Kershaw v Repatriation Commission

FEDERAL COURT OF AUSTRALIA

Kershaw v Repatriation Commission [2000] FCA 1802

VETERANS – pension assessment – lifestyle rating – whether SUB-criteria in Guide merely illustrative

Veterans Entitlement Act 1986 (Cth) ss 23(4)(c), 29(1)(a)7

Table 22.2 Guide the tax Assessment of Rates of Veterans’ Pension

Collins v Repatriation Commission (1994) 33 ALD 557 applied

FRANCIS HENRY KERSHAW v REPATRIATION COMMISSION
NO. T 20 OF 2000

HEEREY J
12 DECEMBER 2000
MELBOURNE (HEARD IN HOBART)

IN THE FEDERAL COURT OF AUSTRALIA
TASMANIA DISTRICT REGISTRY	T 20 OF 2000

BETWEEN:	FRANCIS HENRY KERSHAW APPLICANT
AND:	REPATRIATION COMMISSION RESPONDENT
JUDGE:	HEEREY J
DATE OF ORDER:	12 DECEMBER 2000
WHERE MADE:	MELBOURNE (HEARD IN HOBART)

THE COURT ORDERS THAT:

1.        The application is dismissed.

2.        The applicant pay the respondent’s costs including reserved costs.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
TASMANIA DISTRICT REGISTRY	T 20 OF 2000

BETWEEN:	FRANCIS HENRY KERSHAW APPLICANT
AND:	REPATRIATION COMMISSION RESPONDENT

JUDGE:	HEEREY J
DATE:	12 DECEMBER 2000
PLACE:	MELBOURNE (HEARD IN HOBART)

REASONS FOR JUDGMENT

1. The applicant appeals against a decision of the Administrative Appeals Tribunal which affirmed decisions of the Veterans’ Review Board and the Repatriation Commission rejecting the applicant’s application for an increase in his pension by fifty per cent pursuant to s 23(4) of the Veterans Entitlement Act 1986 (Cth) (“the Act”).

2. The only condition prescribed by s 23(4) in issue was that contained in s 23(4)(c) viz:

   “the veteran has an impairment rating of at least 70 points and a lifestyle rating of at least 6 points, each determined in accordance with the approved Guide to the Assessment of Rates of Veterans’ Pensions [‘the Guide’].”

3. The 5^th edition of the Guide, which commenced on 18 April 1998, sets out the criteria by reference to which the extent of the incapacity of a veteran resulting from war-caused injury or disease shall be assessed – see s 29(1)(a). 

4. The Guide is part of the law authorised by the Act, and has effect according to its terms:  Collins v Repatriation Commission (1994) 33 ALD 557 at 566. The Guide provides the rules whereby incapacity is to be assessed. The task of the Commission (and on review the Tribunal) is to apply the facts of the particular case to the rules so expressed: Collins at 567.

5. The Guide provides for two elements of assessment of degree of incapacity – medical impairment and lifestyle effects.  The later is dealt with in Chapter 22 of the Guide, which provides that a lifestyle effect is a disadvantage resulting from an accepted condition that limits or prevents the fulfilment of a role that is normal for a veteran of the same age without the accepted condition (p 263).

6. Under the heading “How are lifestyle effects assessed?” the Guide states (p 264)

   “The effects of impairment on lifestyle are specific to a veteran and are determined by reference to four components of that veteran’s life:

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