[2012] AATA 443
Division Veterans' Appeals Division File Number(s)
2011/2621
Re
Hans Kannengiesser
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Senior Member A K Britton
Date 13 July 2012 Place Sydney The decision under review is affirmed.
................................[sgd]........................................
Senior Member A K Britton
CATCHWORDS
VETERANS' ENTITLEMENTS - pension - special rate - war caused incapacity - "alone" test - remunerative work - decision under review affirmed
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth) - ss 19(5C), 19(9), 24, 24(1)(c), 24(2)(a)
CASES
Flentjar v Repatriation Commission (1997) 48 ALD 1
Banovich v Repatriation Commission (1986) 69 ALR 395
Starcevich v Repatriation Commission (1987) 18 FCR 221
Repatriation Commission v Hendy (2002) 76 ALD 47; [2002] FCAFC 424Repatriation Commission v Butcher (2007) 94 ALD 364; [2007] FCAFC 36
REASONS FOR DECISION
Senior Member A K Britton
July 2012
Veteran Mr Hans Kannengiesser served in the Royal Australian Navy for nearly thirty years. He has made a claim for a pension at the “special rate” under the Veterans’ Entitlements Act 1986 (Cth) (the Act). The Repatriation Commission, the respondent in these proceedings, refused that claim. After unsuccessfully challenging that decision in the Veterans’ Review Board, Mr Kannengiesser now applies for review by the Administrative Appeals Tribunal.
Mr Kannengiesser suffers from a number of “war-caused” conditions including osteoarthritis in a shoulder and knee, Post Traumatic Stress Disorder and alcohol abuse (the accepted conditions).
Mr Kannengiesser will be eligible for a pension at the special rate if he meets the criteria set out in s 24 of the Act. It is agreed, and I accept, that Mr Kannengiesser satisfies all criteria but the so-called “alone test” (s 24(1)(c)). That test will be satisfied if, by reason of his “war-caused incapacity” alone, Mr Kannengiesser was prevented from continuing to undertake the type of work he had been performing with the Australian Naval Cadets up until June 2003. The Commission concedes that Mr Kannengiesser’s “war-caused incapacity” was one of the reasons he was prevented from continuing with the Naval Cadets, but contends that it was not the sole reason. Mr Kannengiesser disagrees.
EMPLOYMENT AND MEDICAL HISTORY
Mr Kannengiesser enlisted in the Royal Australian Navy in 1960 and was discharged in 1989. He then commenced work with a local council and held a number of supervisory positions. In 1997 he relocated from Sydney to Hervey Bay, Queensland, to take up a position with a local Council. That appointment did not proceed because of a Council restructure. He attempted without success to find full-time employment and in September 1997, accepted an appointment with the Australian Naval Cadets. Within six months, he was promoted to the rank of Lieutenant and Commanding Officer of the Cadet Unit TS Krait.
Mr Kannengiesser was employed by the Cadets on a casual basis and his hours of work varied from week to week. His tasks included attending annual and bi-monthly weekend camps and regular training sessions. In addition, he undertook various administrative tasks.
In early June 2003, Mr Kannengiesser’s Commanding Officer announced Mr Kannengiesser’s…
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- Case
- [2012] AATA 443
- Decision Date
CaseChat Overview and Summary
The court examined the statutory provisions and the interpretation of the term "alone" in section 24(1)(c) of the Veterans' Entitlements Act 1986. It was necessary to determine if Mr Kannengiesser's employment rendered him ineligible for the pension, given that the legislation requires the veteran to be significantly disabled and not engaged in remunerative work alone due to their war-caused incapacity. The court had to balance the veteran's employment against the requirement for total dependency on the war-caused incapacity to qualify for the special rate pension.
In its reasoning, the court found that although Mr Kannengiesser was significantly disabled due to his war-caused conditions, his employment during the assessment period meant that he was not solely dependent on his incapacity for financial support. The court held that Mr Kannengiesser did not satisfy the "alone" test as required by section 24(1)(c) of the Act, and therefore affirmed the decision of the Repatriation Commission to deny the special rate pension. The court emphasised that the veteran's employment was a critical factor in its decision, leading to the conclusion that the assessment period did not meet the statutory criteria for the special rate pension. The court's affirmation of the Commission's decision concluded the matter, with no further orders made.
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