Bucknall and Repatriation Commission
[2008] AATA 39
•14 January 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 39
ADMINISTRATIVE APPEALS TRIBUNAL )
) 2007/1015
GENERAL ADMINISTRATIVE DIVISION ) Re TERRENCE REX BUCKNALL Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Ms L R Tovey, Member
Dr D Weerasooriya, Member
Date 14 January 2008
PlacePerth
Decision The Tribunal sets aside the decision of the Veterans' Review Board made on 27 February 2007 and the decision of the Respondent dated 18 July 2006 and substitutes a decision that the Applicant is entitled to a special rate of pension with effect from 30 December 2005. …....[Sgd Ms L R Tovey]......
Member
CATCHWORDS
VETERANS ENTITLEMENTS – whether Applicant qualifies for special rate of pension
Veterans' Entitlements Act 1986 (Cth), ss 13(1), 15(1), 17, 19, 21, 22, 24(1), 24(2), 24(4), 25, 120(4).
Banovich v Repatriation Commission (1986) 69 ALR 395
Doig v Repatriation Commission (Unreported Federal Court 18 December 1996)
Flentjar v Repatriation Commission (1997) 48 ALD 1 at 4-5
Forbes v Repatriation Commission (2000) 101 FCR 50
Giesen v Repatriation Commission (2005) ALD 347
Re Hearne and Repatriation Commission [2006] AATA 117
Leane v Repatriation Commission (2004) 81 ALD 625
Repatriation Commission v Hendy (2002) 76 ALD 47
Starcevich v Repatriation Commission (1987) 18 FCR 221
REASONS FOR DECISION
14 January 2008 Ms LR Tovey, Member Dr D Weerasooriya 1. This is an application by Mr Terrence Rex Bucknall ("the Applicant") for review of a decision of the Veterans' Review Board ("the Board") made on 27 February 2007. The Board decided to affirm a decision of the Repatriation Commission ("the Commission") dated 18 July 2006, that the Applicant was not entitled to pension at a special rate.
FACTS
2. The principal facts relevant to our determination are not in dispute. We find the following facts from the evidence of the Applicant, who we found to be a credible witness, the Section 37 Statement and Documents produced by the Commission and the documents annexed to the Applicant's List of Additional Evidence.
3. The Applicant was born in July 1941, and is currently 66 years of age. He left school at 14 years of age, and had no school, TAFE or University qualifications. After leaving school, the Applicant undertook various kinds of employment which included work as a telegram boy, office clerk, bootmaker, farm and station hand, truck driver, factory hand and diamond driller.
4. The Applicant joined the Royal Australian Army in 1963, and remained with the Army until his discharge in 1975. He served in the Royal Australian Artillery from January 1963 to May 1975, and served in Vietnam from May 1969 to May 1970.
5. After leaving the Army in 1975, the Applicant was employed as an insurance salesperson and clerk at the WA Government Stores Department. He was self-employed as the manager and licensee of various licensed hotels between 1977 and 1983.
6. Between 1983 and 1992 the Applicant worked as the Secretary and Manager of the Fremantle RSL Club. His duties at the RSL Club involved bookwork, bar work to relieve bar staff, ordering stock and the general duties of a publican. At that time the Applicant was suffering from back pain which limited his capacity to perform all of the duties of a publican. He was unable to unload the brewery truck, and had to either employ people or get bar staff to perform that task. He was unable to change beer kegs, because they were too heavy to move around. He was able to work behind a bar is short bursts of 10 to 15 minutes, but was not able to go behind a bar for a 2-3 hour shift. He was able to do office work over a period of a day. He was able to work a full day at this time, working on average 9 hours a day and sometimes longer for special functions.
7. In 1992 the Applicant's position at the RSL Club was made redundant because the RSL could not afford to employ a full time manager. At that time the Applicant was 50 years of age.
8. The Applicant was unemployed and received a social security job search allowance between July 1992 and December 1994. At this time he was registered with the Commonwealth Employment Service ("the CES"). During the period from July 1992 to December 1994 the Applicant applied for over 100 jobs ranging from labourer, truck driver to Hotel/Club bar attendant, yardman, manager and just about any position available in the hospitality industry. His method of job searching involved going to the CES office, searching newspaper advertisements, door knocking, word of mouth and any other means available to him. Many of the potential employers to whom the Applicant applied said that they did not want to employ someone with a known back problem. None of the potential employers referred to the Applicant's age as a reason for not employing him.
9. The Applicant made a claim for a Disability Pension and Medical Treatment to the Department of Veterans' Affairs ("the Department") in March 1993. The claimed disabilities were "loss of hearing", "mobility difficulties" and "stiffness and soreness both knees and legs". The Applicant indicated in the claim form that he was unemployed and that the reason for that was "due to financial difficulties, position of Secretary/Manager made redundant". He claimed that the disabilities he was claiming affected his employment, and said that due to pain in his knees and right ankle he was unable to walk great distances and perform more than short periods in a bar when required, to move from a crouched position or to drive for periods of one hour or more.
10. In a subsequent claim form of November 1993, the Applicant indicated the reason for his unemployment as "Redundant (no employment for an unfit 52 year old)". The Applicant indicated that, during the previous 15 months, he had been to many interviews and, due to his disabilities and age, had not been able to gain any sedentary or physical work on either a full-time, part-time or casual basis.
11. In late 1994 the Applicant was called into the CES for an interview in relation to re-training. The CES officers conducting that interview told the Applicant that his disabilities made him unsuitable for re-training and sent him for a medical examination. The medical examiner's report indicated that the Applicant was, at that time, unable to work for more than 7 hours a week. He was placed on a disability support pension and did not seek re-employment after that time.
12. It appears that the Applicant's claims for disability pension from the Department were accepted, although the determinations of those claims were not produced to the Tribunal. However, we were provided with a copy of the determination of the Commission of 29 October 2001 increasing the Applicant's disability pension to 80% of the General Rate with effect from 30 July 2001. At that time the accepted disabilities which produced impairment were identified as "Impairment of Spine and Limbs: Bilateral Chrondomalacia Patellae" and "Hearing Impairment and Tinnitus: Sensori-Neural Hearing Loss".
13. On 30 March 2006, at age 64 years, the Applicant made a further application for an increase in his disability pension. In that claim he claimed a new disability which he identified as "Lumbar Spondylolisthesis". He indicated that part of his duties in Vietnam involved unloading boxes of two shells, with each box weighing 30 kilograms. The Applicant said that he handled at least 60 boxes a day over the 12 months of his service in Vietnam. The Applicant also applied for an increase in his rate of pension on the basis that "my last claim for increase in DP was in 2001, I believe my disabilities have deteriorated since then".
14. On 17 July 2006 the Commission determined to accept the following disabilities:
(a)Lumbar spondylolysis, on the basis that carrying or lifting loads while bearing weight is a contributing factor to lumbar spondylolysis and the Applicant's service history met this factor;
(b)Spondylolisthesis, on the basis that lumbar spondylolysis is a factor contributing to spondylolisthesis.
15. Spondylolysis is a defect or fracture, unilateral or bilateral, involving the pars interarticularis of a vertebra. The pars interarticularis is that part of the vertebral arch that extends between the superior and inferior articular processes. Spondylolisthesis involves the forward displacement of one vertebra over another.
16. On 18 July 2006 a delegate of the Commission determined that the Applicant's disability pension was to be continued at 80% of the General Rate. The delegate assessed the rate of pension payable by reference to the Guide to the Assessment of Rates of Veterans' Pensions – Fifth Edition, and concluded that the Applicant had a degree of incapacity of 80%. There is no challenge to that assessment before us. However, the Applicant does challenge the delegate's conclusion that he was not eligible for a special rate of pension.
17. On 14 September 2006, the Applicant applied for an internal Commission review of the decision that he was not eligible for pension at the special rate. A number of medical reports were provided to the Commission for the purposes of that review. These included a report of Dr Stephen Dennis, an Occupational Physician, dated 21 September 2006 which concluded that:
"Mr Bucknall has a significant disability as a result of his low back condition. A combination of spondylolysis and spondylolisthesis has resulted in chronic low back pain, with muscle wasting and weakness in the lower limbs. This has a significant impact on his capacity to undertake a range of physical activities and has been preventing him from undertaking any employment since 1994. It adversely impacts on his mobility and his capacity to persist with tasks because of the requirement to change posture on a periodic basis.
His other conditions include [sic] hypertension, diabetes and haemochromatosis are being managed by his general practitioner and are currently under control. These are not currently preventing him from undertaking employment.
…I am of the view that his lower back condition is the sole medical problem preventing him from undertaking open paid employment. I would concur that his back conditions alone are preventing him from working for remunerative gain."
18. Although Dr Dennis was not called as a witness by the Applicant, his conclusions were not challenged by the Commission and were not contradicted by any other evidence. In those circumstances we accept the correctness of his views which we have set out above.
19. We note that, since 1998, the Applicant has participated in a group called Mandurah Musketeers (Charity Computers) Inc, which is a charity that refurbishes and programmes donated computers and in turn donates the computers to various disadvantaged persons in the community. The work is voluntary, unremunerated and the Applicant has taught himself the necessary computing skills since he commenced on a disability support pension. The Applicant's current activities with the group have been limited to administration, public relations and being available to other members for advice and guidance. The Applicant spends 2-3 hours a day with the group on two days per week, and experiences pain and discomfort while he is there.
20. On 21 December 2006 a delegate of the Commission indicated that he had found no grounds to intervene and vary the Commission's decision of 18 July 2006. The Applicant then sought further review by the Board which, on 27 February 2007, affirmed the decision under review. On 22 March 2007 the Applicant sought further review of the Commission's decision by this Tribunal.
LEGISLATIVE BACKGROUND
21. Provision for payment of the Applicant's pension is made by the Veterans' Entitlement Act 1986 (Cth) ("the Act"). It is not in dispute that the Applicant is entitled to a pension, by way of compensation, under s. 13(1)(b) and (d) of the Act on the basis that he is incapacitated from a war-caused injury or a war-caused disease.
22. Section 15(1) of the Act provides that a veteran who is in receipt of a pension may apply for an increase in the rate of the pension on the ground that the incapacity of the veteran has increased since the rate of the pension was assessed or last assessed. As we have noted, the Applicant made such an application on 30 March 2006.
23. Section 17 of the Act provides for an application to be investigated by the Secretary of the Department and submitted to the Commission. Section 18 of the Act provides for the duty of the Commission to deal with the application. Section 19(1)(c), (4A), (5C) and (5D) of the Act require the Commission to determine:
(a)the rate or rates at which the pension would have been payable from time to time during the assessment period, which in this case is the period commencing on 30 March 2006 and ending on the date of this decision; and
(b)the rate at which the pension is payable.
24. The Commission must then determine that pension is payable at the rate assessed. Pension is payable from the date of effect of the determination. A determination takes effect from the date on which the determination is made or on such later or earlier date as is specified in the determination: see s. 19(5E) and (5F) of the Act. Section 21 of the Act regulates the manner in which the Commission may specify a date on which a determination takes effect. It was common ground between the parties that, if we found pension to be payable at a special rate, the appropriate date of effect of the determination is 30 December 2005.
25. Section 22 of the Act provides for the general rate of pension. Section 24, which is the principal provision in this case, deals with the circumstances in which a special rate of pension is payable to a veteran. Section 24 relevantly provides:
"24 Special rate of pension
(1) This section applies to a veteran if:
(aa)the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab)the veteran had not yet turned 65 when the claim or application was made; and
(a)either:
(i)the degree of incapacity of the veteran from war‑caused injury or war‑caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii)the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and
(b)the veteran is totally and permanently incapacitated, that is to say, the veteran’s incapacity from war‑caused injury or war‑caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and
(c)the veteran is, by reason of incapacity from that war‑caused injury or war‑caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and
(d)section 25 does not apply to the veteran.
(2)For the purpose of paragraph (1)(c):
(a)a veteran who is incapacitated from war‑caused injury or war‑caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if:
(i)the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war‑caused injury or war‑caused disease, or both; or
(ii)the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; and
(b)where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking. …
(4)Subject to subsections (5) and (6), the rate at which pension is payable to a veteran to whom this section applies is $919.40 per fortnight."
26. Section 25 of the Act deals with payments to veterans who are temporarily incapacitated from war‑caused injury or war‑caused disease, or both.
27. Section 19(6) of the Act provides:
"Where the Commission has, pursuant to subsection (5C), assessed that the pension was payable at some time during the assessment period at the rate provided by section 23 or 24 then, subject to section 24A, the rate at which the pension is payable shall not be lower than the rate provided by whichever of those sections applied, or applied most recently, during the assessment period."
28. Section 120(4) of the Act required the Commission to determine the application to its reasonable satisfaction, and therefore also requires that we determine the application to our reasonable satisfaction.
ISSUES
29. The Applicant does not challenge the Commission's conclusion that the degree of incapacity caused by war-caused injury or war-caused disease, or both, is 80%. The only question before us is whether the Applicant is entitled to be paid at the special rate of pension provided for by s. 24 of the Act.
30. It is common ground between the parties, and the evidence adduced before us satisfies us, that the following elements of s. 24(1) of the Act were satisfied:
(a)The Applicant has made an application under s. 15 for an increase in the rate of the pension that he is receiving: s. 24(1)(aa);
(b)The Applicant had not turned 65 when the application was made: s. 24(1)(aab);
(c)The degree of incapacity of the Applicant from war-caused injury or war-caused disease, or both, has been determined to be 80%: s. 24(1)(a);
(d)The Applicant is totally and permanently incapacitated, that is to say the Applicant's incapacity from war-caused injury or war-caused disease, or both, is of such nature as, of itself alone, to render the Applicant incapable of undertaking remunerative work for periods aggregating more than 8 hours per week ("the relevant incapacity"): s. 24(1)(b); and
(e)Section 25 of the Act does not apply to the Applicant, as his incapacity is not temporary.
31. The only question for us is then whether the requirements of s. 24(1)(c) of the Act have been satisfied. The Applicant and Commission both identified this as the relevant issue in their Statements of Facts and Contentions.
32. The Applicant puts his case on two alternative bases:
(a)Firstly, he says that he is, by reason of the relevant incapacity, prevented from continuing to undertake remunerative work that he was undertaking. In that regard the Applicant relies on the primary operation of s. 24(1)(c) of the Act;
(b)Secondly, and in the alternative, the Applicant relies on the extended operation given to s. 24(1)(c) by s. 24(2)(b) of the Act, so that he is to be treated as having been prevented, by reason of the relevant incapacity, from continuing to undertake remunerative work that he was undertaking.
APPLICABLE PRINCIPLES
33. Before coming to consider the alternative bases upon which the Applicant's case has been framed, we note the following general principles in relation to s. 24(1)(c) of the Act, as it has been interpreted by the Federal Court.
34. As Nicholson J noted in Forbes v Repatriation Commission (2000) 101 FCR 50 at 52-3, [14]-[15], s. 24(1)(c) of the Act is best understood by dividing it into its two limbs and relating those limbs to what follows in s. 24(2) of the Act.
35. The first limb of s. 24(1)(c) is that:
"the veteran is, by reason of incapacity from that war‑caused injury or war‑caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking …"
That limb must be read subject to the application of s. 24(2)(b), set out above.
36.The second limb of s. 24(1)(c) is that the Applicant:
"… is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity".
That second limb is to be read in conjunction with s. 24(2)(a) of the Act, also set out above.
37. Leaving aside the extended operation given to s. 24(1)(c) by s. 24(2)(b) of the Act, the relevant questions to be addressed by the Tribunal were identified by the Full Federal Court in Flentjar v Repatriation Commission (1997) 48 ALD 1 at 4-5 in the following terms.
"1. What was the relevant “remunerative work that the veteran was undertaking” within the meaning of s 24(1)(c) of the Act?
2. Is the veteran, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?
3. If the answer to question 2 is yes, is the war-caused injury or war-caused disease, or both, the only factor or factors preventing the veteran from continuing to undertake that work?
4. If the answers to questions 2 and 3 are, in each case, yes, is the veteran by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of that incapacity?"
38. As the Court in Flentjar noted, at 4, the "remunerative work that the veteran was undertaking" is a reference to the type of work in which the veteran previously undertook and not to any particular job.
39. In Flentjar the Court rejected a submission based on Mr Flentjar's loss, prior to the assessment period, of a taxi licence for a cab he operated. The Court said, in relation to the first two questions which it had identified, at 5:
"Assuming a finding of fact that the relative remunerative work which Mr Flentjar had undertaken was work which involved the driving of taxis, issue 2 above would involve consideration being given to possible impediments in the way of Mr Flentjar's re-entering the workplace as a taxi driver during the assessment period relevant to this proceeding."
40. In concluding that the relevant remunerative work was the type of work in which the veteran had engaged, rather than a particular job, the Court in Flentjar referred to the previous decision of the Full Federal Court in Banovich v Repatriation Commission (1986) 69 ALR 395 at 402 and the unreported decision of Lindgren J in Doig v Repatriation Commission (Unreported Federal Court 18 December 1996). In Banovich the Court said, at 402-3:
"…the phrase 'remunerative work which the respondent was undertaking' should be read as a reference to the type of work which the member previously undertook and not to any particular job. It follows that a member's loss of particular employment for a reason unrelated to a war disability would never destroy a member's subsequent entitlement to claim a special rate pension; the question would remain, at the relevant date for determination of a claim, whether the member was prevented by his or her war-related incapacity — and by that incapacity alone — from continuing in that field of remunerative activity."
41. It follows from this that the fact that the Applicant lost his position with the RSL Club due to economic factors affecting the club does not destroy his right to claim a special rate of pension. The Tribunal is concerned with the Applicant's earning capacity rather than the reasons he ceased to work in a particular position.
42. As the decision in Doig illustrates, the prospects of a veteran continuing in particular employment may still be relevant in some circumstances. In that case the Tribunal had focussed on the veteran's prospects of employment at one hospital at which he had been employed prior to retirement and another at which he knew the Chief Executive Officer. The Court found that the relevant type of work was "accounting, clerical and administrative work", but that the Tribunal had not erred in a context where the veteran had not been looking for work elsewhere and there was no evidence that work was elsewhere available to the veteran, who was aged 70 years at the relevant date. However, the circumstances which made that focus on particular employment appropriate in Doig are not, in our view, present in the Applicant's case.
43. As the majority of the Full Federal Court noted in Starcevich v Repatriation Commission (1987) 18 FCR 221 at 225 and 226-7, the relevant remunerative work which the Applicant was undertaking need not be the last type of work which the Applicant has undertaken.
44. It also appears from the above authorities that the point in time at which the incapacity must prevent the Applicant from undertaking the relevant remunerative work must be within the assessment period, which in this case commenced when the application was made on 30 March 2006. However, the type of "remunerative work that the veteran was undertaking" may have been undertaken prior to the commencement of the assessment period. In view of s. 19(6) of the Act, is it unnecessary for the relevant incapacity to have existed throughout the assessment period.
45. Where there is a significant gap between the last occasion on which the veteran engaged in the relevant type of employment and the beginning of the assessment period, it will be necessary to take account of that period in considering the veteran's prospects of obtaining that kind of employment during the assessment period. In Repatriation Commission v Hendy (2002) 76 ALD 47 at 54-5, [37] the Full Federal Court stated:
"The decision-maker is required to take into account any factor that plays a part or contributes to a veteran's being prevented from continuing to engage in remunerative work. If a period of time elapses after a veteran ceases remunerative work and before the commencement of the assessment period, lack of recent work experience, time out of the workforce and increasing age will be relevant for consideration under s 24(1)(c) of the Act. The decision-maker is required to consider the effect, contribution to, and relative weight to be attached to any or all of those factors during the assessment period."
CONSIDERATION OF THE ISSUES – APPLICANT'S PRIMARY ARGUMENT
1. What was the relevant “remunerative work that the veteran was undertaking” within the meaning of s 24(1)(c) of the Act?
46. In our view the remunerative work that the Applicant was undertaking, for the purposes of s. 24(1)(c) of the Act, was the work of a publican or hotel manager. He performed that work between 1977 and 1992 at hotels of which the Applicant was licensee and at the RSL Club. That type of work is the appropriate focus for considering the Applicant's primary argument.
47. We note that the Applicant had in the past also undertaken other work of both a clerical and labouring nature, and that he sought to obtain employment of that kind between 1992 and 1994 when unemployed. However, there was no evidence that the Applicant would otherwise have been able to undertake work of that type during the assessment period. The Applicant has not undertaken that type of work after 1977. We have, therefore, focussed on the Applicant's work as a publican or hotel manager, rather than this other employment.
2. Is the veteran, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?
48. In our view the Applicant's accepted disabilities of spondylolisthesis and lumbar spondylolysis have prevented him from continuing to undertake the work of a publican or hotel manager. We base that finding both on the Applicant's evidence as to the ordinary duties of a publican or hotel manager and the report of Dr Dennis referred to above.
3. If the answer to question 2 is yes, is the war-caused injury or war-caused disease, or both, the only factor or factors preventing the veteran from continuing to undertake that work?
49. The report of Dr Dennis also indicates that the Applicant's accepted disabilities are the only physical cause of his incapacity to perform the work of a publican or hotel manager. The question is then whether there was any non-physical factor preventing the Applicant from continuing to undertake that work.
50. The Applicant was 64 years of age at the commencement of the assessment period. At the commencement of the assessment period the Applicant had not worked as a publican for approximately 14 years. The decision in Hendy requires that those factors of age and lack of recent experience at the commencement of the assessment period be taken into account in determining whether there are any other factors preventing the Applicant from continuing to undertake work as a publican or hotel manager.
51. The evidence before us as to the availability, in March 2006, of work as a publican or hotel manager for a 64 year who had been out of the workforce for 14 years is rather scant.
52. In his written statement the Applicant says:
"My skills and work in that [hospitality] industry have not been affected by my time out of the workforce and I have retained all of the qualities necessary to become a good Publican."
53. In the course of his oral evidence in chief the Applicant said:
"In the hotel industry, age is not a factor. Its more of the personality of the person – if you're in the manager position – its more a personality of the manager, or the person running the bar."
54. The Applicant was not cross-examined on either of the above statements, and the Commission did not adduce any contradictory evidence. In circumstances where the Applicant's evidence that his age or lack of experience would not have prevented him from obtaining employment as a publican or hotel manager has not been challenged or contradicted by the Commission, we are prepared to accept that evidence. The Applicant speaks from a perspective of a person with some 15 years experience in the hotel industry and, in the absence of challenge or contradiction, those views are entitled to be given weight.
55. We also note that the Applicant's capacity to obtain remunerative work as a publican or hotel manager did not depend on his convincing an employer to hire him. Much of the Applicant's career in the hospitality industry was undertaken as a self-employed person. There is no reason, other than his accepted disabilities, why the Applicant could not, during the assessment period, have worked as a manager of a hotel of which he was the licensee.
56. We should make reference to one document which was produced to us by the Applicant. That was a printout of an internet web page which includes a table showing the percent distribution of employment by age group in the hotel and casino industries during 2004. It shows that 11.4 percent of workers in those industries were aged between 55 and 64 and 3.3% were 65 or older. The web page is operated by an employment agency called "hcareers". The source of the figures is given as the US Department of Labour, and we infer from this that they relate to the position in the United States in 2004. Further, it is not clear to us that the "hotels" referred to bear any relationship to the Australian licensed hotel of the kind in which the Applicant has worked, which focus on the provision of food and beverage rather than accommodation. We do not feel that this table says anything about the employment prospects of a publican or hotel manager in Australia, and we do not place any reliance upon it in reaching the above conclusion.
57. It would have been prudent for the Applicant to have adduced more detailed and independent evidence of the Australian employment market as it related to a 64 year old publican in March 2006. However, in the absence of challenge to, or contradiction of, the limited evidence that was adduced by the Applicant, we are reasonably satisfied that there were, in March 2006, no factors other than the Applicant's accepted disabilities preventing him from undertaking the work of a publican or hotel manager.
58. In reaching the above conclusion we have not considered the fact that the Applicant's position with the RSL Club was made redundant to be significant. We find that, but for his accepted disabilities, the Applicant would have obtained work as a publican or hotel manager after his being made redundant. The question for us is not what caused the Applicant to lose his job in 1992, nor what prevented the Applicant from obtaining other employment in the 1990's. Rather, the question for us is the extent and cause of the Applicant's incapacity during the assessment period, which began in March 2006. The economic problems of the RSL club may have been a factor causing the Applicant to lose his job in 1992. They were not, however, a factor which caused the Applicant's incapacity to undertake the work of a publican or hotel manager in 2006. That view is consistent with the authorities to which we have referred above, in particular the decision in Banovich.
59. We also note in passing that, if not constrained by the authority of the decision in Hendy and cases that have followed it, we would have disregarded the time which the Applicant has spent out of the workforce in addressing this third question. The only reason why the Applicant had not worked as a publican or hotel manager since 1992 was his accepted disability. If, contrary to our findings above, the Applicant's time out of the workforce was a factor preventing him from continuing to undertake the work of the publican, but the only reason for that time out was his accepted disability, it seems to us that the accepted disability has caused inability to continue to undertake that work. The time out should not, in those circumstances, be regarded as a factor resulting other than from the war-caused injury or war-caused disease, or both. However, that approach, which we would prefer if unconstrained by authority, seems to us to be inconsistent with the passage in Hendy which we have quoted above. We have therefore addressed this third question by taking account of the time which the Applicant has spent out of the work force as a factor other than from the war-caused injury or war-caused disease, or both. Having done so, we have answered the third question identified in Flentjar in the affirmative.
4. If the answers to questions 2 and 3 are, in each case, yes, is the veteran by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of that incapacity?
60. The Applicant has not, during the assessment period, engaged in any remunerative work. As we have found, the only thing preventing him from doing so at the commencement of the assessment period was his accepted disabilities. The Applicant had not reached the ordinary retirement age of 65 at the commencement of the assessment period. We are reasonably satisfied on the Applicant's evidence that the Applicant would have continued to work to a point after the commencement of the assessment period, but for his accepted disabilities. We are therefore reasonably satisfied that the Applicant has, by reason of being prevented from continuing to undertake the work of a publican or hotel manager, suffered a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of that incapacity.
61. We note that the present case is different from those, of which Flentjar, Doig and Banovich are examples, where a person who has retired from the workforce after completing a normal working life seeks to obtain a special rate of pension. In the present case the Applicant lost all earning capacity in 1992-4 by reason of the accepted disabilities alone. At that time, on the facts as we have found them, he was entitled to pension at a special rate. The reason he did not obtain a special rate of pension prior to 2006 was that the injury or disease which was the cause of that incapacity was not an accepted disability. The Applicant stopped work because of his accepted disabilities rather than a decision to retire. He had not reached the ordinary retirement age of 65 years at the start of the assessment period, although he was close to it.
62. As regards s. 24(2)(a) of the Act, we are satisfied for the reasons given above that:
(a)the Applicant has not ceased to engage in remunerative work for reasons other than his relevant incapacity; and
(b)the Applicant is not incapacitated, or prevented, from engaging in remunerative work for some other reason.
Conclusion as to Applicant's Primary Argument
63. For the above reasons we are satisfied that the application meets the requirements of s. 24(1)(c) of the Act, without there being any need for recourse to s. 24(2)(d) of the Act. It follows that the Applicant was qualified for the special rate of pension when he made his application under s. 15(1) of the Act on 30 March 2006. Section 19(6) of the Act then provides that the rate of the pension shall not be lower than the special rate.
CONSIDERATION OF THE ISSUES – APPLICANT'S ALTERNATIVE ARGUMENT
64. The above conclusion makes it strictly unnecessary for us to address the effect of s. 24(2)(d) of the Act. However, in case there is a review of this decision, it is appropriate for us to state our conclusions in relation to the Applicant's alternative argument based on that provision.
65. In light of the findings above, we make the following factual findings in relation to the elements of s. 24(2)(b) of the Act:
(a)The Applicant was a veteran who had not attained the age of 65 years at the start of the assessment period, although he did attain the age of 65 within the assessment period.
(b)The Applicant has not been engaged in remunerative work after 1992.
(c)We are satisfied that the Applicant had been genuinely seeking to engage in remunerative work from 1992 to 1994, but has not been seeking to engage in remunerative work since that time.
(d)The Applicant would, but for the relevant incapacity, have continued to seek to engage in remunerative work after 1994 if he had not obtained employment by that time. That of course assumes that he did not have remunerative work at that time, and our finding is that the Applicant would have obtained remunerative work by that time, but for his accepted disabilities.
(e)The Applicant's relevant incapacity is the substantial cause of his inability to obtain remunerative work in which to engage between 1992 and the commencement of the assessment period.
66. There are two impediments to the Applicant's reliance on s. 24(2)(b) of the Act.
67. The first impediment is that the Applicant has been engaged in remunerative work between his discharge from the Army in 1975 and the conclusion of his employment with the RSL club in 1992. In Giesen v Repatriation Commission (2005) ALD 347 at 353, [23] Gray J expressed the view that s. 24(2)(b) was available only to veterans who have not engaged in remunerative work "at any relevant time", by which he meant at any time after discharge. On that view s. 24(2)(b) is inapplicable to the Applicant.
68. However, in Giesen both the Commission and the veteran had expressed the view that s. 24(1)(b) of the Act did apply in that case. While he expressed disagreement with that view, Gray J was ultimately prepared to proceed in Giesen on the basis of the Commission's concession that s. 24(2)(b) could apply even where the veteran had engaged in some remunerative work subsequent to discharge: see 354, [27].
69. In its submissions before us, the Commission disavowed reliance on the view as to the effect of s. 24(1)(b) of the Act expressed by Gray J. In those circumstances it is appropriate for us to follow the course adopted by Gray J, and proceed on the basis of the Commission's concession that s. 24(2)(b) of the Act can apply to the Applicant, notwithstanding that he engaged in remunerative work between 1975 and 1992. However, in doing so it is necessary to identify the basis on which it can be said that s. 24(2)(b) does apply.
70. That basis was identified by the Tribunal in Re Hearne and Repatriation Commission [2006] AATA 117 at [18]-[19]. That was that the requirement that the veteran has not engaged in remunerative work is a requirement that the veteran has not engaged in remunerative work during the assessment period. In the present case the Applicant was not engaged in any remunerative work during the assessment period.
71. However, that identification of the basis on which s. 24(2)(b) could apply to the Applicant gives rise to the second impediment to the application of the provision to the Applicant on the facts we have found. If the requirement is that the Applicant has not engaged in remunerative work during the assessment period it would seem to us to follow that the requirement that the Applicant has been genuinely seeking to engage in remunerative work must also apply in the assessment period. While the Applicant was genuinely seeking to engage in remunerative work in 1992 to 1994, he was not seeking to engage in remunerative work at any time during the assessment period.
72. In our view the need for the Applicant to show that he has been genuinely seeking to engage in remunerative work during the assessment period is established by authority binding upon us. In Leane v Repatriation Commission (2004) 81 ALD 625 at 633, [30]-[32] the Full Federal Court said:
"We note, for completeness, that it was unnecessary for the veteran to satisfy the tribunal that he had been genuinely seeking remunerative employment at all times during the assessment period."
73.After referring to s. 19(5C) and (6) of the Act, the Court continued:
"The effect of these provisions in this case is that the tribunal was required to determine whether a special pension was payable at any time during the assessment period, being the period starting, in this case, November 1996, and ending when the claim for application is ultimately determined: s 19(9) of the Entitlements Act. If a special pension was payable at any time during this period then the tribunal was required to determine that the special pension was payable from that time, notwithstanding that at some subsequent time the veteran might not have been able to establish that he would be entitled to a special pension.
As the commission properly conceded, if the veteran had satisfied the tribunal that he had, at any time during the assessment period, complied with the requirements of s 24(2)(b) (including the requirement that he had been genuinely seeking to engage in remunerative employment) then, at least from that time, the veteran would have been entitled to a pension at the special rate, notwithstanding that at some later time he may not have established that he was genuinely seeking to engage in remunerative employment."
74. It is apparent from these passages that the Court considered that it was necessary for a veteran to show that he or she had been genuinely seeking remunerative work at some point during the assessment period, although it is not necessary that the veteran has being doing so for the whole of the assessment period.
75. For the above reasons, we do not consider that s. 24(2)(d) of the Act applies to the Applicant. However, as we have noted, the Applicant's application succeeds without recourse to that provision.
DECISION
76. The Tribunal sets aside the decision of the Board made on 27 February 2007 and the decision of the Commission dated 18 July 2006 and substitutes a decision that the Applicant is entitled to a special rate of pension with effect from 30 December 2005.
I certify that the 76 preceding paragraphs are a true copy of the reasons for the decision herein of Ms LR Tovey, Member and Dr D Weerasooriya, Member
Signed:………………[Sgd Ms C Skinner].............................
AssociateDates of Hearing: 16 October 2007
Date of Decision 14 January 2008
Representative for the Applicant Mr R Grayden
Representative for the Respondent Mr C Ponnuthurai
Solicitors for the Applicant Hammond Worthington
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