Grant and Repatriation Commission - [2000] AATA 386

DECISION AND REASONS FOR DECISION [2000] AATA 386

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/1469

VETERANS' APPEALS DIVISION       )
           Re      SYDNEY MATTHEW GRANT
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Ms G Ettinger Senior Member

Date19 May 2000
PlaceSydney

Decision The decision under review is set aside and in substitution therfor the Administrative Appeals Tribunal finds that Mr Matthew Sydney Grant is eligible for disability pension at the Special Rate on and from 19 November 1995.
..............................................

Ms G Ettinger
Senior Member
CATCHWORDS
Veterans' pension - whether special rate of pension payable - whether war-caused disabilities alone prevented applicant from working more than eight hours per week - date of effect - veteran eligible for pension at special rate of pension from 19 November 1995.

Veterans' Entitlements Act 1986 ss 24, 120(4)

Re Davis and Repatriation Commission (1986 – 1987) 12 ALD 483
Re Lawrence and Repatriation Commission (1986 – 1987) 11 ALN N15
Cavell v Repatriation Commission (1988) 9 AAR 534
Starcevich v Repatriation Commission (1987) 18 FCR 221
Banovich v Repatriation Commission (1986) 69 ALR 395
Birtles v Repatriation Commission (1991) 33 FCR 290

REASONS FOR DECISION

19 May 2000 Ms G Ettinger Senior Member

The decision under review before the Administrative Appeals Tribunal ("the Tribunal") was the decision of the Veterans' Review Board dated 3 June 1999 (T2) which set aside the decision of the Repatriation Commission dated 3 March 1997 and the decision of the Repatriation Commission dated 7 August 1997 (T15). The Repatriation Commission decision of 3 March 1997 had assessed the veteran's disability pension at 40 percent of the General Rate on and from 25 August 1996 and the decision of the Repatriation Commission dated 7 August 1997 had assessed the veteran's disability pension at 50 percent of the General Rate with effect from 19 November 1995.
The Veterans' Review Board substituted its decision that the disability pension be assessed at 80 percent of the General Rate with effect from and including 19 November 1995 and 90 percent of the General Rate with effect from and including 25 August 1996.
The veteran, Mr Sydney Matthew Grant was represented by Ms J Buchanan, advocate of the Legal Aid Commission of New South Wales and the respondent by its advocate Ms G Pacey. Mr R Wallis of the Repatriation Commission was also present at the bar table.
ISSUE BEFORE THE TRIBUNAL
The issue before the Tribunal was:
(a)whether the applicant was eligible for a pension at the Special Rate pursuant to section 24 of the Veterans' Entitlements Act 1986 ("the Act"); and
(c)if so, from what date.

LEGISLATION

The relevant legislation in this matter is section 24 of the Act. As relevant the section 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…

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 Grant and Repatriation Commission

Details

AGLC: Grant and Repatriation Commission [2000] AATA 386
Case: [2000] AATA 386
Decision Date: 19 May 2000

CaseChat Overview and Summary

The case involved a veteran, Mr Sydney Matthew Grant, who applied for a special rate of pension under the Veterans' Entitlements Act 1986. The dispute centred on whether Mr Grant's war-caused disabilities prevented him from working more than eight hours per week, which would make him eligible for the special rate of pension. The matter was heard and decided by the Administrative Appeals Tribunal of Australia.

The primary legal issue was whether Mr Grant's disabilities, specifically sensori-neural deafness, ischaemic heart disease, and acquired cataracts, rendered him totally and permanently incapacitated, thus preventing him from undertaking remunerative work for periods exceeding eight hours per week. The court had to determine if his disabilities alone caused his inability to work, and if so, whether this resulted in a loss of salary, wages, or earnings he would not have suffered but for the war-caused incapacity. Additionally, the court had to ascertain the date from which Mr Grant would be eligible for the special rate of pension.

The Tribunal found Mr Grant to be a credible witness and accepted his account of his war-caused disabilities and work history. It was established that Mr Grant retired early from his managerial position due to family considerations and continued to work servicing a client portfolio until 1995. The Tribunal concluded that Mr Grant's war-caused disabilities alone prevented him from working more than eight hours per week. This finding was based on the medical evidence and the fact that Mr Grant had been working in "qualitative underload" for many years. Consequently, the Tribunal ruled that Mr Grant was eligible for the special rate of pension from 19 November 1995.

In light of the findings, the Tribunal ordered that Mr Grant be eligible for the special rate of pension from 19 November 1995. The decision took into account the veteran's credible testimony, the undisputed evidence of his disabilities and work history, and the applicable provisions of the Veterans' Entitlements Act 1986.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

I noted that the veteran's accepted disabilities were sensori-neural deafness, ischaemic heart disease and acquired cataracts in both eyes.EVIDENCE OF THE APPLICANT MR SYDNEY MATTHEW GRANT Mr Grant, whose date of birth was 18 March 1923, gave oral evidence before the Tribunal. He gave details of his background which were accepted by the parties and the Tribunal, as follows: Leaving Certificate, Scots College Melbourne; economics and history studies in first year at Melbourne University and three years of part-time study between 1947 and 1950 in England. Mr Grant said that he was an associate of the Chartered Insurance Institute. Mr Grant joined the RAAF in 1940, and gave evidence that he had worked with the Vacuum Oil Company before World War II. Between 3 September 1942 and his discharge on 13 March 1946, he had obtained his pilot's wings, worked as an instructor and was then transferred to a fighter squadron where he flew spitfires. After leaving the RAAF, Mr Grant rejoined the Vacuum Oil Company, and worked in its aviation department for approximately a year and a half. He had married and with a child on the way, decided to return to England in 1947 to secure housing for his family because he was unable to obtain building materials to build on the land he owned in Australia. Mr Grant said that he joined the Royal Insurance Company in 1948 and remained with the company until his retirement. His work in 1948 after some three to four months of training was as a district inspector, seeking business in general and life insurance. He said that by then he and his wife were expecting a second child, and he was selling as much as possible in order to earn higher commissions. By 1959, he had been transferred to head office and was then charged in 1960 with establishing a life company in Australia for his employer. He believed that this was based on his excellent record of sales. He said that he performed all the tasks necessary for this, and was the manager in charge. Mr Grant said that in 1972, he became operations manager for the Royal Insurance Group for New South Wales, which entailed a move from the life company to the main insurance company. He said that he was responsible for 300 employees, a field force of 50 general inspectors and large clients. Mr Grant gave evidence of enormous growth in the business and changes that took place in approximately 1978, with take-overs, mergers, computerisation, and a culture of cost cutting. He said that he was subsequently offered a transfer to Melbourne to be manager for the whole of Australia, but declined for family reasons. This led to his taking retirement in 1980 at the age of 57, (retirement at that time being at 62 years).Mr Grant told the Tribunal that when he left the company from a very senior managerial role with an income of approximately $23,000 - $24,000 per annum, he was asked to take over the running of a block of 300 to 350 clients. Commenting on what appeared to be low earnings of $23,000. - $24,000. per annum, he explained that this was in the era before salaries in his industry rose dramatically.

Decision

Reasons for decision

In cross-examination Ms Buchanan asked Dr Burns what the impact on the veteran's health would be if he worked in a menial clerical job. Dr Burns replied that the work that the veteran had been doing, that is, agency work, was at the "lower end of the social scale" and it therefore would not be a significant change for him to perform office work. He said that even though the veteran might find it difficult to perform more menial work than he was used to, it would be no different from other people in society who had been retrenched or were unemployed, and feeling stressed. In his opinion, the veteran had been working in "qualitative underload" for 15 years.SUBMISSIONS AND CONCLUSIONS I have to take into account all the evidence both written and oral, and the case law, legislation and submissions to make the correct and preferable decision regarding whether Mr Grant should receive pension at the Special Rate, pursuant to section 24 of the Act, noting that there was no disagreement between the parties that the earliest date of effect is 19 November 1995. The main elements of section 24 of the Act in relation to Mr Grant, were a consideration of whether war-caused disabilities rendered him totally and permanently incapacitated, that is to say that his war-caused conditions alone rendered him incapable of undertaking remunerative work for periods more than eight hours a week. If so, then I had to decide whether by reason of that incapacity Mr Grant was suffering a loss of salary, wages or earnings that he would not be suffering but for the war-caused incapacity. I found Mr Grant to be an extremely credible witness, and noted that his war-caused disabilities were sensorineural deafness, ischaemic heart disease and acquired cataract in both eyes. He also suffered from varicose veins with thromobophlebitis, otitis externa, pseudo-gout knees and cervical, thoracic and lumbar spondylosis. The history of his background appears in these reasons under the heading of "Evidence of the Applicant..", and as it was undisputed and I accepted it as given, I did not find it necessary to repeat it here. What I should say however is that I accepted that Mr Grant retired from full-time managerial work with the Royal Insurance Company at the age of 57 because he did not want to relocate his family yet again, and that he continued working for the company servicing a "block of direct business." I was mindful that section 24(2A) of the Act applied to the veteran's situation. He made a claim for a disability pension on 16 February 1996 pursuant to section 14 of the Act, and thus satisfied section 24(2A)(a) of the Act. Mr Grant was 72 years of age at the time of his application, and thus satisfied section 24(2A)(b) of the Act. He had also had pension assessed at 80% of the General Rate on and from 19 November 1995 and 90% of the General Rate on and from 25 August 1996. This meant he satisfied the requirements of section 24(1)(a) of the Act. I moved then to consider the veteran in relation to the requirements of section 24(1)(b) and section 24(2A)(d) of the Act. Ms Buchanan submitted that between 1948 and 1995 the veteran worked as a senior manager in the insurance industry. She submitted that when Mr Grant did not accept the position of manager for Australia for family reasons in 1980, his superannuation was inadequate for him to retire due to his length of service. He had to work for financial reasons and took on the arrangement to service a client portfolio. This he did from 1980 to 1995, she submitted, until he ceased because of his heart condition. I accepted the work in that position as described and recorded earlier in these reasons. Ms Buchanan submitted that Mr Grant wanted to work as long as possible and would still be working were it not for his heart disease. She submitted that the records indicated he had reduced his work load in 1993, ceasing by March 1995 and subsequently had a heart surgery in March 1996. Ms Buchanan submitted that Mr Grant had been unable to return to manage his portfolio following the operation and had been advised by his doctor, Dr Kail, to restrict his activities. That extended also to his community activities for which he had been recognised by the award of an Order of Australia in 1994.

Ratio Decidendi

Legal Principle Established

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