Tokarczyk and Repatriation Commission

[2011] AATA 355

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 355

ADMINISTRATIVE APPEALS TRIBUNAL      )
  )           No 2010/1301

VETERANS' APPEALS DIVISION		)
Re		Ted Tokarczyk

Applicant

And Repatriation Commission

Respondent

DECISION

Tribunal Senior Member A K Britton and Dr M E C Thorpe

Date26 May 2011

PlaceSydney

Decision The decision under review is affirmed

.......................[sgd]..........................

Senior Member A K Britton

CATCHWORDS

VETERANS’ ENTITLEMENTS – pensions – intermediate rate pension – whether war-caused incapacity alone prevents the veteran from undertake remunerative work of 20 hours – decision under review affirmed

Veterans’ Entitlements Act 1986 (Cth) – 19(5C), 19(9), 23(1)(b), 23(1)(c), 28(b), 28(c)

Leane v Repatriation Commission (2004) 81 ALD 625; [2004] FCAFC 83

Defence Force Retirement and Death Benefits Authority v House (1989) 22 FCR 138

Chambers v Repatriation Commission (1995) 55 FCR 9; (1995) 36 ALD 207

REASONS FOR DECISION

Senior Member A K Britton
Dr M E C Thorpe, Member            

1.        Veteran, Mr Ted Tokarczyk, has applied to the Administrative Appeals Tribunal for review of the decision made by the Repatriation Commission, the respondent in these proceedings, and affirmed by the Veterans’ Review Board, to refuse to grant his claim for a pension at the “special rate”. 

2.        Mr Tokarczyk served as a clerk in the Australian Army in Vietnam for just over 12 months, commencing in 1969.  He suffers from an accepted “war-caused disease” namely, post-traumatic stress disorder (PTSD). 

3.        In these proceedings, Mr Tokarczyk amended his original claim and now seeks a pension at the “intermediate rate”. Under the Veterans’ Entitlements Act 1986 (Cth) (the Act) the eligibility criteria for a pension at the “intermediate rate” and “special rate” are identical except that to satisfy the latter the veteran must be incapable of undertaking remunerative work for periods aggregating eight hours per week, while to satisfy the former he or she need only be incapable of undertaking 20 hours of remunerative work per week.

4.        The Commission opposes Mr Tokarczyk’s claim and argues that his long history of exemplary service in the NSW Police Force and more recently as a Returning Officer in the 2011 NSW State Election, is inconsistent with the assertion that he meets the criteria for a pension at the intermediate rate.

background

5.        Mr Tokarczyk is 63 years of age. In 1963 he joined the administrative arm of the NSW Police Force where he worked until called up for National Service in October 1969. After serving in Vietnam for about 12 months he returned to his former role within the NSW Police Force. 

6.        Mr Tokarczyk retired from the NSW Police Force in August 2008 when he reached age 60. On reaching this age he became entitled to a pension at the maximum rate payable under the applicable Police Force scheme — 60 per cent of his pre-retirement salary, as adjusted. Although Mr Tokarczyk’s substantive position was classified as a Grade 7/8, his pre-retirement salary for pension purposes was deemed to be that of a Grade 9/10 employee — the…