Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 609
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W200702524
GENERAL ADMINISTRATIVE DIVISION ) Re DAVID ARTHUR REARDON Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Ms L R Tovey, Member
Dr D Weerasooriya, Member
Date 14 July 2008
PlacePerth
Decision The Tribunal sets aside the decision of the Veterans' Review Board made on 15 March 2007 and the decision of the Respondent dated 18 July 2006 and substitutes a decision that the Applicant is entitled to a special rate of pension with effect from 28 December 2005. ….....(sgd) Ms L R Tovey.........................
Member
CATCHWORDS
VETERANS' ENTITLEMENTS – whether Applicant qualifies for special rate of pension
Veterans' Entitlements Act 1986 (Cth), ss 13(1), 15(1), 17, 19, 21, 22, 24(1), 24(2), 24(4), 25, 120(4).
Banovich v Repatriation Commission (1986) 69 ALR 395
Re Bonner and Repatriation Commission (1989) 17 ALD 680
Re Bucknall and Repatriation Commission (2008) 99 ALD 623
Cavell v Repatriation Commission (1988) 9 AAR 534
Doig v Repatriation Commission (Unreported Federal Court 18 December 1996)
Flentjar v Repatriation Commission (1997) 48 ALD 1
Forbes v Repatriation Commission (2000) 101 FCR 50
Leane v Repatriation Commission [2003] FCA 889
Leane v Repatriation Commission (2004) 81 ALD 625
Repatriation Commission v Butcher [2006] FCA 811
Repatriation Commission v Butcher (2007) 94 ALD 364
Repatriation Commission v Flentjar (1997) 47 ALD 67
Repatriation Commission v Graham (2004) 85 ALD 572
Repatriation Commission v Hendy (2002) 76 ALD 47
Sheehy v Repatriation Commission (1996) 137 ALR 223
Starcevich v Repatriation Commission (1987) 18 FCR 221
REASONS FOR DECISION
14 July 2008 Ms LR Tovey, Member Dr D Weerasooriya, Member 1. This is an application by Mr David Arthur Reardon for review of a decision of the Veterans' Review Board ("the Board") made on 15 March 2007. The Board decided to affirm a decision of the Repatriation Commission ("the Commission") dated 18 July 2006, that Mr Reardon was not entitled to a pension at the special rate.
LEGISLATIVE BACKGROUND
2. Provision for payment of Mr Reardon's pension is made by the Veterans' Entitlement Act 1986 (Cth) ("the Act"). It is not in dispute that Mr Reardon is entitled to a pension, by way of compensation, under s. 13(1)(b) and (d) of the Act on the basis that he is incapacitated from war-caused disease.
3. Section 15(1) of the Act provides that a veteran who is in receipt of a pension may apply for an increase in the rate of the pension on the ground that the incapacity of the veteran has increased since the rate of the pension was assessed or last assessed. Mr Reardon made such an application on 28 March 2006.
4. Section 17 of the Act provides for an application to be investigated by the Secretary of the Department and submitted to the Commission. Section 18 of the Act provides for the duty of the Commission to deal with the application. Section 19(1)(c), (4A), (5C) and (5D) of the Act require the…
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- AGLC
- Reardon and Repatriation Commission [2008] AATA 609
- Case
- [2008] AATA 609
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Tribunal was whether the Applicant qualified for the special rate of pension under the Act. This required an interpretation of sections 13(1), 15(1), 17, 19, 21, 22, 24(1), 24(2), 24(4), 25, and 120(4) of the Act, and consideration of relevant case law, including Banovich v Repatriation Commission, Re Bonner and Repatriation Commission, Re Bucknall and Repatriation Commission, Cavell v Repatriation Commission, Doig v Repatriation Commission, Flentjar v Repatriation Commission, Forbes v Repatriation Commission, Leane v Repatriation Commission, Repatriation Commission v Butcher, Repatriation Commission v Flentjar, Repatriation Commission v Graham, Repatriation Commission v Hendy, Sheehy v Repatriation Commission, and Starcevich v Repatriation Commission.
The Tribunal found that the Applicant did meet the criteria for the special rate of pension. It concluded that the evidence demonstrated the Applicant's disabilities and service history warranted the special rate. The Tribunal was persuaded by the case law which emphasised the need to interpret the provisions of the Act in a manner that favours the applicant where there is ambiguity. The Tribunal set aside the decisions of the Veterans' Review Board and the Repatriation Commission, and substituted its own decision that the Applicant was entitled to the special rate of pension with effect from 28 December 2005.
The Tribunal ordered that the decision of the Veterans' Review Board made on 15 March 2007, and the decision of the Respondent dated 18 July 2006, be set aside. In their place, the Tribunal decided that the Applicant is entitled to a special rate of pension with effect from 28 December 2005.
Orders
Orders of the court
The Tribunal sets aside the decision of the Veterans' Review Board made on 15 March 2007 and the decision of the Respondent dated 18 July 2006 and substitutes a decision that the Applicant is entitled to a special rate of pension with effect from 28 December 2005.
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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