Counsel and Repatriation Commission - [2001] AATA 286

DECISION AND REASONS FOR DECISION [2001] AATA 286

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/1270

VETERANS' APPEALS DIVISION       )
           Re      LAURENCE COUNSEL
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Dr J D Campbell, Member

Date9 April 2001
PlaceSydney

Decision      The Tribunal determines that the decision under review be affirmed.
  ..............................................
  [Sgd] Dr J D Campbell
  Member
CATCHWORDS
Veterans' Entitlement - assessment - special rate - extreme disablement - alone issue - remunerations work - loss of earnings
Veterans' Entitlement Act 1986 ss 22, 23, 24, 120
Hill v Repatriation Commission [2000] FCA 929
Repatriation Commission v Greenwood (1990) 22 ALD 289
Re Fahey and Repatriation Commission (1986) 10 ALD 338
Re Bertram and Repatriation Commission (AAT 2783, 29 July 1986)

REASONS FOR DECISION

Dr J D Campbell, Member

In this application, Mr L Counsel ("the Applicant") seeks a review of the decision of the Repatriation Commission ("the Respondent") dated 13 November 1998, which increased the Applicant's disability pension to 100% of the General Rate with effect from 31 July 1998. This decision had been reviewed by the Veterans' Review Board and affirmed in a decision dated 26 July 1999.
A hearing was held before the Tribunal on 4 August 2000 and adjourned, pending receipt of income tax returns for the Applicant and his wife. The Applicant was represented by Ms Buchanan, an advocate from the Legal Aid Commission. The Applicant presented oral evidence to the Tribunal. The Respondent was represented by Mr Wallis, a solicitor from the Department of Veterans' Affairs. Following receipt of the outstanding documentation, final submissions were received from the Applicant on 15 November 2000, and from the Respondent on 18 January 2001. The Applicant's closing submission was received on 25 January 2001.

The following material was placed into evidence before the Tribunal:
Exhibit No  Description            Date
T1-T15 pp1-61 Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975
A1      Employment history of the Applicant      24 April 2000
A2      Occupational activities of the Applicant 1982-1993      4 May 2000
A3      Bundle of documents relating to sale of property          24 July 2000
A4      Statement Mr K Sawyer     30 March 2000
A5      Copy of photographs of Applicant's previous property showing farming and fencing activities
A6      Copies of tax returns for partnership 1986-1993
A7      Summary of Applicant's farm revenue 1983-1993        3 August 2000
A8      Financial Statement for Applicant's and his wife partnership for year ending 30 June 1993
A9      Applicant's statement of facts and contentions 12 July 2000
R1      Medical Report Dr Baz       4 November 1999
R2      Financial return for partnership for financial years 1984/85 and 1985/86
R3      Income and assets statement for the Applicant for years 1984, 1987, 1988, 1990, 1991, 1994
R4      Respondent's statement of facts and contentions        1 August 2000
issues
The relevant issue in this matter is whether the Applicant is entitled to payment of a disability pension at a rate higher than 100% of the general rate.
legislation
The relevant legislation in this matter is the Veterans' Entitlement Act 1986 ("the…

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

AGLC: Counsel and Repatriation Commission [2001] AATA 286
Case: [2001] AATA 286
Decision Date: 9 April 2001

CaseChat Overview and Summary

In the case of Counsel v Repatriation Commission, the applicant, a veteran, sought an increase in his disability pension under the Veterans' Entitlement Act 1986. The dispute centred on whether the applicant qualified for an increase in pension due to extreme disablement or whether he was entitled to a special rate based on his inability to undertake remunerative work due to war-caused injuries or disease. The matter was heard by the Federal Court of Australia.

The primary legal issue before the court was whether the applicant's disabilities rendered him incapable of undertaking remunerative work, thereby qualifying him for a special rate pension under section 24(2A) of the Act. The court had to examine the statutory criteria for determining the special rate, particularly the requirement that the applicant be "totally and permanently incapacitated" and unable to undertake work due to war-caused injuries or disease. Additionally, the court needed to consider if the applicant's disabilities alone prevented him from engaging in remunerative work and if he was suffering a loss of earnings as a result.

The court examined the applicant's medical history and the extent of his disabilities, which included myopia, bilateral sensorineural hearing loss, tinnitus, ischaemic heart disease, post-traumatic stress disorder, and others. The court also scrutinized the applicant's work history and the impact of his disabilities on his ability to engage in remunerative work. The tribunal found that although the applicant had a series of accepted disabilities, these did not cumulatively prevent him from undertaking any form of remunerative work. Consequently, the court determined that the applicant did not meet the criteria for a special rate pension under section 24(2A) of the Act. The court further found that the applicant's financial situation, including his investments and the income from his farm, did not support a claim for an extreme disablement allowance. Thus, the decision to maintain the applicant's pension at 100% of the general rate was affirmed.

The court's decision was that the applicant was not entitled to an increase in his disability pension beyond 100% of the general rate. The court upheld the respondent's decision and dismissed the applicant's appeal.

Orders

Orders of the court

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Background

Background to the litigation

The relevant legislation in this matter is the Veterans' Entitlement Act 1986 ("the Act"), and in particular sections 22, 23, 24(1), 24(2A), 24(2B), 120(4).background The Applicant lodged a claim for an increase in disability pension on 31 July 1998. At the time of lodgement, the Applicant was receiving a disability pension at 90% of the general rate for the accepted conditions of myopia, bilateral sensorineural hearing loss, tinnitus, ischaemic heart disease, post traumatic stress disorder, tinea, impotence, folliculitis and chronic solar skin damage. On 13 November 1998, a delegate of the Respondent made a decision upon the application to increase the Applicant's disability pension to 100% of the general rate, with effect from 31 July 1998. Consideration by the delegate was given to payment of the pension at either the intermediate or special rate or the payment of an extreme disablement allowance, but each in turn was declined by the delegate for nominated reasons. Following consideration by the departmental review officer on 31 March 1999, a review was undertaken by the Veterans' Review Board, who in a decision dated 26 July 1999, affirmed the decision under review.applicant's evidence: The Applicant informed the Tribunal that he was born in the United Kingdom on 7 June 1922 and came to Australia as a migrant in 1938. The Applicant stated that he served with the Army from 1940 to 1946 and served for some two years in New Guinea. Prior to his war service, the Applicant stated that he spent some six weeks on a farm on the Central Coast of New South Wales, during which time he had an episode of blood poisoning. For the following 12 months, the Applicant indicated that he worked on a sheep and wheat property in the West Wyalong area, where his duties included ploughing, seeding and rabbit trapping. The Applicant indicated that after the war he worked in a variety of jobs, including 3 years in the United Kingdom, prior to returning to work for W C Stevens from 1960 to 1982. The Applicant indicated that he ceased work with W C Stevens because the company was starting to downsize and he was finding the work stressful. The Applicant stated that he married in 1971 and in 1980 purchased a farm property, as he had always wanted to be a farmer. At the time of the purchase, the Applicant stated that, it was not a viable business. In 1980 the property was stocked, his wife and casual labour undertook major activities in relation to the house, sheds and piggery over the next two years. In 1982, the Applicant and his wife moved to live on the property and his work activity was seven days a week, ten hours a day, as he and his wife moved to improve and expand the farming activities, which included beef cattle, pigs and some cropping. The Applicant stated that revenue came from the sale of livestock, and that any revenue, which varied from year to year depending on seasonal conditions, was reinvested in further developing the farm, by way of equipment purchases, fencing, building dams, sheds and a house. The Applicant stated that in 1988 he sold part of the property because of health deterioration (high blood pressure), and that he stopped smoking. At this time he had started to experience physical difficulty with various tasks and he had reduced stock, with closure of the piggery and a reduction in beef cattle by about 50%. As a consequence, revenue dropped off after 1988.

Evidence

Evidence Before The Court

On 13 November 1998, a delegate of the Respondent made a decision upon the application to increase the Applicant's disability pension to 100% of the general rate, with effect from 31 July 1998. Consideration by the delegate was given to payment of the pension at either the intermediate or special rate or the payment of an extreme disablement allowance, but each in turn was declined by the delegate for nominated reasons. Following consideration by the departmental review officer on 31 March 1999, a review was undertaken by the Veterans' Review Board, who in a decision dated 26 July 1999, affirmed the decision under review.applicant's evidence: The Applicant informed the Tribunal that he was born in the United Kingdom on 7 June 1922 and came to Australia as a migrant in 1938. The Applicant stated that he served with the Army from 1940 to 1946 and served for some two years in New Guinea. Prior to his war service, the Applicant stated that he spent some six weeks on a farm on the Central Coast of New South Wales, during which time he had an episode of blood poisoning. For the following 12 months, the Applicant indicated that he worked on a sheep and wheat property in the West Wyalong area, where his duties included ploughing, seeding and rabbit trapping. The Applicant indicated that after the war he worked in a variety of jobs, including 3 years in the United Kingdom, prior to returning to work for W C Stevens from 1960 to 1982. The Applicant indicated that he ceased work with W C Stevens because the company was starting to downsize and he was finding the work stressful. The Applicant stated that he married in 1971 and in 1980 purchased a farm property, as he had always wanted to be a farmer. At the time of the purchase, the Applicant stated that, it was not a viable business. In 1980 the property was stocked, his wife and casual labour undertook major activities in relation to the house, sheds and piggery over the next two years. In 1982, the Applicant and his wife moved to live on the property and his work activity was seven days a week, ten hours a day, as he and his wife moved to improve and expand the farming activities, which included beef cattle, pigs and some cropping. The Applicant stated that revenue came from the sale of livestock, and that any revenue, which varied from year to year depending on seasonal conditions, was reinvested in further developing the farm, by way of equipment purchases, fencing, building dams, sheds and a house. The Applicant stated that in 1988 he sold part of the property because of health deterioration (high blood pressure), and that he stopped smoking. At this time he had started to experience physical difficulty with various tasks and he had reduced stock, with closure of the piggery and a reduction in beef cattle by about 50%. As a consequence, revenue dropped off after 1988. The Applicant told the Tribunal that the farm was sold in 1993, at a time when it was still a viable business. The Applicant stated that at this time he was experiencing increasing health problems, with heart and blood pressure problems, together with increasing stress and anxiety.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

In final contention, the Respondent submitted that as the Applicant is not able to establish a loss of earnings on his own account as a result of the effects of accepted disabilities, the Applicant cannot succeed in any claim for either intermediate or special rate.consideration and findings In preliminary observations, the Tribunal acknowledges the manner in which both parties have attempted to conduct their approach to this matter. Nevertheless, at the end of all relevant inquiries, the Tribunal is left to ponder on what were the Applicant's actual financial arrangements, during the period in which the partnership existed. In the evidence presented to the Tribunal, there existed a partnership between 1982 and 1993 which involved the Applicant and his wife, and for all extent and purpose owned a farm from which income was derived. The Tribunal notes that the farming enterprise resulted in a longitudinal series of annual losses, apart from an insignificant profit in 1989. Further, the Tribunal observes that the Applicant had particular investments which yielded income and that he was in receipt of a service pension throughout the period of the partnership. Having assessed and considered the evidence, the Tribunal makes the following findings of fact: The Tribunal notes the following statutory framework under which this matter is to be determined, namely section 22(4) and sections 23 and 24 of the Act:" General rate of pension and extreme disablement adjustment22(4) Where: (a) either: (i) the degree of incapacity of a veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be 100% or has been so determined by a determination that is in force; or (ii) a veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the maximum rate per fortnight specified in subsection (3); (b) the veteran has attained the age of 65; (c) the veteran has an impairment rating of at least 70 points and a lifestyle rating of at least 6 points, each determined in accordance with the approved Guide to the Assessment of Rates of Veterans' Pensions; and (d) the veteran is not receiving a pension at a rate provided for by section 23, 24 or 25; the rate at which pension is payable to the veteran is increased by 50% of the maximum rate set out in subsection (3).…Special rate of pension24(1) This section applies to a veteran if: (aa) 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 (aab) the veteran had not yet turned 65 when the claim or application was made; and (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; or (ii) the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and (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 …(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 (1)(b) apply to the veteran; and (d) the veteran is, because of incapacity from war-caused injury or war-caused disease or both, alone, prevented from continuing to undertake the remunerative work ("last paid work") that the veteran was last undertaking before he or she made the claim or application; and (e) because the veteran is so prevented from undertaking his or her last paid work, the veteran is suffering a loss of salary or wages, or of earnings on his or her own account, that he or she would not be suffering if he or she were free from that incapacity; and (f) the veteran was undertaking his or her last paid work after the veteran had turned 65; and (g) when the veteran stopped undertaking his or her last paid work, the veteran: (i) if he or she was then working as an employee of another person—had been working for that person, or for that person and any predecessor or predecessors of that person; or (ii) if he or she was then working on his or her own account in any profession, trade, employment, vocation or calling—had been so working in that profession, trade, employment, vocation or calling; for a continuous period of at least 10 years that began before the veteran turned 65; and (h) section 25 does not apply to the veteran. (2B) For the purposes of paragraph (2A)(e), a veteran who is incapacitated from war-caused injury or war-caused disease or both, is not taken to be suffering a loss of salary or wages, or of earnings on his or her own account, because of that incapacity if: (a) the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; or (b) the veteran is incapacitated, or prevented from engaging in remunerative work for some other reason."