Hall and Repatriation Commission
[2005] AATA 990
•6 October 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 990
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2004/39
VETERANS' APPEALS DIVISION ) Re DEAN WALTER HALL Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member L Hastwell Date6 October 2005
PlaceAdelaide
Decision The Tribunal affirms the decision under review.
..............................................
L HASTWELL
(Senior Member)
CATCHWORDS
VETERANS’ AFFAIRS – veterans' entitlements – Disability Pension – special rate – availability of redundancy – alone test – applicant actively seeking employment during the assessment period – decision affirmed
Veterans’ Entitlements Act 1986 s 24
Flentjar v Repatriation Commission (1997) 48 ALD 1
Repatriation Commission v Hendy (2002) 76 ALD 47Cavell v Repatriation Commission (1988) 9 AAR 534
REASONS FOR DECISION
6 October 2005 Senior Member L Hastwell 1. Dean Walter Hall (the applicant) served for two years in the Australian Army (the Army) as a National Serviceman. This included service in Vietnam in 1970 and 1971. He currently receives a service pension from the respondent (the Commission) for a series of accepted disabilities, namely otitis media left ear, otitis externa both ears, tinea and post-traumatic stress disorder (PTSD).
2. On 26 February 2003, the applicant applied for an increase in his rate of pension. In that application he asserted that his PTSD had worsened and he could no longer work at all. He was granted a pension at 90 percent of the general rate by a decision of the Commission of 16 May 2004. The date of effect was the date of his application.
3. The applicant sought a review of that decision to the Veterans’ Review Board (the VRB) claiming that he was entitled to a higher rate of pension, and in particular that he should be paid the special rate of pension. The VRB affirmed the original decision on 12 December 2003. The applicant has applied to this Tribunal for a review of that decision.
background
4. Apart from his period in National Service, the applicant was an employee of Coca Cola Amatil (CCA) for his entire working life. He joined CCA as an executive trainee after leaving school in 1967.
5. The applicant was then called up for National Service. During his period of service he rendered operational service, within the meaning of the Veterans’ Entitlements Act 1986 (the Act), in Vietnam in 1970 and 1971. Upon his return from Vietnam he resumed his employment with CCA.
6. The applicant was regularly promoted over the years, and he was employed at National Senior Management level when he accepted a voluntary redundancy package in January 2001.
7. His final position with CCA was as the Venue Manager for the Sydney Olympics which was part of his role as National Food Services Manager. He ceased working for CCA in January 2001.
8. The applicant suffers from a number of accepted service related disabilities. He claims that his service related disabilities, and in particular PTSD, was the sole cause of him leaving his employment with CCA. He says that it is also his service related disabilities that prevent him from engaging in ongoing remunerative employment.
statutory framework
9. The applicant’s claim lies to be determined under s 24 of the Act, which provides as follows:
“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.
…”
The standard of proof is that of “reasonable satisfaction” in accordance with s 120(4) of the Act which provides:
“Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.”
issues for determination
10. It is common ground that the first two criteria as set out in ss 24(1)(a) and (b) of the Act are satisfied in this case. The applicant has an entitlement to a pension at a rate higher than 70 percent of the general rate [s 24(1)(a)], and he suffers incapacity from war-caused conditions or diseases which prevent him from working for periods aggregating more than 8 hours per week [s 24)(1)(b)].
11. The issue to consider in determining the applicant’s entitlement to a special rate pension is whether during the assessment period, which commences on the date of the application, the applicant satisfies what is known as the “alone test” in that his incapacity from war-caused conditions alone prevent him from undertaking remunerative work. In making this determination, the Tribunal must consider ss 24(1)(c) and 24(2) of the Act, and in particular determine:
·Did the applicant leave his last employment for reasons other than or in addition to his war-caused injury or disease; or
·If he is prevented from engaging in employment for some other reason, has he been genuinely seeking work and is his war-caused incapacity the substantial cause of his inability to obtain remunerative work.
the hearing and discussion of the evidence
12. The applicant gave evidence. The Commission called Mr Ted Hogben, the former National Human Resources Manager of CCA, to give evidence. The T documents were received into evidence, as were a number of other exhibits including the applicant’s personnel file.
13. It is common ground that the applicant suffers from PTSD and this is an accepted war-caused condition.
14. The evidence centred on the applicant’s motivation in leaving his employment and accepting a voluntary redundancy from CCA.
15. The applicant spent some time outlining to the Tribunal his work history with CCA and describing the level of responsibility he held in the latter part of his career. He described his various promotions until he was offered the position as Market Manager Food Services Australia in 1999, which lead to him being the Venue Manager for the Sydney Olympics. He acknowledged that he accepted this position knowing that there may not be a position available for him at the end of the Sydney Olympics, but that he was assured that CCA would do all that it could to find him appropriate employment when the Sydney Olympic games finished.
16. The applicant’s evidence was that he did not recall signing a contract or a letter of engagement when he accepted that position. He did recall signing a letter of engagement when he accepted a previous position. He could not recall signing any specific letter of engagement for the Olympics position. He was questioned at length on this point, and remained adamant that he could not recall such a letter when he took the Olympics position.
17. The new position necessitated the applicant relocating from Brisbane to Sydney. It was only after he took up this position that his general practitioner in Sydney referred him to Dr Altman for psychiatric treatment. Dr Altman diagnosed him as suffering from PTSD as a result of his war experiences. The applicant says that at his last appointment with Dr Altman, which records indicate was 14 September 2000, Dr Altman suggested that he consider giving up work because of his health problems.
18. In late September or early October 2000 the applicant recalled having discussions with Mr Hogben about what he would do now that the Olympics position was drawing to an end. He was offered a holding position within CCA based in Sydney, but on a lower level. He would remain on the same salary and benefits package, pending something more suitable to his skills and seniority level coming up within the organisation. He said that in the normal course he would have expected something suitable to come up within 18 months. He claimed to have no recollection of any discussion with Mr Hogben at that meeting about redundancy, or leave entitlements upon termination, or a voluntary separation package if he chose to leave his employment at that point rather than take up the offered position. He went away to consider his position and then advised Mr Hogben a few days later that he had decided to leave CCA. He denied giving as his reason for leaving, the company’s inability to provide him with a position appropriate to his skills and status. This was the reason recorded in CCA documents as being his reason for choosing to leave his employment.
19. The applicant denied having any specific understanding of what his separation entitlements would be when he made the decision to leave. He said that packages for senior executives were individually tailored and confidential. He said that he was uncertain as to whether redundancy provisions applied to senior managers, but he was confident that CCA would be “good” to him. He acknowledged that when he advised Mr Hogben a few days later of his decision to leave CCA, he gave no personal reasons for that decision.
20. At the time that the applicant decided to leave the CCA, he and his wife were in a reasonably comfortable financial position. They had a freehold home and an investment portfolio. They accepted they would need to reduce their lifestyle, but could still live comfortably.
21. The applicant claimed to have made no effort to ascertain his retirement benefits at any point before making the decision to resign. He acknowledged that he understood what a non-executive employee would receive by way of a redundancy if they left in his circumstances. However, he said that he was not familiar with any standard terms for a senior executive redundancy.
22. When pressed on this point the applicant said that retirement payments for senior executives varied and that at the least he expected to receive his annual leave, long service leave and some sort of relocation payment plus his superannuation. An additional termination component was something that he claimed to have no real idea about.
23. Some time after leaving his employment with CCA, the applicant was contacted by a colleague who had taken a position with CCA in China. Later in 2001 he assisted that colleague on a paid consultancy basis to do some work related to the South China games. He has not worked for remuneration or sought employment since that time.
24. The applicant gave evidence of suffering significant health problems for some time prior to his resignation, including the undiagnosed symptoms of PTSD from at least 1998 until it was diagnosed in 2000.
25. Mr Hogben gave evidence by telephone for the Commission. His statement was admitted as Exhibit R1. He said that when a person became excess to requirements and CCA were unable to provide a role for them, then they could be terminated on the grounds of redundancy. Redundancy payments had special components to them that would not normally be available to a retiring employee. If a person resigns rather than being made redundant then different and lesser entitlements apply.
26. Mr Hogben described the package provided to the applicant as being a standard redundancy package. The details of such a package were widely known, and this information was available on the Intranet to members of staff. He said he had hoped that the applicant’s career would not end. He pointed out that the higher up the organisation a person moves, the fewer the options in terms of redeployment.
27. Mr Hogben confirmed that a holding position was offered to the applicant. He agreed that the position could be seen to be a demotion from an organisational point of view. The applicant was assured that he would suffer no loss of benefits in taking the offered position. He would have a lower level of responsibility. The position offered was two levels lower than the position the applicant had held in the Olympics position. The decision that the applicant had to make was whether to take the lesser role and wait for something suitable to come up, or accept a redundancy offer that was on the table. He was of the view that the applicant would have stayed with CCA had the organisation been able to offer the right sort of position.
28. Mr Hogben recalled that the applicant expressed disappointment that a higher level job could not be found for him. He recalls having discussions with the applicant about whether they could find jobs for him outside CCA. They discussed the Winter Olympics and the possibilities those games may generate in the future.
29. Mr Hogben said that once a person declines to accept a redundancy they cannot come back saying that they have changed their mind and would like the option of redundancy put back on the table. The offer of redundancy is an employer initiative.
30. The Tribunal also had regard to various exhibits in reaching its conclusion. After the main part of the hearing was completed, the Tribunal received from the applicant’s solicitor a letter from CCA to the applicant dated 7 April 1999 and counter signed by the applicant, which specifically referred to the option of a redundancy payment at the end of the Olympics if an appropriate position could not be found for him. This was the letter of engagement that the applicant had been unable to recall when giving his evidence. The covering letter from his lawyer stated that he had found it among papers after the hearing finished. This letter was also contained in Exhibit A7, being the applicant’s personnel file.
31. The Tribunal had regard to all of the medical reports on file including the report of Dr Furze of 5 April 2005.
32. The transcript of the VRB hearing was before the Tribunal. In giving evidence before the VRB the applicant was adamant that he had no idea at all that there was the possibility of a redundancy being offered at the conclusion of the Olympics position. He said that there was no discussion or forewarning of this possibility when he took the position.
33. At the VRB hearing, the following comment was made by the applicant in response to a question from Mr Park about whether the applicant knew throughout his time in the Olympics position that a redundancy was an option when his job finished:
“We were told about 2 months before we would be finished, and there was no position and we would be made redundant.”
He went on to agree with Mr Park that the offer of a redundancy came like “a bolt out of the blue”. When it was put to him that he ceased work because there was no work available and he was made redundant and paid out in accordance with the company’s policy, the applicant’s response was “correct”.
34. There was some discussion during the hearing at the AAT as to whether the applicant had in his possession any record of a contract or letter of engagement with respect to the Venue Manager’s position. This is the letter already referred to and dated 7 April 1999. The following statement was contained in that letter:
“… I am very pleased to offer you the position of Market Manager, Food Services, Australia reporting to me. I have spoken to you about the opportunities you have in this role to make a significant contribution to the Australian business, and I welcome you to my national team.
… At the conclusion of the Olympics our intention is to find you an appropriate role, most probably within the New South Wales operation. Should an appropriate role in relation to your skill set and career expectations not be available, we will apply the prevailing redundancy provisions of CCA.
…
Should you elect to take redundancy at the end of the Olympics and you decide to relocate out of Sydney to another capital city, we will meet the cost of the removal of your household and personal effects to Brisbane, or pay you the equivalent dollar value to assist you in relocation to any other nominated interstate location.
…”
35. The Tribunal also noted that in the applicant’s personnel file a calculation of his termination entitlements had been done in February 1999. When the hearing resumed the applicant was asked about this. He indicated that he had no idea why this would have been done, and it was not at his initiative. He did admit in evidence that early in 1999 there was talk within the organisation of State General Managers being abolished.
36. Dr Furze’s report of 5 February 2002 [T14], records as follows:
“… Prior to the 2000 Olympics he was facing retrenchment and took a job as a venue manager for Coca Cola at Darling Harbour, knowing that the job would finish after the Olympics. …”
The applicant said that this passage was not accurate when it was put to him at the VRB hearing. Dr Furze was not called to give evidence before the Tribunal.
findings of fact
37. The Tribunal makes the following findings to its reasonable satisfaction:
·The applicant is 56 years of age.
·The applicant rendered operational service in Vietnam and suffers from a number of accepted service related disabilities including PTSD, which in itself renders him incapable of working more than 8 hours per week. He has been medically unfit to work more than 8 hours per week throughout the assessment period. He receives a service pension at a rate greater than 70 percent.
·The applicant worked for CCA throughout his working life. He was regularly promoted and was at a national senior manager level when he accepted a redundancy payment and left his employment at CCA in January 2001.
·The applicant was an excellent employee who performed his duties to a high standard.
·The applicant moved through a number of positions with CCA. It appears likely that retrenchment was being considered for some senior management in 1999, and his personnel file indicates calculations as to what his entitlements would have been under a voluntary redundancy had he left the organisation in February 1999.
·The applicant was appointed Market Manager Food, Services, Australia in April 1999, and was sent a letter dated 7 April 1999 confirming the terms of that appointment. He counter signed that letter which was contained on his personnel file and a copy was retained in his possession. That document made it plain that the position would end once the Sydney Olympics were complete. It stated specifically that he would have the choice of either taking a redundancy at the end of the Olympics or being appointed to another position.
38. The Tribunal is satisfied on all the evidence available that the applicant was aware from April 1999 onwards that the option of a redundancy was available to him at the conclusion of the Sydney games. The Tribunal does not accept the veracity of the applicant’s evidence on that point, and prefers the available objective evidence and the evidence of Mr Hogben.
39. The applicant had a history of a number of physical ailments which are set out in a letter marked as Exhibit A3. He had experienced patches of quite poor health in 1999 and 2000, which included a bout of gall stones requiring a period of hospitalisation in early 2000. Some of his conditions were not service related. The Tribunal is satisfied that the applicant was at the best in average health for a man of his age, and a number of conditions contributed to that state of health including some non-service related conditions.
40. The applicant relocated to Sydney for the purposes of his work at the Olympics in 1999. He was diagnosed as suffering from the psychological effects of his war service in 2000. He commenced consultations with a psychiatrist in Sydney during the year 2000, and began taking medication for depression and anxiety. He was diagnosed as suffering from PTSD. He continues to take medication and receive counselling on an ongoing basis for this condition.
41. The applicant was receiving a substantial remuneration package in his final years at CCA. He was one of the top level managers in Australia. During the Sydney Olympics he was receiving a substantial salary plus other incentives such as performance based bonuses and shares.
42. The applicant’s children had all completed their secondary education by the time the applicant was undertaking his final position. He and his wife owned a freehold house, and had an investment portfolio at the time that he elected to accept a redundancy.
43. The applicant was familiar with the terms of a redundancy package for non-executive employees. He was aware of a number of other executives leaving CCA and receiving packages during the many years that he was there. He had access to information on the Intranet as to what package he was entitled to upon being offered a voluntary redundancy.
44. The Tribunal is satisfied that he had a reasonable idea of the approximate quantum of his redundancy entitlements before he received the actual calculations and before he made the election. The Tribunal did not find the applicant’s evidence on that issue. He had been in the organisation for many years, and the information about redundancy payments was available to him. Documents on his personnel file, the letter that he produced to the Tribunal after the first hearing, and Mr Hogben’s evidence all support the Tribunal’s opinion that from April 1999 onwards he was aware of the redundancy package being available at the conclusion of the Olympics position, and he was aware that it would be a substantial sum.
45. The applicant performed to his usual standard of excellence during the period of the Olympics. He was suffering from the effects of his PTSD at the time, but it did not appear to affect his work performance in any way. His colleagues were unaware of any health problems.
46. There is no record of the applicant having had any sick leave related to his various ailments. However, CCA had a very generous and flexible policy with respect to sick leave for senior management as confirmed in Exhibit A4. Based on the applicant’s evidence, it is likely that CCA would have given him substantial time off if he wished to spend some time recuperating and managing his PTSD before returning to employment.
47. Once the Olympics were over the applicant had discussions with Mr Hogben, the National Human Resources Manager. They had discussions about what work was available to him. Mr Hogben advised him that there was a job available at a lower level pending a position at a more appropriate level becoming available. While acting at the lower level position the applicant would still be paid the higher level salary. The Tribunal accepts Mr Hogben’s evidence that the applicant expressed disappointment at the lack of availability of a suitable position, and that he and Mr Hogben had active discussions about what other more suitable positions may come up in the future. Mr Hogben understood that it was CCA’s inability to provide an appropriate position that lead the applicant to accept the redundancy and leave.
48. A person could resign from their employment at CCA in which case they would receive their usual leave entitlements. They could be terminated by the company for various reasons and not be eligible for a redundancy package because of the reasons for termination. They could become surplus to requirements and if that was the case a voluntary redundancy package would be offered. A voluntary redundancy package contained particular benefits upon retirement. They were not routinely offered, but only when special circumstances such as being excess to requirements dictated that they be offered.
49. The applicant had an option to take the redundancy or remain at CCA. It was a window of opportunity to take a redundancy, and if he elected not to do so at that point and had he taken the lower level position, an offer of redundancy may not be made again or certainly not in the foreseeable future.
50. The applicant accepted a redundancy package in January 2001. He received a substantial payout including 4 weeks of pay for every year of service, a bonus, 8 weeks in lieu of notice and other entitlements as set out in Exhibit A5. The cash payment he received was approximately $340,000.00 after tax. He retained his preserved superannuation entitlements.
51. After taking the voluntary redundancy package the applicant returned to live in Adelaide with his wife. An acquaintance offered him a contract to do some work associated with the South China games. He worked approximately 100 hours over 2–3 months in late 2001, and received US$10,000.00 for this work. He has not sought work since that time. He enjoys some voluntary activities as outlined to the VRB. He continues to suffer from poor health.
52. The Tribunal is satisfied that the applicant has chosen not to consider any further consultancies or employment since undertaking this one consultancy in 2001 after leaving CCA. He has not actively sought employment since leaving CCA.
application of the law
53. Sections 24(1)(a) and (b) of the Act are satisfied in this case. The only issue for the Tribunal to decide is the whether the applicant satisfies s 24(1)(c) of the Act. In making that determination the Tribunal must have regard to ss 24(2)(a) and (b) of the Act.
54. In Flentjar v RepatriationCommission (1997) 48 ALD 1 at pages 4-5 Branson J considered ss 24(1) and (2) of the Act. She formulated a series of issues to be considered in the context of s 24(1)(c) as follows:
“In my view the issues before the AAT in this case were as follows:
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?”
55. The applicant was undertaking remunerative work as a manager at a senior level. He was earning a substantial income. He was skilled to work at management level in an organisation whether large or small. The two questions that the Tribunal must specifically consider in this case are the second and third questions posed by Branson J.
56. Turning to the second question, the Tribunal must consider this question by reference to s 24(2)(a) of the Act. The issue is whether the applicant ceased remunerative work due to war-caused conditions alone. In Repatriation Commission v Hendy (2002) 76 ALD 47 the Full Court of the Federal Court said at paragraph 37:
“The language of s 24(1)(c) of the Act directs attention to the question of whether incapacity from the relevant condition alone prevents a veteran from continuing to undertake remunerative work. The provision does not contemplate that other factors are only to be taken into account if they, of themselves, prevent the Veteran from working. 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.”
57. In Cavell v Repatriation Commission (1988) 9 AAR 534, Burchett J referred to the true task of the decision-maker as being:
“.. 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 an eye to reality, and as a matter in respect of which common sense is the proper guide …”
58. The Tribunal is not satisfied that the applicant ceased his employment because of service related disabilities alone. The Tribunal is satisfied that other factors were influential, and part of the reason that the applicant ceased work when he did.
59. One of these factors was the availability of a redundancy payment in a substantial sum that would allow the applicant and his wife to retire and live comfortably. Such a payment was only available to him for a very limited window of opportunity. The Tribunal is satisfied based on the material on the applicant’s file, Mr Hogben’s evidence, and all other material admitted into evidence, that the applicant was aware of the window of opportunity that would come his way at the end of the Olympics, and that he accepted that opportunity at that point in time as such an opportunity may not be offered again.
60. A second factor was the inability of CCA to provide him with an appropriate position. The applicant was disappointed that nothing more challenging or interesting was available, and was not happy at the prospect of working at a lower level of responsibility.
61. The applicant was in average health. He was suffering the effects of PTSD, and in addition had a number of other health difficulties. That, combined with the above two factors, formed the basis of his decision to leave CCA when he did and retire. It was not service related disabilities alone that gave rise to his decision to leave CCA.
62. The Tribunal is satisfied that non service related factors as set out were influential in his decision to cease remunerative employment.
63. The applicant submits that the Tribunal should find that during the assessment period, which commenced after the applicant ceased his employment and on the date of his application (26 February 2003), the Tribunal should look to the provisions of s 24(2)(b) of the Act. This proposition was put very late in the piece by the applicant’s counsel, and had not been a proposition that the applicant initially relied upon.
64. Section 24(2)(b) of the Act requires that the Tribunal consider whether the substantial reason that the veteran is not working during the assessment period is because of service related disabilities.
65. The Tribunal is satisfied that the applicant has not been actively seeking work during the assessment period. A short contract to consult with respect to the South China games came to him through word of mouth, and he completed that consultancy successfully with no difficulties. It was work he could do largely at home on the computer, but he also travelled to China as part of the engagement and was paid a good sum for his services. He has given evidence that he has not sought work since that time. That in itself is not determinative of the issue. If the Tribunal finds that service related disabilities are the substantial cause of him not seeking work during the assessment period then he can succeed.
66. The fact that the applicant’s war-caused disability prevents him working for more that 8 hours per week does not of itself mean that he satisfies s 24(2)(b) of the Act. The applicant has multiple health difficulties that extend beyond war-caused disabilities. He has shown no inclination to seek work during the assessment period. He is financially comfortable and is currently of an age where it is a reasonable lifestyle decision to enjoy retirement. The Tribunal is of the view that he made an active choice to retire when he took the package. His entire career was with CCA, and the applicant made it clear in his own evidence that he was not really interested in any other work once he made the decision to leave CCA.
67. The Tribunal finds that s 24(2)(b) of the Act is not satisfied in that the applicant has elected to retire, and this is the substantial reason he has not attempted to find work or attempt consultancies during the assessment period.
68. In all the circumstances the Tribunal affirms the decision under review.
I certify that the 68 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member L Hastwell
Signed: .....................................................................................
AssociateDate/s of Hearing 3-4 March 2005 and 9 May 2005
Date of Decision 6 October 2005
Counsel for the Applicant Mr P Broderick
Solicitor for the Applicant Lempriere Abbott McLeod
Counsel for the Respondent Mr A Crowe
Solicitor for the Respondent DVA
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