Hall and Repatriation Commission (Veterans' entitlements) - [2024] ARTA 521

Hall and Repatriation Commission (Veterans' entitlements) [2024] ARTA 521 (14 November 2024)
Applicant/s:  ROBERT ANDREW HALL
Respondent:  REPATRIATION COMMISSION
Tribunal Number:                2023/9213

Tribunal:Member A McLean Williams
Place:Brisbane
Date:14 November 2024

Decision:The Tribunal affirms the decision under review.

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[Member Surname]
Catchwords
VETERANS ENTITLEMENT ACT – Where the Applicant has sought review of a decision – disability pension at the extreme disablement rate – Applicant sought an increase in the disability pension to the ‘special’ rate available under the Veterans Entitlement Act – question of the Applicant’s last paid work undertaken – what constitutes paid work – whether casual work as a funeral celebrant constitutes paid work -– paid work involves part-time or casual work – binding Federal Court authorities that reiterate that last paid work is not limited to full-time employment - the decision under review is affirmed
Legislation
Veterans Entitlements Act 1986
Cases
Carter and Repatriation Commission [2001] FCA 992 at [24], per Branson J.
Grant and Repatriation Commission [1999] FCA 1629
Statement of Reasons

Retired Lieutenant Commander (LCDR) Andrew Robert Hall (‘the Applicant’) seeks a review before the Tribunal of a decision by the Veteran’s Review Board (‘the VRB’) dated 17 August 2023,[1] which had affirmed an earlier decision by the Repatriation Commission dated 3 November 2022 to continue LCDR Hall’s disability pension at the extreme disablement adjustment rate, pursuant to section 22 of the Veteran’s Entitlements Act 1986 (‘the VEA’).
[1] T1.1
LCDR Hall seeks an increase in the rate of his disability pension to the ‘special’ rate, available pursuant to section 24 of the VEA.
Background and Chronology
LCDR Hall, now aged 71-years, was born on 26 October 1952 and enlisted in the Royal Australian Navy on 12 January 1970.[2] LCDR Hall served continuously for more than 47 years until his discharge upon attaining compulsory retirement age (‘CRA’) on 26 October 2017.
[2] T4/27; 78/40.
In December 2015, LCDR Hall transferred from the permanent naval force to the Royal Australian Navy Reserve (RANR) whereupon he continued to serve until his discharge, on attaining CRA. Whilst still serving in the RANR, on 9 February 2016, LCDR Hall also commenced self-employment as a Funeral Celebrant and has been engaged in this occupation ‘constantly and continuously’,[3] ever since.
[3] Statutory Declaration of Robert Andrew Hall declared 2 July 2024 (T447).
LCDR Hall receives a VEA disability pension because of a number of service-related conditions. It is unnecessary for the Tribunal to document all of LCDR Hall’s accepted conditions, other than to note that on 25 August 2018 a Delegate of the Repatriation Commission accepted claims for tinnitus, lumbar spondylosis, thoracic spondylosis, PTSD, and dysthymic disorder, and increased the rate of disability pension to 100% of the general rate, with effect from 4 July 2017.
On 28 January 2020, a further service-related medical condition was accepted, and LCDR Hall’s disability pension was continued at 100% of the general rate, with effect from 20 May 2019.
On 30 March 2020, LCDR Hall applied to the VRB for a review of the determination dated 28 January 2020. On 16 July 2020, the VRB set aside the determination dated 28 January 2020 and instead substituted a determination that LCDR Hall’s disability pension should be paid at the ‘extreme disability adjustment’ rate, with effect from 20 May 2019.
On 10 October 2022, LCDR Hall applied for an increase in the rate of his disability pension.[4] As of 10 October 2022, LCDR Hall was 69 years of age.
[4] T51.
On 3 November 2022, a Delegate of the Repatriation Commission determined that LCDR Hall’s disability pension should continue to be paid at the extreme disability adjustment rate with effect from 10 October 2022.
LCDR Hall then applied to the VRB for a review of the determination dated 3 November 2022, claiming that the Repatriation Commission had incorrectly refused his claim for special rate pension.
On 17 August 2023,[5] the VRB affirmed the decision made by the Repatriation Commission on 3 November 2022, indicating that it was not reasonably satisfied that LCDR Hall met the eligibility criteria for pension payable at the special rate as set out in section 24(2A)(d) or section 24(2A)(g) of the VEA.
[5] T1.1.
On 5 December 2023, LCDR Hall applied to the Administrative Appeals Tribunal (‘AAT’) for review of the VRB’s decision dated 17 August 2023.
On 14 October 2024, the AAT became the Administrative Review Tribunal (‘the Tribunal’). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (‘the Transitional Act’), applications for review to the AAT that were not finalised prior to 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT.
ISSUES BEFORE THE TRIBUNAL
LCDR Hall is already the beneficiary of a veteran’s disability pension obtained by means of a successful application under section14 of the VEA, currently paid at the extreme disability adjustment rate pursuant to section 22 of the VEA.
Section 15 of the VEA thereafter affords a pathway for veterans to apply for an increase in their rate of pension. Once such an application is made, s.19(5C) of the VEA outlines the matters that must be assessed. These are:
(a)the rate or rates at which the pension would have been payable from time to time during the “assessment period”; and
(b)subject to subsection 19(6), the rate at which the pension is payable.
The assessment period - as referred to in section19(5)(c) - is defined in section19(9) of the VEA as the period starting on the day on which the application was received, and ending when the application is determined. LCDR Hall had applied for an increase in the rate of his pension on 10 October 2022. Accordingly, the ‘assessment period’ commences on 10 October 2022, and now runs until the date of this Tribunal’s decision.
By way of his application for an increase in pension as lodged on 10 October 2022 LCDR Hall considers that he is entitled to disability pension at the special rate, as provided under section 24 of the VEA.
Relevantly, section 24 of the VEA provides:
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.
(2A)This 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; and
(e)     because the veteran is so prevented from undertaking his or her last paid work, the veteran is suffering a loss of salary or wages, or of earnings on his or her own account, that he or she would not be suffering if he or she were free from that incapacity; and
(f)the veteran was undertaking his or her last paid work after the veteran had turned 65; and
(g)     when the veteran stopped undertaking his or her last paid work, the veteran had been undertaking remunerative work for a continuous period of at least 10 years that began before the veteran turned 65; and
(h)section 25 does not apply to the veteran.
(2B)For the purposes of paragraph   (2A)(e), a veteran who is incapacitated from war - caused injury or war - caused disease or both, is not taken to be suffering a loss of salary or wages, or of earnings on his or her own account, because of that incapacity if:
(a)     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
(b)the veteran is incapacitated, or prevented from engaging in remunerative work for some other reason.
(3)This section also applies to a veteran who has been blinded in both eyes as a result of war - caused injury or war - caused disease, or both.
(4)Subject to subsections   (5), (5A) and (6), the rate at which pension is payable to a veteran to whom this section applies is $1,595.66 per fortnight.
(5)Subject to subsections   (5A) and (6), the rate at which pension is payable to a veteran to whom section   115D applies (veterans working under rehabilitation scheme) is the reduced amount worked out using the following formula:
(5A) If:
(a) section 115D applies to a veteran because of subsection 115D(1A); and
(b)the veteran is engaged in remunerative work of more than 8 hours, but less than 20 hours, per week as a result of undertaking a vocational rehabilitation program under the Veterans' Vocational Rehabilitation Scheme;then, subject to subsection (6) of this section, the rate at which pension is payable to the veteran is the higher of the following amounts:
(c) the amount worked out under subsection (5) of this section;
(d) the amount under subsection 23(4).
(6)If section 25A applies to a veteran, the rate at which pension is payable to the veteran is the rate per fortnight specified in subsection (4), (5) or (5A) of this section, reduced in accordance with section 25A.
An important aspect of this case is the fact that LCDR Hall was already older than 65 years as at the date of his making application for an increase in the rate of his disability pension. In these circumstances section 24(2A) (above) of the VEA is applicable.
By reason of the use of the conjunctive “and” in section 24(2A), all of the requirements of the various sub-paragraphs (a) – (g) inclusive in section 24(2A) must be satisfied.
It is uncontentious that LCDR Hall satisfies the requirements of section 24(2A)(a), 24(2A)(b), and 24(2A)(c). However, the Respondent submits that LCDR Hall becomes ineligible for an increase in the rate of his pension to the special rate by reason of, inter alia, his falling at the fourth hurdle, section 24(2A)(d) of the VEA.
Relevantly, section 24(2A)(d) provides:
(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
The expression “remunerative work” as used in section 24(2A)(d) is defined in section 5Q of the VEA, and is expressed to include ‘any remunerative activity’. These are obviously words of wide import.
The expression “last paid work” as also used in section 24(2A)(d) of the VEA has been determined to mean “the remunerative work…that the veteran was last undertaking before he or she made the claim or application”.[6]
[6] Carter and Repatriation Commission [2001] FCA 992 at [24], per Branson J.
In Grant v Repatriation Commission the Full Federal Court explained the operative effect of section 24(2A)(d) in these terms:
[8]In order for a decision-maker to be satisfied that the criterion in s.24(2A)(d) has been met the decision-maker must determine:
·The “remunerative work” that the veteran was last undertaking before he or she made the claim or application;
·Whether the veteran is, at any time during the assessment period, because of an incapacity from war-caused injury or war-caused disease or both, alone, prevented from continuing to undertake that remunerative work
[9]Determination of the “remunerative work” referred to in s.24(2A)(d) requires the characterisation of the specific remunerative activity or activities that the veteran was last undertaking before making the claim or application rather than of the capacity in which that work was undertaken. The particular capacity in which the work was undertaken is dealt with as a separate criterion in s.24(2A)(g). Thus, whether or not the work was undertaken as an employee or as a self-employed person is irrelevant to the characterisation to be given to that work under s.24(2A)(d). That conclusion follows from the definition of “remunerative work” in s.5Q, the recognition in s.24(2A)(g) that the capacity in which work is undertaken is to be treated as a matter separate from the work that was undertaken for the purposes of s.24 and is consistent with the purpose of s.24(2A) of providing for payment at the special rate where a person is prevented solely by war-caused incapacity from continuing to undertake the work that the veteran was last undertaking before making the claim or application. In our view it would be inconsistent with that purpose for the characterisation of that work to include, or to be made to depend upon, the capacity in which that work was undertaken.[7]
[7] [1999] FCA 1629.
Which work constitutes LCDR Hall’s ‘last paid work’?
As indicated in the foregoing, LCDR Hall commenced self-employment as a Funeral Celebrant after his transfer to the naval reserve and has continued in that capacity ever since retirement from naval service, upon attaining CRA.
In oral evidence before the Tribunal on 31 October 2024, LCDR Hall informed that since his first commencement as a Funeral Celebrant on 9 February 2016, he has acted as officiating celebrant at more than 450 funerals, for which he has been remunerated, albeit this never entails more than a few hours of work per week, and is only modestly remunerated, in all events.
LCDR Hall also informed the Tribunal that he approaches his role as a Funeral Celebrant ‘more as a form of therapy’, and as part of an effort to make himself continue to engage with the broader community in a meaningful and socially constructive fashion, thereby resisting any inclination towards social isolation arising because of his symptoms of PTSD. LCDR Hall’s evidence is accepted by the Tribunal. He is to be commended for his resolve in that regard.
LCDR Hall submits that his “last paid work” should be assessed as his employment as a permanent naval officer, even prior to his transfer to the RANR and the date of his discharge from the Royal Australian Navy upon attaining CRA, such that the Tribunal should consider that any work as a Funeral Celebrant is to be categorised only as therapy for PTSD (albeit modestly remunerated therapy), and not as “remunerative work” in the context of an assessment of his “last paid work”.
Unfortunately, even if the Tribunal were to so find, this would not assist LCDR Hall, given that section 24(2A)(f) requires that he be undertaking work as a naval officer even after having attained 65 years of age. LCDR Hall did not do this, having discharged from the Navy upon his attaining CRA.
Further, and unfortunately, the state of the Federal Court authorities that are binding on the Tribunal would also not reasonably permit the Tribunal to find favour with this argument. Grant v Repatriation Commission, in particular, stands as authority for the proposition that ‘last paid work’ is not limited to full-time employment, but can include part-time or casual work, as well. In light of the definition of remunerative work in section5Q of the VEA; and in further light of the authorities in both Carter[8] and Grant,[9] LCDR Hall’s last paid work is assessed as the work still being undertaken by him as a Funeral Celebrant, albeit only for a few hours per week, and then so only modestly remunerated. In that context, it cannot here be said that LCDR Hall has been prevented from undertaking his last paid work (as a Funeral Celebrant) because of any incapacity caused by either war-caused injury or war-caused disease (or both of these) “alone”. On the available evidence LCDR Hall has continued to work as a Funeral Celebrant, even despite the fact of his VEA-accepted conditions. That work has been undertaken by LCDR Hall constantly and continuously since 2016, such that it is not able to be readily categorised as of such little consequence as to be able to be ignored by the Tribunal when it is required to consider what constitutes LCDR Hall’s “last paid work”. In these circumstances LCDR Hall cannot satisfy the requirements of section 24(2A)(d).
[8] Paragraph [24], above.
[9] Paragraph [25], above.
As observed in earlier passages of these reasons, the requirements of the various subsections (a) – (g) in section 24(2A) are cumulative. It is impossible to overlook the conjunctive “and” linking each of these sub-sections. Each must be satisfied in order to crystallise an entitlement to special rate pension. Therefore, in the case of any veteran applicant who is above the age of 65 years, failure on any one of the subsections in section 24(2A) becomes determinative of an ineligibility for pension at the (section 24) special rate.
DECISION
Pursuant to section 105(a) of the Administrative Review Tribunal Act 2024 (Cth), the Tribunal affirms the decision made by a Delegate of the Respondent on 17 August 2023.

Date of hearing: 31 October 2024

for the Applicant: Mr Ken Cullen (Gaythorne RSL)

Solicitors for the Respondent:
Mr Jamie Watts (Senior Lawyer)

Australian Government Solicitor