DAVID MARSHALL and REPATRIATION COMMISSION

[2009] AATA 751

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 751

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   2008/3453

VETERANS'      APPEALS        DIVISION		)
Re		DAVID MARSHALL

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

Mr John Handley, Senior Member

Dr Roderick McRae, Member

Date30 September 2009

PlaceMelbourne

Decision The decision under review is affirmed.

(sgd) John Handley
  Senior Member

VETERANS' ENTITLEMENTS – Application for special rate pension – applicant retrenched in 1999 aged 51 – paid disability support pension from 2001 – claimed veterans' pension in 2007 – war-caused injuries alone did not prevent continuing to undertake remunerative work – applicant had not been genuinely seeking to engage in remunerative work – decision affirmed

Veterans’ Entitlements Act 1986 (Cth) s 24(1)(a) and s 24(1)(b), s 24(1)(c) and s 24(2)(a)(i) and s 24(2)(b)

Social Security Act 1991(Cth) s 94

Cavell v Repatriation Commission (1989) 9 AAR 534

Flentjar v Repatriation Commission [1997] FCA 1200 (10 October 1997)

Forbes v Repatriation Commission (2000) 58 ALD 401

Fox v Repatriation Commission (1997) 45 ALD 317

Leane v Repatriation Commission [2004] FCAFC 83

Repatriation Commission v Hendy [2002] FCAFC 424

REASONS FOR DECISION

30 September 2009 Mr John Handley, Senior Member
Dr Roderick McRae, Member       

1.      Mr Marshall (the applicant) is presently 61 years of age.  He was a Vietnam Veteran and a member of the Australian Army.  At 4 October 2007 he was receiving pension at 100 percent of the General Rate for the accepted conditions of Anxiety Disorder, Alcohol Dependence or Alcohol Abuse, Gastro Oesophageal Reflux Disease, Impotence and Bilateral Tinnitus.  His application seeks an award of Special Rate Pension.  The respondent rejected that application and the Veterans' Review Board (the VRB) affirmed that decision on 6 June 2008.  The applicant applies to review that decision.

2. The hearing commenced on 6 August 2009. The respondent conceded that the applicant has suffered a loss of salary or wages and both parties agreed that the focus of the review should be upon s 24(1)(c) of the Veterans’ Entitlements Act 1986 (the Act).  The respondent also asserted that the focus should be extended to s 24(2)(a)(i) of the Act.  That is to say, the applicant did not seek to engage in remunerative work by reason of his war-caused injuries alone (s 24(1)(c)) and the cessation of engagement in remunerative work were for reasons other than incapacity by war-caused injury (s 24(2)(a)(i)).

3.      The applicant was educated to Year 10 and obtained employment prior to his enlistment in the Army in 1968.  Following discharge in 1970 he held a number of positions but principally as a storeman with Foodland between 1976 and 1986, as a storeman with Ellis Supermarkets between 1987 and 1988 and subsequently by the State Electricity Commission of Victoria (SECV) until electricity distribution in Victoria was privatised and he became an employee of United Energy.  His employment with that entity ended on 20 October 1999 when he accepted a redundancy offer.  He has not subsequently worked.

4.      The applicant also suffers the…