Rochford and Repatriation Commission (Veterans' entitlements) - [2020] AATA 4725

Rochford and Repatriation Commission (Veterans' entitlements) [2020] AATA 4725 (26 November 2020)
Division:VETERANS' APPEALS DIVISION
File Numbers: 2019/0470
Re:SHANE ROCHFORD
APPLICANT

AndREPATRIATION COMMISSION
RESPONDENT

DECISION
Tribunal:Senior Member Katter
Date:26 November 2020
Place:Brisbane

The decision under review is varied with the Applicant to additionally receive the special rate pursuant to section 24 of the Veterans' Entitlements Act 1986 (Cth).
..................................[SGD]....................................
Senior Member Katter
CATCHWORDS
VETERANS’ AFFAIRS – claim for special rate -– decision under review varied
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Veterans’ Entitlements Act 1986 (Cth)
CASES
Flentjar v Repatriation Commission (1998) 48 ALD 1
Forbes v Repatriation Commission [2000] FCA 328
REASONS FOR DECISION
Senior Member Katter
26 November 2020
APPLICATION

The Applicant seeks a review of the decision that a disability pension is not payable above the general rate in accordance with the Veterans’ Entitlement Act 1986 (Cth) (“the Act”)[1].
[1] Transcript, 17 July 2020, P-3 lines 19 and 20; T2, pages 3 - 21.
BACKGROUND
The Applicant served in the Royal Australian Air Force from 15 March 1976[2] for 29 years[3]. During the Applicant’s service, the Applicant spent 4 years working around the Mirage aircraft and 20 years on the F-111 aircraft[4].
[2]           T5, page 39.
[3]           Exhibit 3, paragraph 4.
[4]           Exhibit 3, paragraph 4.
By an online lodgement form received on 30 November 2015[5] the Applicant applied for an increase in disability pension[6] stating as to the question, “ … which of your accepted disabilit[ies] have become worse since they were last assessed and in what way: all my conditions have become worse”[7]. In that form received on 30 November 2015 the Applicant stated[8]:
“Employment ...
Are your injuries or diseases affecting your employment, or ability to seek employment? (Including capacity to undertake self-employment) Yes
Are you currently employed? (Including self-employment) No
When did you cease employment? 01/03/2013
What is the type of work you performed for your most recent employment Manager
[5]           T43, page 238.
[6]           T43, page 238.
[7]           T43, page 239.
[8]           T43, pages 239-240.
What were the reasons for your ceasing work, or working reduced hours I ceased work due to my service related conditions.
Latest employment details
Type of employment Other
Employer’s name Royal Queensland Aero Club
Employer’s address Beaty Road Archerfield Aerodrome, Archerfield, 4108, QLD, Australia …
Lifestyle
As you are applying for a liability for an injury or disease under the Veterans’ Entitlements Act 1986 (VEA), or are [you] applying for an increase in disability pension [and] we need to know your lifestyle rating to assess any pension that may be payable.
Your lifestyle rating is based on the effects of your accepted or newly claimed disabilities on four aspects of your lifestyle.
These aspects are:
·personal relationships;
·mobility;
·recreational and community activities; and
·domestic and employment activities.
Please select your preferred Lifestyle rating option Option 2 – DVA will allocate an average rating based on your level of medical impairment.”
Previously, by a claim form received on 15 November 2002…

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: [2020] AATA 4725
Decision Date: 26 November 2020

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision concerning the Applicant's claim for a disability pension at a rate higher than the general rate under the *Veterans' Entitlements Act 1986* (Cth). The Applicant, a former member of the Royal Australian Air Force with extensive service involving Mirage and F-111 aircraft, had applied for an increase in his disability pension, asserting that all his accepted conditions had worsened and were affecting his ability to work. He had ceased employment as a manager in March 2013 due to his service-related conditions.

The central legal issue before the Tribunal was whether the Applicant met the criteria for the special rate of pension as stipulated in section 24(1)(b) and (c) of the Act. Specifically, the Tribunal had to determine if the Applicant was totally and permanently incapacitated, meaning his incapacity from war-caused injury or disease alone rendered him incapable of undertaking remunerative work for more than 8 hours per week, and if he was prevented by reason of that incapacity alone from continuing remunerative work he was undertaking, thereby suffering a loss of earnings he would not otherwise have experienced.

The Tribunal reasoned that the Applicant satisfied the requirements of section 24(1)(c) of the Act. It found that the Applicant's incapacity from war-caused injury or disease alone prevented him from continuing the remunerative work he was undertaking. Consequently, he was suffering a loss of salary or wages, or earnings on his own account, which he would not have incurred if he were free from that incapacity.

Based on this reasoning, the Tribunal varied the decision under review, ordering that the Applicant be additionally entitled to the special rate of pension pursuant to section 24 of the Act.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The Applicant seeks a review of the decision that a disability pension is not payable above the general rate in accordance with the Veterans’ Entitlement Act 1986 (Cth) (“the Act”)[1]. [1] Transcript, 17 July 2020, P-3 lines 19 and 20; T2, pages 3 - 21.BACKGROUND The Applicant served in the Royal Australian Air Force from 15 March 1976[2] for 29 years[3]. During the Applicant’s service, the Applicant spent 4 years working around the Mirage aircraft and 20 years on the F-111 aircraft[4].[2] T5, page 39.[3] Exhibit 3, paragraph 4. [4] Exhibit 3, paragraph 4. By an online lodgement form received on 30 November 2015[5] the Applicant applied for an increase in disability pension[6] stating as to the question, “ … which of your accepted disabilit[ies] have become worse since they were last assessed and in what way: all my conditions have become worse”[7]. In that form received on 30 November 2015 the Applicant stated[8]:“Employment ...Are your injuries or diseases affecting your employment, or ability to seek employment? (Including capacity to undertake self-employment) YesAre you currently employed? (Including self-employment) NoWhen did you cease employment? 01/03/2013What is the type of work you performed for your most recent employment Manager[5] T43, page 238.[6] T43, page 238.[7] T43, page 239.[8] T43, pages 239-240. What were the reasons for your ceasing work, or working reduced hours I ceased work due to my service related conditions.Latest employment details Type of employment OtherEmployer’s name Royal Queensland Aero ClubEmployer’s address Beaty Road Archerfield Aerodrome, Archerfield, 4108, QLD, Australia …LifestyleAs you are applying for a liability for an injury or disease under the Veterans’ Entitlements Act 1986 (VEA), or are [you] applying for an increase in disability pension [and] we need to know your lifestyle rating to assess any pension that may be payable.Your lifestyle rating is based on the effects of your accepted or newly claimed disabilities on four aspects of your lifestyle.These aspects are:·personal relationships;·mobility;·recreational and community activities; and·domestic and employment activities.Please select your preferred Lifestyle rating option Option 2 – DVA will allocate an average rating based on your level of medical impairment.” Previously, by a claim form received on 15 November 2002 the Applicant made a claim for a disability pension for disabilities that had not yet been accepted as service related[9]. The Applicant had not claimed a disability or service pension before that claim form received on 15 November 2002[10]. The Applicant by that claim form received on 15 November 2002 claimed as to the left knee[11], tinea[12], skin damage[13], cervical neck pain[14] and ‘tongue tingling related to radio-frequency exposure when maintaining the F-111 aircraft’[15]. [9] T4, page 30.[10] T4, page 30.[11] T4, page 31.[12] T4, page 32.[13] T4, page 32.[14] T4, page 33.[15] T4, page 33.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Section 24 of the Act therefore applies, in that the Applicant is, by reason of incapacity from war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the Applicant was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his own account, that the Applicant would not be suffering if the Applicant were free of that incapacity[144]. [144] Section 24(1)(c) of the Act.DECISION The decision under review is varied with the Applicant to additionally receive the special rate pursuant to section 24 of the Act.

Ratio Decidendi

Legal Principle Established

The contention between the parties was particularised at the hearing as being whether or not the Applicant satisfied specifically s 24(1)(b) and (c) of the Act[60]. [60] Transcript, 17 July 2020, P-8, lines 6-10.CONSIDERATION Section 24 of the Act relevantly states[61]: [61]Compilation No. 162, registered on 5 May 2020. The current compilation of the Act is No. 164, registered on 1 October 2020. Section 24 has the following legislative history: s 24 am No 106, 1986; No 134, 1988; No 228, 1992; No 98, 1994; No 157, 1997; No 52, 2004 (as am by No 89, 2007); No 66, 2007; No 174, 2015; No 59, 2017. “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 reason of incapacity from that war‑caused injury or war‑caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and (d) section 25 does not apply to the veteran(2) For the purpose of paragraph (1)(c): (a) a veteran who is incapacitated from war‑caused injury or war‑caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if:(i) the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war‑caused injury or war‑caused disease, or both; or(ii) the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; and (b) where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking.”