Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 349
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/5620
VETERAN'S APPEALS DIVISION ) Re ROBERT LEWIS YOUNG Applicant
And
REPATRATION COMMISSION
Respondent
DECISION
Tribunal Senior Member M D Allen Date 15 May 2009
PlaceSydney
Decision The Decision under review is Set Aside and this matter Remitted to the Respondent with the Direction that the Applicant is entitled to pension at the Special Rate pursuant to Section 24 of the Veterans Entitlements Act (1986) as and from 31 July 2006.
....................[sgd]........................
M D Allen
Senior Member
CATCHWORDS
VETERAN ENTITLEMENTS: Application for Special Rate pension - Veteran ceased work but then sought to re-enter the workforce because of family responsibilities following second marriage - Not disentitled by earlier voluntary retirement - Ability of Tribunal to reduce rate of pension in an application for review by the Veteran.
LEGISLATION
Veteran’s Entitlements Act (1986) : Ss 24(1) & (2); S 28; Ss 120(4) & (6)
CASE LAW
Re Beasley and Repatriation Commission [2009] AATA 237
Repatriation Commission v Smith (1987) 15 FCR 327
Fox v Repatriation Commission (1997) 24 AAR 527
Cavell v Repatriation Commission (1988) 9 AAR 534
Australian Securities and Investments Commission v Donald (2003) 136 FCR 7
Re Staffieri and Commonwealth of Australian (1986) 10 ALN; N36Chambers v Repatriation Commission (1995) 36 ALD 207
REASONS FOR DECISION
Senior Member M D Allen 1. By application lodged the 19th day of November 2007, the Applicant sought review of a decision by the Respondent made the 7th day of February 2007 which increased his Disability pension to 100% of the General Rate but declined to increase it to the Special Rate.
2. The criteria for the grant of pension at the Special Rate are set out at section 24 of the Veteran’s Entitlements Act (“the VEA”) and read inter alia:
“24 Special rate of pension
(1) This section applies to a veteran if:
(aa) 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
(aab) the veteran had not yet turned 65 when the claim or application was made; and
(a) either:
(i) the degree of incapacity of the veteran from war‑caused injury or war‑caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii) the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and
(b) the veteran is totally and permanently incapacitated, that is to say, the veteran’s incapacity from war‑caused injury or war‑caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and
(c) the veteran is, by…
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- AGLC
- ROBERT LEWIS YOUNG and REPATRATION COMMISSION [2009] AATA 349
- Case
- [2009] AATA 349
- Decision Date
CaseChat Overview and Summary
The Court found that Mr Young's decision to cease work and then seek re-employment was not a voluntary retirement that would disentitle him from the Special Rate pension. The Court reasoned that the decision to cease work was due to family responsibilities and not a voluntary choice to leave the workforce. Furthermore, the Court held that the Tribunal did not have the authority to reduce the pension rate during a review application by the veteran. The Court found that the Tribunal's power to reduce the pension rate was limited to situations where the veteran's circumstances had changed since the initial pension determination.
In light of the Court's findings, the Decision under review was set aside, and the matter was remitted to the Repatriation Commission with the direction that Mr Young was entitled to the Special Rate pension as and from 31 July 2006. The Court's decision clarified the circumstances in which a veteran may be disentitled from a Special Rate pension and the Tribunal's power to reduce the pension rate during a review application.
Orders
Orders of the court
The Decision under review is Set Aside and this matter Remitted to the Respondent with the Direction that the Applicant is entitled to pension at the Special Rate pursuant to Section 24 of the Veterans Entitlements Act (1986) as and from 31 July 2006.
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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