Willis and Repatriation Commission - [2011] AATA 67

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 67
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V2009/2907

VETERANS' APPEALS DIVISION )

Re PETER ROBERT WILLIS

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Ms Regina Perton and Dr Roslyn Blakley, Members
Date8 February 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
REASONS FOR DECISION

8 February 2011 Ms Regina Perton and Dr Roslyn Blakley, Members

1.        Peter Willis, who is 60 years old, served in the Australian army for four years and nine months which included operational service in Vietnam. Mr Willis currently receives a service disability pension at 100 per cent of the general rate. He suffers from multiple medical conditions, of which post-traumatic stress disorder (PTSD), bilateral sensorineural hearing loss, bilateral tinnitus, tinea and alcohol dependence have been accepted by the Repatriation Commission (the Commission) as having been war‑caused.
2.        Mr Willis 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 Willis lodged a claim for special rate pension on 30 August 2007. On

12 September 2007, the Commission decided that Mr Willis’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 15 April 2009, the Veterans’ Review Board (VRB) agreed with the Commission. Mr Willis then lodged an application for review of the VRB decision with this Tribunal on 25 June 2009.
4.        In deciding whether Mr Willis is eligible for pension at the special rate, the Tribunal needs to consider:
·Is Mr Willis unable to work for more than 8 hours per week?
·When and why did Mr Willis stop working?
·Do Mr Willis’s accepted war-caused conditions alone prevent him from working?

Is Mr Willis unable to work for more than 8 hours per week?
5. There are differing views among the witnesses as to whether Mr Willis is unable to undertake remunerative work for more than 8 hours per week. There is expert evidence suggesting that he is incapable of doing so while other expert evidence points to him being capable of working for 8 to 12 hours per week. If the Tribunal finds that he meets the “alone” test, the Tribunal would then examine whether special or intermediate rate payments are appropriate.
When and why did Mr Willis stop working?
6. Mr Willis provided a statement dated 24 March 2010 and gave oral evidence. He stated that he left school at the age of 15 years. After…

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 Willis and Repatriation Commission

Details

AGLC: Willis and Repatriation Commission [2011] AATA 67
Case: [2011] AATA 67
Decision Date: 8 February 2011

CaseChat Overview and Summary

Willis, the appellant, appealed against a decision of the first respondent, the Repatriation Commission, that he was not entitled to a pension at the special rate under the Veterans' Entitlements Act 1986 (Cth). The appellant contended that he had stopped working due to war-caused conditions, which alone caused his inability to work. The case was heard and determined by the Social Security Reviewer, who found in favour of the Commission.

The legal issue before the court was whether the appellant's war-caused conditions were the sole cause of his inability to work. The appellant argued that he stopped working due to these conditions and that this was the sole reason for his inability to work. The Commission, on the other hand, argued that the appellant's inability to work was due to a combination of factors, including his war-caused conditions and other health issues. The court had to determine whether the appellant's war-caused conditions were the sole cause of his inability to work, and if so, whether he was entitled to a pension at the special rate.

The court found that the appellant's war-caused conditions were not the sole cause of his inability to work. The court accepted the evidence of the Commission's medical expert, who found that the appellant's other health issues also contributed to his inability to work. The court held that the appellant's war-caused conditions did not alone cause his inability to work, and therefore, he was not entitled to a pension at the special rate. The Tribunal affirmed the decision under review.

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		PETER ROBERT WILLIS