Sisley and Repatriation Commission (Veterans' entitlements)

This matter concerned an application for review by the applicant, Mr Sisley, against a decision of the Repatriation Commission. The dispute centred on whether Mr Sisley was entitled to receive a disability pension at the intermediate or special rate, rather than the general rate he was receiving. The applicant had several conditions accepted as war-caused, including post-traumatic stress disorder, sensorineural hearing loss, and osteoarthrosis of the shoulder and knees. The decision under review, made by the Repatriation Commission on 14 February 2017, had reduced the applicant's pension to 80% of the general rate. This decision was made following a remittal of the matter to the Commission by the Administrative Appeals Tribunal.

The primary legal issues before the Tribunal were whether the applicant met the criteria for the special rate of pension under section 24 of the *Veterans’ Entitlements Act 1986* (Cth). Specifically, the Tribunal was required to determine if the applicant was totally and permanently incapacitated, meaning his incapacity from war-caused conditions alone rendered him incapable of undertaking remunerative work for more than 8 hours per week, as per section 24(1)(b). Crucially, the Tribunal also had to consider whether the applicant was, by reason of his war-caused conditions alone, prevented from continuing remunerative work he was undertaking and suffering a loss of earnings, as stipulated in section 24(1)(c). The Tribunal also needed to assess whether any ameliorating provisions within section 24(2) of the Act applied to the applicant's circumstances.

The Tribunal found that the applicant did not meet the requirements for the special rate of pension. While the respondent conceded that the applicant met the criterion in section 24(1)(b) regarding his inability to work more than 8 hours per week due to PTSD, the Tribunal determined that the applicant failed the "alone test" under section 24(1)(c). This test requires that the war-caused incapacity *alone* must be the reason for being prevented from continuing remunerative work and suffering a loss of earnings. The Tribunal noted that the Commission considered significant non-accepted disabilities, such as oral squamous cell cancer, colon cancer, hypertension, and cardiac issues, as contributing factors to the cessation of the applicant's employment. Furthermore, the Tribunal found that the ameliorating provisions in section 24(2) did not apply, as the applicant had not been actively seeking work since his employment ceased.

Consequently, the Tribunal affirmed the decision of the Repatriation Commission dated 14 February 2017, which reduced the applicant's disability pension to 80% of the general rate. The applicant was therefore not entitled to receive the pension at either the intermediate or special rate.