:

11 Dependants

(1) In this Act, unless the contrary intention appears:

dependant, in relation to a veteran (including a veteran who has died), means:

(a) the partner; or

(b) a non-illness separated spouse; or

(c) a widow or widower (other than a widow or a widower who marries or re-marries); or

(ca) a reinstated pensioner; or

(d) a child;

of the veteran.

18. Section 5F(1) of the Act contains a definition of "child" as follows:

5F Family relationships definitions - children

(1) In this Act, unless the contrary intention appears:

child means:

(a) a person who has not turned 16; or

(b) a person who:

(i) has turned 16 but has not turned 25; and

(ii) is receiving full-time education at a school, college or university;

. . .

On that definition Mrs Kenrick cannot be regarded as a "child". Thus Mrs Dunkley was not survived by a "dependent", as that term is used in the Act.

19. On the material before the Tribunal, Mrs Dunkley died with no debts other than funeral expenses. Although they exceeded her ready cash by $4000, she was also the sole registered proprietor of an unencumbered home. In those circumstances I cannot find that she "died in indigent circumstances".

20. The Guide provides a different test as to whether or not a person "died in indigent circumstances", depending on whether or not the person was survived by a dependent. The test is applied in a somewhat generous way when applied to persons who died leaving a dependent. It is less generous, but still quite consistent with the Act, when applied to a person who is not survived by a dependent.

21. Mrs Dunkley was not survived by a "dependent" as defined in the Act. Thus, the test applicable to her is the stricter test, which, as I have said, is consistent with the Act. While there could perhaps be circumstances where the tests in the Guide may be shown not to be a fair application of the Act, I can see nothing in the facts of this matter which indicates that the Guide does not provide an appropriate test as to whether or not a person "died in indigent circumstances". As I have already said if the Guide were not used, I would not find, on the evidence, that Mrs Dunkley "died in indigent circumstances".

22. I can see nothing "objectionable" in the Guide's treatment of the issue, when an application for funeral benefit is made in respect of someone who is not survived by a dependent. If the assets of the estate are not sufficient to meet all liabilities, including funeral expenses, the person is regarded as having "died in indigent circumstances".. If the estate can meet all liabilities including funeral expenses, that test is not satisfied.

23. The decision under review will be affirmed.

I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs Joan Dwyer, Senior Member

Signed: Grace Carney

Personal Assistant

Date/s of Hearing 28 January 2003

Date of Decision 6 February 2003

Departmental Advocate Mr R Douglass