Lahiff and Repatriation Commission (Veterans’ entitlements) - [2016] AATA 1037

Lahiff and Repatriation Commission (Veterans’ entitlements) [2016] AATA1037 (16 December 2016)

Division

VETERANS' APPEALS DIVISION

File Number(s)

2015/0368

Re

Robin Lahiff

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal
Deputy President Dr P McDermott RFD

Date 16 December 2016

Place Brisbane
I set aside the decision under review and decide that the applicant is entitled to the payment of pension at the special rate with effect from 21 January 2015.

...................................[sgd].....................................
Deputy President Dr P McDermott RFD
CATCHWORDS
VETERANS’ AFFAIRS – pensions and benefits – claim for pension at the special rate of pension – whether veteran prevented by incapacity from defence-caused conditions alone from continuing to undertake remunerative work – decision set-aside and substituted
LEGISLATION
Veterans’ Entitlement Act 1986 (Cth) ss 5Q, 15, 19, 23, 24, 28, 73, 120, 177
CASES
Repatriation Commission v Watkins (2015) 228 FCR 573
Repatriation Commission v Richmond (2014) 226 FCR 21
Repatriation Commission v Hendy (2002) 76 ALD 47
Repatriation Commission v Butcher (2007) 94 ALD 364
Willis v Repatriation Commission (2012) 202 FCR 323
Flentjar v Repatriation Commission [1997] FCA 1200
REASONS FOR DECISION
Deputy President Dr P McDermott RFD
16 December 2016
INTRODUCTION

On 6 November 2013, Mr Robin Lahiff (“the applicant”) lodged a claim for an increase in the rate of his disability pension.[1] On 18 February 2014, a delegate of the Repatriation Commission (“the respondent”) determined that the disability pension of the applicant be increased to 80% of the general rate.[2] On 7 August 2014, the Veterans’ Review Board (“the VRB”) determined that the disability pension of the applicant be increased to 90% of the general rate.[3] On 21 January 2015, the applicant lodged an application with this Tribunal to review the decision of the VRB.[4]
[1] Exhibit A. T-Documents, T6.
[2] Exhibit A, T-Documents, T9.
[3] Exhibit A, T-Documents, T2.
[4] Exhibit A, T-Documents, T1.
BACKGROUND
The applicant served in the Royal Australian Navy (“RAN”) from 1971 until 1982.[5] He has a number of conditions that have been accepted as attributable to his service in the RAN, namely, chronic back strain, seborrheic dermatitis, anxiety state and lumbar spondylosis.[6]
[5] Exhibit B, Statement of Applicant signed 20 July 2015 at [4] and [14].
[6] Exhibit A, T-Documents, at (iii).
LEGISLATIVE FRAMEWORK
To be eligible for a pension at the special rate, the applicant must satisfy the requirements of s 24(1) of the Veterans’ Entitlement Act 1986 (Cth) (“the Act”) which provides:
1) This section applies to a veteran if:
(aa) 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
(aab) the veteran had not yet turned 65 when the claim or application

was made; and
(a) either:
(i) the degree of incapacity of the veteran from war‑caused

injury or war‑caused disease, or both, is determined under

section 21A to be at least 70% or has been so determined

by a determination that is in force;…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] AATA 1037
Decision Date: 16 December 2016

CaseChat Overview and Summary

The Administrative Appeals Tribunal, through Deputy President Dr P McDermott RFD, considered the claim of Mr Robin Lahiff against the Repatriation Commission for an increase in his disability pension. Mr Lahiff sought to be paid at the special rate, a determination that had been previously considered by the Veterans’ Review Board, which had increased his pension to 90% of the general rate. Mr Lahiff’s application to the Tribunal sought a review of this decision.

The central legal issue before the Tribunal was whether Mr Lahiff met the criteria for a special rate pension under section 24(1) of the *Veterans’ Entitlement Act 1986* (Cth). Specifically, the Tribunal was required to determine if Mr Lahiff was, by reason of his defence-caused conditions alone, prevented from continuing to undertake remunerative work he was previously engaged in, and consequently suffering a loss of earnings he would not otherwise experience. While Mr Lahiff's eligibility for a pension at least at 70% of the general rate and his incapacity to undertake remunerative work for more than eight hours per week were not in dispute, the "alone" test under section 24(1)(c) remained a point of contention.

The Tribunal applied the principles established in cases such as *Repatriation Commission v Watkins* and *Flentjar v Repatriation Commission*, which clarify that the "alone" test requires that war-caused conditions must be the sole factor preventing the veteran from continuing remunerative work. If non-war-caused factors contribute to this incapacity, even to a secondary degree, the requirement is not met. The Tribunal considered the medical evidence and found that Mr Lahiff satisfied the criteria under section 24(1)(b) and, crucially, that his defence-caused conditions alone prevented him from continuing his previous remunerative work, thereby satisfying section 24(1)(c).

Consequently, the Tribunal set aside the previous decision and determined that Mr Lahiff was entitled to payment of pension at the special rate, with effect from 21 January 2015.

Orders

Orders of the court

I set aside the decision under review and decide that the applicant is entitled to the payment of pension at the special rate with effect from 21 January 2015.

Background

Background to the litigation

On 6 November 2013, Mr Robin Lahiff (“the applicant”) lodged a claim for an increase in the rate of his disability pension.[1] On 18 February 2014, a delegate of the Repatriation Commission (“the respondent”) determined that the disability pension of the applicant be increased to 80% of the general rate.[2] On 7 August 2014, the Veterans’ Review Board (“the VRB”) determined that the disability pension of the applicant be increased to 90% of the general rate.[3] On 21 January 2015, the applicant lodged an application with this Tribunal to review the decision of the VRB.[4][1] Exhibit A. T-Documents, T6.[2] Exhibit A, T-Documents, T9.[3] Exhibit A, T-Documents, T2.[4] Exhibit A, T-Documents, T1.BACKGROUND The applicant served in the Royal Australian Navy (“RAN”) from 1971 until 1982.[5] He has a number of conditions that have been accepted as attributable to his service in the RAN, namely, chronic back strain, seborrheic dermatitis, anxiety state and lumbar spondylosis.[6][5] Exhibit B, Statement of Applicant signed 20 July 2015 at [4] and [14].[6] Exhibit A, T-Documents, at (iii).LEGISLATIVE FRAMEWORK To be eligible for a pension at the special rate, the applicant must satisfy the requirements of s 24(1) of the Veterans’ Entitlement Act 1986 (Cth) (“the Act”) which provides:1) This section applies to a veteran if:(aa) 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(aab) the veteran had not yet turned 65 when the claim or application was made; and(a) either:(i) the degree of incapacity of the veteran from war‑caused injury or war‑caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or(ii) the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and(b) the veteran is totally and permanently incapacitated, that is to say, the veteran’s incapacity from war‑caused injury or war‑ caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and(c) the veteran is, by reason of incapacity from that war‑caused injury or war‑caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and(d) section 25 does not apply to the veteran. To be eligible for a pension at the intermediate rate, the applicant must satisfy the requirements of s 23 of the Act. Subsections 23(1)(b) and (2) of the Act provide:1) This section applies to a veteran if:… (b) the veteran’s incapacity from war‑caused injury or war‑caused disease, or both, is, of itself alone, of such a nature as to render the veteran incapable of undertaking remunerative work otherwise than on a part‑time basis or intermittently; and…(2) Paragraph (1)(b) shall not be taken to be fulfilled in respect of a veteran who is undertaking, or is capable of undertaking, work of a particular kind:(a) if the veteran undertakes, or is capable of undertaking, that workfor 50 per centum or more of the time (excluding overtime) ordinarily worked by persons engaged in work of that kind on a full‑time basis; or(b) in a case where paragraph (a) is inapplicable to the work which the veteran is undertaking or capable of undertaking—if the veteran is undertaking, or is capable of undertaking, that work for 20 or more hours per week.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The applicant is eligible for the payment of the pension at the special rate. The date of effect of this decision is 21 January 2015 in accordance with s 177(3) of the Act.DECISION I set aside the decision under review and decide that the applicant is entitled to the payment of pension at the special rate with effect from 21 January 2015.

Ratio Decidendi

Legal Principle Established

I am required by s 120(4) of the Act to determine any issues to my reasonable satisfaction.CONSIDERATION To be eligible for a pension at the special rate, the applicant must satisfy certain criteria set out in s 24 of the Act. There is no issue that the applicant satisfies paras 24(1)(aa) and (aab) of the Act: the applicant made an application under s 15 of the Act for an increase in the rate of pension that he was receiving; and he had not yet turned 65 when the application was made.Pension The applicant is in receipt of pension at 90% of the general rate. He therefore satisfies s 24(1)(a) of the Act because he has a pension which is at least 70% of the general rate.Whether the applicant is prevented from working for eight hours a week by reason of his accepted conditions The applicant satisfies s 24(1)(b) of the Act. There is no issue between the parties that the applicant is prevented from engaging in remunerative work for eight hours a week by reason of his accepted conditions. The medical evidence from Dr Jenkins,[7] Dr Winstanley[8] and Dr Burke[9] supports such a finding. I am reasonably satisfied that the applicant satisfies s 24(1)(b) of the Act. [7] Exhibit F, Medical report of Dr Jenkins, psychiatrist, dated 21 September 2015.[8] Exhibit E, Medical report of Dr Winstanley orthopaedic surgeon, dated 23 July 2015 at p. 4.[9] Exhibit H, Medical report of Dr Burke, consultant occupational physician, dated 8 October 2015 at p. 6.Alone test The applicant satisfies s 24(1)(c) of the Act. This one criterion in contention, often referred to as the “alone” test, requires that "the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking…". In Repatriation Commission v Watkins (2015) 228 FCR 573, the Full Court of the Federal Court of Australia referred at [41] to the decisions of Repatriation Commission v Richmond (2014) 226 FCR 21, Repatriation Commission v Hendy (2002) 76 ALD 47 and Repatriation Commission v Butcher (2007) 94 ALD 364 and reaffirmed the settled principle that: …if non war-caused factors play a part in or contribute to preventing a veteran from engaging in remunerative work, even if those preventative factors are of secondary importance and not of themselves sufficient to prevent remunerative work, the “alone” requirement will not be satisfied. The Federal Court of Australia in Flentjar v Repatriation Commission [1997] FCA 1200 (“Flentjar”) has held that s 24(1)(c) of the Act requires the consideration of the following questions: 1. What was the relevant “remunerative work that the veteran was undertaking” within the meaning of s 24(1)(c) of the Act?2. Is the veteran, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?3. If the answer to question 2 is yes, is the war-caused injury or war-caused disease, or both, the only factor or factors preventing [the veteran] from continuing to undertake that work?4. If the answers to questions 2 and 3 are, in each case, yes, is the veteran, by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of that incapacity?

Division	VETERANS' APPEALS DIVISION
File Number(s)	2015/0368
Re	Robin Lahiff
APPLICANT
And	Repatriation Commission
RESPONDENT

Tribunal	Deputy President Dr P McDermott RFD
Date	16 December 2016
Place	Brisbane