Kendrick and Repatriation Commission
[2013] AATA 491
•24 June 2013
[2013] AATA 491
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/1024
Re
Keith Kendrick
APPLICANT
And
Repatriation Commission
RESPONDENT
REASONS FOR DECISION
Tribunal Professor Robin Creyke, Senior Member
Date 24 June 2013
Date of Written Reasons
Place
11 July 2013
Perth
At the conclusion of the hearing of this application on 24 June 2013, the terms of the decision intended to be made and the reasons for that decision were stated orally by the Tribunal.
Written reasons were requested by the applicant.
These written reasons are in response to that request.
.....(Sgd) Robin Creyke...................
Professor Robin Creyke, Senior Member
CATCHWORDS
Veterans Entitlements - Application for Increase in Payment to the Special or Intermediate Rate - Applicant Ceased Working before the age of 65 -
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth)
CASES
Repatriation Commission v Smith (1987) 74 ALR 537
REASONS FOR DECISION
Professor Robin Creyke, Senior Member
11 July 2013
Mr Keith Kendrick, born 1930, has been in receipt of a disability pension under the Veterans’ Entitlements Act 1986 (Cth) (Act) at 100 per cent of the general rate, together with the extreme disablement adjustment, with effect from 24 July 2007. On 12 July 2012, he applied for an increase in the rate of payment of the pension to the special or the intermediate rate.
On 21 September 2012, the Repatriation Commission (Commission) denied the application, a decision upheld on review by the Veterans’ Review Board (Board) on 30 January 2013. On 6 March 2013, Mr Kendrick sought further review by the Tribunal.
The matter was heard in Perth on 24 June 2013.
BACKGROUND
Mr Kendrick was in the Australian Army from 1948 until 1955. During that period he served in the British Commonwealth Occupation Forces in Japan between 8 November 1949 and 26 June 1950, and for several periods in Korea between 27 June 1950 and 15 April 1955. Mr Kendrick has both eligible and operational service.[1]
[1] Veterans’ Entitlements Act 1986 (Cth) (Act) ss 6, 6A, 6C.
In 1951 he was wounded in the left shoulder and evacuated to a hospital in Japan. He had also badly strained his left ankle in Korea. In one particular engagement in Korea in 1951 he and two others were overrun and individually had to fight their way out of the situation. On that occasion he was wounded in the head and ears by a concussion grenade, but led a wounded comrade through the lines to his company. He said he had re-lived that action many times. He was lucky to survive.
After discharge from hospital he was downgraded medically to B-2 and transferred into the Royal Australian Medical Corp.
Mr Kendrick is in receipt of disability pension at 100 per cent of the general rate, together with the extreme disablement adjustment, for the following conditions: tinea, osteoarthritis of left ankle; capsulitis of left shoulder; sensorineural deafness; emphysema; gastro-oesophageal reflux disease; post-traumatic stress disorder; solar keratoses head and neck, hands and legs; and non melanotic malignant neoplasm of the skin (face).
On 30 June 1993, Mr Kendrick applied for a service pension which was granted from 24 June 1993 on the ground that he was no longer employed. There has been no variation of the rate of his service pension since that date.
Mr J Kendrick appointed his son, Mr Keith NW Kendrick, to be his advocate for him for veterans’ affairs matters from 2012.
LEGISLATION
The legislation is the Veterans’ Entitlements Act 1986 (Cth) (Act). Key relevant provisions are section 23 which provides for payment of disability pension at the intermediate rate, and section 24 which provides for such payment at the special rate. The standard of proof to be applied is the beyond reasonable doubt standard for events which occurred during operational service,[2] and the reasonable satisfaction standard in section 120(4) of the Act for his eligible service.[3]
[2] Act s 120(1), (3).
[3] Act s 120(4). See also Repatriation Commission v Smith (1987) 74 ALR 537 at 546.
In order for Mr Kendrick to establish his entitlement to be paid disability pension at the intermediate or special rate, Mr Kendrick must demonstrate that he satisfied all the requirements of section 23 and 24 of the Act at some point during the assessment period.
ISSUES
The issues are:
·Whether the Tribunal may be satisfied to the requisite standard of proof that Mr Kendrick is eligible to receive disability pension at the special rate or at the intermediate rate.
·If so, what is the date of effect from which eligibility arises.
CONSIDERATION
Mr Kendrick had a number of positions post service including as a carpenter, as a farmer, as a fencing contractor, as a lawn mower service provider, and as a newsagent. He was last employed as a manager and salesman for several companies including Manjimup Bricks, Manjimup, gold mining companies and a company called Para Holdings.
Mr Kendrick previously applied for an increase in his rate of pension in 1992. In a Lifestyle Questionnaire signed by Mr Kendrick on 8 July 1992, he stated that he stopped working in 1990 due to age.
In an email to the Tribunal from Mr Kendrick dated 7 May 2013 he stated that the response in the Lifestyle Questionnaire answer was ‘false’. The email continued: ‘Employment was terminated in 1990 because of the effects of PTSD [per stat dec from John McIntosh], a false answer was given due to the effects of PTSD including embarrassment and loss of self esteem’. Instead the applicant contended the answer in the form should have been ‘stopped work in 1990 due to ill health and specifically the increasing debilitating effects of PTSD compounded by other accepted medical condition’. The email also noted that ‘competent representation was NOT provided prior to 2006’.
The decision by a delegate of the Commission in relation to this application, dated 18 November 1992, did increase Mr Kendrick’s rate of pension to 70 per cent of the general rate. As payment of a disability pension at that rate is the minimum rate for consideration also of eligibility for intermediate or special rate pension, the delegate considered his eligibility for either of those rates of pension. The decision concluded, however, that as Mr Kendrick had stated that he was prevented from working because of ‘age’, he could not meet the test that it was his war-caused disabilities alone which prevented him working.[4] He was advised in the decision that he could appeal to the Board but he did not do so.
[4] Act ss 23(3A)(d), 24(2A)(d).
An Employment Report for the purposes of service pension noted that Mr Kendrick ceased work on 30 November 1990, and this was signed by his former employer on 30 June 1993. The delegate of the Commission who granted service pension found that Mr Kendrick had ceased work in 1990. Mr Kendrick was granted service pension from July 1993.
Mr Kendrick again applied for an increase in his rate of pension on 22 June 1993. In the Lifestyle Questionnaire he stated he ceased working ‘2 years ago’ due to ‘ill-health’. On 17 November 1993 the Commission increased his pension to one hundred per cent as from 24 June 1993. The Commission also considered whether he was eligible to receive pension at the intermediate or the special rate, but decided on the basis of his statements in his application in 1992, and in the Employment Report for service pension, and in his latest application, that it was not satisfied that he had ceased work due to his accepted disabilities alone.
An application for an increase in disability pension signed by Mr Kendrick on 15 April 2002 stated that he ceased work in 1990 due to ‘age’. The Lifestyle Questionnaire signed by Mr Kendrick on 17 July 2002 repeated that he ceased work due to ‘age’, date ‘On file’. In response to a question ‘Did your disabilities stop you working in any way?’ Mr Kendrick ticked ‘No’ and stated ‘Not at that stage’.
The decision in 2002 accepted new conditions, excluding PTSD, and increased his disability pension to 100 per cent of the general rate. The delegate also considered the issue of eligibility for the special or the intermediate rate but found he was not eligible as he had not worked beyond the age of 65, nor worked for at least ten years continuously in his last paid work which commenced before he turned 65. Nor was he eligible for the extreme disablement adjustment.
In a claim for an increase in his disability pension dated 24 August 2006, Mr Kendrick noted in the Lifestyle Questionnaire under ‘Employment Activities’ that he was not employed and in the application he signed on 1 August 2006, that he had ceased work in 1995 due to ‘age’. His claim for PTSD was accepted on 24 January 2007. His eligibility for payment at the intermediate or special rate was again rejected. Mr Kendrick sought internal review of that decision on 30 January 2007 on the grounds that he should be entitled to the extreme disablement adjustment.
A further review by the Board sought on 26 March 2007 found that Mr Kendrick was entitled to be paid disability pension with the extreme disablement adjustment as from 24 July 2007. There was no reference in this decision to the intermediate or special rate pension.
On each occasion, including in July 2007, that a decision has been made in his case, Mr Kendrick has been advised that he could seek further review, including by the Tribunal when he has appealed to the Board.
Mr Kendrick lodged a further claim for an increase to the rate of payment of his disability pension on 12 July 2012. In that application he stated that his PTSD, accepted in 2006, ‘prevented him working more than 8 hours a week on and from 1990’.
A delegate of the Commission rejected the application on 21 September 2012. A request for internal review on 11 October 2012 was unsuccessful. A further review by the Board upheld the delegate’s decision. In a letter, dated 28 January 2013, Mr Kendrick Jnr said ‘from 1993 … [the veteran’s] work was terminated and he was NOT able to work again after 1993 as a direct result of the increasing impact of his PTSD combined with the physical injuries that he sustained during his service making him unemployable from 1993’. The statement also noted that the veteran ‘was forced to cease working as a qualified carpenter and later as a fencing installer as a direct result of his physical injuries’ to his shoulder and ankle. These are accepted service-related injuries.
A statutory declaration dated 15 January 2013 by Mr John McIntosh, a former recruitment consultant, stated that Mr McIntosh had obtained management work for Mr Kendrick in the 1980s for two succeeding positions. However, in the second position, Mr Kendrick’s performance deteriorated after several years and his employment was terminated ‘in 1992/93’. After that time, Mr McIntosh believed he could no longer recommend Mr Kendrick to prospective employers due to his ‘increasingly erratic behaviour’.
Mr Kendrick was born in 1930. He ceased employment in the period 1990 to 1993. The documents signed by Mr Kendrick closer to the time, that is, in 1992 and 1993 state he ceased work in 1990. The Tribunal prefers this evidence to that of Mr MacIntosh for the date Mr Kendrick ceased work and finds that Mr Kendrick ceased work in November 1990. In any event, whether he ceased work in 1990 or 1993, at the time he was either 60 or 63. Accordingly he was not 65 when he ceased work.
This means there are two hurdles to M Kendrick’s successful claim: the first is the terms of the Act relating to the intermediate or special rate pension for someone who applies for an increase in disability pension after they have turned 65; the second is the fact that Mr Kendrick did not seek review of the decisions made in 1992-1993.
The Act states that a person’s eligibility for a pension at a particular rate must be established during the ‘assessment period’. The assessment period is the period which starts on the application day, that is, the day the claim or application is received, and ends on the day the application is decided by the Tribunal.[5] As Mr Kendrick was over 65 on the application day, the provisions of the Act are as follows:
A veteran who has turned 65 before lodging an application for an increase in disability pension to the intermediate or the special rate must establish that their last paid work was:
· For a continuous period of at least 10 years;
· That work commenced before the veteran turned 65; and
· Ceased after the veteran turned 65;
· The work was work as an employee of the same employer, or
· Was work as a self-employed person in the same trade, profession or calling.[6]
[5] Act s 19(9).
[6] Act s 23(3A), 24(2A).
This application for an increase of his disability pension to the intermediate or special rate was made on 12 July 2012. That is the application day. On that day, Mr Kendrick was then 82 years of age. He will only be entitled to payment of pension at the intermediate or special rate if he can establish that he was eligible for the pension in the period commencing 12 July 2012 and ending on the date of the Tribunal’s decision. One of the criteria for a person who applies for such an increase after they have turned 65 is that they were continuing to work after they turned 65. Mr Kendrick’s employment ceased before he turned 65. So he does not meet this criterion. That is sufficient to dispose of this application for review.
In deference to Mr Kendrick’s claim that he ceased work due to ill-health and that but for poor advice he would have pursued his claim for pension at the intermediate or special rate earlier and prior to his turning 65, the Tribunal has considered his arguments.
The Tribunal notes that Mr Kendrick relies in particular on his condition of PTSD for saying that he could not work. The Tribunal notes that his PTSD was not accepted until May 2006, that is, after he turned 65. In addition, the evidence of Dr Kosky indicated that Mr Kendrick’s PTSD symptoms became worse after he turned 71. Mrs Kendrick’s evidence in 2006, evidence which she confirmed at the Tribunal, was also that Mr Kendrick’s PTSD was worse in the ‘last ten years’, that is, since 1996. Again, that is after Mr Kendrick turned 65 and after he ceased work. So this evidence would probably not have assisted Mr Kendrick had he made a claim for the condition in 1992-1993. The Tribunal notes that the issue of Mr Kendrick’s eligibility for special or intermediate rate pension was considered by the delegate of the Commission both in 1992 and 1993 in relation to his then accepted disabilities.
Mr Kendrick also faces a further hurdle. The Act provides that the Tribunal only has jurisdiction, that is, authority, to review a decision which has been considered by the Board.[7] Mr Kendrick did not seek review by the Board of the decisions in 1992 or 1993. As a consequence, the Tribunal cannot review the earlier applications since they have not been reviewed by the Board.
[7] Act s 176.
Nor can the Tribunal take account of the fact that Mr Kendrick believes he was poorly advised at that time and that the poor advice may have been the reason no application was made to the Board after those decisions by the Commission. That is a matter between Mr Kendrick and his then advocate.
That means the Tribunal has no option but to affirm the decision under review.
I certify that the preceding 35 (Thirty -five) paragraphs are a true copy of the reasons for the decision herein of Professor Robin Creyke, Senior Member ..(Sgd) T Freeman...............
Associate
Dated 11 July 2013
Date of hearing
24 June 2013
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