Hall and Repatriation Commission (Veterans' entitlements) - [2024] ARTA 521

Hall and Repatriation Commission (Veterans' entitlements) [2024] ARTA 521 (14 November 2024)
Applicant/s:  ROBERT ANDREW HALL
Respondent:  REPATRIATION COMMISSION
Tribunal Number:                2023/9213

Tribunal:Member A McLean Williams
Place:Brisbane
Date:14 November 2024

Decision:The Tribunal affirms the decision under review.

................[Sgnd]............................................
[Member Surname]
Catchwords
VETERANS ENTITLEMENT ACT – Where the Applicant has sought review of a decision – disability pension at the extreme disablement rate – Applicant sought an increase in the disability pension to the ‘special’ rate available under the Veterans Entitlement Act – question of the Applicant’s last paid work undertaken – what constitutes paid work – whether casual work as a funeral celebrant constitutes paid work -– paid work involves part-time or casual work – binding Federal Court authorities that reiterate that last paid work is not limited to full-time employment - the decision under review is affirmed
Legislation
Veterans Entitlements Act 1986
Cases
Carter and Repatriation Commission [2001] FCA 992 at [24], per Branson J.
Grant and Repatriation Commission [1999] FCA 1629
Statement of Reasons

Retired Lieutenant Commander (LCDR) Andrew Robert Hall (‘the Applicant’) seeks a review before the Tribunal of a decision by the Veteran’s Review Board (‘the VRB’) dated 17 August 2023,[1] which had affirmed an earlier decision by the Repatriation Commission dated 3 November 2022 to continue LCDR Hall’s disability pension at the extreme disablement adjustment rate, pursuant to section 22 of the Veteran’s Entitlements Act 1986 (‘the VEA’).
[1] T1.1
LCDR Hall seeks an increase in the rate of his disability pension to the ‘special’ rate, available pursuant to section 24 of the VEA.
Background and Chronology
LCDR Hall, now aged 71-years, was born on 26 October 1952 and enlisted in the Royal Australian Navy on 12 January 1970.[2] LCDR Hall served continuously for more than 47 years until his discharge upon attaining compulsory retirement age (‘CRA’) on 26 October 2017.
[2] T4/27; 78/40.
In December 2015, LCDR Hall transferred from the permanent naval force to the Royal Australian Navy Reserve (RANR) whereupon he continued to serve until his discharge, on attaining CRA. Whilst still serving in the RANR, on 9 February 2016, LCDR Hall also commenced self-employment as a Funeral Celebrant and has been engaged in this occupation ‘constantly and continuously’,[3] ever since.
[3] Statutory Declaration of Robert Andrew Hall declared 2 July 2024 (T447).
LCDR Hall receives a VEA disability pension because of a number of service-related conditions. It is unnecessary for the Tribunal to document all of LCDR Hall’s accepted conditions, other than to note that on 25 August 2018 a Delegate of the Repatriation Commission accepted claims for tinnitus, lumbar spondylosis, thoracic spondylosis, PTSD, and dysthymic disorder, and increased the rate of disability pension to 100% of the general rate, with effect from 4 July 2017.
On 28 January 2020, a further service-related medical condition was accepted, and LCDR Hall’s disability pension was continued at 100% of the general rate, with effect from 20 May 2019.
On 30 March 2020, LCDR Hall applied to the VRB for…

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.

Keep reading for free

Create a free CaseChat account to read Hall and Repatriation Commission (Veterans' entitlements) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2024] ARTA 521
Decision Date: 14 November 2024

CaseChat Overview and Summary

LCDR Hall, a veteran, sought review of a decision made by the Veterans' Review Board (VRB) affirming a decision by the Repatriation Commission that LCDR Hall's disability pension should continue to be paid at the extreme disability adjustment rate, rather than the special rate as provided under section 24 of the Veterans' Entitlement Act. LCDR Hall argued that his last paid work, undertaken as a funeral celebrant, should be considered when determining his eligibility for the special rate. The key legal issue before the Administrative Review Tribunal was whether LCDR Hall's last paid work, which was casual and part-time, constituted 'paid work' under the relevant legislative provisions. The Tribunal had to interpret the term 'paid work' and determine if it included part-time or casual employment. In affirming the decision under review, the Tribunal noted that binding Federal Court authorities indicate that the term 'paid work' is not limited to full-time employment. The Tribunal concluded that LCDR Hall's casual work as a funeral celebrant did not meet the criteria for 'paid work' as required by section 24(2A)(d) of the Veterans' Entitlement Act. Therefore, the Tribunal held that LCDR Hall did not satisfy the cumulative requirements set out in section 24(2A) of the Act, and accordingly, his application for an increase in the rate of his disability pension was dismissed.

The Tribunal's decision was based on its interpretation of the relevant legislative provisions and the binding precedent set by the Federal Court. By affirming the decision made by the VRB, the Tribunal concluded that LCDR Hall was not eligible for the special rate of pension. The Tribunal's reasoning focused on the specific criteria outlined in section 24(2A) of the Act and the nature of LCDR Hall's last paid work. The outcome of the case was that LCDR Hall's application for an increase in the rate of his disability pension was dismissed, and the decision of the VRB was upheld.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

LCDR Hall seeks an increase in the rate of his disability pension to the ‘special’ rate, available pursuant to section 24 of the VEA.Background and Chronology LCDR Hall, now aged 71-years, was born on 26 October 1952 and enlisted in the Royal Australian Navy on 12 January 1970.[2] LCDR Hall served continuously for more than 47 years until his discharge upon attaining compulsory retirement age (‘CRA’) on 26 October 2017. [2] T4/27; 78/40. In December 2015, LCDR Hall transferred from the permanent naval force to the Royal Australian Navy Reserve (RANR) whereupon he continued to serve until his discharge, on attaining CRA. Whilst still serving in the RANR, on 9 February 2016, LCDR Hall also commenced self-employment as a Funeral Celebrant and has been engaged in this occupation ‘constantly and continuously’,[3] ever since. [3] Statutory Declaration of Robert Andrew Hall declared 2 July 2024 (T447). LCDR Hall receives a VEA disability pension because of a number of service-related conditions. It is unnecessary for the Tribunal to document all of LCDR Hall’s accepted conditions, other than to note that on 25 August 2018 a Delegate of the Repatriation Commission accepted claims for tinnitus, lumbar spondylosis, thoracic spondylosis, PTSD, and dysthymic disorder, and increased the rate of disability pension to 100% of the general rate, with effect from 4 July 2017. On 28 January 2020, a further service-related medical condition was accepted, and LCDR Hall’s disability pension was continued at 100% of the general rate, with effect from 20 May 2019. On 30 March 2020, LCDR Hall applied to the VRB for a review of the determination dated 28 January 2020. On 16 July 2020, the VRB set aside the determination dated 28 January 2020 and instead substituted a determination that LCDR Hall’s disability pension should be paid at the ‘extreme disability adjustment’ rate, with effect from 20 May 2019. On 10 October 2022, LCDR Hall applied for an increase in the rate of his disability pension.[4] As of 10 October 2022, LCDR Hall was 69 years of age.[4] T51. On 3 November 2022, a Delegate of the Repatriation Commission determined that LCDR Hall’s disability pension should continue to be paid at the extreme disability adjustment rate with effect from 10 October 2022. LCDR Hall then applied to the VRB for a review of the determination dated 3 November 2022, claiming that the Repatriation Commission had incorrectly refused his claim for special rate pension. On 17 August 2023,[5] the VRB affirmed the decision made by the Repatriation Commission on 3 November 2022, indicating that it was not reasonably satisfied that LCDR Hall met the eligibility criteria for pension payable at the special rate as set out in section 24(2A)(d) or section 24(2A)(g) of the VEA.[5] T1.1. On 5 December 2023, LCDR Hall applied to the Administrative Appeals Tribunal (‘AAT’) for review of the VRB’s decision dated 17 August 2023. On 14 October 2024, the AAT became the Administrative Review Tribunal (‘the Tribunal’). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (‘the Transitional Act’), applications for review to the AAT that were not finalised prior to 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. ISSUES BEFORE THE TRIBUNAL

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

As observed in earlier passages of these reasons, the requirements of the various subsections (a) – (g) in section 24(2A) are cumulative. It is impossible to overlook the conjunctive “and” linking each of these sub-sections. Each must be satisfied in order to crystallise an entitlement to special rate pension. Therefore, in the case of any veteran applicant who is above the age of 65 years, failure on any one of the subsections in section 24(2A) becomes determinative of an ineligibility for pension at the (section 24) special rate. DECISION Pursuant to section 105(a) of the Administrative Review Tribunal Act 2024 (Cth), the Tribunal affirms the decision made by a Delegate of the Respondent on 17 August 2023.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.