Diprose and Repatriation Commission [2000] AATA 46 (28 January 2000)

Last Updated: 15 February 2000

DECISION AND REASONS FOR DECISION [2000] AATA 46

ADMINISTRATIVE APPEALS TRIBUNAL )

) No T1999/87

VETERANS' APPEALS DIVISION )

Re REX DIPROSE

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 8 August 1997 is set aside and substituted with a decision that the applicant is eligible to a special rate of pension under s.24 of the Veterans' Entitlements Act 1986. The date of effect is 20 February 1997.

[Sgd C P Webster]

Senior Member

CATCHWORDS

Veterans' Entitlements - eligibility to special rate of pension.

Veterans' Entitlements Act 1986 - s.24

Cavell and Repatriation Commission - 10 ALD N233

REASONS FOR DECISION

28 January 2000 Mr C P Webster (Senior Member)

Issues

1. Rex Diprose ("the applicant") seeks a review of a decision of the Repatriation Commission ("the respondent") dated 8 August 1997, which assessed the applicant's rate of pension at 100% of the General Rate.

2. The issues to be determined are:

(i) whether the applicant is entitled to an increase above 100% of the General Rate to either of the income related rates of pension provided by ss.23 or 24 of the Veterans' Entitlements Act 1986 ("the Act"); or

(ii) whether the applicant is entitled to the Extreme Disablement Adjustment provided for by s.22 of the Act.

3. Specifically the issues to be determined in relation to the applicant's entitlement under s.24 of the Act is whether the applicant:

(a) has a degree of incapacity of at least 70%;

(b) he is unable to work for more than 8 hours per week due to his war-caused disabilities alone;

(c) because of his inability to work he is suffering a loss of earnings;

(d) whether he was undertaking his last paid work after he turned 65 years of age and he had been working as a farmer for a continuous period before he turned 65.

4. In the event that the applicant does not qualify for a special rate of pension under s.24 of the Act, the issue to be determined in deciding whether the applicant qualifies for an extreme disablement adjustment allowance under s.22(4) of the Act is whether the applicant has an impairment of at least 70 points and his lifestyle rating is an average of 6 or higher.

The Evidence

5. The "T" documents were tendered into evidence. Those documents showed:

(a) that the applicant was born on 10 December 1922(i.e. he became 77 during the course of the adjourned hearing);

(b) the applicant had the following disabilities which were accepted as war-caused, namely:

(i) ischaemic heart disease;

(ii) post-traumatic stress disorder;

(iii) osteoarthritis both knees;

(iv) nervous dyspepsia;

(v) bilateral sensori-neural deafness.

(c) the combined impairment rating accepted by the respondent in relation to the accepted war-caused conditions was at least 70 points.

6. The applicant tendered his income tax returns for the financial year ended 30 June 1987; 1988 and 1989.

7. The applicant gave oral evidence. The substance of his evidence was as follows:

(a) that in 1962 he purchased a farm at Sheffield and was self-employed as a dairy farmer. He later converted his farm to a sheep farm;

(b) from 1962 into the 1980's the farm was the sole source of income for the applicant and his wife, in 1983 the applicant applied for a service pension;

(c) during the 1980's the applicant began to find, due to his accepted war disabilities, that it was difficult to farm sheep. In 1987 the difficulties increased to the extent that the applicant gave up the running of the farm to his son who rented the farm at a nominal rent from his father. At that time the applicant was aged 64;

(d) in 1987 the applicant set up a mini-abattoir where he slaughtered a small number of lambs and sold approximately 6 lambs per week to friends;

(e) apart from the lambs, the applicant produced potatoes and other vegetables and periodically slaughtered pigs which were also sold to friends;

(f) the income from the sale of lambs, pigs and vegetables was the applicant's main source of income from 1987, which was approximately $120 to $150 per week from that source;

(g) the applicant continued to earn income from that source until at least some time after 1994. The applicant stopped slaughtering lambs and earning income as a result of his inability to stand on his feet as a result of the osteoarthritis in both knees. The exact date that the applicant ceased this work is unclear, but it was at least after 1994.

(h) the applicant gave evidence as to the affect of his accepted disabilities upon his lifestyle.

8. Under cross-examination the applicant changed his evidence as to the time that his son took over the farm stating that it was in 1994.

9. He affirmed his intention to have worked on the farm, health permitting, until he died, and gave evidence of a long work history in his family.

10. He advised the Tribunal that there was no profit from the farm at the time he leased it to his son, apart from the slaughter of lambs and vegetable sales referred to in his evidence in chief.

11. The applicant's wife Audrey May Diprose gave evidence. She gave the following evidence:

(a) that the farm was leased to their son in 1994;

(b) when asked by counsel for the respondent whether it had always been the applicant's intention to lease the farm to his son, she stated:

"Well I suppose we did talk about it, you know, but we never sort of discussed it that much, you know, but when he couldn't do it, well, there was only one thing that we could do."

(c) later she denied there were any similar discussions as to who would run the farm after the applicant was granted a pension.

Findings of Fact

12. The Tribunal accepts the applicant as a witness of the truth although, on his own admission, the applicant was not accurate in relation to dates and timing.

13. The Tribunal finds as facts:

(a) the applicant was born 10 December 1922;

(b) he has accepted war disabilities which are attract an incapacity rating of 70%;

(c) the applicant is unable to work at all (and certainly not for more than 8 hours per week) as a result of his war-caused disabilities;

(d) that the applicant applied for a service pension in 1983;

(e) that the applicant worked on his farm until 1994;

(f) that from 1987 the applicant's principal source of income was approximately $120-150 per week which he earned from slaughtering and selling lambs and selling vegetables to friends;

(g) that the applicant ceased this work due to problems with his knees(an accepted war-caused disability) subsequent to 1994 and lost income of $120-$150 per week.

14. The Tribunal does not consider that there was ever any conclusion reached between the applicant and his wife that they would lease the farm to their son prior to 1994 when the applicant was forced to give up work due to his disabilities.

Application of the Law

15. It has been conceded by the respondent that the applicant has an incapacity from war-caused disabilities of at least 70%. On the evidence before the Tribunal the Tribunal considers that this concession is appropriate.

16. It also appears to be conceded that the applicant could not work for more than 8 hours per week as a result of these disabilities. In any event the Tribunal finds this is a fact.

17. The Tribunal's finding was that the applicant is suffering a loss of earnings as a result of his inability to work being work, as a casual slaughterer and vegetable seller, after he turned 65 being work which he was performing before he turned 65.

18. The Tribunal notes the decision of Cavell and Repatriation Commission 10 ALD N233, that a loss is demonstrated if there is any loss and that the applicant does not have to quantify that loss beyond a certain minimum amount.

19. The applicant therefore satisfies the eligibility criteria to entitlement under s.24 of the Act.

Decision

20. The decision of the Repatriation Commission dated 8 August 1997 is set aside and substituted with a decision that the applicant is eligible to a special rate of pension under s.24 of the Veterans' Entitlements Act 1986. The date of effect is 20 February 1997.

I certify that the 51 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 8 December, 15 December 1999

Date of Decision 28 January 2000

Solicitor for Applicant Mr R Webster

Solicitor for the Respondent Mr M Castle (Advocacy Branch,Department of Veterans' Affairs)