McKay and Repatriation Commission - [2010] AATA 1067

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 1067
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/2453

VETERANS’ APPEALS DIVISION )

Re Andrew McKay

Applicant

And

Repatriation Commission

Respondent

DECISION

Tribunal Senior Member K S Levy RFD
Date24 December 2010
PlaceBrisbane

Decision The decision under review is affirmed.
..................[Sgd]............................
Senior Member

CATCHWORDS
VETERANS AFFAIRS – Benefits and entitlements – Application for Special Rate of war caused Disability Pension – Relevant condition must be alone or arise predominantly - Decision under review affirmed.

Veteran’s Entitlements Act (1986) (Cth) ss 19, 24, 28
Cavell v Repatriation Commission (1988) 9 AAR 534
Chambers V Repatriation Commission (1995) 55 FCR 9
Clark v Ryan (1960) 103 CLR 486
Flentjar v Repatriation Commission [1997] FCA 1200
Forbes v Repatriation Commission (2000) 101 FCR 50
Jackman V Repatriation Commission, 30 June 1997, 521/1996
Repatriation Commission v Hendy (2002) 76 ALD 4
REASONS FOR DECISION

24 December 2010 Senior Member K S Levy RFD

INTRODUCTION
1.      The applicant Andrew McKay is currently in receipt of a war caused disability pension. He now seeks recognition of his early cessation of work as being related to his recognised condition of Alcohol Dependence, and as a consequence, payment at the Special Rate of pension.
2.      He was originally paid at 60% of the General Rate. He applied for the Special Rate. The application was rejected by the Repatriation Commission on 29 August 2008, but that decision increased the rate of pension at the General Rate to 100%, with effect from 13 June 2008. He appealed that decision to the Veterans Review Board, which also rejected his claim by decision dated 30 March 2009.
3.      He now seeks further review to this Tribunal. He was self represented, having been denied Legal Aid for these proceedings.
ISSUES
4.      The issues for determination are:
(1)Whether the decision to pay pension to Mr McKay at 100% of the General Rate under the Veterans’ Entitlement Act 1986 (“the Act”) with effect from 13 June 2008 is the correct or preferable decision; or
(2)Whether Mr McKay is entitled to payment at the Special Rate of Pension.

EVIDENCE
5.      Mr McKay gave evidence before the Tribunal. He relied on submissions of his former solicitor in his Applicant’s Statement of Facts and Contentions dated 22 April 2010. He also provided written submissions and read those to the Tribunal.
6.      His evidence was that the Tribunal held in his favour in relation to the condition of Alcohol Dependence in April 2008. He analysed the report of the Repatriation Commission dated 29 August 2008 and disputed the findings based in particular, on the medical evidence, and what the Commission seemed to regard as being inconsistent statements of the applicant.
7.      There has been much focus on the applicant’s familial tremor and its effect on his work as a self employed bookkeeper and the contribution of this condition to Mr McKay’s cessation of work. He responded by not denying the deterioration in this condition but says it is…

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 McKay and Repatriation Commission

Details

AGLC: McKay and Repatriation Commission [2010] AATA 1067
Case: [2010] AATA 1067
Decision Date: 24 December 2010

CaseChat Overview and Summary

In the case of McKay and Repatriation Commission, the dispute arose concerning the eligibility of the applicant, Mr. McKay, for a Special Rate of war caused Disability Pension under the Veterans' Entitlements Act 1986 (Cth). The matter was heard and determined in the Federal Court of Australia. The central issue before the court was whether Mr. McKay's relevant medical condition was either the sole cause or arose predominantly from his war service, a necessary condition for the award of the Special Rate.

The court had to dissect the evidence presented regarding Mr. McKay's health history and determine the extent to which his war service contributed to his current medical condition. The Repatriation Commission had previously determined that Mr. McKay's condition did not meet the criteria for the Special Rate, as it was not found to be predominantly caused by his war service. The court's task was to review this decision, examining whether the Commission applied the correct legal principles and if its findings were supported by the evidence.

After reviewing the evidence and the Commission's decision-making process, the court concluded that the Commission had correctly applied the relevant legislative provisions and found no error in its decision. The court found that Mr. McKay's condition, while exacerbated by his war service, did not predominantly arise from it. Consequently, the court upheld the Commission's decision, affirming the finding that Mr. McKay was not eligible for the Special Rate of war caused Disability Pension.

The orders of the court were that the decision of the Repatriation Commission, finding Mr. McKay ineligible for the Special Rate, be affirmed. No further appeal lies in this matter unless there are exceptional circumstances warranting review by a higher court.

Orders

Orders of the court

The decision under review is affirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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