Maurice and Repatriation Commission

[2003] AATA 647

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 647

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2002/324

VETERANS' APPEALS DIVISION		)
Re		IAN MAURICE

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Dr E K Christie, Member

Date26 June 2003

PlaceBrisbane

Decision The decision under review is set aside and in substitution thereto the Tribunal decides that Mr Maurice is entitled to disability pension paid at the Intermediate Rate.  The earliest date of effect is 19 May 2002.

(Sgd) Dr E K Christie
  Member

CATCHWORDS

VETERANS’ AFFAIRS - benefits and entitlements – pension - special rate – intermediate rate – whether the applicant’s accepted disabilities alone prevented him from working – ameliorative provision – whether accepted disabilities were the “substantial cause” for the applicant being unable to obtain or to continue in remunerative work

Veterans’ Entitlement Act 1986 ss 23, 24, 120(4)

Re Starcevich and Repatriation Commission (1986) 10 ALD 202
Re Doyle and Repatriation Commission (1986) 47 ALD 187
Jackman v Repatriation Commission [1997] FCA 564
Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152
Cavell v Repatriation Commission (1988) 9 AAR 534
Forbes v Repatriation Commission (2000) 101 FCR 50

Fox v Repatriation Commission (1997) 45 ALD 317

WRITTEN REASONS FOR ORAL DECISION [2003] AATA 647

8 July 2003 Dr E K Christie, Member    

1.      This is an application for review of a decision of the Veterans’ Review Board made on 26 February 2002 that decided that Mr Maurice was entitled to disability pension at 100% of the General Rate.  In this application, Mr Maurice seeks payment of the Disability Pension at the Intermediate Rate or the Special Rate.

2.      Mr Maurice has the following accepted service-related disabilities:

(a)Adjustment Disorder

(b)Bilateral Sensorineural Hearing Loss with Tinnitus

(c)Malignant Melanoma of the Skin

3.      Mr Maurice does not have any non-service related disabilities.

4.      At the start of the hearing the parties agreed that the following issues were to be decided by the Tribunal:

(a)Whether Mr Maurice, by reason of incapacity from his accepted disabilities “alone”, was prevented from continuing to undertake paid work that he had been undertaking [sections 23(1)(c); 24(1)(c)]; and

(b)Whether Mr Maurice is capable of undertaking paid work for 20 hours or more per week [section 23(1)(b)] or undertaking paid work aggregating 8 hours or more per week [section 24(1)(b)]; and

(c)Whether Mr Maurice’s accepted disabilities are the “substantial cause” of his inability to obtain paid work in which to engage [the second limb of section 23(2)(b); section 24(2)(b)].

5.      The Respondent has conceded that Mr Maurice has been genuinely seeking to engage in paid work. That is, the first limb of section 23(2)(b), section 24(2)(b) is satisfied.

Consideration of the Issues

6.      The objective of the Tribunal is to review administrative decisions not only on their merits, but in accordance with the law at all times.

7.      The issues in dispute must be satisfied to the reasonable satisfaction of the Tribunal in accordance with the standard in subsection 120(4):  Re Starcevich and…