Lewis and Repatriation Commission - [2002] AATA 1252

DECISION AND REASONS FOR DECISION [2002] AATA 1252

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2002/267

VETERANS' APPEALS DIVISION          )
           Re      VERDUN JOHN LEWIS
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr I R Way, Member

Date6 December 2002
PlaceBrisbane

Decision The Tribunal affirms the decision under review.

…….(Sgd) I R Way…..
Member
CATCHWORDS
VETERANS' AFFAIRS – disability pension – whether pension properly assessed – special rate - whether applicant ceased work solely because of his war-caused disabilities

Veterans' Entitlement Act 1986 ss 24, 28, 120

Repatriation Commission v Smith (1987) 74 ALR 537
Fry v Repatriation Commission [1997] FCA 771
Hall v Repatriation Commission (1994) 33 ALD 454
Cavill v Repatriation (1988) 9 AAR 539
Magill v Repatriation Commission [2002] FCA 744

REASONS FOR DECISION

6 December 2002 Mr I R Way, Member

This is an application by Verdun Lewis (the applicant) for review of a decision of the Repatriation Commission dated 8 August 2001, which assessed the applicant's disability pension at 80% of the General Rate. The Repatriation Commission's decision was affirmed by the Veterans' Review Board (VRB) on 26 February 2002.
The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1-T6) and other documentary evidence as follows:
A1      Statement – Verdun Lewis dated 14 August 2002
A2      Letter of Dr Ullman dated 13 August 2002
A3      Letter of Dr Hargreaves dated 10 July 2002
A4      Q Build letter dated 26 February 2001
A5      Employment Statement dated 20 June 2002
R1      Correspondence with employers

The applicant gave oral evidence.

The issue before the Tribunal is whether the applicant's disability pension is correctly assessed at 80% of the General Rate and in particular whether the applicant's pension should be assessed at the Special Rate.
The applicant was born on 15 May 1947 and lodged his claim for disability pension on 20 March 2001, at which time he was 53 years old.
The applicant served in the ARA as a National Serviceman from 4 October 1967 to 3 October 1969, including operational service in Vietnam from 12 August 1968 to 13 August 1969.
The applicant's accepted service-related disabilities are:

Post traumatic stress disorder (PTSD)
Alcohol dependence or alcohol abuse
Bilateral Sensorineural hearing loss with tinnitus.

He has no non-service related disabilities.
The standard of proof applicable in this matter is provided for in section 120(4) of the Veterans' Entitlement Act 1986 (the Act) and pursuant to this section the matter is to be decided by the Tribunal to its reasonable satisfaction or, in other words, on the balance of probabilities (see Repatriation Commission v Smith (1987) 74 ALR 537).
The assessment period in this matter is from 20 March 2001, the date of the applicant's claim, to the present date (the relevant period).
Legislative Framework
The legislative framework in respect of Special Rate of pension is relevantly provided in the Act as follows:
"Special rate of pension
24(1) This section applies to a veteran, other than a veteran…

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 Lewis and Repatriation Commission

Details

AGLC: Lewis and Repatriation Commission [2002] AATA 1252
Case: [2002] AATA 1252
Decision Date: 6 December 2002

CaseChat Overview and Summary

In the matter of Lewis and the Repatriation Commission, the Federal Court was called upon to determine the correct assessment of a disability pension provided under the Veterans' Entitlement Act 1986. The applicant, Mr. Lewis, contested the Commission's decision that his war-related disabilities did not warrant the special rate of pension, which is granted when a veteran ceases work solely due to their disabilities. The crux of the dispute was whether the Commission's finding that Mr. Lewis did not cease work solely due to his disabilities was legally sound and supported by the evidence.

The primary legal issue before the court was whether the Repatriation Commission had correctly applied the statutory criteria in determining the pension's special rate. Specifically, the court needed to assess whether the Commission's decision was consistent with the requirements of sections 24, 28, and 120 of the Veterans' Entitlement Act 1986. The applicant argued that his cessation of work was directly attributable to his disabilities, and hence, he should be eligible for the special rate. The Commission, on the other hand, maintained that the cessation was due to other factors.

The court examined the statutory provisions and relevant case law, including Repatriation Commission v Smith, Fry v Repatriation Commission, Hall v Repatriation Commission, and Magill v Repatriation Commission, to interpret the legislative intent behind the special rate. It was held that the Commission's decision was not unreasonable, as it was based on a proper consideration of all evidence. The court found that Mr. Lewis's cessation of work was not solely due to his disabilities but also influenced by other factors, such as his age and the nature of his employment. Therefore, the Commission's decision to deny the special rate was affirmed.

Orders