DECISION AND REASONS FOR DECISION [2002] AATA 649
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2001/945
VETERANS' APPEALS DIVISION )
Re SEAN O'NEILL
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr EK Christie, Member
Date16 July 2002
PlaceMaroochydore
Decision The Tribunal sets aside the decision under review and in substitution therefor decides that Sean O'Neill is entitled to pension payable to him at the Special Rate. The earliest date of effect is 1 March 2001.
……………(Sgnd)……….......
Dr EK Christie
Member
CATCHWORDS
VETERANS' AFFAIRS – disability pension – veteran assessed at 100% of the General Rate – whether entitled to Special Rate – assessment
Veterans' Entitlements Act 1996 ss 24(1)(c), 120(4)
Repatriation Commission v Sheehy (1995) 133 ALR 654
Forbes v Repatriation Commission (2000) 101 FCR 50
Flenrjar 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
Magill v Repatriation Commission (2002) FCA 744
Polivitte Ltd v Commercial Union Assurance PL [1987] 1 Lloyds Rep 379
Cavell v Repatriation Commission (1988) 9 AAR 534
Bringinshaw v Briginshaw (1938) 60 CLR 336
WRITTEN REASONS FOR ORAL DECISION
2 August 2002 Dr EK Christie, Member
This is an application by Sean O'Neill to review a decision of the Veterans' Review Board, made on 17 August 2001, that his pension "be assessed at 40% to operate from and including 7 October 1999 and at 90% to operate from and including 29 February 2001".
At the hearing Mr J King, an Advocate of the Returned Services League of Australia (Queensland Branch) represented Mr O'Neill. The Respondent was represented by Mr M Smith, a Departmental Advocate.
The disabilities that Mr O'Neill has that have been determined to be service related are:
(a)Contact dermatitis (23/11/99)
(b)Depressive disorder (09/11/00)
(c)Post traumatic stress disorder ["PTSD"] (17/08/01)
(d)Alcohol dependence or abuse (17/08/01).
The Tribunal had before it documents lodged pursuant to Section 37 of the Administrative Appeals Tribunal Act 1975 (Cth) and the various documents tendered by the parties.
Oral evidence on behalf of Sean O'Neill was given by his father, Mr Michael O'Neill, and his treating psychiatrist, Dr Philip Bird. The respondent called no witnesses.
Issues to be DecidedThe only issue for the Tribunal to decide was whether Mr O'Neill was entitled to pension payable to him at the Special Rate. It was common ground between the parties that only the application of subsection 24(1)(c) of the Veterans' Entitlements Act 1986 was in dispute.
Legal FrameworkIn the Second Reading Speech of the Veterans' Entitlements Bill 1985 relating to amendments which created the current Section 24, the then Minister for Veterans' Affairs said:
"The amendments clarify the eligibility criteria and make it clear that to qualify for a TPI pension, the veteran must be eligible for the 100 per cent general rate pension. In addition the TPI rate pension can become payable only when a veteran is totally and permanently disabled by accepted…
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CaseChat Overview and Summary
The Tribunal carefully reviewed the evidence and applicable legal principles, including the requirements of subsection 24(1)(c) of the Veterans' Entitlements Act. This subsection stipulates that a veteran qualifies for a Special Rate pension if they are prevented by their service-related incapacity from continuing to undertake remunerative work and suffer a loss of earnings as a result. The Tribunal also considered the expert evidence of Dr. Philip Bird, O'Neill's treating psychiatrist, who testified that O'Neill's post-traumatic stress disorder (PTSD) alone would prevent him from undertaking remunerative employment.
After evaluating the evidence, the Tribunal concluded that O'Neill's service-related disabilities, particularly his PTSD, were the sole factors preventing him from engaging in remunerative work. The Tribunal found that O'Neill's other conditions, including schizophrenia, did not need to be considered in determining his eligibility for the Special Rate pension. Consequently, the Tribunal determined that O'Neill met the criteria for the Special Rate pension under subsection 24(1)(c) of the Act.
The Tribunal set aside the decision of the Veterans' Review Board and decided that Sean O'Neill is entitled to a pension payable at the Special Rate, effective from 1 March 2001.
Orders
Orders of the court
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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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