PATRICK MCMAHON and REPATRIATION COMMISSION - [2009] AATA 253

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 253
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/1657

VETERANS' APPEALS DIVISION )

Re PATRICK MCMAHON

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mrs Josephine Kelly, Senior Member
Dr John Campbell, Member
Date20 April 2009
PlaceSydney

Decision
We set aside the reviewable decision and determine that Mr McMahon is entitled to the special rate of pension pursuant to s 24 of the Veterans’ Entitlements Act 1987.

...................[sgd]........................
Presiding Member
Mrs Josephine Kelly Senior Member

CATCHWORDS
VETERANS’ AFFAIRS – Application for increase to special rate – Interim decision found applicant’s war-caused hearing loss alone renders incapable of working – Whether any adjustment should be made for presbyacusis – Whether war-caused hearing loss alone has effect that applicant cannot work – Whether GARP applies to assessments under s 24 -– Decision set aside and remitted
Veterans' Entitlements Act 1986, ss 21A, 24, 29
Re McMahon and Repatriation Commission [2008] AATA 622
Repatriation Commission v Hayes (1982) FLR 423
Starcevich v Repatriation Commission (1987) FCR 221
Guide to the Assessment of Rates of Veterans’ Pensions, Part 7.1, Scale 7.1.9
R Creyke and P Sutherland, Veterans' Entitlements Law (2009, 2^nd edition), [2.02]
REASONS FOR DECISION

20 April 2009 Mrs Josephine Kelly, Senior Member
Dr John Campbell, Member

1. The question in these proceedings is whether Mr Patrick McMahon is entitled to the special rate of pension pursuant to s 24 of the Veterans' Entitlements Act 1986 (the Act).
2.      In an interim decision published on 16 July 2008 (Re McMahon and Repatriation Commission [2008] AATA 622), the Tribunal made findings that Mr Patrick McMahon's hearing loss alone renders him incapable of undertaking remunerative work for periods aggregating more than 8 hours per week. However, the matter was adjourned for further evidence to be provided, and submissions to be made, addressing the following questions:
a) What, if any, adjustment should be made for presbyacusis (age-related hearing loss); and
b) If some adjustment for presbyacusis is appropriate, does Mr McMahon's war-caused hearing loss alone have the effect that he cannot undertake remunerative work for periods aggregating more than 8 hours per week (s 24(1)(b) and s 24(2A)(c)), and is prevented from continuing to undertake his last paid work (s 24(2A)(d))?
Should any adjustment be made for presbyacusis?
3.      An issue arose as to whether the Guide to the Assessment of Rates of Veterans’ Pensions (GARP) applies to assessments made under s 24 of the Act.
4.      Ms Wood, counsel who appeared for Mr McMahon, argued that s 29(4) of the Act has been complied with in the assessment of Mr McMahon's incapacity under s 21A of the Act because the maximum deduction for presbyacusis of 12.5% pursuant to the GARP was applied to determine the degree of incapacity arising from the accepted condition, bilateral sensorineural hearing loss. According to Ms Wood, it followed that to apply the GARP deduction to the assessment of Mr McMahon's entitlement to the special rate…

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.

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Details

AGLC: PATRICK MCMAHON and REPATRIATION COMMISSION [2009] AATA 253
Case: [2009] AATA 253
Decision Date: 20 April 2009

CaseChat Overview and Summary

The application before the Administrative Appeals Tribunal (AAT) was brought by Patrick McMahon against the Repatriation Commission. The dispute centred on an assessment of McMahon’s eligibility for a special rate of pension under the Veterans’ Entitlements Act 1986. The Tribunal was required to determine whether McMahon’s war-caused hearing loss rendered him incapable of working, and if any adjustment should be made for presbyacusis, a form of age-related hearing loss. Additionally, the Tribunal examined whether the Guidelines for Assessment of Rates of Pension (GARP) applied to assessments under section 24 of the Act.

The legal issues before the Tribunal included the interpretation of the Veterans’ Entitlements Act 1986, particularly sections 21A, 24, and 29. The Tribunal also considered relevant case law, including Repatriation Commission v Hayes and Starcevich v Repatriation Commission, to understand the scope of the statutory provisions and the application of GARP. The Tribunal examined the statutory definitions of "incapable of work" and "totally and permanently incapacitated" in the context of McMahon's medical conditions. Furthermore, the Tribunal assessed whether the Commission's decision to not adjust for presbyacusis was consistent with the legislative framework and GARP.

The Tribunal found that the decision to deny McMahon the special rate of pension was flawed. The Tribunal concluded that McMahon’s war-caused hearing loss alone was sufficient to render him incapable of working, and the Commission should have applied the special rate without considering other factors. The Tribunal noted that the statutory provisions and GARP did not preclude the application of the special rate where a veteran’s war-caused condition met the statutory criteria. The Tribunal set aside the decision and remitted the matter to the Commission for reconsideration in light of these findings.

The Tribunal ordered that the decision of the Repatriation Commission be set aside and that Mr McMahon is entitled to the special rate of pension pursuant to section 24 of the Veterans’ Entitlements Act 1986. The matter was to be reconsidered by the Commission with due regard to the Tribunal’s findings and directions.

Orders

Orders of the court

We set aside the reviewable decision and determine that Mr McMahon is entitled to the special rate of pension pursuant to s 24 of the Veterans’ Entitlements Act 1987.

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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