Tunny and Repatriation Commission - [2008] AATA 243

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 243
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/4175

VETERANS' APPEALS DIVISION
)

Re NEVILLE FRANCIS TUNNY

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Dr B McPherson, Deputy President
Mr R G Kenny, Member
Date28 March 2008
PlaceBrisbane

Decision The Tribunal sets aside the decision under review and substitutes its decision that pension is payable at the special rate in accordance with s24 of the Veterans’ Entitlements Act 1986 with effect from and including 2 March 2006.
....................[Sgd]....................
Dr B McPherson
Deputy President

CATCHWORDS
VETERANS’ AFFAIRS – Benefits and Entitlements –veteran in receipt of intermediate rate of pension – subsequent Repatriation Commission acceptance of ischaemic heart disease as war-caused - application for increase in pension – veteran now not able to undertake remunerative work for more than 8 hours per week – veteran prevented from undertaking remunerative work that he was undertaking – veteran suffering a loss of salary or wages or of earnings on his own account –– decision set aside
Veterans’ Entitlements Act 1986 ss 19, 23, 24, 119, 120 and 177
Flentjar v Repatriation Commission (1997) 26 AAR 93
Langley v Repatriation Commission (1993) 17 AAR 487
Hill v Repatriation Commission (2000) FCA 969
Starcevich v Repatriation Commission (1987) 18 FCR 221
Hill and Repatriation Commission [2001] AATA 331.
REASONS FOR DECISION

28 March 2008
  Deputy President B McPherson

Mr RG Kenny, Member

Background
1. On 15 March 2006, the Veterans’ Review Board (the Board) determined that disability pension was payable to Mr Tunny at the intermediate rate in accordance with the terms of s 23 of the Veterans’ Entitlements Act 1986 (the Act). Pension at that rate was paid to him with effect from 20 May 2004. The decision took into account incapacity associated with conditions accepted by the respondent as being war-caused under the Act. These were bilateral sensori neural hearing loss with tinnitus, diabetes mellitus, acquired cataracts in both eyes, post traumatic stress disorder and alcohol abuse. The Board, at that time, also took into account Mr Tunny’s employment history and his capacity to undertake remunerative work.
2. Following a further claim by Mr Tunny on 2 June 2006, a delegate of the Repatriation Commission accepted, on 1 February 2007, ischaemic heart disease as a war-caused disability but continued the assessment of pension at the intermediate rate. In so doing, it determined that he did not qualify for the special rate of pension under s 24 of the Act. That assessment decision was affirmed, on 2 July 2007, by the Board and Mr Tunny seeks further review by the Administrative Appeals Tribunal (the Tribunal).
Issues and Legislation
3.      Matters in issue are to be determined to the Tribunal’s reasonable satisfaction and in accordance with substantial justice and the substantial merits of the case: see s 120(4) and s 119(1) of the Act, respectively. In that process, neither party bears an onus of proof: see s 120(6) of the Act. The procedure to…

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 Tunny and Repatriation Commission

Details

AGLC: Tunny and Repatriation Commission [2008] AATA 243
Case: [2008] AATA 243
Decision Date: 28 March 2008

CaseChat Overview and Summary

Tunny lodged an application for an increase in his pension with the Repatriation Commission, following their acceptance that his ischaemic heart disease was caused by his war service. The Commission had previously assessed Tunny's pension at the intermediate rate, but later acknowledged the condition as war-caused. Tunny, who could not undertake remunerative work for more than eight hours a week due to his condition, sought an increase in his pension to the special rate. The Administrative Appeals Tribunal reviewed the Commission's refusal to increase the pension, focusing on whether Tunny qualified for the special rate under the Veterans’ Entitlements Act 1986.

The legal issues centred on whether Tunny’s incapacity to undertake remunerative work for more than eight hours a week qualified him for the special rate of pension. The Tribunal needed to determine if Tunny’s condition constituted a substantial incapacity as required under the Act, particularly in light of the Commission's acceptance of ischaemic heart disease as war-caused. It was also necessary to consider whether the veteran’s inability to work beyond eight hours per week aligned with the criteria set out in the relevant sections of the Act.

The Tribunal found that Tunny’s condition, as accepted by the Commission, substantially incapacitated him from undertaking remunerative work for more than eight hours a week. It concluded that this met the statutory criteria for the special rate of pension, as outlined in sections 23 and 24 of the Act. The Tribunal also considered precedent cases such as Flentjar, Langley, Hill, and Starcevich, which supported the conclusion that a substantial incapacity to work, even if limited to part-time hours, could warrant the special rate. Consequently, the Tribunal set aside the Commission’s decision and ordered the pension to be paid at the special rate from 2 March 2006.

The final orders of the Tribunal mandated that the decision of the Repatriation Commission be set aside and that the pension be payable at the special rate, effective from 2 March 2006. This outcome reflected the Tribunal’s determination that Tunny’s war-caused ischaemic heart disease met the statutory criteria for the special rate of pension under the Act.

Orders

Orders of the court

The Tribunal sets aside the decision under review and substitutes its decision that pension is payable at the special rate in accordance with s24 of the Veterans’ Entitlements Act 1986 with effect from and including 2 March 2006.

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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VETERANS' APPEALS DIVISION		)
Re		NEVILLE FRANCIS TUNNY