Munro and Repatriation Commission

[2008] AATA 146

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 146

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  2007/1185

VETERANS’       APPEALS      DIVISION		)
Re		MAURICE MUNRO

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr John Handley, Senior Member

Date26 February 2008

PlaceMelbourne

Decision The decision under review is set aside and in substitution IT IS DECIDED at all relevant times the applicant has been entitled to pension at 70 per cent of the General Rate.

(Sgd)  John Handley
Senior Member

  

VETERANS’ ENTITLEMENTS – application for increase in pension – general rate increased to 70 per cent – applicant employed 33 years – retrenched – employer restructured – no incapacity by war‑caused injuries alone – no entitlement to special rate pension – decision varied

Veterans’ Entitlements Act 1986 (Cth) s 24 (1) (a) (i) and s 24 (2)

Repatriation Commission v Hendy [2002] FCAFC 424

Cavell v Repatriation Commission (1988) 9 AAR 534
Flentjar v Repatriation Commission [1997] FCA 1200

Leane v Repatriation Commission [2003] FCA 889

REASONS FOR DECISION

26 February 2008   Mr John Handley, Senior Member

1. Mr Munro, the applicant in these proceedings, is presently 61 years of age. He currently receives pension at 60 per cent of general rate, by reason of the accepted disabilities of anxiety disorder and erectile dysfunction (impotence). His claim to increase the rate of pension was rejected by the Repatriation Commission and affirmed by the Veterans' Review Board (VRB) on 23 February 2007. His objective, by this review, is to obtain pension at the special rate. The rate of pension, currently assessed, presents an obstacle to achieving that objective, because s 24 (1) (a) (i) of the Veterans’ Entitlements Act 1986 (the Act) provides that qualification for special rate pension includes a determination of having been assessed, at least, at 70 per cent of the general rate.

2.      Mr Munro has lived all of his life in Ouyen, a relatively small town in the Mallee district of North Western Victoria, save for two years in which he was enlisted in the Army during which he served in Vietnam.  In 1973 he commenced employment with the Grain Elevator's Board (which later became known as Grain Corp Operations Ltd) (Grain Corp).  He was progressively promoted and in 1995 he became an Area Manager.  He was earning in excess of $90,000 per year.  In December 2005 he was retrenched.  He has not worked subsequently.

3.      The applicant said that he could have continued working until the age of 65 (he was 58 when he ceased working) but did acknowledge in the years prior to retrenchment he had been struggling with poor concentration, broken sleep, irritability and frequent clashes with his management.  He had not had any psychiatric treatment but was self medicating by consuming up to 12 cans of light beer after work.  Ten years previously he had been consuming the same quantity but at full alcohol strength.  He commenced to drink light beer when his marriage collapsed and his wife and children had left him.

4.      The applicant said that his employer changed the management structure of Grain Corp by introduction of new policies.  The applicant said that those changes were not required and he complained to his divisional manager.  He said that he told his manager that the focus of Grain Corp was wrong, that the new policies would cause the place to fall down around our ears and money was not being spent in the right areas.  The applicant agreed that he and his manager were at loggerheads.  He said that he had been the boss of his own patch and he would have preferred to have continued to work and manage his own way.  The applicant agreed in retrospect that his irritability and intolerance – which he associated with his anxiety – caused him to react and behave the way that he did.  He said he was not given any notice of the proposed retrenchment and was told about it during a meeting with a number of human resource managers and the divisional manager.  The applicant was firmly of the belief that he was made redundant because of his arguments and his previous clashes with his divisional manager.  He was firmly of the belief that if he had not upset his manager he would have remained employed.

5.      The applicant described the previous management structure of Grain Corp as encompassing seven area managers in Victoria each being responsible for a designated region.  The restructure caused Victoria to be broken into three regions each having a regional manager.  Within each region a number of service centre managers were appointed.  Whereas previously area managers – such as the applicant – were responsible for approximately 35 grain storage facilities, each service centre manager within each region would be responsible for three or four storage facilities.  The applicant said that Ouyen was within one of the new regions and its regional manager was a person who had previously been an area manager in Swan Hill.  The applicant agreed that some persons were retrenched but a number of other persons were allocated other jobs and other responsibilities.

6.      As an area manager, the applicant said that most of his work involved administration and visiting each of the 35 sites in his region at least once monthly.  He said the reason given to him by his superiors for the restructure was an emphasis on focussing on each service centre (a grain handling facility) where decisions could be made immediately and therefore with greater efficiency.  There was also an intention to create better relationships with grain growers. 

general rate assessment

7.      The representatives for both parties agreed at the hearing that the applicant should be assessed as attracting 15 impairment points under Table 10.1.1 of the Guide to Assessment of Repatriation Pensions (GARP).  That assessment is made by reason of impotence at onset occurring between the ages of 40 and 64 years where the condition has not been ameliorated by surgical treatment.  I agree that assessment is appropriate.

8.      The remaining assessment has regard to Chapter 4 of GARP which relates to the emotional and behavioural consequence of an accepted psychiatric condition.

9.      The discussion which follows has regard to the evidence of the applicant at the hearing, the submissions of both representatives, the medico‑legal reports of Dr Seabridge who assessed on behalf of the respondent and Dr Percival who assessed on behalf of the applicant.  Dr Strauss, a medico‑legal psychiatrist, also assessed the applicant but did not provide a GARP assessment.

10.     At the outset I should record that Dr Seabridge interviewed the applicant by teleconference on 15 December 2005.  That method of assessment – especially in the context of general rate assessment – I think is less than ideal where the examining psychiatrist is unable to observe and monitor a person during a consultation.  The other feature of the assessment of Dr Seabridge is that it occurred at a point in time when the applicant was employed and where there is no indication at all from the report that retrenchment was imminent.  An employment separation certificate lodged as part of a file held by the respondent, which was concerned with an application by the applicant for service pension, records that the last day of work was 23 December 2005.  In the medical notes received from Dr Opie, a former treating general practitioner of the applicant, she records that treatment commenced on 22 December 2005.  She also records he was retiring at end of this week.  The assessment therefore of Dr Seabridge on 15 December 2005 is either absent a history of retrenchment being imminent or it having occurred after 15 December and before 23 December.

11.     Table 4.1 of GARP is concerned with Subjective Distress and the notes to that Table give examples of feelings of anxiety, fear or depression, flashbacks, intrusive thoughts, loss of concentration, nightmares and hallucinations.  Dr Seabridge recorded the subjective distress of the applicant being chronic worry, apprehension, jumpy and easily startled, irritability, impatience and intolerance, headaches, insomnia.  He assessed an impairment rating of 6, which has the corresponding criteria of frequent symptoms causing moderate distress.  The veteran will sometimes be unable to distract himself or herself from the distress.

12.     Dr Percival reported that on the description given by Dr Seabridge and by regard to the diagnostic criteria of generalised anxiety disorder (being excessive anxiety and worry, apprehensive expectation occurring more days than not for at least six months) that the applicant should attract 10 points under Table 4.1 which has as its criteria very frequent symptoms causing moderate distress.  The veteran will often be unable to distract himself or herself from the distress.

13.     On balance I am satisfied that the applicant should attract 6 points under Table 4.1.  He is able to distract himself from the distress on occasions and does not therefore satisfy the criteria of often be unable to distract himself or herself from the distress which is the criteria applicable to a rating of 10.  The applicant is able to tend a significant rose garden at his home, he has an interest in harness racing, is a member of the committee of the Ouyen Harness Club, he is the owner of an 800 acre property which, although he share farms it to a neighbour, he retains an interest in it.  The preferable finding is of the applicant being sometimes, rather than often, unable to distract himself.

14.     Table 4.2 is concerned with Manifest Distress.  The notes to this Table describe manifest distress as the manifestation of the distress that others observe in the veteran.  It is the equivalent of the signs observed in a physical condition.  Dr Seabridge recorded that the features of this condition in the applicant were excessive symptomatic drinking, easily angered, restless, workaholic, preoccupied, disturbed sleep, wakes in a sweat, solitary.  He rated the applicant as attracting 6 impairment points against the criteria of distress is apparent and / or the veteran's preoccupation with the symptoms is noticeable to astute observers or persons familiar with the veteran.  Dr Percival agreed with the comments of Dr Seabridge and also agreed with his rating of 6.  I agree with that assessment.

15.     Table 4.3 is concerned with Functional Effects.  The notes to this Table record this feature as being the effects of the condition of the veteran's ability to function in a non‑specific environment.  Drs Seabridge and Percival reported that the applicant attracted a nil rating under this Table.  I agree.  The criteria against this rating is minimal or no interferences with most aspects of living.  The applicant lives alone and manages his home including housework and cooking of meals.  He shops and drives a car.  He tends to his garden.  I cannot find from the evidence any impact by the accepted disabilities which would attract a rating under this Table.

16.     Table 4.4 is concerned with Occupation and the notes to the Table record that it is concerned with the effect of the psychiatric condition on the veteran's ability to work.  Relevantly, examples given as factors to be considered are ability to concentrate on a task, ability to work with others, ability to take instructions from a supervisor and ability to interact appropriately with clients.

17.     Dr Seabridge recorded that the applicant has symptomatic obsessional involvement in work, as a form of escape and to the detriment of other aspects of his life.  He assessed the applicant as not attracting any impairment rating under this Table.  It is to be noted (refer earlier) at the time of his assessment the applicant was working.  Dr Percival assessed the applicant on 8 November 2006, almost 12 months after he was retrenched.  He reported (T‑docs p69) that he agreed with the assessment made by Dr Seabridge in December 2005 that the applicant's occupation had been unaffected by his symptoms.  However, he noted that subsequent to that consultation the employer had restructured its management and the applicant had become redundant.  He thought that from an employer's point of view the applicant's manifest difficulties of concentration and his inability to conform with changing company policies together with personality clashes probably justified a finding that the applicant was unable to work for more than eight hours per week as a consequence of the anxiety disorder.  He assessed the applicant as attracting 8 impairment points under Table 4.4 which has as its criteria the veteran cannot work.  I disagree with that assessment.  I will expand on this issue later but for my part the totality of the evidence – including the evidence of the applicant – indicates to me on the probabilities that he is not incapacitated by his accepted disabilities and at its highest he would attract – now (more than two years after redundancy) ‑ an impairment rating of 2 being short periods (more than one day at a time) of absence from work.

18.     Table 4.5 is concerned with Domestic Situation.  The applicant lives alone having separated from his wife and children more than 10 years ago.  He has no contact with them and separation occurred because of conflict arising out of alcohol consumption and his obsession with his former employment.  Dr Seabridge assessed 6 impairment points.  Dr Percival assessed 8 impairment points which has as the criteria virtually non‑existent family life because of conflict with family members.  That is the assessment I prefer.  The applicant has no contact with his former wife or his children.  His family life is non‑existent.

19.     Table 4.6 is concerned with Social Interaction and according to the notes appended to the Table it is concerned with the effect of the psychiatric condition on the ability of a veteran to continue or form interpersonal relationships with friends other than close family members and to interact with people in a casual way.  Dr Seabridge recorded that the applicant avoids social involvement and rarely goes out, uncomfortable in crowds, mates rarely visit him, no steady female partner.  He assessed the applicant as attracting a rating of 3 which has as its criteria significant reduction in social interaction.  Dr Percival thought that on the opinion of Dr Seabridge the applicant should have attracted an impairment rating of 5 which has as its criteria substantial reduction in social interaction.  On the evidence heard, the criteria against a rating of 5 is more applicable than the criteria against a rating of 3.  The applicant had few friends, he does not interact outside the Harness Club.  A rating of 5 is preferable.  I think the descriptor substantial is more appropriate than significant.

20.     Table 4.7 is concerned with Leisure Activities.  The notes appended to the Table record that it is concerned with the effect of the psychiatric condition on the veteran's ability to enjoy previously pleasurable activities.  Dr Seabridge found that the applicant was on the committee of the local trotting club but no other memberships, no sport – active or spectator – rarely reads and little TV, no pets, rarely walks, no hobbies, does a little gardening.  He assessed the applicant as attracting a rating of 3 against the criteria within the Table of significant reduction in recreational activities.  Dr Percival assessed the applicant as attracting a rating of 6 which has as its criteria substantial reduction in most recreational pursuits.  The applicant had few leisure activities before being retrenched, largely because of the hours he worked and his alcohol consumption.  His leisure interests now are confined to his rose garden and the Harness Club.  He had no other leisure interests and is not motivated to seek any.  I think a rating of 5 is appropriate, being loss of interest in most recreational pursuits.

21.     Table 4.8 is concerned with Current Therapy.  Both Drs Seabridge and Percival assessed a rating of 3 against a criteria of psychiatric treatment, at least in the form of medication or psychotherapy, has been used (or deemed necessary) and / or periods of regular supportive therapy at an outpatient level or similar.  The applicant has in recent years had three or four attendances on Mr Bruton a psychologist in Mildura and probably does attract a rating of 3 under this Table.

22.     The impairment rating therefore under Chapter 4 – using the formula prescribed at pages 90 and 91 of GARP results in a rating of 30 being 6 for each of Table 4.1 and 4.2 together with the ratings of 8, 5 and 5 for the Tables 4.5, 4.6 and 4.7 being the three highest impairment ratings for the remaining Tables.  When the finding of 30 is added to the finding of 15 with respect to impotence, the combined value of the two impairment ratings when converted under Chapter 18 amounts to 41 which must be rounded down to 40 (refer formula at pages 232 and 233 of GARP).

23.     The remaining exercise when assessing general rate entitlement is to have regard to the Lifestyle Tables under Chapter 22 of GARP.

24.     Under Table 22.1 which is concerned with Personal Relationships I would, on the evidence heard, and from the reports read, assess the applicant as having a rating of 5.  The criteria against that rating is severely affected relationships.  Able to relate only to particular or few people e.g. spouse or children.  These remaining relationships are strained are of low quality.  The applicant has few friends and he communicates with two closest friends once monthly by telephone.  He has acquaintances at the Harness club but he remains intolerant and is affected by crowds and other people.  He is relatively reclusive and I am satisfied that his accepted disabilities are responsible for him having severely affected relationships.

25.     Table 22.2 is concerned with Mobility.  The applicant does have a number of physical impairments which are not accepted as war‑caused and which must be distinguished when considering this Table.  When assessing the applicant under this Table, I would take account of his anxiety state largely precluding him from having an outward disposition and a willingness to travel and visit other places.  He is relatively reclusive because of his anxiety but he is able to travel to his farm, travel to the Harness Racing Club and to visit local shops for food and other supplies.  I would assess him of having a rating of 3 being moderately reduced mobility.

26.     This lifestyle Table is concerned with Recreational And Community Activities.  The applicant said that he ceased playing competitive sport more than 30 years ago.  I would not consider that as relevant in assessing his lifestyle at the date of this claim or at the present time.  I am concerned with the effect on his lifestyle by his accepted disabilities.  The applicant does continue to associate with other persons at the Harness Racing Club both on race days and when working on track maintenance as a volunteer.  The applicant also visits his farm and sometimes fishes, alone.  The frequency however of some of these pursuits is not as great as it was previously and I would assess the applicant as attracting a rating of 2 under this Table being mild but constant interference with accustomed recreational pursuits and community activities, but is able to continue with them – even if less frequently – or to enjoy alternatives.  In making this finding, I have had regard also to the notes appended to that Table which direct that account is to be taken of the veteran's need to modify recreational pursuits or to seek alternatives.

27.     Table 22.4 is concerned with Domestic Activities.  I would assess a rating of nil.  There is no evidence that the applicant is unable to sustain any usual activities.

28.     Table 22.5 is concerned with employment activities.  The notes appended to GARP at page 272 indicate that the higher of the ratings between Tables 22.4 and 22.5 only is to be selected.

29.     Again for reasons which will become apparent later I am not satisfied that the applicant is incapacitated but he has been retrenched and the first five ratings of this Table refer either to usual employment or accustomed employment or normal occupation.  None of those descriptions apply to the applicant because he has been retrenched.  However, if accustomed employment extended to a reference to similar type employment to that previously undertaken, I would assess the applicant as having a rating of 2 against a criteria of able to follow accustomed employment but difficulty is experienced in carrying out full range of occupational activities.  I would make that finding because of the applicant's expressed difficulty in accepting the direction of his superiors, his intolerance and his impatience.

30.     Having regard therefore to the manner in which a lifestyle rating is to be assessed (refer Introductory Notes to Chapter 22 at page 265 of GARP) I would assess the applicant under Tables 22.1, 22.2, 22.3 and 22.5 as 5, 2, 3 and 2 respectively giving an average rating of 3.

31.     Counsel for the respondent at the hearing suggested that the shaded area of the Tables converting the degree of incapacity should apply against an impairment rating.  That is to say a lifestyle rating was not necessary.  I note also that the VRB adopted that course.  The notes to Chapter 23 of GARP suggest that it would be expected that a lifestyle rating would fall within the shaded area of Table 23.1, however a lifestyle rating may be allocated which falls outside the shaded area, in exceptional cases.  Until the lifestyle assessment is completed it is not known whether the lifestyle rating falls outside the shaded area, thereby giving a greater degree of incapacity.  From the above findings the assessment does not fall outside the shaded area.

32.     Having regard to the earlier finding of an impairment of 40 and to the lifestyle rating that I have now assessed at 3, I am satisfied that the applicant has an entitlement to general rate pension at 70 per cent.  Accordingly the application for review in so far as it concerns general rate pension shall be varied and the entitlement to general rate pension shall be increased to the rate of 70 per cent from the date of claim.

special rate

33. Having satisfied the first part of s 24 of the Act, the applicant is entitled to have determined whether he qualifies for pension at the special rate.

34.     The applicant had been employed by the Grain Elevators' Board (later Grain Corp) for 33 years.  For the last eight years of his employment he was an area manager.  It was a job to which he was devoted.  Despite persisting intolerance, irritability, poor concentration and clashes with management he was responsible for a number of grain handling facilities within his region.  He sought and enjoyed good relationships with growers and secured delivery from them of their product and apparently coped with significant increases in casual staff and workload during the growing season.  Despite alcohol being consumed as self medication against the effects of anxiety, the applicant did not drink during the day.

35.     In Repatriation Commission v Hendy [2002] FCAFC 424 the Full Federal Court decided at [37] that The decision-maker is required to take into account any factor that plays a part or contributes to a veteran's being prevented from continuing to engage in remunerative work.  On balance I have decided that the applicant ceased work because he was retrenched by his employer.  The evidence suggests that the restructuring of the management and other policies of Grain Corp caused the employer to decide that the applicant no longer had a role with it.  There was no evidence that the applicant was ever given an explanation by the employer's representative as to why he was not selected as a regional manager or as a service area manager in the restructured organisation.  The applicant was of the belief that he was made redundant because of his prior arguments and disagreements with management.  Indeed it was the applicant's belief that if he had not upset his divisional manager he would have continued to have been employed.  The applicant also gave evidence that there were occasions when he argued with his manager including the offering of insults.  There was an occasion also where he told his manager that he didn't think he knew what he was doing.

36.     In the context of the stated reason by Grain Corp of restructuring in order to have a greater client / grower focus, with a greater number of service centres (each of which having personnel available to provide immediate advice) and greater efficiencies over all, it is not difficult to contemplate why, having regard to the applicant's opposition to those changes and his belief that his previous work practices being superior, that he was not selected as part of the restructure.

37.     There was not a word – either orally or in writing – of evidence from the employer as to the reasons why the applicant was retrenched.  Neither was there any evidence that the employer in fact knew that the applicant had a war‑caused anxiety state which may – or may not – have contributed to his intolerance and aggression.  To an extent the applicant must have been performing his work satisfactorily because having held the area manager's position for eight years it is likely that if his performance was poor, he would have been retrenched before the restructure.  I would think that the employer would want to be reassured that the applicant would support the initiatives consequent upon, or giving rise to, the restructure and it is likely in my view that the employer did not have confidence that the applicant would promote those changes and honour the policy objectives by the restructure.

38.     The absence of evidence from the employer was unfortunate.  It apparently was contemplated and was the subject of discussion between the applicant and Dr Percival (refer report Dr Percival at T‑docs p69).

39.     This review may well have resulted in a different outcome if the applicant had submitted medical evidence that he was incapable of continuing in his former employment and had submitted that evidence to his employer and had resigned.  But the applicant ended his employment with Grain Corp because his employer retrenched him.  In the absence of any evidence from the employer or any reasonable inference from the evidence that the applicant was retrenched because his war‑caused injuries, alone, prevented him from continuing in employment, I am satisfied on the balance of probabilities that the employment with Grain Corp ended because of retrenchment.

40.     There are a number of other factors that contribute to the inability of the applicant to satisfy the alone test.  At the cessation of employment he was 58 years.  He is now 61 years living in Ouyen, in North Western Victoria being a town of approximately 1200 people.  It is relatively isolated and located in the heart of the Mallee district.  For more than half of the applicant's life he worked in the grain industry and has held management positions for many of those years.  Whilst he may well have management skills, they would be of a specialist type and it would be unlikely in my view that he would find other employment where he could exploit those skills in Ouyen.  The applicant also indicated that he was not prepared to move from Ouyen to seek employment elsewhere.  It also appears the applicant has poor computer skills, having been assisted in this function in his previous employment.

41.     Additionally, the applicant has a number of other illnesses which would contribute to him having difficulty securing employment in Ouyen or elsewhere.  He has degeneration of his hips which causes pain and discomfort, especially when walking or driving a motor vehicle.  He suffers back pain and frequent headaches.  He has a right optic nerve lesion which restricts and impairs his vision (refer report Dr Williams).  He also suffers depression and alcohol abuse which were suggested as being a consequence of the anxiety state.  Dr Strauss reported that the significant depression is partly a result of a generalised anxiety disorder (refer report at p9).  Apparently the depression is of long standing and has been treated by way of medication but which was ceased by the applicant.  Neither of these conditions were ever claimed as war‑caused.

42.     On a broad level I think also there is some doubt as to whether the applicant in any event, could demonstrate that he is incapacitated from undertaking remunerative work for periods aggregating more than eight hours per week.  Dr Opie in a service pension application on 13 June 2006 assessed him then as having a capacity to undertake more than eight hours per week and did not certify him as permanently incapacitated for the purposes of invalidity service pension.

43.     Dr Horsley, an occupational physician engaged by the respondent acknowledged that the applicant's war‑caused and non‑accepted disabilities would severely restrict him from employment but did think that there was a range of employment available to him within the limitations that would be caused by a combination of his disabilities.  She thought for example that he could work as a console operator in a service station or in a shop serving customers but acknowledged that positions of that type probably involve stocking shelves which would be beyond him having regard to his back and hip injuries and to what also appears to be a demonstrable cervical spine injury – which has also not been accepted as war‑caused.

44.     For the above reasons, the applicant does not satisfy the often quoted part of the decision in Cavell v Repatriation Commission (1988) 9 AAR 534 at 539, that is, to decide whether a loss of remunerative income is attributable to his service related incapacities and not to something else as well.  If the four issues summarised by Branson J in Flentjar v Repatriation Commission [1997] FCA 1200 were considered, the first would be answered manager / supervisor, the second would be answered no and the remaining issues would not need to be considered.

45.     To avoid the risk of any confusion between these findings and the findings at paragraph 17 earlier, any incapacity of more than one day at a time would not cause an incapacity such as to prevent working up to 8 or 20 hours per week.  A degree of incapacity at those levels would give an entitlement – if by war‑caused injuries alone, to the special or intermediate rate.  To summarise therefore, I have concluded that if there is any incapacity, it is minimal, it is a consequence largely of non accepted disabilities and other features referred to in paragraph 40 above and the applicant cannot satisfy the alone test.

46. The remaining matter for consideration is s 24 (2) of the Act, sometimes referred to as the ameliorating provisions. I do not think that the applicant can satisfy this part. In evidence he said that after he was made redundant he applied for work in Ouyen with a tyre dealer and at a service station. Dr Horsley took a history from the applicant of applying for work also at a milk bar and at a local hotel. Dr Strauss has a history of the applicant filling in as a carer at a homeless youth institution for three days.

47.     Despite Ouyen being relatively small in population – and therefore having limited work opportunities – I am not of the opinion that the applicant has been genuinely seeking to engage in remunerative work.  That the applicant has also not been prepared to seek work outside Ouyen does not assist his cause.  Four job applications, since December 2005, is hardly genuine.  The relative absence of applying or trying or attempting probably does not satisfy the act of seeking (refer Leane v Repatriation Commission [2003] FCA 889).

48.     In all of the circumstances I am not satisfied that this provision has been met by the applicant.

49.     The decision under review will therefore be set aside to the extent that contrary to the decision of the Veterans' Review Board I am satisfied that the applicant has an entitlement to general rate pension of 70 per cent.  However, on review and for the above reasons I am not satisfied that the applicant can demonstrate an entitlement to special rate pension.

I certify that the 49 preceding paragraphs are a true copy of the reasons for the decision herein of:
Mr John Handley, Senior Member

Signed:         Grace Carney, Personal Assistant

Date of Hearing  1 February 2008
Date of Decision  26 February 2008
Solicitor for the Applicant          Mr D De Marchi
Counsel for the Respondent     Mr G Purcell