BARRY GEOFFREY NUNN and REPATRIATION COMMISSION - [2012] AATA 46

[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…

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.

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Details

Case: [2012] AATA 46
Decision Date: 31 January 2012

CaseChat Overview and Summary

Barry Geoffrey Nunn sought a review of a decision by the Repatriation Commission regarding his eligibility for a special rate of disability pension. The central dispute was whether Mr Nunn's incapacity, attributed to war-caused post-traumatic stress disorder (PTSD) and major depressive disorder, was the sole reason preventing him from engaging in remunerative work. The matter was heard in the Administrative Appeals Tribunal by G.D. Friedman, Senior Member, who examined the eligibility criteria under the Veterans' Entitlements Act 1986.

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.

Orders