Nightingale and Repatriation Commission
[2000] AATA 770
•1 September 2000
DECISION AND REASONS FOR DECISION [2000] AATA 770
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q99/77
VETERANS' APPEALS DIVISION )
Re JACK ALLAN NIGHTINGALE
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Deputy President DP Breen, Presidential Member
Date1 September 2000
PlaceBrisbane
Decision The Tribunal sets aside the decision under review and in substitution therefor determines that the applicant JACK ALLAN NIGHTINGALE is entitled to be paid disability pension at the Special Rate pursuant to Section 24 of the Veterans' Entitlements Act 1986 with effect from 13 May 1998.
(Sgd) DP BREEN
PRESIDENTIAL MEMBER
CATCHWORDS
VETERANS' AFFAIRS – special rate – last paid work – whether a loss has been suffered.
Veterans' Entitlements Act 1986 s 24
REASONS FOR DECISION
1 September 2000 Deputy President DP Breen, Presidential Member
This is a review of a decision of the Repatriation Commission dated 25 June 1998 which determined that disability pension payable to the applicant, Jack Allan Nightingale, be continued at the Extreme Disablement Adjustment Rate. The Veterans' Review Board affirmed that decision on 20 November 1998.
The matter was heard before me on 12 July 2000 in Toowoomba. The applicant was represented by Mr A Harding, Solicitor of Messrs Gilshenan and Luton and the respondent Commission was represented by Mr J Kelly, Departmental Advocate.
The applicant gave oral evidence at the hearing. The following documents were placed into evidence:
Exhibit 1 "T" Documents
Exhibit 2 Tax Records – Rented Property Profit & Loss Statement for the year ended 30.6.99 and Income Tax Returns for the years 1991 to 1998
Exhibit 3 Statement of Jack Allan Nightingale dated 22.5.00
Exhibit 4 Report of Dr S Goode dated 5.4.00
This is a claim for pension at the Special Rate pursuant to Section 24 of the Veterans' Entitlements Act 1986. The applicant served in the Royal Australian Air Force between 19 November 1942 and 11 February 1946. He was discharged medically unfit on that date. The applicant has the following accepted disabilities:
Post Traumatic Stress Disorder
L5-S1 spondylolisthesis with lumbosacral disc degeneration
Bilateral sensori-neural hearing loss
Loss of right kidney
Deflected nasal septum
After discharge the applicant began a courier company which he ran for a number of years. He then ran a building company for around six years, sub-contracting all the physical work due to his back condition. He then operated a poultry farm for around twenty years and a horse stud for around four years. In both instances he employed others to do the manual work and made his money through his sales and management skills.
In 1982 the applicant's wife came into some money and together they built a set of flats in Toowoomba and managed them themselves. The applicant's contribution to this business was to show people flats, collect rent, write cheques to pay the bills and carry out odd jobs, such as letting people in who had locked themselves out or attending disturbances.
In 1989 his wife died. Shortly after that one of his daughters took over running the units and in return the applicant let her stay in one of the units free of charge. This would have resulted in Mr Nightingale forfeiting around $6,400 in rent per year. Later, the second daughter took over this task and also received a unit free of charge. During this time Mr Nightingale continued to carry out the same tasks as before but to a lesser degree.
In 1992 the applicant remarried and his new wife, Olive, and her friend, Gail, took over the tasks the applicant's daughter had been doing. The applicant has paid wages to them both in the amount of around $10,000 per year. In 1995 Gail completely took over the tasks of collecting rents, attending disturbances and showing people through the units, as the applicant could no longer cope with them. He now simply writes the cheques for the business and deposits the rent monies at the bank. All other tasks involved in running the units are undertaken by Olive, Gail or tradespeople.
Section 24 of the Veterans' Entitlements Act 1986 is as follows:
"(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:
(i)if he or she was then working as an employee of another person – had been working for that person, or for that person and any predecessor or predecessors of that person; or
(ii)if he or she was then working on his or her own account in any profession, trade, employment, vocation or calling – had been so working in that profession, trade, employment, vocation or calling;
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.
(2B)For the purposes of paragraph (2A)(e), a veteran who is incapacitated from war-caused injury or war-caused disease or both, is not taken to be suffering a loss of salary or wages, or of earnings on his or her own account, because of that incapacity if:
(a)the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; or
(b)the veteran is incapacitated, or prevented from engaging in remunerative work for some other reason."
In applying that law to the facts of this case, Mr Nightingale made a claim for an increase in pension under Section 15 of the Act on 13 May 1998. At that time he was 73 years and 9 months old and was receiving the pension at 150% of the General Rate.
Dr S Goode, in his report dated 5 April 2000 came to the following conclusion:
"I would therefore see that the war-caused accepted disabilities of lumbar spondylolisthesis with lumbosacral disc degeneration, post traumatic stress disorder and bilateral sensori-neural hearing loss with tinnitus as being the main causes of work incapacity. I believe that these war-caused disabilities are sufficient of themselves alone to prevent him from working at all."
Clearly the applicant is totally incapacitated and rendered incapable of working for an aggregate of 8 hours per week as a result of his war-caused disabilities alone. Further, the Tribunal accepts the applicant's evidence that he can no longer undertake the last paid work he was engaged in before the making of the claim, namely, the management of the block of units.
The applicant is suffering a loss of earnings on his own account which he would not be suffering if he were free of the incapacity, because he has to employ people to manage the units. The respondent contended that the applicant actually earned more after his wife died, as he then received her share of the partnership profits as well, and so could not be suffering from a loss. However, on the limited evidence which was led on this point, the Tribunal finds that it was only after this increase in earnings that he employed his daughters to assist in management and subsequently sacrificed around $6,400 a year for their services. As such, a loss did occur. Then, from 1992, he began actually paying wages to Olive and Gail at $10,000 a year, constituting a further loss of earnings.
The applicant ceased undertaking the management of the units at the age of 71 years and had been in that employment for around 13 years. Finally, Section 25 of the Act does not apply to Mr Nightingale. Therefore, Section 24 is satisfied.
The Tribunal sets aside the decision under review and in substitution therefor determines that the applicant is entitled to be paid pension at the Special Rate pursuant to Section 24 of the Veterans' Entitlements Act 1986 with effect from 13 May 1998.
I certify that the 15 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President DP Breen, Presidential Member
Signed: Emma Oettinger
AssociateDate/s of Hearing 12.7.00
Date of Decision 1.9.00
Solicitor for the Applicant Mr A Harding of Messrs Gilshenan and Luton
Solicitor for the Respondent Mr J Kelly, Departmental Advocate
0
0
0