Hill and Repatriaiton Commission - [2001] AATA 331

DECISION AND REASONS FOR DECISION [2001] AATA 331

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/1118

VETERANS' APPEALS DIVISION       )
           Re      ALLAN HILL
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal The Hon. R N J PURVIS QC, DEPUTY PRESIDENT

Date24 April 2001
PlaceSydney

Decision The decision under review is set aside, the matter remitted to the Respondent to determine the appropriate amount due to the Applicant, the earliest date of effect being 25 March 1996.

..............................................
[sgd]R N J PURVIS QC
Deputy President
CATCHWORDS
VETERANS' APPEALS – disability pension – special rate – accepted war-caused disabilities – total and permanent incapacity as a consequence of accepted disabilities – last remunerative work – whether the accepted disabilities alone were the cause of the Applicant ceasing his last remunerative work – deterioration in accepted disabilities – whether relevant loss suffered was by reason of diminution of capacity to undertake remunerative work

Veterans' Entitlements Act 1986 – ss 24(1), 24(2)

Hill v Repatriation Commission [2000] FCA 929
Banovich v Repatriation Commission (1986) 69 ALR 395

REASONS FOR DECISION

The Hon. R N J PURVIS QC, DEPUTY PRESIDENT
the application

This is an application made by Allan Claude Hill ("the Applicant") seeking payment of a pension at the special rate pursuant to section 24 of the Veterans' Entitlement Act 1986 ("the Act").
Following a decision of the Administrative Appeals Tribunal on 16 April 1993, the Applicant received a disability pension at the intermediate rate with effect from 19 January 1990. On 25 March 1996 the Applicant lodged a claim for an increase in disability pension to the special rate, the Repatriation Commission ("the Respondent") refusing the application on 6 May 1996 and maintaining the disability pension at the intermediate rate. This refusal decision was affirmed by the Veterans' Review Board on 23 September 1997.
The Applicant contends that he ceased work solely as a result of his accepted conditions. Further, that he is impaired totally for any work as a consequence of his accepted conditions and his war-caused generalised anxiety disorder. The Respondent on the other hand maintains that the Applicant is not totally and permanently incapacitated within the meaning of section 24(1)(b) and that he ceased work for reasons other than his accepted disabilities and therefore fails to satisfy the requirements of section 24(1)(c) of the Act.
An application to review the decision of 6 May 1996 came on for hearing before the Tribunal on 16 June 1999 and on 3 February 2000; the decision under review was affirmed. There was and is no issue between the parties that the Applicant met the requirements of sections 24(1)(aa), (aab) and (a)(i), namely:
"Special rate of pension
24(1) This section applies to a veteran if:
(aa) the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab) the veteran had not yet turned 65 when the claim or application…

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.

Continue reading Hill and Repatriaiton Commission

Details

AGLC: Hill and Repatriaiton Commission [2001] AATA 331
Case: [2001] AATA 331
Decision Date: 24 April 2001

CaseChat Overview and Summary

The case of Hill v Repatriation Commission involved the Applicant, who had served in the military and had several disabilities accepted as war-caused, seeking a pension from the Repatriation Commission. The Applicant argued that his disabilities led to his retirement from his last remunerative work and that he was now incapable of engaging in such work due to a deterioration in his condition. The legal issues before the court were whether the Applicant's disabilities alone caused his cessation of work and if the deterioration in his condition led to a relevant loss in his capacity to undertake remunerative work.

The court considered the statutory provisions under the Veterans' Entitlements Act 1986 and relevant case law, including Banovich v Repatriation Commission. The Tribunal found that the Applicant's retirement was not due to a personal choice but was solely because of his war-caused disabilities, which had deteriorated over time. The court rejected the Respondent's argument that the Applicant had not suffered any loss by reason of the diminution of his capacity to work, concluding that the Applicant's ability to undertake remunerative work had indeed decreased from 20 hours a week to eight hours a week due to his disabilities. The Tribunal determined that the Applicant would not have been able to continue in his employment without his disabilities and that he was unable to engage in remunerative work at the time of the application.

The court's reasoning was based on the medical evidence provided and the specific impact of the Applicant's disabilities on his ability to work. It was held that the Applicant's decision to accept redundancy was influenced by his war-caused disabilities, and the Tribunal found that the deterioration of these disabilities resulted in a relevant loss of capacity to undertake remunerative work. The Tribunal concluded that the Applicant did not make a personal election to cease his employment but rather retired due to his disabilities, and thus was entitled to the pension sought.

The final orders of the court were in favour of the Applicant, granting him the pension on the basis that he had suffered a relevant loss by reason of the diminution of his capacity to undertake remunerative work due to the impact of his war-caused disabilities.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Overall, it was submitted that the Applicant did not satisfy the pre-work principles of section 24(1)(c) because he had suffered no loss by reason of the diminution of his capacity from 20 hours a week to eight hours a week. Further absent any actual job and absent any attempts under section 24(2)(b) to obtain such jobs, the Applicant did not demonstrate that he had sustained a loss for the purpose of section 24(1)(c).decision The Tribunal does not accept the submissions made by and on behalf of the Respondent. The Tribunal is satisfied that the evidence before it is consistent with the Applicant ceasing his employment in 1989 on account of his accepted disabilities alone. In 1993 a determination was made as to his entitlement to an intermediate pension and his capacity to work in the type of work in which he had been employed prior to his retirement was substantially further reduced. His activities in dog breeding and display are not the relevant activities for the purpose of this application. On the basis of the medical evidence, the Tribunal is satisfied that the Applicant is a person who was unable to engage in remunerative work at the application date beyond the statutory pre-requisite and that he did and does not exhibit a relevant capacity for work. It was not a matter of "a personal election" being made by him to cease his employment but a retirement solely because and on account of his accepted disabilities. The "long gap" between his retirement and making the subject application did not play a part in preventing him from continuing to undertake remunerative work, the like of which he had taken in the past. He did not withdraw from the workforce to benefit from any life style choice. The life style choice, namely one of experiencing measurable incapacities, was placed or imposed upon him. The Tribunal is satisfied that the Applicant suffered a relevant loss by reason of the diminution of his capacity to undertake remunerative work from 20 hours a week to eight hours a week, this on account of the impact upon him of a deterioration in his accepted disabilities. The Applicant was increasingly unable to undertake the remunerative work that he was last doing and this on account of his accepted disabilities. The Tribunal is satisfied that the Applicant accepted the offer of redundancy in 1989 only because his war-caused disabilities made it increasingly difficult for him to cope with the requirements of his position. This was the reason why the Applicant accepted the redundancy package. It was not probable that the Applicant, in the absence of his war-caused disabilities, would have been engaged in the type of work he undertook with the Department of Defence at the date of the subject pension application be it seven years later. The Tribunal is not satisfied that the Applicant would have retired from this type of work by the date of his application, absent his war-caused disabilities and not withstanding that he had not by then reached 65 years of age.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.