Haskard and Repatriation Commission

[2003] AATA 580

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 580

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   N2002/1987

VETERANS' APPEALS  DIVISION		)
Re		Howard Haskard

Applicant

And Repatriation Commission

Respondent

DECISION

Tribunal Mr RP Handley, Deputy President
Dr J Campbell, Member

Date17 April 2003

PlaceSydney

Decision The Tribunal affirms the decision under review.

...............................................

RP Handley
  Deputy President 

CATCHWORDS

VETERANS’ AFFAIRS – Repatriation Commission – assessment of Special Rate of Pension – requirement that decision maker must be “reasonably satisfied” that veteran is incapable of undertaking remunerative work for more than eight hours per week – held decision under review affirmed.

REASONS FOR DECISION

17 April 2003 Mr RP Handley, Deputy President
Dr J Campbell, Member    

1. This matter has been remitted to the Tribunal by the Federal Court to be dealt with in accordance with the law. At issue before the Federal Court was the Tribunal's interpretation of s 24(2A)(d) of the Veterans' Entitlements Act 1986.  The Tribunal held that the phrase "prevented from continuing to undertake the remunerative work" in that subsection meant that a veteran was unable to continue such work for periods aggregating more than eight hours a week. 

2.        The Tribunal's finding that Mr Haskard is not capable of undertaking remunerative work as a self-employed valuer for periods aggregating more than eight hours a week was and is not challenged by the Respondent.

3.        At the remittal hearing, the Tribunal heard brief oral submissions from Mr Haskard, who was self-represented, and from Ms Rhonda Henderson, of Counsel, for the Respondent. 

4.        The Tribunal acknowledges Mr Haskard's concern that he is being penalised for trying to continue in his work to the extent that he is able and despite a diminishing capacity for work.  That he is being so penalised is what he understands is the consequence of the Federal Court ruling in this matter.

Hill J said in his Federal Court decision at paragraph 28:

It seems to me that in each case where language equivalent to s 24(2A)(d) is used, what is required is that the veteran, by reason only of the war-caused injury or disease or both, can no longer work in the particular job or occupation that the veteran has had.

5.        This language to which Hill J refers, is used both in relation to the provisions of the Act that apply to the Special and Intermediate Rates.  Thus, in accordance with the Federal Court order that s 24(2A) does not apply to Mr Haskard, the Tribunal concludes that Mr Haskard is not entitled to a Disability Pension at the Special Rate and for the same reason is also not entitled to payment of the Disability Pension at the Intermediate Rate.

6.        Mr Haskard also questioned whether he is entitled to the payment of the Extreme Disablement Adjustment.  To be qualified for the Extreme Disablement Adjustment pursuant to s 22(4) of the Veterans’ Entitlement Act 1986 a person must relevantly have both an incapacity rating of 100 per cent and an impairment rating of at least 70 points, and a lifestyle rating of at least six points.

7.        The evidence before the Tribunal indicates that the appropriate lifestyle rating for Mr Haskard is no more than five points.  This was Mr Haskard's self-assessment on 3 June 1995.  Both Dr Martha Baz, Occupational Physician, on 24 December 1996, and more recently Dr Tom Rosenthal, Occupation Physician, on 25 May 2001, made the same assessment of an average lifestyle rating of four.

8.        The Tribunal therefore affirms the decision under review, being the decision of the Veterans' Review Board made on 8 May 1997, that Disability Pension at 100 per cent of the General Rate should be paid from 26 July 1995.

I certify that the 8 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RP Handley, Deputy President and Dr J Campbell, Member

Signed:         .......................................................................................
  Associate

Date of Hearing  17 April 2003
Date of Decision  17 April 2003
Representative for the Applicant               Self-represented 
Representative for the Respondent          Ms R Henderson, Counsel