Husband v Repatriation Commission

Case [2000] FCA 1276

FEDERAL COURT OF AUSTRALIA
Husband v Repatriation Commission [2000] FCA 1276

VETERANS’ AFFAIRS – disability pension assessment – whether Administrative Appeals Tribunal erred in law in finding appellant ineligible for intermediate or special rate of pension – Tribunal found appellant suffered incapacity from accepted disability of leptospirosis during first two of three periods under review but not during third period – Tribunal found chronic fatigue syndrome (“CFS”) was main factor in appellant’s inability to work or to seek work – Tribunal also found that symptoms of CFS should not be regarded as ongoing effects of leptospirosis – whether Tribunal applied “Guide to the Assessment of Rates of Veterans’ Pensions” (“the Guide”) when deciding whether entitlement to intermediate or special rate of pension – whether it would have been in error to so apply the Guide – whether Tribunal erred in its application of the only factor test in ss 23(1)(b) and (c), and 24(1)(b) and (c) of Veterans’ Entitlement Act 1986 (Cth).

Veterans’ Entitlement Act 1986 (Cth) ss 19, 21A, 23, 24, 28, 29, 70

Flentjar v Repatriation Commission (1998) 48 ALD 1 referred to

NEIL FRANCIS HUSBAND v REPATRIATION COMMISSION
W 88 OF 2000

HILL, CARR & WEINBERG JJ
8 SEPTEMBER 2000
PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

W 88 OF 2000

On appeal from a Judge of the Federal Court of Australia

BETWEEN:

NEIL FRANCIS HUSBAND
Appellant

AND:

REPATRIATION COMMISSION
Respondent

JUDGES:

HILL, CARR & WEINBERG JJ

DATE OF ORDER:

8 SEPTEMBER 2000

WHERE MADE:

PERTH

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

2.        The appellant pay the respondent’s costs of the appeal.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

W 88 OF 2000

On appeal from a Judge of the Federal Court of Australia

BETWEEN:

NEIL FRANCIS HUSBAND
Appellant

AND:

REPATRIATION COMMISSION
Respondent

JUDGES:

HILL, CARR & WEINBERG JJ

DATE:

8 SEPTEMBER 2000

PLACE:

PERTH

REASONS FOR JUDGMENT

THE COURT:

INTRODUCTION

  1. This is an appeal from a judgment of a judge of this Court, given on 24 March 2000, dismissing the appellant’s application by way of appeal from a decision of the Administrative Appeals Tribunal, made on 7 April 1999, in relation to the appellant’s entitlement to a disability pension under the Veterans’ Entitlements Act 1986 (Cth) (“the Act”). The issue in the appeal is whether the Tribunal erred in law when it decided that the appellant was not entitled to either an intermediate or a special rate of pension under ss 23 or 24 (respectively) of the Act.

    FACTUAL BACKGROUND

  2. The appellant, a former member of the Special Air Services Regiment, who left the Australian Army in 1995, suffers from a variety of conditions, 8 in all, accepted, for the purposes of the Act, as having been caused by his military service. One of them is leptospirosis. We do not think that it is necessary to set out the…

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AGLC
Husband v Repatriation Commission [2000] FCA 1276
Case
[2000] FCA 1276
Decision Date

CaseChat Overview and Summary

The case before the court is an appeal by the appellant against a decision made by the Administrative Appeals Tribunal (AAT) and subsequently upheld by a judge of the Federal Court of Australia. The central issue in this appeal is the appellant's entitlement to an intermediate or special rate of pension under sections 23 and 24 of the Veterans' Entitlements Act 1986 (Cth) (the Act). The appellant, a former member of the Special Air Services Regiment, contends that he is entitled to a higher rate of pension due to his service-related disabilities, specifically leptospirosis and chronic fatigue syndrome. The AAT and the primary judge found that the appellant was ineligible for an intermediate or special rate of pension due to his decision not to seek employment after leaving the Army until he recovered from his symptoms.

The legal issues in this case revolve around the interpretation and application of sections 23 and 24 of the Act, which provide for earnings-related rates of pension. The court had to determine whether the Tribunal erred in its decision that the appellant was not entitled to an intermediate or special rate of pension. The appellant argued that the Tribunal did not properly consider his entitlements under the Act and the Guide to the Assessment of Rates of Veterans’ Pensions (the Guide). The court examined whether the Tribunal correctly applied the statutory criteria for eligibility for an earnings-related pension and whether it properly assessed the appellant’s capacity to work.

The court found that the Tribunal correctly applied the criteria set out in the Act and the Guide in determining the appellant’s eligibility for an earnings-related pension. The Tribunal concluded that the appellant was not eligible for an intermediate or special rate of pension because his decision not to seek employment was not solely due to his accepted disabilities. The court upheld the Tribunal's decision, finding that it was based on a proper consideration of the evidence and the statutory provisions. The appellant's argument that the Tribunal should not have considered chronic fatigue syndrome, which was not an accepted disability, was rejected as the Tribunal found that the appellant's inability to work was primarily due to this non-accepted condition.

The court dismissed the appeal and ordered that the appellant pay the respondent's costs of the appeal. This decision reinforces the importance of strictly adhering to the statutory criteria for pension entitlements and the need for a clear separation between accepted and non-accepted disabilities in such assessments.

Orders

Orders of the court

1. The appeal be dismissed.

2. The appellant pay the respondent’s costs of the appeal.

Background

Background to the litigation

This is an appeal from a judgment of a judge of this Court, given on 24 March 2000, dismissing the appellant’s application by way of appeal from a decision of the Administrative Appeals Tribunal, made on 7 April 1999, in relation to the appellant’s entitlement to a disability pension under the Veterans’ Entitlements Act 1986 (Cth) (“the Act”). The issue in the appeal is whether the Tribunal erred in law when it decided that the appellant was not entitled to either an intermediate or a special rate of pension under ss 23 or 24 (respectively) of the Act. FACTUAL BACKGROUND The appellant, a former member of the Special Air Services Regiment, who left the Australian Army in 1995, suffers from a variety of conditions, 8 in all, accepted, for the purposes of the Act, as having been caused by his military service. One of them is leptospirosis. We do not think that it is necessary to set out the other conditions which have been accepted as being defence-caused diseases from which the appellant has suffered or is suffering. Nor is it necessary here to repeat the history of the appellant’s various challenges to the level of his impairment assessed, in turn, by the respondent, the Veterans Review Board and the Administrative Appeals Tribunal. As will be noted the appellant claimed as well to suffer from chronic fatigue syndrome in the period from 19 April 1996 and thereafter. That condition was not an accepted disability at the date of the hearing before the Tribunal. THE TRIBUNAL’S DECISION The parties and the Tribunal agreed that it was appropriate to examine and assess the appellant’s various accepted disabilities in each of three periods, namely, from 17 December 1993 to 20 April 1995, from 21 April 1995 to 18 April 1996 and from 19 April 1996 onwards. We set out below two paragraphs from the Tribunal’s reasons:“10.Based on all the evidence, the Tribunal finds that the applicant was in fact suffering incapacity from his accepted disability of leptospirosis during the first two periods under review, the assessment of which is dealt with separately in paragraphs 13 and 17 of these reasons. Despite the views expressed by the applicant at the hearing and also in his subsequent submission contained in Exhibit A3, the Tribunal is satisfied – principally from the evidence provided by Drs Whiting and Golledge – that the applicant was not suffering incapacity from leptospirosis during the third period under review, commencing April 1996, and that it continues to remain asymptomatic. 11.The condition of chronic fatigue syndrome, diagnosed by Drs Whiting and Golledge and evidence in this third period, was stated by Dr Golledge to be a sequalae (sic) of the applicant’s leptospirosis. This syndrome, albeit probably a sequalae (sic) of his defence-caused leptospirosis, is nevertheless not an accepted disability as at the date of the hearing. Furthermore, based on the weight of medical evidence before it, the Tribunal finds that the symptoms of chronic fatigue syndrome involved should not be regarded as ongoing effects of leptospirosis. Consequently, the Tribunal is not able to take these symptoms into account in assessing disability pension (p8 and 9 of GARP [Guide to the Assessment of Rates of Veterans’ Pensions – “the Guide”] refer).”

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Tribunal found that the appellant’s degree of incapacity was 80% of the General Rate for all three periods from 17 September 1993 to the present. As it noted (at paragraph 23 of its reasons), in those circumstances it was required to consider whether an earnings-related rate of pension was payable to the appellant during any part of the total period reviewed. The relevant sections of the Act which provide for earnings-related rates of pension, namely the intermediate rate of pension and the special rate of pension, are (as we have mentioned earlier) ss 23 and 24 respectively. After setting out the relevant parts of those sections the Tribunal expressed its conclusions in the following terms:“25.As the applicant was still employed full-time as a soldier in the Army until 27 December 1995, the Tribunal can only consider the period from inclusive 28 December 1995 onwards. 26.One of the essential requirements stipulated in the Act for either the Intermediate or Special Rate is that the applicant has been prevented from continuing to undertake remunerative work, which he was undertaking, by the defence-caused injury or disease, or both, alone. The evidence in this instance is that Mr Husband who was on full duties until his discharge, decided of his own accord not to seek employment after leaving the Army in December 1995 until, in his view, he had fully recovered from the remaining symptoms of leptospirosis. The Tribunal is satisfied that this situation also continued to apply throughout the second review period – that is, up to 18 April 1996. That being the case the Tribunal finds that the applicant is not eligible for either the Intermediate or Special Rates up to that time. 27.From April 1996 onwards the evidence shows that the applicant’s inability to work, or to seek work, was again not the result of his accepted disabilities alone. The Tribunal is relevantly satisfied that it was his non-accepted disability, diagnosed as chronic fatigue syndrome, which was the main factor in this regard. Hence, in accordance with the Act, the Tribunal finds that the applicant was not eligible for either the Intermediate or Special Rates of pension during this third review period either.”THE DECISION AT FIRST INSTANCE At first instance the appellant relied upon 20 grounds of appeal. The learned primary judge, correctly in our view, held that none of these grounds raised questions of law. The appeal before us focussed on the manner in which the Tribunal dealt with the appellant’s claim to be entitled to either an intermediate or a special rate of pension by reason of incapacity due to chronic fatigue syndrome. THE APPELLANT’S CONTENTIONS AND OUR REASONING The appellant submitted that the Tribunal, having determined that the degree of incapacity in the third period was 80%, had no need or basis to consider further s 21A or the Guide. In our view, the short response to this submission is that the Tribunal, when deciding whether the appellant was entitled to an earnings-related pension did not consider further s 21A or the Guide.

Ratio Decidendi

Legal Principle Established

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