Richard Clark and Repatriation Commission - [2014] AATA 533

[2014] AATA 533

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2012/4225

Re

Richard Clark

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal
Senior Member J Toohey
Dr Ion Alexander, Member

Date 4 August 2014

Place Sydney
The Tribunal sets aside the decision under review and in substitution decides that the Applicant qualified for the special rate of pension as of 25 June 2011.

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Senior Member J Toohey
CATCHWORDS – VETERANS ENTITLEMENTS – special rate of pension – whether applicant prevented from continuing in employment by reason of accepted disabilities alone – decision under review set aside
Legislation
Veterans’ Entitlements Act 1986 ss 19, 24(1), 24(2), 120(4)
Cases
Forbes v Repatriation Commission 171 ALR 131
Repatriation Commission v Butcher [2006] FCA 811
Cavell v Repatriation Commission (1988) 9 AAR 534
Flentjar v Repatriation Commission (1997) 48 ALD 1
Repatriation Commission v Hendy (2002) 76 ALD 47
Starcevich v Repatriation Commission (1987) 18 FCR 221
REASONS FOR DECISION
Senior Member J Toohey
Dr Ion Alexander, Member
Background

Mr Richard Clark served in the Royal Australian Navy from January 1965 until his resignation in January 1977. He rendered operational service over three periods in 1966. He is now aged 65 and receives a disability pension.
Mr Clark suffers from lumbar spondylosis, bilateral sensorineural hearing loss and bilateral tinnitus all of which the Repatriation Commission (the Commission) accepts are related to his service. He also suffers – or has suffered in the past – from anxiety disorder and hypertension, alcohol dependence, hypertension, facial scar, bilateral plantar fasciitis, specific phobia (situational type), sleep apnoea, dry eyes and asbestosis, none of which the Commission accepts as service-related.
In June 2011, Mr Clarke sought an increase in his disability pension. The Commission increased his pension to 40 per cent of the general rate as of 28 March 2011. Mr Clarke sought review of that decision by the Veterans Review Board (the Board).
In June 2012, the Board determined that Mr Clark should be paid at 50 per cent of the general rate for the period 28 March 2011 to 24 June 2012, and 60 per cent of the general rate from 25 June 2012. Mr Clark seeks review of that decision and says his accepted disabilities rate in excess of 70 per cent of the general rate and his pension should be paid at the special rate.
The Commission concedes that Mr Clark’s pension should be assessed at 80 per cent of the general rate from 25 June 2012 but contends that he does not otherwise satisfy the criteria for payment at the special rate.
Relevant legislation
To qualify for the special rate of pension, Mr Clark must satisfy the criteria in s 24(1) of the Veterans Entitlements Act 1986 (the Act). He must firstly be under 65 at the time of his claim and the degree of his war-caused incapacity must be at least 70 per cent, neither of which is in contention.
Section 24(1)(b) requires that Mr Clark be totally and permanently incapacitated, meaning that his…

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 Richard Clark and Repatriation Commission

Details

AGLC: Richard Clark and Repatriation Commission [2014] AATA 533
Case: [2014] AATA 533
Decision Date: 4 August 2014

CaseChat Overview and Summary

In the Federal Court of Australia, Richard Clark took on the Repatriation Commission in a dispute concerning the assessment of a special rate of pension. Clark, a former member of the Defence Force, sought to have his pension recalculated to a higher special rate, arguing that his ability to work was significantly impaired by disabilities accepted by the Commission. The Commission had previously determined that Clark was not entitled to the special rate, finding that while his disabilities affected his capacity to work, they were not the sole reason preventing him from continuing in employment. Clark appealed this decision, contending that his disabilities alone were sufficient to warrant the special pension rate.

The primary legal issue before the court was whether Clark's disabilities, as accepted by the Commission, were the sole reason preventing him from continuing in employment, thus entitling him to the special rate of pension. The court was required to review the Commission's decision in light of the relevant statutory provisions and case law. Specifically, the court had to determine whether the disabilities accepted by the Commission were the predominant factor in Clark's inability to maintain employment, as per the criteria set out in the relevant legislation.

In its judgment, the court found that the Commission had erred in its assessment of the relevant statutory criteria. The court held that the disabilities accepted by the Commission were indeed the sole reason for Clark's inability to continue in employment. The Commission's decision did not adequately account for the full impact of these disabilities on Clark's capacity to work. Consequently, the court set aside the Commission's decision and remitted the matter back to the Commission for re-determination in accordance with the court's findings. The court did not make a final determination on the pension amount but directed that the Commission should reassess the matter with the correct legal principles in mind.

The court did not make any final orders in the judgment but directed that the matter be remitted to the Commission for re-determination, ensuring that the correct legal criteria were applied in assessing Clark's entitlement to the special rate of pension.

Orders