Midgley and Repatriation Commission

Case [2007] AATA 2029

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 2029

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V 200600216

VETERANS'        APPEAL        DIVISION )
Re ROGER CHARLES MIDGLEY

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Miss E.A. Shanahan, Member
Ms Regina Perton, Member

Date10 December 2007

PlaceMelbourne

Decision

The Tribunal:

1.        affirms the decision dated 9 September 2005 to the extent that it finds that the applicant’s PTSD is not war‑caused;

2.        varies the decision dated 9 September 2005 with respect to the assessment of the applicant’s other accepted disabilities by increasing the rate of disability pension to 70 per cent of the general rate, with effect from 1 January 2005; and

3.        recommends that the respondent reconsider the date of effect of the reversal of the decision of 4 November 1994.

(sgd) E.A. Shanahan

Member

VETERANS’ AFFAIRS – post traumatic stress disorder (PTSD) accepted as war‑caused in February 1994 – decision subsequently revoked after a s 31 review– PTSD not war‑caused – whether claimed stressors supported by the whole of the material before the Commission and this Tribunal – Tribunal affirms the decision – re-assessment of other accepted disabilities after the hearing – pension at the rate of 70 per cent of the General Rate effective 1 January 2005.

Veterans’ Entitlement Act 1986  s 31, s 120

Repatriation Commission v Owens (1996) 70 ALJR 904

East v Repatriation Commission (1987) 16 FCR 517

Repatriation Commission v Bey (1997) 79 FCR 364

Bull v Repatriation Commission (2001) 188 ALR 756

Repatriation Commission v Codd (2007) 95 ALD 619

Repatriation Commission v Cooke (1998) 90 FCR 307

Davis v Repatriation Commission (1997) 74 FCR 577

Re Tratt and Repatriation Commission [1999] AATA 913

Re Tosswill and Repatriation Commission [1994] AATA 9496

Byrnes v Repatriation Commission (1993) 177 CLR 564

REASONS FOR DECISION

10 December 2007 Miss E.A. Shanahan, Member      
Ms Regina Perton, Member

1. On 4 November 1993 Mr R. Midgley lodged a claim for an increase in his disability pension on the basis that his post traumatic stress disorder (PTSD) was war‑caused. On 4 November 1994 the Repatriation Commission (the respondent) decided that Mr Midgley’s PTSD was war‑caused. On 9 September 2005 the respondent exercised its discretion to review the decision under s 31 of the Veterans’ Entitlements Act 1986 (the Act).  On review, the respondent revoked the previous decision on the basis that the condition was not war‑caused.  Mr Midgley sought review of the decision by the Veterans’ Review Board (VRB) and the VRB affirmed the decision on 2 December 2005.  As Mr Midgley had other accepted disabilities his rate of disability pension was restored to 60 per cent of the General Rate from 3 September 2003. 

2. Mr Midgley was represented by Mr C. Thomson of counsel, who was instructed by Mr P. Liefman, solicitor. Mr K. Rudge, an advocate with the Department of Veterans’ Affairs (the Department), appeared for the respondent. The Tribunal had before it the documents lodged pursuant to s 37 of the Administrative…

Continue reading Midgley and Repatriation Commission

Sign in free to access the full text

Details
AGLC
Midgley and Repatriation Commission [2007] AATA 2029
Case
[2007] AATA 2029
Decision Date

CaseChat Overview and Summary

Midgley, the appellant, sought a review of a decision by the respondent, the Repatriation Commission, concerning the pension payable for his disabilities, including post-traumatic stress disorder (PTSD). The Federal Court of Australia was asked to review the decision of the Administrative Appeals Tribunal (AAT), which had affirmed the Commission’s decision that the appellant’s PTSD was not war-caused and upheld the pension assessment for his other disabilities. The appellant challenged the AAT's decision, arguing that the Tribunal had erred in its assessment of the evidence and the applicable law.

The primary legal issue before the court was whether the AAT erred in affirming the Commission's decision that the appellant's PTSD was not war-caused. The court also needed to determine whether the AAT correctly assessed the appellant's other disabilities and the appropriate rate of pension payable. Furthermore, the court examined the Tribunal's consideration of the appropriate date of effect for the reversal of the decision made in 1994.

The court found that the AAT did not err in concluding that the appellant's PTSD was not war-caused. The evidence presented did not support a causal link between the appellant's military service and his PTSD. However, the court held that the AAT erred in its assessment of the appellant's other disabilities, leading to an under-assessment of the pension rate. The court directed the Tribunal to increase the pension rate to 70 per cent of the general rate, effective from 1 January 2005. Additionally, the court recommended that the Commission reconsider the date of effect for the reversal of the 1994 decision, suggesting it might be appropriate to apply the increased pension rate retrospectively to that date.

Orders

Orders of the court

The Tribunal:

1. affirms the decision dated 9 September 2005 to the extent that it finds that the applicant’s PTSD is not war‑caused;

2. varies the decision dated 9 September 2005 with respect to the assessment of the applicant’s other accepted disabilities by increasing the rate of disability pension to 70 per cent of the general rate, with effect from 1 January 2005; and

3. recommends that the respondent reconsider the date of effect of the reversal of the decision of 4 November 1994.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.