John William Burton and Repatriation Commission

Case [2015] AATA 105

[2015] AATA  105

Division VETERANS' APPEALS DIVISION

File Number

2012/1851

Re

John William Burton

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal

Deputy President F J Alpins
Date 26 February 2015
Place Melbourne

The decision under review is affirmed.

............................[sgd].......................................

Deputy President F J Alpins

VETERANS’ ENTITLEMENTS – application for increase in pension – special rate of pension – ss 24(1)(c) and 24(2)(b) of Veterans’ Entitlements Act 1986 (Cth) – whether veteran prevented by incapacity from war-caused conditions alone from continuing to undertake remunerative work – whether veteran’s incapacity the substantial cause of inability to obtain remunerative work

Legislation

Veterans’ Entitlements Act 1986 (Cth) ss 5D, 15, 19, 22, 23, 24, 120, 175

Cases

Baini v R (2012) 246 CLR 469

Banovich v Repatriation Commission (1986) 69 ALR 395

Brennan v Comcare (1994) 50 FCR 555

Byrne v Repatriation Commission [2001] FCA 1134

Cavell v Repatriation Commission (1988) 9 AAR 534

Flentjar v Repatriation Commission (1997) 48 ALD 1

Fox v Repatriation Commission (1997) 45 ALD 317

Magill v Repatriation Commission [2002] FCA 744

Repatriation Commission v Hendy (2002) 76 ALD 47

Repatriation Commission v Richmond [2014] FCAFC 124

Repatriation Commission v Smith (1987) 15 FCR 327

Repatriation Commission v Watkins [2015] FCAFC 10

Richmond v Repatriation Commission (2014) 140 ALD 380

Smith v Repatriation Commission (2014) 220 FCR 452

REASONS FOR DECISION

Deputy President F J Alpins

26 February 2015

INTRODUCTION

  1. This application for review concerns the entitlement of the applicant, Mr John Burton, to a special rate of pension pursuant to s 24 of the Veterans’ Entitlements Act 1986 (Cth) (the “Act”). The essential issue before the Tribunal is whether s 24(1)(c) is or was satisfied at any relevant time, given the operation of the provisions of s 24(2).

    BACKGROUND

  2. Mr Burton was born on 3 January 1946.  He served in the Australian Army from 1966 to 1968 and gave operational service in Vietnam from 27 March 1968 to 20 August 1968.

  3. Mr Burton suffers from various medical conditions, some which have been accepted as being “war-caused” for the purposes of the Act (see s 9), relevantly including post traumatic stress disorder (“PTSD”) and alcohol dependence. PTSD was accepted as a war-caused condition from which he suffers on 29 June 2005, with effect from 7 May 2003. It appears that PTSD was accepted as a war-caused condition by the respondent, resulting in a decision made by consent by this Tribunal on that day to that effect (by which Mr Burton’s pension was increased from 40% to 50% of the general rate), although nothing turns on whether the respondent first accepted as much.

  4. Since June 2006, Mr Burton has been in receipt of a pension at 100% of the general rate under s 22 of the Act. On 25 November 2010, shortly before his 65th birthday, Mr Burton applied in accordance with s 15 of the Act for an increase in the rate of his pension, then making his claim with respect to his alcohol dependence.

  5. On 20 October…

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John William Burton and Repatriation Commission [2015] AATA 105
Case
[2015] AATA 105
Decision Date

CaseChat Overview and Summary

In the case of John William Burton and Repatriation Commission, the primary issue was whether Mr Burton was entitled to a special rate of pension under section 24 of the Veterans’ Entitlements Act 1986. Mr Burton, a veteran who served in Vietnam, suffers from post-traumatic stress disorder (PTSD) and alcohol dependence, both of which were accepted as war-caused conditions. He applied for an increased rate of pension, which was initially set at 100% of the general rate. The Tribunal had to decide if Mr Burton qualified for a special rate of pension, considering his incapacity from his war-caused conditions during the assessment period.

The legal issues revolved around the interpretation and application of section 24 of the Act, particularly whether section 24(1)(c) was satisfied, either on its own or by operation of section 24(2). Section 24(1)(c) requires that the veteran is, by reason of incapacity from a war-caused condition, prevented from continuing to undertake remunerative work they were undertaking. The Tribunal had to determine if Mr Burton met this criterion during the assessment period, which started on 25 November 2010 when he applied for the pension increase.

The Tribunal concluded that Mr Burton was not eligible for the special rate of pension. It found that while Mr Burton’s PTSD and alcohol dependence incapacitated him, these conditions did not prevent him from continuing his work as a bank manager during the assessment period. The Tribunal affirmed the decision under review, finding that Mr Burton’s retrenchment was not a result of his incapacity from the war-caused conditions but rather a restructuring within his employer. The evidence showed that Mr Burton was capable of managing his condition and continued to work until his redundancy. Therefore, the Tribunal held that the necessary conditions under section 24(1)(c) were not satisfied, and Mr Burton’s pension remained at 100% of the general rate.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

This application for review concerns the entitlement of the applicant, Mr John Burton, to a special rate of pension pursuant to s 24 of the Veterans’ Entitlements Act 1986 (Cth) (the “Act”). The essential issue before the Tribunal is whether s 24(1)(c) is or was satisfied at any relevant time, given the operation of the provisions of s 24(2). BACKGROUND Mr Burton was born on 3 January 1946. He served in the Australian Army from 1966 to 1968 and gave operational service in Vietnam from 27 March 1968 to 20 August 1968. Mr Burton suffers from various medical conditions, some which have been accepted as being “war-caused” for the purposes of the Act (see s 9), relevantly including post traumatic stress disorder (“PTSD”) and alcohol dependence. PTSD was accepted as a war-caused condition from which he suffers on 29 June 2005, with effect from 7 May 2003. It appears that PTSD was accepted as a war-caused condition by the respondent, resulting in a decision made by consent by this Tribunal on that day to that effect (by which Mr Burton’s pension was increased from 40% to 50% of the general rate), although nothing turns on whether the respondent first accepted as much. Since June 2006, Mr Burton has been in receipt of a pension at 100% of the general rate under s 22 of the Act. On 25 November 2010, shortly before his 65th birthday, Mr Burton applied in accordance with s 15 of the Act for an increase in the rate of his pension, then making his claim with respect to his alcohol dependence. On 20 October 2011, the Veterans’ Review Board decided that Mr Burton’s alcohol dependence was war-caused, with effect from 25 August 2010, given the operation of s 20 of the Act, and remitted the matter to the respondent for assessment of the rate at which Mr Burton’s pension was payable. In a decision made on 26 October 2011, the respondent determined that Mr Burton was not eligible for the special rate of pension (under s 24 of the Act) nor the intermediate rate of pension (under s 23 of the Act) and that his pension would remain at 100% of the general rate. On 18 April 2012, the Veterans’ Review Board affirmed the respondent’s decision. Accordingly, the respondent’s decision is the decision under review (s 175 of the Act).RELEVANT LEGISLATION A pension under the Act may be paid at the general rate, the intermediate rate, or the special rate. As Mr Burton applied for an increase in the rate of his pension, s 19(4A) of the Act directs that his application be dealt with in accordance with sub-ss (5A), (5B) and (5C) and determined under sub-s (5D). As the Full Federal Court recently stated in Repatriation Commission v Richmond [2014] FCAFC 124 at [18], “[t]he effect of these provisions is that the Commission was required to assess whether at any time during the assessment period [the veteran] was entitled to an increase to the special rate of pension pursuant to s 24” (see also Smith v Repatriation Commission (2014) 220 FCR 452 at [5], [40], [185]). The assessment period starts when the application was made and ends when it is determined; it therefore continues to run until the Tribunal makes its decision (see Richmond at [19]). It follows that ceasing particular employment for reasons unrelated to a war-caused condition prior to the assessment period does not destroy a veteran’s subsequent entitlement to an increased pension (see Banovich v Repatriation Commission (1986) 69 ALR 395 at 402-403, 404; Smith at [70] per Buchanan J).

Evidence

Evidence Before The Court

Accordingly, I have addressed the construction and application of s 24(1)(c) by reference to the statutory words (as construed in relevant case law: see Brennan v Comcare at 572), not by reference to the Flentjar questions. EVIDENCE Mr Burton’s evidence took the form of a witness statement and oral evidence; he was cross-examined. Mr Burton completed secondary schooling to leaving certificate level (equivalent to year 11). At the age of 16 or 17, he was then employed by the Bank of New South Wales and worked there, first as a “junior”, then as a “ledger examiner” and teller, until his enlistment in the Australian Army. After his discharge from the Army, he resumed work with the same employer and its successor (Westpac Banking Corporation) until his retrenchment, which occurred in about November 1996. At that time, having risen steadily in seniority, he was a manager of a branch of that bank in Melbourne’s central business district. Under cross-examination, Mr Burton said that he was “good at my job”. Nevertheless, as part of a restructuring of the bank, his position was “downsized” to one of lesser seniority and he was made redundant. Under cross-examination, Mr Burton said that he was one of seven managers in the central business district made redundant as part of the downsizing, and that his staff was reduced from 27 to 17 people. He found out about his redundancy when his regional manager took him out for a cup of coffee. He accepted under cross-examination that costs pressures were being placed on bank staff and the banking industry as a whole during the period leading up to the restructuring. At around the time of the restructuring, he was offered a position in the bank’s private banking division, which would have entailed higher remuneration but also greater responsibilities. Mr Burton declined that offer, as he felt unable to cope with its responsibilities. He was concerned that the customers he would be required to deal with would be more demanding and would put him under pressure. Also, he was concerned that he would be increasingly exposed to alcohol consumption in social activities he would be required to engage in with such customers, which would exacerbate his psychological problems. Under cross-examination, Mr Burton acknowledged that the private banking job constituted a promotion involving significant responsibilities. Mr Burton felt at the time that he was only just coping with the demands of his position as branch manager, which included managing the branch staff. He gave evidence that he was then experiencing increasing difficulty relating to other people, problems in concentration and memory and that insomnia resulting from his recollections of war service was contributing to his symptoms, particularly his lethargy and irritability. In oral evidence, Mr Burton said that he was “having trouble with [my] staff and I was just being difficult to get on with” and “just having trouble coping”. He tended to become aggressive and argumentative, particularly with his regional manager. He also gave oral evidence that he “had a lot of anxiety” and that he was “feeling stressed out”, as the “staff ... weren’t working to their capacity”.

Decision

Reasons for decision

As I have indicated, although the parties reached common ground in this case that the sole issue before the Tribunal was whether s 24(1)(c) was satisfied, that cannot be the case. As s 24 does not apply to Mr Burton, it is prima facie also necessary to consider whether Mr Burton was entitled to an increase to the intermediate rate of pension during the assessment period (see also s 23(1)(d)). However, as the first limb of s 24(1)(c) is not satisfied own its own account, neither is the analogous provision in s 23 (s 23(1)(c)). Furthermore, as s 24(2)(b) is not satisfied, neither is its “imperfect analogue” in s 23 (Smith at [25] per Rares J), being s 23(3)(b). Accordingly, Mr Burton is not eligible for the intermediate rate of pension. CONCLUSION For the above reasons, the Tribunal will affirm the decision under review.

Ratio Decidendi

Legal Principle Established

Dr Horsley, an occupational physician, also had regard to various prior reports in preparing her report (in 2012). She opined that “[t]he most significant barrier to return to work” was the combination of Mr. Burton’s PTSD and alcohol dependence. Having regard to the reports prepared by psychiatrists, she opined that “[o]n psychiatric grounds alone”, Mr Burton was prevented from working more than eight hours per week. She noted from Dr Strauss’ and Dr Newland’s reports that it appeared that, had Mr Burton not been made redundant, he would have ceased work in the foreseeable future given his psychiatric conditions. CONSIDERATIONParties’ submissions As I have indicated, the only issue in dispute with respect to Mr Burton’s entitlement to the special rate of pension under s 24 of the Act was whether s 24(1)(c) was satisfied, whether on its own account or by operation of s 24(2). It was not in dispute that the preceding provisions of s 24(1) were satisfied. In particular, the respondent conceded, given the reports of Dr Kaplan, Dr Strauss and Dr Horsley (which I note were all prepared in 2012) that s 24(1)(b) was satisfied during the assessment period. I note that the relevant incapacity referred to in each of those reports for the purposes of s 24(1)(b) is the psychological effects of Mr Burton’s PTSD and also of his alcohol dependence. Although in oral submissions the respondent focused on the psychological effects of PTSD, I have taken the concession, given the reference to those reports as supporting it, to concern both accepted war-caused conditions, that is to say, to concern incapacity from alcohol dependence too. If I am wrong in that, I would find in any event, based on those reports that, for the purposes of s 24(1)(b), Mr Burton’s incapacity was from both PTSD and alcohol dependence, that is to say that it was the psychological effects of both those conditions (see s 5(D)(2)), although nothing ultimately turns on that point. I find, for the purposes of s 24(1)(b) and (c) and s 24(2), based upon Mr Burton’s evidence and the medical evidence, that his incapacity from those conditions, particularly his PTSD, includes, inter alia, the following psychological effects - sleep disturbance, irritability, inability to deal with minor stresses and pressures, anxiety, depression, social withdrawal and difficulties in memory and concentration. It was also common ground that, during the assessment period, Mr Burton was by reason of incapacity from a “war-caused” condition within the terms of s 24(1)(c), prevented from continuing to undertake remunerative work that he was undertaking. As I said, the primary focus was on Mr Burton’s PTSD, but his alcohol dependence also answers that description, for reasons consonant to those concerning s 24(1)(b). I note that there appeared to be no dispute about that nature of that remunerative work, which I find to be work as a bank manager. Furthermore, there was no dispute that the assessment period commenced on 25 November 2010, being the date when Mr Burton applied for an increase in the rate of his pension.