Cunningham and Repatriation Commission - [2000] AATA 1134

DECISION AND REASONS FOR DECISION [2000] AATA 1134

ADMINISTRATIVE APPEALS TRIBUNAL)
Nº N99/1383
VETERANS' APPEALS DIVISION)

Re: BERNARD ROBERT CUNNINGHAM

Applicant

And: REPATRIATION COMMISSION

Respondent

DECISION

Tribunal:        Mrs H.E. Hallowes, Senior Member
Date:             21 December 2000
Place:            Sydney

Decision:The Tribunal sets aside the decision under review, and substitutes a decision that the applicant is entitled to be paid pension at 50 per cent of the general rate under section 22 of the Veterans' Entitlements Act 1986 ("the Act") on and from 14 November 1994, at 100 per cent of the general rate on and from 9 January 1996 and at the special rate of pension under section 24 of the Act on and from 18 September 1997.

(sgd) H.E. Hallowes
Senior MemberVETERANS' AFFAIRS — rate — not yet turned 65 years — whether capable of undertaking remunerative work for more than eight hours per week — whether ceased work for reasons other than accepted disabilities — substantial cause of inability to work
Veterans' Entitlements Act 1986 ss.22, 24, 28
Fry v Repatriation Commission (1997) 47 ALD 776
Re Cripps and Repatriation Commission (AAT 12220, 8 September 1997)

REASONS FOR DECISION

21 December 2000 Mrs H.E. Hallowes, Senior Member

The applicant seeks review of a decision of the Veterans' Review Board ("the VRB") made on 3 August 1999. The VRB decided to set aside the decision of the Repatriation Commission made on 12 December 1996 and to substitute a decision that pension be assessed at 20 per cent of the general rate from and including 14 November 1994 and at 90 per cent of the general rate from and including 9 January 1996 and at 100 per cent of the general rate from and including 18 September 1997.
It is one of the applicant's contentions that he is entitled to be paid pension at the special rate under section 24 of the Veterans' Entitlements Act 1986 ("the Act") from 29 February 1996. Section 24 provides, so far as relevant:
24(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…

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 Cunningham and Repatriation Commission

Details

AGLC: Cunningham and Repatriation Commission [2000] AATA 1134
Case: [2000] AATA 1134
Decision Date: 21 December 2000

CaseChat Overview and Summary

Bernard Robert Cunningham appealed against a decision of the Veterans' Review Board (VRB) to set aside a decision of the Repatriation Commission. The VRB substituted a decision that pension be assessed at 20 per cent of the general rate from 14 November 1994 and at 90 per cent of the general rate from 9 January 1996 and at 100 per cent of the general rate from 18 September 1997. The applicant argued that he was entitled to be paid pension at the special rate under section 24 of the Veterans' Entitlements Act 1986 from 29 February 1996. The Tribunal set aside the decision under review, and substituted a decision that the applicant is entitled to be paid pension at 50 per cent of the general rate under section 22 of the Act on and from 14 November 1994, at 100 per cent of the general rate on and from 9 January 1996 and at the special rate of pension under section 24 of the Act on and from 18 September 1997. The Tribunal found that the applicant's war-caused and defence-caused injuries and diseases were of such a nature, alone, to render him incapable of undertaking remunerative work for periods of more than eight hours per week and that he was prevented from continuing to undertake remunerative work that the applicant was undertaking and was, by reason thereof, suffering a loss of salary or wages, or of earnings on his own account. The Tribunal was satisfied that the applicant was entitled to be paid pension at the special rate.

Orders