Alchin and Repatriation Commission - [2005] AATA 287

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2005] AATA 287
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2004/470

VETERANS' APPEALS DIVISION
)

Re ROBERT ALCHIN

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr R G Kenny, Member
Date5 April 2005
PlaceBrisbane

Decision The Tribunal affirms the decision under review.
................[Sgd]....................
R G Kenny
Member

CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – special rate of pension – incapacity from war-caused conditions sufficient to prevent veteran from undertaking remunerative work for more than 8 hours per week - veteran not prevented by reason of incapacity from war-caused conditions, alone or substantially, from continuing to undertake remunerative work that he was undertaking – veteran not suffering a loss of salary or wages, or of earnings on his own account, that he would not be suffering if he were free of incapacity from war-caused conditions - pension payable at 100% of the general rate – decision affirmed
Veterans’ Entitlements Act 1986 ss 5Q, 15, 19, 22, 23, 24
Forbes v Repatriation Commission (2000) 101 FCR 50
Repatriation Commission v Hendy (2002) 76 ALD 47
Flentjar v Repatriation Commission (1997) 26 AAR 93
Counsel v Repatriation Commission (2002) 72 ALD 74
Re Graham v Repatriation Commission (2004) 80 ALD 687
Re Bertram and Repatriation Commission (1986) AAT 2783; 29 July 1986
Fox v Repatriation Commission (1997) 45 ALD 317
Leane v Repatriation Commission [2004] FCAFC 83
REASONS FOR DECISION

5 April 2005 Mr R G Kenny, Member

Background
1. In response to a claim for an increase in pension lodged on 27 July 2001 in accordance with section 15 of the Veterans’ Entitlements Act 1986 (the Act) by Robert Alchin (the applicant), a delegate of the Repatriation Commission (the respondent) determined, on 16 November 2001, that the degree of Mr Alchin’s incapacity from his war-caused conditions of chronic airflow limitation, generalised anxiety disorder and bilateral sensori-neural hearing loss was 100%. The respondent then determined that, in accordance with section 22 of the Act, pension was payable to him at 100% of the general rate.
2. On 4 May 2004, the decision of the respondent was affirmed by the Veterans’ Review Board and, on 25 June 2004, Mr Alchin sought review of that decision by the Administrative Appeals Tribunal (the Tribunal).
3. Mr Alchin attended the hearing and was represented by Mr J Selfridge of counsel. The respondent was represented by Mr J Kelly. The following material was taken into evidence:
exhibit 1:the “T” Documents (T1-T6) prepared in accordance with section 37 of the Administrative Appeals Tribunal Act 1975;
exhibit 2:a statement, undated but received by the Tribunal on 23 September 2004, by Jill Alchin, the applicant’s wife; and
exhibit 5: a financial statement, dated 26 July 2004, by Ward’s Tax Services.

Issues and Legislation
4. The standard of proof applicable in this matter is set out in subsection 120(4) of the Act. It requires that matters be determined to the decision maker’s reasonable satisfaction. The procedure to be followed is set…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Alchin and Repatriation Commission

Details

AGLC: Alchin and Repatriation Commission [2005] AATA 287
Case: [2005] AATA 287
Decision Date: 5 April 2005

CaseChat Overview and Summary

The matter before the Administrative Appeals Tribunal was an appeal by the veteran, Mr Alchin, against a decision of the Repatriation Commission regarding the rate of pension payable to him. Mr Alchin sought a special rate of pension on the basis that his incapacity from war-caused conditions prevented him from undertaking remunerative work for more than eight hours per week. The Repatriation Commission found that while Mr Alchin had certain limitations due to his incapacity, he was not prevented from continuing to undertake remunerative work that he was already doing. Consequently, the Commission decided that the pension payable to Mr Alchin should be at 100% of the general rate.

The legal issues before the Tribunal were centred on the interpretation and application of the Veterans’ Entitlements Act 1986. Specifically, the Tribunal had to determine whether Mr Alchin’s incapacity from war-caused conditions met the criteria for a special rate of pension. This required an examination of sections 5Q, 15, 19, 22, 23, and 24 of the Act, which outline the conditions under which a special rate of pension may be granted. The Tribunal also needed to consider relevant case law, including Forbes v Repatriation Commission, Flentjar v Repatriation Commission, Counsel v Repatriation Commission, and others, to ascertain the correct application of the statutory provisions in Mr Alchin’s case.

In its decision, the Tribunal examined the evidence and found that Mr Alchin’s incapacity, while genuine, did not prevent him from continuing to work in the capacity he was already engaged in. The Tribunal noted that Mr Alchin was not suffering a loss of salary or wages, or of earnings on his own account, that he would not be suffering if he were free of incapacity from war-caused conditions. This conclusion was based on the fact that he could still undertake remunerative work and that his incapacity did not substantially hinder his ability to do so. The Tribunal thus affirmed the decision of the Repatriation Commission, holding that Mr Alchin was not entitled to a special rate of pension.

The Tribunal’s decision was grounded in the statutory framework and the established case law. It found that the evidence did not support a finding that Mr Alchin’s incapacity prevented him from continuing to undertake remunerative work, which was a critical factor in determining eligibility for a special rate of pension. The Tribunal confirmed that the pension payable to Mr Alchin should remain at 100% of the general rate.

Orders

Orders of the court

The Tribunal affirms the decision under review.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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