Smith and Repatriation Commission

[2003] AATA 463

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 463

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2001/714

VETERANS' APPEALS DIVISION		)
Re		CHRISTOPHER OSBORN SMITH

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Dr EK Christie, Member

Date23 May 2003 

PlaceBrisbane

Decision The decision under review is set aside and in substitution thereto, the Tribunal decides that Mr Smith is entitled to pension payable at the Special Rate.   

(Sgd) EK Christie
  Member

CATCHWORDS

VETERANS’ ENTITLEMENTS  - disability pension – whether applicant entitled to special rate – whether applicant totally and permanently incapacitated – capacity to undertake remunerative work – whether applicant prevented from continuing to undertake remunerative work by reason of war-caused incapacity alone – whether accepted service-related conditions ‘substantial cause’ of inability to engage in remunerative work – whether genuinely seeking to engage in remunerative work.

Veterans’ Entitlements Act 1986 ss 24(1)(b), 24(1)(c), 24(2)(b), 28(a), 28(b), 28(c)

Re Hornery and Repatriation Commission (1998) 52 ALD 317
Chambers v Repatriation Commission (1995) 12 ALR 219
Re Bos and Defence Forces Retirement and Death Benefits Authority (1977) 1 ALD 31
Forbes v Repatriation Commission (2000) 101 FCR 50
Flentjar v Repatriation Commission (1997) 48 ALD 1

Re Starcevich and Repatriation Commission (1986) 10 ALN 202 
Re Doyle and Repatriation Commission (1986) 47 ALD 187
Jackman v Repatriation Commission [1997] FCA 564
Cavell v Repatriation Commission (1988) 9 AAR 534
Hall v Repatriation Commission (1994) 33 ALD 454
Hendy v Repatriation Commission [2002] FCA 602
Rendell v Repatriation Commission [2001] FCA 1881
Byrne v Repatriation Commission [2001] FCA 1134

REASONS FOR DECISION

23 May 2003  Dr EK Christie, Member     

1.      This is an application by Christopher Smith to review a decision of the Veterans’ Review Board (the “VRB”) made on 12 July 2001 that decided that pension for Mr Smith be assessed at 70% of the General Rate, with effect from 11 August 1999.

2.      In reaching its decision the VRB concluded:

“In addressing the requirements of section 24(2)(a)(i), the Board accepts that the applicant was experiencing considerable difficulties in the work place.  It accepts that there was a strong possibility that he was made redundant, rather than other vendors, because of complaints in relation to his behaviour.  However, due to the rationalisation process, it was apparent that one of the four vendors currently operating runs in the area would lose their job.  In other words, all things being equal, the applicant had a 1 in 4 chance of losing his run.

In those circumstances, it would be speculative to suggest that, had the applicant not been suffering from post traumatic stress disorder, he would have maintained his employment.  The Board sympathises with the applicant, who has endeavoured to work full time despite disruptive emotional and behavioural symptoms.  However, the evidence before the Board, to which it must have regard, leads it to the view that it cannot be reasonably satisfied that Mr Smith ceased work because of accepted disabilities alone.”  (Exhibit R1, T2, Folio 7)

3.      At the hearing…