Furnell and Repatriation Commission

Case [2011] AATA 149


Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 149

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          Nos 2009/4724 & 2009/4729-30

VETERANS' APPEALS DIVISION )
Re ANTHONY FURNELL

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member K Bean
Mr SJ Ellis AM (Member)

Date7 March 2011

PlaceAdelaide

Decision

The decisions under review are affirmed.

..............................................

K BEAN
  (Senior Member)

CATCHWORDS

VETERANS' AFFAIRS – Veterans' entitlements - Rate of disability pension – Special rate – Application of ameliorating provisions – Veteran must have ceased looking for work in order to satisfy s 24(2)(b) – Veteran has not ceased looking for work – Veteran’s accepted disabilities are not the substantive cause of his inability to obtain remunerative employment – Decisions under review affirmed.

Veterans’ Entitlements Act 1986 ss 19(9), 24

Leane v Repatriation Commission (2004) 81 ALD 625
Re Martin and Repatriation Commission (1987) 13 ALD 83
Conway v Repatriation Commission [2003] FCA 704
Re Hornery and Repatriation Commission (1998) 52 ALD 317

Fox v Repatriation Commission (1997) 45 ALD 317

REASONS FOR DECISION

7 March 2011   Senior Member K Bean
  Mr SJ Ellis AM (Member)

introduction

1.      The applicant, Mr Furnell served in the Royal Australian Navy from 27 July 1968 to 26 July 1989, rising to the rank of warrant officer.  As a result of his service he suffers from a number of medical conditions including lumbar spondylosis, post-traumatic stress disorder (PTSD) and a depressive disorder.

2.      Following his service, Mr Furnell worked for the Adelaide City Council in a variety of roles, until leaving that employment in June 2001.  He has not worked since that time and in October 2004 he first applied for payment of disability pension under the Veterans’ Entitlements Act 1986 (the VE Act) at the special rate. He has made a number of further claims and applications, some relating to liability for particular conditions and some to assessment of his rate of pension, ultimately culminating in the decision of the Veterans’ Review Board (VRB) of 11 September 2009. In that decision the VRB reviewed three separate decisions of the Repatriation Commission (the Commission) and determined that Mr Furnell’s depressive disorder was a defence caused condition, but declined to increase his rate of pension to the special rate. In procedural terms, that outcome resulted from the VRB affirming two of the decisions of the Commission and setting aside one.

3.      Mr Furnell has now sought review of that decision by this Tribunal.

procedural history, legislation and issues

4.      In order to establish that he is entitled to be paid disability pension at the special rate, Mr Furnell must demonstrate that he satisfied all of the requirements of s 24 of the VE Act at one time during the assessment period. The assessment period is defined in s 19(9) of the VE Act as the period commencing on the day a particular claim or application was made and ending on the date that the claim or application is determined. As Mr Furnell has made a…

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Furnell and Repatriation Commission [2011] AATA 149
Case
[2011] AATA 149
Decision Date

CaseChat Overview and Summary

The matter of Furnell and the Repatriation Commission came before the court as an appeal against the Commission's decisions regarding the veteran's entitlement to a special rate of disability pension. The veteran argued that his disabilities should qualify him for the special rate as they significantly impair his ability to find and retain employment. The court was required to determine whether the veteran's disabilities were the substantive cause of his inability to obtain remunerative employment and whether he had ceased looking for work as required by section 24(2)(b).

The court examined the statutory provisions and previous case law to understand the criteria for the special rate of disability pension. The court found that for a veteran to be eligible for the special rate, they must have ceased looking for work and their disabilities must be the substantive cause of their inability to obtain remunerative employment. The court found that the veteran had not ceased looking for work and his disabilities were not the substantive cause of his unemployment. The court relied on evidence and expert opinions to support its decision, concluding that the veteran's other circumstances, such as his age and lack of recent work experience, played a significant role in his inability to find employment.

The court affirmed the decisions of the Repatriation Commission, holding that the veteran did not meet the statutory requirements for the special rate of disability pension. The court's reasoning was based on the specific statutory criteria and the evidence presented in the case, emphasising the importance of both the cessation of job search and the substantive causation of unemployment by the veteran's disabilities. The court's decision was clear and final, with no further appeal possible.

Orders

Orders of the court

The decisions under review are affirmed.

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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