WALLACE and REPATRIATION COMMISSION - [2010] AATA 602

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 602
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/0436

VETERANS' APPEALS DIVISION )

Re GRAEME WALLACE

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr R G Kenny, Senior Member
Date13 August 2010
PlaceBrisbane

Decision
The Tribunal affirms the decision under review.

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

CATCHWORDS
VETERANS’ AFFAIRS – Veteran’s entitlements – Veteran in receipt of 90% general rate pension – Veteran not able to undertake remunerative work for more than 8 hours per week because of service-related conditions – Veteran not prevented from undertaking remunerative work that he was undertaking because of war-caused conditions alone – Special rate of pension not payable - Intermediate rate of pension not payable - Decision affirmed
Veterans’ Entitlements Act 1986 (Cth) ss 5Q, 14, 15, 19, 22, 23, 24, 119, 120
Flentjar v Repatriation Commission (1997) 26 AAR 93; (1997) 48 ALD 1
Leane v Repatriation Commission (2004) 81 ALD 625
Repatriation Commission v Hendy (2002) 76 ALD 47
REASONS FOR DECISION

13 August 2010 Mr R G Kenny, Senior Member

BACKGROUND
1. On 24 April 2008, Graeme Wallace made a claim under s 14 of the Veterans’ Entitlements Act 1986 (Cth) (the Act) for a disability pension for incapacity from “bowel problems” which, he contended, were related to his service in the Australian Army. He also claimed, under s 15 of the Act, for an increase in the rate of disability pension paid to him under the Act. On 17 December 2008, a delegate of the Repatriation Commission accepted his claim under a diagnosis of irritable bowel syndrome. Mr Wallace’s disability pension was assessed under s 22 of the Act at 90% of the general rate with effect from 24 January 2008. This was in respect of incapacity associated with the newly accepted condition as well as that from the previously accepted conditions of bilateral sensori-neural deafness, refractive error and post traumatic stress disorder. On 17 December 2009, the Veterans’ Review Board (the Board) affirmed the decision relating to the assessment of pension. In so determining, the delegate and the Board were satisfied that Mr Wallace did not qualify for the intermediate or the special rate of pension under s 23 or s 24 of the Act, respectively.
ISSUES AND LEGISLATION
2. 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[1]. In that process, neither party bears an onus of proof[2]. The procedure to be followed is provided for in s 19 of the Act. It requires the rate of pension to be assessed from time to time during the assessment period[3] which is defined as starting on the application day and ending when the claim or application is determined[4]. It is not disputed that the application day in this case was 24 April 2008 or that the assessment period runs from that day until the matter is determined.
[1] See s 120(4) and s…

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 WALLACE and REPATRIATION COMMISSION

Details

AGLC: WALLACE and REPATRIATION COMMISSION [2010] AATA 602
Case: [2010] AATA 602
Decision Date: 13 August 2010

CaseChat Overview and Summary

The case of Wallace and the Repatriation Commission concerns the eligibility of a veteran for an increased pension rate under the Veterans’ Entitlements Act 1986. The veteran, Wallace, receives a 90% general rate pension due to service-related conditions that limit his ability to undertake remunerative work to no more than eight hours per week. The dispute revolves around whether Wallace is entitled to a special or intermediate rate of pension, which would require a finding that his inability to work is solely due to war-caused conditions, rather than service-related conditions.

The primary legal issue before the court was whether Wallace’s incapacity for remunerative work is attributable to war-caused conditions alone, as required by sections 5Q, 14, 15, 19, 22, 23, 24, 119, and 120 of the Veterans’ Entitlements Act 1986. The court had to discern if Wallace's service-related conditions are also contributing factors to his limited work capacity. The relevant precedents, Flentjar v Repatriation Commission and Leane v Repatriation Commission, provided guidance on interpreting these provisions and assessing the veteran's capacity to engage in remunerative work.

The court carefully examined the evidence presented regarding Wallace's health conditions and work capacity. It concluded that Wallace's inability to undertake more than eight hours of remunerative work is due to both service-related and war-caused conditions. Therefore, Wallace did not meet the statutory criteria for a special or intermediate rate of pension, which necessitates that the incapacity be solely due to war-caused conditions. The decision of the Repatriation Commission was affirmed, holding that Wallace remains entitled to the 90% general rate pension. The reasoning underscores the need for a strict interpretation of the legislative criteria for increased pension rates, ensuring that the veteran's conditions are assessed in accordance with the statutory requirements.

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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