Hill and Repatriation Commission - [2003] AATA 1114

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2003] AATA 1114
ADMINISTRATIVE APPEALS TRIBUNAL )
) No D2002/25

VETERANS' APPEALS DIVISION )

Re COLIN DENNIS HILL

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Deputy President Don Muller
Date7 November 2003
PlaceBrisbane

Decision
The Tribunal affirms the decision to reject a claim for service pension pursuant to the provisions of the Veterans’ Entitlements Act 1986.

................SIGNED...............................
D.W. MULLER
DEPUTY PRESIDENT

CATCHWORDS
VETERANS’ AFFAIRS – invalidity service pension – whether applicant unable to work more than eight hours per week
Veterans’ Entitlements Act 1986: ss37, 37AA
REASONS FOR DECISION

Deputy President Don Muller

1.      Colin Dennis Hill, the Applicant, made a claim on 25 May 2001, for service pension on the grounds that he is permanently incapacitated for work.
2.      The Applicant’s claim has been rejected. He seeks a review of the decision to reject his claim.
3.      The following matters are not in dispute and the Tribunal finds that:
(a)The Applicant was born on 17 March 1945. He is now 58 years of age.
(b)He served in the Australian Army from 30 June 1965 to 30 June 1968.
(c)For the purposes of the Veterans’ Entitlements Act 1986, he had operational service in Vietnam from 6 June 1967 to 16 April 1968. That is, he has “qualifying service”.
(d)The Applicant has the following psychiatric illnesses, which are permanent:
(i)Significant vulnerability in his personality, probably related to his difficult childhood experience
(ii)Alcohol dependency
(iii)Pathological gambling addiction
(iv)Major-depression (part treated)
(v)Dysthymic disorder
(vi)Mild post traumatic stress disorder

(e)If the Applicant’s psychiatric impairments were assessed under the Guide to the Assessment of Rates of Veterans’ Pensions, they would result in a combined impairment rating of 40 or more under table 18.1 of that Guide.

4. The legislation relevant to this review is contained in sections 37 and 37AA of the Veterans’ Entitlements Act 1986, and in Determination 1999 under subsection 37AA(1) of the Act.
“37 Eligibility for invalidity service pension
(1)Subject to subsection (6), a person is eligible for an invalidity service pension if the person:
(a) is a veteran; and
(b) has rendered qualifying service; and
(c)is permanently incapacitated for work in accordance with a determination under section 37AA.

37AA Commission must determine circumstances in which persons are permanently incapacitated for work
(1)The Commission must, by written determination, specify the circumstances in which persons are permanently incapacitated for work for the purposes of paragraph 37(1)(c).
..
(3)A determination under this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
Determination 1999

“5 Circumstances of permanent incapacity
(1)A person is permanently incapacitated for work for paragraph 37(1)(c) of the Act if the person:
(a)is permanently blind in both eyes; or
(b)is a veteran tho whom section 24 of the Act applies; or
(c)satisfies subsection (2).

(2)A person satisfies this subsection if:
(a)the person has an impairment that, if it were…

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 Repatriation Commission

Details

AGLC: Hill and Repatriation Commission [2003] AATA 1114
Case: [2003] AATA 1114
Decision Date: 7 November 2003

CaseChat Overview and Summary

Hill, a veteran, sought a service pension under the Veterans' Entitlements Act 1986. The matter came before the Tribunal to determine whether Hill was incapable of working more than eight hours per week, a requisite condition for the pension. The Repatriation Commission opposed the claim, arguing that Hill's condition did not meet the statutory criteria.

The central legal issue before the Tribunal was whether Hill’s medical condition rendered him incapable of working more than eight hours per week. This determination hinged on the interpretation of the statutory provisions in sections 37 and 37AA of the Veterans' Entitlements Act 1986, which detail the requirements for an invalidity service pension. The Tribunal had to assess the evidence regarding Hill's physical capacity to work and compare it against the legislative standards.

In its decision, the Tribunal found that Hill's medical evidence did not substantiate a complete inability to work more than eight hours per week. The Tribunal gave significant weight to the medical reports that indicated Hill could work longer hours, albeit with certain limitations. As such, the Tribunal concluded that Hill did not meet the statutory requirement of being wholly incapable of working more than eight hours per week. Consequently, the Tribunal upheld the decision to reject Hill's claim for a service pension.

The Tribunal's decision was affirmed, maintaining the rejection of Hill's claim for a service pension. The Tribunal's ruling was based on the interpretation that Hill’s ability to work more than eight hours per week, despite his medical conditions, did not fulfil the statutory criteria for the pension under the Veterans’ Entitlements Act 1986.

Orders

Orders of the court

The Tribunal affirms the decision to reject a claim for service pension pursuant to the provisions of the Veterans’ Entitlements Act 1986.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.