Thompson and Repatriation Commission - [2005] AATA 675

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2005] AATA 675
ADMINISTRATIVE APPEALS TRIBUNAL )
)No Q2003/773

VETERANS' APPEALS DIVISION )

Re KEITH THOMPSON

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member P McDermott
Dr GJ Maynard, Member
Date15 July 2005
PlaceBrisbane

Decision
The Tribunal affirms the decision under review.

.................[Sgd].............................
Senior Member

CATCHWORDS
VETERANS’ AFFAIRS – disability pension – special rate – whether the issue of the “remunerative work that the veteran was undertaking” was properly addressed – whether applicant was prevented from working due to war-caused injury or war-caused disease – whether applicant was “genuinely seeking to engage in remunerative work” – “substantial test” – decision under review affirmed.
Veterans’ Entitlements Act 1986 ss 19(5), 23, 24
Flentjar v Repatriation Commission (1997) 48 ALD 1
Forbes v Repatriation Commission (2000) 31 AAR 381; (2000) 58 ALD 394
Peacock v Repatriation Commission [2004] FCA 1449
Repatriation Commission v Braund (1991) 23 ALD 591
Giesen v Repatriation Commission [2005] FCA 846
Hornery and Repatriation Commission (1998) 52 ALD 317
Leane v Repatriation Commission [2003] FCA 889
Fox v Repatriation Commission (1997) 45 ALD 317
Hendy v Repatriation Commission [2002] FCA 602, (2002) 72 ALD 112
REASONS FOR DECISION

15 July 2005
Senior Member P McDermott
Dr GJ Maynard, Member

1.          The applicant, who was born on 31 August 1944, seeks review of a decision made by a delegate of the respondent.
Decision Under Review
2.          The decision was made by a delegate of the respondent on 19 February 2003. In this decision, the delegate determined that bilateral sensorial hearing loss with tinnitus and chronic bronchitis and emphysema were service related. The delegate assessed his pension at 100% of the general rate with effect from 27 August 2002. The claim for chronic gastritis was refused and determined not to be service related. The delegate declined to award the applicant a pension at either the special or intermediate rate. As the applicant was under 65 years of age, the delegate also determined that the applicant was ineligible for the extreme disablement adjustment.
3. The Veteran’s Review Board affirmed the delegate’s decision on 10 June 2003. The Board determined that the applicant is ineligible for pension at the special or intermediate rates: see ss 23 and 24 of the Veterans Entitlement Act 1986 (“the Act”).
4.          The criteria for the special rate is identical to the intermediate rate with the exception that the intermediate rate is based on a criteria that a veteran undertake less than 20 hours per week rather than less than 8 hours per week which is required for the special rate.
Current Issues for Resolution
5.          The claim for chronic gastritis, which was the subject of the decision, was not made before the Veteran’s Review Board.
6.          The applicant claims the special rate of pension: Applicant’s Statement of Facts and Contentions, contention 8. No claim is made for an intermediate rate of pension.
Special Rate of Pension
7. To be entitled to receive a…

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 Thompson and Repatriation Commission

Details

AGLC: Thompson and Repatriation Commission [2005] AATA 675
Case: [2005] AATA 675
Decision Date: 15 July 2005

CaseChat Overview and Summary

The matter before the court involved the applicant, Mr Thompson, appealing a decision by the Repatriation Commission regarding the amount of disability pension he was entitled to receive. The dispute centred on whether Mr Thompson qualified for the special rate of pension due to his inability to engage in remunerative work as a result of his war-caused injury or disease. The court hearing this matter was the Federal Court of Australia.

The primary legal issues that the court had to address were whether the Repatriation Commission had correctly assessed the matter of remunerative work that Mr Thompson was undertaking and whether his inability to work was genuinely due to his war-caused injury or disease. Additionally, the court had to determine if Mr Thompson was genuinely seeking to engage in remunerative work and whether his situation met the substantial test required for the special rate of pension. This involved a review of the relevant legislative provisions under the Veterans’ Entitlements Act 1986 and relevant case law.

In examining the case, the court considered the evidence and submissions provided by both parties. It was noted that the Repatriation Commission had conducted a thorough review and found that Mr Thompson did not meet the criteria for the special rate of pension. The court found that the Commission had properly addressed the issue of remunerative work and that Mr Thompson’s claims regarding his inability to work were not substantiated. The court also held that Mr Thompson was not genuinely seeking to engage in remunerative work, thus affirming the decision under review. The court relied on precedent cases such as Flentjar v Repatriation Commission and Hornery and Repatriation Commission to support its findings.

The court affirmed the decision of the Repatriation Commission, upholding the denial of the special rate of pension to Mr Thompson. The court was satisfied that the Commission had correctly applied the law and that the evidence supported its findings. This decision was in line with the substantial test outlined in the Veterans’ Entitlements Act 1986 and relevant case law.

Orders

Orders of the court

The Tribunal affirms the decision under review.

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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