Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 332
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2004/0001
VETERANS' APPEALS DIVISION ) Re GREGORY MICHAEL BUTCHER Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Deputy President D G Jarvis
Senior Member L HastwellDate12 May 2009
PlaceAdelaide
Decision The tribunal sets aside the decision under review, and in place of that decision:
1. decides that the applicant is entitled to pension at the special rate provided for in section 24 of the Veterans’ Entitlements Act 1986 (Cth) with effect on and from 1 October 2008; and
2. remits the matter to the respondent to assess the applicant’s entitlement to pension in accordance with the tribunal’s reasons for decision.
D G Jarvis
(Signed)
Deputy President
CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements – disability pension – special rate – accepted conditions of personality disorder, conversion reaction, psycho-somatic illness, psoriasis, anxiety disorder, alcohol dependence or alcohol abuse, and hypertension – seven asserted non-accepted conditions – relevance to alone test of periodic consultations and treatment – evaluation of medical evidence – decision set aside – applicant became entitled to pension at special rate during assessment period.
Veterans’ Entitlements Act 1986 (Cth), ss 24(1)(c) and 31
Baljas v Repatriation Commission [2009] FCA 171
Cavell v Repatriation Commission (1988) 9 AAR 534
Forbes v Repatriation Commission (2000) 101 FCR 50
Jackman v Repatriation Commission, Federal Court, 30 June 1997, 521/1996
Repatriation Commission v Alexander (2003) 75 ALD 329
Repatriation Commission v Braund (1991) 23 ALD 591
Repatriation Commission v Butcher [2006] FCA 811
Repatriation Commission v Butcher (2007) 94 ALD 364
Repatriation Commission v Hendy (2002) 76 ALD 47
Repatriation Commission v Smith (1987) 15 FCR 327
REASONS FOR DECISION
12 May 2009 Deputy President D G Jarvis
Senior Member L Hastwell1. The applicant, Gregory Michael Butcher, served in the Australian Army from 8 January 1974 to 13 April 1981. He has the following accepted disabilities, namely personality disorder, conversion reaction, psycho-somatic illness, psoriasis, anxiety disorder, alcohol dependence or alcohol abuse, and hypertension.
2. On 31 March 2003 Mr Butcher lodged a claim for an increase in pension and for the condition of hypertension to be included as being defence caused. A delegate of the Commission decided on 20 February 2004 to include hypertension as a defence-caused condition, and to pay Mr Butcher’s pension at 100 percent of the general rate with effect from 31 December 2002.
3. Mr Butcher sought a review of this decision by the Veterans’ Review Board (VRB). On 17 August 2004 the VRB affirmed the decision under review. Mr Butcher then applied to this tribunal for a review of the Commission’s decision. He asserted that he is prevented from continuing to undertake remunerative work by reason of incapacity from his defence-caused conditions alone, and that he was entitled to the special rate of pension provided for in s 24 of the Veterans’ Entitlements Act 1986 (Cth) (the VE Act).
4. The tribunal set aside the decision of the Commission,…
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- GREGORY MICHAEL BUTCHER and REPATRIATION COMMISSION [2009] AATA 332
- Case
- [2009] AATA 332
- Decision Date
CaseChat Overview and Summary
The court had to determine whether Butcher’s non-accepted conditions were relevant to the "alone test" for periodic consultations and treatment, which is a requirement for the special rate pension. The primary issue was whether the medical evidence adequately demonstrated that Butcher’s conditions were severe enough to warrant the special rate during the assessment period. The court also had to evaluate the overall medical evidence and the Commission’s interpretation of the Veterans’ Entitlements Act 1986 (Cth) in this context.
The tribunal found that the Commission had failed to properly consider Butcher’s entitlement to the special rate pension during the assessment period. The court concluded that the evidence indicated Butcher was entitled to the pension at the special rate from 1 October 2008. The Commission had not sufficiently considered the impact of the accepted conditions in combination with the non-accepted conditions, which led to the decision being set aside. The court directed the Commission to reassess Butcher's pension entitlement in light of the tribunal’s findings.
The tribunal ordered the Commission to decide that Butcher is entitled to the pension at the special rate effective from 1 October 2008, and to reassess his pension entitlement in accordance with the tribunal’s reasons for decision.
Orders
Orders of the court
The tribunal sets aside the decision under review, and in place of that decision:
1. decides that the applicant is entitled to pension at the special rate provided for in section 24 of the Veterans’ Entitlements Act 1986 (Cth) with effect on and from 1 October 2008; and
2. remits the matter to the respondent to assess the applicant’s entitlement to pension in accordance with the tribunal’s reasons for decision.
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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