Archer and Repatriation Commission [2000] AATA 45 (28 January 2000)

Last Updated: 15 February 2000

DECISION AND REASONS FOR DECISION [2000] AATA 45

ADMINISTRATIVE APPEALS TRIBUNAL )

) No T1998/101

VETERANS' APPEALS DIVISION )

Re JOHN FRANCIS ARCHER

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr C P Webster (Senior Member)

Date 28 January 2000

Place Hobart

Decision The decision of the Repatriation Commission dated 1 December 1997 is affirmed.

[Sgd C P Webster]

Senior Member

CATCHWORDS

Veterans' Entitlements - special rate of pension.

Veterans' Entitlements Act 1986 - s.24

REASONS FOR DECISION

28 January 2000 Mr C P Webster (Senior Member)

1. John Francis Archer ("the applicant") seeks a review of a decision of a delegate of the Repatriation Commission ("the respondent") dated 1 December 1997 which assessed pension payable at 100% of the General Rate.

2. The sole question to be determined is whether the applicant is entitled to be paid a pension at a special rate under s.24 of the Veterans' Entitlements Act 1986 ("the Act").

3. The respondent has agreed that the applicant satisfies a number of eligibility criteria for the payment of a pension at a special rate.

4. The main issues in dispute are:

(a) whether the applicant is totally and permanently incapacitated by virtue of his war-caused disabilities so that due to them alone he is unable to work more than 8 hours per week; and

(b) whether the applicant is prevented as a result of these disabilities from continuing his last paid remunerative work that he was undertaking when he made his claim.

The Evidence

5. The "T" documents were tendered into evidence.

6. The applicant gave oral evidence. His evidence was as follows:-

(a) that he operated a farm comprising 7,000 acres at Jericho in Tasmania as a sole proprietor since 1978 upon which he ran a large number of sheep;

(b) the farm was a large farm which was big enough to require a manager/overseer. There were a number of employees employed on the farm up until about 1989;

(c) the applicant performed the managerial/overseer role and also performed physical work when required and when available;

(d) from 1989 there was a decline in income from the farm due to a drop in wool prices. As a result the applicant reduced the number of employees on the farm;

(e) the applicant became less able to become involved in physical activities throughout the 1990's due to emphysema;

(f) as a result of his inability to perform physical work he increased his work force by one person in April 1997. The applicant does not believe he could have performed physical work for more than 8 hours per week after April 1997;

(g) from April 1997 the farm was run without any physical input from the applicant, but he continued to manage the farm. He could perform book work; attend and engage in sales and travel over the farm on a tractor and supervise his employees;

(h) the farm was sold on 30 June 1998.

Findings of Fact

7. The applicant was a truthful witness and the Tribunal accepts his evidence in its entirety and finds the matters listed (a) to (h) in the applicant's evidence as fact.

Application of the Law

8. Section 24 of the Act requires, as a condition of eligibility to a special rate pension, that the applicant is unable to work for more than 8 hours per week and that he be prevented from undertaking remunerative work that he was undertaking when he made his claim.

9. The Tribunal accepts that the applicant could not do hard physical work for more than 8 hours per week and that he could not undertake that aspect of farming.

10. The nature of the applicant's work was of a far greater breadth than that of a farm labourer. It essentially involved management and an overseering role of a large sheep farm of 7,000 acres. This involved many tasks including bookkeeping; attending sales; and supervising employees. Upon the applicant's own evidence he was able to undertake those roles and perform those tasks without any great difficulty. He was not incapable of performing the sedentary tasks for more than 8 hours per week. In fact, he did not say that there was any restriction on his ability to undertake these tasks.

11. The apparent reason that the applicant ceased work when he sold his farm was due to the financial downturn in the fortunes of the farm which was caused by reduction in wool prices and not as a result of the applicant's inability to undertake the work of a farmer/owner of a large property. But for the reduction in wool prices the applicant is likely to have continued to manage his property.

Decision

12. The decision of the Repatriation Commission dated 1 December 1997 is affirmed.

I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of Mr C P Webster (Senior Member)

Signed: .....................................................................................

Personal Assistant

Date/s of Hearing 14 December 1999

Date of Decision 28 January 2000

Solicitor for Applicant Mr R Webster

Solicitor for the Respondent Mr M Castle