O'Neill and Repatriation Commission - [2002] AATA 649

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 Decided
The 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 Framework
In 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…

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 O'Neill and Repatriation Commission

Details

AGLC: O'Neill and Repatriation Commission [2002] AATA 649
Case: [2002] AATA 649
Decision Date: 16 July 2002

CaseChat Overview and Summary

The matter before the Administrative Appeals Tribunal was an appeal by Sean O'Neill against a decision of the Veterans' Review Board regarding the assessment of his disability pension. O'Neill, a former Navy veteran, sought a pension at the Special Rate due to his service-related disabilities. The primary issue before the Tribunal was whether O'Neill was entitled to a pension at the Special Rate under the Veterans' Entitlements Act 1986. The core of the dispute centered on whether O'Neill's service-related disabilities were the sole factors preventing him from engaging in remunerative work.

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