ROBERT LEWIS YOUNG and REPATRATION COMMISSION - [2009] AATA 349

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; N36
Chambers v Repatriation Commission (1995) 36 ALD 207
REASONS FOR DECISION

Senior Member M D Allen

1.      By application lodged the 19^th day of November 2007, the Applicant sought review of a decision by the Respondent made the 7^th 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…

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 ROBERT LEWIS YOUNG and REPATRATION COMMISSION

Details

AGLC: ROBERT LEWIS YOUNG and REPATRATION COMMISSION [2009] AATA 349
Case: [2009] AATA 349
Decision Date: 15 May 2009

CaseChat Overview and Summary

Robert Lewis Young and the Repatriation Commission were before the Court to determine the appropriate rate of pension under the Veterans Entitlements Act (1986). Mr Young, a veteran, had previously been awarded a Special Rate pension due to his incapacity for work. However, his situation changed when he ceased work and later sought to re-enter the workforce due to family responsibilities following a second marriage. The Repatriation Commission argued that his voluntary retirement disentitled him from the Special Rate pension. The Court was required to decide whether Mr Young's actions constituted a voluntary retirement that would disentitle him to the pension and whether the Tribunal had the authority to reduce the pension rate during a review application.

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.