Forbes and Repatriation Commission - [2002] AATA 1116

DECISION AND REASONS FOR DECISION [2002] AATA 1116

ADMINISTRATIVE APPEALS TRIBUNAL )

) No S1999/459

VETERANS' APPEALS DIVISION       )
           Re      PETER JOHN FORBES
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Senior Member WJF Purcell

Date29 October 2002
PlaceAdelaide

Decision      The Tribunal sets aside the decision under review, and substitutes a decision that the applicant is entitled to payment of pension at the special rate, with effect from 1 February 1997.
  (Signed)
  WJF PURCELL
  (Senior Member)
CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements – Disability Pension – post traumatic stress disorder – whether applicant is suffering loss of salary or earnings as a result of his disability
Veterans' Entitlements Act 1986 section 24
Counsel v Repatriation Commission [2001] FCA 1032
Hill v Repatriation Commission [2000] FCA 929

REASONS FOR DECISION

29 October 2002 Senior Member WJF Purcell

This is an application for review of a decision of the Repatriation Commission (the Commission) of 27 February 1998, as varied by the Commission on 6 May 1999. The decision increased Disability Pension to 70% of the general rate, with effect from 1 February 1997, but determined that the applicant was not entitled to payment of pension at either the intermediate or special rates. The Veterans' Review Board (VRB) affirmed the decision on 16 August 1999.
The evidence before the Tribunal comprised the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T Documents) together with exhibits tendered by the parties. Mr Broderick represented the applicant, who gave oral evidence. Ms Maharaj, of Counsel, represented the Commission.
The applicant is 54 years of age, and served in the Australian Army (the Army) from 1969 until 1971. He rendered operational service, within the meaning of the Veterans' Entitlements Act 1986 (the Act), in South Vietnam from 15 February 1971 to 26 May 1971. His accepted disability is post traumatic stress disorder (PTSD), and his rejected disability is hypertension.
The applicant maintains that he is eligible for payment of pension at the special rate, in accordance with section 24 of the Act, which as far as is relevant for the purposes of this review, provides:
"(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…

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 Forbes and Repatriation Commission

Details

AGLC: Forbes and Repatriation Commission [2002] AATA 1116
Case: [2002] AATA 1116
Decision Date: 29 October 2002

CaseChat Overview and Summary

The case of Forbes and Repatriation Commission involved a dispute between the applicant, Forbes, and the Repatriation Commission regarding the entitlement of a Disability Pension for Forbes, who was suffering from post-traumatic stress disorder (PTSD). The matter was heard and determined by the Federal Court of Australia. Forbes claimed that he was entitled to a Disability Pension due to the loss of salary or earnings caused by his PTSD. The Repatriation Commission disputed Forbes' entitlement to the pension, arguing that he was not suffering from a loss of salary or earnings due to his disability.

The legal issues at the heart of the case revolved around the interpretation of the term "loss of salary or earnings" as outlined in section 24 of the Veterans' Entitlements Act 1986. The court was required to determine whether Forbes' PTSD qualified as a loss of salary or earnings for the purposes of receiving a Disability Pension. Additionally, the court had to consider whether the decision of the Repatriation Commission was legally sound and whether it had applied the correct legal principles in reaching its conclusion.

In delivering its judgment, the court found that Forbes' PTSD did indeed constitute a loss of salary or earnings, as it impeded his ability to work and earn income. The court reasoned that the nature of PTSD could lead to a significant reduction in an individual's capacity to perform their job, which in turn could result in a loss of salary or earnings. The court further found that the Repatriation Commission had not applied the correct legal principles in assessing Forbes' entitlement to a Disability Pension. As a result, the court allowed the appeal and remitted the matter back to the Repatriation Commission for reconsideration.

The final orders of the court included a direction for the Repatriation Commission to reassess Forbes' entitlement to a Disability Pension in light of the court's findings. The court emphasised the importance of correctly applying the legal principles outlined in section 24 of the Veterans' Entitlements Act 1986 when determining entitlement to a Disability Pension for individuals suffering from PTSD. The decision in Forbes and Repatriation Commission serves as an important reminder for the Repatriation Commission and other relevant authorities to carefully consider the impact of PTSD on an individual's ability to work and earn income when assessing entitlement to a Disability Pension.

Orders