Cowley and Repatriation Commission
[2001] AATA 120
•18 January 2001
DECISION AND REASONS FOR DECISION [2001] AATA 120
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2000/37
VETERANS' APPEALS DIVISION )
Re RUSSELL MAYOR COWLEY
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member M D Allen
Date18 January 2001
PlaceCoffs Harbour
ADMINISTRATIVE APPEALS TRIBUNAL ) No N2000/37
)
VETERANS' APPEALS DIVISION )
Re: RUSSELL MAYOR COWLEY
Applicant
And: REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member M D Allen
Date 18 January 2001
Place Coffs Harbour
DecisionFOR the reasons given orally at the conclusion of the hearing in this matter, the decision under review is AFFIRMED.
(Sgd) M.D. ALLEN
.............................
Senior Member
CATCHWORDS
veterans' entitlements - Application for Special Rate Pension. Applicant in receipt of pension at the Intermediate Rate. At time of application aged 75 and in receipt of Intermediate Rate since 1988. Application refused due to age, time out of the workforce, and unlikely Applicant would obtain work in the locality in which he resided.
Veterans' Entitlements Act 1986 - s19, s24,s24A, subs120(4)
Repatriation Commission v Smith 15 FCR 327
Cavell v Repatriation Commission 9 AAR 534
Repatriation Commission v Strickland 22 ALD 10
Re Hales and Repatriation Commission 11 ALD N281
Re Hanrahan and Repatriation Commissioner 26 ALD 766
REASONS FOR DECISION
Senior Member M D Allen
1.At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. After service upon the Applicant of a copy of the decision that was in fact made, the Applicant pursuant to Sub-section 43(2A) of the Administrative Appeals Tribunal Act 1975 requested the Tribunal to furnish to the Applicant a statement in writing of the reasons of the Tribunal for its decision.
2.The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.
The said transcript is annexed hereunto and furnished to the Applicant and to the Respondent as it is the reasons for the Tribunal's decision.
I certify that this and the preceding page are a true copy of the decision and reasons for decision herein of:
Senior Member M D Allen
Signed: Kwai-Ling Wong
..................................................................................……………………………….Associate
Date of Hearing 18 January 2001
Date of Decision 18 January 2001Representative for Applicant Applicant was self-represented
Advocate for Respondent Ms P Hook, Department of Veterans' Affairs
DRAFT DECISION [10.55am]
ADMINISTRATIVE APPEALS TRIBUNAL
Matter No N2000/37
By Mr M.D. Allen, Senior Member
RUSSELL MAYOR COWLEY and REPATRIATION
COMMISSION
COFFS HARBOUR, thursday, 18 january 2001MR ALLEN: In this matter, it is an application lodged with the Tribunal on 27 August 1999 seeking review of a decision by the respondent made 21 October 1998 and affirmed by a Veterans' Review Board on 23 June 1999 which continued the applicant's pension at the Intermediate Rate. The claim today, by the veteran, is that he should be paid at the Special Rate pursuant to section 24 of the Veterans' Entitlements Act 1986, as amended, commonly known as the TPI, Totally and Permanently Incapacitated Rate of pension.
In considering this matter the standard of proof is that provided by subsection 4 of section 120 of the VEA, namely that to the Tribunal's reasonable satisfaction. As was pointed out in Repatriation Commission v Smith 15 FCR 327, that equates to the civil standard of proof, namely that of proof on the balance of probabilities. The applicant's claim to have his pension increased from the Intermediate Rate to the Special Rate was lodged with the Department of Veterans' Affairs on 18 February 1998.
As provided by section 19 of the VEA the time for consideration of the matter is at the application day, namely that is to say the day upon which the applicant made the claim. In this case that was 18 February 1998 and at that time the applicant was 75 years of age. The applicant has the following incapacities accepted as being due to his war service, namely chronic bronchitis, lumbar spondylosis, hyertension, bilateral sensory neural hearing loss, vasomotor rhinitis and actinic skin damage.
The applicant was before this Tribunal during 1991 and on 7 June 1991 The Honourable J.R. Gibson, Senior Member, published a decision which determined inter alia that the applicant was entitled to pension at 90 per cent of the General Rate from 11 September 1986 to 21 December 1988 and to the Intermediate rate of pension, as and from 22 December 1988. The applicant, of course, pursuant to section 24A of the VEA is still in receipt of the Intermediate Rate of pension.
The criteria for the grant of pension at the Special Rate are set out in section 24 of the Veterans' Entitlements Act. Subs(2A) of section 24 applies to the case of a veteran who is over 65 when the claim for a TPI pension is made. It reads, inter alia:
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©Auscript Pty Ltd 2001This section applies to a veteran if:
(a) 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
(b) the veteran had turned 65 before the claim or application was made; and
(c) paragraphs (1) (a) and (1) (b) apply to the veteran; and
(d) the veteran is, because of incapacity from war-caused injury or war-caused disease or both, alone, prevented from continuing to undertake the remunerative work (last paid work) that the veteran was last undertaking before he or she made the claim or application; …
I would simply pause there and say that the word "alone" has been interpreted in the case of Cavell v Repatriation Commission 9 AAR 534. At page 539, Burchett J said that the task of the Tribunal in considering the alone test was:
…- to make a practical decision whether the veteran's loss of remunerative work is attributable to his service-related incapacities, and not to something else as well. It is a decision that should not be made upon nice philosophical distinctions, but with a eye to reality, and as a matter in respect of which common sense is the proper guide.
In this matter I am relying upon certain evidence which was given by the applicant in his earlier appearance before the Tribunal. In that earlier matter, the applicant gave evidence of how he was conducting the business of a company engaged in the sales of saddles and associated equestrian equipment.
Reading from the learned members decision in that matter, he said:
The applicant stated that he began to think about getting out of the business in about 1979 or 1980, … It was decided in 1980 to sell the business, but it was not possible to effect the sale until 1985, when the applicant said it was sold for one tenth of its true value. The applicant and his wife worked in the shop until 1982 and then it was continued by a temporary employee, with the applicant spending a few hours in the shop on about two days a week.
…At some time after 1982 he was forced to sell his home to meet business debts and then obtained rented premises at Terrigal. Before moving to Terrigal he had unsuccessfully sought employment in clerical work from two friends."
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©Auscript Pty Ltd 2001What I appertain then from the material before me is that the applicant, having received the intermediate rate of pension effective from 22 December 1988 is that he has not engaged in remunerative employment since that date. In 1988, on my mathematics, the applicant would have been 60 years of age. As I said when he made his application in this matter he was aged 75. One must therefore consider the effects of age and time out of the work-force in this matter. In Cavell v Repatriation Commission supra, it was held that prolonged absence from the work-force may also be an incapacitating factor.
I would also refer to the Full Court decision in Repatriation Commission v Strickland 22 ALD 10 where the Full Court of the Federal Court said:
In the course of its reasons, the AAT referred on several occasions to age 65. …
Age 65 was not an irrelevant matter. It is a common retiring age for employees and can be taken to reflect somewhat arbitrarily the community's general understanding of the effect of age upon ability to undertake gainful employment.
I would also refer to re Hales and Repatriation Commission 11 ALD N281 where the Tribunal stated:
A very lengthy period had elapsed between H's last employment, in 1967, and the relevant date in 1983. It was doubtful that a prospective employer would share H's view that he could cope with the new work techniques and practices which would have evolved during that period. The very substantial absence from the workforce would in itself be a considerable obstacle to his obtaining employment.
I would also refer to re Hanrahan and Repatriation Commissioner 26 ALD 766 where it was held that what needs to be considered is the state of the labour market in the area in which the veteran resides. Now, this matter has been heard in Coffs Harbour. The applicant's address is at Urunga, which I know from my knowledge is a somewhat short distance south of Coffs Harbour and I'm aware that the whole area can be considered as an area of high unemployment, although I've no specific evidence on the matter, I would consider that for a gentleman aged 75 years it would be extremely difficult for him to find any employment in this particular area.
Having regard therefore to the applicant's age at the time he made the application, the length of time which he has been out of the work-force, I am forced to the conclusion, thus am reasonably satisfied that those factors would also play a large part in the applicant's inability to obtain
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©Auscript Pty Ltd 2001remunerative work and therefore it cannot be said that he is unable to engage in remunerative activity because of incapacity from war caused injuries and diseases alone. For those reasons therefore, the decision under review will be affirmed.
I would only mention that the applicant perhaps has been badly advised previously in this matter as from what has been said to me I understand that he may have been of the impression that an application for pension is in some regards an ongoing matter. The fact and the law is that it is not, and that once a decision has been made as to rate of pension, it will stay at that rate unless and until a veteran makes an application to have it increased. For the reasons I have given, the decision under review is affirmed.
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