Harris and Repatriation Commission (Veterans' entitlements) - [2025] ARTA 463

Harris and Repatriation Commission (Veterans' entitlements) [2025] ARTA 463 (24 April 2025)
Applicant:Stephen John Harris
Respondent: Repatriation Commission
Tribunal Number: 2023/3278

Tribunal:Senior Member D Thomae
Place:Brisbane
Date:24 April 2025
Decision:The Tribunal:
Dismisses the applicant’s application for 1. recusal.
2. Affirms the decision under review.

..........................[SGD]...........................
Statement made on 24 April 2025 at 11:09am
CATCHWORDS
VETERANS’ AFFAIRS – claim for special rate of pension –incapacity from war or war-caused disease – prevented from being able to continue to undertake remunerative work that he was undertaking – alone test – decision under review affirmed.
PRACTICE AND PROCEDURE – recusal application – apprehended bias because of previous appointment at Veterans’ Review Board in making decision involving applicant – recusal application dismissed.
Legislation
Administrative Review Tribunal Act 2024 (Cth)
Veteran’s Entitlements Act 1986 (Cth)
Cases
Banovich v Repatriation Commission [1986] FCA 397

Director of Public Prosecutions v Smith (2024) 98 ALJR 1163
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Fox v Repatriation Commission (1997) 45 ALD 317
Leane v Repatriation Commission [2004] FCAFC 83
Magill v Repatriation Commission [2002] FCA 244
Repatriation Commission v Hendy [2002] FCAFC 424
Repatriation Commission v Richmond [2014] FCAFC 124
Repatriation Commission v Smith (1987) 15 FCR 327
Repatriation Commission v Woodall [2015] FCA 1267
Richmond v Repatriation Commission [2014] FCA 272
Smith v Repatriation Commission [2014] FCAFC 53
Summers v Repatriation Commission [2015] FCAFC 36
Wright v Repatriation Commission (2005) 144 FCR 302

Statement of Reasons

INTRODUCTION

On 14 May 2023, the applicant, Mr Harris, made an application for review[1] to the General Division of the Administrative Appeals Tribunal (the AAT)[2] of the decision by the Veterans’ Review Board (the VRB) dated 26 April 2023[3] to affirm the determination that Mr Harris was not entitled to the disability pension at the ‘Special Rate’ pursuant to s 24 of the Veterans’ Entitlement Act 1986 (Cth) (VEA).
[1] Exhibit R1, T1.
[2] On 14 October 2024, the Administrative Appeals Tribunal 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), proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.
[3] Exhibit R1, T24,
By the VRB decision, it affirmed an earlier decision by the Repatriation Commission (the Commission) made on 20 December 2022, by which the Commission had determined to continue Mr Harris’s pension at 100% of the ‘General Rate’, with effect from 22 January 2021.
In doing so, the VRB had determined that Mr Harris did not qualify for the ‘Special Rate’ of pension, pursuant to s 24 of the VEA because he could not satisfy the ‘alone’ test due to his non VEA accepted conditions.
Mr Harris and Adjunct Professor Navathe, an occupational physician, gave evidence at the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] ARTA 463
Decision Date: 24 April 2025

CaseChat Overview and Summary

In the case of Harris and Repatriation Commission, the central issue was the eligibility of Mr Harris for a higher pension rate under the Veterans' Entitlements Act (VEA). Mr Harris, a veteran with various medically accepted and non-accepted conditions resulting from his military service, applied for an increase in his pension. The tribunal examined whether his conditions prevented him from undertaking remunerative work, thereby qualifying him for a 'Special Rate' or 'Intermediate Rate' pension. The tribunal's decision was based on whether Mr Harris met the stringent 'alone test' stipulated in the VEA.

The primary legal question before the court was whether Mr Harris’s incapacity, due to his war-related medical conditions, alone prevented him from continuing to undertake remunerative work. The court had to determine if Mr Harris met the eligibility criteria for either the 'Special Rate' or 'Intermediate Rate' pensions, taking into account his age, lack of recent work experience, and time away from the workforce. Additionally, the court considered the non-VEA accepted conditions such as cervical spondylosis and psoriasis, and whether these contributed to his inability to work.

The court found that Mr Harris's non-VEA accepted conditions, including cervical spondylosis and chronic small joint arthropathy of the right hand, did impact his capacity to undertake remunerative work. However, the tribunal concluded that Mr Harris had the capacity to work up to 20 hours per week in a sedentary role. Considering his age, lack of recent work experience, and time out of the workforce, the tribunal determined that Mr Harris did not meet the stringent 'alone test'. Consequently, the tribunal held that Mr Harris was not entitled to a 'Special Rate' pension and did not meet the requirements for an 'Intermediate Rate' pension either. The court's reasoning was that while Mr Harris’s conditions did impact his ability to work, they did not alone prevent him from continuing remunerative work to the extent required by the VEA.

The tribunal's decision affirmed the original determination, denying Mr Harris's application for an increased pension rate. The court found that Mr Harris was not prevented by incapacity alone from continuing to undertake remunerative work, and therefore, did not qualify for the higher pension rates under the VEA.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The non-contentious evidence was that:(a)In consequence of his military service Mr Harris has several VEA-accepted medical conditions (the VEA-accepted conditions):[16][16] Exhibit R1, T3.(i)major depressive disorder;(ii)thoracic spondylosis;(iii)bilateral osteoarthritis of the knees;(iv)lumbar spondylosis;(v)bilateral tinnitus;(vi)osteoarthritis of the right ankle; and(vii)bilateral sensorineural hearing loss.(b)Mr Harris has several medical conditions not accepted under the VEA (the non VEA accepted conditions):[17](i)cervical spondylosis; and(ii)psoriasis.(c)The assessment period commenced on 17 March 2021[18] and runs until the date of the Tribunal’s decision.(d)Mr Harris validly applied for an increase to his pension pursuant to s 15 of the VEA.(e)Mr Harris had not yet turned 65 at the time of his application (he was 63).(f)Mr Harris was being paid 100% of the General Rate pension by way of the 20 December 2022 determination that provided a lifestyle rating of 5 and an impairment rating of 70 points, combining to give a degree of incapacity of 100%.[19][17] Ibid.[18] Ibid, T8.[19] Ibid, T6.Mr Harris’s Evidence Mr Harris in his written statement, relevantly provides[20]:[20] Ibid.(a)Between 2009 and 2014 he worked for Evolution Traffic Group (‘Evolution’) as a traffic controller level 1 and eventually as level 2, he was on site and then a ute driver.(b)Most weeks he worked 40 hours or more but it varied.(c)He left employment with Evolution in September 2014 due to his plans to be a ‘grey nomad’.(d)Between 2014 and 2018 he travelled extensively around Australia and did not seek employment, relying on his superannuation funds.(e)In April 2018 he commenced working for Evolution again because he had run out of money.(f)From April 2018 he was employed as a level 1 traffic controller on site.(g)His hours varied from week to week but less than 30 hours per week as downturn in industry.(h)He left employment with Evolution in July 2019 because of pain and poor mental attitude.(i)Between July 2019 and March 2020, he did not work or seek employment because he was not physically capable. He was in a caravan park in Townsville trying to rest and recover.(j)In March 2020 he applied to work with Evolution again because he needed money to survive.(k)After March 2020 he did not seek any other employment because he was not physically or mentally capable and does not intend to in the future.(l)Since March 2020 he has travelled on cruises, national and international. He has travelled to Townsville from Brisbane to escape winter in 2020, 2021, 2022 & 2023.(m)He received his DFRDB pension from 25 January 1993. Further, Mr Harris states[21]:[21] Exhibit A3.(a)He last worked for Evolution on 9 July 2019.(b)Due to financial considerations, he was forced to seek continued employment and in early March 2020 he applied to Evolution to do a refresher course. (c)He completed the course successfully and submitted a health profile.(d)He was advised by Evolution HR that due to his medical issues he was no longer able to be employed by them and he should resign. [22][22] Exhibit R1, T15.(e)His resignation was accepted by Evolution on 12 March 2020.(f)On 19 May 2020 he was granted the DVA ‘gold card’. Prior to this he was unable to seek treatment for his accepted conditions and, at that time, non-accepted conditions.(g)He engaged a psychiatrist, Dr Sean Tracey, who prescribed Cymbalta and then Amitriptyline. He had negative experiences on those medications and ceased being under the care of Dr Tracey.(h)In March 2023, he was prescribed Venlafaxine, and this gradually stabilised his mental health. He was under the care of Dr Beaney, psychiatrist, and Dr Viray, general practitioner.(i)When he saw Professor Navathe on 19 February 2024, he had been on Venlafaxine for almost 12 months and 5 weeks short of turning 67.(j)He had applied for the old age pension.(k)His cervical spondylosis has never been a limiting factor in his ability to work.(l)His injury to his right hand was injected with cortisone by a Dr Jason Scott and it was fixed and remains ok.(m)An MRI identified a tear in his rotator cuff that he did not know was injured. It was fixed by Dr Levi Morse and he supposes it is better.(n)He was 63 when he applied for TPI and he had successfully completed the refresher course for Evolution.

Decision

Reasons for decision

Conclusion. The Tribunal accepts the evidence of Dr Navathe that Mr Harris’s cervical spondylosis and chronic small joint arthropathy of the right hand, whilst not the predominant conditions, do impact on Mr Harris’s capacity to undertake remunerative work. The Tribunal finds that Mr Harris’s non VEA accepted Conditions of cervical spondylosis and chronic small joint arthropathy of the right hand are contributing factors that affect Mr Harris’s capacity to work. Further, the Tribunal is reasonably satisfied that Mr Harris has the capacity to work for up to 20 hours per week in a sedentary role and takes into account his age, lack of recent work experience and time out of the work force as factors affecting his ability to obtain remunerative work. Therefore, the Tribunal finds that s 24(1)(b) of the VEA is not satisfied and, due to its cumulative requirements, s 24(1) is not satisfied, thus Mr Harris has no entitlement to a ‘Special Rate’ pension. Intermediate Rate Eligibility As stated above, Mr Harris satisfies the general eligibility conditions for Intermediate Rate. Again, based on the findings by the Tribunal that Mr Harris does not satisfy the ‘alone test’ and is capable of working up to 20 hours as well as his time out of work, lack of recent work experience and age, Mr Harris does not meet the requirements of s 23(1) of the VEA.Ameliorating Provisions The harshness of the strict requirements of the ‘alone’ test in eligibility for Intermediate or Special Rate can be ‘ameliorated’[53] by operation of ss 23(3) and 24(2)(b) of the VEA. The distinction can be ascribed to Mr Harris being ‘prevented’ from continuing his employment by incapacity for war caused injuries alone to circumstances where he is not working and his incapacity by war caused injuries was the ‘substantial’ cause of an inability to work.[54][53] Magill v Repatriation Commission [2002] FCA 244 at [8].[54] Repatriation Commission v Woodall [2015] FCA 1267 at [58]. As Mr Harris was not engaged in remunerative work when he applied for an increase in his disability pension, ss 23(3) and 24(2)(b) of the VEA are on the same terms, and in determining whether ss 23(1)(c) and 24(1)(c) are satisfied, three elements must be established.[55][55] See Smith v Repatriation Commission [2014] FCAFC 53 at 456. Applying the wording in ss 23(3) and 24(2)(b) of the VEA to Mr Harris the provision reads:Where Mr Harris, who is less than 65 years, who has not been engaged in remunerative work satisfies the Commission that [1] he has been genuinely seeking to engage in remunerative work, that [2] he would, but for that incapacity, be continuing so to seek to engage in remunerative work and [3] that incapacity is the substantial cause of his inability to obtain remunerative work in which to engage, Mr Harris shall be treated as having been prevented, by reason of that incapacity, from continuing to undertake remunerative work that Mr Harris was undertaking Firstly, whether Mr Harris has been genuinely seeking to engage in remunerative work[56]. [56] Leane v Repatriation Commission [20054] FCAFC 83

Ratio Decidendi

Legal Principle Established

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