Charles and Repatriation Commission - [2011] AATA 614

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 614
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/4393

VETERANS' APPEALS DIVISION )

Re SEATON RUSSELL CHARLES

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal G. D. Friedman, Senior Member
Date2 September 2011
PlaceMelbourne

Decision The Tribunal sets aside the decision under review and substitutes a decision that Mr Charles is entitled to disability pension at the special rate with effect from 17 August 2007.
..............(sgd)................................
Senior Member

VETERANS' AFFAIRS ‑ veterans’ entitlements - special rate of pension - whether incapacity from war-caused injuries ‘alone’ prevented the veteran from undertaking remunerative work
Veterans’ Entitlements Act 1986 ss 24(1)(b), 24(1)(c)
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
REASONS FOR DECISION
2 September 2011  G. D. Friedman, Senior Member
1.      Seaton Charles is receiving disability pension at 80 per cent of the general rate and he now seeks the higher loss-of-earnings related payment known as special rate. He last worked as a fork lift driver/store person and ceased employment in 2007.
2.      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 Charles is not entitled to special rate because there were reasons other than his war-caused psychiatric condition of post-traumatic stress disorder (PTSD) alone that account for him not being able to continue working in his previous occupation.
LEGISLATIVE BACKGROUND
3. 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 from war-caused injury or war-caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or…

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 Charles and Repatriation Commission

Details

AGLC: Charles and Repatriation Commission [2011] AATA 614
Case: [2011] AATA 614
Decision Date: 2 September 2011

CaseChat Overview and Summary

The parties involved in the case were Mr Charles and the Repatriation Commission. Mr Charles was seeking to have his pension rate reviewed, specifically claiming that he should be entitled to a disability pension at the special rate due to his war-caused injuries. The dispute was brought before the Administrative Appeals Tribunal (AAT). The central legal issue the court had to decide was whether Mr Charles's incapacity from war-caused injuries was the sole reason preventing him from undertaking remunerative work. The court had to interpret the statutory provision that mandates the special rate of pension when a veteran's incapacity from war-caused injuries 'alone' prevents them from engaging in remunerative work.

In reaching its decision, the court closely examined the statutory language and the evidence presented regarding Mr Charles's incapacity. It considered whether the statutory criteria were met and whether there were other factors that contributed to his inability to work. The court determined that Mr Charles's war-caused injuries did indeed 'alone' prevent him from undertaking remunerative work, thereby satisfying the statutory requirement for the special rate of pension. This conclusion was based on the totality of the evidence, which indicated that his injuries were the primary and sufficient cause of his inability to work, without any other contributing factors.

As a result of this decision, the Tribunal set aside the earlier decision of the Repatriation Commission and substituted it with a decision that Mr Charles is entitled to disability pension at the special rate, effective from 17 August 2007. This ruling recognises Mr Charles's significant war-caused injuries as the sole impediment to his ability to engage in remunerative work, thereby entitling him to the higher pension rate.

Orders

Orders of the court

The Tribunal sets aside the decision under review and substitutes a decision that Mr Charles is entitled to disability pension at the special rate with effect from 17 August 2007.

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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VETERANS' APPEALS DIVISION		)
Re		SEATON RUSSELL CHARLES