James Duncan and Repatriation Commission
[2013] AATA 877
[2013] AATA 877
Division VETERANS' APPEALS DIVISION File Number
2013/2549
Re
James Duncan
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Senior Member Bernard J McCabe
Date 9 December 2013 Place Brisbane The decision under review is set aside. I find in substitution that the applicant is eligible for a pension paid at the special rate with a date of effect of 3 June 2011.
...........................[Sgd].............................
Senior Member Bernard J McCabe
CATCHWORDS
VETERANS’ AFFAIRS – Benefits and entitlements – Eligibility for special rate of pension – Whether “alone test” satisfied – Decision under review set aside and substituted
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth) s 24
CASES
Flentjar v Repatriation Commission (1997) 48 ALD 1
REASONS FOR DECISION
Senior Member Bernard J McCabe
9 December 2013
Mr James Duncan suffers from a number of war-caused conditions, including post-traumatic stress disorder (“PTSD”). Mr Duncan says his war-caused conditions caused him to cut back and effectively give up his work as a stock and station agent, which resulted in a loss of income. He applied for a pension paid at the special rate pursuant to
s 24 of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”). The respondent rejected the claim, and Mr Duncan has asked the Tribunal to revisit the issue.
Section 24 includes a number of requirements. The Repatriation Commission conceded most of those requirements have been met. The only real issue in contention between the parties is that which arises under s 24(1)(c). That sub-section imposes what is known as the “alone test”. The alone test requires that I be satisfied the applicant’s war-caused conditions are the only explanation for the applicant’s cessation of work.
The Commission says there were other factors that contributed to the applicant’s cessation of work during the course of the assessment period, including lifestyle choices.
THE APPLICANT’S WORK HISTORY AND BEYOND
The applicant worked in a variety of roles after he left the Army. He was employed as a stock agent, a factory shift worker and a broker in the futures’ markets. He said he did not do well working for other people because he had difficulty taking orders as a consequence of his accepted conditions: exhibit five. Mr Duncan and his wife subsequently began running sheep on properties in Victoria, but they were looking for other opportunities to expand their primary production interests.
Mr Duncan and his wife moved to Gulargambone from Victoria in 1989. Gulargambone is a small community located to the north of Dubbo in the central west of New South Wales. Mr Duncan came to live there on acreage with his wife. The couple farmed for a time, but Mrs Duncan explained wool-growing in particular became harder after the wool floor price was abandoned. They became aware of an opportunity in 1999: one of the local stock and station agents was retiring and wished to sell his business. Mr Duncan said he obtained a stock and station agent’s licence and bought the business.
Stock and station agents do not just deal in livestock and other agricultural products.
As part of their work, they provide a range of commercial services and advice to clients. Mr Duncan explained it was a “people business” that required him to have intensive contact with rural clients in the local district. He needed to travel extensively in search of opportunities. He said he was regularly in contact with clients after-hours and on weekends. It was a competitive business, which added to the pressure. He said in his evidence there were several other agents in the Gulargambone district. The district was also affected by drought while he resided there. Livestock prices were depressed and clients were under financial pressure. Many of the clients turned to Mr Duncan.
They shared their troubles with him in the course of obtaining his services. It was not physical work, but it was exhausting, and the hours were long.Mr Duncan said he had increasing difficulty coping with the demands of his clients.
In his oral evidence, he explained the business began to slip from 2000 onwards because his accepted PTSD condition made it harder to deal with the constant intense interaction with clients. Over time, he claimed he became unable to provide the level of service that his clients expected. They began to deal with other agents: in his oral evidence, he explained he had 30 or 40 clients at the peak of his business but those numbers dwindled to around 10 or 12 clients by around 2011, resulting in a loss of income.Mrs Duncan, the applicant’s wife, confirmed her husband was patient and diligent when he first took on the business – but agreed he began to have trouble coping with the demands of his clients. In her oral evidence, she explained things were getting noticeably worse around 2009-2010. She said he started to become withdrawn. In time, the couple’s social life diminished significantly as her husband sought to avoid contact with clients in the small community.
I accept the applicant’s business began to dwindle as clients became dissatisfied with the level of service Mr Duncan provided. The evidence suggests the business was never really successful in his hands but it was in serious decline by 2009-2010. No doubt the drought also played a role in the decline of the business. The end of the drought led to an increase in stock prices, which meant the loss of income was not as precipitous as it might otherwise have been (indeed the applicant’s business actually saw an increase in income in the 2009-2010 year, according to his evidence before the Veterans’ Review Board: exhibit three at p 18. The applicant explained he was selling less and had fewer clients during this period but sale prices had gone up following the end of the drought). Notwithstanding this improvement in trading conditions, I accept the business was dwindling over time.
I have no reason to doubt the decline in the business was at least partly attributable to the applicant’s failure to perform as his clients expected – and I have no reason to doubt (in light of the uncontradicted evidence of the applicant and his wife) that the applicant’s accepted condition played a role in that failure to perform.
Mr and Mrs Duncan began discussing plans to get out of the business and leave the district from about mid-2009: exhibit three at pp 15-17. Mrs Duncan told the Tribunal in her oral evidence that her husband was initially disinclined to move. She said he was reluctant to admit his business career was ending in failure, and that the couple needed to look at moving to where she might have better career options given it was likely she would generate most of the income in the household from her work as a nursing sister. Mrs Duncan explained she was not enjoying her work in an aged-care facility in the Gulargambone district, but she was hopeful of finding more rewarding options.
The couple began looking around central Queensland for new opportunities. Mrs Duncan explained she was pleasantly surprised to hear her husband express enthusiasm about
Gin Gin. I understand Mr Duncan visited an Army friend in the area and liked what he saw. The area suited her: she said there were a number of career opportunities.
They purchased a property and moved there in around August 2012.Mr Duncan insisted in his evidence that he had no intention of retiring from the workforce when he moved to Gin Gin. While he explained he wanted to get out of the stock and station agency in Gulargambone because of the pressure of dealing with clients, he added it was his intention to start a new business in the same field in
Gin Gin. Indeed, he said in his evidence that one of the attractions of Gin Gin was its proximity to markets and infrastructure that would support a stock and station business.The evidence that Mr Duncan was planning to start a new agency business in Gin Gin is difficult to reconcile with his claim that he was unable to carry on the agency in Gulargambone because of his accepted condition. As he explained on more than one occasion in the course of his evidence, stock and station work is a “people game”. If you cannot handle the people – because of an accepted condition, for example – then it is unclear how a change in scenery will help. Yet that is what Mr Duncan appeared to suggest when he was cross-examined by Mr Williams, the Commission advocate: he shifted his ground and indicated he was having a particular problem with the people he dealt with in Gulargambone, rather than a problem with people generally.
Mrs Duncan told a slightly different story in her oral evidence. She said she was delighted her husband had agreed to the move. She hoped he would like Gin Gin because it would allow him to have contact with his Army mates, with whom he was comfortable. She also said she was happy they would acquire some acreage that would provide
Mr Duncan with the opportunity to run some livestock and engage in a few other primary production activities to provide him with some interest “so he didn’t go crazy”. She said she was aware Mr Duncan had made contact with a local stock and station agent and discussed doing some work, but doubted he was capable of taking up the offer.
She insisted her husband could not continue to work by that point because he was not the same person and could not deal with people. Her assessment of her husband’s prospects appears to have been correct: he has not acquired any clients (even though he has registered a business name) and has not done any agency work.To the extent of any inconsistency, I prefer Mrs Duncan’s explanation of what occurred. Mr Duncan did not appear to have good insight into his condition, while Mrs Duncan – a nursing sister – appeared to be keenly aware of her husband’s strengths and weaknesses.
I accept there were no other obstacles to Mr Duncan continuing to work as a stock and station agent in Gin Gin. Work was available, and he was physically able to do it. His age was not a problem: he noted the individual who sold him the business in Gulargambone was in his 70s when he retired. I also accept Mr Duncan’s evidence that he did not want to retire and did not plan to do so – although I also note Mrs Duncan’s evidence to the effect that her husband was effectively being forced to retire because of his inability to deal with people, which suggests his plans – while genuinely held – were simply unrealistic. I also accept the applicant has experienced a significant drop in his earnings following his move to Gin Gin, and that he is now unable to work.
DOES THE APPLICANT SATISFY THE “ALONE” TEST?
I am satisfied the evidence establishes the applicant’s remunerative work should be characterised as stock and station agent. I also accept the evidence establishes he is unable to continue doing that work.
I am also satisfied the evidence referred to in [16] establishes the applicant’s PTSD condition was and is the only factor preventing him from continuing to work as a stock and station agent. I am also satisfied in light of those factual findings that the applicant would not be suffering a loss of income but for that condition. It seems clear from the evidence that he would have been able to continue working for some time at Gin Gin, and may have actually enjoyed more favourable business conditions and higher income than he would have experienced if he had remained in Gulargambone.[1]
[1] See Flentjar v Repatriation Commission (1997) 48 ALD 1 at 4-5.
It follows I accept the applicant has satisfied the “alone” test. Given that was the only question that remained outstanding between the parties, his application must succeed.
CONCLUSION
The decision under review is set aside. I find in substitution that the applicant is eligible for a pension paid at the special rate with a date of effect of 3 June 2011.
I certify that the preceding 20 (twenty) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe ..............................[Sgd]..............................
Associate
Dated 9 December 2013
Date of hearing 18 October 2013 Counsel for the Applicant Mr Patrick Van Grinsven Solicitors for the Applicant Cockburn Legal Advocate for the Respondent Mr Bruce Williams
0