Keelan v General Manager of Veterans' Affairs New Zealand [2016] NZHC 1869 (12 August 2016)

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UNDER	the War Pensions Act 1954 and the Veterans' Support Act 2014
IN THE MATTER	of a claim by a group of veterans for declarations of their rights under the War Pensions Act 1954 and the Veterans' Support Act 2014
IN THE MATTER	of various decisions made under s 15E of the War Pensions Act 1954 by a national review officer in respect of each veteran between 10 December 2014 and 27 February 2015
BETWEEN	CAMPBELL KEELAN First Plaintiff
AND	RODGER REGINALD HYLAND Second Plaintiff
AND	WALTER HORTON TE UA Third Plaintiff
AND	IWIMANENE TUAITI Fourth Plaintiff
AND	WILLIAM WILSON Fifth Plaintiff
AND	NEHE ROPATA KARAURIA Sixth Plaintiff
AND	COLIN IVAN RICKARD Seventh Plaintiff
AND	RIKI HONE WAIPAPA GOLDSMITH Eighth Plaintiff
AND	THE GENERAL MANAGER OF VETERANS' AFFAIRS NEW ZEALAND Defendant

[1] The War Pensions Act 1954 provided a scheme for the payment of pensions to members of the Armed Forces who suffered injury, illness or disability, or an aggravation of one of those conditions, because of their service.¹The Act mandated

favour of claimants including absolute physical and mental fitness at the time of enlisting, and a relatively low causation threshold which, once met, established a presumption in favour of the claim.

[2] The seven plaintiffs are all veterans of the Vietnam War. The last to be discharged was the Reverend Te Ua, in 1996. All the plaintiffs have made claims for war disablement pensions, and all have had those claims accepted in part. As a consequence of the claims that have been accepted, all are recipients of the maximum level of pension available. However, all have also had claims for other conditions and illnesses rejected. The plaintiffs consider these negative outcomes are due to an incorrect application of the principles and presumptions contained in the War Pensions Act.

[3] Reverend Te Ua brought proceedings challenging a series of decisions made in relation to him. He had mixed success, but in one respect at least this Court considered the defendant may have been wrongly applying the presumptions and the

_{principle of benevolence to cases involving either a conflict of
evidence, or limited}

¹There are two pensions under the War Pensions Act – the Veterans’ Pension and the War Disablement Pension. The Veterans’ Pension is paid in lieu of New Zealand superannuation. The War Disablement Pension is additional. It is this pension that is the subject of this proceeding.

evidence. Whata J set out a series of propositions concerning how the statutory presumptions worked in relation to these situations.³The plaintiffs have styled these “the Te Ua principles”.

[4] Subsequent to Whata J’s decision, the plaintiffs sought reconsideration of many of their declined claims. The reconsideration applications were advanced on the basis that there should be a reconsideration whenever the initial decision had been taken in breach of the Te Ua principles. Some reconsideration applications have succeeded, and some not.

[5] The plaintiffs seek to revisit these unsuccessful reconsideration decisions in a somewhat unorthodox way. Rather than a judicial review of any particular decision, certain reasons given by the defendant on the reconsiderations are singled out. Those reasons are then the subject of an application for a declaration either that the reason is incorrect or that the opposite principle is correct. The proceedings now seek nine declarations of varying specificity.

[6] There is a second unorthodox (in my view) aspect to the proceeding. All the decisions that underlie the declarations were taken under the War Pensions Act. That Act is now repealed, and any fresh decisions must be taken under the Veterans’ Support Act 2014. Recognising this, and not wanting to lose what is seen as a hard won success in the Te Ua case, the declarations are all worded so that the proposition they would establish is said to apply to the new differently structured and differently worded Veterans’ Support Act 2014.

A veteran is not required to provide evidence of a “definitive” diagnosis and “demonstrate associated disablement” before the decision-maker can proceed to consider causation or aggravation by qualifying service under (a) the War Pensions Act 1954 or (b) the Veterans Support Act 2014 under scheme 1.

⁴The scheme 1 reference at the end reflects the fact there are two schemes under the Veterans’ Support Act. The dividing line is whether service occurred prior to or after 1 April 1974. The plaintiffs are all scheme 1 veterans. I have re-labelled the proposed declarations, submitted with letter references, with numbers.

[8] The absence of a “definitive diagnosis” of the claimant’s condition had been given in a reconsideration as a reason for declining the application. The plaintiffs ask the Court not only to say that was wrong under the War Pensions Act, but also to declare it would equally be wrong under the Veterans’ Support Act 2014. The Court does not have before it any decision made under the new Act, but is asked to apply the veteran’s factual situation to the new Act and assess whether the same reasoning would still be wrong.

[9] There are several complications identified by the defendant with what the plaintiffs seek. The defendant (Veterans’ Affairs New Zealand – Vanz) submits that collectively these complications mean the Court, as a matter of discretion, should not engage with the proceeding. This is not advanced as a jurisdictional challenge, but as the appropriate exercise of discretion.

[10] The first issue is the repeal of the War Pensions Act. It is common ground that all decisions from now on in relation to any of the plaintiffs will be made under the Veterans’ Support Act. Vanz submits there is no utility in making declarations about an Act that is now repealed and will not apply to any future decision. Mr Taylor replies on behalf of the plaintiffs that a declaration that certain approaches were in error may inform other veterans of their situation, and encourage them to seek reconsiderations.

[11] Next, the challenged decisions are submitted to be of no practical utility to the claimants. All are at their maximum pension entitlement. Veterans with multiple conditions have a figure allocated to each condition. The total of these allocations may exceed 100 per cent, but the person is capped at 100 per cent.⁵The plaintiffs’ response, as I understand it, is that there is utility in “banking” (not in any sense a pejorative term) extra ratings as some conditions can improve or be reassessed. Vanz disputes this is a practical reality for any of the present plaintiffs. The plaintiffs also

[12] Third, the choice of a Declaratory Judgments Act procedure rather than the usual judicial review process means the Court is not properly informed about each case and is unable to assess the correctness of decisions in relation to individual claimants. In terms of available information, there is an agreed statement of facts about each claimant which sets out what conditions have been the subject of claims, and what the outcomes were. The Court also has a medical file in relation to each plaintiff although Vanz says the information is not complete. The file provided includes only documents referred to in the “challenged” reconsideration. Vanz notes each plaintiff ’s complete file contains extensive material on their service history, service medical reports, specialist reports, all previous claims for conditions and any decisions made in relation to those, as well as past assessments of the percentage of impairment.

[13] Related to this is a submission that extracting single reasons from a decision and basing a declaration around them is artificial. It does not allow a proper consideration of the plaintiff’s case and the whole decision. Even if a particular reason is incorrect or poorly worded, it does not mean the particular decision was incorrect. It is further submitted that a consequence of the plaintiffs’ approach is that the declarations exhibit a generality that makes them of no use for the future (or the past).

[14] The plaintiffs respond that the agreed facts, and the reconsideration documentation, provide sufficient facts given the general nature of the declarations sought. That is all that is needed.

[15] The next stumbling block is that there is no decision at all before the Court that has been taken under the Veterans’ Support Act. Vanz submits it is inappropriate for a court to provide advisory opinions on how Vanz should deal with a hypothetical case should such a case come before it.

[16] Vanz further submits that the scheme and structure of the new Act is now very different. A new approach to veterans’ needs is signalled by the Act with greater emphasis on rehabilitation, rather than just monetary assistance. The administrative processes are also different and the Court should not be providing

general anticipatory comment on how Vanz should carry out its functions. The Court’s role is to review when required. An affidavit filed by the General Manager of Vanz notes the extensive restructuring of Vanz and the decision making process that has occurred over the last two years. It is said that the environment is now very different from that which existed under the War Pensions Act. The Veterans’ Support Act follows from an extensive review by the Law Commission, and is intended to be a new scheme and approach.

[17] Mr Taylor’s general response is that the new Act is not particularly different from the old, and was never intended to change the basic approach such as the benevolent approach to claims. Various statements made during the Act’s passage through the House are said to confirm this. Further, although worded differently, the concepts are the same and it can accordingly be shown the Te Ua principles are of equal relevance to the new Act. The first two declarations are designed to give effect to this submission and are of crucial importance to the plaintiffs who do not wish others to have to go through the same battle.

[18] It is made plain in Mandic v Cornwall Park Trust Board that there is no requirement for an existing dispute between the parties before the processes of the Declaratory Judgments Act 1908 can be invoked.⁶The fact then that the plaintiffs are at their maximum pension, and have not been the subject of any decisions under the Veterans’ Support Act is not therefore a jurisdictional impediment to the proceeding. I also generally agree with Mr Taylor’s proposition that care should be

taken before a factor that was of relevance to a particular case is elevated to a principle that should influence all cases. Mr Taylor submitted some of Vanz’s opposition fell into this error – for example, objection that a situation is hypothetical and therefore should not be considered must confront the fact that declarations can be forward looking and there need not be a lis. As noted by the Chief Justice in Mandic, s 9 of the Act says a declaration may be given in respect of an act that has

⁶Mandic v Cornwall Park Trust Board [2011] NZSC 135, [2012] 2 NZLR 194 at [5]–[9] per

[19] The defendant advanced four “principles” that it is submitted will normally see a court decline to grant relief:

(a) an abstract question in anticipation of actual controversy; (b) a mixed question of law and fact;

[20] The error I see in this proposition is the use of the word ‘principle’. If it is simply said that these are factors that have been identified as relevant, or even have been decisive in a particular case, they then represent uncontroversial statements. As cited by the defendant, Lord Woolf’s text on declaratory judgments refers to the hypothetical nature of an issue as a “most compelling argument” for refusing

[21] I propose to address each of the declarations sought but with the caveat that they do exhibit many of these features that have seen courts decline relief. I am particularly concerned about the declarations that seek forward interpretations of the Veterans’ Support Act 2014. There are four reasons for this.

[22] First, it is not the role of the Court to prepare a blueprint or a procedures manual for how an Act should be implemented. A statute says who is responsible for its administration, and those charged with that task are entitled to have the opportunity to develop an approach. The Court’s role is as a review mechanism to ensure, when there is challenge, that the decision complies with the statutory scheme and represents fair practice.

[23] Second, those charged with the administration of these claims have experience and expertise the Court does not. Pre-empting the application of that

[24] Third, and related to these points, declarations about the meaning of the terms or provisions in the Act should generally not take place in a vacuum. That is why an existing dispute, though not essential, is of value as it helps to provide context, and to provide identifiable limits to the Court’s observations. Further, hence there is no actual decision for a Court to consider, even for context.

[25] Fourth, and this will be explained more fully, the terms and structure of the new Act are not the same as the old. The plaintiffs say the new Act uses terms that have a conceptual and functional equivalence to the War Pensions Act so as to allow transfer of the “Te Ua principles”. However, the reality is that this can only be done by reading in words and concepts that are not there.

[26] I do accept Mr Taylor’s point that allegations of “hypothetical” can be overstated here. While the seven plaintiffs do not have live issues under the new Act, they represent seven reasonably complete case studies that provide an informed basis for analysis. However, for the reason given earlier, my general approach is that the preferable route is to allow those charged with the administration of the Act to have first go at how the new Act should be applied to such cases.

The principles stated by Whata J in Te Ua v Secretary of War Pensions [2014] NZHC 1050 at [114]–[118] apply also to ss 14 and 15 of the Veterans’ Support Act 2014 with all necessary adjustments of language for the different wording used in the Veterans’ Support Act 2014, scheme 1.

[28] There are several difficulties with this. The first is that the decision in Te Ua is being given a significance that is inappropriate. The so-called Te Ua principles are first and foremost a summary of the statutory provisions. The genesis for their expression was a conclusion that the Secretary for Veterans’ Affairs may have had a policy requiring corroboration if all that was otherwise available was the veteran’s own statement. Whata J pointed out that such an approach was consistent neither with the benevolent approach mandated by the War Pensions Act, nor the presumptions contained within the Act. In the course of elaborating on this, Whata J

defined the statutory terms “satisfied” and “reasonable evidence” as they are used in the War Pensions Act.

[29] It is not generally appropriate for a court of the same jurisdiction to make declarations elevating the outcome of another case in the jurisdiction into a collection of defining principles. Subsequent cases, by means of repeated application, or appeal courts by means of endorsement, may achieve this, but it is not done by the device of declarations within the same jurisdiction. It is also the case that, although important to the plaintiffs, the Te Ua decision, with respect, should not be overstated. It represents an orthodox bringing together of express statutory provisions, and then articulation of how they are to be applied to a particular set of facts. It may often be the case, as it was there, that a decision may have wider impact because there are many similar factual cases. But it is at its heart a decision on a set of facts.

[30] The individuality of the decision is perhaps highlighted by this passage from Whata J’s judgment. In the midst of articulating the “Te Ua principles”. His Honour observes:⁹

[116] The assessment of relevance, credibility and reliability will naturally depend on the context, including available information about Father Te Ua’s service and medical history. But the test of reasonableness is not whether the statement is corroborated by other information. Rather, in assessing the reasonableness of the evidence the Secretary, Claims Panel and NRO [National Review Officer] are also required to give the benefit of doubt to the applicant.

[31] Whilst confirming that the requirement of reasonable evidence can be met by uncorroborated evidence, the passage also reinforces that such decisions will be context specific. Whether there is reasonable evidence in a particular case will turn on the particular condition at issue, and what evidence there is concerning it. Uncertainty is to be resolved in favour of the veteran. It is, however, important to recognise that this bias in favour of the claimant does not occur because the High Court says it should. It occurs because that is what ss 17(3) and 18(2) of the War

(3) In any case in which the foregoing presumption in favour of the claimant does not for any reason apply or is not sufficient to establish his claim, the claimant shall be entitled to produce to the Secretary or an Appeal Board, as the case may be, any evidence (whether strictly legal evidence or not) to show that the condition that resulted in the disablement or death of the member was possibly or probably attributable to or aggravated by his service with the forces in connection with any war or emergency, and if any reasonable evidence to that effect is produced there shall thereby be established a presumption that that condition was in fact attributable to or aggravated by the service of the member, and that presumption may be rebutted only by evidence that satisfies the Secretary or Appeal Board that the condition was not so attributable or aggravated but was due entirely to other causes.

(2) In the application of the general rule formulated in subsection (1) the following particular rules shall apply–

(a) in no case shall there be on the claimant any onus of proving that the disablement or death on which the claim is based was in fact attributable to the service of the member or that the condition that resulted in the disablement or death of the member was aggravated by his service:

(b) the claimant shall be given the full benefit of the presumptions in his favour provided for in section 17:

(c) the Secretary or an Appeal Board, as the case may be, shall be entitled to draw and shall draw from all the circumstances of the case, from evidence furnished, and from medical opinions submitted to the Secretary or Appeal Board, all reasonable inferences in favour of the claimant, and the claimant shall, in every case, be given the benefit of any doubt as to the existence of any fact, matter, cause, or circumstance that would be favourable to him.

Accordingly the first difficulty I see with the proposition that the Te Ua principles should be taken across to the new legislation is that, in essence, the so-called principles are primarily restatements of the terms of the old legislation.

[32] A second corresponding difficulty is that the Veterans’ Support Act 2014 has its own scheme and presumptions. Section 3 sets out the purposes. Section 10 then provides:¹¹

10 Functions to be performed and powers to be exercised in accordance with certain principles

Every person who performs any function or exercises any power under this Act must do so—

(a) in acknowledgement, on behalf of the community, of the responsibility for the injury, illness, or death of veterans as a result of them being placed in harm's way in the service of New Zealand; and

(i) the principle of providing veterans, their spouses and partners, their children, and their dependants with fair entitlements:

(ii) the principle of promoting equal treatment of equal claims: (iii) the principle of taking a benevolent approach to claims: (iv) the principle of determining claims–

(B) not in accordance with any technicalities, legal forms, or legal rules of evidence.

[33] Sections 14 and 15 prescribe a process for deciding claims that is both prescriptive and different from that which existed under the War Pensions Act 1954. A central feature of the new scheme is the adoption of what are called statements of principles which govern the consideration of claims for different conditions. These statements of principles are extensive documents that identify a list of criteria applicable to almost every condition. For example, in relation to osteoarthritis (for which there is a standalone Standard) 40 different circumstances are identified, any one of which, if applicable to the veteran, will see the claim presumptively accepted.

_{In adopting this methodology the Act expressly at s 22 draws on the
statements of}

principle already established by the Australian Reparation Medical Authority. The fact that the existence of one such situation will trigger the presumption is an example of the benevolence principle being built in.

(1) This section sets out the sequential steps to be taken in deciding whether a claim under this Act is accepted.

(b) decide whether the material is consistent with an hypothesis that the veteran’s injury, illness, or death was service-related.

(3) If the material is consistent with an hypothesis as specified in subsection (2), the second step is to decide whether there is a statement of principles that applies.

(5) If there is a statement of principles that applies, the third step is to decide whether the hypothesis is consistent with the statement of principles.

(6) If the hypothesis is consistent with the statement of principles, the fourth step is to accept the claim, unless there are reasonable grounds for believing that the veteran’s injury, illness, or death was not service-related.

(7) In this section and section 15, statement of principles means a statement of principles that, under section 22(6) and regulations made under section 265, applies for the purposes of this Act.

The structure therefore is to first consider the evidence and assess whether it is consistent with a hypothesis that the condition is service related. If so, one goes to the statement of principle that relates to that condition. If one of the qualifying situations applies to the veteran’s circumstances, a causal connection is presumed (s 14(6)).

[35] This is sufficient detail to illustrate why it would be inappropriate to declare that Whata J’s analysis of a very different scheme applies here. I am unaware of any principle of interpretation that would support such an approach. It would be rather unexpected that, Parliament having updated a statutory scheme that is itself the product of significant Law Commission work, the Court would then immediately read back various provisions from the old Act that have not been carried over.

[36] There is no good policy reason to make a declaration like the one sought. The new Act can stand for itself, and be interpreted as required. It would also be a declaration that is far too vague to be of benefit – in order to be effective, one would have to identify in the declaration what the Te Ua principles are (the plaintiffs provide a list of them) and then give some sort of detailed explanation as to how they apply to ss 14 and 15 of the new Act. It is not an appropriate process and I decline the application.

An applicant is entitled to have a decision made under the War Pensions Act 1954 on a claim for a war pensions allowance reconsidered where the original decision did not apply the principles stated by Whata J in Te Ua v Secretary for War Pensions [2014] NZHC 1050 at [114]–[118] where those principles were material, whether or not there is new evidence to support the application under (a) s 15E of the War Pensions Act 1954 or (b) s 205 of the Veterans’ Support Act 2014 in respect of scheme 1.

[37] Subsequent to Te Ua, the plaintiffs applied for reconsiderations. The relevant reconsideration provision was s 15E of the War Pensions Act:

15E National review officer to determine whether fresh application on grounds of additional evidence should be accepted

(1) If an application for reconsideration of a claim is received under section 14(5) or section 16(4), the Secretary or a national review officer (if authorised to do so pursuant to a delegation) shall determine, in accordance with whichever of those subsections is applicable, whether the fresh application should be accepted.

(2) If a fresh claim is accepted under subsection (1), the Secretary or national review officer, as the case may be, shall refer the claim to the appropriate claims panel for consideration and decision; and in considering and deciding on the fresh claim it shall be dealt with in all respects as if it were an original claim.

The test under each of s 14(5) and s 16(4) was the same – was reconsideration desirable in the interests of justice, either because of additional evidence or “for any other reason”. As noted, some reconsiderations were granted and fresh decisions made adjusting the claimant’s position. Many were rejected.

[38] The intent of the Declaration is not clear. If it is intended to say everyone is entitled to a reconsideration as of right that cannot be so. If, however, the words

“where those principles were material” are intended to limit the declaration to cases where the Te Ua principles appear to have been breached, then it may well be the case that the declaration is generally correct. But one cannot be definitive. It will inevitably depend on the file and the evidence. One can conceptualise a situation where the apparent error was of no consequence, or a separate matter is equally determinative so that a conclusion that the interests of justice do not require a fresh claim is reasonably available to a decision maker.

[39] The plaintiffs submit that if the original decision has not applied the Te Ua principles there would, of necessity, be an error of law. Further, if there is an error of law, a reconsideration must be given, and not to do so would be to act in bad faith. The difficulty with these propositions is the lack of clarity that exists in relation to the concept of “not applying the Te Ua principles”. As I have noted, in my view the Te Ua principles are primarily a restatement of the rules set out in the Act, and then the application of those rules to a particular situation. I accept that if it appeared the same error had been repeated elsewhere, one would expect a reconsideration because it would mean the Act’s principles had not been correctly applied. Beyond that general proposition, it is not possible to go. It would be inconsistent with the wording of the statute to say there must in every case of error be a reconsideration. Whilst I accept very good reasons for not reconsidering would have to exist, ultimately the Act requires the decision maker to make an evaluative assessment of where the interests of justice lie. That will depend on all the circumstances of a particular case and absolute propositions are inappropriate.

[40] It is also the case that reconsiderations will no longer occur under the War Pensions Act, so a declaration concerning how the discretion under that Act should be applied is of no utility.

[41] The reconsideration provision under the Veterans’ Support Act 2014 is different from the War Pensions Act. There is material that suggests it was intended to be more limited in its scope. The new threshold test is whether Vanz considers an

_{error has been made.}¹²_{If it does, there is a
discretion to revisit it. The provision}

needs no explanation. Whether the power is reasonably exercised in a particular case will need to await review of such a case, should that happen.

[42] In conclusion on Declarations One and Two, I do not consider that it is correct to refer to the “Te Ua principles” as if the case was other than the orthodox application of statutory provisions to a certain situation. Even if one can regard them as such I do not consider it appropriate for a court of the same jurisdiction to give them some different status by virtue of recognising them in a declaration. Finally, it is an incorrect approach to interpretation to seek to in effect transfer repealed provisions from a repealed Act into a new statute which has its own new scheme.

A veteran is entitled under scheme 1 to the benefit of the hypothesis referred to in s 14 of the Veterans Support Act 2014 applied to determining the existence of any medical condition or disablement where (a) there is competing medical evidence, or (b) the only medical information is that provided by the veteran, some of which is consistent with the hypothesis, unless there is medical (or other) evidence which satisfies Vanz that there is no medical condition or disablement after:

(ii) The veteran is given the benefit of the doubt on the existence of all facts, matters, causes, or circumstances that favour the veteran.

[43] This declaration is an attempt to adapt the approach of Whata J to the new scheme under s 14 of the Veterans’ Support Act. The assumed factual situation underlying the declaration is that the evidence in support of the claim for a service related condition is either sourced only in the claimant or is the subject of competing medical opinions.

[44] I pause in the analysis to immediately identify difficulties with these assumed facts. It is hard to envisage a case of no medical evidence other than what the applicant says, since the Act conveys ample powers for Vanz to require medical assessments. As for competing medical opinions, in the abstract this is meaningless. Who is the source of the opinions, and did each of them have the same information? Are they of equal experience and standing? Is the issue within the special expertise of one? There are numerous factors that can influence the weight to be attached and

[45] The propositions advanced in (i) and (ii) of the proposed declaration are taken from s 18(2) of the War Pensions Act.¹⁴There is no proper reason, nor principle of interpretation, that would justify taking provisions from the repealed Act and superimposing them on the new statutory scheme. The Veterans’ Support Act has its own presumptions and scheme.

[47] This declaration is directed at the issue of what evidence will suffice to establish the claimant has a condition. The plaintiffs’ position is that the presumptions apply equally to that question as to the causal link between condition and service.

[48] By way of background, one of the applicants was experiencing blackouts. The available evidence suggested these were a symptom of some unidentified condition. To the extent they were linked to PTSD, the claimant already had coverage for that to a 70 per cent rating, and it was not considered the blackouts, if a new symptom, would require that figure to be adjusted. Otherwise the reconsideration decision observed:

The evidence provided in respect of any claim must provide a definitive diagnosis of the current condition and demonstrate associated disablement before it can proceed for a determination in respect of attributability to or aggravation by military service.

¹³I am advised the medical assessor does not have the whole service file, so the decision maker has fuller information available. This is another reason why to focus only on conflicting medical reports can be misleading.

[49] The plaintiffs' proposition is that the requirement of definitive diagnosis is inconsistent with the War Pensions Act presumptions, and in particular the drawing of favourable inferences and the benefit of the doubt as contained in s 18(2). Vanz’s position is that without a diagnosis it cannot sensibly assess whether the complaint is service related.¹⁵Under the old Act there was a list of presumptive conditions where it was assumed the condition was service related, but one could not assess if they applied without knowing what condition is being talked about. Under the new Act the statutory statements of principle are similarly categorised according to condition,

[50] I consider the merits here lie with the plaintiffs. Focussing for the present on the new Act, the relevant threshold hypothesis to be established in s 14 is:

[51] The inability to attach a label to the claimant’s illness should not of itself be determinative. It may present analytical difficulties because there will be no relevant statement of principles (which are all condition specific), but s 15 provides an alternative process for assessing claims when there is no applicable statement of principles. As long as what the claimant describes can be termed an “illness”, then the s 15 processes should be applied. The question will then become whether there is more than a possibility that the illness is service related. If so, the claim must be allowed unless reasonable grounds exist for concluding otherwise.

[52] The above is doing nothing other than identifying what the Act says. The fact that there is a process for determining claims in the absence of an applicable statement of principles suggests that identifying the condition is not pivotal. Whatever the condition is, is there a reasonable possibility it is service related?

[53] That said I do not consider a declaration is needed or appropriate. How s 15 will operate in such a case is best assessed against a specific set of facts, and related

¹⁵The evidence of the General Manager confirms that Vanz’s approach is to require a clinically

[54] Concerning the War Pensions Act, I consider Whata J’s decision in Te Ua is a sufficient statement of how that Act applied.

A decision-maker must, under s 14(4) of the War Pensions Act 1954 or s 12(3)(b) of the Veterans’ Support Act 2014 in respect of a decision under scheme 1, set out in writing the steps of reasoning leading to the conclusions reached, as well as stating the conclusions reached.

[56] Both Acts have expressly required written reasons.¹⁶The adequacy of reasons is a decision specific assessment. The declaration sought is not correct as it cannot be said every decision must comply with that format. The general obligations attaching to a duty to give reasons are well known, and do not need repeating. The application is declined.

(i) A previously declined claim was accepted after a successful reconsideration application; and

(ii) The reconsideration application succeeded due to a failure of the original decision-maker to correctly apply the Te Ua approach; and

The veteran is entitled to have his or her pension payable from the date of the application for the original claim.

[57] This declaration relates to the War Pensions Act. Section 84 of that Act stated that the date for commencement of pensions was to be fixed by the Secretary. Pursuant to this, and in relation to reconsideration situations, the Secretary issued guidelines: “Backdating of War Disablement Pensions – Advice to Decision Makers”. The policy set out a standard approach but noted departures were

[58] The general rule was that where reconsideration led to a change in position, the adjusted pension would run from the date of the application for reconsideration. Specific injustice situations were then also identified as cases where backdating would occur – for example, where the adjustment resulted from a policy change in relation to a specific condition. Applications for backdating were required to be in writing.

[59] The situation posited in the declaration might well constitute a situation where the interests of justice require a departure from normal policy in favour of backdating as far back as the original claim. The defendant accepts as much but resists the mandatory nature of the declaration in circumstances where there is a statutory discretion, guidelines have been issued, and then a broad discretion granted within those guidelines to the specific decision-maker.

[60] I agree. None of these plaintiffs are affected by the issue as all are at the maximum pension. There can be no backdating for them. In a given case there may be reasons why the date of application for reconsideration remains the just outcome. This cannot be known in the abstract.

A condition accepted on reconsideration under s 205 of the Veterans’ Support Act 2014 of an original decision whether made under the War Pensions Act 1954 or the Veterans’ Support Act 2014 under scheme 1 must be backdated to the date on which application was made for the original decision.

(8) If, following reconsideration, Vanz decides that a person has an entitlement, the entitlement commences on the date it would have commenced on had Vanz decided that the person had the entitlement at the outset.

[63] The dispute is as to the meaning of “outset”. I admit to being unclear as to what interpretation the defendant attributes to it other than that which is stated in the declaration, namely the date of the original application. It seems the obvious meaning. Caution causes me, however, to decline to make the declaration. There may be a situation of which I am unaware where it might mean a different date. It is sufficient at this point if I observe that the wording suggested by the plaintiffs, namely that outset means the date of the original application, appears correct. If that is different from the position under the War Pensions Act, then the statute has effected a change.

[64] Although declining a declaration, I also observe that if in a particular case Vanz applies a different date to that which I have indicated, it should make this plain to the claimant and give reasons so that a claimant is aware of it.

A veteran who makes a claim for acceptances of a new condition, and is found instead to suffer from a new symptom cause by an accepted condition which increases a veteran’s disability is not required to make a separate application under (a) WPA s 26 (b) VSA s 52 before Vanz reassesses the veteran’s level of disability.

[66] As noted, one of the plaintiffs made a claim in relation to blackouts. It seems there is uncertainty as to the cause of them, but it was thought they were probably a further or new symptom of an existing condition, perhaps PTSD. Accordingly the claim for a new condition was declined. The plaintiffs have noted that there does not seem to have been consideration given to whether the applicant’s rate of disability in relation to the existing covered condition – PTSD – should have been increased. The plaintiffs believe this should be done automatically, hence the declaration.

[67] The matter does not merit discussion. It is a matter of practice and administration which involves no principle and it certainly does not properly engage the Court’s declaratory judgment regime. The applicant in question was already at the maximum so any reassessment may have been thought by Vanz to be pointless.

1954 or (b) the Veterans’ Support Act 2014 scheme 1 is entitled to have his application accepted for reconsideration where there is medical opinion

hypothesis that the condition was aggravated by qualifying service, unless there is medical (or other) evidence which satisfies Vanz that the medical condition is not caused or aggravated by military service after:

(ii) The veteran is given the benefit of the doubt on the existence of all facts, matters, causes or circumstances that favour the veteran.

[69] The reconsideration power in the Veterans’ Support Act is found in s 205. Section 205(1) is a broad provision that allows reconsideration at any time if Vanz considers a decision has been taken in error. Section 205(3) addresses reconsideration when there has been a change in circumstances in specified situations – modified or new statement of principles, a new presumptive condition is recognised, or certain examples of service are reclassified as operational service.

[70] The section is clear and at this point requires no restatement. The proposed declaration mirrors that rejected at [45] above. The presumptions formerly in s 17(4) and 18(2) of the War Pensions Act are not to be read into the provisions of the new Act, which applies on its own terms.

[72] All applications for declaration are declined though comment has been made where it might usefully assist. The proposition that the language and presumptions contained in the previous Act should be overlaid on the text of the present Act is rejected. It is a new Act with its own purposes and principles. It establishes a different methodology for assessing claims. There is no interpretation approach or principle that would support what the plaintiffs propose. Other than this general

comment, I do not repeat the specific observations made in relation to each declaration.

[73] The defendant is entitled to costs on a 2B scale together with reasonable disbursements to be fixed by the Registrar if required.

Counsel:	G D S Taylor and M Freeman for Plaintiffs R L Roff and L Jackson for Defendant
_Judgment:	_{12 August 2016}

High Court of New Zealand Decisions

Keelan v General Manager of Veterans' Affairs New Zealand [2016] NZHC 1869 (12 August 2016)