Donald Beale and Repatriation Commission

Case [2015] AATA 725

Beale and Repatriation Commission (Veterans’ entitlements) [2015] AATA 725 (17 September 2015)

Division

VETERANS’ APPEALS DIVISION

File number

2013/3062

Donald Beale

APPLICANT

And

Repatriation Commission

RESPONDENT

Decision

Tribunal

Dr James Popple, Senior Member
Date 17 September 2015
Place Canberra

The decision of the Veterans’ Review Board on 4 April 2013 is set aside and, in substitution, the following decision is made:

The applicant is eligible for the special rate of pension under s 24 of the Veterans’ Entitlements Act 1986, with effect from 24 May 2011.  The rate at which he is paid shall be reduced under s 25A of that Act to offset the workers’ compensation payments he received.

.............................[sgd]...........................................

James Popple, Senior Member

Catchwords

VETERANS’ AFFAIRS — Disability pension — special rate of pension — whether injuries were war-caused — whether veteran by reason of war-caused injury alone prevented from undertaking remunerative work — whether veteran ceased to engage in remunerative work for any other reason than war-caused injury — decision set aside and substituted.

Legislation

Safety, Rehabilitation and Compensation Act 1988, s 125(1)

Veterans’ Entitlements Act 1986, ss 19(9), 24(1)(c), 24(2)(a), 25A, 120(1), 120(3), 120A(3)

Cases

Beale and Repatriation Commission [2010] AATA 874

Deledio v Repatriation Commission (1997) 47 ALD 261

Magill v Repatriation Commission [2002] FCA 744

Nilant v Macchia (2000) 104 FCR 238

Repatriation Commission v Richmond (2014) 226 FCR 21

Repatriation Commission v Smith (1987) 15 FCR 327

Repatriation Commission v Watkins (2015) 228 FCR 573

Smith v Repatriation Commission (2014) 220 FCR 452

Summers v Repatriation Commission (2015) 230 FCR 179

Secondary materials

Repatriation Medical Authority, Statement of Principles concerning cervical spondylosis No. 66 of 2014 (20 June 2014)

Reasons for decision

Dr James Popple, Senior Member

17 September 2015

Summary

  1. I set aside the decision of the Veterans’ Review Board (the VRB). The applicant is, by reason of incapacity from his war-caused injuries alone, prevented from continuing to undertake remunerative work. For that reason, he is suffering a loss of salary, wages or earnings that he would not be suffering if he were free of that incapacity. Accordingly, he is eligible for the special rate of pension under s 24(1)(c) of the Veterans’ Entitlements Act 1986 (the VE Act).  He should be paid the pension at the special rate with effect from 24 May 2011.  The Repatriation Commission (the Commission) should calculate his payments having regard to s 25A of the VE Act, so as to offset the workers’ compensation payments he received.

    Background

  2. Mr Donald Beale is a veteran.  He had operational service in Vietnam from 14 May 1968 to 14 May 1969.  He was discharged from the Australian Army in 1970.

  3. On 5 and 26 June 2008, Mr Beale applied for various conditions to be related to his eligible service, and for his pension to be paid at the special rate.  On 14 January 2009, the Commission accepted that some of those conditions were related to his service, but decided not to increase…

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Details
AGLC
Donald Beale and Repatriation Commission [2015] AATA 725
Case
[2015] AATA 725
Decision Date

CaseChat Overview and Summary

The case between Donald Beale and the Repatriation Commission arose from Mr Beale’s application for a special rate of pension under the Veterans’ Entitlements Act 1986. The issue before the court was whether Mr Beale qualified for the special rate of pension, which hinges on whether he was solely prevented from undertaking remunerative work by his war-caused injuries, leading to a loss of earnings he would not suffer if he were not incapacitated. The court was tasked with interpreting the relevant sections of the Act to determine Mr Beale’s eligibility, particularly under section 24(1)(c) and section 24(2)(a). The Tribunal had previously declined to increase Mr Beale’s pension to the special rate, a decision that Mr Beale sought to have reviewed.

The key legal issues revolved around the interpretation of the statutory provisions concerning the special rate of pension. Specifically, the court had to determine whether Mr Beale's incapacity was solely due to his war-caused injuries and whether he ceased to engage in remunerative work for reasons other than his war-caused incapacity. The court had to consider the legislative framework and the intent behind the Act, which is to provide benefits to veterans, and apply a liberal and generous interpretation to these provisions. The court also referenced previous cases where the complexity of the Act was acknowledged and the necessity for a benevolent interpretation was emphasised.

In its reasoning, the court found that Mr Beale met the criteria for the special rate of pension. It considered the legislative intent behind the Act and the need for a generous interpretation of the provisions. The court held that Mr Beale’s incapacity was solely due to his war-caused injuries and that he had ceased to engage in remunerative work due to this incapacity alone. Consequently, the court determined that Mr Beale was eligible for the special rate of pension.

The court set aside the Veterans’ Review Board’s decision and substituted it with a decision that Mr Beale is eligible for the special rate of pension under section 24 of the Veterans’ Entitlements Act 1986, effective from 24 May 2011. The court also ordered that the pension rate be reduced to account for workers' compensation payments Mr Beale received, in accordance with section 25A of the Act.

Orders

Orders of the court

The decision of the Veterans’ Review Board on 4 April 2013 is set aside and, in substitution, the following decision is made:

The applicant is eligible for the special rate of pension under s 24 of the Veterans’ Entitlements Act 1986, with effect from 24 May 2011. The rate at which he is paid shall be reduced under s 25A of that Act to offset the workers’ compensation payments he received.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

On 27 June 2013, Mr Beale applied to the Tribunal, under s 175 of the VE Act, for review of that decision.Decision under review The decision under review is the VRB’s decision on 4 April 2013 affirming the Commission’s decision on 6 July 2012 not to increase Mr Beale’s pension to the special rate.Issue The issue in this review is whether Mr Beale is eligible for the pension at the special rate. That depends on whether he is, by reason of incapacity from his war-caused injuries alone, prevented from continuing to undertake remunerative work, and (for that reason) suffering a loss of salary, wages or earnings that he would not be suffering if he were free of that incapacity.Legislative framework Section 24 of the VE Act provides for the payment of a special rate of pension to a veteran in certain circumstances. The provision specifies a number of requirements, including requirements relating to the veteran’s incapacity from war-caused injury or war-caused disease. Section 24(1)(c) provides:24 Special rate of pension(1)This section applies to a veteran if:…(c) the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity …Section 24(2)(a) provides:(2)For the purpose of paragraph (1)(c):(a) a veteran who is incapacitated from war-caused injury or war-caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if:(i)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(ii)the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason … In Smith v Repatriation Commission, Rares J pointed out that “[t]he conditions specified in each of ss 23 and 24 [of the VE Act] are bedevilled with bewildering complexity” and added that the drafting style of the Act “has created a nearly impenetrable shroud over” its meaning.[2][2] (2014) 220 FCR 452 at 460 [26]. See also Repatriation Commission v Richmond (2014) 226 FCR 21 at 37 [69] per Middleton, Murphy and Rangiah JJ. In Summers v Repatriation Commission, the Full Court of the Federal Court explained that “[i]n construing the [VE] Act it is necessary to keep in mind that it is intended to operate beneficially for veterans”.[3] In Repatriation Commission v Richmond, the Full Court said that s 24(1)(c) “is to be construed liberally, and as generously as the language of the section allows”.[4][3] (2015) 230FCR179 at 188 [33] per Kenny, Murphy and BeachJJ, citing Deledio v Repatriation Commission (1997) 47 ALD 261 at 262–263 per Heerey J; Repatriation Commission v Richmond (2014) 226FCR21 at 41 [92] per Middleton, Murphy and RangiahJJ.[4] (2014) 226FCR21 at 41 [92] per Middleton, Murphy and RangiahJJ, citing Nilant v Macchia (2000) 104 FCR 238 at 247 [42] per Weinberg J.

Ratio Decidendi

Legal Principle Established

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