Hill and Repatriation Commission

[2003] AATA 1114

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 1114

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No D2002/25

VETERANS' APPEALS  DIVISION		)
Re		COLIN DENNIS HILL

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Deputy President Don Muller

Date7 November 2003 

PlaceBrisbane

Decision The Tribunal affirms the decision to reject a claim for service pension pursuant to the provisions of the Veterans’ Entitlements Act 1986. 

................SIGNED...............................

D.W. MULLER
  DEPUTY PRESIDENT

CATCHWORDS

VETERANS’ AFFAIRS – invalidity service pension – whether applicant unable to work more than eight hours per week

Veterans’ Entitlements Act 1986: ss37, 37AA

REASONS FOR DECISION

Deputy President Don Muller       

1.      Colin Dennis Hill, the Applicant, made a claim on 25 May 2001, for service pension on the grounds that he is permanently incapacitated for work.

2.      The Applicant’s claim has been rejected.  He seeks a review of the decision to reject his claim.

3.      The following matters are not in dispute and the Tribunal finds that:

(a)The Applicant was born on 17 March 1945.  He is now 58 years of age.

(b)He served in the Australian Army from 30 June 1965 to 30 June 1968.

(c)For the purposes of the Veterans’ Entitlements Act 1986, he had operational service in Vietnam from 6 June 1967 to 16 April 1968.  That is, he has “qualifying service”.

(d)The Applicant has the following psychiatric illnesses, which are permanent:

(i)Significant vulnerability in his personality, probably related to his difficult childhood experience

(ii)Alcohol dependency

(iii)Pathological gambling addiction

(iv)Major-depression (part treated)

(v)Dysthymic disorder

(vi)Mild post traumatic stress disorder

(e)If the Applicant’s psychiatric impairments were assessed under the Guide to the Assessment of Rates of Veterans’ Pensions, they would result in a combined impairment rating of 40 or more under table 18.1 of that Guide.

4. The legislation relevant to this review is contained in sections 37 and 37AA of the Veterans’ Entitlements Act 1986, and in Determination 1999 under subsection 37AA(1) of the Act.

“37  Eligibility for invalidity service pension

(1)Subject to subsection (6), a person is eligible for an invalidity service pension if the person:

(a)        is a veteran;  and

(b)       has rendered qualifying service;  and

(c)is permanently incapacitated for work in accordance with a determination under section 37AA.

37AA Commission must determine circumstances in which persons are permanently incapacitated for work

(1)The Commission must, by written determination, specify the circumstances in which persons are permanently incapacitated for work for the purposes of paragraph 37(1)(c).

..

(3)A determination under this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

Determination 1999

“5        Circumstances of permanent incapacity

(1)A person is permanently incapacitated for work for paragraph 37(1)(c) of the Act if the person:

(a)is permanently blind in both eyes;  or

(b)is a veteran tho whom section 24 of the Act applies;  or

(c)satisfies subsection (2).

(2)A person satisfies this subsection if:

(a)the person has an impairment that, if it were an injury or disease for the Guide to the Assessment of Rates of Veterans’ Pensions, would result in a combined impairment rating of 40 or more under Table 18.1 in that Guide;  and

(b)solely because of the impairment, the person is permanently unable to do work for periods adding up to more than 8 hours per week;  and

(c)the Commission is satisfied that the impairment is permanent.”

5.      The Applicant is not blind in both eyes.  Section 24 of the Act does not apply to him.  He satisfies paragraphs 5(2)(a) and 5(2)(c) of the Determination.

6.      The issue between the parties, and hence the matter to be determined by the Tribunal, is whether the Applicant satisfies sub-paragraph 5(2)(b) of the Determination.  That is, whether solely because of the Applicant’s impairments, he is permanently unable to do work for periods adding up to more than eight hours per week.

7.      The Tribunal heard evidence from both the Applicant and his wife.  The main points made by them, relevant to this review were:

(a)After leaving the Army in 1968, the Applicant worked for the State Electricity Commission of Victoria for 21 years, in Western Victoria.

(b)Ever since leaving the Army, the Applicant has had a serious problem with drinking alcohol to excess and with gambling.  His excessive drinking and gambling have been a source of acute embarrassment to himself, his wife and his family for approximately 30 years.

(c)The Applicant and his wife were married in October 1968 and she has stayed with him ever since.

(d)On one occasion in 1974, the Applicant stole $500 out of petty cash from the SEC for the purposes of drinking and gambling.  He was put on a bond.

(e)Eventually the SEC demoted the Applicant and transferred him to a different town as a labourer.  He took on a second job in the town as a part-time barman.

(f)The Applicant’s wife is a qualified nurse.  She has worked over the years, in between having children, to give the family financial stability.

(g)In 1994, the Applicant and his wife both left their jobs in Victoria and travelled to Darwin.  The Applicant obtained a job as a gardener and then as a counsellor for the Salvation Army.  His wife obtained full-time work at Darwin Hospital.

(h)The Applicant continued to drink and gamble to excess.  In 1995 he won $18,000 on the poker machines at the casino.  He told his wife that he had won $15,000 but the win was noted in the local newspaper.  Mrs. Hill made her husband put $10,000 aside into a joint account and to give something to their children.  She allowed him to keep $8,000, which he disposed of by drinking and gambling.

(i)In October 1995, the Applicant and his wife left Darwin and went back to Western Victoria.  The Applicant obtained a position as CEO of a retirement village.  His wife obtained a position at a base hospital.

(j)The Applicant continued to gamble to excess over the following five years.  He eased off on his drinking.  The Applicant and his wife both had well-paid jobs, but had saved very little because of the Applicant’s gambling.

(k)In early 2000, the Applicant was forced to resign from his CEO position at the retirement village.  It was discovered that he had been stealing money from patients’ accounts.

(l)By mid 2000, the Applicant’s wife was in charge of the family finances.  The result was that the Applicant was unable to drink and gamble to excess.  They then decided to go back to Darwin to live.

(m)In August 2000, the Applicant and his wife obtained work as carers for aboriginal school children under a scheme run by a Christian schools group.  They were provided with a large house (six bedrooms) in a Darwin suburb, plus a mini-bus to transport the children to and from school.  They care for about ten children who are aged between 12 to 14 years.  They are paid a total of $30,000 per annum.  For the first six months they were paid $15,000 each.  After January 2001 they arranged for the whole of the $30,000 to be paid to the Applicant’s wife because of the Applicant’s inability to handle money.  She gives him some “pocket money” from time to time, amounting to about $50 per week.

(n)The Applicant’s wife does most of the work, including cooking, washing, cleaning and shopping.  The Applicant drives the children to and from school and to sporting fixtures.  He also mops the floor now and again and he mows the lawns.  He sometimes assists in serving the food.  He sometimes accompanies the children to the shopping centre.

(o)In May this year the Applicant’s wife discovered that the Applicant had joined the Casuarina Sports Club on 9 March 2003.  She believes that he has been playing the poker machines behind her back.  She has taken his membership card off him.

(p)The Applicant’s medication for depression makes him listless.  He has lost interest in life.  He is acutely embarrassed about his past behaviour.  He has lost his self-esteem and confidence.

8.      The Applicant has been seen by two psychiatrists.  Dr. Knox saw him on 23 October 2000.  Dr. Parker saw him in December 2002.

9.      Dr. Knox noted that in October 2000, the Applicant was working 40 hours per week. Dr. Knox then followed that observation with the opinion that the Applicant would not be able to continue at that rate and “would be most unlikely to be capable of working more than eight hours per week”.  The reasons given for this dramatic drop in the Applicant’s capacity to work were:

(a)His self confidence is poor.

(b)He reports memory disturbance.

(c)He has no job skills or qualifications.

(d)Although he is not drinking or gambling he remains at a high risk of resuming these destructive activities.

(e)His depression has worsened in recent years but is now under better control with his current use of anti-depressant medication.

(f)He has poor sex interest, particularly in the context of his unhappy marriage.

10.     Dr. Parker reported that the Applicant told him that he could no longer work due to his lack of confidence and poor concentration.  Dr. Parker also said:

“In appearance, Mr Hill presented as a middle aged man who was appropriately dressed and groomed.  With his behaviour, he appeared passive in his attitude with little emotional response.  His speech was normal in rate and volume.  Mr Hill appeared depressed in his mood.  His affect was congruent with his mood and he generally displayed a restricted range and reactivity of affect.  Mr Hill did not display any disorder of his thought form.  He did not appear delusional in his thought content.  Mr Hill denied experiencing perceptual abnormalities and did not appear preoccupied by these phenomena during the interview.  Mr Hill’s cognition was formally tested with the Mini Mental State Examination and he scored 29 out of 30 on this test with a minor deficit in short term memory.  Further formal testing of Mr Hill’s brain frontal lobe function revealed no deficits.  Mr Hill only appeared to have limited insight and judgement into his current predicament.

Mrs Hill described daily conflict with her husband as a result of the pervasive irritability associated with his condition.  Mr Hill commented that the only social interaction he had with others was with his daughters or his local church congregation.  Mrs Hill added that her pastor had been very supportive to her in the current context.  Mrs Hill also noted that her husband had withdrawn from activities that he used to enjoy such as tennis matches with family members.

I consider that Mr Hill’s condition is permanent and is unlikely to resolve in the short term.  I did not issue a certificate to Mr Hill at the time of his assessment but, if I had issued this, it would have reflected that he is permanently disabled and is unlikely to work to his full capacity again.”

11.     The Tribunal accepts that the Applicant is depressed and lacks self-confidence.  The Tribunal also accepts that the Applicant is unlikely to work to his full capacity again.  However, the Tribunal notes that Dr. Parker’s mental state examination revealed that there is really very little wrong with the Applicant.  The Tribunal does not accept that the Applicant has no job skills or qualifications.  He has held a number of quite well paid positions over the last 30 years.

12.     The fact that the Applicant drives the school bus, does the mowing, mops the floor now and again, takes the children to the shops and helps with serving meals, indicates that he can at least work for a few hours per day.

13.     The Tribunal finds that the Applicant is capable of working more than eight hours per week.  He does not qualify for the service pension.

14.     The decision to reject his application is affirmed.

I certify that the 14 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Don Muller

Signed:         .......................................................................................
           C. O’Donovan, Associate

Date/s of Hearing  27 May 2003                   
Date of Decision  7 November 2003
Solicitor for the Applicant           Pipers
Respondent   Mr. G. Doube, departmental advocate