Lindsay and Repatriation Commission (Veterans' entitlements)
[2022] AATA 997
•4 May 2022
Lindsay and Repatriation Commission (Veterans' entitlements) [2022] AATA 997 (4 May 2022)
Division:VETERANS' APPEALS DIVISION
File Number: 2021/3597
Re:Neville Lindsay
APPLICANT
AndRepatriation Commission
RESPONDENT
DECISION
Tribunal:Member D Mitchell
Date:4 May 2022
Place:Brisbane
The Tribunal affirms the reviewable decision.
........................................................................
Member D Mitchell
Catchwords
VETERANS’ AFFAIRS – application for increase in rate of pension – special rate pension – alone test – assessment period – decision under review
Legislation
Administrative Appeals Tribunal Act1975 (Cth)
Veterans’ Entitlements Act 1986 (Cth)
Cases
Banovich v Repatriation Commission (1986) 69 ALR 395
Clearihan v Repatriation Commission (2020) 171 ALD 559; [2020] FCA 1130
Delkou v Repatriation Commission (1986) 69 ALR 406
Jebb v Repatriation Commission (1988) 80 ALR 329
Lucas v Repatriation Commission (1986) 69 ALR 415
Repatriation Commission v Braud (1991) ALD 591
Repatriation Commission v Hendy (2002) 76 ALD 47; [2002] FCAFC 424
Repatriation Commission v Richmond (2014) 226 FCR 21; [2014] FCAFC 124
Repatriation Commission v Watkins (2015) 228 FCR 573
REASONS FOR DECISION
Member D Mitchell
4 May 2022
INTRODUCTION
Mr Neville Lindsay (the Veteran) is seeking review of a decision made by the Veterans’ Review Board (VRB) made on 22 April 2021.[1]
[1] Exhibit 1, T Documents, T1, pages 1-5, Application for Review.
The reviewable decision affirmed a determination of the Respondent dated
14 September 2020[2] that the Veteran was to continue to be paid the disability pension at the Intermediate Rate pursuant to section 23 of the Veterans’ Entitlements Act 1986 (Cth) (VE Act).[3] The Veteran had sought an increase in his rate of disability pension to the Special Rate pursuant to section 24 of the VE Act.[2] Exhibit 1, T Documents, T12, pages 84-88, Determination.
[3] Exhibit 1, T Documents, T1.1, pages 6-11, Reviewable Decision.
BACKGROUND
The Veteran enlisted in the Australian Army in 1952 and served full time until 1987 and as a reservist up until April 1989.[4] The Veteran had operational service in Vietnam.[5]
[4] Exhibit 1, T Documents, T5, page 21, Claim for Disability Pension and T7, page 37, Determination, accepting application for disability pension to 70% of the General Rate with effect from 25.03.02.
[5] Exhibit 1, T Documents, T7, page 37, Determination, accepting application for disability pension to 70% of the General Rate with effect from 25.03.02.
The Veteran has, with effect from 25 March 2002, been in receipt of a disability pension paid at the Intermediate Rate in accordance with section 23 of the VE Act.[6]
[6] Exhibit 1, T Documents, T9, pages 51-56, Determination, accepting Veteran’s disability pension increase to Intermediate Rate with effect from 25.03.02.
The following conditions are accepted by the Respondent as being war-caused injuries or war-caused diseases (service-related conditions) for the purposes of the VE Act:[7]
(a)tension headaches;
(b)bilateral sensorineural impairment of hearing;
(c)conductive loss of hearing left ear;
(d)sprain or strain of the left hip and thigh;
(e)osteoarthrosis of the left ankle;
(f)cholelithiasis;
(g)gastro-oesophageal reflux disease; and
(h)folliculitis.
[7] Exhibit 1, T Documents, T2, pages 15-16, Section 37 Statement of Reasons for Decision.
On 4 August 2020, in accordance with section 15 of the VE Act, the Veteran lodged an application for an increase in disability pension with the Respondent.[8] The Veteran provided that the reason for his application for an increase was due to a worsening of his service-related tension headaches. He reported that they had developed into a continuous mental limitation on his ability to concentrate on reading, analysing and composition and had taken his previous work assessment from 10-12 hours work a week in 2002 progressively down to nil by 2019.[9]
[8] Exhibit 1, T Documents, T10, pages 57-58, Email - Veteran to Respondent and T10.1, pages 59-68, Application for increase in disability pension.
[9] Exhibit 1, T Documents, T10.1, pages 63-65, Application for increase in disability pension.
On 4 September 2020, by email, the Veteran provided further information in relation to his application in response to a request from the Respondent.[10] The Veteran provided:
[10] Exhibit 1, T Documents, T11, pages 69-71, Email Veteran to Respondent.
·An undated document titled ‘Supplementary Statement of Employment History – 1988-2002’.[11]
·A letter to the Respondent attaching:[12]
o Incapacity Assessment, dated 10 August 2020 and was completed by
Dr Christopher Andrews, general practitioner.[13]o Report, dated 5 March 2020 from Dr Paul Sandstrom, neurologist.[14]
o Email dated 12 July 2019 regarding writing history of CMF/ARES.[15]
o Email dated 10 December 2019 regarding writing history.[16]
o 2018-19 Income Tax Return.[17]
[11] Exhibit 1, T Documents, T11.1, pages 72-74, Supplementary Statement of Employment History.
[12] Exhibit 1, T Documents, T11.2, page 75, Letter Veteran to Respondent with attachments.
[13] Exhibit 1, T Documents, T11.2.1, pages, 76-78, Incapacity Assessment, Dr Christopher Andrews.
[14] Exhibit 1, T Documents, T11.2.2, page 79, Report- Dr Paul Sandstrom.
[15] Exhibit 1, T Documents, T11.2.3, page 80, Email regarding writing history of CMF/ARES.
[16] Exhibit 1, T Documents, T11.2.4, page 81, Email regarding Writing history.
[17] Exhibit 1, T Documents, T11.2.5, pages 82-83, 2018-19 Income Tax Return.
In the report dated 5 March 2020, Dr Sandstrom reported that the Veteran had suffered a cerebrovascular event and that specifically in 2012, he suffered a left posterior circulation infarction. Dr Sandstrom opined that because of this disability, the Veteran was unable to perform any level of employment and certainly was unable to pursue employment at a level of eight hours weekly or greater.[18]
[18] Exhibit 1, T Documents, T11.2.2, page 79, Report – Dr Paul Sandstrom.
In completing the Department of Veterans’ Affairs’ Incapacity Assessment form, Dr Andrews on 10 August 2020 reported that the main conditions causing the Veteran’s inability to work, and their contributions were:[19]
·Vision deterioration – 70%
·CVA (cerebrovascular accidents) – 20%
·Tension Headaches – 5%
·Sciatica and limb pain – 5%
[19] Exhibit 1, T Documents, T11.2.1, page 76, Incapacity Assessment – Dr Christopher Andrews.
On 14 September 2020, the Respondent determined that the Veteran was not eligible to be paid the disability pension at the Special Rate[20] for the following reason:[21]
Pursuant to the medical information on file, [the Veteran] has suffered a cerebrovascular event and specifically in 2012, he suffered a left posterior circulation infarction. As a consequence of this as well as vision deterioration, [the Veteran] is unable to perform any level of employment. These conditions, however, are not accepted under the Act and for this reason pension is not payable at the Special Rate of pension.
[20] Exhibit 1, T Documents, T12, pages 84-88, Determination.
[21] Exhibit 1, T Documents, T12, page 86, Determination.
On 1 October 2020, the Veteran sought review of the determination[22] on the basis that he contended that his work capacity had reduced to 8 hours or less by 2008 which was before he had a stroke in 2012.[23] The Veteran provided:[24]
[22] Exhibit 1, T Documents, T13, page 89, Email Veteran to VRB.
[23] Exhibit 1, T Documents, T13.1, page 90, VRB Application for Review.
[24] Exhibit 1, T Documents, T13.1, page 90, VRB Application for Review.
After an initial application based on degradation to today’s zero levels of work capacity, the final stage of which I was informed was not allowable under DVA rules, I went back to the reality of my degradation of work capacity from 10-12 hours pw in 2002 on which the Intermediate rate was recognised, to 8 hours and below, which occurred by 2008, before the later 2012 stroke which reduced it eventually to zero.
The 2012 non-admissible(?) event did no replace the existing condition responsible for the 6-8 hour output restriction after 2008, it merely reduced it further. So the medical assessments of 2020 which reflected present compounded circumstances are not relevant as I now have come to understand. My claim rests on:
a.I was recognised in 2002 as being restricted on medical factors to 10-12 hours pw and qualified for Intermediate rate.
b.Further deterioration reduced this capacity to 6-8 hours pw by 2008.
c.This further reduction placed me in the TPI zone.
d.I could have applied for TPI then but was focussed on publishing new work, proceeding at a limited 2x3 hour = 6 hours pw.
e.The 2012 event did not negate or replace my previous recognised condition, it merely degraded it further. I continued to suffer the already-accepted grounds, at the lower TPI-qualifying level after 2008, with a later add-on 2012 problem, which did not replace it.
f. I am not applying for retrospective payment to 2008, just to have that ongoing level of sub-8 hour work at TPI-qualifying level recognised now as ongoing, and not pushed aside by a later event which added to problems, but did not replace the existing problem. However if it is necessary to claim from 2008 to gain this recognition, so be it.
I understand that my current medical position has confused the issue, but it has added, not replaced the initial ongoing problem which qualified me for TPI and still remains valid. The Delegate has informed me that there is no cutoff date for lodging claims, so this belated claim should be valid.
On 4 November 2020, the Veteran provided the following submission to the VRB:[25]
I simply wish to emphasise that my appeal against the Delegate’s decision is that that decision was based on my additional statement of a stroke in 2012 which brought zero work capacity.
When I was informed by that decision that a stroke was not pensionable grounds, I realised that it was unnecessary to have included that factor, as my 2002 level of 10-12 hours per week based on other unrelated factors which qualified me for Intermediate rate, had already by 2008 progressively fallen below the 8 hour pw baseline and was therefore in the TPI zone by then and continuing, and the stroke deterioration was additional and a distraction anyway, promoted to me by advisers who did not understand that was an invalid reason.
My claim is based on that previous continuing and worsening 2002 disablement, and the stroke/zero level should be ignored as an add-on and distraction from the basic problem, not a replacement. The stroke did not destroy or eliminate that ongoing and worsening problem.
The sole point in my claim is that by the end of 2008 I was reduced to 6 hours pw, and this qualifies me for TPI and the stroke did not eliminate or over-ride it and is a distraction.
[25] Exhibit 1, T Documents, T14, page 92, Email Veteran to VRB.
On 22 April 2021, the VRB affirmed the Respondent’s determination, deciding that the Veteran’s rate of disability pension was to be continued at the Intermediate Rate.[26] The VRB outlined that in considering the Veteran’s application, it must do so in relation to the assessment period as set out by the VE Act, being from 4 August 2020, when he made his application and the date of its decision.[27]
[26] Exhibit 1, T Documents, T1.1, pages 6-11, Reviewable Decision.
[27] Exhibit 1, T Documents, T1.1, pages 6-11, Reviewable Decision.
The Veteran sought review of the matter by this Tribunal by way of an application dated
29 May 2021.[28] The Veteran made references to the matters set out in paragraphs 11 and 12 above and provided that:[29][28] Exhibit 1, T Documents, T1, pages 1-5, Application for Review.
[29] Exhibit 1, T Documents, T1, page 4, Application for Review.
The appeal is straightforwardly based on:
a.The issue is simple: did I qualify for the below-8 hour pw level pw from 2008 ongoing to the present and future – YES.
b. If the answer is yes, does the Act say a subsequent further degradation destroys that ongoing qualification – NO.
c.Does the Act impose a time limit on applying for T&PI – NO.
d.I therefore qualify for T&PI.
e. Side issues, DVA and VRB errors, evasions, and talking about current administrative issues does not make any change whatsoever to that qualification and are therefore irrelevant to the decision.
f. I therefore ask that the AAT find that I have qualified for T&PI.
By consent, it was agreed that this matter could be adequately determined in the absence of the parties. The Tribunal agreed to review the reviewable decision in accordance with section 34J of the Administrative Appeals Tribunal Act1975 (Cth) and provided the parties with the opportunity to make final submissions. As such, a hearing was not conducted in this matter. The Tribunal’s decision has been reached “on the papers” having considered the documents filed by the parties.
The Tribunal admitted into evidence and considered the following:
·Exhibit 1, T Documents – Section 37 T-Documents (pages 1 to 93).
·Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions, dated
11 October 2021 (pages 1 to 7).·Exhibit 3, Veteran’s Email dated 14 February 2022 and attachments (which include the Veteran’s email dated 22 October 2021, Veteran’s document titled ‘AAT Appeal - Comment on and Rebuttal of Repatriation Commission responses’).
·Exhibit 4, Veteran’s Email dated 1 March 2022 and attachments (which include the Veteran’s email dated 1 October 2020 seeking review of decision by the Veteran’s Review Board together with the completed application form, Veteran’s email dated 17 May 2021 responding to the decision of the VRB, Veteran’s document titled ‘Basis of Appeal of VRB Ruling’).
·Exhibit 5, Respondent’s Submissions in Reply dated 23 March 2022 (pages 1-3).
·Exhibit 6, Veteran’s Email dated 26 March 2022 attaching a final response to the submissions made by the Respondent and document titled ‘The Approaches of DVA, VRB and RC’.
ISSUES
The issue to be determined by the Tribunal is whether the Veteran satisfies the eligibility criteria for payment of a disability pension at the Special Rate during the assessment period.
There is no dispute between the parties in relation to the issue before the Tribunal, rather the dispute lies with what constitutes the assessment period for the purposes of determining the issue in question.[30]
[30] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions, page 3, paragraph 14 and Exhibit 3, ‘AAT Appeal - Comment on and Rebuttal of Repatriation Commission responses’.
THE LAW
Part 2 of the VE Act deals with pensions, other than service pensions, for veterans and their dependants. Section 15 of the VE Act allows a veteran who is in receipt of a Part 2 pension to apply for an increase in the rate of pension on the ground that the incapacity has increased since the rate of pension was last assessed. The Veteran made such an application on 4 August 2020.
Section 19 of the VE Act sets out the way in which an application for an increase in the rate of pension is to be determined. For present purposes, section 19(5B) of the VE Act directs that an assessment of such an application must be made in accordance with whichever of section 22 (General Rate of pension), section 23 (Intermediate Rate of pension) or section 24 (Special Rate of pension) apply. The Veteran in this matter is seeking an increase in his rate of pension to the Special Rate.
In determining an application for an increase in the rate of pension, section 19(5C) of the VE Act provides that a veteran’s entitlement is determined in respect of any circumstance within the “assessment period”.
Section 19(9) of the VE Act provides that in relation to an application relating to a pension, the assessment period starts on the application day and ends when the application is determined. The application day in such circumstances is the day on which the application was received at an office of the Department of Veterans’ Affairs in Australia.
Section 24 of the VE Act deals with entitlement to the special rate pension and relevantly sets out:
Special rate of pension
(1) This section applies to a veteran if:
………
(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
………
(2A) This section applies to a veteran if:
(a) 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
(b) the veteran had turned 65 before the claim or application was made; and
(c) paragraphs (1)(a) and (1)(b) apply to the veteran; and
(d) the veteran is, because of incapacity from war-caused injury or war-caused disease or both, alone, prevented from continuing to undertake the remunerative work (last paid work) that the veteran was last undertaking before he or she made the claim or application; and
(e) because the veteran is so prevented from undertaking his or her last paid work, the veteran is suffering a loss of salary or wages, or of earnings on his or her own account, that he or she would not be suffering if he or she were free from that incapacity; and
(f) the veteran was undertaking his or her last paid work after the veteran had turned 65; and
(g) when the veteran stopped undertaking his or her last paid work, the veteran had been undertaking remunerative work for a continuous period of at least 10 years that began before the veteran turned 65; and
(h) section 25 does not apply to the veteran.
[Emphasis added]
In this matter, the Veteran was at the time he made his application for an increase in rate of pension receiving a rate of pension above 70% of the General Rate and had already turned 65. As such, consideration must be given to whether the Veteran was, because of incapacity resulting from his accepted service-related conditions alone, prevented from undertaking remunerative work that he was last undertaking before he made his application for an increase in rate of pension, for periods aggregating more than 8 hours per week.
The “alone” test had been the source of conflicting Federal Court authorities until any doubts underlying the proper construction of section 24(1)(c) of the VE Act were resolved firstly, by the Full Federal Court in Repatriation Commission v Richmond [2014] FCAFC 124 (Richmond) and secondly, by the endorsement of that decision by a differently constituted Full Federal Court in Repatriation Commission v Watkins (2015) 228 FCR 573. These authorities were adopted in the context of section 24(2A)(d) of the VE Act requirements by the Federal Court in Clearihan v Repatriation Commission [2020] FCA 1130.
In Richmond, the Full Federal Court provided the following explanation of the “alone” test:[31]
The first limb provides that to qualify for the special rate, the preventative effect must arise from the veteran’s war-caused incapacity alone, and not from other non war-caused preventative factors as well. If other non war-caused factors contribute to the preventative effect, even if they are only of secondary importance and not of themselves sufficient to prevent the veteran from engaging in remunerative work, their presence will deny the veteran eligibility for the special rate.
[31] Repatriation Commission v Richmond [2014] FCAFC 124 at [58].
RESPONDENT’S CONTENTIONS
In the Respondent’s Statement of Facts, Issues and Contentions dated 11 October 2021, the Respondent contended that the assessment period began when the Veteran made his application on 4 August 2020 and ends when the Tribunal makes its decision[32] and that the Tribunal must only assess the rate of pension payable to the Veteran during the assessment period.
[32] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions, page 5, paragraphs 22-23.
The Respondent contended that the operation of section 19(5C) of the VE Act results in no power being conferred on it or the Tribunal to assess the rate of pension that may have been payable to the Veteran before the assessment period began.[33] The Respondent submitted:[34]
34.The applicant is inviting the Tribunal to consider his eligibility for a special rate disability pension based on his circumstances in 2008 (T1.2, p.12). A similar case theory was advanced and rejected in Banovich v Repatriation Commission (1986) 69 ALR 395 at 405, Delkou v Repatriation Commission (1986) 69 ALR 406 and Lucas v Repatriation Commission (1986) 69 ALR 415.
35.These applicants contended that had they made a claim for a pension or an application for an increase in the rate of pension at an earlier date and had the special rate then been granted, their entitlement to the pension would have continued after they had reached the age of 65. The Tribunal rejected these contentions and its decisions were upheld on appeal.
36.The Federal Court of Australia explained in Banovich at 403-404, Delkou at 414 and Lucas at 420 that an applicant could not succeed by showing any entitlement existing at a date earlier than the date of the lodgement of the application because the question of entitlement at the prior date was a matter outside the jurisdiction of the Tribunal save to the extent that the decision could be given retrospective effect (see also Jebb v Repatriation Commission (1988) 80 ALR 329 and 337).
37.Similarly in the present matter, the respondent respectfully submits that no enactment confers jurisdiction on the Tribunal to consider the applicant’s entitlement to a special rate disability pension based on his circumstances in 2008 or any other time before the assessment period began on 4 August 2020.
[33] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions, pages 6-7, paragraphs 31-33.
[34] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions, page 7, paragraphs 34-37.
The Respondent contended that the Veteran does not satisfy the alone test under section 24(2A)(d) of the VE Act and as such, does not satisfy the requirements to be paid the disability pension at the Special Rate under section 24(2A) of the VE Act during the assessment period. The Respondent made the following submissions in support of such contentions:[35]
[35] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions, pages 5-6, paragraphs 27-30.
27. The following evidence supports that non-service related factors contribute to preventing the applicant from working during the assessment period:
27.1. on 5 March 2020, Dr Sandstrom reported the applicant was unable to perform any level of employment and was unable to work 8 hours per week because of the cerebrovascular event he suffered in 2012 (T11.2.2) and
27.2. on 10 August 2020, Dr Andrews reported the applicant’s vision deterioration, cerebrovascular accidents and sciatica had a 70%, 20% and 5% contribution to his incapacity respectively (T11.2.1).
28.The applicant’s vision deterioration, cerebrovascular accidents and sciatica are not war-caused or defence-caused injuries or diseases under ss 9 and 70 of the VEA. It follows that because these conditions prevent the applicant from working he does not satisfy the alone test set out under ss 23(3A)(d) or 24(2A)(d) of the VEA.
29.The applicant does not dispute that non-service related factors contribute to preventing him from working during the assessment period. Relevantly in his email of 17 May 2021 he stated (T1.2, p.12):
The essence of my claim is that from 2008 onwards I had reached the T&PI qualifying level, and there is no time limit on applying for T&PI, nor does the passing of time remove facts, change events or erase condition; and a subsequent event does not Cancel Out the qualification level’s ongoing existence, it remains valid.
The situation at the 2020 claim date does not cancel the events and condition before that. In other words, I was entitled to T&PI from 2008, and although I was only claiming it from 2020, that does not destroy the previous ongoing qualified period of below-8 hour pw, or its continuance through the present.
Nor does a medical event cancel earlier events and condition, it merely adds to them.
The T&PI level of my work capacity was in place in 2008, continued, and remains. A stroke does not cancel existing work limitation, but merely adds to it.
The time of assessment of the claim does not cancel the previously existing and ongoing medical situation. (emphasis added)
30. The respondent contends that the applicant’s advanced age and time out of the workforce are further non-service related factors that contribute to preventing him from working during the assessment period. In Repatriation Commission v Hendy [2002] FCAFC 424, Whitlam, Emmett and Stone JJ explained at [37] that increasing age and time out of the workforce will be relevant if a period of time elapses after a veteran ceases remunerative work and before the commencement of the assessment period. The applicant was 86 years old and had not worked for 8 hours or more per week for over a decade before the assessment period began. These factors would be barriers to him working now. For these reasons the applicant does not satisfy the alone test under either ss 23(3A)(d) or 24(2A)(d).
VETERAN’S CONTENTIONS
In the submissions provided by the Veteran on 14 February 2022, his contentions were consistent with those set out in paragraphs 11 and 12 above.[36]
[36] Exhibit 3, Veteran’s Email dated 14 February 2022 and attachments (which include the Veteran’s email dated 22 October 2021, Veteran’s document titled ‘AAT Appeal - Comment on and Rebuttal of Repatriation Commission responses’.
The Veteran in responding to the Respondent’s Statement of Facts, Issues and Contentions (primarily that which is reproduced above in paragraphs 28 and 29) contended:[37]
[37] Exhibit 3, Veteran’s document titled ‘AAT Appeal - Comment on and Rebuttal of Repatriation Commission responses’.
25.This test is met – the 8-hour test was met in 2008 by an increase in the grounds accepted in 2002 which has neither gone away nor been cancelled by the subsequent stroke.
26.The test was met in 2008 – an extension of the disability accepted in 2002. Other later factors added to, not cancelled the existing qualification.
27.27.1. The Specialist opinion stated a condition which arose later in 2012 – it merely added to the already-accepted disability which had worsened to the 8-hour qualification, it did not cancel the existing accepted disability which had worsened. It therefore does not affect the 2008 achievement of the 8-hour test.
27.2. The GP opinion stated a condition which arose later in 2012 – it merely added to the already-accepted disability which had worsened to the 8-hour qualification, it did not cancel the existing accepted disability; plus it contains the errors mentioned in para 9 above. Either way, it therefore does not affect the prior 2008 achievement of the 8-hour test.
Neither of these statements says that these conditions cancelled previous qualifying disabilities.
28.In my initial application to DVA, I was given wrong advice, by the consultants who I subsequently discarded, to include the stroke as a factor and this brought the initial adverse DVA decision. I then amended the application to remove this ground, and concentrate on the underlying increased loss of work capacity grounds, but DVA continued to reject the claim, leading me to appeal to the VRB. These basic grounds eventually prevented me from significant work by 2019, but I had met the 8-hour pw target by 2008, and the 2012 event did not CANCEL the 2008 situation of meeting the accepted-disability grounds, but merely added to it after the 8-hour pw target had already been met.
29. As stated, I do not contest that the stroke eventually prevented me from significant working, but I did not state that this had CANCELLED my pervious 2008 below-8 hour capacity, merely added to it. That statement quoted is the basis of my claim, but is falsely used just to demonstrate that I didn’t work during the assessment period. That avoids the fact that I had met the 8-hour test 12 years earlier, as they here acknowledge, and the basic grounds had not just ‘gone away’ in 2020, but been merely added to. In 2020 my inability to meet the 8-hour test remained from 2008 – it was not CANCELLED by an extra disability or the passage of time, remaining through the assessment period.
30.The Repatriation Commission’s contention that my age and time out of the workforce were non-service related factors is both wrong and deeply offensive, for which I require a retraction and apology.
However their statement that I had not worked for over 8 hours for over a decade firmly acknowledges my claim that I had met the 8-hour test before the advent of the stroke and that I had met the T&PI level from 2008, and it has neither gone away nor been cancelled.
31.Have I appealed to the wrong Tribunal? Which one is authorised to hear an appeal against a VRB decision?
32.This is CANCEL Culture and irrational. This would also negate the Repatriation Commission arguments about the stroke which long preceded the assessment period. The Repatriation Commission is alleging that the AAT may not look at any matters before an application is made. An application is made on what has happened, and as events must precede an application, this claim that the AAT may not consider anything unless it happens tomorrow.
33.The assessment period does not exclude the events that led up to the assessment period. All this means is that the evidence considered is that which is presented during the assessment period – it does not cancel out the events which occurred, otherwise there is no basis for the AAT, which continually must look at evidence of what led up to a matter brought before it, not just what happened post-application. This applies to any adjudicating body.
34.This statement seeks to invoke a precedent which was entirely different. I am submitting an appeal based on the specific grounds I have stated.
35.The case quoted refers to persons whose application hinged on the 65 age basis. This does not apply to my situation and so is irrelevant.
36.After claiming that the AAT has no jurisdiction, both here and earlier, it actually states that the AAT decision can be retrospective – my case!
37.To say that the Act must confer the ability to hear an appeal based on date is clearly trying to limit the authority of the Tribunal to consider a case based only on date, which the Act does not. This allegation that the Act does not confer jurisdiction to the AAT has been dealt with earlier; if the AAT has decided it will hear this appeal, this statement is therefore void.
…….
The Veteran contended that he met the requirements to be paid his disability pension at the Special Rate on uncontested grounds and that administrative processes and time of processing do not destroy this fact.[38]
[38] Exhibit 3, Veteran’s document titled ‘AAT Appeal -Comment on and Rebuttal of Repatriation Commission responses’ – Decisions on my appeal.
On 1 March 2022, the Veteran made a further submission outlining that he continues to contend the basis of his application made to the AAT (as set out in paragraph 14 above) and provided that:[39]
The above reflects the situation during the appeal period. Of necessity it relies on prior events, as any claim must – it would be ridiculous to state that events can only happen and be taken into account from the moment an appeal is lodged.
However that being so, the situation of my having achieved the T&PI qualifying level earlier than the assessment period does not dismiss its ongoing effects into the assessment period, nor does a subsequent medical event reported in the assessment period CANCEL the ongoing accepted degradation and its continuing existence as part of my disability in the assessment period.
(I ask that the blatant failures of the VRB and its false claim that it could not review its decision be taken into account, along with the time shuffling and concentration on procedures, not facts, by DVA and the Repatriation Commission. During the assessment period, my accepted and already qualified T&PI level remained, dismissing administrative niceties.)
[39] Exhibit 4, Veteran’s Email dated 1 March 2022.
RESPONDENT’S AND VETERAN’S FINAL SUBMISSIONS
The Respondent provided Submissions in Reply dated 23 March 2022 in response to the submissions made by the Veteran dated 22 October 2021, 14 February 2022 and
1 March 2022.[40][40] Exhibit 5, Respondent’s Submissions.
On 26 March 2022, the Veteran provided his final written submissions responding to those submissions of the Respondent.[41]
[41] Exhibit 6, Veteran’s Email dated 26 March 2022 attaching a final response to the submissions made by the Respondent and document titled ‘The Approaches of DVA, VRB and RC’.
For the purposes of readability, the following final submissions were made by the Respondent with the Veteran’s response following each paragraph accordingly:[42]
[42] Exhibit 5, Respondent’s Submissions, pages 1-3, paragraphs 4-12 and Exhibit 6, Veteran’s Email dated 26 March 2022 attaching a final response to the submissions made by the Respondent and document titled ‘The Approaches of DVA, VRB and RC’.
THE APPLICANT DID NOT MEET THE ELIGIBILITY CRITERIA IN 2008
4.As the respondent understands it, the applicant contends he met the eligibility criteria for a special rate disability pension in 2008.
Response:
Correct, however I did not apply for it then as I was absorbed in attempting to produce a new history book, however I had been reduced below the 8-hour T&PI qualifying work level by that time by my 2002-accepted war disability, and this continued through the assessment period.
5.The respondent submits the applicant did not meet s 24(2A)(a) of the Veterans’ Entitlements Act 1988 (VEA) in 2008 because he did not make an application under s 15 of the VEA for an increase in the rate of pension that he was receiving in 2008. The applicant did not meet s 24(2A)(a) of the VEA until he made his application for an increase in disability pension on 4 August 2020 (T11).
Response:
DVA has previously acknowledged in 2020 that there is no time limit in lodging an application. Is this statement denying the DVA statement?
And of course I am not applying for T&PI from 2008, but as a follow on from 2008 circumstances which has continued through the post-2020 period. The past is not ‘cancelled’ by a date, a date is merely a time of review.
6.For completeness, the respondent does not concede the applicant ‘qualif[ied] for the below-8 hour pw level from 2008’ as asserted in the applicant’s submission of 4 March 2022. There is no medical evidence before the Tribunal to support a finding that in 2008:
6.1. the applicant was totally and permanently incapacitated, that is to say, his incapacity from war-caused injury or war-caused disease, or both, was of such a nature as, of itself alone, to render him incapable of undertaking remunerative work for periods aggregating more than 8 hours per week: s 24(1)(b) and (2A)(c) of the VEA
6.2. the applicant was, because of incapacity from war-caused injury or war-caused disease or both, alone, prevented from continuing to undertake the remunerative work (last paid work) that the applicant was last undertaking before he made the application on 4 August 2020: s 24(2A)(d) of the VEA and
6.3. because the applicant was so prevented from undertaking his last paid work, he was suffering a loss of salary or wages, or of earnings on his own account, that he would not be suffering if he were free from that incapacity: s 24(2A)(e) of the VEA…
Response:
There was no incentive for me to apply in 2008 as I was still focussed on completing the history book I was working on which was also potentially a source of income. So there was no reason to get a medical certificate of reduced capacity; and anyway, how could a medical practitioner assess my ability to work any number of hours other that what I would tell him – should he sit beside me for weeks observing how much I was able to work each day?
It took me three years to successfully produce each of my previous books; this last one I only managed to complete 25 percent of in the three years 2009-2012, as much as I wanted to do more, but was restricted by the mental pain arising from my accepted condition, which circumstantially demonstrates my limited capacity for work.
I still continued working at sub-8 hours until I gave up in 2019, and offered it to other Army historians to complete (those letters of offer previously submitted in appeal to DVA).
The limiting factor by 2008, a further degradation of the 2002-accepted condition, did not disappear in the following decade and continued through the assessment period to the present. This is a real present situation so it is within the AAT’s mandate.
The statement that AAT has no jurisdiction has already been negated by AAT, which is why this appeal in still progressing.
THE TRIBUNAL DOES NOT HAVE JURISDICTION TO ASSESS THE APPLICANT’S ELIGIBILITY IN 2008
7. The applicant submitted in his email of 22 October 2021:
Step 1
a. It needs initially to be resolved whether the assertion made by the Repatriation Commission in paras 31 and 32, that it is outside the jurisdiction of the AAT to consider the matter, is valid. There is no point in pursuing the appeal to the AAT if this is correct in this specific case.
Response:
The AAT decided that it should proceed; this is rehashing old errors. And if it were correct, which body is empowered to hear appeals against the DVA, VRB and Repatriation Commission persistent denial of claims on spurious grounds, acting as denial bodies rather than fair, balanced assessors, which have been totally absent, focussed on denial rather than Repatriation obligations of Veteran welfare.
8. For ease of reference, paragraphs 31 and 32 of the RSFIC referred to by the applicant were:
8.1. Section 25 of the Administrative Appeals Tribunal Act 1975 provides that the Tribunal has jurisdiction to review decisions where an enactment so provides. Where no enactment provides for review by the Tribunal, the Tribunal has no jurisdiction: Druett v Administrative Appeals Tribunal [2003] FCAFC 234.
8.2. The respondent contends that the Tribunal does not have jurisdiction to assess the rate of pension which would have been payable to the applicant based on his circumstances at a point in time before the assessment period began.
Response:
But the 2008 debilitation continued to and through the assessment period in 2020, so the assessment cannot ignore its existence in the assessment period.
And it is ridiculous to say that the AAT cannot consider a condition ‘based on his circumstances at a point in time before the assessment period began’. Any consideration must be based on what happened in the past – a condition does not just pop up at time of application, it happens and develops over time, just as in my case it began in 19968-69 in Vietnam, on which my present Intermediate level acceptance was based – the very same condition on which my present claim is based.
Are these facts negated because they happened before the 2020 assessment period? Could any application be heard at all if the disability didn’t descend on the day of application?
And the AAT has decided that it should proceed; this is again rehashing old RA errors.
9.The respondent confirms s 19(5C) of the VEA requires the Tribunal, who is standing in the respondent’s shoes, to assess the rate or rates of pension that were payable to the applicant during the assessment period. No power is conferred on the Tribunal to assess the rate of pension that may have been payable to the applicant before the assessment period began.
Response:
Wrong – I have not applied for payment before the assessment period began. I accept that the rate is as of my application of 2020. So the AAT is quite able to assess this ongoing disability in the assessment period.
And now, after all the previous denial of the ability of the AAT to hear my appeal, the RC here acknowledges the AAT is “standing in the ‘shoes’ of the Repatriation Commission”!
Reality at last.
10.The Tribunal would be making a jurisdictional error if it were to find the applicant was eligible for a special rate disability pension based on his circumstances in 2008 or any other time before the assessment period began.
Response:
I make the point once again that the application is based on beginning in 2008 and continuing through the assessment period. It is wrong to say that the circumstances prior to, leading up to the assessment period cannot be considered – just how can any case of any sort exist if its origin and development cannot be taken into account? Disabilities don’t come out of thin air at an application date. This is a further evasion.
And where in the Act does it specifically say that there is a time limit on submitting applications for T&PI. If there is no such time limit, the application is valid, and the AAT is not impeded in considering the application. Yet another repetition of trying to deter the AAT carrying out its function of hearing appeals.
11.In Repatriation v Braund (1991) 23 ALD 591, Mr Braund ceased work in 1975 and applied to have his disability pension increased to the special rate on 28 February 1984 when he was 70 years of age. The Federal Court of Australia found the Tribunal had made a jurisdictional error by finding Mr Braund was eligible for a special rate disability pension based on his circumstances in 1975 rather than during the assessment period which began on 28 February 1984. Pincus J explained at 595:
It was not enough to hold that in 1975 [Mr Braund] was prevented from continuing to work because of his war-caused disabilities. The critical question, on these facts, was whether, as at 28 February 1984, [Mr Braund] was within the description set out in s 24(1)(c) of the VE Act. He might well have retired because of war-caused incapacity in 1975, but nevertheless not have been able to show that his situation at the age of 70, 9 years later, was that he was prevented from working by that incapacity alone. If [Mr Braund]'s position in 1984 was that, incapacity or no, he would probably not have worked for a living, then in my opinion the Tribunal should not have held him entitled to the special rate pension.
I appreciate that in the case of an aged veteran it may be quite difficult to determine such a question, but it seems to me clear that it has to be determined, taking into account all the relevant circumstances.
Response:
Quite a different case – Braund stopped work and applied 9 years later without evidence of intervening work incapacity or other factors.
Quite differently, I continued working after leaving the Army in 1989 and began a new career of remunerated work, ranging from Treasurer of RSL Care/War Veterans Homes for sixteen years, Consultant to Joint Warfare Centre 2004-08, and writing, publishing and selling historical works. In addition I carried out honorary work for several Veteran bodies, boards over the period.
My status of war service disability was accepted and assessed as 10-12 hours pw Intermediate Rate in 2002. This reduced to below the 8 hours T&PI rate by 2008.
From 2002 and then on through 2008 and subsequently through the 2020 assessment period there was a progressive reduction of the already established and accepted 2002 fact, not a vacant period as in the quoted Braund case, but a continuous period of remunerated activity increasingly limited by the accepted war service disability.
It was not cancelled by a ‘tocsin’ on the 2020 application date.
12. Similarly in the present matter:
12.1.the Tribunal must consider the applicant’s eligibility in the assessment period which began when the applicant made his application for an increase in disability pension on 4 August 2020 (see [22]-[23], [31]-[37] of the RSFIC)
12.2. the applicant does not satisfy the eligibility criteria during the assessment period (see [24]-[30] of the RSFIC) and
12.3. it would be a jurisdictional error for the Tribunal to determine the applicant was entitled to a special rate disability pension based on his circumstances in 2008 or any other time before the assessment period began.
Response:
This beggars belief. The assessment period does not define what has happened previously, it defines what the current situation is as a result of what the circumstances have been, in this case going back to 1968-69 in Vietnam.
My disability was accepted in 2002 (note – not dismissed because the Vietnam War did not occur within the assessment period), and subsequently reduced to T&PI qualifying level by 2008. The subsequent period to the 2020 application did not ‘cancel’ the circumstances: both my previous and current condition and my condition in the assessment period remained valid at continuing T&PI qualifying levels.
The RA statement is merely an evasion of looking at facts: an assessment period does not cancel events and facts, and the facts are that during the assessment period my pre-existing accepted disability remained; the magic date did not draw a curtain on what led to the current situation or its causes, otherwise if Veterans did not suffer war induced conditions exactly at time of lodging an application, they could not be considered.
Veterans’ disabilities that come as a result of their war service do not come at application date, which is just a review period, not a limit on facts.
The RC arguments, both of 11 October 2020 and here in 23 March 2022 harp on twisting dates to somehow deny facts, and quote past cases of little or no relevance to my personal circumstances and claim.
CONSIDERATION
Firstly, the Tribunal has jurisdiction to review the decision made by the VRB on
22 April 2021 by virtue of section 135 of the VE Act and section 25 of the Administrative Appeals Tribunal Act 1975 (Cth). The Tribunal in undertaking a de novo review is limited to making a decision in accordance with the powers outlined in the enactment that provides it with jurisdiction to undertaking the review. In this case, the Tribunal is limited to making a decision that is in accordance with the law set out in the VE Act.
The Tribunal understands the point being made by the Veteran and accepts that he cannot presently undertake the remunerative work that he was undertaking before he made an application for an increase of his rate of pension for a period aggregating more than 8 hours a week. There is no corroborating medical evidence before the Tribunal that the Veteran was also unable to undertake such work in 2008 or that if that was the case, such incapacity was a result of his service-related conditions alone. The Tribunal, however, has no reason to doubt that the Veteran considers that to have been the case.
The Tribunal further accepts that if that was the case, the subsequent medical episodes and conditions do not cancel out that position.
Unfortunately for the Veteran though, he did not make a claim for an increase in his disability pension in 2008 or at any time between 2002 and 2012 (prior to having a stroke).
The Tribunal must consider the Veteran’s eligibility to be paid the disability pension at the Special Rate in accordance with the VE Act. Section 19(5C) of the VE Act clearly provides that the assessment of a Veterans’ entitlement to pension must be made during the assessment period. This means it is the assessment period as defined in the VE Act that is relevant in assessing eligibility to entitlement of pension, not the assessment period that the Veteran seeks to be considered. Section 19(9) of the VE Act sets out that the assessment period commences on the day the Veteran’s application is made to the Department of Veterans’ Affairs and ends when the final decision is made.
The fact that the Veteran submitted he was not seeking to be back paid his disability pension at the Special Rate from 2008 or any date prior to the date he made his application for an increase to his rate of pension, is of no consequence to the operation of the assessment period during which his application must be considered.
The Tribunal is limited to considering the Veteran’s eligibility to be paid the disability pension at the Special Rate in his present application with regard to his incapacity for work in the period commencing on 4 August 2020, being the date, he made his application for an increase to his rate of pension and the date of the Tribunal’s decision.
While the Tribunal agrees with the Veteran’s submissions that later circumstances add to rather than cancel any existing circumstances, it is the Veteran’s circumstances during the assessment period that are determinative.
The Federal Court in Banovich v Repatriation Commission (1986) 69 ALR 395; Delkou v Repatriation Commission (1986) 69 ALR 406; Lucas v Repatriation Commission (1986) 69 ALR 415 and Repatriation Commission v Braud (1991) ALD 591 have established that an application for an increase in the rate of pension made under the VE Act must be assessed in relation to the circumstances that apply during the assessment period only and that to make an assessment in relation to some other period is outside the operation of the VE Act and would constitute a jurisdictional error on the Tribunal’s behalf.
As such, the Veteran’s entitlement to be paid the disability pension at the Special Rate under section 24 of the VE Act at any time prior to his making an application for an increase of his rate of pension is not an issue to be or that can be determined by the Tribunal.
The Tribunal understands the Veteran’s disagreement and dissatisfaction with the operation of the VE Act in relation to his application for an increase in his rate of pension being assessed on a statutory based assessment period rather than at any point since his last rate of pension was determined. However, the government has provided clear legislative requirements in relation to the assessment of rates of pensions payable under the VE Act. The Tribunal must apply the law in place, it does not make the law, nor does it have the power to exercise a discretion that does not exist.
The evidence before the Tribunal makes it clear that the Veteran’s incapacity to continue to undertake the remunerative work that he was last undertaking before he made the claim, for periods aggregating more than 8 hours per week, was not due to his war-caused injuries or diseases or both alone. The evidence shows that from 2012 and ultimately on 4 August 2020, the reason the Veteran was incapacitated from undertaking paid work at his previous levels was in part due to his cerebrovascular accidents (strokes). This point is not in contention.
This condition is not an accepted service-related condition (that is a war-caused injury or war-caused disease for the purposes of the VE Act) and as such it cannot be said that the Veteran’s accepted service-related conditions alone caused his incapacity to work from at least 2012 onwards right up until the date of this decision. Consequently, during the assessment period, the Veteran did not satisfy the alone test requirements of section 24 of the VE Act and therefore is not entitled to be paid his disability pension at the Special Rate.
DECISION
The Tribunal finds that the Veteran does not meet the requirements set out under section 24 of the VE Act and as such, is not eligible to be paid the disability pension at the Special Rate.
The reviewable decision is therefore affirmed.
I certify that the preceding 51 (fifty-one) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell
.............................................................
Associate
Dated: 4 May 2022
Date of Hearing: Heard on the papers, 22 April 2022 Veteran: Mr Neville Lindsay Solicitors for the Respondent: Mr Jamie Watts
Australian Government Solicitor
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