Francisco and Repatriation Commission

[2005] AATA 30

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 30

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2004/36

VETERANS’ APPEALS  DIVISION		)
Re		NOEL FRANCISCO

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member McCabe

Date14 January 2005

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

.................[Sgd].........................

Senior Member McCabe

CATCHWORDS

VETERANS’ ENTITLEMENTS – pensions and benefits – veteran seeks pension at special rate – whether veteran is by reason of incapacity from war-caused injury alone prevented from continuing to undertake remunerative work that the veteran was undertaking – effect of age, lack of transport, lack of employment opportunities – whether war-caused incapacity is the substantial cause of inability to obtain remunerative work – decision affirmed

Veterans’ Entitlements Act 1986

Flentjar v Repatriation Commission (1997) 48 ALD 1

Peacock v Repatriation Commission [2004] FCA 1149

REASONS FOR DECISION

14 January 2005	Senior Member McCabe
introduction

1. Noel Francisco enlisted in the Royal Australian Air Force (the RAAF) on 13 August 1957. He rendered operational service between 7 May 1960 and 24 November 1962. He suffers from a number of conditions that have been accepted as war-caused, including Post Traumatic Stress Disorder (PTSD) and alcohol abuse or dependence. He is currently paid a pension at 100% of the general rate, but he says he is entitled to receive payment at the special rate pursuant to s 24 Veterans’ Entitlements Act 1984. The respondent disagrees. The VRB affirmed the respondent’s decision. The applicant has now approached this Tribunal for relief.

the material before the tribunal

2. The Tribunal was provided with the documents required under s 37 of the Administrative Appeals Tribunal Act 1975. The following documents were also tendered in evidence:

• A document detailing the applicant’s work history;

• A letter from the applicant’s solicitors enclosing correspondence from the applicant;

• A report of Dr Danesi dated 15 July 2004;

• A statement of Billi Jo Alexander-Bridges dated 25 October 2004.

3.      The applicant gave evidence in person at the hearing. Ms Billie Jo Alexander-Bridges was to be called to give evidence over the telephone, but she could not be contacted. The parties agreed it was unnecessary to cross-examine her in relation to her statement.

4.      Mr Clutterbuck of counsel represented the applicant. Mr Smith, a departmental advocate, represented the respondent.

the factual background

5.      Mr Francisco was born on 23 November 1938. He enlisted in the RAAF as a young man and served overseas. He developed PTSD and started drinking as a result of his experiences while on operational service. He was 66 at the time of the hearing.

6.      The applicant was discharged from the RAAF on 12 August 1969. He worked in a succession of jobs. His work history is set out in exhibit 2. He said his drinking and the symptoms of his PTSD made it difficult for him to hold a job.

7.      Mr Francisco’s last job was with Oscar Enterprises Pty Ltd. The company employed him as a computer technician. It had a contract with a major bank and Mr Francisco was required to travel around New South Wales doing the work. He held down the job for 11 years. His employer gave him a reference for the purposes of his application for a pension. The letter can be found at T6, page 100. The managing director of the company, Mr Hackett, conceded in his letter of reference that the applicant was occasionally testy, rebellious and angry. The applicant said he thought Mr Hackett was tolerant of bad behaviour because he was an ex-serviceman. That may be so, but the letter of reference also makes it clear the applicant was good at his job. The letter is also quite clear that Mr Francisco’s employment with the company was ultimately terminated because he became redundant.  Apparently the company lost its major contract and ceased to trade.

8.      Since leaving Oscar Enterprises on 13 November 1998, the applicant has been unable to obtain work. He began receiving Newstart allowance and switched to a veterans’ pension in March 1999. He registered with Tursa Employment with a view to finding a new job. He also looked for jobs out of the paper and lodged his curriculum vitae with a number of organisations. Few of these approaches resulted in an interview. Mr Francisco confirmed he did not tell any of the prospective employers about his accepted medical conditions or the associated symptoms. He says Tursa alerted him to three vacancies during the time he was registered with them: two of them were inappropriate because he did not have a car and was unable to travel.  The other vacancy was filled before he was interviewed.

9.      Mr Francisco described an interview and driving test with Surfside Buslines. Surfside was advertising in the newspaper for bus drivers. The applicant said he thought there were three positions available, and he was aware there were a number of applicants. He thought the job would suit him because the Surfside depot was close to his home and he had experience driving heavy vehicles.

10.     The driving test was conducted by a supervisor. The applicant failed. He said he ran over the kerb (although he conceded this may have been because he had not driven a large vehicle in recent times) and he was nervous and irritable.  The supervisor apparently thought the applicant was not suited to driving a bus full of school children.

11.     Tursa took the applicant off its books when he turned 64. Mr Francisco understood this was because the agency formed the view he was unlikely to get a job because of his age. Ms Alexander-Bridge’s statement confirmed the applicant’s age was an obstacle to obtaining employment.

12.     I accept the applicant’s evidence that he genuinely wants to work, and I accept he has been making genuine efforts to find suitable employment. I also note Dr Danesi’s report. Dr Danesi suggests the applicant’s PTSD symptoms would make it difficult for him to work for more than 8 hours a week.

the legislation

13. Section 24 of the Veterans’ Entitlements Act 1986 (the VEA) governs the award of pensions at the special rate. The respondent concedes Mr Francisco satisfies the criteria set out in ss 24(1)(aa), (aab), (a) and (b). The dispute arises in relation s 24(1)(c). That sub-section requires 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 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

14.     The correct approach to the application of this provision was set out by the Full Federal Court in Flentjar v Repatriation Commission (1997) 48 ALD 1. Branson J explained (at 4-5):

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?

15.     The first of the questions raised in Flentjar can be dealt with easily. The applicant was working as a computer technician for Oscar Enterprises – his last paid employment.  The parties agreed it was then necessary for me to consider the circumstances in which the applicant lost that job – that is, the circumstances that prevent him from continuing to do that work.

16.     The letter from Oscar Enterprises to which I have already referred says the applicant was made redundant. Mr Clutterbuck said one should look behind the letter and consider the evidence of the applicant’s behaviour in the course of that employment. Mr Clutterbuck reminded me of the evidence suggesting the applicant was a difficult employee who would have been sacked long ago by a less tolerant employer. Mr Clutterbuck referred me to the decision of Dowsett J in Peacock v Repatriation Commission [2004] FCA 1149 where the applicant’s survival in his job was attributed to an unusually tolerant employer. The fact that the applicant was subsequently made redundant did not count against him.

17.     It is clear the applicant has had difficulty keeping jobs throughout his working life. It is also clear he was a difficult employee in some respects when he worked for Oscar Enterprises. I accept he benefited from having a tolerant employer. But I do not think the evidence of the applicant, when viewed in conjunction with the letter already discussed, puts this case in the same class as Peacock. Mr Hackett emphasised the applicant was good at his job. The applicant said he was occasionally difficult but would pull himself into line if he thought his job was in danger.

18.     The decision in Peacock says a proper reading of s 24(1)(c) and Flentjar require that I consider whether the applicant would have parted company with Oscar Enterprises in late 1998 or at any time throughout the assessment period “had he not been suffering the war-caused conditions from which he now suffers, to the extent to which they were then manifest”.

19.     The assessment period commenced on the date the applicant lodged his claim for a pension, which occurred on 1 November 2002. It is clear from the evidence that the applicant has been unable to obtain paid work of any kind both before and during the assessment period for reasons other than his PTSD and alcohol abuse symptoms. I have already noted the applicant did not even get an interview in relation to most of the jobs he sought – and the prospective employers knew nothing of his symptomatology. In at least one case, referred to in Ms Alexander-Bridge’s statement, he was told he was too old. In two other cases where he did get to the interview stage, he could not take the jobs because he had no transport. It may be that his symptoms were an obstacle in getting work with Surfside Buslines, but the balance of the evidence suggests his age and the lack of employment opportunities were the principal causes of his ongoing unemployment.

20. I note Dr Danesi says the applicant’s war-caused conditions prevent him from working. Even if I accept that finding, I cannot conclude his conditions were the only obstacles. He left his last job because he was made redundant and he was unlikely to get another during the assessment period because of his age, his lack of transport and the shortage of suitable places. It follows the applicant cannot satisfy s 24(1)(c).

21. It then becomes necessary for me to consider whether the applicant is able to take advantage of the ameliorating provision in s 24(2)(b) of the Act. I do not think he can. The sub-section is only available where the war-caused conditions are the substantial cause of the applicant’s inability to obtain paid employment. I have already explained that the applicant’s difficulties in finding a job have more to do with his age and the lack of both transport and employment opportunities. He tried valiantly to find work but his age and locale worked against him.

conclusion

22.     The decision under review must be affirmed.

I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member McCabe.

Signed:         .....................................................................................
  Associate:  Thomas Ritchie

Date of Hearing: 6 December 2004
Date of Decision: 14 January 2005
The applicant was represented by Mr Clutterbuck of counsel.
The respondent was represented by Mr Smith, a departmental advocate.