John Dunn and Repatriation Commission
[2013] AATA 673
[2013] AATA 673
Division Veterans' Appeals Division File Number
2012/5903
Re
John Dunn
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Deputy President S D Hotop
Date 20 September 2013 Place Perth The decision under review is affirmed.
...................[sgd]......................................
S D Hotop
Deputy President
CATCHWORDS
VETERANS’ AFFAIRS – veterans’ entitlements – disability pension – rate of disability pension – special rate – applicant applied for increase in rate of pension – applicant then over 65 years – last paid work – applicant working as employee of another person when stopped undertaking last paid work – applicant had not been working for that person for continuous period of at least 10 years that began before applicant turned 65 – applicant not eligible for special rate of pension – decision under review affirmed
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth), s 5Q(1), s 24 (2A) and s 73
CASES
Grant v Repatriation Commission (1999) 57 ALD 1
Thomson v Repatriation Commission (2000) 61 ALD 58
REASONS FOR DECISION
Deputy President SD Hotop
20 September 2013
Introduction
John Dunn (“the applicant”), who was born in December 1942, has been an ordained Minister of the Word within the Uniting Church in Australia since 1976, prior to which he was an ordained Minister within the Methodist Church. He served as a chaplain in the Royal Australian Air Force from 1976 to 1988, the whole of that service comprising “defence service” for the purposes of Part IV of the Veterans’ Entitlements Act1986 (Cth) (“VE Act”).
The applicant has been in receipt of disability pension under Part IV of the VE Act since 1987. On 16 December 2011 he made a claim for acceptance of “hearing deficit” and “cervical spine deterioration” as defence-caused, and an application for an increase in the rate of his disability pension.
On 19 May 2012 a delegate of the Repatriation Commission (“the respondent”) made a decision that “sensorineural hearing loss” is defence-caused but that “cervical spondylosis with C5/C6 radiculopathy” is not defence-caused, and increased the rate of the applicant’s disability pension to 60% of the General Rate with effect from 16 September 2011.
On 13 September 2012, a delegate of the respondent, pursuant to s 31 of the VE Act, reviewed the delegate’s decision of 19 May 2012 and varied that decision by increasing the rate of the applicant’s disability pension to 90% of the General Rate with effect from 16 September 2011.
On 27 November 2012 the Veterans’ Review Board (“VRB”) decided to affirm the delegate’s decision of 19 May 2012 as varied on 13 September 2012.
On 31 December 2012 the applicant made an application to the Tribunal for review of the VRB’s decision of 27 November 2012.
The Evidence
The evidence before the Tribunal comprised:
·the “T Documents” (T1-T15, pp I-XIV, 1-90) lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act1975 (Cth);
·Exhibits A1- A5 tendered by the applicant; and
·the oral evidence of the applicant.
The Issue
The issue for the Tribunal’s ultimate determination is whether the applicant is eligible for the special rate of pension provided for in s 24 of the VE Act.
The Relevant Legislation
Section 24 (in Division 4 of Part II) of the VE Act relevantly provides:
“ 24 Special rate of pension
…
(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.
…”
The phase “remunerative work” is defined (inclusively) in s 5Q(1) of the VE Act as including “any remunerative activity”.
Section 73 (in Division 3 of Part IV) of the VE Act provides:
“ 73 Application of Divisions 4 and 5 of Part II
(1)The provisions of Divisions 4 and 5 of Part II apply to and in relation to pensions payable in accordance with this Part in like manner as those provisions apply in relation to pensions payable in accordance with Part II.
(2)For the purposes of the application of the provisions of Divisions 4 and 5 of Part II as provided in subsection (1):
(a) a reference in those provisions to a war-caused injury shall be read as a reference to a defence-caused injury;
(b) a reference in those provisions to a war-caused disease shall be read as a reference to a defence-caused disease;
(c) a reference in those provisions to a veteran shall be read as a reference to a member of the Forces or a member of a Peacekeeping Force; and
(d) a reference in those provisions to Part II shall be read as a reference to Part IV.”
The Applicant’s Evidence
The applicant gave oral evidence as follows:
·he was first ordained as a Minister of the Methodist Church in October 1969 and, when the Methodist Church became part of the Uniting Church, his ordination was recognised by the Uniting Church;
·his ordination as a Minister has continued without interruption from October 1969 and he continues to be an ordained Minister of the Uniting Church because “ordination is for life”;
·although he is not currently employed by the Uniting Church, he is occasionally called upon to conduct services as an ordained Minister rather than as a lay person;
·he currently chairs the Uniting Church’s Resources Board, “one of the major boards of the Church”.
The applicant confirmed that he had prepared a document entitled “Employment History – 1996 to 2011” (T15, p 88) and he commented on the contents of that document as follows:
·from March 1996 to October 1997 his position was Consultant, Mission and Justice within the Synod of WA – a full-time position to which he was appointed by the Church and for which he was paid a stipend;
·he served as Moderator of the WA Synod of the Church on a part-time basis from October 1996 to September 1998 and on a full-time basis from September 1998 to November 1999, during which periods he continued to receive a stipend;
·from December 1999 to January 2002 he served as a Minister at the Darwin Memorial Church within the Northern Synod, and continued to receive a stipend;
·from February 2002 to February 2003 he served in various positions within the Synod of WA on a fractional basis for which he received the corresponding fractional remuneration;
·from March 2003 to January 2009 be held the position of Program Coordinator/Counsellor with Drug ARM WA (which he described as a not-for-profit, non-denominational agency, incorporated under the Corporations Act, which provides drug and alcohol services to the community) on a full-time basis up to 2006 and thereafter on a fractional (0.4) basis, and his total remuneration was paid by that agency during that period;
·from February 2009 to October 2011 he held the position of Strategic Property Officer with UnitingCare West (which he described as a Synod agency of the Uniting Church incorporated under the Uniting Church in Australia Act (WA), but constituting a separate entity from the Church) and he was employed in that position for 4 days per week for which he was remunerated by that agency;
·from October 2006 he has served, and continues to serve, as Executive Chair of UnitingCare Forum WA, within the Synod of WA, on a fractional (0.1) basis, for which he received “part payment” up until September 2011, and thereafter he has served in that capacity on a voluntary basis.
As regards his position as Strategic Property Officer with UnitingCare West, the applicant said that he had entered into a 3-year contract from February 2009 to January 2012 but that he had to resign for health reasons in October 2011. He said that there was an “understanding” that he would be able to renew that contract and that, were it not for his health problems, he would have done so.
Additional Evidence
The applicant tendered in evidence the following material:
·correspondence between the respondent’s representative and the applicant’s representative (dated 28 May 2013 and 5 June 2013, respectively) consisting of questions by the respondent regarding the working relationship between the applicant and the Uniting Church, and the applicant’s response thereto (Exhibit A1);
·a supplementary response by the applicant’s representative to the respondent’s representative (Exhibit A2);
·extract from the Basis of Union, Constitution, and Regulations of the Uniting Church (Exhibit A3);
·document entitled “Outcome of Investigations into the Employment and Taxation Status of Ministers of the Word in the Uniting Church in Australia” prepared by the applicant’s representative (Exhibit A4);
·bundle of Australian Taxation Office documents relating to the taxation status of “religious practitioners” (Exhibit A5).
Analysis
As previously indicated, the ultimate issue for the Tribunal’s determination is whether the applicant fulfils the relevant requirements for eligibility for the special rate of pension prescribed by s 24 of the VE Act. As the applicant had turned 65 (in December 2007) before making the relevant claim/application on 16 December 2011 (when he was 69 years old), that issue falls to be determined in accordance with subs (2A) of s 24 of the VE Act.
The respondent did not dispute that paras (a)–(f) and (h) of subs (2A) of s 24 of the VE Act are fulfilled in the applicant’s case. Accordingly, the only matter in dispute is whether para (g) of subs (2A) is fulfilled in this case.
The circumstance required by para (g) of subs (2A) of s 24 of the VE Act is as follows:
“ 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”.
The phase “last paid work” is explained in para (d) of subs (2A) which provides:
“ 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”.
In Grant v Repatriation Commission (1999) 57 ALD 1 the Federal Court of Australia (Full Court) said (at 4):
“ [9] Determination of the ‘remunerative work’ referred to in s 24(2A)(d) requires the characterisation of the specific remunerative activity or activities that the veteran was last undertaking before making the claim or application rather than of the capacity in which that work was undertaken. The particular capacity in which the work was undertaken is dealt with as a separate criterion in s 24(2A)(g). Thus, whether or not the work was undertaken as an employee or as a self-employed person is irrelevant to the characterisation to be given to that work under s 24(2A)(d). That conclusion follows from the definition of ‘remunerative work’ in s 5Q, the recognition in s 24(2A)(g) that the capacity in which work is undertaken is to be treated as a matter separate from the work that was undertaken for the purposes of s 24 and is consistent with the purpose of s 24(2A) of providing for payment at the special rate where a person is prevented solely by war-caused incapacity from continuing to undertake the work that the veteran was last undertaking before making the claim or application. ...”
In Thomson v Repatriation Commission (2000) 61 ALD 58 the Federal Court of Australia (Full Court) said (at 62):
“ [10] As was pointed out by the Full Court [in Grant], subs (g) of s 24(2A) is concerned with the capacity in which the last paid work was undertaken. A veteran meets the requirements of the subsection if the last paid work has been undertaken in the relevant capacity for a continuous period of at least 10 years. If the capacity is as an employee, the veteran must have been employed by the same employer (or its predecessor) continuously for the 10 year period. If the veteran is self-employed, then the last paid work must have been undertaken in that capacity continuously for the 10 year period. When subcl (ii) refers to the requirement that the self-employed veteran must have been ‘so working’ continuously for the10 year period, the reference is to the capacity in which the veteran worked.”
The reference to “last paid work” in para (g) of s 24 (2A) of the VE Act is a reference to the particular remunerative activity or activities which the veteran was last undertaking before making the relevant claim or application and which the veteran was prevented from continuing to undertake by reason of incapacity from war-caused injury or war-caused disease or both, alone, within the meaning of para (d) of s 24 (2A).
In the present case the Tribunal finds that the particular remunerative activity which the applicant (a “member of the Forces” within the meaning of Part IV of the VE Act) was last undertaking before making the relevant claim/application on 16 December 2011 and which he was prevented from continuing to undertake solely by reason of incapacity from defence-caused injury was his employment as Strategic Property Officer with UnitingCare West.
As regards remunerative activity or activities which the applicant has been undertaking as an ordained Minister of the Uniting Church, or as Executive Chair of UnitingCare Forum WA, the applicant, according to his own evidence (which the Tribunal accepts), continues to undertake those activities and, therefore, has not been “prevented from continuing to undertake” them, within the meaning of para (d) of s 24 (2A) of the VE Act, and has not “stopped undertaking” them, within the meaning of para (g) of s 24 (2A).
Accordingly, the Tribunal finds that the “last paid work” which the applicant “stopped undertaking”, within the meaning of para (g) of s 24 (2A) of the VE Act, was his paid work as Strategic Property Officer with UnitingCare West.
As pointed out by the Full Federal Court in Grant and Thomson, para (g) of s 24 (2A) of the VE Act is concerned with the capacity in which the relevant “last paid work” was undertaken. There can be no dispute that the capacity in which the applicant undertook his work as Strategic Property Officer from February 2009 to October 2011 (when he “stopped undertaking” that work) was as an employee of UnitingCare West, and, accordingly, in respect of that work he falls within subpara (i) of para (g) of s 24 (2A).
It is common ground that the applicant, when he “stopped undertaking” his work as Strategic Property Officer with UnitingCare West in October 2011, had been working for that organisation for approximately 2 years and 8 months (commencing in February 2009 when he was 66 years old) – not “for a continuous period of at least 10 years that began before [he] turned 65”, as required by para (g) of s 24 (2A) of the VE Act.
The applicant, nevertheless, submitted that he fulfils para (g) of s 24 (2A) of the VE Act because he falls within subpara (ii) of para (g) in that he has been self-employed (“working on his own account”) in his vocation as a Minister of Religion for a continuous period which commenced in October 1969 – some 38 years before he turned 65 – and he continues to be so self-employed. The Tribunal does not accept that submission. As explained by the Full Federal Court in Thomson, subpara (i) and subpara (ii) of para (g) each refer to the capacity – employee in the case of subpara (i), self-employed in the case of subpara (ii) – in which the veteran undertook his or her “last paid work”, and para (g) requires that the veteran had been undertaking that work in the relevant capacity “for a continuous period of at least 10 years that began before the veteran turned 65” at the time when the veteran “stopped undertaking” that work. Self-evidently, the applicant’s ongoing work as a Minister of the Uniting Church does not meet the requirement of para (g) of s 24 (2A) of the VE Act.
It follows from the foregoing analysis that para (g) of s 24 (2A) of the VE Act is not fulfilled in the applicant’s case.
The Tribunal concludes, therefore, that s 24 of the VE Act does not apply to the applicant and that, accordingly, he is not eligible for the special rate of pension pursuant to that section.
Decision
For the above reasons the decision under review is affirmed.
I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop. ...............[sgd D Brodie].....................................
Administrative Assistant
Dated 20 September 2013
Date of hearing 27 August 2013 Representative of the Applicant Rev Dr A Stubbs Representative of the Respondent
Mr C Ponnuthurai
Compensation and Review Branch
Department of Veterans’ Affairs
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