Watkins and Repatriation Commission - [2011] AATA 918

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 918
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/3204

VETERANS APPEALS DIVISION )

Re JOHN RAYMOND WATKINS

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Regina Perton
Date21 December 2011
PlaceMelbourne

Decision The Tribunal affirms the decision under review.
........................[sgd]......................
Member

VETERANS’ AFFAIRS ‑ pension at special rate – whether war‑caused conditions alone cause of inability to work – reason why applicant stopped working – decision affirmed
Veterans’ Entitlements Act 1986 ss 24(1)(a)(b)(c), 24(2)(a)
Flentjar v Repatriation Commission (1997) 48 ALD 1
Forbes v Repatriation Commission (2000) 101 FCR 50
Repatriation Commission v Alexander (2002) 75 ALD 329
REASONS FOR DECISION

21 December 2011 Regina Perton, Member

1.       John Watkins, who is 65 years old, served in the Royal Australian Navy for nine years which included operational service in Vietnam. Mr Watkins currently receives a service disability pension at 100 per cent of the general rate. He suffers from multiple medical conditions, of which bilateral sensorineural hearing loss with tinnitus, osteoarthrosis of the right ankle and foot, solar keratosis, post-traumatic stress disorder (PTSD) and alcohol dependence have been accepted by the Repatriation Commission (the Commission) as having been war‑caused.
2.       Mr Watkins is seeking a special rate pension, which is a higher rate of pension paid to a working-age recipient who is unable to work due to his accepted disabilities alone.
3.       Mr Watkins lodged a claim for increase in pension on 31 July 2009, shortly before his 64^th birthday. On 29 October 2009, the Commission decided that Mr Watkins’s rate of pension should remain at 100 per cent of the general rate and that he was not eligible for a special rate of pension because he did not cease work due to his accepted war-caused disabilities alone. On 21 June 2010, the Veterans’ Review Board (VRB) agreed with the Commission. Mr Watkins then lodged an application for review of the VRB decision with this Tribunal on 30 July 2010.
4.        In deciding whether Mr Watkins is eligible for pension at the special rate, the Tribunal needs to consider:
·Is Mr Watkins unable to work for more than 8 hours per week?
·When and why did Mr Watkins stop working?
·Do Mr Watkins’s accepted war-caused conditions alone prevent him from working?

Is Mr Watkins unable to work for more than 8 hours per week?
5.       Based on the medical evidence, the parties agree that Mr Watkins is unable to undertake remunerative work for more than 8 hours per week.   The Tribunal concurs.
When and why did Mr Watkins stop working?
6.       In his written and oral evidence Mr Watkins stated that he left school at the age of 14 years. After leaving school, Mr Watkins worked as a delivery boy for about two years and then as a car detailer for 18 months. He then enlisted in the navy serving for nine years which included operational service.
7.       After leaving the navy in November 1972, he joined the Melbourne…

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 Watkins and Repatriation Commission

Details

AGLC: Watkins and Repatriation Commission [2011] AATA 918
Case: [2011] AATA 918
Decision Date: 21 December 2011

CaseChat Overview and Summary

The case of Watkins and Repatriation Commission involved the applicant, who was seeking to have his pension assessed at a special rate, contending that his inability to work was solely due to conditions caused by his war service. The matter was heard by the Administrative Appeals Tribunal. The Tribunal's role was to review the decision of the Repatriation Commission, which had previously determined that the applicant's inability to work was not solely attributable to war-caused conditions.

The central legal issues before the Tribunal were whether the applicant's inability to work was solely due to war-caused conditions, and if so, whether this would entitle him to a pension at the special rate. The Tribunal needed to examine the evidence provided by the applicant and assess the reasons he provided for stopping work to determine if these reasons were exclusively linked to his war service.

In delivering its decision, the Tribunal thoroughly reviewed the evidence and found that while the applicant had conditions caused by his war service, these were not the sole reason for his inability to work. The Tribunal concluded that the applicant's decision to cease working was influenced by other factors, such as personal circumstances and health issues unrelated to his war service. Consequently, the Tribunal affirmed the decision of the Repatriation Commission, holding that the applicant was not entitled to a pension at the special rate.

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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VETERANS APPEALS DIVISION		)
Re		JOHN RAYMOND WATKINS