Frederick Ferdinands and Repatriation Commission

Case [2014] AATA 215

[2014] AATA 215

Division VETERANS' APPEALS DIVISION

File Number

2013/3332

Re

Frederick Ferdinands

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal

Mr R G Kenny, Senior Member
Date 11 April 2014
Place Brisbane

The Tribunal affirms the decision under review.

........................Sgd.............................................

Mr R G Kenny, Senior Member

CATCHWORDS

VETERANS’ AFFAIRS – Benefits and entitlements – Disability pension payable at 100% of general rate – Eligibility for special rate of pension – Incapacity from war-caused conditions sufficient to prevent the applicant from undertaking remunerative work for more than 8 hours
per week – Accepted disabilities alone not responsible for inability to undertake remunerative
work – Decision under review affirmed

LEGISLATION

Veterans’ Entitlements Act 1986 (Cth) ss 15, 19, 23, 24, 120

CASES

Banovich v Repatriation Commission (1986) 69 ALR 395

Flentjar v Repatriation Commission (1997) 26 AAR 93; (1997) 48 ALD 1

Repatriation Commission v Alexander (2003) 75 ALD 329

Repatriation Commission v Hendy (2002) 76 ALD 47

Repatriation Commission v Smith (1987) 15 FCR 327

Willis v Repatriation Commission [2012] FCA 399

REASONS FOR DECISION

Mr R G Kenny, Senior Member

11 April 2014

  1. On 23 July 2012, Frederick Ferdinands (“the applicant”) applied, under s 15 of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”), to the Repatriation Commission (“the respondent”) for an increase in the rate of pension payable to him in respect of the following conditions: posttraumatic stress disorder, gastro oesophageal disease, irritable bowel syndrome, penile warts, erosive duodenitis, lichen planus, miliaria rubra, erectile dysfunction, bilateral sensorineural hearing loss, tinnitus, malignant neoplasm of the prostate, major depressive disorder and alcohol use disorder in partial remission.


    He had been in receipt of pension at 100% of the general rate. On 20 August 2012, the respondent rejected the applicant’s claim and continued pension at 100% of the


    general rate. The respondent’s assessment decision was reviewed and affirmed by the


    Veterans’ Review Board (“the Board”) on 18 June 2013.

    ISSUES AND LEGISLATION

  2. The standard of proof applicable to assessment of pension is set out in s 120(4) of the Act, which requires that matters be determined to the decision-maker’s reasonable satisfaction.

    This imports the civil standard of proof so that matters must be determined on the balance of probabilities.[1] The procedure to be followed is set out in s 19 of the Act. It requires the rate of pension to be determined during the “assessment period” which is defined as meaning the period starting on the application day, in this case


    23 July 2012, and ending when the claim or application is determined.[2]

    [1] Repatriation Commission v Smith (1987) 15 FCR 327 at 335.

    [2] Veterans’ Entitlements Act 1986 (Cth) ss 19(5C)(a), 19(9).

  3. It is not disputed that the general rate of pension payable to the veteran was correctly assessed at 100% of the general rate. The issue raised for the applicant is whether he meets the criteria for payment of an earnings-related rate of pension under s 23 or s 24 of the Act (the intermediate and special rates, respectively) and,…

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Frederick Ferdinands and Repatriation Commission [2014] AATA 215
Case
[2014] AATA 215
Decision Date

CaseChat Overview and Summary

The case of Frederick Ferdinands and the Repatriation Commission involved a dispute over the eligibility of the applicant for a special rate of pension under the relevant legislation. The primary issue was whether the applicant met the criteria set out in section 24(1)(c) of the Act, which requires that the veteran's inability to engage in remunerative work be solely due to war-caused injury or disease. The applicant, a former Australian Army serviceman, argued that his accepted disabilities were the sole reason preventing him from continuing in remunerative work. The Repatriation Commission contended that other factors, unrelated to the applicant's disabilities, were also preventing him from obtaining work.

The court considered the four key questions relevant to section 24(1)(c) of the Act, focusing on whether the applicant's war-caused incapacity was the sole reason preventing him from continuing in his previous engineering work. The court found that while the applicant's disabilities were severe enough to prevent him from continuing his work, there were other factors at play, such as his lack of a university degree and personal difficulties, which also contributed to his inability to secure employment. The court held that for the applicant to qualify for the special rate of pension, his war-caused incapacity must be the sole reason for his inability to work, which was not the case here.

Based on this reasoning, the court affirmed the decision of the Repatriation Commission that the applicant did not meet the requirements for the special rate of pension. The court's decision hinged on the interpretation of the "alone test" as articulated in previous cases, which necessitates that the war-caused incapacity be the exclusive reason for the inability to work. The applicant's failure to satisfy this criterion meant he could not be eligible for the special rate of pension.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the applicant, Mr John Lawrence of counsel and, for the respondent, Mr Bruce Williams agreed that the earliest date from which the special rate of pension may be payable is 23 July 2012. Mr Williams conceded that the veteran met the requirements of ss 24(1)(a)(i)[3] and 24(1)(b)[4] of the Act. However, he submitted that s 24(1)(c)[5] thereof has not been met by the applicant during the assessment period. Mr Lawrence advised that the applicant, who was aged under 65 years at the application date, had not sought remunerative work since he was awarded the service pension on 19 November 2009 and that, accordingly, no reliance was placed by him on s 24(2)(b) of the Act. He contended that all aspects of s 24(1)(c) of the Act were met by the applicant on the basis that it was the applicant’s accepted disabilities alone which had prevented him from continuing in or obtaining further remunerative work from 2005. Mr Williams submitted that the applicant has remained out of remunerative work since that time because of a range of factors unrelated to his accepted disabilities. [3] As well as its s 23(1)(a)(i) equivalent.[4] As well as its s 23(1)(b) equivalent.[5] As well as its s 23(1)(c) equivalentTHE APPLICANT’S EVIDENCE The applicant completed national service with the Australian Army in 1971. He was in a corps of engineers and was engaged in road and bridge building projects inSouth Vietnam as well as mine clearing and general infantry duties. He was promoted to the rank of corporal at that time. He then worked in the building industry before undertaking a two year course of study to obtain a certificate in civil engineering. For about 12 months, he worked for a private engineering company as a designer and site supervisor but wanted to work for the government. He joined the Main Roads Division (“Main Roads”) in the Queensland Public Service from 1978 where he was engaged in a wide range of design work particularly with roads and highways. His evidence was that he accepted a redundancy arrangement in 1997 because he wanted to undertake contract work. He did this with Main Roads in Roma and earned substantially more as a contractor than he had done as an employee. He returned to Brisbane and undertook periodic contract work with Main Roads and Translink until November 2005. The contract periods were up to six months and he had a break of a few weeks before commencing a further contract. His work involved him in design of bus stop signage as well as the organising of their manufacture and installation. He was also responsible for traffic engineering and road safety projects. The position which the applicant had filled on a contract basis was advertised as a permanent position in July 2006. He applied for it but was not successful. He understood that the final decision was made as between him and the successful candidate on the basis of their respective formal qualifications. He said that, although the advertised prerequisites for the position did not include a university degree, he understood that it was one of the “P positions” which required a university qualification.[6] He was told by “the boss” that he “needed a degree to get the job”. He understood that the relevant qualification was a university bachelor degree in engineering technology which he did not have. In his evidence to the Board, the applicant said that he was unsuccessful because he had “not been actively involved in design work since 1997” and “was no longer current with the programs which had been introduced since then”. In his evidence, the applicant agreed that he provided those responses to the Board but said that they were not correct statements. He said that he wanted to give “quick answers” and decided to respond with answers that he believed the Board members “wanted to hear”. He said that he was capable of upgrading his knowledge of any later programs and had remained computer literate through his involvement in a basic computer course he conducted with veterans. In a statement, dated 18 December 2013, the applicant wrote that he responded to the Board’s questions as he did because it was easier than attempting to explain his feelings associated with lack of concentration, frustration and not wanting to be with his co-workers.[6] See transcript of the hearing at p 27.

Decision

Reasons for decision

I am satisfied that the applicant does not meet the requirements for the payment of the special or the intermediate rates of pension because he fails to satisfy the terms of s 24(1)(c) or s 23(1)(c), respectively, of the Act.DECISION The Tribunal affirms the decision under review.

Ratio Decidendi

Legal Principle Established

Yen Nguyen completed a statutory declaration on 26 June 2012. She was under the applicant’s supervision in 1988 at the Main Roads Department. She is Vietnamese and she wrote that the applicant “had trouble with people at work and with [her] especially being Vietnamese.”CONSIDERATION I am reasonably satisfied that the concessions by Mr Williams in respect of ss 24(1)(a)(i) and 24(1)(b) of the Act have been properly made. I am also reasonably satisfied that such is the case in relation to s 24(2)(b) of the Act as conceded by Mr Lawrence.Section 24(1)(c) of the Act This provision involves a consideration of what the applicant would probably have done in the assessment period in the absence of his accepted disabilities.[7] The Federal Court has said that a proper consideration of paragraph 24(1)(c) of the Act[8] requires responses to the following questions:[9]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?”Question 1:[7] See Repatriation Commission v Hendy (2002) 76 ALD 47 at 54. [8] This has equal application to s 23(1)(c) of the Act.[9] See Flentjar v Repatriation Commission (1997) 26 AAR 93; (1997) 48 ALD 1 at 2. Relevant “remunerative work” refers to “the type of work which the member previously undertook and not to any particular job”.[10] As I understand the applicant’s situation, the relevant remunerative work is computer-based engineering work with an emphasis on traffic and road safety and design. Question 2:[10] See Banovich v Repatriation Commission (1986) 69 ALR 395 at 402. It is not contested that the applicant’s conditions which have been accepted under the Act are of sufficient severity to have prevented him from continuing to undertake that work. That is the effect of the reports of Dr Wakefield and Dr Thomis. This was throughout the assessment period. In particular, the conditions which have so prevented him are those relating to his psychiatric state. Question 3: The third of the questions noted above raises in issue the first part of s 24(1)(c)[11] of the Act through what is referred to as the “alone test”. In Willis v Repatriation Commission,[12] Bromberg J said:[23] The question raised by the “alone test” is not whether, on its own, the war-caused incapacity prevents the veteran’s continued employment. The question is whether apart from the war-caused incapacity, there is another factor or factors which prevent employment. The existence of other factors which prevent the veteran from working has a disqualifying result for an application for a pension at the special rate. The war-related incapacity must be the lone factor which prevents continued employment. That is what is meant by “alone”.[24] Another way of re-stating that proposition, which more closely focuses upon the language of s 24(1)(c), is that the alone test requires that the war-caused incapacity is the reason, rather than merely a reason, for the veteran’s inability to engage in the remunerative work which the veteran had previously done. If there is another reason which, independently of the war-caused reason, is preventing the veteran from working, the inability of the veteran to engage in remunerative work is not “by reason” of the war-caused incapacity “alone”.[11] And also s 23(1)(c) of the Act.[12] [2012] FCA 399 (emphasis in original).