Poulos and Repatriation Commission - [2000] AATA 234

CATCHWORDS – VETERANS' AFFAIRS – pensions – applicant carer of extremely ill wife – whether applicant entitled to be paid as if he was living separately and apart from his wife – decision affirmed.

Administrative Appeals Tribunal Act 1975 – s34B, 37,
Veterans' Entitlements Act 1986 – ss 1, 5E, 5Q, 5R, 11A, 41,

Re Tang and Director-General of Social Services (1981) 3 ALN N83
Staunton-Smith v Secretary, Department of Social Security (1991) 14 AAR 325; (1991) 32 FCR 164; (1991) 25 ALD 27

DECISION AND REASONS FOR DECISION [2000] AATA 234

ADMINISTRATIVE APPEALS TRIBUNAL     )
  )          Q1999/285
VETERANS' APPEALS DIVISION  )

Re PETER POULOS

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Miss S A Forgie (Deputy President)

Date 24 March, 2000

Place Brisbane

DecisionThe Tribunal affirms the decision of a delegate of the respondent dated 9 December, 1998 and affirmed by a decision of another delegate dated 8 February, 1999.

S A FORGIE
Deputy President

REASONS FOR DECISION

On 17 February, 1999, the applicant, Mr Peter Poulos, applied for review of a decision of a delegate of the respondent, the Repatriation Commission ("Commission") dated 8 February, 1999. That delegate had affirmed an earlier decision made by another delegate on 9 December, 1998. In that decision, the delegate had determined that Mr Poulos and his late wife were living together in a marriage-like relationship within the meaning of s. 11A of the Veterans' Entitlements Act 1986 ("VE Act"). That determination was made for the purposes of assessing the rate of service pension to which Mr and Mr Poulos were entitled.

Mr Poulos' application had first been listed for hearing at Cairns in October, 1999 but was vacated as Mrs Poulos was in hospital. As Mr Poulos did not wish to proceed at that time, the application was adjourned. It was re-listed for hearing in Cairns in February, 2000. Mr Poulos wrote to the Tribunal on 18 December, 1999 to advise that his wife had died on 3 December, 1999. He also wrote that the Tribunal could proceed without him as he had enough stress at present. Mr Stoner, who represented the Commission, agreed that the matter could proceed on the papers and made submissions dated 22 February, 2000. He sent a copy of those submissions to Mr Poulos.

Although s. 34B of the Administrative Appeals Tribunal Act 1975 ("AAT Act") gives the Tribunal the power to review a decision on the papers and without holding a hearing, it is not every case in which it is appropriate to exercise that power. As s. 34B provides, the parties must, as in this case, consent to the matter being determined in that way. The Tribunal must also be satisfied that the issues for determination can be adequately determined in the absence of the parties (s. 34B(a)).

Generally, a case which raises an issue such as the relationship of two people is not a case well suited to determination on the papers. In so far…

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 Poulos and Repatriation Commission

Details

AGLC: Poulos and Repatriation Commission [2000] AATA 234
Case: [2000] AATA 234
Decision Date: 24 March 2000

CaseChat Overview and Summary

The case of Poulos and Repatriation Commission involved the applicant, Peter Poulos, who sought a review of a decision made by a delegate of the Repatriation Commission regarding his entitlement to a service pension. The central issue was whether Mr. Poulos and his wife were living separately and apart on a permanent basis, which would entitle him to be paid as if he were single. The case was decided by the Administrative Appeals Tribunal (AAT), with Deputy President S. A. Forgie delivering the decision on 24 March 2000.

The legal issues before the AAT were primarily concerned with interpreting the definition of "member of a couple" under the Veterans' Entitlements Act 1986 (VE Act). Specifically, the tribunal had to determine if Mr. and Mrs. Poulos were living separately and apart on a permanent basis, despite being legally married, to ascertain if they qualified for a married rate pension. The AAT considered various factors, including financial, social, and personal aspects of their relationship, to make this determination.

The tribunal's reasoning was grounded in the evidence presented by Mr. Poulos, which included his wife's severe health conditions and his role as her primary caregiver. The tribunal found that despite the changed nature of their relationship due to Mrs. Poulos's illness, the couple remained inextricably linked, both physically and emotionally. Mr. Poulos's role as a caregiver and his ongoing commitment to his wife indicated that they were not living separately and apart on a permanent basis. Consequently, the tribunal affirmed the earlier decision of the Repatriation Commission, which held that Mr. and Mrs. Poulos were members of a couple and thus entitled to the married rate pension.

Orders