Smith and Repatriation Commission (Veterans’ entitlements) - [2015] AATA 774

Smith and Repatriation Commission (Veterans’ entitlements) [2015] AATA 774 (6 October 2015)

Division

VETERANS' APPEALS DIVISION

File Number(s)

2015/1605

Re

Ernest Smith

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal
Dr Damien Cremean

Date 6 October 2015

Place Melbourne
The Tribunal affirms the decision under review.

....................[sgd]............................
Dr Damien Cremean
VETERANS AFFAIRS — War-caused injury or disease − Extreme Disablement Allowance − Impairment Tables.
Legislation
Veterans’ Entitlements Act 1986 (Cth) section 22(4)
Secondary materials
Guide to the Assessment of Rates of Veterans Pensions
Cases
Hall v Repatriation Commission (1994) 33 ALD 454
REASONS FOR DECISION
Dr Damien Cremean
6 October 2015

On 15 May 2013 the Applicant lodged a claim for increase of pension with the Respondent, who refused the request on 7 June 2013.
On 25 June 2013 the Applicant requested a review of the Respondent’s decision by the Veterans’ Review Board (the Board). The Board affirmed the original decision on 11 March 2015 and the Applicant’s pension was continued at 100 percent of the General Rate.
On 7 April 2015 the Applicant, who is aged over 65 years, applied to this Tribunal for review of the Board’s decision.
The Applicant contends that he is entitled to the Extreme Disablement Adjustment Rate (EDA).
The eligibility criteria for EDA are set out in s 22(4) of the Veterans’ Entitlements Act 1986 (Cth). EDA is payable if:
(a)either
(i)the degree of incapacity of a veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be 100% or has been so determined by a determination that is in force; or
…
(bthe veteran has attained the age of 65;
(c)the veteran has an impairment rating of at least 70 points and a lifestyle rating of at least 6 points, each determined in accordance with the approved Guide to the Assessment of Rates of Veterans’ Pensions.
The single issue to be determined is whether the Applicant has a lifestyle rating of at least 6 points under the Guide to the Assessment of Rates of Veterans’ Pensions (GARP) − that is, whether he satisfies the latter part of s 22(4)(c). The remainder of s 22(4) is not in issue.
I agree with the Respondent that the assessment period commenced on 15 May 2013 and continued until the date of the Tribunal’s decision. (See Hall v Repatriation Commission (1994) 33 ALD 454.) In accordance with s 120(4) of the Act, any assessment or reassessment of a rate of pension must be determined to my reasonable satisfaction, that is, on the balance of probabilities.
At the hearing Ms Piggott, counsel for the Applicant, and Mr Rudge, appearing for the Respondent, traversed many matters which it is unnecessary for me to repeat in detail here.
The Applicant’s claim arises out of periods of service in Vietnam. He has the following accepted disabilities: lumbar spondylosis, alcohol dependence, solar keratosis, bilateral sensorineural hearing loss, bilateral tinnitus, osteoarthritis of the right knee, post-traumatic stress disorder, and asthmatic bronchitis. He also suffers from…

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: [2015] AATA 774
Decision Date: 6 October 2015

CaseChat Overview and Summary

The case between Smith and the Repatriation Commission involved a dispute concerning war-caused injury or disease, specifically focusing on the eligibility for the Extreme Disablement Allowance (EDA). Smith, a veteran, argued that he was entitled to EDA based on his level of disablement, while the Commission maintained that his total points did not meet the threshold for this allowance. The matter was heard by a tribunal, which was tasked with reviewing the Commission’s decision.

The central legal issue before the tribunal was whether Smith's points, as calculated under the relevant impairment tables, met the criteria for EDA. The tribunal had to determine the correct method of calculating the average points from various categories of impairment and compare this to the required threshold of 6 points for EDA. Smith argued for a specific method of calculating the average, which would potentially yield a higher total, whereas the Commission adhered to a different calculation method.

In its reasoning, the tribunal noted that the parties agreed on the application of a 6-point rating. The tribunal calculated Smith’s total points and found them to be 19, which averaged to 4.75-5 points when rounded up. This average fell short of the 6-point requirement for EDA. Even if personal relationships and recreational and community activities were allocated different points, the tribunal found that the result would remain the same. The tribunal upheld the Commission’s decision, finding that Smith did not meet the criteria for EDA.

The tribunal affirmed the Commission's decision, concluding that Smith was not entitled to the Extreme Disablement Allowance. The tribunal's decision was based on the calculation of Smith’s impairment points, which did not meet the necessary threshold under the relevant guidelines.

Orders

Orders of the court

The Tribunal affirms the decision under review.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

As I have noted, it is conceded by the Respondent that the 6 point rating applies.CONCLUSION I find that the Applicant’s points total 19, which works out as a lifestyle rating of 4.75 – 5 points when rounded up as GARP outlines. This is below the 6 points required for EDA. I observe in passing that this result would follow also if personal relationships attracted 5 points and recreational and community activities 6 points. The total would then be 21 and the average 5.25, which taken to the nearest integer is still 5. The decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Division	VETERANS' APPEALS DIVISION
File Number(s)	2015/1605
Re	Ernest Smith
APPLICANT
And	Repatriation Commission
RESPONDENT

Tribunal	Dr Damien Cremean
Date	6 October 2015
Place	Melbourne