History of Veterans’ Disability Pension Systems
Bruce Topperwien

I
 	t is often said that Australia has the most beneficial system of disability pensions for 
       veterans of any country in the world. Certainly, the Commonwealth government spends in its veterans’ affairs budget more per veteran than any other country. This article examines the history of disability pension systems for veterans in England, the United States of America, Canada, New Zealand and Australia.
England
Disability pensions have been regularly paid to veterans in England on a statutory basis at least since 1593. Statute 35 Eliz I c. 4, which was enacted for the benefit of the soldiers and sailors who defeated the Spanish Armada in 1588, provided:
“Every parish shall be charged with a Sum weekly towards the relief of sick, hurt and maimed Soldiers and Mariners.”
In 1597, another statute provided:
“There shall be a further Taxation for the Relief of Soldiers and Mariners where Sufficient was not provided by the Statute of 35 Eliz c. 4. The greatest Rate of every Parish to be taxed shall be Eight-pence and the least Two-pence weekly. Another provision if the Rate be not sufficient for the Soldiers and Mariners in London. Treasurers shall be appointed by the Justices. The Justices may alter the Relief of Soldiers and Mariners.”
In the same year, Shakespeare wrote Henry IV, Part 2, in which he had Falstaff speaking of claiming a war pension:
“A pox of this gout, or a gout of this pox!
For the one or the other plays the rogue with my great toe.
’Tis no matter if I do halt;
I have the wars for my colour,
and my pension shall seem the more reasonable.
A good wit will make use of anything:
I will turn diseases to commodity.”
The 1593 and 1597 statutes were taxation Acts and gave the barest indication how pensions were to be claimed and determined. A more detailed statute was enacted in 1601, which superseded the earlier statutes and recited reasons for the legislation including:
“… And forasmuch as it is now found more needful than it was at the Making of the said Acts, to provide Relief and Maintenance to Soldiers and Mariners that have lost their Limbs, and disabled their Bodies in the Defence and Service of her Majesty and the State, in Respect the Number of the said Soldiers is so much the greater, by how much her Majesty’s just and honourable defensive Wars are increased; (2) To the End therefore that they the said Soldiers and Mariners may reap the Fruits of their good Deservings, and others may be encouraged to perform like Endeavours …”
Section 8 of this Act set out the manner in which claims for pension were to be made. The disabled veteran was required to bring a certificate of service from his commanding officer to the County Treasurer. That certificate was to set out the facts of his service and the nature of his disability. The provision then said:
“… then upon such Certificate, such Treasurers as are before expressed, shall according to the Nature of his Hurt and Commendation of his Service, assign unto him such Portion of Relief as in their Discretions shall deem convenient for his present Necessity until the next Quarter-Sessions; (7) at which it shall be lawful for the more (sic) Part of the Justices of Peace under their Hands, to make an Instrument of Grant of the same or like Relief, to endure as long as this Act shall stand or endure in Force, if the same Soldier or Mariner so long live, and the same Pension be not duly revoked or altered …”
The Act placed an upper limit on such pensions at £10 per annum for an ordinary soldier or mariner and up to £20 per annum for certain officers. Section 9 permitted Justices of the Peace to reduce, revoke or vary such pensions from time to time:
“… upon any just Cause … according to their Discretions in their General Quarter Sessions”.
The statute provided that Treasurers and Justices could be fined for failing to do their duty under the Act (sections 12 and 15 respectively).
Hospitals were established at Kilmainham in 1684, at Chelsea in 1690, and at Greenwich in 1705 to look after disabled and aged veterans. The Commissioners at Chelsea were given the task of maintaining a list of pensioners and administering disability pensions, including determining initial and continuing eligibility for pension for “rank and file” veterans. Pensions for former officers were managed by the Admiralty or the War Office. This system continued until the First World War.
In 1915, the Naval and Military War Pensions Act was enacted and provided for the establishment of a Statutory Committee of the Royal Patriotic Fund Corporation as well as Local Committees. It was the responsibility of these committees to administer pensions to veterans. This was merely a temporary measure, and in December 1916, the Ministry of Pensions Act was passed. This established a Department to administer war pensions. The Ministry of Pensions continued to exist until 1953, when its functions in relation to pension were transferred to the Ministry of Pensions and National Insurance. In 1991, the War Pensions Directorate was formed to administer war pensions as a separate agency within the Department of Social Services.
The Local Committees retained a limited role in the administration of war pensions. They were effectively superseded in 1921 by War Pensions Committees, whose role was to hear and report to the Department on complaints by veterans in relation to the administration of pensions and claims for pension. The War Pensioners’ Welfare Service currently performs a similar role.
On 1 November 1919, Pensions Appeal Tribunals were established to determine appeals from decisions relating to pensions made by the Ministry of Pensions. (Prior to this legislation, the Minister of Pensions had set up Officers’ Appeal Boards and Pensions Appeal Tribunals to hear appeals from Ministry decisions, but these had no statutory basis.) The 1919 legislation was replaced in 1943 with new legislation establishing new Pensions Appeal Tribunals. A decision of a Tribunal may be reviewed by the High Court on a question of law, with leave of the tribunal or a judge of the High Court. This system remains in place today.
United States of America
In the American colonies, the first law to provide for veterans’ disability pensions was enacted in Plymouth in 1636 by the General Court of the colony in the first codification of its laws. This was to provide for those who had fought against the Indians in defence of the colony. Other colonies followed this example.
In 1776, the Continental Congress provided a pension of half military pay for life for those who lost a limb or had other serious disability. However, the Congress had neither the authority nor the money to make these payments, and it was left to the individual States to pay. In 1789, with the ratification of the US Constitution, the first Congress assumed the burden for making these payments. This legislation was continued each year until 1792.
The early English pattern of Justices administering the disability pension scheme was also adopted by the United States Congress in 1792 when it enacted its Invalid Pensions Act. That Act provided a scheme for soldiers of the Revolutionary War to obtain disability pensions through being placed on a list of disabled soldiers by the federal circuit court for the relevant district.
However, the doctrine of separation of powers caused the judges concern regarding the validity of the legislation and their role in the system. The judges of the New York Circuit Court, John Jay, William Cushing, and James Duane, wrote to President Washington stating that they could not perform this role in their position as judges because it was an executive function rather than judicial, but “as the objects of this Act are exceedingly benevolent, and do real honor to the humanity and justice of Congress”, they would agree to conduct the invalid pensions business as commissioners, being at liberty to accept or decline that office at will. This appears to be the first recorded occasion in which the beneficial nature of veterans’ legislation was used to justify the approach taken by decision-makers to the operation of the legislation.
Not all judges took this beneficial approach to the legislation, and a legal challenge was made in Hayburn’s Case. In that case the judges of the Circuit Court for the District of Pennsylvania refused to consider Hayburn’s application to be placed on the pension list on the ground that it was inconsistent with their office as judges. Attorney-General Edmund Randolph, acting as Hayburn’s counsel, sought a writ of mandamus in the Supreme Court. However, the decision was made moot by a new law passed by Congress setting out a new procedure for determining pension claims from Revolutionary War veterans, and the Supreme Court did not deliver its opinion. Nevertheless, the result of two subsequent cases, which concerned the validity of action taken under the pre-1793 legislation, Ex parte Chandler and United States v. Yale Todd, seem to indicate that the Supreme Court agreed that the legislation was invalid. These two cases have been seen by some commentators as pre-Marbury v. Madison examples of the Supreme Court exercising a power of judicial review over legislation passed by Congress.
With the passing of the new legislation in 1793, judicial review of decisions concerning veterans’ pensions was substantially precluded until 1 June 1989, with the passing by Congress and signing into law by President Reagan on 18 November 1988 of the Veterans’ Judicial Review Act 1988. (The Administrative Procedure Act, which ensured procedural uniformity and judicial review for administrative processes and decisions of other government agencies, had never applied to the Veterans’ Administration.)
A Board of Veterans’ Appeals operated since 1933 to provide a final appeal for veterans from decisions of the Veterans’ Administration. However, the Board was established by Executive Order of President Roosevelt, not as a separate and independent body, but as part of the Administration. Its decisions were made “for the Administrator”, and it was, organisationally, directly responsible to the Administrator.
The preclusion of judicial review was argued for on three bases: that the cost of defending legal actions would burden the courts and be expensive for government; it was beneficial to veterans that courts did not get involved in the detail as it could not be expected that courts would apply the uniform and liberal policies being applied by the Administration; and because providing veterans pensions was an act of sovereign prerogative in the nature of a gratuity, it was inappropriate that it be the subject of legal action. The Supreme Court, in Johnson v. Robison, recognised the beneficial effect suggested for both the administration and veterans by the first two of these bases.
The US Court of Veterans’ Appeals came into being in 1989 to hear appeals from decisions of the Board of Veterans’ Appeals. The Court is not an Article III court (ie, it is not part of the judicial arm of government) but is an Article I court (ie, part of the legislative arm of government). Decisions of the Court can be appealed to the Federal Circuit of the US Federal Court, and from a decision of that Court a petition may be made to the US Supreme Court for certiorari. On 1 March 1999, the Court of Veterans’ Appeals was renamed the United States Court of Appeals for Veterans’ Claims in order to emphasise its independence from the Department.
Canada
The first Canadian veterans’ pension legislation was the Militia Pension Act, which provided pensions to those persons who served in connection with the Fenian Raids of 1866 or the Northwest Rebellion of 1885. However, these were not disability pensions.
Provision for disability pensions was included in Appropriation Acts in 1917 for those who had served in the Canadian Expeditionary Force in the First World War. The legislative scheme for its management was enacted in the Pensions Act 1919, which established the Board of Pension Commissioners for Canada.
An independent tribunal, the Federal Appeal Board, was established in 1923 to review veterans’ disability pension decisions.
In 1930, the Federal Appeal Board was replaced with a Pension Tribunal and a Pension Appeal Court. Under this new system, primary decisions were made by the Board of Pension Commissioners (the Commission). A veteran could apply for review of a decision by the Pension Tribunal, and if still dissatisfied, could appeal to the Pension Appeal Court. The Commission could also appeal to the Pension Appeal Court. Each of these decision-makers reviewed the matter de novo.
The Canadian Pension Commission was established on 1 October 1933 to replace the Board of Pension Commissioners. On 1 July 1939, the Pension Appeal Court was abolished, and in its place was put the Appeal Board of the Canadian Pension Commission.
In 1971, the Pension Tribunal was replaced with an Entitlement Board and the Appeal Board was replaced with the Pension Review Board. In 1987, the Pension Review Board was replaced with the Veterans Appeal Board.
In 1995, the Entitlement Board and the Veterans Appeal Board were replaced with the Veterans Review and Appeal Board (VRAB). The VRAB has dual levels of review. The first level of review involves a preliminary examination of the papers, in which the Board may decide to remit the matter to the Department, schedule a hearing before a Review Panel or dismiss the application as trivial, frivolous or vexatious. If the matter is heard by a Review Panel the applicant has a right to appear and give evidence. If the applicant is dissatisfied with the decision of a Review Panel, application may be made to an Appeal Panel, which reviews the application on the documentary material only.
New Zealand
The first veterans’ disability pension legislation in New Zealand was the Military Pensions Act, 1866 (NZ), which provided pensions for the colonial forces that served in the Maori Wars. Claims for pension were determined by the Governor on the recommendation of a Board of at least three medical practitioners appointed by the Governor to investigate and make recommendations. However, pension was payable only in respect of the loss of an eye or limb or a disability similar in effect.
This legislation was amended in 1900 to extend its benefits to veterans of the New Zealand contingents to the Second Boer War in South Africa (1899-1902). In 1903, the legislation was further extended to provide that pension was payable in respect of injury received “whether in action or in the course of … military service” or “illness directly attributable to such service”.
The military pensions legislation was repealed and consolidated in 1908 by the Military Pensions Act, 1908 (NZ).
Pension was payable to those members who were “wounded in action or injured in the actual performance of military duty whilst on active service”. As with the original legislation in 1866, claims for pension were determined by the Governor on the recommendation of a Board of at least three medical practitioners appointed by the Governor to investigate and make recommendations. Pension could be granted only on the unanimous recommendation of the Board members.
The New Zealand Parliament introduced legislation in 1915 to provide pensions for disabled members of the New Zealand Expeditionary Forces, which had been raised for the purposes of the First World War. In 1916, it was extended to include persons engaged in military service in New Zealand, and in 1919, it was extended to cover New Zealanders who had fought in the Boer War.
The 1915 legislation established a War Pensions Board to determine claims for disability pensions. The Board could review its own decisions if the circumstances of the veteran changed or if there was other sufficient reason, but its decision on review was subject to the approval of the Minister. In 1916, legislation provided for a right of appeal from a decision of the War Pensions Board to a Stipendiary Magistrate if the Board had refused to grant or had taken away a pension on the ground, inter alia, that the person was of notoriously bad character. However, all that the Magistrate could do was to make inquiries, review the evidence, and report to the Board on the investigation. The Board could then make its own decision as it thought proper.
In 1923, a War Pensions Appeal Board was established to hear appeals from decisions of the War Pensions Board. The Appeal Board heard matters de novo and had full determinative power. The legislation did not take away the investigative role of the Stipendiary Magistrates in “notoriously bad character” cases.
In 1943, the war pensions legislation was repealed and replaced with the War Pensions Act, 1943. The determining structure was not changed. However, Stipendiary Magistrates were given the power to make recommendations to the War Pensions Board, and the Board could only grant a pension if the Magistrate recommended it. Another consolidation of the legislation was made in 1954, but the claims determining system remained the same. In 1968, the appeals to Stipendiary Magistrates were replaced with appeals to the District Court or High Court of New Zealand (depend on the amount of pension involved).
In 1988, the War Pensions Board was abolished and its powers and functions given to the Secretary. However, the legislation permitted the Secretary to delegate the power to determine claims for pension to district claims panels and national review officers. A district claims panel consisted of an employee of the Department and a person appointed by the secretary upon the nomination of the New Zealand Returned Services’ Association (Inc). If the decision of a panel is not unanimous, reasons for opinion are written by each member and the matter is referred to a national review officer, who decides the claim. If the veteran is dissatisfied with a decision of a panel, the veteran may apply to a national review officer for review of that decision. A veteran may apply to the War Pensions Appeal Board for review of a decision of the Secretary or a national review officer.
Australia
After the establishment of responsible government in the Australian colonies in the 19th Century, and before the creation of the Commonwealth of Australia, the colonies took upon themselves some responsibility for raising their own defence forces. In 1870, the last of the British Regiment units left the colonies. Contingents from one or more Australian colonies participated in the First Maori War of 1845, the Second Maori War of 1860, the Sudanese War of 1885, the Second Anglo-Boer War, South Africa, 1899-1902, and the Boxer Rebellion in China in 1900. The first locally raised contingent to render service overseas was that supplied by New South Wales for the Sudanese War. 
Upon their return to Australia, disabled veterans of these conflicts were compensated out of patriotic funds established for the purpose and funded by voluntary donations rather than through a statutory scheme.
On 1 January 1901, the colonial defence forces came under the control of the Commonwealth government, including those colonial contingents in South Africa for the Anglo-Boer War. The Commonwealth, which still regarded itself as a British colony, sent further contingents to South Africa in 1901. The Commonwealth government never paid disability pensions to these veterans on the ground that it was the responsibility of the Imperial government.
The Defence Act 1903 (Cth) provided for compensation at prescribed rates if a member of the Defence Forces became “incapacitated from earning his living, from wounds or disease contracted on active service or on duty”. The Naval Defence Act 1910 (Cth) made similar provision for members of the Naval Forces (it also amended the Defence Act 1903 (Cth) so that it related only to compensation for the Military Forces—ie, the Army).
Upon the outbreak of war in 1914 and the establishment of the all-volunteer Australian Imperial Force, the Government acted quickly to introduce legislation to provide for a disability pension scheme. The War Pensions Act 1914 (Cth) established a Pensions Board to determine claims for pension for death or incapacity that “resulted from … employment in connexion with warlike operations”. The Act provided that a claim had to be made within six months of discharge from the Defence Force. The Pensions Board was replaced in 1915 with Deputy Commissioners of Pensions. An appeal lay from a decision of a Deputy Commissioner to the Commissioner of Pensions (or Assistant Commissioners to whom the Commissioner’s powers could be delegated).
Australian Soldiers’ Repatriation Acts were enacted in 1917 and 1918 to provide for assistance in the re-establishment of soldiers upon their return to Australia. They did not provide for pensions, which continued to be provided under the War Pensions Act 1914 (Cth).
In 1920, the War Pensions Acts and the Australian Soldiers’ Repatriation Acts were repealed and replaced with the Australian Soldiers Repatriation Act 1920 (Cth). This Act established Repatriation Boards to determine claims for disability pensions, with a right of appeal to the newly created Repatriation Commission and did not contain any time limits on making claims.
In 1929, War Pensions Entitlement Appeal Tribunals and Assessment Appeal Tribunals were established under the legislation to review decisions of the Repatriation Boards and the Repatriation Commission.
In 1979, the War Pension Entitlement Appeals Tribunals and the Assessment Appeals Tribunals were abolished, and in their place was created the Repatriation Review Tribunal. For the first time, there was a statutory right of judicial review on a question of law by the Federal Court of Australia, and from there, by special leave, to the High Court of Australia.
The determining system was restructured in 1985 substantially to the form in which it is today, namely, decisions are made at first instance by the Repatriation Commission; there is a capacity for internal review by the Commission, but it is not a required step; a person dissatisfied with a decision of the Commission can apply to the Veterans’ Review Board for review; there is a further right of review by the Veterans’ Appeals Division of the Administrative Appeals Tribunal; an appeal lies on a question of law from decisions of that Tribunal to the Federal Court of Australia; and from there, by special leave on a question of law to the High Court of Australia.