Thomson and Repatriation Commission - [2011] AATA 833

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 833
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/4041

VETERANS' APPEALS DIVISION )

Re David Thomson

Applicant

And

Repatriation Commission

Respondent

DECISION

Tribunal
M D Allen, Senior Member

Dr Haikal-Muktar, Member

Date25 November 2011
PlaceSydney

Decision
The decision under review is AFFIRMED.

.................[sgd].......................
M D Allen, Presiding Member

CATCHWORDS
VETERANS’ ENTITLEMENTS: Whether entitled to pension at the special rate. Ceased employment due to availability of superannuation as well as incapacities so “alone” test not met. Residual capacity to engage in some form of remunerative work. Decision to refuse pension at special rate affirmed.
LEGISLATION
Veterans’ Entitlements Act 1986 s24.
CASES
Cavell v Repatriation Commission (1988) 9 AAR 534
Chambers v Repatriation Commission (1995) 36 ALD 207
REASONS FOR DECISION

25 November 2011 M D Allen, Senior Member

1. By application made 22 September 2010 the Applicant sought review of a decision by the Veterans’ Review Board that increased his pension for incapacity from war-caused injuries and diseases to 100% of the general rate of pension but declined to grant pension at the special rate.
2. The criteria for the grant of pension at the special rate are set out in section 24 of the Veterans’ Entitlements Act 1986 (“VEA”) which section reads inter alia:
(1) This section applies to a veteran if:
(aa) the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab) the veteran had not yet turned 65 when the claim or application was made; and
(a) either:
(i) the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii) the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and

(b) the veteran is totally and permanently incapacitated, that is to say, the veteran's incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and
(c) the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and
(d) section 25 does not apply to the veteran.

(2) For the purpose of paragraph (1)(c):
(a) a veteran who is incapacitated from war-caused injury or war-caused disease, or both,…

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 Thomson and Repatriation Commission

Details

AGLC: Thomson and Repatriation Commission [2011] AATA 833
Case: [2011] AATA 833
Decision Date: 25 November 2011

CaseChat Overview and Summary

The matter involved a claim by Thomson against the Repatriation Commission, seeking to establish eligibility for a pension at the special rate. Thomson had ceased employment due to a combination of superannuation availability and certain incapacities, leading to a dispute over whether the "alone" test for special rate pension eligibility was satisfied. The Federal Court of Australia was tasked with determining the validity of the Repatriation Commission's decision to refuse the pension at the special rate.

The central legal issue was whether Thomson was entitled to a pension at the special rate under the relevant legislative provisions. The court needed to assess if Thomson met the criteria of being unable to engage in any form of remunerative work due to incapacities alone, as required by the legislation. The court had to consider the interplay between the availability of superannuation, the nature of Thomson’s incapacities, and whether these factors precluded him from engaging in any remunerative work at all.

The court examined the statutory language and the factual circumstances of Thomson's situation, including his residual capacity to engage in some form of remunerative work. It found that because Thomson had the capacity to undertake some employment, albeit not at a full-time capacity or in his previous occupation, the "alone" test was not met. The court concluded that the Repatriation Commission's decision to deny the special rate pension was justified based on the evidence presented. The court affirmed the decision of the Commission, holding that Thomson was not solely incapacitated as required by law.

The court's decision was definitive in upholding the Repatriation Commission's refusal to grant the special rate pension to Thomson. The order was to affirm the decision under review, thereby dismissing Thomson's appeal.

Orders

Orders of the court

The decision under review is AFFIRMED.

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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