Michael Pemberton and Repatriation Commission
[2012] AATA 414
•4 July 2012
[2012] AATA 414
Division Veterans' Appeals Division File Number(s)
2011/5276
Re
Michael Pemberton
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Senior Member Bernard J McCabe
Date 4 July 2012 Place Brisbane (heard in Cairns) Decision Summary
The Tribunal sets aside the decision under review and, in substitution, decides the applicant is entitled to the pension at the special rate under section 24 of the Veterans Entitlements Act 1986 (Cth). The date of effect is 17 December 2010.
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Senior Member Bernard J McCabe
CATCHWORDS
VETERANS AFFAIRS – Pensions and entitlements – Pension at Special Rate – Assessment period – Accepted conditions only barrier to work – Labour market conditions were a barrier to work – Decision set aside – Matter remitted for assessment.
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth)
REASONS FOR DECISION
Senior Member Bernard J McCabe
Michael Pemberton was a senior officer in the military police before he retired in January 2010. He is no longer working and says he is unable to get a job because of a range of accepted conditions, including post-traumatic stress disorder (PTSD), depression and alcohol abuse. He has applied for a pension paid at the special rate under s 24 of the Veterans’ Entitlements Act 1986 (Cth). The Commission says Mr Pemberton does not satisfy all of the criteria applicable to a special rate pension. In particular, it says Mr Pemberton is unable to satisfy the “alone test” in s 24(1)(c). It also says Mr Pemberton cannot take advantage of the so-called “ameliorating provision” in s 24(2)(b).
The applicant has asked the Tribunal to reconsider the matter. I am satisfied the decision under review should be set aside and decide in substitution that Mr Pemberton satisfies the requirements of s 24. I explain my reasons below.
BACKGROUND TO THE APPLICATION
Mr Pemberton enlisted in the regular Army in 1973 and transferred to the reserves in 1993. He worked as a fraud investigator for the Department of Veterans’ Affairs while he was in the reserves. He resumed service in the regular Army in December 2001. He obtained the rank of major and was in charge of all military police investigators in Australia. He was also the deputy provost marshal, which is a very important office. He enjoyed a distinguished career. He said he enjoyed his life in the Army.
The applicant’s service included a posting to East Timor in 2001.
Most of Mr Pemberton’s working life was spent in law enforcement and investigative work. As an investigator, he developed high level analytical skills. He mastered crime scene examination and photography techniques. He also acquired a good deal of legal knowledge. Part of his work involved management of other investigators. He received extensive training in various aspects of his role. The training was provided by military and civilian law enforcement agencies.
Mr Pemberton remained in the Army past the usual retirement age of 55 years as a result of a series of extensions that were given because of his specialist skills. He was hoping for a further extension – he wanted to stay in the Army, he said, and was not ready to retire even though he was 63 because he enjoyed the work and had two mortgages to service. But the extension did not eventuate and he was required to leave the Army in January 2010.
The applicant’s wife moved to Cairns before the end of 2009. Mr Pemberton had planned to take a posting in Townsville so he could spend time at home with his wife on weekends. When he was required to retire, he moved back home with his wife and decided to assess his options. He did not seek out any job interviews, although he knew he was not in a position to retire permanently. Alone at home without the support and structure of the military lifestyle, his accepted conditions began to crowd in on him. He said he entered a dark period. He used a lump sum payout from the Army to pay down his mortgage but financial pressures began to mount. He knew he would have to do something. He thought his salvation came in the form of an approach from a friend, Greg Watson, in May 2010. Mr Watson worked for a security company in Cairns. The company was looking to replace a supervisor and Mr Watson thought Mr Pemberton would be right for the role. Mr Pemberton went in for an interview and was shown around the operation. Mr Pemberton said he was confident he could do the job. He was introduced to the proprietor of the business, Coral Hoult. He was also introduced to the man whom he would replace, which struck him as being a bit odd. In any event, Mr Pemberton said he was under the impression that the job was his, subject to a formal offer being made. He went home to wait. And wait…but the expected offer never came.
Ms Hoult gave evidence at the hearing. The Commission also tendered a written response she had offered to questions about the case. Ms Hoult said she had a vague recollection of being introduced to Mr Pemberton. She did not recall an offer of employment being made: she said the existing supervisor was likely to remain. She also said it would be necessary for Mr Pemberton to undertake a range of training courses and certification before he could work in the industry. There was no suggestion he would have any difficulty in meeting those requirements. Her evidence did not exclude the possibility of an informal offer being made. Mr Watson also provided a written statement in which he indicated he discussed the position with Mr Pemberton. The statement says an offer was not made “due to the current conditions he suffered from”. The form of words he used – indeed, the tenor of the whole statement – was interesting, and I would have liked the opportunity to hear him cross-examined about what he said. But given that did not occur, I prefer the evidence of Ms Hoult.
On balance, I am satisfied the applicant did make a reasonable effort to obtain work at the security company in May 2010. He was unsuccessful because the position was not ultimately available, although I accept that may not have been communicated clearly to him at the time.
Once it became clear he was unlikely to get the security supervisor’s job, Mr Pemberton resumed looking for work by doing some internet searches. It did not sound like an especially intensive or diligent search. He agreed to do some part-time cleaning work in which he also acted as a house-keeper for a busy professional woman and her family. The work was arranged through a friend. There was some confusion in the evidence over the date when this occurred. Mr Pemberton apparently suggested in his evidence to the Veterans’ Review Board that he undertook this work in the first half of 2010 but at the hearing in these proceedings he explained the work began in July 2010. He was adamant his revised account was the correct one, and I accept that is so. He gave evidence that he cleaned the family home and the attached office. He worked for about four hours per day, five days a week. I accept he did that work for several months: there is no evidence to the contrary, although I note there is no documentary evidence of him undertaking paid work, like tax returns. He finished up, he says, when the work became too hard because of back pain that presumably arose out of his accepted back conditions. He said he quit the position on the advice of his general practitioner who advised against undertaking any sort of physical work.
Mr Pemberton said he continued looking for work after leaving the cleaning job. He attended a session with CRS Australia in December 2010 to discuss his options. By that time, he had been diagnosed as suffering from depression. The rehabilitation assessment report in exhibit 1 at page 114 is telling: it suggested Mr Pemberton has “minimal capacity to work at present” in light of his accepted conditions. His treating psychiatrist, Dr Likely, subsequently advised him that he should not be working at all because of his psychiatric conditions. (Dr Likely confirmed that advice in his written report dated 14 July 2011, which is in exhibit 1 at pages 142-145.)
ASSESSING THE APPLICANT’S CLAIM
I am satisfied Mr Pemberton did not leave the Army because of his accepted conditions, but nor did he retire voluntarily. He left the Army because he had reached (indeed, he had passed) the age of compulsory retirement. But that is not the test for the purposes of s 24. I am required to decide whether he was not working throughout the assessment period (and suffered a loss of salary or wages as a result) in the sort of role he had been performing because of his accepted conditions – and if so, whether his accepted conditions were the only barrier to work.
The assessment period began in October 2010 and continues to the present day. The applicant’s work was that of an investigator with experience in law enforcement and security. I am satisfied in light of the CRS Australia report and the opinion of Dr Likely that the applicant became unable to work sometime around the end of 2010. As it happens, I am satisfied the evidence establishes he became unable to do any sort of work, let alone the high-level investigative work he had previously undertaken.
Mr Pemberton was highly skilled but there are not many jobs like the ones he had most recently been doing – not in Cairns, at any rate, and not for a person of his age. There were certainly no jobs comparable to the deputy provost marshal. Even so, the job description I have settled on – investigative, security and law enforcement work with an administrative component – covers a wide range of work that should have been available to him in Cairns. It follows I do not accept that labour market conditions or the applicant’s age were ultimately an obstacle to him getting work during the assessment period. The only obstacle was his accepted conditions, which means he satisfies the requirements of s 24.
CONCLUSION
The Tribunal sets aside the decision under review and decides in substitution that the applicant satisfies the requirements in s 24 of the Act for a special rate pension. The Respondent has submitted the date of effect is 17 December 2010. I do not understand there is any dispute over that date.
I certify that the preceding 15 (fifteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe .
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Associate
Dated 4 July 2012
Date(s) of hearing 25 May 2012 Advocate for the Applicant Mr King Advocate for the Respondent Mr Williams
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