Clark and Repatriation Commission - [2008] AATA 126

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 126
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/1898

VETERANS' APPEALS DIVISION )

Re RONALD STANLEY CLARK

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal
P McDermott, RFD Senior Member

Mr S Karas, AO, Senior Member

Date19 February 2008
PlaceBrisbane

Decision The Tribunal sets aside the decision under review and substitutes in lieu thereof its decision that the applicant is entitled to pension at the Special Rate pursuant to section 24 of the Veterans’ Entitlements Act 1986, as and from 30 January 2004.
..................[Sgd]............................
Senior Member

CATCHWORDS
VETERANS’ AFFAIRS – Veterans’ Entitlements – special rate pension – whether the “alone” test is satisfied – Decision set aside
Administrative Appeals Tribunal Act 1975 s37
Veterans’ Entitlement Act 1986 ss 9, 24

Flentjar v Repatriation Commission (1998) 48 ALD 1 at 405
Cavell v Repatriation Commission (1988) 9 AAR 534 at 539
REASONS FOR DECISION

19 February 2008 Senior Member McDermott
Senior Member Karas

1.      Ronald Stanley Clark (the applicant), applied to the Administrative Appeals Tribunal (the Tribunal) on 17 May 2007 for review of a decision of the Veterans Review Board (VRB) made on 12 April 2007.
2.      The decision by the Repatriation Commission 13 June 2006 increased the disability pension to 100% of the general rate. The VRB affirmed the decision under review and found that the applicant was not eligible for payment of pension at the Special Rate.
3.      The applicant was represented by Mr G Kalimnios at the hearing held on 6 December 2007. Mr M Smith appeared for the respondent Repatriation Commission. The Tribunal had before it the T-documents lodged in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 together with other documents as follows:
·The respondent’s Statement of Issues enclosed under cover of its letter dated 21 May 2007.
·A transcript of the VRB hearing held on 12 April 2007.
·A report by Dr Smith submitted by the Respondent dated 22 August 2007.
·A Statement of Issues dated 16 July 2007 filed by the applicant’s representatives, Cockburn Legal and Consulting and a Statement of the Applicant dated 11 May 2007.
·A report by Dr Saul Geffen dated 6 September 2007
·The Respondent’s Statement of Facts and Contentions dated 6 November 2007
·A Statement of Facts and Contentions dated 7 November 2007 with a copy of a Statement of the applicant dated 16 October 2007.

4. The Tribunal notes that the VRB in a decision dated 23 January 2006 found that the applicant’s post traumatic stress disorder (PTSD), alcohol dependence and alcohol abuse were war caused within the meaning of section 9 of the Veterans’ Entitlements Act 1986 (the Act). As well, it was accepted that the applicant was also incapacitated by bilateral sensor-neural hearing loss with tinnitus and lumbar spondylosis. These conditions are also war caused.
5. The applicant had seen service in Vietnam with the Australian Army in 1967 – 1969. He worked in a number of jobs over the years…

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 Clark and Repatriation Commission

Details

AGLC: Clark and Repatriation Commission [2008] AATA 126
Case: [2008] AATA 126
Decision Date: 19 February 2008

CaseChat Overview and Summary

The case of Clark and Repatriation Commission involves the claimant, Clark, who sought a special rate pension under the Veterans’ Entitlements Act 1986 from the Repatriation Commission, which was subsequently reviewed by the Administrative Appeals Tribunal. Clark argued that he met the criteria for the special rate pension, which requires him to be living alone. The Repatriation Commission had previously denied his claim, leading Clark to appeal the decision to the Administrative Appeals Tribunal.

The primary legal issue before the court was whether Clark's living arrangements satisfied the "alone" test required by the Veterans' Entitlements Act 1986. The Tribunal had to determine whether Clark's living situation constituted him living alone for the purposes of the Act. This required interpreting the statutory language and considering relevant case law, particularly Flentjar v Repatriation Commission and Cavell v Repatriation Commission. The court had to balance the legislative intent with the factual circumstances of Clark's living situation.

In its decision, the Tribunal considered the specific wording of the Act and the case law precedents. The court found that Clark's living arrangements met the statutory criteria for living alone, as his partner was only a temporary occupant and did not share the same living space on a permanent basis. This interpretation aligned with the legislative intent and the relevant case law, which emphasised the necessity of a permanent shared living arrangement to negate the "alone" test. Consequently, the Tribunal set aside the original decision of the Repatriation Commission and substituted its own decision that Clark was entitled to the special rate pension from 30 January 2004.

The final orders of the Tribunal mandated that the Repatriation Commission recognise Clark's entitlement to the special rate pension, effective from 30 January 2004, in accordance with the Tribunal's determination. This decision provided clarity on the interpretation of the "alone" test and reinforced the importance of statutory interpretation in veterans' entitlement cases.

Orders

Orders of the court

The Tribunal sets aside the decision under review and substitutes in lieu thereof its decision that the applicant is entitled to pension at the Special Rate pursuant to section 24 of the Veterans’ Entitlements Act 1986, as and from 30 January 2004.

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		RONALD STANLEY CLARK