Hyde and Repatriation Commission (Veterans' entitlements) [2025] ARTA 1627 (2 September 2025)
Applicant:Shane Hyde
Respondent: Repatriation Commission
Tribunal Number: 2024/1767
Tribunal:Senior Member Thomae
Place:Brisbane
Date:2 September 2025
Decision:The Tribunal sets aside the decision under review and in substitution decides that the Veteran is entitled:
(a) from 8 November 2020 to 29 November 2024, pursuant to s 25 of the Veterans’ Entitlement Act 1986 (Cth) (VEA), the temporary payment of the special rate of the disability pension.
(b) from 30 November 2024, pursuant to s 23 of the VEA, the intermediate rate of the disability pension.
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Statement made on 02 September 2025 at 9:09am
CATCHWORDS
VETERANS’ AFFAIRS – claim for special rate of pension – incapacity from war or war-caused disease – temporary or permanent incapacity - prevented from being able to continue to undertake remunerative work that he was undertaking – conflicting medical evidence on incapacity to work - alone test - loss of salary or wages – decision under review set aside
Legislation
Administrative Review Tribunal Act 2024 (Cth)
Veteran’s Entitlements Act 1986 (Cth)
Cases
Chambers v Repatriation Commission (1995) 55 FCR 9
Fox and Repatriation Commission (1997) 45 ALD 317
Leigh v Repatriation Commission (2006) 90 ALD 301
McDonald v Director General of Social Security (1984) 6 ALD 6
Pollock v Wellington (1996) 15 WAR 370
Re Dawson and Repatriation Commission [1999] AATA 895
Re Doyle and Repatriation Commission (1986) ALD 320
Re Guest and Repatriation Commission (1995) ALD 102
Repatriation Commission v Hendy [2002] FCAFC 424
Repatriation Commission v Smith (1987) 15 FCR 327
Statement of Reasons
INTRODUCTION
The applicant, Mr Hyde (Mr Hyde) is a veteran who served in the Royal Australian Navy (RAN) for a total of 20 years from November 1977 to November 1986 and then April 1998 to April 1999.
He seeks relief from the Tribunal in respect to a decision of the Veterans’ Review Board (VRB) that Mr Hyde was not entitled to the disability pension at the ‘Intermediate Rate’ or ‘Special Rate’ pursuant to ss 23 and 24 of the Veterans’ Entitlement Act 1986 (Cth) (VEA).
Mr Hyde did not give evidence at the hearing. Dr Shaikh, consultant psychiatrist, gave evidence.
Mr Michael Anderson, Harvey Bay RSL appeared for Mr Hyde. The Commission was represented by Mr Jamie Watts, Australian Government Solicitor.
The Tribunal admitted into evidence the Joint Hearing Book as exhibit R1.
BACKGROUND
Mr Hyde was born in March 1960, and is now aged 65 years.
On 3 February 2021, Mr Hyde lodged a claim with the Commission for the conditions of ‘persistent depressive disorder, hypertension and erectile dysfunction’ (the Initial Claim).[1]
[1]Exhibit R1.R1.9.
On 6 May 2021, a delegate of the Commission denied liability for the Initial Claim (the Liability Determination).[2]
[2] Exhibit R1.R1.11.
On 30 March 2022, Mr Hyde…
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- Case
- [2025] ARTA 1627
- Decision Date
CaseChat Overview and Summary
The Tribunal set aside the Reviewable Decision and determined that Mr Hyde was entitled to the 'Special Rate' pension from 8 November 2020 to 29 November 2024 and that he should return to 100% of the 'General Rate' pension from 30 November 2024. The Tribunal found that Mr Hyde satisfied the statutory requirements for the 'Special Rate' pension during the assessment period, including being under 65 at the time of his claim, having a degree of incapacity of at least 70%, and being unable to work more than 8 hours per week due to his persistent depressive disorder alone. However, the Tribunal also found that Mr Hyde's incapacity was not permanent and that he could return to work after 29 November 2024 in suitable roles. The Tribunal accepted Dr Shaikh's opinion that Mr Hyde's risk of relapse was low and that he could work 12-15 hours per week in sedentary or light labour roles. The Tribunal concluded that Mr Hyde did not satisfy the 'alone' requirement for the 'Intermediate Rate' pension because his age and time away from work were likely co-contributors to his lack of motivation in returning to work.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
The Commission contends that:(a)Mr Hyde’s incapacity from his VEA-accepted condition is temporary in nature, citing McDonald v Director General of Social Security (1996) 6 ALD 6 for the proposition that the distinction between ‘temporary’ and ‘permanent incapacity’ is a question of fact[26] and relies on Dr Shaikh’s opinion that that Mr Hyde has capacity for remunerative work for more than 8 hours per week after 29 November 2024 because of his symptoms improving and the low risk of relapse by returning to work.[27](b)Given the ‘permanence that attached to payment of a pension at the special rate, the Tribunal ought not to award such a payment when there is evidence to support that a veteran might be capable of entering the workforce after rehabilitative intervention or with further ongoing psychiatric treatment’ (citing Re Dawson and Repatriation Commission [1999] AATA 895).[28](c)As to the type of remunerative work Mr Hyde is capable of, the Commission contends that s 28 of the VEA provides the statutory basis for what the decision-maker ‘must take into account the kinds of work which the applicant’s background and experience have equipped the applicant to do’ (citing Re Doyle and Repatriation Commission (1986) 11 ALD 320 and Chambers v Repatriation Commission (1995) 55 FCR 9).(d)Mr Hyde could perform sedentary and manual labour roles as the ‘applicant was trained and undertook a number of courses while in the Navy and regularly performed a number of different tasks while working as a 3rd Mate…that a person with the applicant’s skills, qualifications and experience might reasonably undertake navigation, auditing, managing, manual labour, administrative and clerical roles’.[29](e)Mr Hyde does not satisfy s 23(1)(c) of the VEA for a pension at the Intermediate Rate after 29 November 2024 because Dr Shaikh’s opinion that Mr Hyde’s ‘increasing age and impacts of the same, as well as time away from work were likely a co-contributor to his lack of motivation in relation to returning to work’, such that Mr Hyde cannot satisfy the alone requirement in the section.CONSIDERATION[26] ASFIC at [39].[27] ASFIC at [57], [60]-[65].[28] ASFIC at [44]-46].[29] ASFIC at [50]-[52].Special Rate – Temporary or Permanent Incapacitation The Tribunal is satisfied on the basis of the evidence before it that Mr Hyde is entitled to the ‘Special Rate’ of pension, pursuant to s 25 of the VEA, from 8 November 2020 to 29 November 2024 because he satisfies the statutory requirements of being under 65 at the time of his claim, his degree of incapacity was of at least 70% and the unequivocal medical evidence of Dr Fraser and Dr Shaikh that he was unable to work more than 8 hours a week during that period because of his VEA-accepted Condition alone. In coming to that finding, the Tribunal accepts that Mr Hyde was not totally permanently incapacitated after 29 November 2024 pursuant to s 24 of the VEA because:(a)The Tribunal is required to determine whether Mr Hyde’s incapacity is temporary or permanent as a question of fact.[30](b)The medical evidence of Dr Fraser and Dr Shaikh was that Mr Hyde’s mental health had improved with treatment and the Tribunal accepts that the risk of relapse from working was not as Dr Fraser opines but rather prefers that of Dr Shaikh that there was a low risk of relapse. (c)Dr Shaikh’s opinion of the risk of relapse was preferred as it was based on a nuanced view of the types of work Mr Hyde could undertake in the future and the protective nature that employment would provide as well as his ongoing treatment and support of his family. (d)Further, Dr Shaikh relied on the fact that Mr Hyde had previously returned to work in the merchant navy after My Hyde’s mental health had temporarily incapacitated him.(e)Both Dr Shaikh and Dr Fraser agreed that Mr Hyde was not capable of working in his previous role onboard merchant ships, he simply could not deal with the stress, environmental conditions and work hours with his incapacity. (f)The Tribunal was satisfied that Mr Hyde could work for more than 8 hours per week as a result of the ongoing treatment of his VEA-accepted Condition in a role that did not require him to go to sea on a ship, preferring the opinion of Dr Shaikh that Mr Hyde was capable of working 12-15 hours per week in sedentary administrative roles or light labour. [30] McDonald at 13.Intermediate Rate – Temporary or Permanent Incapacitation