Re Solway and Repatriation Commission - [2011] AATA 806

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 806
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2011/0180

VETERANS' APPEALS DIVISION )

Re DIANE SOLWAY

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr R G Kenny, Senior Member
Date15 November 2011
PlaceBrisbane

Decision
The Tribunal affirms the decision under review.

........................[sgd]......................
Senior Member

CATCHWORDS
VETERANS’ AFFAIRS – Benefits and entitlements – Disability pension payable at 100% of general rate – Eligibility for special rate of pension – Incapacity from defence-caused conditions sufficient to prevent applicant undertaking remunerative work for more than 8 hours per week – Applicant not prevented by reason of incapacity from defence-caused conditions, alone or substantially, from continuing to undertake remunerative work – No loss of salary, wages or earnings that would not be suffered if free from incapacity –Decision under review affirmed
Defence Force Retirement and Death Benefits Act 1973 (Cth) s 37
Veterans’ Entitlements Act 1986 (Cth) ss 5Q, 15, 19, 22, 23, 24
Defence Force Retirement and Death Benefits Authority v Britt (1984) 4 FCR 306
Flentjar v Repatriation Commission (1997) 26 AAR 93; (1997) 48 ALD 1
Leane v Repatriation Commission [2004] FCAFC 83; (2004) 81 ALD 625

Repatriation Commission v Alexander (2003) 75 ALD 329
Repatriation Commission v Hendy (2002) 76 ALD 47
Repatriation Commission v Smith (1987) 15 FCR 327
REASONS FOR DECISION

15 November 2011 Mr R G Kenny, Senior Member

BACKGROUND
1. On 18 May 2010, Diane Solway lodged a claim under s 15 of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”) for an increase in the disability pension paid to her in respect of conditions previously accepted by the Repatriation Commission (“the respondent”) in respect of her service in the Royal Australian Air Force (“RAAF”) from March 1985 until September 1990. Those conditions are “cervical and lumbar spondylosis”, “somatisation disorder (includes neck, shoulder, arm and hand pain and fibromyalgia)”, “generalised anxiety disorder with secondary depressive features” and “posttraumatic stress disorder”. On 2 June 2010 a delegate of the respondent determined that, in accordance with s 22 of the Act, pension should continue to be paid to Ms Solway at 100% of the general rate and that it was not payable at an earnings-related rate under s 23 or 24 of the Act. On 29 November 2010, that decision was affirmed by the Veterans’ Review Board.
ISSUES AND LEGISLATION
2. The standard of proof applicable in this matter is set out in s 120(4) of the Act, which requires that matters be determined to the decision-maker’s ‘reasonable satisfaction’. This imports the civil standard of proof so that matters must be determined on the balance of probabilities.[1] The procedure to be followed is set out in s 19 of the Act. It requires the rate of pension to be determined during the “assessment period”, which is defined as meaning the period starting on the application day, in this case 18 May 2010, and ending when the claim or application is determined.[2]
[1] Repatriation Commission v Smith

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 Solway and Repatriation Commission

Details

AGLC: Re Solway and Repatriation Commission [2011] AATA 806
Case: [2011] AATA 806
Decision Date: 15 November 2011

CaseChat Overview and Summary

The Repatriation Commission, acting through the Defence Force Retirement and Death Benefits Authority, sought to review a decision to pay a disability pension at 100% of the general rate to a veteran who had previously received the special rate of pension. The matter was heard and determined in the Administrative Appeals Tribunal, with the decision under review being affirmed. The dispute hinged on the eligibility of the veteran for the special rate of pension, which is payable where a person is unable to undertake remunerative work for more than eight hours per week due to incapacity caused by their service in the defence force.

The central legal issue before the Tribunal was whether the veteran's incapacity, caused by his service in the defence force, was such that it prevented him from undertaking remunerative work for more than eight hours per week, or whether it was instead the case that his incapacity did not, alone or substantially, prevent him from undertaking such work. The Tribunal needed to determine whether the veteran met the statutory criteria for the special rate of pension under the relevant provisions of the Veterans’ Entitlements Act 1986.

The Tribunal found that while the veteran's incapacity was caused by his service in the defence force, it did not alone or substantially prevent him from undertaking remunerative work for more than eight hours per week. The Tribunal also found that the veteran was not prevented by reason of incapacity from undertaking such work and that he would not suffer any loss of salary, wages or earnings that he would not suffer if he were free from incapacity. Accordingly, the Tribunal held that the veteran was not entitled to the special rate of pension and affirmed the decision under review.

The Tribunal's decision was based on the findings that the veteran's incapacity, while caused by his service in the defence force, did not alone or substantially prevent him from undertaking remunerative work for more than eight hours per week. The Tribunal found that the veteran was not prevented by reason of incapacity from undertaking such work and that he would not suffer any loss of salary, wages or earnings that he would not suffer if he were free from incapacity. The Tribunal therefore affirmed the decision under review, which had found that the veteran was not eligible for the special rate of pension.

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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