BRIAN MANSFIELD and REPATRIATION COMMISSION - [2010] AATA 192

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 192
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/1492

VETERANS' APPEALS DIVISION )

Re BRIAN MANSFIELD

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr R G Kenny, Senior Member
Date23 March 2010
PlaceBrisbane

Decision
The Tribunal affirms the decision under review.

................[Sgd]..............................
Senior Member

CATCHWORDS
VETERANS’ AFFAIRS – Veteran’s entitlements – Veteran in receipt of 100% general rate pension – Veteran not able to undertake remunerative work for more than 8 hours per week because of service-related conditions – Veteran not prevented from undertaking remunerative work that he was undertaking because of war-caused conditions alone – Special rate of pension not payable - Intermediate rate of pension not payable decision affirmed
Veterans’ Entitlements Act 1986 ss 5Q, 14, 19, 22, 23, 24, 119, 120
Birtles v Repatriation Commission (1991) 24 ALD 545
Flentjar v Repatriation Commission (1997) 26 AAR 93
Re Hanrahan and Repatriation Commission (1992) 26 ALD 766.
Leane v Repatriation Commission (2004) 81 ALD 625
Repatriation Commission v Hendy (2002) 76 ALD 47
REASONS FOR DECISION

23 March 2010 Mr R G Kenny, Senior Member

BACKGROUND
1. On 5 March 2007, Brian Mansfield made a claim under s 14 of the Veterans’ Entitlements Act 1986 (Cth) (the Act) for a disability pension for incapacity from conditions which, he contended, were related to his Royal Australian Navy (RAN) service. On 1 November 2007, a delegate of the Repatriation Commission accepted his claim in relation to post traumatic stress disorder, alcohol dependence, osteoarthritis of right knee, fracture of right knee cap, patellectomy, fracture of the right clavicle (healed) and hypertension. Disability pension was assessed under s 22 of the Act at 100% of the general rate with effect from 5 December 2006 in relation to incapacity associated with those conditions as well as that from the previously accepted conditions of bilateral sensori-neural hearing loss and impotence. On 1 April 2009, the Veterans’ Review Board (the Board) affirmed that decision. In assessing pension, the delegate and the Board determined that the applicant did not qualify for the intermediate or special rate of pension under s 23 or s 24 of the Act, respectively.
ISSUES AND LEGISLATION
2. Matters in issue are to be determined to the Tribunal’s reasonable satisfaction and in accordance with substantial justice and the substantial merits of the case[1]. In that process, neither party bears an onus of proof[2]. The procedure to be followed is provided for in s 19 of the Act. It requires the rate of pension to be assessed from time to time during the assessment period[3] which is defined as starting on the application day and ending when the claim or application is determined[4]. It is not disputed that the application day in this case was 5 March 2007 and that the assessment period runs from that day until the matter is determined.
[1] See s 120(4) and s 119(1) of the Act, respectively.
[2] See s 120(6) of the Act.
[3]…

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 BRIAN MANSFIELD and REPATRIATION COMMISSION

Details

AGLC: BRIAN MANSFIELD and REPATRIATION COMMISSION [2010] AATA 192
Case: [2010] AATA 192
Decision Date: 23 March 2010

CaseChat Overview and Summary

Brian Mansfield, a veteran, appealed a decision by the Repatriation Commission regarding his eligibility for a special or intermediate rate pension under the Veterans’ Entitlements Act 1986. Mansfield was receiving a 100% general rate pension due to his service-related conditions, which rendered him incapable of undertaking remunerative work for more than 8 hours per week. The crux of the dispute was whether his inability to engage in remunerative work was solely due to war-caused conditions, which would entitle him to a special rate pension, or if his service-related conditions were also a contributing factor, potentially limiting his entitlement to an intermediate rate pension.

The primary legal issue before the court was the interpretation and application of sections 5Q, 14, 19, 22, 23, 24, 119, and 120 of the Veterans’ Entitlements Act 1986. Specifically, the court needed to determine whether Mansfield's circumstances fell under the criteria for a special rate pension, which requires that the veteran not be prevented from undertaking remunerative work solely due to war-caused conditions. Alternatively, if his service-related conditions contributed to his inability to work, the question was whether this warranted an intermediate rate pension. The court also considered relevant case law, including Birtles v Repatriation Commission, Flentjar v Repatriation Commission, Re Hanrahan and Repatriation Commission, Leane v Repatriation Commission, and Repatriation Commission v Hendy.

Upon reviewing the evidence and applicable legislation, the court found that while Mansfield's war-caused conditions played a role in his limited work capacity, his service-related conditions were also significant factors. Therefore, his inability to undertake remunerative work was not solely due to war-caused conditions. The court held that the Repatriation Commission's decision to deny a special or intermediate rate pension was correct, as the veteran's circumstances did not meet the stringent criteria for either pension type. The court affirmed the decision under review, upholding the Commission's determination.

The final orders of the Tribunal were to affirm the decision of the Repatriation Commission, meaning that Brian Mansfield's appeal was dismissed, and he remained entitled to the 100% general rate pension. The court's reasoning was grounded in the specific statutory provisions and the precedent set by the referenced cases, ensuring that the veteran's entitlements were assessed according to the law.

Orders

Orders of the court

The Tribunal affirms the decision under review.

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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