Hooklyn and Repatriation Commission

[2008] AATA 1003

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 1003

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/3415

VETERANS’ APPEALS DIVISION		)
Re		THOMAS HOOKLYN

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Rear Admiral A R Horton AO, Member

Date7 November 2008

PlaceSydney

Decision The decision under review is affirmed.

.................[Sgd].....................

Rear Admiral A R Horton AO

Member

CATCHWORDS

VETERANS’ AFFAIRS – applicant in receipt of extreme disablement allowance – eligibility for special rate of pension – ceased work at age 60 – not eligible – decision under review affirmed

Veterans’ Entitlements Act 1986 - sections 22, 23 and 24

REASONS FOR DECISION

7 November 2008 Rear Admiral A R Horton AO, Member   

1. Mr Thomas Hooklyn has been in receipt of the Extreme Disablement Allowance (vide section 22 of the Veterans’ Entitlements Act 1986 (“the Act”) since 14 July 2005.  On 10 September 2007, he lodged a claim for an increase in disability pension, this claim being rejected on 26 September 2007.  On 2 May 2008, the Veterans’ Review Board affirmed the decision.  Mr Hooklyn lodged an application for review by the Administrative Appeals Tribunal (“the Tribunal”) on 25 July 2008.

2. The matter was heard by me on 31 October 2008. Mr Hooklyn gave evidence by telephone, and Mr Tim O’Reilly represented the Repatriation Commission (“the Respondent”) by telephone. The Tribunal took into evidence the T documents provided pursuant to section 37 of the Administrative Appeals Tribunal Act 1975.

EVIDENCE

3.        Born in December 1924, Mr Hooklyn served (as a conscript) in the Australian Army from 4 June 1943 until 21 November 1946..  He served in the 4^th Australian Field Regiment in New Guinea and Bougainville.  On completion of his military service he variously worked in mines and as a labourer, retiring at the age of 60 on 7 January 1985 due to illness.  Mr Hooklyn confirmed that he has not worked since that date.

4.        Mr Hooklyn has a number of accepted disabilities, with the earliest, shown in the T documents, being accepted in 1990.  Disability pension was assessed at 100 per cent of the general rate from 31 May 2004, and as earlier noted, the Extreme Disablement Allowance was granted from 14 July 2005.  Mr Hooklyn is in receipt of a service pension.  He is widowed and lives in a rental property in Port Macquarie.

5.        Mr Hooklyn voiced his strong opinion that the legislation in respect of eligibility for the Special Rate, as it relates to age at the date of claim and to work circumstances, was discriminatory towards World War 2 veterans who had operational service in the defence of Australia.  He sees that the circumstances whereby some persons who served in the Vietnam War or in peacekeeping units have been granted the Special Rate, confirm discrimination against the older World War 2 veterans.  Mr Hooklyn has written to the Minister for Veterans’ Affairs, the Honourable Alan Griffin MP, voicing his concern at what he sees as inappropriate and overly restrictive legislation, but is yet to receive a response.

LEGISLATION

6. An increase in disability pension for Mr Hooklyn could only be attained by eligibility for the Intermediate Rate (section 23 of the Act) or Special Rate (section 24). In Mr Hooklyn’s situation, in respect of age at the date of claim and his work circumstances, the requirement in both cases are similar. It is sufficient to define the criteria for Special Rate, observing that this is the rate sought by Mr Hooklyn.

7. Section 24 of the Act, as it applies to the circumstances of Mr Hooklyn, relevantly states:

(1)  This section applies to a veteran if:

… 

(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

…

(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

…

(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:

(i) if he or she was then working as an employee of another person--had been working for that person, or for that person and any predecessor or predecessors of that person; or

(ii)if he or she was then working on his or her own account in any profession, trade, employment, vocation or calling--had been so working in that profession, trade, employment, vocation or calling;

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.

CONSIDERATION

8.        The circumstances of Mr Hooklyn accord with subsection (2A)(b) in that he had turned 65 before the claim was made.  However, he does not meet the criteria in subsection (2A) (f) and, in turn, subsection (2A)(g) in that he ceased paid work prior to turning 65.

9.        As explained to Mr Hooklyn, the legislation does not permit any flexibility in respect of the age and work criteria, and hence he cannot be eligible for the Special Rate.  That he has no eligibility, in no way detracts from his valuable war service.

10.      In the circumstances, the Tribunal must affirm the decision under review that Mr Hooklyn remains in receipt of the Extreme Disablement Allowance at 100 per cent of the general rate.

I certify that the 10 preceding paragraphs are a true copy of the reasons for the decision herein of Rear Admiral A R Horton, Member

Signed:         ......................[Sgd]............................
   Ms Radhika Prasad, Associate

Date of Hearing  31 October 2008
Date of Decision  7 November 2008
Advocate for the Applicant       Self-represented
Advocate for the Respondent   Mr T O'Reilly