Re Mitchell and Repatriation Commission

Case [2007] AATA 2087


Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 2087

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S 200500273

VETERANS' APPEALS DIVISION )
Re CRAIG LESLIE MITCHELL

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Deputy President D G Jarvis

Date21 December 2007

PlaceAdelaide

Decision The tribunal sets aside the decision under review and in place of that decision determines that the applicant is entitled to pension at the intermediate rate provided for in s 23 of the Veterans Entitlements Act 1986 (Cth) with effect on and from 2 January 2004 until 12 February 2007 inclusive, and is entitled to pension at the special rate provided for in s 24 of that Act with effect on and from 13 February 2007.

D G Jarvis
  (Signed)
  Deputy President

CATCHWORDS

VETERANS' ENTITLEMENTS – disability pension – rate of pension payable – special rate – incapacity to undertake remunerative work for more than eight hours per week – intermediate rate – accepted conditions including post-traumatic stress disorder, major depressive disorder, lumbar disc degeneration and osteoarthritis of both knees – physiotherapist working reduced hours – part-time continuation of work applicant had previously undertaken – meaning of “continuing to undertake remunerative work that the veteran was undertaking” – decision set aside – applicant entitled to pension at intermediate rate for part of assessment period, and then to pension at special rate.

Veterans Entitlements Act 1986 (Cth), ss 23(1)(b) and 24(1)(c)

Browne v Dunn (1893) 6 R 67

Carter v Repatriation Commission (2001) 33 AAR 343

Re Banovich and Repatriation Commission (1986) 9 ALN N223

Repatriation Commission v Braund (1991) 23 ALD 591

Repatriation Commission v Haskard (2002) 126 FCR 1

Repatriation Commission v Smith (1987) 15 FCR 327

Wright v Repatriation Commission (2005)] 144 FCR 302

REASONS FOR DECISION

21 December 2007   Deputy President D G Jarvis

1.      The applicant, Craig Leslie Mitchell, is a Vietnam veteran.  He currently has accepted disabilities of post concussional syndrome, sensorineural deafness, lumbar disc degeneration, plepharitis and bilateral pingueculae, post-traumatic stress disorder (PTSD), major depressive disorder, irritable bowel syndrome, and osteoarthritis of both knees, in addition to specific injuries including various fractures for which liability has also been accepted.

2.      Mr Mitchell was first granted a pension on 1 July 1971 at ten per cent of the general rate.  This was increased in 1993 to eighty and then ninety per cent of general rate, and in June 1995 to 100 per cent of the general rate.  On 2 January 2004, Mr Mitchell lodged an application for increase in disability pension for his previously accepted disabilities.  The Repatriation Commission refused this application in October 2004, and continued the pension at 100 percent of the general rate.  The Commission’s decision was later affirmed by the Veterans’ Review Board (VRB).  Mr Mitchell has applied to this tribunal for review of the Commission’s decision.

3. Mr Mitchell claims that he is entitled to pension at the special rate. If his claim does not succeed, it is also necessary for me to…

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Details
AGLC
Re Mitchell and Repatriation Commission [2007] AATA 2087
Case
[2007] AATA 2087
Decision Date

CaseChat Overview and Summary

The applicant, Mitchell, sought a review of a decision made by the Repatriation Commission regarding the rate of pension payable under the Veterans Entitlements Act 1986 (Cth). The crux of the dispute was the determination of the appropriate rate of pension Mitchell was entitled to, given his physical and mental health conditions, and the hours he was able to work. The case was heard by the Administrative Appeals Tribunal (AAT).

The legal issues before the AAT centred on the interpretation of the Veterans Entitlements Act, specifically sections 23(1)(b) and 24(1)(c), which pertain to the rates of pension payable based on the veteran’s ability to undertake remunerative work. The primary issue was whether Mitchell’s reduced working hours constituted "continuing to undertake remunerative work that the veteran was undertaking" in a manner that would qualify him for the intermediate rate of pension rather than the special rate. The AAT had to determine the correct interpretation of the statutory language and apply it to Mitchell’s circumstances, including his work as a physiotherapist on a part-time basis.

The AAT found that Mitchell’s reduced working hours, which were a result of his health conditions, should be considered when determining the appropriate pension rate. The tribunal concluded that Mitchell was entitled to the intermediate rate of pension for the period during which he worked reduced hours, and to the special rate thereafter. This decision was based on the tribunal’s interpretation of the statutory language and its application to the facts of Mitchell’s case, taking into account relevant case law and statutory provisions. The AAT set aside the original decision and substituted a new determination, reflecting the appropriate pension rates for the relevant periods.

The tribunal ordered that the decision under review be set aside and replaced with a new determination. Mitchell is entitled to pension at the intermediate rate from 2 January 2004 until 12 February 2007, and at the special rate from 13 February 2007.

Orders

Orders of the court

The tribunal sets aside the decision under review and in place of that decision determines that the applicant is entitled to pension at the intermediate rate provided for in s 23 of the Veterans Entitlements Act 1986 (Cth) with effect on and from 2 January 2004 until 12 February 2007 inclusive, and is entitled to pension at the special rate provided for in s 24 of that Act with effect on and from 13 February 2007.

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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