Canuto and Repatriation Commission (Veterans' entitlements) - [2020] AATA 5073

Canuto and Repatriation Commission (Veterans' entitlements) [2020] AATA 5073 (16 December 2020)
Division:VETERANS' APPEALS DIVISION
File Number(s): 2020/0786
Re:James Canuto
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Deputy President I R Molloy
Date:16 December 2020
Place:Brisbane

The decision under review is affirmed.
...........................[SGD].............................................
Deputy President I R Molloy
CATCHWORDS
VETERANS’ ENTITLEMENTS – application for special rate of pension – whether capable of undertaking remunerative employment exceeding an aggregate 8 hours per week – whether last remunerative work ceased due to war-caused injury or war-caused disease alone – whether loss of income or wages as a result of war-caused injury or war-caused disease alone – consideration of termination from previous employment – eligibility for special rate pension not met – decision affirmed.
LEGISLATION
Veterans’ Entitlements Act 1986
CASES
Summers v Repatriation Commission [2015] FCAFC 36
REASONS FOR DECISION
Deputy President I R Molloy
16 December 2020

Mr Canuto is a veteran who served in the Vietnam War. On 23 November 2018 he lodged a disability pension claim.
On 16 January 2019 a delegate of the Repatriation Commission accepted Mr Canuto’s claim for post-traumatic stress disorder and alcohol use disorder with effect from 23 August 2018.
The delegate also decided that Mr Canuto’s disability pension be increased to the Extreme Disablement Adjustment rate. The delegate rejected a claim for payment at the Special Rate.
Mr Canuto applied for a review by the Veterans’ Review Board on 18 February 2019. On 5 November 2019 the Board affirmed the Commission’s decision rejecting the claim for payment at the special rate.
Mr Canuto has applied by application dated 4 February 2020 to the Tribunal for review. The issue is whether Mr Canuto is entitled to the special rate pension.
Evidence was given by Mr Canuto and his treating psychiatrist Dr Janet Bayley. The applicant also relied on reports from Dr Bayley and on other medical reports contained within the T-Documents.
Written statements were received from Ross Andrews, Carolyn Sinclair, Patricia Bailey OAM, Florence Watson OAM, Steven Begg, Nerelle Nicol, Kathy Lakatos, Kathy Hare, Brian Griffin and Cleveland Fagan.
Oral evidence was also given by Norman Rowe AM and Anthony Blumer (each of whom also provided written statements). All of these witnesses spoke positively of Mr Canuto.
Legislation
Mr Canuto was born in 1948 and therefore turned 65 in 2013.
Because he was over 65 years of age when his claim was lodged, s 24(2A) of the Veterans’ Entitlements Act 1986 (the Act) is engaged. Section 24(2A) of the Act applies to a veteran if each of its sub-paragraphs (a) to (h) are satisfied.
Specifically, section 24(2A) of the Act provide:
(2A) This section applies to a veteran if:
(a) 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
(b) the veteran had turned 65 before the claim or application was made; and
(c) paragraphs (1)(a) and…

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: [2020] AATA 5073
Decision Date: 16 December 2020

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application by Mr Canuto for a pension payable at the special rate under the *Veterans' Entitlements Act 1986* (Cth). The Repatriation Commission opposed the application.

The Tribunal was required to determine whether Mr Canuto met the criteria for a special rate pension, specifically whether he was capable of undertaking remunerative employment exceeding an aggregate of 8 hours per week, and whether his cessation of remunerative work and any resultant loss of income were solely due to a war-caused injury or war-caused disease.

The Tribunal found that Mr Canuto did not satisfy the requirements of section 24(2A) of the Act. It concluded that he was capable of undertaking remunerative employment exceeding 8 hours per week. Furthermore, the Tribunal was satisfied that Mr Canuto did not cease his last remunerative work solely due to a war-caused injury or disease, nor had he suffered a loss of income or wages as a result of such injury or disease alone.

Consequently, Mr Canuto's application for a pension payable at the special rate was refused, and the decision of the respondent was affirmed. The Tribunal noted that while the respondent obliquely raised the issue of eligibility for an Extreme Disablement Adjustment, it was not a squarely raised issue and it would be unfair to make a finding on that matter.

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

I accept the respondent’s contention that Mr Canuto does not satisfy s 24(2A)(e) of the Act. He suffers a loss of salary, wages, or earnings due to other reasons than war-caused injury or war-caused disease.Conclusion In summary I am satisfied Mr Canuto is capable of undertaking remunerative employment exceeding an aggregate 8 hours per week as referred to in s 24(2A)(c) and s 24(1)(b) of the Veterans’ Entitlements Act. I am satisfied Mr Canuto did not cease his last remunerative work due to war-caused injury or war-caused disease alone pursuant to s 24(2A)(d) of the Act. I am also satisfied he has not suffered a loss of income or wages as a result of war-caused injury or war-caused disease pursuant to s 24(2A)(e) of the Act. Consequently, his application for a pension payable at the special rate must be refused. The respondent’s written submissions, entitled “Respondent’s Submissions on Special Rate”, include the following:5.8On the material provided by the applicant it is unclear the applicant satisfies the Extreme Disablement Adjustment rate of pension. The submissions go on to list matters in support of this proposition. This was not an issue which was squarely raised in the hearing. It is only obliquely raised in the respondent’s later written submissions. In the circumstances it would be unfair to Mr Canuto for me to consider making this sort of finding against him.

Ratio Decidendi

Legal Principle Established

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