Hatherall and Repatriation Commission

[2003] AATA 83

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 83

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2000/477

VETERANS' APPEALS  DIVISION		)
Re		KATHLEEN JEAN HATHERALL

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member M D Allen

Date31 January 2003

PlaceSydney

Decision This matter is remitted to the Respondent with the direction that in accordance with the Tribunal's decision of 11 February 2002 the Applicant Kathleen Jean Hatherall is entitled to pension at the Special Rate pursuant to section 24 of the Veterans' Entitlements Act 1986 (as amended) as and from today's date.

(Sgd)        M. D. ALLEN

..................................           
  Senior Member

CATCHWORDS

VETERANS' ENTITLEMENTS - Application for special rate pension - Whether incapacity permanent - Permanent means for the foreseeable future not forever.

Veterans' Entitlements Act 1986 - s24A

McDonald v Director General Social Security 1 FCR 354

Jebb v Repatriation Commission 80 ALR 329

REASONS FOR DECISION

31 January 2003  Senior Member M D Allen

1.      On 11 February 2002 the Tribunal made a decision in this matter in the following terms, namely:

"The decisions under review are set aside and the Tribunal substitutes in lieu thereof its decision namely THAT the Applicant, Kathleen Jean Hatherall, is entitled to payment of pension for the defence-caused diseases of osteoarthritis right knee, adjustment disorder with depressed mood and lumbar spondylosis as and from 19 July 1998 AND THAT the assessment of the rate of pension to be paid is adjourned to the 1^st day of July 2002 with payment to the Applicant as and from the 19^th day of July 1998 to the 30^th day of June 2002 at the Temporarily Totally and Permanently Incapacitated rate as set forth in section 25 of the Veterans' Entitlements Act 1986 (as amended)."

2.      At paragraph 62 of the reasons for decisions I said:

"…The Tribunal's intention is that following it's finding that the Applicant is entitled to pension at the Special Rate that this matter be adjourned until the 1^st of July 2002. In the interim the Applicant is granted a pension pursuant to section 25 of the VEA, that is to say at the temporarily totally incapacitated rate. If in that time steps can be taken by the Respondent to undertake rehabilitation for the applicant and place he in one of the clerical positions which it argued she could fulfil, than the matter can be reassessed. If the Applicant is on 1^st July 2002 still unable to engage in remunerative work, she will be entitled to pension at the Special Rate unless some other matters intervene."

3.      In conformity with the above decision and the reasons for it on 11 July 2002 a directions hearing was held. At that directions hearing the Respondent appeared by Counsel Miss R Henderson, instructed by the Commonwealth Crown Solicitors Office.

4.      During discussion of the matter Miss Henderson stated:

"Belatedly we have been trying to make contact with the Applicant to talk to her about a suitable rehabilitation plan…