Large and Repatriation Commission (Veterans’ entitlements)

[2016] AATA 381

Large and Repatriation Commission (Veterans’ entitlements) [2016] AATA 381 (7 June 2016)

Division	VETERANS' APPEALS DIVISION
File Number	2014/5527
Re	James Large
APPLICANT
And	Repatriation Commission
RESPONDENT

DECISION

Tribunal	Deputy President Dr P McDermott RFD
Date	7 June 2016
Place	Brisbane

I affirm the decision under review insofar as it determined that the applicant was not eligible for pension at the special rate and remit the application to the respondent to later this year determine whether the applicant is entitled to the Extreme Disablement Adjustment rate of pension under s 22(4) of the Veterans’ Entitlement Act 1986 (Cth).

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

Deputy President Dr P McDermott RFD

Catchwords

VETERANS’ AFFAIRS – application for special rate pension – applicant currently in receipt of pension at 100% of general rate for accepted conditions – not satisfied that any accepted condition prevented the applicant from working – applicant to be assessed for eligibility for the Extreme Disablement Adjustment – decision remitted

Legislation

Administrative Appeals Tribunal Act 1975 (Cth) s 2A
Veterans’ Entitlement Act 1986 (Cth) ss 19, 23, 24, 28, 120

Cases

Repatriation Commission v Watkins [2015] FCAFC 10
Repatriation Commission v Richmond (2014) 226 FCR 21
Repatriation Commission v Hendy (2002) 76 ALD 47
Repatriation Commission vButcher (2007) 94 ALD 364

REASONS FOR DECISION

Deputy President Dr P McDermott RFD

7 June 2016

INTRODUCTION

1. On 24 December 2012, Mr James Large (“the applicant”) lodged a claim for an earnings-related rate of pension. On 17 July 2013, a delegate of the Repatriation Commission (“the respondent”) accepted the post-traumatic stress disorder of the applicant as a condition related to his service and continued the disability pension of the applicant at 100% of the general rate. On 23 September 2014, the Veterans’ Review Board (“VRB”) affirmed this decision. On 22 October 2014 the applicant lodged an application to this Tribunal for a review of that decision seeking a special rate of pension.

   BACKGROUND

2. The applicant seeks a pension at a special rate for conditions that he claims are attributable to his service in the Royal Australian Navy (“the Navy”). The applicant, in his employment questionnaire dated 7 December 2004, outlined his last employment since the time when he was discharged from the Navy in 1987.[1] In that questionnaire he stated that his last employment was with BP Solar which ceased because of his orthopaedic conditions. His advocate who has worked hard to assist the applicant while under his own difficult circumstances has properly acknowledged that the applicant has not been assisted by the inconsistencies in his work history.

   [1] Exhibit A, T-Documents, T22 at pp. 250-251.

3. The employment questionnaire dated 7 December 2004 is certainly not accurate because it does not disclose his period of employment as a labourer. The VRB was informed that he worked as a labourer for 44 hours a week from 18 September 2001 to 16 November 2001. It would appear from a certificate dated 16 June 2015 which was signed sometime after the decision of the VRB that the period of time that he undertook work as a labourer was more extensive than what he informed the VRB. In that certificate it is stated that the work for an electrician commenced in 1995 and ceased when the electrician employed a younger man in about 2002.

4. The applicant made a statutory declaration on 10 June 2015 in which he disclosed particulars of his employment after his discharge from the Navy.[2] In Annexure B to his statutory declaration he details particular of his employment after his discharge. 

   [2] Exhibit I, Statutory Declaration of James Large with annexures declared on 10 June 2015.

   LEGISLATIVE FRAMEWORK

5. To be eligible for pension at the special rate, the applicant must satisfy the requirements of s 24 of the Veterans’ Entitlement Act 1986 (Cth) (“the Act”) which provides:         

   Special rate of pension

   (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) …

   (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; …

   (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; …

6. To be eligible for pension at the intermediate rate, the applicant must satisfy the requirements of s 23 of the Act. Subsections 23(1)(b) and s 23(2) of the Act provide:

   Intermediate rate of pension

   (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; ...

   (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 work for 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.

7. Section 28 of the Act provides:

   Capacity to undertake remunerative work

   In determining, for the purpose of paragraph 23(1)(b) or 24(1)(b), whether a veteran who is incapacitated from war-caused injury or war-caused disease, or both, is incapable of undertaking remunerative work, and in determining for the purposes of section 24A whether a veteran who is so incapacitated is capable of undertaking remunerative work, the Commission shall have regard to the following matters only:

   (a) the vocational, trade and professional skills, qualifications and experience of the veteran;

   (b) the kinds of remunerative work which a person with the skills, qualifications and experience referred to in paragraph (a) might reasonably undertake; and

   (c) the degree to which the physical or mental impairment of the veteran as a result of the injury or disease, or both, has reduced his or her capacity to undertake the kinds of remunerative work referred to in paragraph (b).

   [Emphasis added]

8. Section 19(5C)(a) of the Act provides that the rate of pension payable to the applicant has to be determined during the “assessment period”. For the applicant, this period commenced on 14 October 2011 when he made his claim and ends when the claim is determined.

9. I am required by s 120(4) of the Act to determine any issues to my reasonable satisfaction.

   ACCEPTED CONDITIONS

10. The applicant has a number of accepted conditions apart from post-traumatic stress disorder, chronic simple bronchitis, bilateral sensorineural hearing loss, tinnitus, osteoarthritis of both hips, plantar warts on both feet, alcohol induced mood disorder with depressive features, alcohol abuse, lumbar spondylosis, osteoarthritis of both knees, and tinea.

    CONSIDERATION

11. The applicant in his Statement of Facts, Issues and Contentions dated 7 July 2015 contends that his accepted disability alone prevented him from obtaining any full-time employment since December 1994. The applicant also contends that the criteria of s 24 of the Act were met at the time when the applicant ceased work due to his accepted disabilities alone.

12. In his employment questionnaire dated 7 December 2004 the applicant stated that he had not worked since December 1994 when he worked for BP Solar. In the claim form dated 17 June 2003 the applicant declared that he ceased this employment because of hip problems. However, in a report of McCombie Associates dated 8 April 2004 it is stated that he was laid off when the business became less viable. After his work at BP Solar the applicant worked as a labourer. Before the VRB and this Tribunal he stated that this employment ceased in 1994 because he had a disagreement with a fellow worker who he had threatened because he considered that he was lazy. The applicant has at different times provided different explanations for ceasing this work at BP Solar including the desire to take up the role of a house husband.

13. Annexure B to his statutory declaration of 10 June 2015 discloses the periods of employment that he had after he left BP Solar. I should record that I am not reasonably satisfied that Annexure B is a full and correct record of his employment. After October 1995 the applicant was in regular employment in some weeks he worked in excess of 40 hours a week. In December 1995 he worked in excess of 50 hours for two weeks. The VRB referred to the two months in 2001 where the applicant had been working 44 hours per week.

14. Having regard to this evidence I cannot be reasonably satisfied that the orthopaedic conditions of the applicant or any other accepted condition prevented him from working after December 2004. It seems plausible that the reason why he was laid off from BP Solar was because of the viability of the business. I consider that the applicant was not eligible for a pension at the special rate after he left BP Solar in 2004.

15. I will consider whether the applicant was eligible for pension at the special rate at any other time in the assessment period. To be eligible the applicant must satisfy certain criteria in s 24 of the Act.

16. The applicant is in receipt of pension at 100% of the general rate, he therefore satisfies s 24(1)(aa) of the Act because he has a pension which is at least 70% of the general rate.

17. I next consider whether the applicant satisfies s 24(1)(b) of the Act. On 29 September 2003 the applicant told Dr Delaforce that he had stopped his limited activities that included fishing and house maintenance. However, at that time he was still working ten hours per week doing lawn mowing and as a garden maintenance handyman. Annexure B to his statutory declaration of 10 June 2015 refers to this work. However, he also states that from October 2008 to December 2013 he was working less than eight hours a week.  I accept the evidence of the applicant that he now has a reduced work capacity. I have also had regard to the report of Dr Katz dated 20 August 2013 and I am satisfied that the applicant is now prevented from working for eight hours a week by reason of his accepted condition of post-traumatic stress disorder. The applicant thereby satisfies s 24(1)(b) of the Act.

18. I next consider whether the applicant satisfies s 24(1)(c) of the Act. This criterion in contention is (which is often referred to as the “alone” test) is that "the veteran is, by reason of incapacity from ... war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking…". 

19. Recently, in Repatriation Commission v Watkins [2015] FCAFC 10, the Full Court of the Federal Court of Australia referred to decisions of Repatriation Commission v Richmond (2014) 226 FCR 21,  Repatriation Commission v Hendy (2002) 76 ALD 47 and Repatriation Commission vButcher (2007) 94 ALD 364 and reaffirmed the settled principle (at [41]) 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.   

20. The last remunerative work that was disclosed by the applicant in his employment questionnaire was his employment at BP Solar. I have previously mentioned that I cannot be reasonably satisfied that the applicant ceased his employment at BP Solar in 1994 because of his orthopaedic conditions. In 2004 he told McCombie Associates that he was laid off from this position because the business was less viable. In any event the applicant also mentions that he had home duties after he ceased employment which accords with the view of the VRB that one reason why he ceased employment was to be a house husband: if this was the case then he was not eligible for a pension at the special rate because no war-caused factors contributed to the cessation of his employment.

21. After his employment at BP Solar he worked as a labourer for periods of more than 44 hours a week, in some weeks he worked in excess of 50 hours a week. I am not reasonably satisfied that the accepted conditions of the applicant played any part in contributing to preventing the applicant from engaging in remunerative work at the time when he left the employment of BP Solar in 1994.

22. I do not accept that the applicant was eligible for pension at the special rate when he ceased employment at BP Solar in 1994. Having reviewed the considerable evidence about his employment since that time which appears to be casual employment I am also not reasonably satisfied that he at any time ceased this employment by reason of any of his accepted conditions.

23. While the applicant has not made a claim for payment of pension at the intermediate rate of pension, he is not be entitled to a pension at that rate as I am not reasonably satisfied that he satisfies the requirements of the “alone” test in s 23(1)(c) of the Act which requires that a veteran was, by reason of incapacity from war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking.

24. The applicant satisfies s 24(1)(aab) of the Act in that he had not yet turned 65 years of age when he made his claim. This has the consequence that I should consider the ameliorating provision of s 24(2) of the Act. However, to satisfy this provision the applicant must satisfy the Commission that he has been genuinely seeking to engage in remunerative work. The applicant informed the VRB that he had made two enquiries about jobs in the paper as well as having two conversations with former colleagues. Having regard to this evidence I am not reasonably satisfied that the applicant has been genuinely seeking to engage in remunerative work. When the applicant made his claim on 24 December 2012 he was then already in receipt of a service pension. I am also not reasonably satisfied that the applicant would seek employment when he is in receipt of the service pension which is subject to an income test.

25. I have to consider the application in accordance with ss 19(5A), (5B), (5C) and (5D) (see ss 19(3)(b) and ss 19(4A)) and to determine the application under s 19(5D) (see ss 19(1)(c) and 19(3)(b)). Having regard to the circumstances of this case, I should consider the entitlement of the applicant to a benefit even though the applicant had not claimed the benefit. I am also mindful that I have to consider the entitlement of the applicant through the whole of the assessment period which ends when the claim is finally determined.

26. At the time when the delegate made the decision the delegate noted that the applicant was then not of an age which entitled him to the Extreme Disablement Adjustment. The applicant had not made a claim for this benefit but this year will satisfy s 22(4)(b) of the Act. The applicant satisfies s 22(4)(d) of the Act as there is no evidence that he is entitled to a pension under ss 23 or 24 or 25 of the Act. The applicant will be entitled to the Extreme Disablement Adjustment after he attains the requisite age if he also satisfies s 22(4)(c) of the Act which requires the applicant to have an impairment rating of at least 70 points and a lifestyle rating of six points as determined under the approved Guide to the Assessment of Rates of Veterans’ Pensions.

27. I remit this application to the respondent to determine whether the applicant will later in this year be entitled to the Extreme Disablement Adjustment. The applicant would have the opportunity to make submissions on whether he satisfies s 22(4)(c) of the Act and to provide any up-to-date medical assessment of his accepted conditions. If he is entitled to the Extreme Disablement Adjustment, that benefit can only be payable after the applicant satisfies s 22(4)(b) of the Act. I have decided that this is the most “economical”[3] course of action to take so that the applicant will not have to make another claim and because he may not be able to have the assistance of his advocate who is based overseas.

    [3] Administrative Appeals Tribunal Act 1975 (Cth) s 2A.

    DECISION

28. I affirm the decision under review insofar as it determined that the applicant was not eligible for pension at the special rate and remit the application to the respondent to later this year determine whether the applicant is entitled to the Extreme Disablement Adjustment rate of pension under s 22(4) of the Veterans’ Entitlement Act 1986 (Cth).

I certify that the preceding 28 (twenty -eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD

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

Associate

Dated 7 June 2016

Date of hearing	31 August 2015
Date final submissions received	16 December 2015
Advocate for the Applicant	Mr R C Hammal
Solicitors for the Respondent	Mr A Crowe, Department of Veterans' Affairs Advocacy Section