Forrest and Repatriation Commission (Veterans' entitlements) - [2020] AATA 1308

Forrest and Repatriation Commission (Veterans' entitlements) [2020] AATA 1308 (14 May 2020)
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL              )
  )  No: 2015/0300
VETERANS' APPEALS DIVISION  )
Re: Thomas Forrest
Applicant

And: Repatriation Commission
Respondent
DIRECTION
TRIBUNAL:  Deputy President Britten-Jones
DATE OF CORRIGENDUM:            1 July 2020
PLACE:           Adelaide

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter:
1. the text in the headnote of the decision by adding ‘from 30 April 2015’ to the end of the headnote; and
2. the text in the reasons for the decision by adding ‘from 30 April 2015’ to the end of paragraph 72

[Sgnd]

...................................................................
P BRITTEN-JONES
(Deputy President)

Division:VETERAN’S APPEALS DIVISION
File Number(s): 2015/0300
Re:Thomas Forrest
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Deputy President Britten-Jones
Date:14 May 2020
Place:Melbourne

The decision under review is set aside and substituted with a decision that the Applicant has a lifestyle rating of at least 6 and satisfies the criteria in s 22(4) of the Veterans’ Entitlement Act so as to be entitled to the extreme disablement adjustment from 30 April 2015.

[Sgnd]

.......................................................................
Deputy President Britten-Jones
CATCHWORDS
VETERANS' AFFAIRS – claim for increase in disability pension – seeking extreme disablement adjustment – dispute as to lifestyle rating – question of causation where impairment results from accepted conditions and non-accepted conditions – whether there is a disadvantage resulting from an accepted condition – calculation of lifestyle rating – decision set aside and substituted with a decision that the Applicant is entitled to the extreme disablement adjustment
LEGISLATION
Veterans’ Entitlement Act 1986 (Cth)
CASES
Repatriation Commission v Money [2009] FCAFC 11
Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452
Sutherland Shire Council v Baltica General Insurance Co Ltd (1996) 39 NSWLR 87
Ilsley v Wattyl Australia Pty Ltd (1997) 144 ALR 510
Collins v Repatriation Commission (1994) 33 ALD 557
Forrest and Repatriation Commission (Veterans’ entitlements) [2018] AATA
SECONDARY MATERIALS
Guide to the Assessment of Rates of Veterans’ Pensions (No 2) 2016
Order of Snaden J in Thomas Forrest v Repatriation Commission (Federal Court of Australia, VID497/2018, 17 July 2019).
REASONS FOR DECISION
INTRODUCTION

On 4 April 2018 the Tribunal made a decision affirming the Veterans’ Review Board’s denial of an application for an increase to the Applicant’s pension.[1] The Tribunal’s decision was appealed to the Federal Court and was set aside by consent and remitted to the Tribunal for determination according to law. The application of the retired veteran, the Applicant, has been reheard and these are my reasons for allowing the application.
[1] Forrest and Repatriation Commission (Veterans’ entitlements) [2018] AATA.
As was noted in the order made by the Federal Court, the decision under review concerned whether the Applicant met all the requirements prescribed by s 22(4) of the Veterans’ Entitlements Act 1986 (VE Act) for payment of a pension with an additional extreme disablement adjustment (EDA) in relation to his service-related disabilities of bilateral sensorineural…

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: [2020] AATA 1308
Decision Date: 14 May 2020

CaseChat Overview and Summary

This matter concerned an appeal by the Applicant, Mr Forrest, against a decision of the Repatriation Commission regarding an increase in his disability pension. The core of the dispute centred on the Applicant's "lifestyle rating," specifically whether his impairments, which resulted from both accepted and non-accepted conditions, qualified him for an extreme disablement adjustment. The case was heard by Deputy President Britten-Jones.

The legal issues before the court were whether an impairment resulting from a combination of accepted and non-accepted conditions could lead to a lifestyle rating, and if so, how that rating should be calculated. Specifically, the court had to determine if the accepted condition needed to be the sole cause of the impairment or if it was sufficient for the accepted condition to have caused or materially contributed to the impairment. The court also considered whether the Tribunal had made adequate findings regarding how the Applicant's accepted conditions impacted his personal relationships, mobility, recreational and community activities, and employment and domestic activities.

Deputy President Britten-Jones reasoned that an impairment can arise from multiple conditions, and an accepted condition need not be the sole cause of the impairment to establish a lifestyle effect. The key principle applied was that if an impairment results from both accepted and non-accepted conditions, a lifestyle effect will be recognised if the accepted condition caused or materially contributed to the impairment. The court found that the Tribunal had erred by failing to make specific findings on how the Applicant's accepted conditions affected his lifestyle, despite the evidence presented.

Consequently, the court set aside the decision under review and substituted it with a decision that the Applicant was entitled to the extreme disablement adjustment, finding that he had a lifestyle rating of at least 6, thereby satisfying the criteria under section 22(4) of the relevant Act.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The question as to whether an impairment results from an accepted condition may be clouded by the presence of a non-accepted condition which contributes to the impairment. That is this case. The Respondent accepts, appropriately, that an impairment may result from more than one condition. The accepted condition need not be the sole cause of the impairment, but it does need to be a cause so as to establish that the impairment results from the accepted condition. If it is found that a non-accepted condition is the sole cause of the impairment because the accepted condition plays no role in the impairment, then there will be no lifestyle effect. However, if the impairment results from both a non-accepted condition and an accepted condition then there will be a lifestyle effect if it can be established that the accepted condition caused or materially contributed to the impairment.THE EVIDENCE AT THE REMITTAL HEARINGThe approach on remittal At the hearing before me, the Applicant gave oral evidence so as to update his evidence of the effects of impairment on his lifestyle. No other witnesses were called by either party. The Respondent tendered a further report received from Dr Horsley dated 22 October 2019. She was not cross-examined on her report. I received into evidence the transcript from the hearings on 23 March 2017 and 23 October 2017 together with the exhibits that were tendered on those days. The reasons for decision given by the Tribunal on 4 April 2018 (the 2018 reasons) summarised the lay evidence given both in writing and orally by Mr and Mrs Forrest together with the medical evidence consisting of written reports and records from many health professionals and the oral evidence of Dr Kemp and Dr Chambers. I have read the transcript from the hearings in 2017 and the 2018 reasons for decision, and I consider the 2018 reasons provide an accurate summary of the evidence before the Tribunal. I do not propose in these reasons to re-state that summary of evidence. Other than paragraph 136 of the 2018 reasons, which contains the finding for which there was no evident or intelligible justification, there was no criticism made by the Federal Court. The error of the Tribunal was the lack of findings as to how the Applicant’s accepted conditions impaired his personal relationships, mobility, recreational and community activities, and employment and domestic activities. There was no criticism of the findings made with respect to the accepted conditions and the medical evidence generally or the lay evidence. It follows that it is appropriate for me to focus my reasons on what the Tribunal failed to do.Evidence from the Applicant at the remittal hearing The Applicant gave evidence as follows. The Applicant and his wife moved to a lifestyle village just after October 2017. It is a small three-bedroom house. The Applicant walks with a stick at a slow pace. He walks to the local shops which are about 500 m away, but he has to stop every 100 m and have a rest on a bench.

Decision

Reasons for decision

As the Applicant has a lifestyle rating of 6, he satisfies s 22(4)(c) of the Act and is therefore entitled to the extreme disablement adjustment.DECISION The decision under review is set aside and substituted with a decision that the Applicant has a lifestyle rating of at least 6 and satisfies the criteria in s 22(4) of the Act so as to be entitled to the extreme disablement adjustment from 30 April 2015.

Ratio Decidendi

Legal Principle Established

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