Johnston and Repatriation Commission
[2006] AATA 627
•17 July 2006
|
DECISION AND REASONS FOR DECISION [2006] AATA 627
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2006/69
| VETERANS' APPEALS DIVISION | ) | ||
| Re | JEFFREY JOHNSTON | ||
Applicant
| And | REPATRIATION COMMISSION |
Respondent
DECISION
| Tribunal | Dr EK Christie, Member |
Date 17 July 2006
Place Brisbane
| Decision | The Tribunal affirms the decision under review. This means Mr Johnston’s application for review is unsuccessful. The Tribunal raises the possibility of an Act of Grace payment in the factual circumstances. |
.........[Sgd]............
EK Christie
Member
CATCHWORDS
VETERANS’ AFFAIRS – veterans’ entitlements – special rate – exposure to aviation fuel - renal failure – discretion to vary the date of effect of special rate of pension –– changing scientific knowledge and connection between renal failure and service – whether legislative outcome unintended – Act of Grace payment
Veterans’ Entitlements Act 1986 s 14, 20
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 68
Haidar v Secretary, Department of Social Security (1998) 157 ALR 359
Ryde v Repatriation Commission (2005) 85 ALD 586
Re Ryde and Repatriation Commission [2004] ATA 274
REASONS FOR DECISION
| 17 July 2006 | Dr EK Christie, Member |
This is an application by Jeffery Johnston for a review of a decision made by the Veterans’ Review Board (“the VRB”) on 16 January 2006 that he was not entitled to a backdate of his Special Rate of pension from the date of effect that had been granted. The date of effect of Special Rate was 26 June 2002, a date that was three months prior to the date of his claim for Special Rate being lodged on 26 September 2002. At the hearing, Jeffery Johnston represented himself. The respondent was represented by Malcolm Smith, a Departmental Advocate.
At the hearing the Tribunal had in evidence before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the “T” Documents, Exhibit 1), a medical report and a DVD filed on 7 June 2006.
The general facts were not in dispute and may be stated briefly:
(a)Mr Johnston is now aged 45. Mr Johnston enlisted in the Royal Australian Navy in January 1977 as a helicopter electrical engineer and was discharged in January 1983. This period constitutes “eligible service”. His service in the RAN from January 1977 to January 1983 was with 723 Squadron on HMAS Albatross.
(b)Mr Johnston worked as a helicopter engineer involved in online refuelling and was exposed to aviation fuel splash, as well as aviation solvents and aviation exhaust.
(c) Centrelink records indicate that Mr Johnston was granted a Disability Support Pension (the “DSP”), a social security entitlement under the Social Security Act 1991, on 20 August 1998. The DSP was granted because of the following medical condition: “visceral disorder”. Mr Johnston had lodged his claim for DSP on 11 August 1998.
(d)Mr Johnston lodged a claim for “renal failure end stage” on 26 September 2002. The Repatriation Commission accepted that the diagnosis of “renal failure” was an appropriate medical diagnosis.
(e)Mr Johnston’s medical conditions of “Hepatitis B” and “renal failure” were both accepted as “service related disabilities” on 26 July 2002.
(f)In its “Reasons for Decision”, the VRB provided the following history of the Johnston’s application.
“1. Mr Jeffrey Johnston, the applicant, has applied for review of a Repatriation Commission decision of 31 July 2003 in which the Commission increased pension to the Special Rate from and including 26 June 2002. That decision followed the acceptance of renal failure in a decision dated 15 July 2003. Hepatitis B was previously accepted as service related but, presumably because it has been asymptomatic for many years, that condition was not included in the overall assessment” (Emphasis added).
The Issues to be Decided
The determination of Mr Johnstons’ application for review involves a question of law. Specifically, whether the Tribunal has any discretion to backdate the date of effect of his Special Rate of pension to some earlier date i.e. prior to 26 June 2002.
Statutory Requirements And Case Law
The Veterans’ Entitlements Act 1986 (“the VE Act”) contains the following statutory requirements (Sections 14 and 20) that are relevant to Mr Johnston’s application for review.
Section 14 provides for claims of pension under the Act to be made by veterans.
“Section 14: Claim for pension
(1)Subject to subsection (2) a veteran … may make a claim for a pension in accordance with subsection (3).
…
(3) A claim for a pension:
a. Shall be in writing and in accordance with a form approved by the Commission;
b. Shall be accompanied by such evidence available to the claimant as the claimant considers may be relevant to the claim; and
c. Shall be made by forwarding to, or delivering at, an office of the Department in Australia the claim and the evidence referred to in paragraph (b).”
Section 20 provides discretion to set a date for payment of pension for a claim that has been granted. However, there are statutory boundaries to this discretion:
“Section 20: Dates of Effect that may be specified in respect of grant of claim for pension
(1) Where a claim in accordance with section 14 for a pension is granted, the Commission may, subject to this Act, specify as a date that a determination under subsection 19(3) takes effect in respect of the claim, a date not earlier than 3 months before the date on which the claim for a pension, in accordance with a form approved for the purposes of paragraph 14(3) (a) was received at an office of the Department in Australia.” (Emphasis added).
Subsection (3) of section 20 then goes on to provide:
“Nothing in this section empowers the Commission to specify as a date that a determination of a claim under subsection 19(3) takes effect in respect of a person who has made a claim for a pension under section 14, a date before the date that the person became eligible to be granted the pension.”
The Federal Court has considered the interpretation and application of these statutory provisions.
The decision by the Federal Court in Ryde v Repatriation Commission (2004) 85 ALD 586, affirmed the earlier decision by the Tribunal. Sackville J concluded:
“Section 20(3) merely says that nothing in s 20 empowers the commission to specify a date from which a determination takes effect earlier than the date upon which a person became eligible to be granted the pension. It cannot authorise the commission to specify a date earlier than that provided for in s 20(1).”
In the earlier case (Ryde and Repatriation Commission [2004] AATA 274), the Tribunal had concluded that “…it is quite clear that where section 20 of the VE Act refers to the date from which a grant of claim for pension can take effect, it refers to a successful claim.”
Evidence of Jeffrey Johnston
Mr Johnston said that he was granted DSP under the Social Security Act by Centrelink in August 1988 during a period that he was hospitalised and in intensive care. Centrelink had approached him directly about his entitlements to DSP. At this time, he was unaware of his entitlement to disability pension under the VE Act and was never given any opportunity to pursue this pension under the VE Act. It was not until 2002, the time that he was being treated for renal end failure, that he first became aware of entitlements under the VE Act.
Mr Johnston stated that if he had been informed in 1988 that he was entitled to a pension under the VE Act, he would have chosen such a pension rather than a DSP under the Social Security Act.
Mr Johnston referred to the following Navy Minute dated 11 January 2006, which he believed at the very least, was an admission of his exposure to chemicals (Exhibit A1).
“1. In relation to your request for information at reference A dated 11 January 2006, Mr Jeffery Malcolm Johnston Ex ABATC S121171 was an Aviation Sailor whose duties would have involved some (if not all) of the following:
a.The fuelling of naval aircraft;
b.The cleanliness and husbandry of naval aircraft, and
c.The soldering repair of aircraft wiring and avionics equipment.
2. Whilst carrying out the above duties Mr Johnston would have used a variety of products, possibly including those listed in his submission. The exact nature of the substances he would have used cannot be provided noting the time lapse since he was employed in the RAN Aviation field. Whilst personal protective equipment (PPE) was available at the time, I would expect that the enforcement of PPE use would have been lacking in those days due to the limited understanding of the harmful effects of such products.”
Mr Johnston concluded by stating that the exposure of chemicals to him during his naval service had left him with the legacy of a debilitating illness, a reduced life expectancy, incredible pain and a loss of many normal bodily functions. His renal end failure condition continues to deteriorate.
Should the outcome of his application fail to vary the date of effect of his Special Rate to a date earlier than 26 June 2002, then the legislation was unfair and could not be consistent with the intent of Parliament. Given the factual circumstances of his case, there was a moral obligation on the administrative decision-maker to vary the decision of the Veterans’ Review Board and not to hide behind the legislation.
Consideration of the Issues
In Mr Johnston’s case, there is only one decision possible: whether the date of effect of Special Rate of pension [26 June 2002] - a date that was three months prior to the date of his claim for Special Rate being lodged on 26 September 2002, can be backdated to some earlier date prior to 26 June 2002. The question for the determination of the Tribunal is whether the decision under review is the correct one.
[See Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 68]
In this application for review, the Tribunal considers all the evidence and information before the Tribunal to the extent those facts are relevant to the question of law that must be decided, by reference to the subject matter, scope and purpose of the Veterans’ Entitlement Act .
[See Haidar v Secretary, Department of Social Security (1998) 157 ALR 359 at 367]
Mr Johnston lodged his claim for Special Rate on 26 January 2002 in accordance with the requirements prescribed by s 14(3) of the Act. This claim was successful following a review by the Repatriation Commission dated 31 July 2003. The date of effect of the Special Rate of pension [26 June 2002] was three months prior to the date of the claim lodged by Mr Johnston.
Section 20(1) of the Act prescribes the statutory boundaries for time for which discretion may be applied by the administrative decision-maker to “backdate” the date of effect of the Special Rate of pension in Mr Johnston’s case. That is, the discretion cannot be applied to specify a date from which a determination takes effect earlier then the date upon which Mr Johnston became eligible to be granted the Special Rate pension. Accordingly, the following facts are relevant:
(a)Section 20 of the Act refers to the date of grant for a claim of pension to take effect; it refers to a successful claim. In Mr Johnston’s case his claim was successful on 31 July 2003.
(b)Section 20(1) sets the time boundaries for which the discretion to set a date for payment of pension for a claim that has been granted i.e. no earlier than 3 months before the claim, made under s 14, was lodged; and
(c)Section 20(3) does not provide any power to authorise the administrative decision-maker to specify a date earlier than the “3 month boundary” set by section 20(1).
Accordingly, by applying the facts of Mr Johnston’s case to the statutory and case law, the Tribunal can make no other conclusion than to find that the discretion to set the date for payment of Special Rate at 26 June 2002 has been correctly applied in the decision of the VRB. That is, the decision under review is the correct one.
Whilst this outcome may seem harsh, it would be more appropriate to describe the outcome as unfortunate. The legislation gave the Tribunal no other option than to make such a finding. There is no discretion in the legislation for the Tribunal to make any other decision based on the proved facts before the Tribunal that will allow the Tribunal, as a matter of law, to backdate the date of effect of Mr Johnston’s Special Rate of pension to some earlier date i.e. prior to 26 June 2002.
However, the Tribunal does raise for consideration by Mr Johnston and the Repatriation Commission, the Departmental Policy Guideline “Act of Grace Payments” (Part 3, Chapter 9).
The Departmental Policy Guideline states as follows:
“Section 3 Act of Grace Payments
What is an Act of Grace payment
An Act of Grace payment may be made where a person has suffered a loss. Although there is no legal liability on the Commonwealth to meet the loss, it is considered that the Commonwealth bears some responsibility for the loss…
Eligibility for an Act of Grace payment
Eligibility for an Act of Grace payment depends on the claimant’s circumstances and a wide range of matters may be taken into account to determine eligibility although there is no set eligibility criteria for an Act of Grace payment, claims may be considered where:
§ a person received incorrect advice leading to detriment, but where there is no legal liability
§ a matter is covered by legislation, but its application produces a result which is unintended, anomalous, inequitable or otherwise unacceptable
§ it is considered desirable to apply the benefits of proposed legislation, or
§ there are other special circumstances where there may be a moral obligation to make a payment
Request for an Act of Grace payment
Requests for ‘Act of Grace payments’ can arise from almost any aspect of Commonwealth administration and include payments normally paid under Part III (service pension) or Part IIIA (income support supplement) of the VEA.
Claims for Act of Grace payments
A claim for an Act of Grace payment should first be considered under the criteria for ‘compensation for detriment caused by administrative error’. If a claim satisfies that criteria it will be determined under the compensation for detriment provisions. Claims that do not satisfy the compensation criteria may be determined under the Act of Grace provisions.”
In relation to the Departmental “Act of Grace Policy”, the Tribunal considers that there is no issue for a claim under the Departmental Policy, “Compensation for Detriment caused by Administrative Error”, as there appears to be no departmental administrative procedures that normally would have applied to Mr Johnston’s circumstances.
In any external consideration of the possibility for an Act of Grace Payment, due regard must be given to the sworn evidence given by Mr Johnston at the hearing [see paras. 12 - 16].
Essentially, Mr Johnston’s concerns reflected his situation that he had served his country in good faith – but now has a terminal illness for which the Government was directly responsible. That is, he suffered injuries whilst in the Navy notwithstanding his claim that the Department knew aviation fuel was poisonous in 1972. The Navy File Note (see para. 14), he submits, is an admission, on their part, to his exposure to “products” whilst refuelling naval aircraft.
In relation to the Act of Grace policy, the Tribunal makes the observation that the outcome of this application for review, as covered by the provisions of the Veterans’ Entitlements Act, in Mr Johnston’s factual circumstances, has led to a result that may be considered as an “unintended anomalous, inequitable, unjust or otherwise unacceptable result”. On consideration of the overall circumstances, it may even lead to a conclusion “that there is a moral obligation on the Commonwealth to make a payment” (Tribunal emphasis).
The Tribunal makes this observation for the following reasons.
(a)That there has been an acknowledgement by the Navy (see para 14) from which, at the very least, it could be inferred that Mr Johnston was exposed to chemicals whilst refuelling helicopters during his time in the Navy.
(b)Mr Johnston was unaware of his entitlement to a pension under the VE Act at the time of his hospitalisation in intensive care in 1988 and so accepted “disability support pension” from Centrelink under the Social Security Act. The medical condition upon which the DSP was granted by Centrelink was a “visceral disorder”. The “viscera” is the general name given to the larger organs lying within the cavities of the chest and abdomen.[1] Accordingly, it is clear that such a diagnosis has little correlation with his ultimate accepted condition of “renal failure end stage”. The implications of differential diagnosis over time and health and behavioural impacts upon Mr Johnston are an issue for him to explain and to expand: should he decide to pursue an Act of Grace Payment.
(c)The medical opinions of Dr R King (8 July 2003) and Dr S Chowdhury (18 December 2002) need to be considered in the context that they failed to consider the accepted scientific knowledge related to health impact studies of RAAF aircraft maintenance workers involved in fuel tank maintenance and the F111 (fuel tank), Deseal/Reseal and Spray Seal Programs (1977-1999) as documented in Reports released by the RAAF Board of Inquiry over time (2002-2004). The weight that can be attached to the reports of Dr Chowdhury and King, in these circumstances, is uncertain.
(d)As at 2004, six members of the 12 engineering crew of the helicopter squadron involved in refuelling activities with whom Mr Johnston served, have all died from renal end failure; three others have died in motor vehicle accidents. This “cluster of death from renal end failure” in this specific situation represents a crude epidemiological statistic that warrants closer review by the Department of Defence given that the relative risk rates for the incidence of renal end failure in this cluster, seems inordinately high, in relation to the incidence of renal end failure in the community not exposed to the chemicals to which Mr Johnston and his squadron were exposed;
(e)It is significant that following a hearing before this Tribunal on 24 September 2004, Mr Johnston pursued an Act of Grace Payment from the Commonwealth for Loss of Earnings from 7 August 1988 to 21 June 2002 (the date of effect for Special Rate pension) for his accepted disability: renal end failure. Dr Sharman Stone, Parliamentary Secretary to the Minister for Finance and Administration, subsequently advised Mr Johnston that she had approved the Act of Grace payment of $66,292.80, which was said to be equivalent to the loss of earnings he would have been eligible to receive between 7 August 1998 to 26 June 2002, because:
“… the absence of medical knowledge on any linkage between exposure to aviation fuel and renal failure as well as the latency of the symptoms and conditions emerging may well have contributed to your failure to claim for LOE”. (See VRB decision 16 January 2006 at page 6);
(f)The question that so arises is whether there may be an analogous situation in Mr Johnston’s current situation as both involve factual circumstances in which Mr Johnston did not know he might have a claim for renal failure based on exposure to aviation fuel before he lodged his claim on 26 September 2002. The fact that Reports of the RAAF Boards of Inquiry over time (2002-2004) [see para 29(c)] support the proposition that the accepted body of knowledge for exposure to aviation fuel and the link between medical conditions suffered by veterans could not have fully emerged until after 2002; and
(g)In the history/chronology recorded by Dr R King (Consultant Physician and Nephrologist) on 23 June 2003, he stated that: “Mr Johnston presented to Toowoomba Hospital in August 1998 with severe renal failure requiring renal replacement therapy with haemolysis”. Accordingly, it could be argued that this date may represent the clinical onset of the symptoms for Mr Johnston’s accepted medical conditions.[2]
[1] See Black’s Medical Dictionary (40th Edition 2002 )
[2] In Re Robertson and Repatriation Commission (1999) 50 ALD 668, the Tribunal gave the following meaning to the phrase “clinical onset”:
The Tribunal emphasises that it has no power whatsoever to order that an Act of Grace Payment be made to Mr Johnston. The process for such a payment is for Mr Johnston to make a claim to the Repatriation Commission for an Act of Grace payment and to request that his claim be assessed under the specified eligibility criteria. The final authority to grant an Act of Grace payment does not rest with the Tribunal, but the Minister for Finance or their appointee.
For all of the above reasons, the Tribunal affirms the decision under review.
I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of Dr EK Christie, Member
Signed: Philip Richardson
Legal Research Officer
Date of Hearing 28 June 2006
Date of Decision 17 July 2006The applicant appeared in person
For the Respondent Mr M Smith, Departmental Advocate
“The ‘clinical onset’ of a disease occurs either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present at that time.”
0