Braid and Repatriation Commission (Veterans’ entitlements)

[2016] AATA 352

Braid and Repatriation Commission (Veterans’ entitlements) [2016] AATA 352 (30 May 2016)

Division	VETERANS' APPEALS DIVISION
File Number(s)	2015/2757
Re	Fredrick Braid
APPLICANT
And	Repatriation Commission
RESPONDENT

DECISION

Tribunal	Deputy President Bernard McCabe
Date	30 May 2016
Place	Brisbane

The decision under review is affirmed.

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Deputy President Bernard McCabe

Catchwords

VETERANS’ ENTITLEMENTS – Special rate pension – applicant receives pension paid at the Extreme Disablement Adjustment rate – Applicant unable to satisfy criteria for Special rate pension – decision under review is affirmed

Legislation

Veterans Entitlement Act 1986 (Cth) s 24 (2A)

REASONS FOR DECISION

Deputy President Bernard McCabe

30 May 2016

1. Mr Fredrick Braid, the applicant, served in the armed forces during World War II. He was injured and has suffered from long term health issues as a consequence of his service. He is currently paid at a pension under the Veterans Entitlement Act 1986 (Cth) (the Act) at the Extreme Disablement Adjustment rate. He says he is entitled to be paid at the Special rate, which is higher. The Repatriation Commission disagrees.

2. Mr Braid does not qualify for a Special rate pension. In those circumstances, I must affirm the decision under review. I explain my reasons below.

   Background to the claim

3. Mr Braid suffers from a number of accepted service-related conditions, including anxiety. He was born in 1923 and provided operational service during World War II as a signaller in the Middle East and Papua New Guinea. Mr Braid’s disabilities and age made it difficult for him to attend a hearing in person. The parties agreed the Tribunal should deal with the matter ‘on the papers’ – that is, without a formal hearing.

4. The applicant made a claim to have his depressive disorder and fractured skull accepted as service-related on 6 September 2013. On 8 November 2013, the respondent accepted the applicant’s conditions were service-related and back-dated the effect of its decision to 6 June 2013. The applicant is not satisfied with that result. He says the respondent has been aware of his ‘nervous state’ and fractured skull from 1964 and for that reason he should be entitled to the Special rate pension back-dated to that time.

5. The Special rate pension is available to veterans who are able to satisfy the criteria in s 24 of the Act. Mr Braid is unable to satisfy the criterion in s 24(1) because he was not under the age of 65 when the claim was made. In fact, Mr Braid was 90 years old when he lodged this claim. Mr Braid is also unable to satisfy the criteria in s 24(3). That sub-section deals with veterans who were blinded in both eyes as a result of war-caused injury or disease.

6. That leaves s 24(2A). That provision lists a number of criteria which must be satisfied if the applicant is to be eligible for the pension paid at the Special rate. As it happens, I do not think Mr Braid is able to satisfy all the requirements in sub-section (2A). I will explain why.

   Eligibility for the Special rate pension under s 24(2A)

7. Mr Braid filed a claim for the Special rate pension on 6 September 2013. It follows he is able to satisfy the requirements in s 24(2A)(a) and (b).  

8. Section 24(2A)(c) requires that the applicant satisfy ss 24(1)(a) and (b). Those sub-sections say the veteran must have a war-caused incapacity of at least 70% and be incapable of working an aggregate total of 8 hours per week as a result of incapacity from war-caused injury or disease alone. Mr Braid is assessed as having 100% combined incapacity impairment: see T documents p 32. He does not work, and has not done so for many years. But is that incapacity for work a product of his war-caused injury or disease alone?

9. Mr Braid has been out of the workforce for some 37 years. It is not quite clear what Mr Braid’s occupation was after he left the service. I note he said in 1964 that he had lost his job with the Commonwealth Department of Works because of his nervous disorder and between September 1975 and March 1977 Mr Braid reports resigning from 4 positions due to “an inability to cope with the duties of [his] employment in an effective manner” (see T documents p 54 and Application for Increased Rate or Payment of War Pension dated 16 March 1977). It would ordinarily be important to precisely identify the applicant’s work-history, but the need to do so may be less pressing in this case.  

10. Mr Braid is now 92 years old. It is unlikely Mr Braid would be in the workforce under any circumstances at his age, quite apart from any impact his service-related disabilities might have. The length of time Mr Braid has spent out of the work force is also relevant. I have doubts about whether a prospective employer would see Mr Braid as a suitable employee. Technological developments in almost every field of employment over the last 37 years would make Mr Braid an unsuitable candidate for most types of employment. It follows Mr Braid’s accepted service-related conditions do not render him incapable of undertaking an aggregate total of 8 hours per week alone. There are other contributing factors.

11. Section 24 (2A)(d) requires the veteran have been prevented from undertaking his last paid work because of his war-caused injury alone. There is limited evidence about the circumstances in which Mr Braid ceased working. I have already mentioned Mr Braid said in 1964 that he lost his job because of his anxiety. There is also evidence he worked until 1977: see T documents p 6. But this sub-section is read in conjunction with s 24 (2A)(f) which provides: the veteran was undertaking his or her last paid work after the veteran had turned 65. Mr Braid ceased working on 28 February 1977: see letter dated 25 September 2015. At the time he ceased work he was around 54 years old, which is 11 years short of the threshold required to satisfy s 24 (2A) (d) and (f).

12. Sub-section 24 (2A)(e) is also relevant. That requires the veteran be suffering a loss of salary or wages that he would not be suffering were he free from the incapacity. At the time Mr Braid lodged his application he had not been earning a salary or wages for a substantial amount of time. That makes it impossible for me to conclude Mr Braid was suffering a loss in salary or wages that he would otherwise be earning but for his incapacity. 

13. Mr Braid suggests his ‘anxiety state’ condition and his depressive condition are the same for the purposes of his pension assessment: at least that is what he was led to believe (see T Documents pp A, 80, 84). He says that entitles him to payment at the Special rate from the date the anxiety condition was accepted as service-related (which was in April 1964: see T documents p 50). I appreciate Mr Braid may have been unable to undertake remunerative work because of his anxiety condition at that time, but I am prohibited from making that decision in his favour.

14. The decision under review here is the result of Mr Braid’s claim on 6 September 2013. While there may have been errors relating to earlier claims, this Tribunal is limited to reviewing the decision dealing with the 6 September 2013 claim. Even if I were to find Mr Braid is entitled to the Special rate pension because the anxiety state condition and the depression condition were the same, it is outside the Tribunal’s power to back-date that entitlement beyond the earliest prescribed date of effect. Section 20 of the Act says the earliest date of effect is no earlier than 3 months before the application is made. That is the date of effect the Repatriation Commission adopted here.

15. The decision under review must be affirmed. The applicant does not satisfy the criteria for the pension paid at the Special rate. 

16.     I certify that the preceding 15 (fifteen) paragraphs are a true copy of the reasons for the decision herein of Deputy President Bernard J McCabe.

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Associate

Dated 30 May 2016

Date of hearing	12 February 2016
Application heard on the papers