Hyde and Repatriation Commission (Veterans' entitlements) - [2025] ARTA 1627

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
Banovich v Repatriation Commission [1986] FCA 397

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
Richmond v Repatriation Commission [2014] FCA 272

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] ARTA 1627
Decision Date: 2 September 2025

CaseChat Overview and Summary

Mr Hyde, a former serviceman, applied for review of a decision by the Commission that he was not entitled to a 'Special Rate' disability pension after 29 November 2024. The Tribunal had to decide whether Mr Hyde's incapacity was temporary or permanent. The Commission argued that Mr Hyde was only temporarily incapacitated and could return to work after 29 November 2024, while Mr Hyde argued that he was permanently incapacitated due to his persistent depressive disorder and could not work more than 8 hours per week. The Tribunal examined the medical evidence and found that Mr Hyde's incapacity was not permanent. The Tribunal accepted Dr Shaikh's opinion that Mr Hyde's mental health had improved with treatment and that there was a low risk of relapse if he returned to work in a suitable role. The Tribunal concluded that Mr Hyde could work more than 8 hours per week in sedentary or light labour roles, as Dr Shaikh opined.

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

It is not contentious, and the Tribunal is reasonably satisfied, that:(a)Mr Hyde served in the RAN for 20 years.(b)After his service in the RAN, Mr Hyde worked mustering cattle for about 12 months and then as a carpenter restoring historic buildings for 12 months.(c)Mr Hyde then served in the merchant navy until he ceased work on 8 November 2020.(d)Mr Hyde made a valid claim under s 15 of the VEA for an increased rate of pension (ss 23(1)(aa) and 24(1)(aa)).(e)Mr Hyde was not yet 65 when he made the claim (ss 23(1)(aab) and 24(1)(aab)).(f)Mr Hyde’s degree of incapacity from his ‘war-caused disease’ was at least 70% (ss 23(1)(a)(i) and 24(1)(a)(ii)).(g)The ‘assessment period’ under the VEA is from 3 February 2021 until the date of the Tribunal’s decision (s 19(5C)).(h)Mr Hyde has several VEA-accepted medical conditions:[15][15] Exhibit R1.R1.3.(i)Persistent depressive disorder.(ii)Hypertension.(iii)Erectile dysfunction.(iv)Sensorineural hearing loss.(v)Solar keratosis.(vi)Tinnitus.(i)Mr Hyde’s non VEA accepted condition of ‘alcohol use disorder (in remission)’ does not affect his eligibility under ss 23, 24 or 25 of the VEA.(j)Mr Hyde satisfied the eligibility criteria for ‘Special Rate’ disability pension from 8 November 2020 until 29 November 2024.Mr Hyde’s Evidence Mr Hyde provided written statements. Only the second is relevant to the matter before the Tribunal. It lists the duties and responsibilities Mr Hyde has as ‘3rd Mate’ on a merchant vessel, including: [16]·Navigational watch – responsible for maintaining situational awareness and providing the Master and Chief Engineer with regular updates on the ship’s status.·Maintenance of Safety and Survival Equipment.·Berthing and Departure – supervising members of the crew, following instructions from the Master regarding the passing of berthing lines to and from the dock.·Cargo Operations and Ship Reporting – responsible for overseeing the loading and unloading operations during ‘watch’ (shift) periods, including monitoring cargo hatches, security of ship and gangway and movement of personnel boarding and leaving the ship.·Additional Duties – when off watch, included maintenance of firefighting gear and survival appliances, daily equipment checks and maintenance reports.[16] Exhibit R1.A4 Mr Hyde states that the ‘demanding nature of the job left me feeling constantly fatigued, anxious and, at times irritable’ and navigation responsibilities added additional stress. He says:Given the high level of stress associated with these duties and the impact it had on my mental and physical well-being, my psychiatrist recommended that I retire early from my position as 3rd Mate. The combination of demanding work hours, constant vigilance, and the overall pressure of the job ultimately led to my decision to prioritise my health and well-being. Mr Hyde did not give evidence at the hearing, the reason his advocate provided was that he was not mentally well enough to give evidence. No medical evidence of his inability to give evidence was proffered, or objection taken.

Decision

Reasons for decision

On 19 February 2024, the VRB affirmed the Pension Determination (the Reviewable Decision).[7][7] Exhibit R1.R1.2. On 6 March 2024, Mr Hyde, made an application for review[8] to the General Division of the Administrative Appeals Tribunal (the AAT)[9] of the Reviewable Decision.[8] Exhibit R1.R1.1.[9] On 14 October 2024, the Administrative Appeals Tribunal became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal. The issue before the Tribunal is whether Mr Hyde is entitled for payment of the disability pension at the ‘Intermediate Rate’ or the ‘Special Rate’ under the VEA. Mr Hyde contends that he is entitled to the ‘Special Rate’ pension at the earliest date possible during the ‘assessment period’. The Commission concedes that Mr Hyde is entitled to the ‘Temporary Special Rate’ payment of the disability pension, pursuant to s 25 of the VEA from 8 November 2020 to 29 November 2024 and then contends that Mr Hyde should return to 100% of the ‘General Rate’ of the disability pension from 30 November 2024. The issues for the Tribunal to determine are whether on and from 30 November 2024:[10](a)Mr Hyde’s incapacity is as a result of his VEA-accepted condition of ‘persistent depressive disorder’ (the VEA-accepted Condition) is of such a nature alone[11] to render Mr Hyde incapable of undertaking remunerative work for periods aggregating more than 8 hours per week (s 24(1)(b)).(b)Mr Hyde, by reason of his incapacity from his VEA-accepted Condition alone was prevented from continuing to undertake the remunerative work he was undertaking and is, by reason thereof, suffering a loss of salary or wages that he would not have suffered if he were free of that incapacity (s 24(1)(c)).(c)Alternatively, if Mr Hyde does not satisfy the requirements of ss 24(1)(b) and 24(1)(c), whether he satisfies the requirements of ss 23(1)(b) and 23(1)(c).[10] Respondent’s Amended Statement of Facts, Issues and Contentions (ASFIC) at [7].[11] Described as the alone test.LEGISLATIVE SCHEME Part 2 of the VEA deals with pensions, other than service pensions, for veterans and their dependents. Section 15 of the VEA allows a veteran to make a claim for an increase in pension. Section 19 of the VEA provides the way in which a claim for a pension is to be determined. Relevantly, for the present application for review s 19(5B) of the VEA mandates that ss 23 (‘Intermediate Rate’), 24 (‘Special Rate’) or 25 (‘Temporary Payment at Special Rate’) applies in assessing Mr Hyde’s eligibility for a pension. When determining an application for an increase in the rate of pension (in this case from the ‘General Rate’ to the ‘Intermediate Rate’ or ‘Special Rate’), a veteran’s entitlement is determined in respect of any circumstances within the ‘assessment period’.

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