Kershaw v Repatriation Commission [2000] FCA 1802

Kershaw v Repatriation Commission [2000] FCA 1802

The sub-criteria in Table 22.2 were not merely illustrative but formed part of the binding assessment system in the Guide. The Tribunal was required to pay regard to them and did so. Its conclusion that the applicant did not satisfy any rating 5 sub-criteria was a finding of fact not challengeable in this Court, and no legal error was shown. In any event, the applicant needed at least a mobility rating of 5 to achieve the required lifestyle rating average of 6.

Jurisdiction
Australia
Judgment Date
18 December 2000
Procedural Posture
Veterans' Pension Assessment Appeal / Appeal Against a Decision of the Administrative Appeals Tribunal Affirming Decisions of the Veterans' Review Board and the Repatriation Commission; Application Dismissed
Outcome
Application dismissed with costs, including reserved costs.
Legal Topics
['pension Assessment' 'lifestyle Rating' 'mobility Assessment' "guide to the Assessment of Rates of Veterans' Pensions" 'statutory Interpretation']
['veterans Law' 'administrative Law'] ['pension Assessment' 'lifestyle Rating' 'mobility Assessment' "guide to the Assessment of Rates of Veterans' Pensions" 'statutory Interpretation']

Case Brief

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Procedural Posture

Veterans' Pension Assessment Appeal / Appeal Against a Decision of the Administrative Appeals Tribunal Affirming Decisions of the Veterans' Review Board and the Repatriation Commission; Application Dismissed

Legal Issues

  1. 1 ["Whether the sub-criteria in Table 22.2 of the Guide to the Assessment of Rates of Veterans' Pensions were merely illustrative or binding in assessing mobility for a lifestyle rating." "Whether the Tribunal made a legal error in assessing the applicant's mobility rating below 5 for the purposes of s 23(4)(c) of the Veterans Entitlement Act 1986 (Cth)."]

Ratio Decidendi

The sub-criteria in Table 22.2 were not merely illustrative but formed part of the binding assessment system in the Guide. The Tribunal was required to pay regard to them and did so. Its conclusion that the applicant did not satisfy any rating 5 sub-criteria was a finding of fact not challengeable in this Court, and no legal error was shown. In any event, the applicant needed at least a mobility rating of 5 to achieve the required lifestyle rating average of 6.

Court Disposition

Application dismissed with costs, including reserved costs.

Orders

  • ['The application is dismissed.' "The applicant pay the respondent's costs including reserved costs."]