Reidlinger and Repatriation Commission (Veterans’ entitlements) - [2016] AATA 646

Reidlinger and Repatriation Commission (Veterans’ entitlements) [2016] AATA 646 (26 August 2016)

Division

VETERANS' APPEALS DIVISION

File Number(s)

2015/0237

Re

Robin Reidlinger

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal
Deputy President Dr P McDermott RFD

Date 26 August 2016

Place Brisbane
I affirm the decision under review insofar as that decision determined that the applicant was not eligible for pension at the special rate. I remit to the respondent the question of whether and from what date the applicant is entitled to the Extreme Disablement Adjustment rate of pension provided by s 22(4) of the Veterans’ Entitlement Act 1986 (Cth).

............................[sgd].......................................
Deputy President Dr P McDermott RFD
CATCHWORDS
VETERANS’ AFFAIRS – application for pension at the special rate – applicant was not prevented from continuing to undertake remunerative work because of incapacity from war-caused injury or war-caused disease alone – financial considerations found to be a factor – injury that was not war-caused not found to be a factor – decision affirmed under review
Applicant may be entitled to the Extreme Disablement Adjustment rate of pension – deterioration of accepted conditions – decision remitted for reconsideration
LEGISLATION
Veterans’ Entitlement Act 1986 (Cth) ss 19, 22, 23, 24, 120
CASES
Repatriation Commission v Watkins (2015) 228 FCR 573
Repatriation Commission v Richmond (2014) 226 FCR 21
Repatriation Commission v Hendy (2002) 76 ALD 47
Repatriation Commission v Butcher (2007) 94 ALD 364
Davis and Repatriation Commission (1990) 20 ALD 798
Smith v Repatriation Commission (2014) 220 FCR 452
SECONDARY MATERIALS
Guide to the Assessment of Rates of Veterans’ Pensions (last updated 24 November 2014)
REASONS FOR DECISION
Deputy President Dr P McDermott RFD
26 August 2016
INTRODUCTION

On 15 May 2014 Mr Robin Reidlinger (“the applicant”) lodged a claim for an earnings-related rate of pension.[1] On 29 July 2014 a delegate of the Repatriation Commission (“the respondent”) determined that the disability pension of the applicant be increased to 100% of the general rate with effect from 15 February 2014.[2] On 18 December 2014 the Veterans’ Review Board (“the VRB”) affirmed the decision.[3] On 13 January 2015 the applicant lodged an application to this Tribunal for a review of the decision of the VRB.[4]
[1] Exhibit A, T-Documents, T4.
[2] Exhibit A, T-Documents, T15.
[3] Exhibit A, T-Documents, T2.
[4] Exhibit A, T-Documents, T1.
BACKGROUND
The applicant seeks a pension at a special rate for conditions that are attributable to his service in the Royal Australian Air Force. In his statement dated 19 March 2014, he explained that he and his wife under a family company took over a newsagency business on 13 November 2000.[5] Initially, they received remuneration from the company in the form of directors’ fees and in later years they were paid wages. The applicant and his wife made a decision to cease trading with effect on 31 May 2014.[6]
[5] Exhibit A, T-Documents, T5 at p. 19.
[6] Exhibit B, Statement of duties prepared by applicant (undated).
LEGISLATION
To be eligible for pension at the special rate, the…

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.

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Details

Case: [2016] AATA 646
Decision Date: 26 August 2016

CaseChat Overview and Summary

This matter concerned an application by Mr Robin Reidlinger (the applicant) to the Administrative Appeals Tribunal for a review of a decision by the Repatriation Commission (the respondent) and the Veterans’ Review Board. The applicant sought an increase in his disability pension to the special rate, as provided by section 24 of the *Veterans’ Entitlement Act 1986* (Cth). The respondent had previously determined that the applicant's pension should be increased to 100% of the general rate, a decision affirmed by the Veterans’ Review Board.

The primary legal issue before the Tribunal was whether the applicant satisfied the criteria for the special rate of pension under section 24(2A) of the Act. Specifically, the Tribunal had to determine if the applicant was prevented from continuing his last remunerative work solely because of incapacity from war-caused injury or disease, and if this incapacity resulted in a loss of earnings that would not have been suffered if he were free from that incapacity. The applicant had been operating a newsagency business with his wife and had ceased trading shortly before lodging his claim.

The Tribunal considered the settled principle, as reaffirmed in *Repatriation Commission v Watkins*, that the "alone" requirement in section 24(2A)(d) is not satisfied if non-war-caused factors play a part in preventing a veteran from engaging in remunerative work, even if those factors are of secondary importance. In this case, while the applicant's war-caused mental condition was a factor, the Tribunal found that financial considerations also played a part in the decision to cease operating the business. Consequently, the Tribunal determined that the applicant did not satisfy the "alone" requirement and was therefore not eligible for the special rate of pension.

Despite affirming the decision that the applicant was not eligible for the special rate, the Tribunal considered that the applicant's entitlement to the Extreme Disablement Adjustment rate of pension should be assessed. The Tribunal remitted the matter to the respondent for reconsideration of the applicant's eligibility for this alternative rate of pension.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

On 15 May 2014 Mr Robin Reidlinger (“the applicant”) lodged a claim for an earnings-related rate of pension.[1] On 29 July 2014 a delegate of the Repatriation Commission (“the respondent”) determined that the disability pension of the applicant be increased to 100% of the general rate with effect from 15 February 2014.[2] On 18 December 2014 the Veterans’ Review Board (“the VRB”) affirmed the decision.[3] On 13 January 2015 the applicant lodged an application to this Tribunal for a review of the decision of the VRB.[4][1] Exhibit A, T-Documents, T4.[2] Exhibit A, T-Documents, T15.[3] Exhibit A, T-Documents, T2.[4] Exhibit A, T-Documents, T1.BACKGROUND The applicant seeks a pension at a special rate for conditions that are attributable to his service in the Royal Australian Air Force. In his statement dated 19 March 2014, he explained that he and his wife under a family company took over a newsagency business on 13 November 2000.[5] Initially, they received remuneration from the company in the form of directors’ fees and in later years they were paid wages. The applicant and his wife made a decision to cease trading with effect on 31 May 2014.[6][5] Exhibit A, T-Documents, T5 at p. 19.[6] Exhibit B, Statement of duties prepared by applicant (undated).LEGISLATION To be eligible for pension at the special rate, the applicant must satisfy the requirements of s 24(2A) of the Veterans’ Entitlement Act 1986 (Cth) (“the Act”) which provides: (2A) This section applies to a veteran if: (a) the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and (b) the veteran had turned 65 before the claim or application was made; and (c) paragraphs (1)(a) and (1)(b) apply to the veteran; and (d) the veteran is, because of incapacity from war-caused injury or war-caused disease or both, alone, prevented from continuing to undertake the remunerative work (last paid work) that the veteran was last undertaking before he or she made the claim or application; and (e) because the veteran is so prevented from undertaking his or her last paid work, the veteran is suffering a loss of salary or wages, or of earnings on his or her own account, that he or she would not be suffering if he or she were free from that incapacity; and (f) the veteran was undertaking his or her last paid work after the veteran had turned 65; and g) when the veteran stopped undertaking his or her last paid work, the veteran: (i) if he or she was then working as an employee of another person--had been working for that person, or for that person and any predecessor or predecessors of that person; or (ii) if he or she was then working on his or her own account in any profession, trade, employment, vocation or calling--had been so working in that profession, trade, employment, vocation or calling; for a continuous period of at least 10 years that began before the veteran turned 65; and (h) section 25 does not apply to the veteran.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

While the applicant has not made a claim for the Extreme Disablement Adjustment, I consider that his entitlement to that benefit should now be assessed during this assessment period. This is required under s 19(5B) of the Act which enables the respondent to make an assessment of the appropriate rate of pension during the assessment period.[23] The applicant has rendered distinguished service to the Commonwealth and it is incumbent that his eligibility for the Extreme Disablement Adjustment be reassessed.[23] Davis and Repatriation Commission (1990) 20 ALD 798 at 799. See also, Smith v Repatriation Commission (2014) 220 FCR 452 at 467 at [55] per Buchanan J.DECISION I affirm the decision under review insofar as that decision determined that the applicant was not eligible for pension at the special rate and remit to the respondent to determine whether and from what date the applicant is entitled to the Extreme Disablement Adjustment rate of pension provided by s 22(4) of the Act.

Ratio Decidendi

Legal Principle Established

I am required by s 120(4) of the Act to determine any issues to my reasonable satisfaction. CONSIDERATION I have to determine whether the applicant is eligible for a pension at the special rate. The applicant applied to the respondent to have his pension increased in accordance with s 24 of the Act, which provides for a "[s]pecial rate of pension" to be paid where the applicant satisfies certain criteria. The applicant satisfies s 24(2A)(a) of the Act in that he has made a claim for a pension under s 14 of the Act on 15 May 2014 (“the claim”). He also satisfies s 24(2A)(b) of the Act in that he had turned 65 before he made the claim. The applicant satisfies s 24(2A)(c) of the Act in that paragraphs (1)(a) and (1)(b) apply to him. Paragraph (1)(a) applies if he is in receipt of pension at least 70% of the general rate. This paragraph is satisfied in that he is in receipt of disability pension at 100% of the general rate. The unchallenged report of Dr Rees, psychiatrist, dated 24 June 2014 supports the contention that paragraph (1)(b) is satisfied in that his incapacity by reason of war-caused disease is of such a nature that he is unable to undertake remunerative work for periods aggregating eight hours per week.[7] [7] Exhibit A, T-Documents, T10 at p. 44. What is in contention is whether the applicant satisfies s 24(2A)(d) of the Act. There are a number of conditions in that paragraph that need to be met. The first requirement of s 24(2A)(d) of the Act is to identify the remunerative work that the applicant was last undertaking before he made the claim. I accept the submission of the applicant that his last remunerative work was that of a business manager. The applicant in his statement that was filed on 29 August 2015 indicated that he took over responsibility for all administrative aspects of the business. When the applicant was last undertaking his remunerative work he was, as indicated by Mr Marmotta, on wages from the company that ran the business. The second requirement of s 24(2A)(d) of the Act is that the applicant is prevented from undertaking that remunerative work by reason of his incapacity from war-caused injury or war-caused disease alone. I have to consider whether the decision of the applicant to close the business was made because of his war-caused mental condition or whether there was any other factor which influenced his decision such as financial considerations or his orthopedic conditions. Recently, in Repatriation Commission v Watkins,[8] the Full Court of the Federal Court of Australia referred to decisions of Repatriation Commission v Richmond,[9] Repatriation Commission v Hendy,[10] and Repatriation Commission v Butcher[11] and reaffirmed the settled principle that: “if non war-caused factors play a part in or contribute to preventing a veteran from engaging in remunerative work, even if those preventative factors are of secondary importance and not of themselves sufficient to prevent remunerative work, the “alone” requirement will not be satisfied”. [8] (2015) 228 FCR 573 at 580-581.[9] (2014) 226 FCR 21.[10] (2002) 76 ALD 47.[11] (2007) 94 ALD 364.

Division	VETERANS' APPEALS DIVISION
File Number(s)	2015/0237
Re	Robin Reidlinger
APPLICANT
And	Repatriation Commission
RESPONDENT

Tribunal	Deputy President Dr P McDermott RFD
Date	26 August 2016
Place	Brisbane