Higgins and Repatriation Commission

[2006] AATA 327

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 327

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2005/322

VETERANS’ APPEALS DIVISION		)
Re		RAYMOND HIGGINS

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member B J McCabe

Date7 April 2006

PlaceBrisbane

Decision The decision under review is set aside. The applicant is eligible to be granted a pension at the special rate under the Veterans Entitlements Act 1986. The date of effect is 5 March 2004.

…………[Sgd]…………

SENIOR MEMBER

CATCHWORDS

VETERANS’ AFFAIRS – veterans’ entitlements – special rate pension – alone test – applicant worked as a labourer – veteran unable to work during the claim period due to accepted conditions – applicant satisfies the alone test

Veterans Entitlements Act 1986 s 24

Flentjar v Repatriation Commission (1997) 48 ALD 1

Forbes v Repatriation Commission (2000) 58 ALD 394

Peacock v Repatriation Commission [2004] FCA 1449

Repatriation Commission v Hendy (2002) 76 ALD 47

Repatriation Commission v Smith (1987) 74 ALR 537

REASONS FOR DECISION

7 April 2006 Senior Member B J McCabe         

introduction

1.      Raymond Higgins is seeking a pension paid at the special rate under the Veterans Entitlements Act 1986 (the VEA). The Repatriation Commission says Mr Higgins does not satisfy the criteria in s 24 of the Act – specifically the criterion in s 24(1)(c) (the provision imposing what has become known as the “alone” test). The respondent’s reviewable decision to that effect was affirmed by the Veterans’ Review Board (the VRB). Mr Higgins has asked the Tribunal to review his case.

the material before the tribunal

2. The Tribunal was provided with the material required under s 37 of the Administrative Appeals Tribunal Act 1975. The applicant’s statement was tendered in evidence, and he gave oral testimony. There were no other witnesses. The respondent tendered a transcript of the proceedings of the VRB, a letter from BM Alliance Coal Operations Pty Ltd and copies of correspondence between the respondent and Dr Boys.

3.      The hearing was held in Townsville. The applicant was represented by Mr Honchin of counsel. Mr Kelly, a departmental advocate, appeared by telephone from Brisbane. (Mr Kelly was excused from appearing at the hearing in person because a cyclone had grounded flights into Townsville.)

the factual background

4.      The applicant was born on 15 March 1944. He was 62 years of age at the time of the hearing. He served in the Army and rendered operational service in Vietnam between May 1969 and May 1970. He has a number of accepted conditions as a result of his service, including hearing problems, post traumatic stress disorder (PTSD) and an alcohol dependence or abuse condition.

5.      Mr Higgins worked for Australia Post as a postman for several years but he has spent the greater part of his career working in mines. He was employed at the Moura mine near Mackay between 1984 and 1998. That was the last occasion on which he worked. Although he was designated as a miner, he…