James and Repatriation Commission (Veterans' entitlements) - [2022] AATA 2476

James and Repatriation Commission (Veterans' entitlements) [2022] AATA 2476 (4 August 2022)
Division:VETERANS' APPEALS DIVISION
File Number(s): 2020/2617
Re:Bryan James
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Deputy President B W Rayment OAM QC
Date:4 August 2022
Place:Sydney

The reviewable decision is set aside and in substitution it is decided that Mr James is entitled to the special rate of pension.
....................................[SGD]....................................
Deputy President B W Rayment OAM QC
CATCHWORDS
VETERANS’ AND MILITARY COMPENSATION – whether the Applicant is entitled to the special rate of pension – provisions of the Veterans’ Entitlements Act 1986 (Cth) considered – relevant cases considered – relevant material considered – decision under review set aside and substituted.
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth)
CASES
Repatriation Commission v Richmond [2014] FCAFC 124; (2014) 226 FCR 21
Repatriation Commission v Watkins [2015] FCAFC 10; (2015) 228 FCR 573
REASONS FOR DECISION
Deputy President B W Rayment OAM QC
4 August 2022

This review concerns an application made by a veteran for the special rate of pension.
He has a number of accepted war-caused conditions, including lumbar spondylosis. He retired when the pain he suffered caused him to retire from his employment as an electrician, which he carried on together with three workmates with whom he had worked since about 1973. He retired in February 2018. He enjoyed the work and the company of his workmates.
He had intended to keep working about ten years after the age of 65, that is, until his 75^th birthday. In fact, he retired when he was 70 years old. The condition on which he blamed his retirement was lumbar spondylosis, from which he said he had suffered since he was 35 years old. It still affects him today in retirement.
The case has been contested by the respondent and it particularly relates to three legal issues, upon which the parties have each called specialist medico-legal evidence. Those issues are: whether the applicant satisfies paragraph 24(1)(b) of the Veterans’ Entitlements Act 1986 (Cth) (the Act) (which applies to him under paragraph 24(2A)(c)) of the Act); whether he satisfies paragraph 24(2A)(d); and whether he satisfies paragraph 24(2A)(e) of the Act. The applicant must succeed on all three issues.
Section 24 provides so far as relevant:
(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 was made; and
(a) either:
(i) the degree of incapacity of the veteran from war‑caused injury or war‑caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii) the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive…

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

Case: [2022] AATA 2476
Decision Date: 4 August 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered the entitlement of the applicant, James, to the special rate of pension under the *Veterans' Entitlements Act 1986* (Cth). The dispute concerned whether James met the criteria for this pension, which is typically awarded to veterans who have suffered a war-caused disability or injury that prevents them from working.

The primary legal issue before the Tribunal was to determine whether James's accepted war-caused conditions rendered him totally and permanently incapacitated for work, thereby entitling him to the special rate pension. This required an assessment of the severity of his conditions and their impact on his capacity to earn a livelihood.

The Tribunal's reasoning focused on a careful examination of the evidence relating to James's accepted conditions and their functional limitations. It applied the principles established in relevant case law concerning the interpretation of "totally and permanently incapacitated" and the assessment of earning capacity under the Act. The Tribunal considered the cumulative effect of James's disabilities and their impact on his ability to undertake any form of gainful employment. The decision under review was set aside and substituted with a new decision granting the special rate pension.

Orders