Hopkins and Repatriation Commission

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 339

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/6016

VETERANS' APPEALS DIVISION		)
Re		FRANCIS JAMES HOPKINS

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr J G Short (Member)

Date14 May 2009

PlaceAdelaide

Decision The Tribunal affirms the decision of the Repatriation Commission dated 15 June 2007 (as affirmed by the Veterans’ Review Board on 25 October 2007) to refuse to increase Mr Hopkins’ rate of pension beyond 100 percent of the general rate.

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J G SHORT
  (Member)

(2)    For the purpose of paragraph (1)(c):

(a)a veteran who is incapacitated from war-caused injury or war-caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if:

(i)the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; or

(ii)the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; …”

(b)where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking.”

If s 24(1) of the VE Act applies to Mr Hopkins, he will be entitled under s 24(4) to a pension at the special rate therein provided.

issues for determination

6. The Commission accepted that Mr Hopkins’ incapacity in this case was at least 70 percent. However, for a person under the age of 65 years, special rate of pension is only payable if all of the criteria set out in s 24(1) of the VE Act are met at the same time at any point during the assessment period which begins when the person claims a pension or makes an application for an increase in pension and ends when the Tribunal makes its decision.

7.      The Commission initially indicated that it was satisfied that Mr Hopkins met the requirement that the applicant be permanently and totally incapacitated, that is unable to work more than eight hours a week.  The Commission later withdrew its concession in that regard.

8. The Commission argued that Mr Hopkins had ceased to engage in remunerative work for reasons other than his incapacity from war-caused injury or war-caused disease and consequently was precluded from payment of one of the earnings related rates of pension (see ss 24(2)(a) and (b)).

9. The Commission suggested that Mr Hopkins…