Herd and Repatriation Commission
[2005] AATA 155
•21 February 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 155
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2003/410
VETERANS' APPEALS DIVISION )
Re BRUCE HERD Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr R G Kenny, Member Date21 February 2005
PlaceBrisbane
Decision The Tribunal affirms the decision under review. ....................[Sgd].......................
R G Kenny
Member
CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – special rate of pension – incapacity from war-caused conditions sufficient to prevent veteran from undertaking remunerative work for more than 8 hours per week - veteran not prevented by reason of incapacity from war-caused conditions, alone or substantially, from continuing to undertake remunerative work that he was undertaking – pension payable at 90% of the general rate – decision affirmed
Veterans’ Entitlements Act 1986 ss 5Q, 6C, 7, 15, 19, 22, 23, 24
Flentjar v Repatriation Commission (1997) 26 AAR 93
Leane v Repatriation Commission [2004] FCAFC 83
Rendell v Repatriation Commission [2001] FCA 1881
Repatriation Commission v Hendy (2002) 76 ALD 47REASONS FOR DECISION
21 February 2005 Mr R G Kenny, Member Background
1. In response to a claim for an increase in pension lodged on 11 October 2002 in accordance with section 15 of the Veterans’ Entitlements Act 1986 (the Act) by Bruce Herd (the applicant), a delegate of the Repatriation Commission (the respondent) determined, on 7 January 2003, that the degree of Mr Herd’s incapacity from his war-caused conditions of generalised anxiety disorder, peptic ulcer disease, sensori-neural hearing loss in the left ear and tinnitus was ninety percent. The respondent then determined that, in accordance with section 22 of the Act, pension was payable to him at ninety percent of the general rate.
2. On 4 April 2003, the decision of the respondent was affirmed by the Veterans’ Review Board and, on 9 May 2003, Mr Herd sought review of that decision by the Administrative Appeals Tribunal (the Tribunal).
3. Mr Herd attended the hearing and was represented by Mr R Clutterbuck of counsel. The respondent was represented by Mr D McAninly. The following material was taken into evidence:
exhibit 1:the “T” Documents (T1-T6) prepared in accordance with section 37 of the Administrative Appeals Tribunal Act 1975;
exhibits 2, 3 and 4: medical reports, dated 13 March 2001, 25 October 2001 and 12 February 2004, by Dr Bruce Lawford, consultant psychiatrist;
exhibit 5: a statement (with 2 annexures), dated 26 July 2004, by the applicant;
exhibit 6a further statement, dated 27 January 2004, by the applicant;
exhibit 7a statement, dated 8 August 2004 (with attachment), by Georgina Murray;
exhibit 8a medical report, dated 11 July 2003, by Dr Keith Adam, specialist in occupational medicine;
exhibit 9a medical report, dated 29 September 2003, by Dr Greg Knight, consultant occupational physician;
exhibit 10an Employment Questionnaire, dated 29 July 1999;
exhibit 11the applicant’s taxation records for the years 1998 to 2003;
exhibit 12payment advice sheets from the Queensland University of Technology;
exhibit 13a list of employment positions investigated by the applicant;
exhibit 14a medical report, dated 12 November 2004, from Dr Peter Mulholland, psychiatrist; and
exhibit 15a tertiary employment history of the applicant.
Issues and Legislation
4. The procedure which the respondent is required to follow in determining claims is provided for in section 19 of the Act. Paragraph 19(5C)(a) of the Act requires the rate of pension to be determined during the assessment period and that term is defined in subsection 19(9) of the Act in the following way:
“assessment period, in relation to a claim or application relating to a pension, means the period starting on the application day and ending when the claim or application is determined.”
5. The application day in this case was 11 October 2002 and the assessment period runs from that day until the matter is determined by the Tribunal. Mr Herd was born on 28 July 1945 and, on the application day, he was 57 years of age.
6. It is not disputed that the general rate of pension payable to Mr Herd was correctly assessed by the respondent at ninety percent of the general rate of pension. The issue raised by Mr Herd is whether he meets the criteria for payment of an earnings-related rate of pension under section 23 or section 24 of the Act. These relate, respectively, to the intermediate rate and special rate of pension. Specifically, Mr Clutterbuck submitted that the special rate of pension was payable in this case.
7. Because Mr Herd is under 65 years of age, the matters that need to be determined are whether or not he meets the requirements of paragraphs 24(1)(a), (b) and (c) of the Act. These read:
“24(1) This section applies to a veteran if:
(a) …..
(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;
……..
(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”
Applicant’s Work History
8. Mr Herd gave the following account of his employment history. He served in the Royal Australian Navy from 1965 until 1971 and was discharged with the rank of Petty Officer. From then, until 1976, he worked in spare parts, as a repossession agent and as a mechanic. He encountered relationship difficulties with his employers in each of his positions and felt that this had contributed to his decision on each occasion to leave and to seek employment elsewhere. He had also experienced problems with superiors while serving in the Navy. He had no difficulty in obtaining new employment and, in 1976, he was employed as a trades assistant in the maintenance section of the Reserve Bank of Australia in its Brisbane premises. He worked there until February 1993 and he experienced conflict with management. A restructure was taking place and the Reserve Bank was reducing its staff, particularly in the maintenance area, and he took a voluntary redundancy package along with another employee. He was advised that the redundancy package which he was being offered on a voluntary basis was more attractive than any subsequent offer that might be made and which would be compulsory.
9. While working with the Reserve Bank, Mr Herd was a karate coach until 1989 but it was noted in a report by occupational physician, Dr Greg Knight (exhibit 9), that he “never made much money out of” this. In his final years at the Reserve Bank, he completed his adult matriculation. He considered his position at the bank to be a “dead end job” and he wanted to improve his situation. He also wanted to involve himself in activities which improved his mind and he had developed sound study techniques while preparing for his matriculation examinations. He had intended enrolling part-time in a university course but, after becoming redundant, he commenced full-time study at Griffith University. He completed a Bachelor of Arts degree in Australian and Comparative Studies from 1993 to 1995 and then completed a further honours year of study in 1996. He achieved a grade point average of 5.7, on a scale of 1 to 7, over his degree programme. During the course of that study, Mr Herd was in receipt of income support payments from the Commonwealth in the form of Austudy under the Social Security Act 1991.
10. In 1997, Mr Herd enrolled at Griffith University in the Doctor of Philosophy programme on a part-time basis. He continued to receive income support payments from the Commonwealth in the form of newstart allowance. This obliged him to make attempts at finding full-time employment. To this end, he made many applications for work but was not successful. He was able, in 1997 and 1998, to obtain part-time employment at Griffith University as a research assistant and examination marker and at the Queensland University of Technology (QUT) as a tutor. During this period, he felt that his anxiety levels worsened as he became exposed to the pressures of part-time employment, the need to search for full-time employment and the need to maintain his study towards his doctorate. He recalled an occasion towards the end of 1998 when he was required by Centrelink to attend a period of training with an employment agency for the purposes of learning how to gain employment. This caused him to become highly agitated and anxious and, subsequently, he attended his general practitioner who referred him to a psychiatrist, Dr Bruce Lawford, who continues to treat him.
11. After seeing the psychiatrist in late 1998, Mr Herd lodged a claim for payment of the service pension under the Act. This was granted and, thereafter, he no longer received income support payments from the Commonwealth and was not required to seek and did not seek any full-time employment. In his statement (exhibit 6), he said he was reluctant to apply for the pension because he had set his heart on gaining full-time employment within the University sector. After being in receipt of the service pension, he continued with his doctorate but was then treating this as a hobby or an interest rather than work. He had difficulties maintaining the standards that he had achieved in the early part of his programme and cancelled his enrolment in mid 2002. He has been unable to do any form of academic work since then because a pre-condition to such employment was continuing enrolment in his doctoral studies.
12. Mr Herd referred to a list that he had drawn up of the various employers whom he had approached in 1997 and 1998 for the purposes of gaining full-time employment (exhibit 13). He was unsuccessful in all of these and, on many occasions, there was simply no response from the employer although, on others, he had been invited to attend an interview. In every case, he had been given no specific feedback as to why he was unsuccessful although, in his own mind, he believed it was because of his age.
13. Alcohol consumption had always presented Mr Herd with a problem since his days in the Navy. He had particular difficulties around 1976 but maintained steady levels of consumption in the order of two bottles of beer at the end of each day and, on occasions, would drink considerably more.
Other Evidence Given at the Hearing
Georgina Murray
14. Dr Murray was Mr Herd’s PhD supervisor at Griffith University. She said that, initially, Mr Herd’s work was of a high standard but that this deteriorated to a point where, in mid-2002, she recommended that he defer his enrolment in the programme. She said that he seemed to have lost confidence in his ability to continue and, in particular, had demonstrated reluctance to carry out a range of interviews which were central to the nature of the research he was undertaking towards becoming a sociologist. Dr Murray said that she had been involved in the supervision of at least twelve PhD students and that three of these had completed the programme.
Dr Keith Adams, Specialist in Occupational Medicine
15. Dr Adams examined Mr Herd on 1 July 2003. Mr Herd told him that things had become too much for him in 1998 and he had then sought help. Dr Adams said that it was difficult to distinguish between symptoms associated with PTSD, generalised anxiety disorder, depression and alcohol dependence because the symptoms often overlap.
16. In his report, dated 11 July 2003 (exhibit 8), Dr Adams said that there were inconsistencies in Mr Herd’s account of his symptoms which made it difficult to assess his true level of incapacity. As an example, he referred to Mr Herd’s assertion that he felt embarrassed when in public because of his hearing problems but then Dr Adam noted that hearing tests revealed that he had a very low level of hearing loss. In that report, Dr Adams also related Mr Herd’s account of his employment at the Reserve Bank. He told Dr Adams that he had experienced some anxiety while working there and had been retrenched. He also expressed the belief that he had got “on the wrong side of management when he involved the trade unions over possible exposure to asbestos dust”.
17. Dr Adams said that he believed Mr Herd was capable of working for more than eight hours per week and that, based upon his capacity to undertake his university studies, he would be able to do a wide range of employment tasks. In addition to those which he was undertaking in the Reserve Bank, he said that he would be able to undertake most kinds of general clerical work and would be able to do so for more than eight hours per week.
Submissions
18. Mr Clutterbuck submitted that the threshold general rate of pension requirement of section 24 was met by Mr Herd and that the evidence showed that his accepted disabilities prevented him from working for more than 8 hours per week. He submitted that this met the terms of paragraphs 24(1)(a) and (b) of the Act.
19. He also submitted that paragraph 24(1)(c) of the Act was satisfied. In relation to the nature of the work that should be taken into account for that provision, he submitted that this should be both the maintenance work at the Reserve Bank and also the university work that he did. He submitted that both of these ceased because of Mr Herd’s anxiety disorder and that he was prevented from continuing in employment because of his accepted disabilities alone. He also submitted that this has resulted in his suffering a loss of wages.
20. Mr Clutterbuck, in the alternative, submitted that Mr Herd had been genuinely seeking to engage in remunerative work as demonstrated by the material relating to job applications in 1997 and 1998 and that his accepted disabilities were the substantial cause of his being unsuccessful in obtaining work. Accordingly, he submitted that paragraph 24(1)(c) of the Act was met through the application of paragraph 24(2)(b) thereof.
21. Mr McAninly conceded that the requirements of paragraphs 24(1)(a) and (b) of the Act were satisfied but submitted that Mr Herd did not meet those of paragraph 24(1)(c) thereof. This was because incapacity from accepted disabilities alone, or substantially, was not preventing him from continuing in remunerative work. He submitted that there was contribution from incapacity associated with conditions unrelated to Mr Herd’s service including alcohol abuse/dependence and post traumatic stress disorder as well as his age and time out of the work-force. He also submitted that, while Mr Herd was receiving income support payments in 1997 and 1998 under the social security legislation, he had not been genuinely seeking employment. Rather, he had been making enquiries about employment to satisfy the criteria to ensure continuation of these payments. He also submitted that, since the end of 1998, he was in receipt of the service pension and, therefore, did not need to undertake or seek work.
Consideration
22. It is not in dispute that the requirements of paragraph 24(1)(a) of the Act are met. Mr Herd is in receipt of pension at more than seventy percent of the general rate.
23. I have noted the concession by Mr McAninly that paragraph 24(1)(b) of the Act is also met. I am satisfied that the concession is properly made. In that regard, I have relied on the reports from psychiatrists Dr Bruce Lawford and Dr Peter Mulholland. In a report, dated 5 April 2000, Dr Mulholland referred to “partial post traumatic stress disorder” and “marginal alcohol abuse” as well as generalised anxiety disorder. Dr Lawford had also made reference to post traumatic stress disorder but, in his reports dated 13 March 2001, 25 October 2001 and 1 March 2004 (exhibits 2, 3 and 4), Dr Lawford confirmed that the appropriate diagnosis was generalised anxiety disorder rather than post traumatic stress disorder. That was also the opinion of Dr Mulholland in his later report, dated 12 November 2004 (exhibit 14). Dr Mulholland was of the opinion that Mr Herd did not have and had never had post traumatic stress disorder. He also was of the opinion that he suffered from alcohol abuse/dependence but not depressive disorder. Dr Mulholland wrote that, while alcohol abuse was likely to have been aggravating the anxiety state, the primary reason for not being able to work 8 hours per week was his anxiety state.
24. Both occupational specialists, Dr Adams and Dr Knight, were of the opinion that Mr Herd’s war-caused disabilities were not sufficiently severe to prevent him from working for more than 8 hours per week. Dr Knight was provided with reports from Dr Lawford and only the first of Dr Mulholland’s reports. These left him believing that both anxiety disorder and post traumatic stress disorder were present with only the former being an accepted disability. Dr Knight said that there was no physical incapacity preventing Mr Herd from working and acknowledged that the only such limitation would be from his mental condition. He felt unable to express an opinion which required separation of the incapacity associated with each psychiatric condition that he understood Mr Herd to have. Dr Adams also perceived this difficulty and noted that such matters were outside his area of specialty. When he completed his report, Dr Adams also had before him the first report from Dr Mulholland. There, Dr Mulholland expressed the opinion that Mr Herd was not prevented from working for any reason associated with an accepted psychiatric condition. Dr Adams relied on this. However, as noted above, Dr Mulholland expressed a different opinion in his more recent report, dated 12 November 2004, which was prepared after Dr Adams gave his evidence.
25. I accept the evidence of Dr Lawson and Dr Mulholland that Mr Herd does not have post traumatic stress disorder and that he suffers from anxiety disorder. Both psychiatrists said that this condition was such that it would prevent him from engaging in remunerative work for more than 8 hours per week. In addition, Mr Herd has had accepted by the respondent, peptic ulcer disease, sensori-neural hearing loss in the left ear and tinnitus. I am satisfied that the effect of these conditions, mainly the psychiatric condition, is such that the requirements of paragraph 24(1)(b) of the Act are met.
26. The application of paragraph 24(1)(c) involves a hypothetical exercise which requires consideration of what Mr Herd would probably have done in the assessment period, which commenced in October 2002, in the absence of his accepted disabilities: see Repatriation Commission v Hendy (2002) 76 ALD 47 at 54. The matter will be resolved against Mr Herd if there are factors other than his accepted disabilities which also would have prevented him from continuing to undertake remunerative work.
27. The Federal Court in Flentjar v Repatriation Commission (1997) 26 AAR 93 said that a proper consideration of paragraph 24(1)(c) of the Act requires responses to the following questions:
“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?”
28. The term remunerative work is broadly defined in sub-section 5Q(1) of the Act as including any remunerative activity. In Mr Herd’s case, there was in evidence an Employment Questionnaire completed on 29 July 1999 by Mr M Fisher, the Reserve Banks’ manager for Queensland (exhibit 10). Therein, it is stated that Mr Herd worked for that institution from 25 October 1976 until 19 February 1993 as an “engineering employee” undertaking “moderate semi-skilled” duties in which he was engaged for 38 hours per week. Mr Fisher described “no significant periods of time lost due to illness” and also that the reason for termination of employment was “voluntary redundancy”. He noted that Mr Herd received a redundancy payment and that, if he had not taken the redundancy, there was no other reason that his employment would have been terminated in the foreseeable future.
29. Also in evidence were payment records from Griffith University in respect of work undertaken by Mr Herd for tutoring, for marking and for general research assistance in the period from September 1997 until December 1998 (exhibit 5). These reveal that, in the financial years ending June 1998 and June 1999, Mr Herd was paid $7,789 and $2,904, respectively. Those same amounts are entered as his income on his taxation returns for those years (exhibit 11). Payment statements from the QUT show that, in the first part of the financial year ending June 1999, Mr Herd earned $1,619 and this figure is referred to in his taxation return for that year (exhibits 11 and 12).
30. The relevant remunerative work for the purposes of section 24 is not limited to that most recently undertaken: see Hendy at 54. I am satisfied that the relevant remunerative work in this matter is constituted by that done by Mr Herd in building maintenance at the Reserve Bank from 1976 to 1993 as well as the work of an academic nature at Griffith University and the QUT, in 1997 and 1998, involving research assistance, taking tutorials and marking of examination papers. This work of an academic nature was not substantial in amount and clearly was engaged in on a part-time basis. That does not preclude it for consideration as remunerative work: see Rendell v Repatriation Commission [2001] FCA 1881 (at paras 39, 40).
31. The study programs for the completion of the degree and honours and that relating to the doctorate did not constitute remunerative work. At most, these were means to obtaining the remunerated academic work that Mr Herd did. I accept Mr Herd’s evidence that his continuing enrolment in the PhD program was a precondition to his remaining employed in an academic capacity. The doctorate, if completed, may have been a basis for obtaining future academic work.
32. In relation to the second of the Flentjarquestions, it is more probable than not that Mr Herd’s anxiety disorder would prevent him from undertaking each of the forms of remunerative work noted above. However, I am satisfied that the third Flentjar question is answered in the negative because it is not only the effects of his accepted disabilities which would have prevented him from continuing in the remunerative work identified above.
33. I am satisfied that Mr Herd would not be undertaking the type of maintenance work that he did at the Reserve Bank if he did not have his accepted disabilities. There may have been some tension in the work-place but this was not the reason for his departure from the Reserve Bank. Neither was the tension related to his anxiety. He told Dr Adams it was because he involved the trade unions over asbestos exposure and got on the wrong side of management. He took a voluntary redundancy and the employer said that there was no other reason that his employment would have been terminated in the foreseeable future. More significantly, he regarded that work as being a “dead-end” job which would lead to nowhere and he had made a conscious decision to change his career direction. He had completed matriculation and he chose to continue in this manner by undertaking full-time university study in which he was successful. He completed a bachelor’s degree with honours in 4 years. Also, by the commencement of the assessment period, he had not been involved in maintenance work for almost 10 years. He was, by then, aged 57, and it was Mr Herd’s own understanding that his age was a factor in not being able to get work when he applied for it in 1997 and 1998. He was four years older by the start of the assessment period. I am satisfied that his age, time away from maintenance work and his decision to follow a different career path were all factors which would have prevented him from continuing to be in that form of work at the time of his claim and thereafter.
34. After completing his degree, Mr Herd wanted to work in an academic capacity and, in a quite limited manner, he realised this ambition in 1997 and 1998. After that, he was in receipt of the service pension and, therefore, the matter of getting work did not arise.
35. If Mr Herd had wanted to continue with academic work of the kind that he was doing, I am satisfied that this could have been achieved only if he remained enrolled in or completed his doctoral studies. In evidence was a letter, dated 13 August 2002, from the Director of Post Graduate studies at Griffith University acknowledging Mr Herd’s withdrawal from the program as from 23 July 2002. That withdrawal would have precluded him from continuing to undertake academic work. I accept that his anxiety disorder played a role in discontinuing his PhD studies. Occupational physician Dr Knight, in his report dated 29 September 2003, expressed the opinion that Mr Herd’s psychiatric condition would impair him for continuation of his doctoral studies. Indeed, Dr Lawford, on 23 July 2002, wrote a letter to “whom it may concern” advising that Mr Herd was unable to continue working on his PhD for the following 12 months because of his anxiety. His supervisor, Ms Murray, also recommended, in a letter dated June 2002, that he defer his study. Rather than take a break as suggested by Dr Lawford and Ms Murray, Mr Herd withdrew from the program. From the end of 1998 when he began to receive the service pension until mid 2002, he treated the doctoral studies as a hobby or an interest without the same commitment he demonstrated previously.
36. At the commencement of the assessment period, Mr Herd was no longer enrolled in the PhD program and I am satisfied that this was a factor which would have prevented him from continuing to be engaged in remunerative work of an academic nature. Further, amongst the jobs that he included in the list of work he applied for before receiving the service pension were nineteen applications for research positions, sixteen applications for tutorial positions, three applications for a lecturing position and one application to undertake examination marking. Mr Herd’s evidence was that he believed that he did not get these jobs because of his age and, in that situation, I am also satisfied that his age was a factor which would have contributed to his not being engaged in remunerative work of that kind as at the start of the assessment period or thereafter. As the effect of his accepted disabilities was not the only factor preventing him from continuing to undertake maintenance work or academic work, this means that the third Flentjar question is answered in the negative.
37. The fourth Flentjarquestion arises if the second and third are answered in the affirmative which is not the case in this matter.
38. Mr Herd does not meet the requirements of paragraph 24(1)(c) of the Act as it is set out above. However, the operation of that provision is ameliorated by the terms of paragraph 24(2)(b) of the Act which reads:
“(2) For the purpose of paragraph (1)(c):
(a)…….
(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.”
39. In this case, the applicant is under the age of 65 years and it will be sufficient, to satisfy paragraph 24(1)(c) of the Act, if his service-related disabilities are the substantial cause of his inability to obtain remunerative work. A pre-condition to the application of that ameliorating provision is that the applicant must have been genuinely seeking to engage in remunerative work. In Leane v Repatriation Commission [2004] FCAFC 83, the Full Federal Court referred to this requirement in the following way:
“28. The primary judge interpreted the word ‘seeking’ to mean ‘attempting to’ or ‘trying to’. This may be accepted. Such a meaning involves something more than a mere wish or hope. It requires that a claimant ‘do’ something. On the other hand the word ‘genuinely’ is used in the sense of ‘sincerely’ or ‘honestly’. It involves an assessment of the subjective intention or purpose of a claimant. What is required is that the claimant honestly be trying to engage in remunerative work.”
40. At the time when Mr Herd lodged his claim for increase in pension, he had been out of the workforce for nearly four years. He had not sought any remunerated employment during that time. He continued with his enrolment for his doctoral thesis for most of that period but, after December 1998, this did not involve him in any remunerative work. In 1997 and 1998, Mr Herd made applications for full-time employment and, in part, this was to meet the obligations that he was under in respect of the receipt of newstart allowance from Centrelink. Even if that constitutes a genuine attempt to seek work, Mr Herd was not informed at any time of the reason for his not being successful in obtaining any of those employment opportunities. There is no evidence that any of the applications he made were unsuccessful because of his accepted disabilities. His evidence was that he believed that it was because of his age. In that case, I am unable to find that his accepted disabilities were the substantial cause of his inability to engage in remunerative work.
41. I am satisfied that Mr Herd does not meet the requirements for the payment of the special rate of pension because, specifically, he fails to satisfy the terms of paragraph 24(1)(c) of the Act. Though the intermediate rate of pension, for which provision is made in section 23 of the Act, was not raised by the applicant in this case, I am also satisfied that the requirements for payment of pension at that rate are not met because of the operation of paragraph 23(1)(c) which operates in the same manner as paragraph 24(1)(c) of the Act.
Decision
42. The Tribunal affirms the decision under review.
I certify that the 42 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Member
Signed: Camille Banks
Associate
Date/s of Hearing 27 October 2004
Date of Decision 21 February 2005
Counsel for the Applicant Mr R Clutterbuck
Solicitor for the Applicant Gilshenan & Luton
For the Respondent Mr D McAninly, Departmental Advocate
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