Jean Isabel Holden and Repatriation Commission - [2014] AATA 810

[2014] AATA 810

Division	VETERANS' APPEALS DIVISION
File Number	2012/3424
Re	Jean Isabel Holden
APPLICANT
And	Repatriation Commission
RESPONDENT

DECISION

Tribunal	G. D. Friedman, Senior Member
Date	30 October 2014
Place	Melbourne

The Tribunal sets aside the decision under review and substitutes a decision that Mrs Holden be granted a widow's pension with effect from 28 July 2011.

..........................[Sgd].......................................

G. D. Friedman, Senior Member

VETERANS' AFFAIRS – veterans’ entitlements – widow’s claim – death from ischaemic heart disease – whether psychiatric condition contributed to ischaemic heart disease – remittal from Federal Court

LEGISLATION

Veterans' Entitlements Act 1986 (Cth) s 8

CASES

Holden and Repatriation Commission [2013] AATA 778

Repatriation Commission v Holden [2014] FCA 605

REASONS FOR DECISION

G. D. Friedman, Senior Member

30 October 2014

Jean Holden is the widow of Geoffrey Holden (the veteran), who died on 2 August 2011 from ischaemic heart disease (IHD). Mrs Holden applied to the respondent for a widow’s pension under the Veterans’ Entitlements Act 1986 on the basis that her late husband suffered from a war-caused psychiatric condition which ultimately caused hypertension and led to his death from IHD. The respondent refused the claim and the decision was affirmed by the Veterans’ Review Board. Mrs Holden sought review of the decision and on 1 November 2013 the Tribunal set aside the decision and substituted a decision that Mrs Holden be granted a widow’s pension with effect from 28 July 2011 (Holden and Repatriation Commission [2013] AATA 778).
The respondent appealed the Tribunal’s decision to the Federal Court of Australia and on 12 June 2014 Mortimer J made the following orders (Repatriation Commission v Holden [2014] FCA 605):
1.   The appeal be allowed.
2.   The decision of the Administrative Appeals Tribunal dated 1 November 2013 be set aside.
3.   Subject to paragraphs 4, 5 and 6 of these orders, the matter is remitted to the Tribunal as constituted for the decision made on 1 November 2013.
4.   The Tribunal is directed to give further reasons, setting out the evidence or other material on which it based its findings in [47] and [48] of its reasons for decision dated 1 November 2013.
5.   The reasons referred to in paragraph 4 of these orders are to be read with, and taken as supplementing, the reasons of the Tribunal given on 1 November 2013.
6.   The Tribunal is to re-exercise its powers under s 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth), in respect of the decision under review, on the material before it and in accordance with its reasons for the decision under review, as supplemented by the reasons which are the subject of paragraphs 4 and 5 of these orders.
The Tribunal’s Reasons for Decision dated 1 November 2013 set out the background and findings in respect of the decision under review. In accordance with the orders of the Federal Court the Tribunal now provides its further reasons, setting out the evidence and other material on which it based…

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: [2014] AATA 810
Decision Date: 30 October 2014

CaseChat Overview and Summary

Jean Isabel Holden, the widow of Geoffrey Holden, who died from ischaemic heart disease (IHD), applied for a widow’s pension under the Veterans’ Entitlements Act 1986. Mrs Holden contended that her late husband’s war-caused psychiatric condition led to hypertension and ultimately his death from IHD. The Repatriation Commission, however, refused the claim, a decision that was subsequently affirmed by the Veterans’ Review Board. Mrs Holden appealed this decision to the Administrative Appeals Tribunal (AAT), which, in November 2013, found in her favour, granting her a widow’s pension effective from 28 July 2011. The Commission then appealed this decision to the Federal Court, which, in June 2014, remitted the matter back to the AAT to provide further reasons for its findings and to re-exercise its powers under the Administrative Appeals Tribunal Act 1975 (Cth). The AAT has now issued its reasons in response to the Federal Court’s orders.

The AAT was required to determine whether the veteran's psychiatric condition, which the Tribunal accepted was war-caused, contributed to his IHD. The Tribunal found that the veteran had suffered from post-traumatic stress disorder (PTSD), which is a requirement of factor 6(rr)(iv) of the relevant guideline concerning IHD. The Tribunal concluded that the hypothesis linking the veteran's death from IHD with his operational service was reasonable and fit the template in the guideline because it was pointed to by the facts. The Tribunal accepted the evidence that the veteran had PTSD at the time of clinical worsening of his IHD, even though not proved upon the balance of probabilities. The Tribunal concluded that Mrs Holden satisfied the third step of the relevant guideline. In relation to the fourth step, the Tribunal was satisfied that the veteran's PTSD was a disorder that attracts a diagnosis under DSM-IV-TR and was a clinically significant anxiety spectrum disorder as specified that was present at the time of clinical worsening of his IHD. The Tribunal concluded that the PTSD was of a sufficient level of severity to warrant ongoing management at the time of clinical worsening of IHD. Therefore, the veteran satisfied factor 6(rr)(iv) of the relevant guideline and Mrs Holden satisfied the fourth step.

In accordance with the Federal Court's orders, the AAT set aside the decision under review and substituted a decision that Mrs Holden be granted a widow's pension with effect from 28 July 2011. The AAT considered that the veteran's death was war-caused within the meaning of the Act.

The Tribunal's final orders were that the decision under review be set aside and that Mrs Holden be granted a widow’s pension with effect from 28 July 2011.

Orders