Ash and Repatriation Commission - [2010] AATA 987

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 987
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2006/2596

VETERANS' APPEALS DIVISION )

Re PETER ASH

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal The Hon. Brian Tamberlin, QC, Deputy President
Dr I Alexander, Member
Date9 December 2010
PlaceSydney

Decision
The decision of the Veterans’ Review Board is set aside, and in substitution, the decision is that the Applicant satisfies all the requirements of s 24 of the Veterans’ Entitlement Act 1986 for receipt for a disability pension at the Special Rate.

....................[sgd]...................
The Hon. Brian Tamberlin, QC
Deputy President

CATCHWORDS
VETERANS ENTITLEMENTS- increase in disability pension from general rate to special rate- war-caused conditions- attempt to gain remunerative work- prevented from undertaking or continuing remunerative work by reason of war-caused conditions- the war-caused conditions are the only factor or factors preventing the veteran from continuing to undertake that work- loss of salary, wages or earnings- SET ASIDE.
LEGISLATION
Veterans’ Entitlement Act 1986
CASES
Flentjar v Repatriation Commission (1997) 48 ALD at 1 at 4-5
Starcevich v Repatriation Commission (1987) 18 FCR 221
Cavell v Repatriation Commission (1988) 9 AAR 534 at 539
Forbes v Repatriation Commission [2000] 101 FCR 50 at 57
Hornery and Repatriation Commission (1998)
Repatriation Commission v Sheehy (1995)
REASONS FOR DECISION

9 December 2010 The Hon. Brian Tamberlin, QC, Deputy President
and Dr I Alexander, Member

1.      This is an application by Mr Ash (the veteran) for review of a decision of the Veterans’ Review Board (the Board) dated 1 November 2006, which affirmed a decision that continued his disability pension at 100 per cent of the General Rate when he made an application for an increase in disability pension to Special Rate.
2.      The relevant statutory position is s 24 of the Veterans’ Entitlement Act 1986 (the Act), which provides:
Special rate of pension
(1) This section applies to a veteran if:
                    (aa) the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
                  (aab) the veteran had not yet turned 65 when the claim or application was made; and
   (a) either:
   (i) the degree of incapacity of the veteran from war‑caused injury or war‑caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
   (ii) the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and
   (b) the veteran is totally and permanently incapacitated, that is to say, the veteran's incapacity from war‑caused injury or war‑caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and
   (c) the veteran is, by reason of incapacity from that war‑caused…

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 Ash and Repatriation Commission

Details

AGLC: Ash and Repatriation Commission [2010] AATA 987
Case: [2010] AATA 987
Decision Date: 9 December 2010

CaseChat Overview and Summary

The case of Ash and the Repatriation Commission involved a dispute over the classification of a disability pension for the applicant, who was a veteran. The primary issue was whether the applicant qualified for a special rate disability pension based on his war-caused conditions, as opposed to the general rate pension. The case was heard in the Federal Court of Australia. The legal questions at the heart of this case revolved around the interpretation of the Veterans’ Entitlement Act 1986, particularly section 24, which outlines the criteria for the classification of a disability pension at the special rate. The court needed to determine if the applicant's war-caused conditions were the sole factors preventing him from engaging in remunerative work, and if his loss of salary, wages, or earnings was due to these conditions. The Federal Court's analysis focused on the specific language of section 24 and the legislative intent behind the special rate classification. The court found that the applicant's conditions met the stringent criteria for the special rate, as they were the exclusive barriers to his ability to work. Consequently, the court ruled that the applicant was entitled to the special rate pension. The decision of the Veterans’ Review Board was overturned, and the applicant was granted the special rate disability pension in accordance with the Act.

Orders

Orders of the court

The decision of the Veterans’ Review Board is set aside, and in substitution, the decision is that the Applicant satisfies all the requirements of s 24 of the Veterans’ Entitlement Act 1986 for receipt for a disability pension at the Special Rate.

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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