Valliant and Repatriation Commission

[2010] AATA 941

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 941

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/5276

VETERANS’ APPEALS DIVISION		)
Re		John Valliant

Applicant

And Repatriation Commission

Respondent

DECISION

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

Date24 November 2010

PlaceSydney

Decision The decision under review is affirmed

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

Senior Member

CATCHWORDS

VETERANS’ ENTITLEMENTS – pensions – special rate pension – intermediate rate pension – “alone” test – whether full-time and part-time work in same job different forms of “remunerative work the veteran was undertaking” – ameliorate provisions – reason veteran ceased work

Veterans’ Entitlements Act 1986 (Cth) – ss 19, 23, 24, 28

Banovich v Repatriation Commission (1986) 69 ALR 395

Starcevich v Repatriation Commission (1987) 18 FCR 221

Defence Force Retirement and Death Benefits Authority v House (1989) 91 ALR 286

Chambers v Repatriation Commission (1995) 36 ALD 207

Owen v Repatriation Commission (1995) 38 ALD 241

Flentjar v Repatriation Commission (1997) 48 ALD 1

Carter v Repatriation Commission [2001] FCA 992

Repatriation Commission v Haskard (2002) 126 FCR 1

Repatriation Commission v Hendy (2002) 76 ALD 47

Re Mitchell and Repatriation Commission [2007] AATA 2087

REASONS FOR DECISION

24 November 2010 Senior Member A K Britton
Dr M E C Thorpe, Member            

1.      Veteran, Mr John Valliant has made a claim under the Veterans’ Entitlements Act 1986 (Cth) (the Act) for a pension at the “special rate” or, in the alternative, the “intermediate rate”. He served in the Australian Army from 1968 to 1973, including ten months active service in Vietnam. He contends that he meets the criteria for a special rate pension, in that he is incapacitated for work because of his accepted “war-caused” conditions — post traumatic stress disorder (PTSD), bilateral hearing loss and atopic dermatitis.

2.      In August 2008, the Repatriation Commission, the respondent in these proceedings, increased Mr Valliant’s pension to 90 per cent of the general rate, but refused his claim for payment at the “special rate”.. The Veterans’ Review Board affirmed that decision. Mr Valliant has now applied to the Administrative Appeals Tribunal for review of that decision.

3.      The Commission opposes Mr Valliant’s claim, and argues that his accepted conditions are not of such severity as to render him incapacaple of working eight hours per week or to prevent him from engaging in remunerative employment that he had been undertaking.

Eligibility criteria for Special Rate pension

4.      Section 24 of the Act sets out several criteria that must be satisfied before a pension is payable at the “special rate”. It is agreed that all but those specified in ss 24(1)(b) and 24(1)(c) are satisfied:

(1) This Section applies to a veteran if:

...

(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…