McLaughlin and Repatriation Commission

[2008] AATA 449

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 449

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/5940

VETERANS' APPEALS DIVISION		)
Re		DENNIS McLAUGHLIN

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal M J Carstairs, Senior Member

Date30 May 2008

PlaceBrisbane (heard in Townsville)

Decision The Tribunal sets aside the decision under review and substitutes the decision that the applicant is entitled to pension at the special rate with effect from 23 August 2004.

....................[sgd]..........................

SENIOR MEMBER

CATCHWORDS

VETERANS’ AFFAIRS – benefits and entitlements – applicant in receipt of intermediate rate of pension – application for increase in pension – whether applicant is suffering from a loss of salary wages or earnings – decision under review set aside

Veterans’ Entitlements Act 1986 (Cth), ss 19, 24,

Tunny and Repatriation Commission (2008) AATA 243
Flentjar v Repatriation Commission (1997) 48 ALD 1
Repatriation Commission v Smith (1987) 15 FCR 327
Forbes v Commission (2000) 171 ALR 131
Hill v Repatriation Commission [2000] FCA 929

REASONS FOR DECISION

30 May 2008   M J Carstairs, Senior Member

1.      Dennis McLaughlin has applied for an increase in the rate of his pension, from the rate at which he is now paid, which is the “intermediate rate” (a rate that recognises its recipient’s inability to work 20 hours or more per week), to the “special rate” (which requires, amongst other things, that a person’s capacity for work amounts to no more than 8 hours per week).  

2. The respondent acknowledges that Mr McLaughlin’s capacity to work is reduced to that extent. Indeed the parties agree upon a number of matters going to other aspects of qualification for special rate under s 24 of the Veterans’ Entitlements Act1986 (“the Act”).   

3. What the parties disagree upon is confined in essence to that part of the legislative test set out in s 24(1)(c) of the Act referring to “suffering a loss of salary or wages, or of earnings on his or her own account”.

4. That phrase appears in the following context in the Act:

24 This section applies to a veteran if:

…

(1)(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;…

5. A provision, similarly worded, appears at s 23(1)(c) of the Act in relation to intermediate rate of pension.

6.      The respondent maintains that Mr McLaughlin’s claim fails because he cannot show that he has suffered a loss beyond that relied upon for purposes of qualifying for intermediate rate of pension.  As this submission runs, Mr J Stoner, who appeared for the respondent, maintains that it is necessary for Mr McLaughlin to show a further loss, that is, beyond that which pertained when he…