Iliffe and Repatriation Commission - [2024] ARTA 5

Iliffe and Repatriation Commission (Veterans’ entitlements) [2025] ARTA 5 (1 November 2024)
Applicant/s:  Larry Iliffe
Respondent:  Repatriation Commission
Tribunal Number:                2023/1449
Tribunal:General Member A. Maryniak KC
Place:Melbourne
Date:1 November 2024

Decision:The Tribunal affirms the reviewable decision.

................................[SGD]........................................
General Member A. Maryniak KC
Catchwords
VETERAN’S AFFAIRS – application for increase to special rate of pension – veteran in receipt of pension at 100% of the general rate – whether non-accepted injuries prevented veteran from undertaking remunerative work – whether alone test satisfied – consideration of the substantial cause – reviewable decision affirmed
Legislation
Veterans’ Entitlements Act 1986 (Cth)
Cases
Barnes v Repatriation Commission [2019] FCA 1685
Fox v Repatriation Commission [1997] FCA 176
Repatriation Commission v Richmond [2014] FCAFC 124
Repatriation Commission v Woodall [2015] FCA 1267
Smith v Repatriation Commission (2014) 220 FCR 452; [2014] FCAFC 53
Statement of Reasons

The Applicant seeks review of a Veterans Review Board decision under the Veterans’ Entitlements Act 1986 (Cth) (‘the Act’) dated 8 December 2022 which affirmed an earlier decision, contrary to a claim dated 11 October 2021, to maintain the Applicant’s pension at 100% of the general rate of pension. At the date of the claim the Applicant was under 65.
The Applicant served with the Australian Army between 1974 and 1977, the Australian Air Force between 1977 and 1986 and the Army Reserve between 1994 to 1999. The Applicant had other full-time employment between and after these periods of time. He stopped working full-time in March 2013 and worked as a casual at the University of Canberra for approximately eight months in 2015.[1]
[1] Exhibit R1 T34, p 146.
The Tribunal has considered the testimony of the Applicant and Dr Douglas, expert witness engaged by the Respondent, both of whom were cross-examined. The Tribunal has also considered the documentary material before it, including the T-Documents (Exhibit R1) together with various pages of the summonsed material referred to during the hearing. The Tribunal has also considered the written and oral submissions of the parties. The Tribunal finds the Applicant to be a truthful witness and accepts that he is experiencing significant health challenges and has a substantial history of health issues.
The Tribunal is required to assess whether at any time during the assessment period the special rate (or intermediate rate) was payable. The entitlement may increase or decrease during that period but, provided that a pension was payable at some time during the assessment, a veteran will receive either the intermediate rate or the special rate, whichever is applicable, or in the case that both are applicable, whichever is the most recently applicable.[2] Whilst the Applicant’s claim is for a special rate pension, the Tribunal has also considered any intermediate rate pension entitlement.
[2] Smith v Repatriation Commission (2014) 220 FCR 452 at [40].
In respect of the special rate, it is necessary to consider the cumulative requirements of section 24(1) of the Act to determine any such entitlement. The threshold requirements of…

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.

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Details

AGLC: Iliffe and Repatriation Commission [2024] ARTA 5
Case: [2024] ARTA 5
Decision Date: 1 November 2024

CaseChat Overview and Summary

The case involved Iliffe, a veteran, and the Repatriation Commission, with Iliffe seeking an increase to his special rate of pension. The dispute centred on whether Iliffe's non-accepted injuries prevented him from undertaking remunerative work, and whether the Commission's decision not to increase his pension was correct. The matter was heard in the Federal Court of Australia.

The primary legal issue before the court was whether Iliffe's non-accepted injuries sufficiently prevented him from engaging in remunerative employment, which would entitle him to the special rate of pension. Additionally, the court needed to determine if the Commission's decision was reviewable and, if so, whether it was justified. The court was required to consider the definition of 'alone' as per the applicable legislation and whether the substantial cause test was met.

The court found that the Repatriation Commission's decision was based on a proper interpretation of the relevant statutory provisions and was therefore affirmed. The court held that the non-accepted injuries did not prevent Iliffe from undertaking remunerative work to the extent required for the special rate of pension. The court further determined that the 'alone' test was not satisfied, and the substantial cause test was not met. As a result, the Commission's decision not to increase Iliffe's pension was justified.

The court's decision was final, and no further orders were made. The Repatriation Commission's determination to maintain Iliffe's pension at 100% of the general rate was upheld.

Orders