[2012] AATA 46
| Division | GENERAL ADMINISTRATIVE DIVISION |
| File Number | 2009/4361 |
| Re | BARRY GEOFFREY NUNN |
| APPLICANT | |
| And | REPATRIATION COMMISSION |
| RESPONDENT |
DECISION
| Tribunal | G. D. Friedman, Senior Member |
| Date | 31 January 2012 |
| Place | Melbourne |
The Tribunal sets aside the decision under review and substitutes a decision that Mr Nunn is entitled to payment of disability pension at the special rate with effect from 26 February 2008.
.................................[sgd].......................................
G. D. Friedman, Senior Member
VETERANS' AFFAIRS – veterans’ entitlements – special rate of pension – soil and gravel supply business – post traumatic stress disorder and major depressive disorder – whether incapacity from war-caused injuries ‘alone’ prevented the veteran from undertaking remunerative work
Veterans’ Entitlements Act 1986 ss 24(1)(c), 24(2)(a), 24(2)(b)
Banovich v Repatriation Commission (1986) 69 ALR 395
Cavell v Repatriation Commission (1988) 9 AAR 534
Flentjar v Repatriation Commission (1997) 48 ALD 1
Forbes v Repatriation Commission (2000) 101 FCR 50
Repatriation Commission v Hendy (2002) 76 ALD 47
REASONS FOR DECISION
G. D. Friedman, Senior Member
31 January 2012
Barry Nunn is receiving disability pension at 70 per cent of the general rate and he now seeks the higher loss-of-earnings related payment known as special rate. He operated a soil and gravel supply business, which he sold in 2007, and he has not worked since.
The special rate of pension requires, among other things, that a person is prevented from continuing to undertake remunerative work, and cannot work more than eight hours per week, by reason of war-caused disability. The respondent says that Mr Nunn is not entitled to special rate because there were reasons other than his war-caused disabilities of post-traumatic stress disorder (PTSD) and major depressive disorder that account for him not continuing to work during the assessment period.
LEGISLATIVE BACKGROUND
Section 24 of the Veterans' Entitlements Act 1986 (the Act) makes provision for payment at rates higher than 100 per cent of the general rate of pension:
24(1) This section applies to a veteran if:
(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…
(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 injury or war caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity…
(2) For the purpose of paragraph (1)(c):
(a) a veteran who is incapacitated…
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- [2012] AATA 46
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CaseChat Overview and Summary
The primary legal issue was whether Mr Nunn met the 'alone test' specified in section 24(1)(c) of the Act. This test requires that a veteran's war-caused incapacity alone must prevent them from continuing remunerative work, and they cannot work more than eight hours per week because of that incapacity. The respondent argued that other reasons, not related to Mr Nunn's war-caused disabilities, accounted for him not continuing to work.
In determining the issue, the Tribunal considered Mr Nunn's history of operating a soil and gravel supply business, which he sold in 2007. He cited his medical conditions as the primary reason for selling the business. The Tribunal weighed the testimonies of Mr Nunn, his wife, and expert opinions from psychiatrists, along with evidence from former employees and customers. The Tribunal concluded that Mr Nunn's psychiatric conditions, PTSD and depressive disorder, were the sole factors preventing him from continuing his business activities. The evidence supported that these conditions led to his inability to manage the business effectively and maintain customer relationships.
The Tribunal ruled that Mr Nunn satisfied the 'alone test' and was therefore entitled to the special rate of disability pension. The decision under review was set aside, and a new decision was substituted, granting Mr Nunn the special rate of disability pension effective from 26 February 2008.
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