Everett and Repatriation Commission - [2010] AATA 947

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 947
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/5253

Veterans' Appeals DIVISION )

Re Lindsay Everett

Applicant

And

Repatriation Commission

Respondent

DECISION

Tribunal Senior Member Jill Toohey
Dr Saw Hooi Toh, Member
Date25 November 2010
PlaceSydney

Decision
The decision under review is set aside and in substitution the Tribunal decides that the applicant is entitled to a pension at the intermediate rate with effect from 11 September 2009.

.................[sgd].............................
Senior Member

CATCHWORDS
VETERANS ENTITLEMENTS – intermediate rate of pension – chondromalacia of both patellae and bilateral foot drop – accepted conditions of themselves rendered applicant incapable of 20 hours or more remunerative work – evidence of loss of income – whether applicant prevented from undertaking remunerative work that he was undertaking – applicant had to employ son-in-law- to undertake work that he was doing previously – decision under review set aside
Veterans Entitlements Act 1986, ss 23, 24
Banovich v Repatriation Commission (1986) 69 ALR 305
Birtles v Repatriation Commission (1991) 33 FCR 290
Carter v Repatriation Commission [2001] FCA 992
Doig v Repatriation Commission, unreported, Federal Court of Australia, 18 December 1996
Flentjar v Repatriation Commission (1997) FCA 1200
Repatriation Commission v Butcher [2006] FCA 811
Repatriation Commission v Haskard [2002] FCA 1493
Repatriation Commission v Hendy (2002) 76 ALD 47
Starcevich v Repatriation Commission (1987) 18 FCR 221
REASONS FOR DECISION

25 November 2010 Senior Member Jill Toohey
Dr Saw Hooi Toh, Member

Background

1.      Mr Lindsay Everett was working in the army kitchens at North Head in Sydney in 1977 when he slipped and fell, injuring both knees. Surgery led to complications, with the result that the Department of Veterans Affairs accepted that Mr Lindsay suffered from service-related chondromalacia of both patellae and bilateral foot drop, and paid him a disability pension at 50% of the general rate.
2.      Mr Everett’s symptoms have worsened over the past 12 years or so. On 30 July 2008, he applied to the Repatriation Commission (the Commission) for an increase in his disability pension.
3.      On 22 October 2008, the Commission decided Mr Everett’s rate of pension should be increased from 50% to 70% of the general rate but that he was not entitled to either the special or intermediate rate because he was in full-time employment.
4.      Mr Everett sought review of that decision by the Veterans Review Board (the Board). By 11 September 2009, when the VRB heard his application, he could no longer work full-time on account of the pain in his knees and feet.
5.      On 11 September 2009, the Board decided Mr Everett’s pension should be increased to 80% of the general rate with effect from 30 July 2008 but that he did not satisfy the requirements for either the special or intermediate rate because he was still undertaking the kind of work he had previously.
6.      Mr Everett seeks review of the Board’s decision.
The legislation
7.      To qualify for an intermediate rate of…

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 Everett and Repatriation Commission

Details

AGLC: Everett and Repatriation Commission [2010] AATA 947
Case: [2010] AATA 947
Decision Date: 25 November 2010

CaseChat Overview and Summary

Everett and Repatriation Commission involved the applicant, Everett, who sought an intermediate rate of pension on the grounds of his medical conditions. Everett argued that his chondromalacia of both patellae and bilateral foot drop, which were accepted conditions, rendered him incapable of undertaking 20 hours or more of remunerative work. The Repatriation Commission had previously denied his claim for an intermediate rate pension, finding that he was not prevented from undertaking remunerative work he was previously engaged in. The Federal Court of Australia was tasked with reviewing the Commission's decision.

The primary legal issue was whether the applicant was prevented from undertaking remunerative work that he was undertaking prior to his medical conditions. The Court had to consider whether Everett's need to employ his son-in-law to perform the work he was previously doing constituted a prevention from undertaking that work himself. The Court also had to determine whether Everett had provided sufficient evidence of a loss of income due to his medical conditions.

The Court found that Everett's requirement to employ his son-in-law to perform the work he was previously doing constituted a prevention from undertaking that work himself. This was because Everett was no longer able to undertake the work personally due to his medical conditions. Furthermore, the Court held that Everett had provided sufficient evidence of a loss of income, which was directly attributable to his medical conditions. As a result, the Court concluded that the applicant was entitled to a pension at the intermediate rate.

The Court set aside the decision of the Repatriation Commission and substituted its own decision, finding that Everett was entitled to a pension at the intermediate rate with effect from 11 September 2009.

Orders

Orders of the court

The decision under review is set aside and in substitution the Tribunal decides that the applicant is entitled to a pension at the intermediate rate with effect from 11 September 2009.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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25 November 2010	Senior Member Jill Toohey Dr Saw Hooi Toh, Member
Background