WAR PENSIONS

Dominion, Volume 14, Issue 253, 20 July 1921, Page 6

WAR PENSIONS

A WIFE’S APPLICATION

CLAIM FOR A SEPARATE ALLOWANCE ARGUMENT BEFORE FULL COURT A question of importance in respect to war pensions was before tho Full Court yesterday, when legal argument was beard touching an application made by Dorothy Wheeler, wife of Charles Bertie Vaughan Wheeler, shipping clerk, of Auckland, for all ord;-r of mandamus requiring tho War Pensions Board to reconsider her application for a pension on the score of her husband's disablement, the latter (a returned soldier) being already in receipt of one. The action was commenced at the instance of the R.S.A., which desired to obtain an interpretation of certain sections of the War Pensions Act.

On the bench were the Acting-Chief Justice (Mr. Justice Sim) and Their Honours Mr. Justice Hosking, Mr. Justice Stringer, Mr. Justice Reed, and Mr. Justice Adams. Messrs. P. Levi and AV. Perry appeared for the appellant, and tiie Solicitor-General (Mr. AV. C. MacGregor) for the Pensions Board.

Shortly put, the facts of the case are that Charles AV heeler, lately a member of ths N.Z.E.F., is in receipt of a pension in respect of partial disablement, and in February, 1919, his wife applied for a separate pension. Her application was refused, it being held T>y tho board that she was not entitled under the' Act to receive a. pension, seeing that her husband was well able to -support her. The appellant contended that, the board had acted upon a wrong principle in determining that she was not entitled to receive a- separata pension. A Question of Dependency.

Mr. Levi, in submitting that the wife of a disabled soldier was entitled to a separate pension, said that tho Act stated, inter alia, that a pension "ehall be paid to the dependants of a member of the forces in the case of tho’ death of the member, and to the member and his dependants in the case of his disablement.” Apparently from the policy laid down in respect to total disability, the husband, wife, and each child or dependant was to bo separately provided for in respect of partial dieability also, and that the husband’s matrimonial circumstances were not to bo considered alone when his pension was being computed, since his family was to lie provided for by individual pensions. The husband's pension should be computed solely in regard to the nature of the probable duration of the disability. Mr. Justice Hosking: If one member of the family should die, that portion of tho aggregate pension would lapse? Counsel: That is so.

Mr. Justice Stringer said that it appeared from the schedules that in a case of partial disability the wife was to receive one-half of tho husband a pension, and n child ono-half of the wife s. Counsel replied that that appeared to be the general policy, and probably that proportion would be generally followed. Mr. Justice Hosking asked if there was any provision for an increase of pension in the case of increased disability, and, receiving an answer in the affirmative, he remarked: "Then the idea is that an amount should-be divided among husband, wife, and child, on tho basis of what a man should get to provide for his whole family. If the wife dies she is no longer to be maintained, and that portion of the aggregate drops out." A point made by Mr. MacGregor was that in the present caso the husband was actually in a far better position than he was before the war, and had suffered no incapacity in his wage-earning powers. In the course of further argument, Mr. Justice- Hosking inquired: "Supposing the wife gets nothing, and her husband dies, then doos she get a pension? Mr. Levi: Only if he dies within seven years as a result of his disablement.

His Honour: If ho deserts her could she ask for an increase? If she received no pension she might be in a bad position in ouch case. Desertion and death would be practically equal in law. Counsel: He might bo run over by a trnmear and ehe would receive nothing. His Honour: But if she had some pension slm could apply for an increase. Board’s Position in Doubt. Mr. MacGregor said that the board was honestly anxious to learn what its true position was, but there were many questions that could not well bo cleared up by consideration of the particular case ‘before the Court. A more satisfactory course would have been to issue an originating summons. Mr. Lovi mentioned that tho Act provided that properly was not to be considered when pensions were being computed. If a man were a millionaire, he was still entitled to his pension. Mr. Justice Hosking: Quite so. A millionaire to-day may bo a bankrupt tomorrow. Mr. MacGregor wont on to point out that in the present case the wife had not sustained any loss at allMr. Justice Hosking: Surely any disablement to the husband must be a loss to the wife? Mr. MacGregor did not think so. Ho said that the board had to take into consideration tho earning capacity of the husband. With regard to the case in point, as a result of a wound one of Wheeler's legs was now snorter than the other, causing a limp. Prior to the war he was a shipping clerk nt a salary of .£lBO per annum, whereas now ho was an acting-manager at a salary which was nearly double thia ameunt. C,early his disablement had not injured his earning capacity. Wheeler had received a temporary pension for some time, and he was now in receipt of a permanent pension of 255. a week. His wife, who had suffered no loss, now came along and asked for her pension. Were the board to grant pensions in all such cases as the one under review, the cost perhaps would amour t to three-quarters of a million pounds—that was, if tho wives were to receive half rates. , Mr. Just.ce Hosking commented that this might mean that the soldiers’ pensions would be reduced. .... , Mr MacGregor submitted that the determination of the Pensions Board was final, and could not be reconsidered by the Court. Mr. Justice Hosking: Then it means that the matter must be thrashed out in Parliament and not in the Courts.

Mr. MacGregor: That is so. Mr. Levi emphasised that it was n most important principle’ that tho wife’s pension should be kept alive. After hearing further argument the Court reserved its decision.