Michael and Repatriation Commission

[2005] AATA 1261

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 1261

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2005/413

VETERANS' APPEALS DIVISION		)
Re		WILLIAM MICHAEL (DECEASED)

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Dr EK Christie, Member

Date1 December 2005

PlaceBrisbane

Decision

For the reasons given orally at the hearing the Tribunal sets aside the decision under review and decides that the late Mr Michael was entitled to disability pension at 100% of the General Rate from 27 June 2002 to 1 January 2003.

The Tribunal raises the possibility of an Act of Grace payment in the factual circumstances.

  …………[Sgd]…………………..

EK Christie

Member

CATCHWORDS

VETERANS’ ENTITLEMENTS – disability pension – entitlement to general rate - entitlement to special rate – the “alone” test - Act of Grace Payment.

Veterans’ Entitlements Act 1986 ss 24, 175

Forbes v Repatriation Commission (2000) 101 FCR 50
Flentjar v Repatriation Commission (1997) 48 ALD 1

Re Starcevich and Repatriation Commission (1986) 10 ALN 202
Re Doyle and Repatriation Commission (1986) 47 ALD 187
Jackman v Repatriation Commission [1997] FCA 564
Cavell v Repatriation Commission (1988) 9 AAR 534
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Re Robertson and Repatriation Commission (1999) 50 ALD 668
Re Hornery and Repatriation Commission [1998] AATA 602.
Fox v Repatriation Commission (1997) 45 ALD 317

WRITTEN REASONS FOR ORAL DECISION

20 December 2005  Dr E K Christie, Member

1.      This is an application by Mrs Katherine Michael, as the legal representative of her late husband, for a review of the decision made by the Veterans’ Review Board dated 10 March 2005, that increased disability pension from 80% to 90% of the General Rate with effect from 27 June 2002 .

2.      At the hearing, Mrs Michael represented her late husband. The respondent was represented by Mr J Kelly, a Departmental Advocate.

3. The Tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the ‘T’ documents) and the various documents tendered by the parties.

Facts

4.      The late Mr Michael was born on 21 May 1949. He volunteered, at the age of 19, and served with the Australian Army in South Vietnam from February 1970 until March 1971.

5.      During the period Mr Michael rendered operational service in South Vietnam, he served as a rifleman in a Company of Pioneers.

6.      The late Mr Michael commenced employment with the Brisbane City Council (BCC) as a town planner in 1979.

7.      The late Mr Michael was diagnosed with a cerebral tumour on 29 October 2001.  He had surgery a few days later, followed by chemotherapy.  Following surgery, he suffered from a loss of balance and required a walking stick for support.   His prognosis, initially, was satisfactory and he returned to work with the BCC on 11 February 2002 on a rehabilitation program.  In May 2002, rails and home aids were installed in his home following several falls.

8.      Because of an increase in tumour size,…