Barry Lamp and Repatriation Commission - [2014] AATA 506

[2014] AATA 506

Division VETERANS' APPEALS DIVISION

File Number

2013/0538

Re

Barry Lamp

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal
Deputy President K Bean
Senior Member N A Manetta

Date 25 July 2014

Place Adelaide
The decision under review is varied so as to provide that Mr Lamp is eligible to receive pension at the special rate provided for in s 24 of the Veterans’ Entitlements Act 1986 from 13 December 2010.

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Deputy President K Bean
CATCHWORDS
VETERANS' AFFAIRS - Veterans' entitlements - Rate of disability pension - Special rate - Whether "alone test" satisfied - Decision under review varied.
LEGISLATION
Veterans' Entitlements Act 1986, s 24
CASES
Richmond v Repatriation Commission [2014] FCA 272

Forbes v Repatriation Commission (2000) 101 FCR 50

Repatriation Commission v Hendy (2002) 76 ALD 47
REASONS FOR DECISION
Deputy President K Bean
Senior Member N A Manetta
25 July 2014

The applicant, Mr Lamp, served in the Royal Australian Navy from 1962 to 1982, with his service including operational service for various periods in 1966. He now suffers from a number of medical conditions which have been accepted as being war-caused, including thoracic and lumbar spondylosis.
On 13 March 2009, Mr Lamp lodged an application for an increase in his disability pension.[1] The Repatriation Commission (the Commission) decided to increase Mr Lamp’s pension to 100% of the general rate, but in doing so found that he was not eligible for a pension at the special or intermediate rates.[2]
[1] Exhibit 1, T4/19.
[2] Exhibit 1, T5/34.
In October 2009, Mr Lamp sought review of the Commission’s decision “not [to] consider special rate”, which was affirmed by the Veterans’ Review Board (VRB) on 26 November 2012.[3]
[3] Exhibit 1, T6/50 and T2/6. Mr Lamp’s application for review of the Commission’s decision dated 9 September 2009 was received by the Department of Veterans’ Affairs on 19 October 2009 and the appeal was registered by the VRB on 21 December 2009. The VRB hearing held on 30 April 2012 was adjourned under s 151 of the Veterans’ Entitlements Act 1986 to enable Mr Lamp to seek advice from an advocate, and the VRB’s decision on the application for review was subsequently made on 26 November 2012.
On 6 February 2013, Mr Lamp lodged an application for review by this Tribunal of the decision of the Commission (as affirmed by the VRB), giving rise to these proceedings.[4]
[4] Exhibit 1, T1/3.
LEGISLATION AND ISSUES
In order to establish that he is entitled to the special rate of pension, Mr Lamp must demonstrate that he satisfied all of the requirements of s 24 of the Veterans’ Entitlements Act 1986 (the VE Act) at some point during the assessment period. For the purposes of this matter, the assessment period is the period between when Mr Lamp first lodged his application for an increase in pension on 19 October 2009, and the date of this Tribunal’s decision.[5]
[5] VE Act, subs 19(9).
Section 24 of the…

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 Barry Lamp and Repatriation Commission

Details

AGLC: Barry Lamp and Repatriation Commission [2014] AATA 506
Case: [2014] AATA 506
Decision Date

CaseChat Overview and Summary

The case involves Mr Barry Lamp and the Repatriation Commission, with the dispute centred around Mr Lamp's eligibility for a disability pension at the special rate under the Veterans' Entitlements Act 1986 (VE Act). The matter was heard and determined by the Administrative Appeals Tribunal (AAT). The central issue before the Tribunal was whether Mr Lamp's war-caused incapacity alone prevented him from continuing to undertake remunerative work, thereby entitling him to receive a disability pension at the special rate from a specific date.

The Tribunal had to ascertain whether Mr Lamp's incapacity, which was attributed to his war service, was the sole reason he could not continue working at the Blanchetown Hotel. This involved evaluating the medical evidence, Mr Lamp's work history, and the impact of his war-related injuries on his ability to perform employment. The Tribunal carefully weighed the submissions and evidence provided by both parties, considering the statutory criteria and relevant case law to determine Mr Lamp's eligibility for the special rate pension.

The Tribunal concluded that Mr Lamp's war-caused incapacity was indeed the sole reason he was unable to continue his employment, thereby qualifying him for the disability pension at the special rate. The decision was varied to reflect that Mr Lamp is eligible for the special rate pension from 13 December 2010, which is the day following his last day of work. The Tribunal's reasoning was grounded in the evidence presented, which showed that Mr Lamp's incapacity was directly linked to his military service and was the primary factor preventing him from working.

The final orders of the Tribunal provided that Mr Lamp is eligible to receive pension at the special rate from 13 December 2010, as stipulated in section 24 of the VE Act. This decision recognised Mr Lamp's service-related incapacity and granted him the appropriate pension benefits in accordance with the legislation.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Accordingly, on the evidence before us, we find that Mr Lamp was prevented from continuing to undertake the remunerative work that he was previously undertaking, by reason of his war-caused incapacity alone, and he is therefore entitled to receive disability pension at the special rate. We consider that Mr Lamp is entitled to pension at the special rate from 13 December 2010, being the day after his last day of work at the Blanchetown Hotel.[11][11] Exhibit 5.DECISION The decision under review is varied so as to provide that Mr Lamp is eligible to receive pension at the special rate provided for in s 24 of the VE Act from 13 December 2010.

Ratio Decidendi

Legal Principle Established

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Division	VETERANS' APPEALS DIVISION
File Number	2013/0538
Re	Barry Lamp
APPLICANT
And	Repatriation Commission
RESPONDENT

Tribunal	Deputy President K Bean Senior Member N A Manetta
Date	25 July 2014
Place	Adelaide