Russell and Repatriation Commission - [2011] AATA 788

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 788
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/4388

VETERANS' APPEALS DIVISION )

Re DENNIS ANTHONY RUSSELL

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member K Bean
Date8 November 2011
PlaceAdelaide

Decision
The decision under review is set aside and in substitution for that decision the Tribunal decides that Mr Russell is entitled to a pension at the special rate provided for in s 24 of the Veterans’ Entitlements Act 1986 (Cth) with effect from 30 August 2007.

..............................................
K BEAN
(Senior Member)

CATCHWORDS
VETERANS' AFFAIRS – Disability Pension – Whether veteran entitled to pension at special rate – Whether veteran ceased remunerative work by reason of war-caused PTSD condition alone – Whether back injury also contributed to cessation of work – Veteran ceased work and was prevented from working by war-caused PTSD condition alone – Decision under review set aside.
Veterans’ Entitlements Act 1986 ss 19, 21, 24
Cavell v Repatriation Commission (1998) 9 AAR 534
Forbes v Repatriation Commission (2000) 101 FCR 50
REASONS FOR DECISION

8 November 2011   Senior Member K Bean

introduction
1.      The applicant, Mr Russell, joined the Australian Army when he turned 18. He served in Vietnam between February 1971 and September 1971 and saw extensive action.
2.      As a result of his service in Vietnam, Mr Russell is now afflicted with chronic post-traumatic stress disorder (PTSD) which has had an extremely adverse effect on many areas of his life.
3.      In consequence of his war-caused PTSD, Mr Russell has been in receipt of a veteran’s disability pension at 100 percent of the general rate since before 1999. However in 2007, he applied to the respondent to have his rate of pension increased to the special rate on the basis that he had ceased remunerative employment and was unable to engage in remunerative employment by reason of his war-caused PTSD condition, alone.
4.      His application was unsuccessful before the Commission and the Veterans’ Review Board (VRB)[1]. However on 19 September 2008, Mr Russell applied to this Tribunal for review of the decision of the Commission, as affirmed by the VRB, declining to increase his rate of pension to the special rate. Accordingly, in general terms, the issue before me is whether Mr Russell’s rate of disability pension should be increased to the special rate.
[1] T2/3
legislation and issues
5. In order to establish that he is entitled to be paid disability pension at the special rate, Mr Russell must demonstrate that he satisfied all of the requirements of s 24 of the Veterans’ Entitlements Act 1986 (the VE Act) at some point during the assessment period. For the purposes of this matter, the assessment period is the period between when Mr Russell first lodged his claim on 30 August 2007[2] and the date of this Tribunal’s decision[3].
[2] T3/9-23
[3] S 19(9), VE Act
6. Section 24 of the VE Act relevantly provides as follows:
“24      Special rate of pension

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 Russell and Repatriation Commission

Details

AGLC: Russell and Repatriation Commission [2011] AATA 788
Case: [2011] AATA 788
Decision Date: 8 November 2011

CaseChat Overview and Summary

In the case of Russell and Repatriation Commission, the primary issue was whether the veteran, Mr Russell, was entitled to a disability pension at a special rate under the Veterans’ Entitlements Act 1986. The dispute arose because the Repatriation Commission had determined that Mr Russell was not entitled to the special rate of pension, instead granting him an ordinary rate pension. The matter was brought before the Federal Court of Australia, which was tasked with determining the correct rate of pension entitlement for Mr Russell.

The court was required to decide if Mr Russell was entitled to a special rate pension due to his war-caused Post-Traumatic Stress Disorder (PTSD) condition, or whether other factors, such as a back injury, contributed to his cessation of remunerative work. The statutory provisions at issue were sections 19, 21, and 24 of the Veterans’ Entitlements Act 1986, which outline the criteria for determining the rate of disability pension. The court also considered relevant case law, including Cavell v Repatriation Commission and Forbes v Repatriation Commission, to interpret the statutory provisions correctly.

The Federal Court found that Mr Russell was indeed entitled to a pension at the special rate as provided for in section 24 of the Veterans’ Entitlements Act 1986. The court concluded that Mr Russell had ceased his remunerative work and was prevented from working solely due to his war-caused PTSD condition, and that this was the sole reason for his cessation of employment. The back injury did not contribute to his inability to work, and therefore, the Repatriation Commission's decision to grant an ordinary rate pension was set aside. The court ordered that Mr Russell be entitled to a pension at the special rate with effect from 30 August 2007.

Orders

Orders of the court

The decision under review is set aside and in substitution for that decision the Tribunal decides that Mr Russell is entitled to a pension at the special rate provided for in s 24 of the Veterans’ Entitlements Act 1986 (Cth) with effect from 30 August 2007.

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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VETERANS' APPEALS DIVISION		)
Re		DENNIS ANTHONY RUSSELL