Armitt and Repatriation Commission - [2007] AATA 1390

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1390
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W 200500274

VETERANS' APPEALS DIVISION )

Re IAN FRANK ARMITT

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Deputy President S D Hotop
Date30 May 2007
PlacePerth

Decision
The Tribunal sets aside the decision of the Veterans' Review Board dated 19 April 2005 and, in substitution therefor, decides that the intermediate rate of pension is payable to the applicant, pursuant to s 23 of the Veterans' Entitlements Act 1986 (Cth), with effect from 23 July 2004.

..........[Sgd S D Hotop]...........
Deputy President

CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements – disability pension – rate of pension – applicant served in Australian Regular Army from January 1970 to November 1971 (including service in Vietnam) – applicant served in Western Australia Police Service (WAPS) from 1973 to 2004 – applicant suffers from various war-caused diseases including post-traumatic stress disorder (PTSD) and from various non-service-related conditions – applicant granted disability pension in December 2003 – applicant compulsorily retired from WAPS by reason of PTSD in July 2004 – applicant applied for increase in rate of pension in July 2004 – applicant's incapacity from war-caused diseases of itself alone renders him incapable of undertaking remunerative work otherwise than on part-time basis or intermittently – applicant, by reason of incapacity from war-caused diseases alone, prevented from continuing to undertake remunerative work and thereby suffering loss of salary or wages – applicant not eligible for special rate of pension – applicant eligible for intermediate rate of pension – decision under review set aside
Veterans’ Entitlements Act 1986 (Cth), s 19, s 23, s 24 and s 28
Chambers v Repatriation Commission (1995) 55 FCR 9
Defence Force Retirement and Death Benefits Authority v House (1989) 22 FCR 138
Flentjar v Repatriation Commission (1997) 48 ALD 1
Forbes v Repatriation Commission (2000) 101 FCR 50
Repatriation Commission v Butcher [2007] FCAFC 36
Repatriation Commission v Hendy (2002) 76 ALD 47
REASONS FOR DECISION

30 May 2007   Deputy President S D Hotop

Introduction
1.       Ian Frank Armitt (“the applicant”) enlisted in the Australian Regular Army, pursuant to the National Service Act 1951 (Cth), on 28 January 1970 and he served in Vietnam from 27 August 1970 to 12 August 1971. He was discharged on 15 November 1971.
2.       On 8 December 2003 the applicant was granted a disability pension under Pt II of the Veterans’ Entitlements Act 1986 (Cth) (“VE Act”) in respect of various war-caused injuries and diseases (including post-traumatic stress disorder (“PTSD”)). He was paid disability pension at the rate of 80% of the “general rate”, pursuant to s 22 of the VE Act, with effect from 7 May 2003.
3. On 23 July 2004, however, the applicant applied for an increase in the rate of his disability pension. On 21 September 2004 the Repatriation Commission (“the respondent”) made a decision in which it determined that the rate of the applicant’s disability pension be increased to…

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 Armitt and Repatriation Commission

Details

AGLC: Armitt and Repatriation Commission [2007] AATA 1390
Case: [2007] AATA 1390
Decision Date: 30 May 2007

CaseChat Overview and Summary

The applicant, Armitt, served in the Australian Regular Army from January 1970 to November 1971, including service in Vietnam. He later served in the Western Australia Police Service (WAPS) from 1973 until 2004. Armitt suffered from various war-caused diseases including post-traumatic stress disorder (PTSD) and some non-service-related conditions. In December 2003, Armitt was granted a disability pension. He was compulsorily retired from WAPS in July 2004 due to his PTSD. Armitt applied for an increase in his pension rate in the same month. His incapacity from war-caused diseases rendered him unable to undertake remunerative work except on a part-time or intermittent basis, resulting in loss of salary or wages. He was not eligible for the special rate of pension but was eligible for the intermediate rate. The Veterans' Review Board's decision was under review.

The primary legal issue in this case was whether Armitt was eligible for the intermediate rate of pension under section 23 of the Veterans' Entitlements Act 1986 (Cth). The question hinged on whether Armitt's incapacity from war-caused diseases rendered him incapable of undertaking remunerative work on a full-time basis. Another issue was whether Armitt's loss of salary or wages due to his incapacity from war-caused diseases alone made him eligible for the intermediate rate of pension. The case also considered the applicant's eligibility for the special rate of pension under section 28 of the Act.

The court reviewed the evidence and found that Armitt's incapacity from war-caused diseases of itself alone rendered him incapable of undertaking remunerative work otherwise than on a part-time basis or intermittently. This incapacity resulted in the loss of salary or wages. The court concluded that Armitt's incapacity from war-caused diseases alone prevented him from continuing to undertake remunerative work and thereby suffering loss of salary or wages. However, the court found that Armitt was not eligible for the special rate of pension because his incapacity was not solely due to war-caused diseases. The court found that Armitt was eligible for the intermediate rate of pension under section 23 of the Act. The court set aside the decision of the Veterans' Review Board and decided that the intermediate rate of pension was payable to the applicant, with effect from 23 July 2004.

The court ordered that the decision of the Veterans' Review Board dated 19 April 2005 be set aside and, in substitution therefor, that the intermediate rate of pension was payable to the applicant, pursuant to section 23 of the Veterans' Entitlements Act 1986 (Cth), with effect from 23 July 2004. This decision provided clarity for Armitt regarding his pension entitlements and ensured that he received the appropriate rate of pension based on his incapacity from war-caused diseases.

Orders

Orders of the court

The Tribunal sets aside the decision of the Veterans' Review Board dated 19 April 2005 and, in substitution therefor, decides that the intermediate rate of pension is payable to the applicant, pursuant to s 23 of the Veterans' Entitlements Act 1986 (Cth), with effect from 23 July 2004.

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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