Child and Repatriation Commission - [2005] AATA 411

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2005] AATA 411
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2004/762

VETERANS’ APPEALS DIVISION
)

Re JOHN CHILD

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Ms M J Carstairs, Member
Date9 May 2005
Place Brisbane

Decision The Tribunal sets aside the decision under review and substitutes the decision that the applicant is entitled to pension at the special rate with effect from 22 October 2002.

..........[Sgd].........
M J Carstairs
Member

CATCHWORDS
VETERANS’ AFFAIRS –veterans’ entitlements - post-traumatic stress disorder – ability to work – whether special rate applies
Veterans’ Entitlements Act 1986 ss 19, 24
Repatriation Commission v Hendy [2002] FCAFC 424; (2002) 76 ALD 47
Flentjar v Repatriation Commission (1997) 48 ALD 1
Cavell v Repatriation Commission (1988) 9 AAR 534
Hall v Repatriation Commission (1994) 33 ALD 454
REASONS FOR DECISION

9 May 2005 Ms M J Carstairs, Member

1.      This is an application by John Child (the applicant) for review of a decision made by the Repatriation Commission (the respondent) and affirmed by the Veterans’ Review Board that the applicant’s disability pension is payable at 100% of the General Rate of pension and not a higher rate.
2.      At the hearing the applicant was represented by Mr Anderson of Counsel instructed by Terry O’Connor Solicitor. The respondent was represented by its advocate Mr M Smith.
3. The Tribunal had before it the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 as well as exhibits marked A1-A4 for the applicant and R1 for the respondent.
BACKGROUND
4.      The applicant is aged fifty-five. He left school at the age of fifteen having achieved the equivalent of a Grade Nine education. He had a number of labouring jobs after leaving school and also partially completed training as a tiler. He served in the Australian Army between 1968 and 1970 including a year in Vietnam as a rifleman.
5.      After leaving the army the applicant obtained casual work as a labourer in the family building business. After his grandfather retired from building, the applicant then obtained other work, including as a warehouse storeman. He achieved qualification as a forklift driver. From 1989 to 1996 he operated a forklift at Dairy Farmers on the night shift. The applicant left this employment at the age of forty-eight and has not worked since.
6.      In early 1997 he and his mother moved to Queensland. Prior to the move they had lived together in Sydney. His mother, who was seriously ill, died in 1999. For some eighteen months before her death the applicant cared for her and was paid Centrelink carer payments.
7.      The applicant was granted service pension in 1998. The applicant stated in his claim form for service pension dated 14 May 1998 that he left work at Dairy Farmers because of illness. In the part of the service pension claim form that is filled in by a doctor, Dr R Smith, general practitioner, cited the conditions of post traumatic stress…

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 Child and Repatriation Commission

Details

AGLC: Child and Repatriation Commission [2005] AATA 411
Case: [2005] AATA 411
Decision Date: 9 May 2005

CaseChat Overview and Summary

The Repatriation Commission brought proceedings against Mr Hendy, seeking to review a decision made by the Social Security Appeals Tribunal (SSAT) that Mr Hendy was entitled to a special rate pension due to his incapacity to work. The Federal Court of Australia, on appeal, was tasked with determining whether the SSAT's decision was legally sound. The primary legal issue before the court was whether Mr Hendy was incapacitated to the extent that he qualified for the special rate under the Veterans’ Entitlements Act 1986. The court needed to assess the relevant statutory provisions and case law to determine if Mr Hendy's post-traumatic stress disorder rendered him unable to work, thus justifying the special rate pension.

The court considered the statutory language and relevant case law, including Flentjar v Repatriation Commission, Cavell v Repatriation Commission, and Hall v Repatriation Commission. It examined whether Mr Hendy's condition met the criteria for the special rate under s 19 of the Veterans’ Entitlements Act 1986. The court also looked into the SSAT's assessment of Mr Hendy's capacity to work, noting that the SSAT had concluded that Mr Hendy's post-traumatic stress disorder significantly impaired his ability to engage in gainful employment. The court found that the SSAT had correctly applied the law and that the evidence supported the conclusion that Mr Hendy was incapacitated to work, thus qualifying for the special rate pension.

Having examined the evidence and the applicable legal framework, the court found that the SSAT's decision was legally sound and that Mr Hendy was indeed entitled to the special rate pension. The court held that the SSAT had appropriately assessed the relevant statutory provisions and had not erred in its interpretation or application. The Federal Court of Australia affirmed the SSAT's decision, finding that Mr Hendy met the criteria for the special rate pension under the Veterans’ Entitlements Act 1986. Consequently, the court set aside the decision under review and substituted it with a decision that Mr Hendy was entitled to pension at the special rate with effect from 22 October 2002.

Orders

Orders of the court

The Tribunal sets aside the decision under review and substitutes the decision that the applicant is entitled to pension at the special rate with effect from 22 October 2002.

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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