Elton and Repatriation Commission (Veterans' entitlements) - [2022] AATA 2232

Elton and Repatriation Commission (Veterans' entitlements) [2022] AATA 2232 (13 July 2022)
Division:VETERANS' APPEALS DIVISION
File Number: 2018/2530
Re:Peter Elton
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Dr Damien Cremean, Senior Member
Date:13 July 2022
Place:Melbourne

The decision under review is varied to reflect that the Applicant is entitled to a pension at the special rate in accordance with law.
...........................[sgd].............................................
Dr Damien Cremean, Senior Member
Catchwords
VETERANS’ AFFAIRS – Veterans’ entitlements – Whether veteran's war-caused incapacity ‘alone prevented’ him from continuing to work – Whether applicant has suffered loss – Entitlement to special rate of pension – decision under review varied
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Veterans’ Entitlements Act 1986 (Cth)
Cases
Counsel v Repatriation Commission [2002] FCAFC 201
Flentjar v Repatriation Commission (1997) 48 ALD 1
Repatriation Commission v Richmond (2014) 226 FCR 21
REASONS FOR DECISION
Dr Damien Cremean, Senior Member
13 July 2022
INTRODUCTION

The Applicant, Mr Peter Elton, seeks review of the decision of the Respondent’s delegate, as affirmed by the Veterans Review Board, to continue his disability pension at 100% of the general rate with effect from 14 July 2015 pursuant to s 22 of the Veterans’ Entitlements Act 1986 (Cth) (‘the Act’).
The Applicant argues there should be an increase in his pension to the special rate under s 24 of the Act.
HEARING
At the hearing, the Applicant was represented by Ms C Symons of Counsel and gave affirmed evidence.
The Respondent was represented by Ms C Dowsett of Counsel.
The Respondent cross examined the Applicant and called Dr Winstanley, orthopaedic surgeon, to give medical evidence.
Dr Winstanley was cross examined by the Applicant.
LEGISLATION
Section 13 of the Act provides that the Commonwealth is liable to pay a pension by way of compensation to a veteran who has become incapacitated from a defence-caused or war-caused injury.
Section 22 of the Act deals with the general rate of pension and extreme disablement adjustment liable to be paid to a veteran under the Act.
So far as material, s 23 of the Act provides:
Intermediate rate of pension
(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’s incapacity from war-caused injury or war-caused disease, or both, is, of itself alone, of such a nature as to render the veteran incapable…

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

Case: [2022] AATA 2232
Decision Date: 13 July 2022

CaseChat Overview and Summary

This matter concerned an appeal by the Applicant, Elton, against a decision of the Repatriation Commission regarding his entitlement to a special rate pension under the *Veterans' Entitlements Act 1986* (Cth). The core of the dispute revolved around whether the Applicant's war-caused incapacity alone prevented him from continuing to work and whether he had suffered a loss of earning capacity. The appeal was heard by Dr Damien Cremean, Senior Member.

The primary legal issue before the Senior Member was to determine whether the Applicant met the criteria for receiving a pension at the special rate. This required an assessment of whether his war-caused incapacity was the sole factor preventing him from engaging in employment and whether he had consequently suffered a loss of income.

The Senior Member was satisfied that the Applicant had met the necessary conditions for entitlement to the special rate pension. While the specific reasoning is not detailed in the provided text, the outcome indicates that the Senior Member found the Applicant's war-caused incapacity to be the sole impediment to his continued employment and that he had indeed suffered a loss.

Consequently, the decision under review was varied to reflect that the Applicant is entitled to pension at the special rate in accordance with the law.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

I am satisfied the Applicant should succeed for the reasons I have given. DECISION The decision under review should be varied to reflect that the Applicant is entitled to pension at the special rate in accordance with law.

Ratio Decidendi

Legal Principle Established

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