Williamson and Repatriation Commission

[2000] AATA 253

DECISION AND REASONS FOR DECISION [2000] AATA 253

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q1998/1338

VETERANS' APPEALS  DIVISION       )          
           Re      BARRY EDGAR WILLIAMSON  
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal       Mr. D.W. Muller, Senior Member

Date16 March 2000

PlaceBrisbane

Decision      The Tribunal affirms the decision under review.

.............(Signed).................................
  D.W. MULLER
  SENIOR MEMBER
CATCHWORDS
VETERANS' AFFAIRS – Special Rate – remunerative work – loss of income
Veterans' Entitlements Act 1986: s.24

REASONS FOR DECISION

16 March 2000        Mr. D.W. Muller, Senior Member             

1. This is an application by Barry Edgar Stanley Williamson for a review of a decision to refuse to pay disability pension at a rate above 100 per cent.  He seeks the special rate pension.

2. Mr. Williamson served in the Royal Australian Air Force for 21 years.

3. In the late 1960s, Mr. Williamson was based at Amberley in Queensland.  He bought a house in Ipswich, near Amberley.

4. At about the same time as he bought the house at Ipswich, Mr. Williamson bought a small house and seven blocks of land on Macleay Island in Moreton Bay.  He saw that idyllic setting as a place to which he may eventually retire, but, to be used as a recreational retreat in the meantime.

5. Mr. Williamson retired from the RAAF in 1977.  Shortly after his retirement, he bought three flats at Wynnum – a seaside suburb of Brisbane on Moreton Bay.  Mr. Williamson bought the three flats at Wynnum with a view to renting them to tenants.

6. In 1978, Mr. Williamson did a hospitality course.  He intended to get into the hospitality/catering/tourist industry.

7. Before and after doing the hospitality course, Mr. Williamson did some work which he described as "work experience".  He worked at Palm Cove in North Queensland and at a ski resort in Queenstown, New Zealand.  He also had work experience at a motel in Toowoomba.  He would travel from Ipswich to Toowoomba, work for three or four days at the motel at Toowoomba, stay overnight there and then return to Ipswich.

8. Following upon the hospitality course and the three lots of work experience – that is, the Palm Cove, the Queenstown and the Toowoomba experience – Mr. Williamson decided that he would not really be able to work for somebody else.   In fact, he never actually applied for a job in the hospitality industry.  He never applied for remunerative work.

9. He decided to concentrate on his three flats at Wynnum from about 1979 onwards.  He decided that he would renovate the flats and do the maintenance work on them himself.  Initially, he lived in Ipswich in the house that he had bought in the late 1960s and travelled to the flats at Wynnum – how often, I am unable to tell from the evidence, but as often as three flats would need for maintenance.

10. In 1984 Mr. Williamson sold his house at Ipswich.  For a time, he lived on Macleay Island and commuted back and forward to the mainland.

11. In 1987 Mr. Williamson moved into one of the flats, unit number two.  He lived there for about eight years until 1995.  Throughout that period he would work at the flats for a time on various projects and then he would retire to Macleay Island.  He was very vague as to how long he spent at the unit and how long he spent on Macleay Island during that period.  It seems that he might spend a week or so at the flats doing a specific project and then whilst he waited for more money to come in  (until he accumulated some money to buy materials), he would spend his time on Macleay Island, perhaps for three or four weeks.  That seemed to be the pattern for the eight years.

12. In 1995, Mr. Williamson developed severe post traumatic stress disorder.  He rented out unit two and went to live permanently on Macleay Island, again pottering back and forth to do small maintenance jobs like mowing and odds and ends that he was able to cope with.  He has not yet had to employ tradesmen, but he may well have to do so in the future if any large jobs come up or any jobs that a qualified tradesman must do, such as plumbing or electrical wiring.

13. The claim is that for 15 years, that is from about 1980 to about 1995, he did remunerative work in that he worked at his business investment of the three flats at first, which became two flats when he took one for himself and then three flats again when he went to live on Macleay Island.  From 1995 onwards he has been unable to do that remunerative work and he has suffered a loss as a result.

14. It is my view that Mr. Williamson retired in 1977.  He may have had some ideas of doing something in the hospitality industry but he decided that he would concentrate on his flats instead.  I believe that one of the main reasons why he did not work during the 15 years or so from 1980 to 1995 and from then on, is that he retired from the RAAF.  He got out of the workforce.

15. I do not regard pottering around three units, two units and then three units for 15 years as remunerative work within the meaning of that term in section 24. It amounts to looking after an investment. In any event there has been no loss of income, salary or wages because when he rented out unit two his income in fact increased quite substantially. So he does not satisfy section 24(1)(c). He is not entitled to the special rate pension.

16. The decision under review is affirmed.

    I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of Mr. D.W. Muller, Senior Member

    Signed:         .....................................................................................
               R. Hayes, Associate

    Date/s of Hearing  16 March 2000
    Date of Decision  16 March 2000
    Applicant  Mr. B. Richards
    Respondent  Mr. R. Morison, departmental advocate