HMHP and Repatriation Commission
[2009] AATA 162
•13 March 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 162
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/3255
VETERANS' APPEALS DIVISION ) Re HMHP Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr R G Kenny, Member Date13 March 2009
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
...............[Sgd]...............................
Member
CATCHWORDS
VETERANS’ AFFAIRS – veteran’s entitlements – veteran in receipt of 100% general rate pension – veteran not able to undertake remunerative work for more than eight hours per week because of service-related conditions – veteran not prevented from undertaking remunerative work that he was undertaking because of war-caused conditions alone – special rate of pension not payable – decision affirmed
Veterans’ Entitlements Act 1986 (Cth), ss 5Q, 9, 14, 19, 22, 23, 24, 70,119, 120
Flentjar v Repatriation Commission (1997) 48 ALD 1
Repatriation Commission v Hendy (2002) 76 ALD 47
REASONS FOR DECISION
13 March 2009 Mr R G Kenny, Member BACKGROUND
1. On 12 February 2007, the applicant made a claim under s 14 of the Veterans’ Entitlements Act 1986 (“the Act”) for a disability pension for incapacity from conditions he contended were related to his service with the Australian Regular Army (“ARA”). On 13 November 2007, a delegate of the Repatriation Commission determined that bilateral sensori-neural hearing loss, irritable bowel syndrome, solar keratosis, erectile dysfunction, gastro-oesophageal reflux disease, chronic simple bronchitis, bilateral tinnitus, post traumatic stress disorder and alcohol dependence were war-caused under s 9 of the Act. The delegate assessed pension for incapacity associated with those conditions under s 22 of the Act at 100% of the general rate with effect from 12 November 2006. The delegate also determined that the applicant’s lumbar spondylosis was not service-related and that he had no diagnosable condition in his left knee. On 6 June 2008, the Veterans’ Review Board (“the Board”) determined that the applicant’s lumbar spondylosis was defence-caused under s 70 of the Act and continued pension at 100% of the general rate. The Board affirmed the decision in relation to the applicant’s left knee. In assessing pension, both the delegate and the Board determined that the applicant did not qualify for the intermediate or special rate of pension under s 23 or s 24 of the Act, respectively. The applicant seeks further review by the Administrative Appeals Tribunal (“the Tribunal”).
ISSUES AND LEGISLATION
2. Matters in issue are to be determined to the Tribunal’s reasonable satisfaction and in accordance with substantial justice and the substantial merits of the case[1]. In that process, neither party bears an onus of proof[2]. The procedure to be followed is provided for in s 19 of the Act and s 19(5C) thereof requires the rate of pension to be assessed from time to time during the assessment period. The term “assessment period” is defined in s 19(9) of the Act as the period starting on the application day and ending when the claim or application is determined. It is not disputed that the application day in this case was 12 February 2007 and that the assessment period runs from that day until the matter is determined by the Tribunal.
[1] See s 120(4) and s 119(1) of the Act, respectively.
[2] See s 120(6) of the Act.
3. No challenge is made by the applicant in this matter to the general rate of pension paid to him at 100% or to the decision relating to his left knee. The issue raised is whether he meets the criteria for payment of the special rate of pension under s 24 of the Act. It is not in dispute that the applicant was under 65 years of age at the time of his claim or that he is in receipt of pension at a rate greater than 70% of the general rate. Therefore, he meets the preliminary requirements of ss 24(1)(aa), (aab) and (a)(i) of the Act for the special rate. Further, it was conceded by Mr Kelly, for the respondent, that the applicant meets the incapacity component in s 24(1)(b) of the Act. This is that he is totally and permanently incapacitated in that his incapacity from his accepted disabilities is, of itself alone, of such a nature as to render him incapable of undertaking remunerative work for periods aggregating more than eight hours per week. The remaining component of the provision is s 24(1)(c) of the Act. This comprises two limbs which require that he:
·is, by reason of incapacity from his accepted disabilities alone, prevented from continuing to undertake remunerative work that he was undertaking (first limb); and
·is, by reason thereof, suffering a loss of salary or wages, or of earnings on his own account, that he would not be suffering if he were free of that incapacity (second limb).
4. The issue for determination is whether the applicant’s circumstances meet those requirements in s 24(1)(c) of the Act.
EVIDENCE
The applicant
5. The applicant gave the following evidence. It had been his dream from when he was a boy that he would serve in the ARA. He did so when he could in 1990. He served in the ARA until 1996. Part of this service was in Rwanda. In the main, events that occurred there were responsible for the conditions that have been accepted as being related to his service. On returning to Australia, he found it difficult to settle back into army life in Townsville where he was based. It had lost what he described as a family feeling and he decided to leave the army. He went to Western Australia in 1996 where he met up with a former army colleague. He did not attempt to find work straight away as he had sufficient monies from his severance pay. Then he commenced a series of jobs each of which lasted a few months. In turn, he worked as a cleaner in a shopping centre, as a gardener and as a shop assistant. He commenced but did not complete a cooking certificate course and, from 1998, worked as a kitchen hand. The first such position was in Perth in 1998/1999. In 2000, he moved back to Queensland where he worked as a kitchen hand, successively, in three venues in the Brisbane area before travelling to Sydney. There he worked in the same capacity for two months before returning to Queensland where he again worked as a kitchen hand in one venue for 13 or 14 months. He was uncertain of the date of cessation of that work and variously referred to late February 2002 and March 2002. The reasons for decision published by the Board refer to the applicant nominating May 2002 as the month of cessation. He has not sought work since then although he did register with a work provider as he was requested to do so by Centrelink.
6. The applicant’s evidence was that the employment positions he had after leaving the army came to an end because of problems that he had at work. He had personal difficulties with other staff and with managers. In particular, he argued with supervisors about the way in which he completed his tasks, stating that he had his own way of doing things and this led to conflict. He also consumed alcohol heavily during those years and this impacted on his ability to carry out his duties. He described these duties as including the cleaning of dishes, keeping the kitchen clean, taking rubbish to the bins and cooking. He said that he did not care whether he had a job or not and was always waiting for his employer to dismiss him. In relation to his last job, he said that he left because of his accepted disabilities.
7. The applicant met and commenced a relationship with a woman while he was in the army in 1992. They did not share premises at the time but were in a sexual relationship resulting in the birth of a daughter in July 1994. Mother and daughter remained in Brisbane while the applicant was overseas and in Western Australia. On the applicant’s return to Queensland, the applicant and his partner renewed their relationship and cohabited in Brisbane with their daughter. Several short term separations occurred and the applicant then moved to a nearby residence in October 2001. The applicant’s partner gave birth to triplets in January 2002. One of these died in February 2002 and the applicant’s partner was convicted and imprisoned for the child’s manslaughter in November 2004. The applicant said that he was devastated by the news of the death of his child and that it had a big impact on him. However, he said that, although he left his last job a short time after the child died, this was not because of that event or because of responsibilities for his other children.
8. After the death of the child in February 2002, the three remaining children stayed with their mother until April 2002 when the applicant was awarded partial custody. The applicant was granted full custody of the three children by the Family Court in May 2004 and they were moved into the applicant’s house. The applicant’s mother lives at the Gold Coast. She was concerned about the applicant’s health and frequently travelled to Brisbane to give attention to him while he was living on his own. She also did this at times when he had partial custody. His mother stayed with him each week from Tuesday until Friday and the applicant then travelled to her Gold Coast residence with the children for the week-ends. The purpose of this was for the applicant’s mother to provide assistance in looking after the three children, in particular, the two young ones. The applicant and the children moved to his mother’s house on the Gold Coast in July 2002.
9. The applicant said that he receives the sole parent pension and that his current income from Centrelink and his disability pension is significantly less than he had earned in his work as a kitchen-hand.
10. In a statement of his employment since leaving the army, the applicant nominated February 2001 as the month of cessation of his last job. In his evidence, he conceded that this was an error as the correct year was 2002.
11. The applicant was shown documents completed by him in relation to his cessation of work. On 21 March 2007, in an “Employment Report: Employee”, he wrote that he was working 40 hours per week until 10 March 2002 but could not continue, on either a full-time or part-time basis, because of “personal family reasons”. In that document, he also wrote that he ceased work for “personal reasons (family related)” and that he was prevented from getting work because of “personal family reasons”. The applicant explained that his references to personal family reasons were not related to the death of his child or the need to care for his other children. Rather, these related to the fact that he had personal health problems which he was not prepared to reveal as he believed that there was “no need for anyone to know about his illnesses”. He said that he had no difficulties in relation to the children because of his mother’s willingness and capacity to assist with their care.
The applicant’s mother
12. The applicant’s mother confirmed that she frequently travelled from the Gold Coast to provide assistance to her son prior to the death of his child. When the children were with him, she believed that his health problems would make it difficult for him to care for them on his own. She increased her involvement to four days each week when he was looking after the children. She said that he then came with the children to her residence on week-ends. The applicant and the children moved into her home in July 2002. He has now moved into his own premises with the children, close to where she lives. She said that the children are all in school now and that this had somewhat eased the caring obligations. She described the effect on all of the family when they became aware of the death of the child as devastating. She confirmed that the applicant was employed at the time of that event and had returned to work for a short period thereafter.
MEDICAL EVIDENCE
13. In evidence was a medical report, dated 29 August 2007, from psychiatrist Dr Christopher Danesi. This was prepared at the request of the respondent. Dr Danesi took a history from the applicant of his service, family, health, development and employment circumstances. He diagnosed post traumatic stress disorder and alcohol dependence. In relation to employment, Dr Danesi noted that the applicant had been in lots of jobs. He also noted that the applicant told him that “he was unable to continue to work because he had taken on full time care of his children”. Dr Danesi expressed the opinion that, even though a full-time carer for his children, the applicant was unable to work. He considered that it was unlikely that the applicant will return to work unless there is significant improvement in his symptoms. Dr Danesi, in detailing the applicant’s development history, noted that the applicant had commenced a cabinet-maker apprenticeship before joining the army. He also noted that he was forced to abandon this after 2½ years because of a downturn in the economy and, so, he joined the army.
SUBMISSIONS
14. For the applicant, Mr Clutterbuck submitted that all of the criteria in s 24 of the Act were met. In particular, this was because the only reason for the applicant ceasing employment in 2002 was the effect upon him of his accepted disabilities and that, as a result, he had suffered a loss of income. For the respondent, Mr Kelly submitted that the applicant did not meet the requirements of s 24(1)(c) of the Act. He submitted that the difficult family circumstances surrounding the applicant from February 2002 played a part in his decision to cease work and that, as a result, accepted disabilities alone were not responsible for his ceasing work.
CONSIDERATION
15. As noted above, Mr Kelly conceded that the applicant meets the requirements of ss 24(1)(aa), (1)(aab), (1)(a)(i) and (1)(b) of the Act. Material before me is that a claim under s 14 of the Act has been made, that the applicant is not yet aged 65 and that his degree of incapacity is in excess of 70%. Dr Danesi’s opinion is that the applicant is not capable of working. On the basis of that evidence, I am satisfied that Mr Kelly’s concession was properly made.
16. The Federal Court in Flentjar v Repatriation Commission[3] said that a proper application of s 24(1)(c) of the Act requires consideration of 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?”
[3] (1997) 48 ALD 1 at 4-5.
Step 1:
17. The term “remunerative work” is defined in the Act to include any remunerative activity[4]. The applicant has been engaged as a cleaner, a gardener, a shop assistant and a kitchen hand. They comprise the remunerative work that the applicant was undertaking.
Step 2:
[4] See s 5Q of the Act.
18. I am satisfied that the applicant is, by reason of his accepted disabilities, prevented from continuing to undertake work as a cleaner, a gardener, a shop assistant or a kitchen hand. Accordingly, the second of the Flentjar questions is answered “yes”.
Step 3:
19. The third of the Flentjar questions in the applicant’s situation is whether accepted disabilities are the only factors preventing him from continuing to undertake work as a cleaner, a gardener, a shop assistant or a kitchen hand.
20. The applicant’s evidence was that the situation he was in with his children played no part in his decision to cease work and to remain out of work. I do not accept his evidence in relation to that.
21. In his employee report, dated 21 March 2007, the applicant nominated personal family reasons as the cause of ceasing work. His evidence was that this was unrelated to the circumstances surrounding his children. Rather, he said that it was a reference to his health problems and his unwillingness to reveal details of those problems to the reader of the document. However, those details were revealed in his claim form which was signed by him a few weeks earlier on 8 February 2007. Clearly, both of those documents were to be read by officers of the respondent who were processing that claim. Moreover, in the claim form, he gave the date of ceasing work and gave the reason as “personal”[5]. As noted, the claim form contains details of his conditions and I am satisfied that the reference to “personal” is unrelated to those conditions. That inference also flows from the other responses he gave in the employee report: that he ceased work for personal reasons which were “family related”. I am satisfied that this is not a reference to the applicant’s health problems but, rather, to his family difficulties.
[5] Folio 26; T 4.
22. The weeks after the death of the applicant’s child was a period of great tragedy in his life. His evidence and that of his mother was that they were devastated by the event. The children, two of whom were only months old, needed to be cared for. I note that Dr Danesi, in his report, recorded the applicant as advising him that taking on the full-time care for the children was the reason he was unable to continue working. In his evidence to the Board, the applicant said that Dr Danesi was incorrect in that statement because he had not taken on the care of his children on a full-time basis. Clearly, the applicant’s mother has played a vital role in assisting with their care. However, I am satisfied that the need to care for the children was a significant factor in the decision of the applicant to cease remunerative work and, instead, to receive a parenting payment under the Social Security Act 1991. I am also satisfied that the applicant continued in that role at the start of and through the assessment period. Therefore, it was not the applicant’s accepted disabilities alone which are responsible for his no longer being in remunerative work[6]. In that situation, I am satisfied that the third Flentjar question is answered “no”.
[6] See Repatriation Commission v Hendy (2002) 76 ALD 47 at 54-55.
23. The first limb of s 24(1)(c) of the Act may be ameliorated by the operation of s 24(2)(b) of the Act which applies if, during the assessment period, he has been genuinely seeking to engage in remunerative work but has been unsuccessful substantially because of his accepted disabilities. However, the provision is not applicable in this matter because the applicant has not sought work since he ceased in February or March 2002.
Step 4:
24. As there is not an affirmative answer at step 3, the fourth of the Flentjar questions does not arise.
25. For the reasons given, s 24(1)(c) of the Act is not met and the special rate of pension is not payable to the applicant. The intermediate rate of pension is provided for in s 23 of the Act. The terms of s 23(1)(c) of the Act are identical to those of s 24(1)(c) thereof. For the reasons given above, s 23(1)(c) of the Act is not met and the intermediate rate of pension is not payable to the applicant.
DECISION
26. The decision under review is affirmed.
I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Member.
Signed:.....................[Sgd].........................................................
Matyas Kochardy, Research AssociateDate of Hearing 4 February 2009
Date of Decision 13 March 2009
Counsel for the Applicant Mr R Clutterbuck
Solicitor for the Applicant Haney Lawyers
For the Respondent Mr J Kelly, Departmental Advocate
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