Peacock and Repatriation Commission

[2007] AATA 1208

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1208

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q 200400910

VETERANS' APPEALS DIVISION		)
Re		GEOFFREY RAYMOND PEACOCK

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Deputy President P E Hack SC and Dr G J Maynard, Member

Date5 April 2007

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

...............Signed............

Deputy President

CATCHWORDS

VETERANS’ AFFAIRS – disability support pension – claim for intermediate rate or special rate – post traumatic stress disorder and alcohol dependence as war-caused conditions –– range of employment opportunities defined as clerical work at medium to senior level – consideration of medical evidence – treating psychiatrist may lose objectivity vis-à-vis forensic psychiatrist - conditions have not rendered applicant incapable of undertaking any remunerative work – decision under review affirmed

VETERANS’ AFFAIRS – disability support pension – claim for intermediate rate or special rate - post traumatic stress disorder and alcohol dependence as war-caused conditions - conditions have not rendered applicant incapable of undertaking any remunerative work – whether loss of work is attributable to war-caused conditions or other causes – application of Flentjar questions – war caused conditions not only factor preventing remunerative work – applicant formulated plan to retire at age 55 before affected by conditions – applicant would have ceased work at age 55 absent war-caused conditions – no loss of salary – requirements for special rate or intermediate rate not satisfied – decision under review affirmed.

Veterans’ Entitlements Act – ss23(1)(b)(c), 23(3)(a), 24(1)(aa),(ab),(a),(b),(c),(d), 24(2)(a),(b), 28(a)

Peacock and Repatriation Commission [2004] AATA 523.

Peacock v Repatriation Commission [2004] 40 AAR 143

Chambers v Repatriation Commission (1995) 55 FCR 9

Cavell v Repatriation Commission (1988) 9 AAR 534

Flentjar v Repatriation Commission (1997) 48 ALD 1

Repatriation Commission v Hendy (2002) 76 ALD 47

Repatriation Commission v Smith (1987) 15 FCR 327

REASONS FOR DECISION

5 April 2007 Deputy President P E Hack SC and Dr G J Maynard, Member                  

Introduction

1.The applicant, Mr Geoffrey Peacock, seeks a review of the decision of the respondent Commission, made as long ago as 3 April 2003, by which the respondent determined that he was not eligible to be paid disability pension at the “intermediate rate” or the “special rate”; that is, the rates described in ss 23 and 24 of the Veterans’ Entitlements Act 1986 (“the VEA”).

2.That decision was affirmed by the Veterans’ Review Board on 8 October 2003 and by this Tribunal, differently constituted, on 25 May 2004[1]. That decision was set aside by the Federal Court on appeal[2] and the matter remitted to the Tribunal for further consideration in accordance with law.

[1]        See Peacock and Repatriation Commission [2004] AATA 523.

[2]        See Peacock v Repatriation Commission [2004] 40 AAR 143.

3.The matter was treated by the parties as a fresh hearing (albeit that the respondent tendered the transcript of the earlier hearing). Indeed the respondent, on this occasion, put in issue the question of total and permanent incapacity[3],…