John Sheldon and Repatriation Commission - [2014] AATA 228

[2014] AATA 228

Division VETERANS' APPEALS DIVISION

File Number

2012/5145

Re

John Sheldon

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal
Deputy President PE Hack SC

Date 17 April 2014

Place Brisbane
The decision under review is affirmed.

........................................................................
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 totally or permanently incapacitated - whether there are other reasons preventing continuing remunerative work – whether genuinely seeking to engage in remunerative work.
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth) ss 23, 24(1)(b), 24(1)(c)
CASES
Chambers v Repatriation Commission (1995) 55 FCR 9
Repatriation Commission v Hendy [2002] FCAFC 424; (2002) 76 ALD 47
Smith v Repatriation Commission [2012] FCA 1043
REASONS FOR DECISION
Deputy President PE Hack SC
17 April 2014

Mr John Sheldon is a veteran as that term is used in the Veterans’ Entitlements Act 1986 (Cth). He suffers from a number of conditions that the Repatriation Commission accepts are war-caused. In these proceedings Mr Sheldon seeks a review of a decision of the Commission, affirmed by the Veterans' Review Board, that he was not qualified to receive pension at the special rate, that is, the rate referred to in s 24 of the Act.
To receive a disability pension at the special rate a veteran must satisfy each of the six criteria in that section. There is no argument about four of them – those in paragraphs (aa), (aab), (a) and (d) of s 24(1). The contest in the proceedings is over paragraphs (b) and (c) of the subsection. Those criteria are as follows,
(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, that the veteran would not be suffering if the veteran were free of that incapacity; and
…
Mr Sheldon, in the alternative, argues that he satisfies the requirements in s 23 of the Act for pension at the intermediate rate. That section is in terms relevantly identical to s 24 save and except that s 23(1)(b) speaks of a veteran incapable of undertaking remunerative work "otherwise than on a part-time basis or intermittently" rather than "for periods aggregating more than 8 hours per week". Section 28 of the Act sets out the matters to which regard must be had when considering s 24(1)(b) of the Act. It provides:
In determining, for…

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 [2014] AATA 228
Case: [2014] AATA 228
Decision Date

CaseChat Overview and Summary

The case of John Sheldon and the Repatriation Commission, decided by Deputy President PE Hack SC on 17 April 2014, involved a veteran, Mr John Sheldon, who sought a review of a decision by the Repatriation Commission, affirmed by the Veterans' Review Board, that he was not qualified to receive a disability pension at the special rate under the Veterans' Entitlements Act 1986 (Cth). Mr Sheldon argued that he satisfied the criteria for either the special rate or, in the alternative, the intermediate rate of pension. The key issues were whether Mr Sheldon was totally and permanently incapacitated and, if not, whether there were other reasons preventing him from continuing remunerative work. Mr Sheldon's arguments hinged on his skills, qualifications, and experience as a backhoe operator, and his ability to undertake remunerative work within those limits.

The court considered the vocational, trade, and professional skills, qualifications, and experience of Mr Sheldon, and the types of remunerative work a person with his skills might reasonably undertake. It also considered the degree to which Mr Sheldon's physical or mental impairment had reduced his capacity to undertake such work. The court found that Mr Sheldon's evidence did not permit a finding that he possessed skills, qualifications, or experience that would allow him to undertake work outside the role of backhoe operator. Although Mr Sheldon had some expertise that would have permitted him, absent his disabilities, to perform some manual labouring tasks, the court was not satisfied that the hypothetical person with his skills, qualifications, and experience would have been able to undertake remunerative work outside of backhoe operating. The court further found that Mr Sheldon was not, or had not been, totally and permanently incapacitated as required by s 24(1)(b) of the Act.

The court then considered whether there were other reasons, aside from Mr Sheldon's war-caused conditions, that had prevented him from continuing remunerative work. It found that the fundamental cause was Mr Sheldon's decision to sell his backhoe and become an employee, which required him to perform work he had been able to avoid in the past. However, the court was satisfied that he remained capable of continuing the work of backhoe operator. The court also found that Mr Sheldon had not demonstrated that he was genuinely seeking to engage in remunerative work, as required by s 24(2)(b) of the Act. Therefore, the decision under review was affirmed.

Orders