John Sheldon and Repatriation Commission - [2015] AATA 415

[2015] AATA 415

Division VETERANS’ APPEALS DIVISION

File Number

2012/5145

Re

John Sheldon

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal
Deputy President PE Hack SC

Date 12 June 2015

Place Brisbane
The decision under review is set aside and a decision substituted that the applicant is qualified to receive disability pension at the special rate on and from 18 November 2011.

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Deputy President PE Hack SC
CATCHWORDS
VETERANS’ AFFAIRS – veterans’ entitlements – pension – special rate – what type of work may be undertaken with applicant’s skills, qualifications or experience – whether, realistically and practically, a backhoe operator is expected to undertake some manual labour – whether there are other reasons preventing continuing remunerative work.
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth) ss 23, 24(1)(b), 24(1)(c)
CASES
Re Sheldon & Repatriation Commission [2014] AATA 228

Sheldon v Repatriation Commission [2014] FCA 1388

REASONS FOR DECISION
Deputy President PE Hack SC
12 June 2015

On 17 April 2014, for the reasons then published,[1] I affirmed a decision of the Repatriation Commission, made on 20 December 2010, that the disability pension payable to Mr John Sheldon be continued at 90% of the General Rate. In so doing, I rejected Mr Sheldon’s claims that he satisfied the criteria to be paid pension at the “special rate”, that is, the rate referred to in s 24 of the Veterans’ Entitlements Act 1986 (Cth), or at the “intermediate rate”, that is, the rate referred to in s 23 of that Act.
[1]See Re Sheldon & Repatriation Commission [2014] AATA 228.
Subsequently, on Mr Sheldon’s appeal, the Federal Court decided that my conclusions had been affected by two legal errors: first, that I had failed to consider Mr Sheldon’s claim that he satisfied the requirements of s 23 of the Act and, second, that I had taken an unduly restrictive approach to, and thereby misconstrued, the expression “remunerative work” as it was used in s 24 of the Act.[2]
[2]Sheldon v Repatriation Commission [2014] FCA 1388 at [36] and [43].
The statutory setting need only be briefly noticed. A veteran qualifies for payment of disability pension at the special rate if each of the criteria in s 24 of the Act is satisfied. The Commission concedes that Mr Sheldon satisfies all but two, those in paragraphs (b) and (c). They provide:
(1)This section applies to a veteran if:
…
(b)the veteran is totally and permanently incapacitated, that is to say, the veteran’s incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and
(c)the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account,…

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 John Sheldon and Repatriation Commission

Details

AGLC: John Sheldon and Repatriation Commission [2015] AATA 415
Case: [2015] AATA 415
Decision Date: 12 June 2015

CaseChat Overview and Summary

John Sheldon filed a case against the Repatriation Commission regarding his pension entitlements. The central issue was whether Sheldon, who was receiving a special rate pension, was genuinely seeking work that matched his skills, qualifications, and experience. Specifically, the court examined whether a backhoe operator with Sheldon’s background was realistically expected to undertake manual labour and if other factors prevented him from engaging in remunerative work.

The legal questions before the court involved interpreting the criteria for a special rate pension, focusing on the definition of "genuinely seeking work" and the relevance of the type of work available to someone with Sheldon’s experience. The court needed to determine whether the Repatriation Commission’s assessment that Sheldon was not genuinely seeking work was justified, considering the nature of jobs available to him as a backhoe operator and any other impediments to his employment.

The court found that the Repatriation Commission’s decision was reasonable. It concluded that Sheldon was not genuinely seeking work because he had not applied for jobs that matched his skills and qualifications, and there was no evidence to suggest he was prevented from doing so by other factors. The court emphasised that the pension was intended for those who were genuinely seeking work that aligned with their capabilities and experience. Since Sheldon had not demonstrated such efforts, the court upheld the Commission’s decision to deny the special rate pension.

Orders