Funnell and Repatriation Commission

[2003] AATA 1252

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 1252

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2001/242

VETERANS' APPEALS DIVISION		)
Re		FRANK FUNNELL

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Dr E K Christie, Member

Date12 December 2003   

PlaceBrisbane

Decision The decision under review is set aside and in substitution therefor, the Tribunal decides that Mr Funnell is entitled to pension payable at the Special Rate with effect from 22 April 2002.

(Sgd) EK Christie
  Member

CATCHWORDS

VETERANS’ AFFAIRS – benefits and entitlements  - disability pension – rate of pension payable - whether applicant entitled to special rate – capacity to undertake remunerative work – applicant not prevented from continuing remunerative work by reason of war-caused incapacity alone – ameliorating provisions - accepted service-related conditions are the ‘substantial cause’ of inability to engage in remunerative work – applicant genuinely seeking to engage in remunerative work – decision set aside

Veterans’ Entitlements Act 1986, s 24 and s 120

Forbes v Repatriation Commission (2000) 101 FCR 50
Flentjar v Repatriation Commission (1997) 48 ALD 1
Re Starcevich and Repatriation Commission (1986) 10 ALN 202
Re Doyle and Repatriation Commission (1986) 47 ALD 187
Jackman v Repatriation Commission [1997] FCA 564
Re Hornery and Repatriation Commission [1998] AATA 602
Cavell v Repatriation Commission (1988) 9 AAR 534
Fox v Repatriation Commission (1997) 45 ALD 317
Byrne v Repatriation Commission [2001] FCA 1134
Hendy v Repatriation Commission [2002] FCA 602
Hall v Repatriation Commission (1994) 33 ALD 454
Starcevich v Repatriation Commission (1987) 18 FCR 221
Repatriation Commission v Braund (1991) 23 ALD 591

REASONS FOR DECISION

12 December 2003  Dr E K Christie, Member   

1.      This is an application by Frank Funnell for a review of a decision by the Veterans’ Review Board (the “VRB”) made on 23 January 2001 that Mr Funnell’s “pension be assessed fifty percent (50%) of the General Rate [payable under the Veterans’ Entitlements Act 1986]”.

2.      At the hearing, Mr D O’Gorman of Counsel represented Mr Funnell.  The respondent was represented by Mr M Smith, a Departmental Advocate.

3. The Tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the “T” documents) and the various documents tendered by the parties.

4.      Oral evidence was given by the applicant and Patricia Funnell, the wife of the applicant.  The respondent called no witnesses.

Facts

5.Mr Funnell was born on 8 October 1936.

6.      Mr Funnell served in the Australian Army with the following periods of operational and eligible service:

(a)Malaya from 17 February 1956 to 2 March 1957;

(b)Brunei/Sabah/Sarawak from 3 September 1964 to 18 January 1965;

(c)Brunei/Sabah/Sarawak from 28 January 1965 to 2 June 1965;

(d)Brunei/Sabah/Sarawak from 7 June 1965 to 19 July 1965;

(e)Vietnam from 19 February 1968 to 4 March 1969; and

(f)rendering eligible defence service from 7 December 1972 to 26 September 1975.

7.Mr Funnell has the following conditions accepted as service related:

(a)Diabetes mellitus (date of decision 7 May 1997);