Williamson and Repatriation Commission - [2004] AATA 1070

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2004] AATA 1070
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2003/199
VETERANS' APPEALS DIVISION

Re: GARY WILLIAMSON
Applicant

And: REPATRIATION COMMISSION
Respondent

DECISION
Tribunal:       Miss E.A. Shanahan, Member
Date:             14 October 2004
Place:            Melbourne
Decision:The Tribunal sets aside the decision under review and substitutes therefor the decision that:
1.the applicant suffers from post traumatic stress disorder with alcohol abuse (the condition);
2.the condition is war‑caused within the meaning of s 9 of the Veterans’ Entitlements Act 1986 (the Act) which entitles the applicant to a disability pension; and
3.at the date of application (24 October 2001) the applicant satisfied the requirements of s 24(1) and s 24(2) of the Act and qualified for the special rate of pension.

(sgd) E.A. Shanahan
Member

VETERANS' AFFAIRS – special rate of pension – alone test – interposed motor vehicle accident – worsening of psychiatric condition – incapacity for work
Veterans’ Entitlements Act 1986 ss 9, 24, 120(4)
Banovich v Repatriation Commission (1986) 69 ALR 395
Byrne v Repatriation Commission (2001) 33 AAR 410
Fox v Repatriation Commission (1997) 45 ALD 317
Re Hornery and Repatriation Commission (1998) 52 ALD 317
Repatriation Commission v Hendy (2002) 76 ALD 47
Sheehy v Repatriation Commission (1996) 66 FCR 569
Starcevich v Repatriation Commission (1987) 18 FCR 221
Van Ewjk v Repatriation Commission [2004] FCA 19
REASONS FOR DECISION
14 October 2004   Miss E.A. Shanahan, Member
1.      This is an application by Gary Williamson (the applicant) for review of a decision of the Veterans’ Review Board (VRB) dated 10 December 2002. The primary decision by a delegate of the Repatriation Commission dated 2 November 2001 had refused the applicant’s application to increase his disability pension from the existing 100 per cent of the general rate to the special rate. The applicant applied to the VRB for review of this decision.
2.      At the VRB hearing on 22 May 2002 the applicant requested an adjournment in order to obtain current specialist assessments of his accepted psychological and respiratory disabilities.
3. At the initial hearing the VRB determined the applicant’s degree of incapacity to be at least 70 per cent, as lung function testing on 19 September 2000 had not revealed any abnormality. (The applicant’s respiratory symptoms had previously been assessed at 36 points by a delegate of the respondent.) The VRB found the applicant satisfied the criterion in s 24(1)(b) of the Veterans’ Entitlements Act 1986 (the Act), at the time of the hearing, but his cessation of full‑time employment had followed a motor vehicle accident in December 1994. The applicant had not worked since that date except for short terms of employment. Thus, the alone test was not satisfied and the applicant was not entitled to pension at the special or intermediate rate. The VRB assessed the pension payable to the applicant at 80 per cent of the general rate.
4.      On 19 February 2003 a delegate of the respondent increased the applicant’s pension rate to 90 per cent of the…

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 Williamson and Repatriation Commission

Details

AGLC: Williamson and Repatriation Commission [2004] AATA 1070
Case: [2004] AATA 1070
Decision Date: 14 October 2004

CaseChat Overview and Summary

The case before the Administrative Appeals Tribunal (AAT) was an application by Gary Williamson (the applicant) for review of a decision of the Veterans’ Review Board (VRB) which had denied his application to increase his disability pension to the special rate. The applicant sought a special rate of pension on the basis that he was incapable of undertaking remunerative work for periods aggregating more than 8 hours per week solely because of his war-caused disabilities. The primary issue before the Tribunal was whether the applicant met the "alone test" in s 24(1)(c) and s 24(2)(a)(i) of the Veterans’ Entitlements Act 1986 (the Act), which requires that the cessation of work must be solely due to war-caused disabilities. The Tribunal found that the applicant's degree of incapacity was at least 70% and that he was currently incapable of undertaking remunerative work for periods aggregating more than 8 hours per week. The Tribunal held that the applicant's accepted disabilities of post traumatic stress disorder (PTSD) and alcohol abuse prevented him from working. The Tribunal set aside the decision under review and substituted therefor the decision that the applicant was entitled to a disability pension at the special rate.

Orders