Withers and Repatriation Commission (Veterans' entitlements)

Withers and Repatriation Commission (Veterans' entitlements) [2024] AATA 30 (18 January 2024)

Division:VETERANS’ APPEALS DIVISION

File Number(s)           2022/6489

Re:Ernest Withers  

APPLICANT

Repatriation CommissionAnd  

RESPONDENT

INTERLOCUTORY DECISION

Tribunal:Mr S. Webb, Member

Date:18 January 2024

Place:Canberra

Application refused.

…[SGD]……………………………………………………………………………………
Mr S. Webb, Member

Catchwords

VETERANS ENTITLEMENTS – defence caused disease – degree of incapacity – rate of pension determined at 100 percent of the general rate – claim for increase in rate of pension – intermediate rate – special rate – extreme disablement adjustment – applicable impairment and lifestyle rating thresholds – conjunctive criteria – ‘alone’ tests – application to narrow issues refused

Legislation

Administrative Appeals Tribunal Act 1975, ss 25, 43
Veterans’ Entitlements Act 1986, ss 5D, 21A, 22, 23, 24, 68, 70, 73, 120, 120B

Cases

Flentjar v Repatriation Commission [1997] FCA 1200

Repatriation Commission v Richmond [2014] FCAFC 124

Smith v Repatriation Commission [2014] FCAFC 53

Summers v Repatriation Commission [2015] FCAFC 36

Mr S. Webb, Member

17 January 2024

1. Ernest Withers served in the Royal Australian Air Force. He has accepted defence-caused diseases which result in incapacity, in respect of which he was paid a compensatory pension. Mr Withers claimed an increase in the rate of pension. The Repatriation Commission (Commission) determined he is entitled to 100 percent of the general rate of pension. Mr Withers requested review by the Veterans Review Board (VRB). The VRB decided to affirm the Commission’s decision. Mr Withers applied to the Tribunal for review.

2. In the course of the proceedings, Mr Withers’ advocate, James Wain, applied to the Tribunal under s 25 of the Administrative Appeals Tribunal Act 1975 (AAT Act) to narrow the scope of the review to issues under s 24(2)(b) of the Veterans’ Entitlements Act 1986 (VE Act).

3. It is this issue, alone, that is the subject of this interlocutory decision.

4. In order to resolve the issue, it is not necessary to discuss the background facts of the case in any detail as the issue raised turns on a question of statutory construction.

5. The relevant key facts are:

   (a)Mr Withers has ‘defence service’ as defined in s 68 of the VE Act from 21 July 1980 to 13 November 1990;

   (b)he has incapacity from the following accepted defence-caused diseases[1]:

   [1] See definitions in s 5D of the VE Act.

   (i)Osteoarthritis affecting both knees; and

   (ii)Lumbar spondylosis;

   (c)he has other conditions which are not accepted as defence-caused, including:

   (i)Torticollis; and

   (ii)Osteoarthritis affecting both shoulders;

   (d)on 7 June 2021, Mr Withers lodged a claim for an increase in the rate of his pension;

   (e)on 31 August 2021, the Commission decided to increase the rate of his pension to 100 percent of the general rate;

   (f)on 29 September 2021, Mr Withers applied for review of this decision by the VRB;

   (g)on 28 June 2022, the VRB decided to affirm the Commission’s decision;

   (h)on 4 August 2022, Mr Withers lodged an application for review of this decision by the Tribunal…