Garratt and Repatriation Commission - [2010] AATA 827

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 827
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/0983

VETERANS' APPEALS DIVISION )

Re MONICA LORRAIN GARRATT

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member K Bean
Date26 October 2010
PlaceAdelaide

Decision
The decision under review is affirmed.

..............................................
K Bean
(Senior Member)

CATCHWORDS
VETERANS’ ENTITLEMENTS – Disability pension at the special rate – In addition to accepted conditions the veteran suffered from other significant conditions including MS – These conditions contributed to veteran’s inability to undertake remunerative work during the assessment period – Requirements for payment of pension at special rate not met – Decision under review affirmed.
Veterans Entitlements’ Act 1988 (Cth), s 24
Re Gibson and Repatriation Commission [2004] AATA 879
Repatriation Commission v Hendy (2002) 76 ALD 447
McDonald v Director General of Social Security (1984) 1 FCR 354
REASONS FOR DECISION

26 October 2010   Senior Member K Bean

introduction
1.      Mr Bruce Gibson served in the Royal Australian Navy from 10 April 1965 to 23 April 1969. Sadly, he died suddenly of a heart attack on 10 March 2004. At that time he was engaged to be married to Ms Monica Garratt, who is the executor and beneficiary under Mr Gibson’s will, and the applicant in this matter.
2.      At the time he died, Mr Gibson was in receipt of a disability pension under the Veterans’ Entitlements Act 1986 (Cth) (the VEA) at 100 per cent of the general rate. However, he had applied for an increase in the rate of his pension, to the special rate, on 5 August 1999 and, as at the date of his death, that application had not been finally determined.
3.      Ms Garratt has accordingly been pursuing that matter in Mr Gibson’s stead. She sought review of a decision of the Repatriation Commission not to increase the rate of Mr Gibson’s pension by the Veterans’ Review Board (the VRB). The VRB also decided not to increase the pension payable in the relevant period, and Ms Garratt has now sought review of that decision by this Tribunal.
legislation and issues
4.      In order to establish that Mr Gibson was entitled to be paid disability pension at the special rate, Ms Garratt must establish that he satisfied all of the requirements of s 24 of the VEA at some point during the assessment period. For the purposes of this matter, the assessment period is the period between when Mr Gibson lodged his application, on 5 August 1999, and the date of his death on 10 March 2004[1].
[1] VEA, s 19(9)
5.      Section 24 of the VEA provides as follows:
“24     Special rate of pension
(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…

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 Garratt and Repatriation Commission

Details

AGLC: Garratt and Repatriation Commission [2010] AATA 827
Case: [2010] AATA 827
Decision Date: 26 October 2010

CaseChat Overview and Summary

The case of Garratt and the Repatriation Commission involved a dispute over the veteran's entitlement to a disability pension at the special rate. The applicant, Garratt, argued that he was entitled to the pension based on his medical conditions, which included multiple sclerosis (MS) and other significant ailments. The Repatriation Commission, however, concluded that Garratt's conditions did not meet the statutory requirements for payment of the special rate pension. The matter was brought before the Administrative Appeals Tribunal (AAT) to review the Commission's decision.

The legal issues before the court included whether the veteran's conditions met the statutory criteria for the special rate pension under the Veterans’ Entitlements Act 1988. Specifically, the court had to determine if the veteran's inability to undertake remunerative work was due to the accepted conditions and whether any other significant conditions contributed to this inability. The relevant case law, including Re Gibson and Repatriation Commission, Repatriation Commission v Hendy, and McDonald v Director General of Social Security, was considered in interpreting the statutory provisions.

In reviewing the decision, the Tribunal found that while the veteran did suffer from MS and other significant conditions, these conditions did not meet the statutory requirements for the special rate pension. The Tribunal held that the veteran's inability to undertake remunerative work was not solely due to the accepted conditions, as other significant conditions also contributed to this inability. Consequently, the Tribunal affirmed the Commission's decision, finding that the requirements for payment of the special rate pension were not satisfied.

The court affirmed the decision under review, meaning that the veteran was not entitled to the disability pension at the special rate. This outcome was based on the Tribunal's interpretation of the statutory criteria and the evidence presented regarding the veteran's medical conditions and their impact on his ability to work.

Orders

Orders of the court

The decision under review is 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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VETERANS' APPEALS DIVISION		)
Re		MONICA LORRAIN GARRATT