Glossop and Repatriation Commission (Veterans' entitlements) - [2017] AATA 1166

Glossop and Repatriation Commission (Veterans' entitlements) [2017] AATA 1166 (28 July 2017)
Division:VETERANS' APPEALS DIVISION
File Number(s): 2016/3920
Re:James Glossop
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Senior Member T Tavoularis
Date:28 July 2017
Place:Brisbane

The decision under review is affirmed.
.......................[sgd]............................................
Senior Member T Tavoularis
CATCHWORDS
VETERANS’ AFFAIRS – application for the Special Rate of pension – where Applicant was assessed as entitled to disability pension at 100% of the General Rate – where Applicant had a number of accepted and non-accepted conditions – Veterans’ Entitlements Act 1986 section 24 – “alone test” – whether Applicant satisfied the “alone test” – section 24(2)(b) – “ameliorating provisions” – whether ameliorating provisions applied to Applicant – Intermediate Rate of pension – whether Applicant eligible for pension at the Intermediate Rate – decision under review affirmed
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth) ss 14, 15, 23, 24, 28, 120
CASES
Benjamin and Repatriation Commission
[2000] AATA 680

Benjamin v Repatriation Commission
[2001] FCA 1879
Flentjar v Repatriation Commission (1997) 26 AAR 93

Repatriation Commission v Hendy
(2002) 76 ALD 47

Repatriation Commission v Richmond
[2014] FCAFC 124

Servis v Repatriation Commission
[1995] FCA 1137
Smith v Repatriation Commission [2014] FCAFC 53
SECONDARY MATERIALS
Robin Creyke and Peter Sutherland, Veterans’ Entitlements and Military Compensation Law (3^rd ed, Federation Press, 2016)
REASONS FOR DECISION
Senior Member T Tavoularis
28 July 2017
INTRODUCTION

On 12 August 2015, James Glossop (“the Applicant”) was awarded a disability pension in respect of a psychiatric condition.[1] The Repatriation Commission (“the Respondent”) accepted the following conditions as service-related under the Veterans’ Entitlements Act 1986 (Cth) (“the VEA”):[2]
(a)Post Traumatic Stress Disorder;
(b)Major Depressive Disorder; and
(c)Alcohol Abuse.
[1] Exhibit 3, T documents, T 26, pp 121-126.
[2] Ibid, p 123.
On that basis, the Respondent further found the Applicant was entitled to disability pension at 100% of the General Rate.[3]
[3] Ibid, p 126.
The Veterans’ Review Board (“VRB”) reviewed the component of the Applicant’s entitlement as it related to 100% of the General Rate and on 17 June 2016, made a reviewable decision affirming the Applicant could continue to receive disability pension at 100% of the General Rate, as opposed to the Special Rate.[4]
[4] Ibid, T 41, pp 170-178.
The Applicant now seeks review of the VRB’s reviewable decision dated 17 June 2016. It is this application, filed on 26 July 2016, which is presently before the Tribunal.[5]
[5] Ibid, T 2, pp 3-12.
Before commencing my consideration of this matter, it is instructive to fully list the Applicant’s conditions that have and have not been accepted by the Respondent. The following conditions have been accepted by the Respondent as related to the Applicant’s service:[6]
[6] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions (“SFIC”), p 2, [9].
(a)Fracture proximal phalanx right thumb;
(b)Mallit deformity right ring finger;
(c)Meniscal tear left knee;
(d)Lumbar spondylosis;
(e)Bilateral tinnitus;
(f)Sensorineural hearing loss;
(g)Colorectal adenomatous polyp;
(h)Contusion of the right ankle;
(i)Non-melanotic malignant neoplasm of the skin;

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: [2017] AATA 1166
Decision Date: 28 July 2017

CaseChat Overview and Summary

This matter concerned an application for the Special Rate of pension under the *Veterans' Entitlements Act 1986* (VEA). The applicant, who was assessed as entitled to a disability pension at 100% of the General Rate, sought to establish eligibility for the Special Rate, which requires satisfying a series of conditions, including the "alone test" and consideration of "ameliorating provisions." The applicant also sought to establish eligibility for the Intermediate Rate of pension. The decision was made by T Tavoularis SM.

The primary legal issues before the court were whether the applicant satisfied the criteria for the Special Rate of pension under section 24 of the VEA, specifically whether his accepted conditions alone prevented him from continuing to work and suffering a loss of salary, and whether the "ameliorating provisions" of section 24(2)(b) applied to assist him in meeting the "alone test." Additionally, the court was required to determine if the applicant was eligible for the Intermediate Rate of pension under section 23 of the VEA.

The court considered the applicant's age and the fact that he had lodged an application for an increase in pension rate and a claim for psychiatric injury. It was noted that the respondent conceded the applicant was under 65 at the time of the claim and that his incapacity from war-caused injury was recorded at 100% of the General Rate. However, the court found that the applicant did not meet the requirements of section 24(1) of the VEA for the Special Rate, nor did the ameliorating provisions of section 24(2)(b) apply to him. Furthermore, the court determined that the applicant was ineligible for the Intermediate Rate of pension as he did not meet the requirements of section 23(1) of the VEA.

Consequently, the court affirmed the decision under review, finding that the applicant was only entitled to disability pension at 100% of the General Rate. The applicant was therefore not entitled to the Special Rate or the Intermediate Rate of pension.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Accordingly, I do not consider the Applicant qualifies for pension at the Intermediate Rate. CONCLUSION On the basis of the above, I therefore find:(a)The Applicant is not entitled to the Special Rate of pension as he does not meet the requirements of s 24(1) of the VEA;(b)The “ameliorating provisions” in s 24(2)(b) of the VEA do not apply to the Applicant; and(c)The Applicant is ineligible for the Intermediate Rate of pension as he does not meet the requirements of s 23(1) of the VEA. Consequently, I find that the Applicant is only entitled to disability pension at 100% of the General Rate. The decision under review is therefore affirmed.

Ratio Decidendi

Legal Principle Established

If the response to this initial threshold question is in the affirmative, a series of questions must subsequently be addressed. They comprise:(a)Was the Applicant aged under 65 when the claim was made, as required by s 24(1)(aab) of the VEA?(b)If so, is the Applicant totally and permanently incapacitated from working more than 8 hours per week from the commencement of the “assessment period”, as a result of the physical and/or psychiatric impairments resulting from his accepted war-caused injury or war-caused disease (or both), pursuant to s 24(1)(b) of the VEA?(c)If so, do any of the Applicant’s conditions resulting from his accepted war-caused injury or war-caused disease, or both, alone, prevent him from continuing to undertake work from the commencement of the assessment period, and thus suffering a loss of salary and wages that he would not have suffered, but for that incapacity, sufficient to meet the requirements of s 24(1)(c) of the VEA?(d)Do the ameliorating provisions of s 24(2)(b) apply, such as to satisfy the “alone test” relevant to the Applicant’s compliance with s 24(1)(c) of the VEA?(e)If so, two further questions arise:(i)Would the Applicant have continued to engage in remunerative work or seek remunerative work, but for the incapacity caused by his accepted conditions? and;(ii)If so, was such incapacity the substantial cause of the Applicant’s inability to obtain remunerative work? (f)As an alternative scenario, consideration must be given to whether the provisions of s 23 of the VEA apply, such that the Applicant would be entitled to Intermediate Rate of pension (rather than the General Rate).CONSIDERATIONPreliminary ItemsStandard of Proof Section 120(4) of the VEA provides that any assessment or re-assessment of the rate of pension must be decided by the Tribunal to its reasonable satisfaction.Assessment Period The Applicant must satisfy the criteria in s 24 of the VEA to qualify for a pension at the Special Rate. In addition, these criteria must be met at some time during the “assessment period”, which, for present purposes, runs from the date on which the Applicant’s claim for acceptance of his psychiatric condition and application for increase in pension rate were received by the Respondent (18 March 2015),[9] and concludes when this application is determined by the Tribunal. The Application of the Criteria in Section 24 of the VEA[9] Ibid.Section 24(1)(aa) The Respondent concedes (correctly, in my view) that the Applicant has lodged (1) an application under s 15 of the VEA for an increase in the rate of pension, together with (2) a claim dated 17 March 2015 for a psychiatric injury.[10][10] Exhibit 2, Respondent’s SFIC, p 9, [7].Section 24(1)(aab) The Respondent further concedes (correctly, in my view) that the Applicant was 63 years of age when the abovementioned application and claim were received on 18 March 2015.[11][11] Ibid.Section 24(1)(a) The Respondent also correctly accepts the Applicant’s incapacity from war-caused injury is recorded in a determination that is in force entitling him to payment of disability pension at 100% of the General Rate, that being above the 70% of the General Rate threshold.[12] [12] Ibid, p 9, [8].Section 24(1)(b)