Sutton and Repatriation Commission - [2001] AATA 119

DECISION AND REASONS FOR DECISION [2001] AATA 119

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V99/643

VETERANS' APPEALS DIVISION       )
           Re      RICHARD SUTTON
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mrs Joan Dwyer, Senior Member Assoc. Professor J Maynard, Member

Date12 February 2001
PlaceCanberra

Decision      The Tribunal sets aside the decision under review and in substitution varies the decision of the Repatriation Commission made 10 October 1996 to provide that pension is payable to the Veteran, Mr Sutton, at the special rate with effect from 24 April 1996.
  (Sgd) Joan Dwyer
  Senior Member

VETERANS' AFFAIRS – entitlement to special rate pension – veteran under 65 at relevant date – whether veteran entitled to benefit of section 24(2)(b) – decision set aside
Veterans' Entitlements Act 1986 s 24(1)(c)

Repatriation Commission v Sheehy (1995) 39 ALD 286

REASONS FOR DECISION

12 February 2001 Mrs Joan Dwyer, Senior Member Assoc. Professor J Maynard, Member

This matter came on for hearing today. Mr D De Marchi, a solicitor, appeared for Mr Sutton. Mr K Rudge, an advocate with the Department of Veterans' Affairs appeared for the Repatriation Commission.
This was an application for review of a decision of the Repatriation Commission dated 10 October 1996 and affirmed by the Veterans' Review Board on 26 March 1999 which determined that Mr Sutton was entitled to payment of pension at 100% of the General Rate but was not entitled to special rate pension.
The Tribunal had before it the documents ("the T documents") lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") and also the exhibits tendered during the hearing. The Tribunal heard evidence from Mrs Sutton and Brigadier Kahn.
Mr Sutton, who served with great distinction, marked by the award of a Military Cross whilst in Vietnam, was retired from the Army at the age of 50 in 1988 with the rank of Lieutenant Colonel. We accept the evidence of his wife and Brigadier Kahn and find that from the time of his return, after a lengthy period commanding an infantry company, he had problems with alcohol abuse.
We accept Mr De Marchi's description that Mr Sutton was burnt out. We find that is a helpful description. He was burnt out by his service in Vietnam.
It is probable that Mr Sutton would have attained higher rank if not for the alcohol dependence, which was well known within the service. At the relevant time for this assessment, Mr Sutton had a number of accepted disabilities including chronic anxiety state and post traumatic stress disorder. The respondent accepts that the alcohol abuse was a component of that condition on the opinion of Dr Swift, psychiatrist. It is also accepted that Mr Sutton is entitled to pension at 100 per cent of the general rate.
The issue is whether Mr Sutton is entitled to special rate pension under section 24 of the Act. The only subparagraph in issue is paragraph 24(1)(c) which provides as follows.
(1) This section applies…

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 Sutton and Repatriation Commission

Details

AGLC: Sutton and Repatriation Commission [2001] AATA 119
Case: [2001] AATA 119
Decision Date: 12 February 2001

CaseChat Overview and Summary

The case of Sutton and Repatriation Commission involved Richard Sutton, an applicant, and the Repatriation Commission, the respondent. The dispute centered around Sutton's entitlement to a special rate pension under the Veterans' Entitlements Act 1986. The matter was heard and decided by the Administrative Appeals Tribunal (AAT), specifically by Mrs Joan Dwyer, Senior Member, and Assoc. Professor J Maynard, Member. The tribunal reviewed a decision made by the Repatriation Commission on 10 October 1996, which was affirmed by the Veterans' Review Board on 26 March 1999. This decision determined that Sutton was entitled to a pension at 100% of the General Rate but not the special rate pension.

The primary legal issue before the tribunal was whether Sutton qualified for the special rate pension under section 24 of the Act, particularly subparagraph 24(1)(c). This subparagraph pertains to a veteran who, due to war-caused incapacity, is prevented from continuing remunerative work and consequently suffers a loss of earnings. The Repatriation Commission argued that Sutton's inability to work was not solely due to his war-caused disabilities but also because of other conditions, such as Huntington's chorea, which was first noticed in 1994, and other non-accepted conditions. The tribunal needed to decide whether Sutton's war-caused incapacity was the substantial cause of his inability to obtain remunerative work.

The tribunal carefully considered the evidence and submissions from both parties. It was established that Sutton had chronic anxiety, post-traumatic stress disorder, and alcohol abuse, which were well-known within the military service and likely hindered his career progression. The tribunal found that Sutton had made genuine attempts to find work after his discharge from the Army but ultimately failed due to his incapacity from war-caused disabilities. The tribunal concluded that Sutton's war-caused incapacity was indeed the substantial cause of his inability to obtain remunerative work, and thus he qualified for the special rate pension under section 24(2)(b) of the Act. The tribunal set aside the decision under review and varied the Repatriation Commission's decision to provide that Sutton was entitled to the special rate pension from 24 April 1996.

Orders