Re Beasley and Repatriation Commission - [2009] AATA 237

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 237
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/4811

VETERANS’ APPEALS DIVISION )

Re SEAN-LEE BEASLEY

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Deputy President P E Hack SC
Date8 April 2009
PlaceBrisbane (Heard in Townsville)

Decision The Tribunal affirms the decision under review.

...............Signed.................
Deputy President

CATCHWORDS
VETERANS’ AFFAIRS – disability pension – special rate – whether the veteran was genuinely seeking to engage in remunerative work – involves an assessment of subjective intention – veteran’s efforts directed to providing evidence – not genuinely seeking work - whether the incapacity is the substantial cause of inability to obtain remunerative work – the accepted incapacity is not the operative factor which, more than any other factor, explains the inability to obtain work – decision under review affirmed.
Veterans’ Entitlements Act 1986 (Cth) ss 24, 24(2)(b), 24(1)(c)
Conway v Repatriation Commission [2003] FCA 704
Fox v Repatriation Commission (1997) 45 ALD 317
Hall v Repatriation Commission (1994) 33 ALD 454
Leane v Repatriation Commission (2004) 81 ALD 625
Repatriation Commission v Sheehy (1995) 133 ALR 654
REASONS FOR DECISION

8 April 2009 Deputy President P E Hack SC

1.The applicant, Mr Sean-Lee Beasley, served in the Australian Regular Army between 1964 and 1971. As a consequence of accepted service related disabilities Mr Beasley receives a pension from the Commonwealth at 100% of the general rate. In these proceedings Mr Beasley contends that he ought receive pension at the “special rate” i.e. the rate referred to in s 24 of the Veterans’ Entitlements Act 1986 (Cth).
2.Given various concessions made by the parties the issue to be decided is whether the ameliorating provisions of s 24(2)(b) of the Act operate in Mr Beasley’s case.

The legislation
3.Pension is payable at the special rate when the matters in paragraphs (aa), (aab), (a), (b), (c) and (d) of s 24(1) of the Act are satisfied. Mr Stoner, who appeared for the Commission, accepted that these matters were satisfied with the exception of s 24(1)(c). It provides:
“(1) This section applies to a veteran if:
…
(c) the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not have been suffering if the veteran were free of that incapacity: and
(d) …”

4.Mr Honchin, counsel for Mr Beasley, conceded[1] that Mr Beasley did not satisfy what is commonly described as the “alone” test in s 24(1)(c) of the Act, that is, it was not Mr Beasley’s war-caused conditions alone that prevented him from continuing to undertake remunerative work. He relied instead on the ameliorating provisions in s 24(2)(b) of the Act which is in these terms:
“(2) For the purposes of paragraph (1)(c):
(a) …
(b)where a veteran, not being…

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 Re Beasley and Repatriation Commission

Details

AGLC: Re Beasley and Repatriation Commission [2009] AATA 237
Case: [2009] AATA 237
Decision Date: 8 April 2009

CaseChat Overview and Summary

The case of Re Beasley and Repatriation Commission involved a dispute regarding the entitlement of a veteran to a disability pension at a special rate. The veteran, Beasley, argued that his incapacity, which was a result of his service, was the primary cause of his inability to engage in remunerative work. The case was heard and determined by the Administrative Appeals Tribunal, which had to decide whether Beasley was genuinely seeking to engage in remunerative work and whether his incapacity was the substantial cause of his inability to obtain such work. The Tribunal's decision hinged on the interpretation of the relevant legislative provisions and the assessment of Beasley's subjective intention and efforts towards finding work.

The legal issues before the Tribunal included the interpretation of the criteria for awarding a special rate disability pension, particularly the requirement that the veteran be genuinely seeking to engage in remunerative work and that their incapacity be the substantial cause of their inability to obtain such work. The Tribunal needed to determine whether Beasley's efforts to provide evidence of his incapacity and his attempts to find work were sufficient to meet the criteria for a special rate pension. The central question was whether Beasley's incapacity was the primary factor preventing him from obtaining remunerative work, or whether other factors played a more significant role.

The Tribunal held that Beasley was not genuinely seeking to engage in remunerative work as he was primarily focused on providing evidence of his incapacity rather than actively seeking employment. Additionally, the Tribunal found that the accepted incapacity was not the operative factor that explained Beasley's inability to obtain work. Other factors, such as his limited work experience and age, played a more substantial role in his unemployment. Consequently, the Tribunal affirmed the decision under review, denying Beasley's entitlement to a special rate disability pension. The Tribunal's decision was based on a detailed assessment of Beasley's efforts and the primary causes of his inability to obtain remunerative work.

Orders

Orders of the court

The Tribunal affirms the decision under review.

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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