O'Donnell and Repatriation Commission (Veterans' entitlements)
[2021] AATA 2355
•9 July 2021
O'Donnell and Repatriation Commission (Veterans' entitlements) [2021] AATA 2355 (9 July 2021)
Division:VETERANS' APPEALS DIVISION
File Number(s): 2018/1186
Re:Michael O'Donnell
APPLICANT
AndRepatriation Commission
RESPONDENT
DECISION
Tribunal:Deputy President Rayment OAM QC
Date:9 July 2021
Place:Sydney
The reviewable decision is set aside and substituted with a decision that the applicant is entitled to a pension in accordance with s 24 of the Veterans’ Entitlements Act 1986 (Cth).
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Deputy President Rayment OAM QC
CATCHWORDS
VETERAN’S AFFAIRS – disability pension – whether applicant entitled to special rate – Veterans’ Entitlements Act 1986 (Cth) - relevant date of consideration of claim – which remunerative work was relied upon by the applicant – meaning of remunerative work – whether eligibility depends upon substantial or trivial losses – assessment period – whether applicant incapable of remunerative work by reason of war-caused incapacity alone - whether other factors contributed to cessation of work - matters to be considered – decision set aside and substituted
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth)
CASES
Banovich v Repatriation Commission (1986) 69 ALR 395
Chambers v Repatriation Commission (1995) 55 FCR 9
Delkou v Repatriation Commission (1986) 69 ALR 406
Gauntlett v Repatriation Commission (1991) 32 FCR 73
Lucas V Repatriation Commission (1986) 69 ALR 415
Repatriation Commission v Braund (1991) 23 ALD 591
Repatriation Commission v Sheehy (1995) 39 ALD 286
Repatriation Commission v Smith (1987) 74 ALR 537
Starcevich v Repatriation Commission (1987) 18 FCR 22
REASONS FOR DECISION
Deputy President Rayment OAM QC
9 July 2021
This proceeding relates to a review of the refusal by the respondent (affirmed by the Veterans’ Review Board (VRB)) to accede to a claim for a special rate of pension by the applicant under s 24 of the Veterans’ Entitlements Act 1986 (Cth) (the Act). That special rate was known as the TPI pension and is now often referred to as an earnings-related pension.
Section 24(1) and (2) of the Act provide as follows:
Special rate of pension
(1) This section applies to a veteran if:
(aa) the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab) the veteran had not yet turned 65 when the claim or application was made; and
(a) 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
(c) the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and
(d) section 25 does not apply to the veteran.
(2) For the purpose of paragraph (1)(c):
(a) a veteran who is incapacitated from war-caused injury or war-caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if:
(i) 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
(ii) the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; and
(b) where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking.
One limit applicable to a person who otherwise qualifies for the special rate of pension is contained in s 24A(1)(c) of the Act. Section 24A provides as follows:
Continuation of rates of certain pensions
(1) Subject to subsections (1A) and (2), if the Commonwealth is or becomes liable to pay a pension to a veteran at the rate applicable under section 23 or 24, that rate continues, while a pension continues to be payable to the veteran, to apply to the veteran unless:
(a) the decision to apply that rate of pension to the veteran would not have been made but for a false statement or misrepresentation made by a person;
(b) in the case of a veteran to whom section 23 applies:
(i) the veteran is undertaking or is capable of undertaking remunerative work of a particular kind for 50% or more of the time (excluding overtime) ordinarily worked by persons engaged in work of that kind on a full time basis; or
(ii) in a case where subparagraph (i) is inapplicable to the work which the veteran is undertaking or is capable of undertaking—the veteran is undertaking or is capable of undertaking that work for 20 or more hours per week; or
(c) in the case of a veteran to whom section 24 applies—the veteran is undertaking or is capable of undertaking remunerative work for periods aggregating more than 8 hours per week.
(1A) However, subsection (1) does not prevent a rate applicable under subsection 24(4), (5) or (5A) from being reduced to give effect to subsection 24(6).
(2) Paragraphs (1)(b) and (c) do not apply to a veteran if the veteran is undertaking a rehabilitation program under the Veterans’ Vocational Rehabilitation Scheme or section 115D applies to the veteran.
Section 28 of the Act provides as follows:
Capacity to undertake remunerative work
In determining, for the purposes of paragraph 23(1)(b) or 24(1)(b), whether a veteran who is incapacitated from war-caused injury or war-caused disease, or both, is incapable of undertaking remunerative work, and in determining for the purposes of section 24A whether a veteran who is so incapacitated is capable of undertaking remunerative work, the Commission shall have regard to the following matters only:
(a) the vocational, trade and professional skills, qualifications and experience of the veteran;
(b) the kinds of remunerative work which a person with the skills, qualifications and experience referred to in paragraph (a) might reasonably undertake; and
(c) the degree to which the physical or mental impairment of the veteran as a result of the injury or disease, or both, has reduced his or her capacity to undertake the kinds of remunerative work referred to in paragraph (b).
The earnings-related pension is properly described as a special rate of pension because, if it is payable, it is payable at a rate higher than the general rate of pension available to ex-servicemen with war injuries.
A number of questions about this section have been examined in the Federal Court, and they should be noted in the introduction to these reasons.
The relevant date
In the first place, issues arose in the early cases about the date as at which the issues should be determined. Subject to one matter, it is clear that the relevant date is the date of the application to the primary decision-maker. This was first decided under similar legislation in Banovich v Repatriation Commission (1986) 69 ALR 395.
A possible qualification to that view was decided by a Full Court in the following year: Repatriation Commission v Smith (1987) 74 ALR 537. In that case, reference was made by Beaumont J to s 20(1) of the Act, and the Full Court concluded that the relevant date was three months before the filing by the applicant of his claim under s 24. Section 20(1) provides as follows:
Dates of effect that may be specified in respect of grant of claim for pension
(1) Where a claim in accordance with section 14 for a pension is granted (other than a claim to which subsection (2A) applies), the Commission may, subject to this Act, specify as a date that a determination under subsection 19(3) takes effect in respect of the claim, a date not earlier than 3 months before the date on which the claim for a pension, in accordance with a form approved for the purposes of paragraph 14(3)(a) was received at an office of the Department in Australia.
Subsequent Federal Court decisions have largely not adopted the “three months before” test: see for example Repatriation Commission v Braund (1991) 23 ALD 591 (Pincus J).
In Braund, Pincus J observed that the “three months before” test was difficult to reconcile with Banovich and two other Full Court decisions: Delkou v Repatriation Commission (1986) 69 ALR 406 and Lucas v Repatriation Commission (1986) 69 ALR 415.
The relevant date in the case of Mr O’Donnell is the date on which he lodged his application to the primary decision-maker, 4 May 2016, according to the date of receipt of the original claim for compensation made by the applicant.
Which remunerative work?
The expression “remunerative work” in s 24 is defined in s 5Q(1) of the Act as including ‘any remunerative activity’.
A divided Full Court considered whether s 24 focused on the last remunerative work undertaken by the veteran, or other remunerative work that the veteran had undertaken in the past. The case is Starcevich v Repatriation Commission (1987) 18 FCR 221.
The Administrative Appeals Tribunal (the Tribunal) had decided that s 24 focused on the remunerative work most recently undertaken by the veteran. Fox and Jenkinson JJ disagreed, and allowed an appeal. Neaves J agreed with the Tribunal and dissented.
Fox J recited the relevant facts as follows:
The applicant was born on 20 August 1915. Before the Second World War, 1939-1945, he worked continuously on farms owned by his father or himself. He enlisted. He became a prisoner of the Japanese. While working in that capacity he sustained a serious knee injury. On his return to Australia, on advice that he was not fit enough to farm again, he became a wood machinist. Nonetheless, despite another illness caused by his service, which affected him in 1956, he returned to farming, working at first on his brother's farm, and from 1967 farming a separate block of land with his brother's help. A serious war-caused illness in 1970-1971 forced him to give up farming again, and in June 1971 he started work for the Postmaster-General's Department (PMG). In 1974 the PMG branch for which he worked moved its location and he was unable, due to his injury, to work at its new site. He then tried to work in a furniture factory, but after only a day he found that his war-caused injury made it impossible, and since 1974 he has not worked. There is no doubt that the applicant's preferred occupation was that of farming and that he would have returned to it and continued with it, had not his war-caused disabilities made this impossible. The Tribunal found, and there is no challenge to this finding, that the applicant "would still be farming were it not for his war injury.
In later language used by Fox J he referred to the farming work as being ‘his preferred occupation’ and later as ‘substantial remunerative work that he has undertaken in the past, even if that work was followed by work of a different type before the veteran ceased work altogether’. Fox J also noted that the submission of the veteran was that the phrase “remunerative work” includes the main or chosen, rather than the last, remunerative work undertaken by the veteran, namely farming.
Jenkinson J did not adopt the language of Fox J which I have set out. He treated the critical question as whether any ‘”type of work” (other than a type of work which might, perhaps, be put out of consideration on the ground that it had been undertaken for only a very short period) which the veteran had at any time undertaken’, and which otherwise satisfied s 24(1)(c) or comprehends only that particular type of work which was the last to be undertaken before the veteran made application under s 24. He found that the farming work fell within the expression ‘remunerative work which the veteran was undertaking’ in s 24(1)(c).
The description by Fox J of the farming work in that case as “substantial” may not entail a view that it will always be necessary. The proposition was not adopted by Jenkinson J. Commenting later on this point, Pincus J said in Gauntlett v Repatriation Commission (1991) 32 FCR 73, 76-77,
The better view appears to be that the extent to which the section should be read down so as to exclude from its scope insubstantial or trivial losses … is still an open one,
and that it was ‘unnecessary to determine’ it in the instant case.
It was made clear to me by the applicant’s representatives that he did not rely on his former employment by the Royal Australian Airforce as relevant remunerative work for the purposes of the present claim. Rather, it was submitted that his part-time engagement as a mystery shopper qualified him for the earnings-related pension in the particular circumstances of the case.
Sackville J adverted in Repatriation Commission v Sheehy (1995) 39 ALD 286 to the remarks of Fox and Jenkinson JJ in Starcevich, and considered the circumstances in which remunerative work that was engaged in only for a short period (the exception mentioned by Jenkinson J) could qualify an applicant under s 24(1)(c).
What is remunerative work?
Section 5Q(1) of the Act defines “remunerative work” as including ‘any remunerative activity’. In Chambers v Repatriation Commission (1995) 55 FCR 9 Moore and Sackville JJ (with whom Davies J agreed) remarked of the statutory definition of “remunerative work” that the term was ‘broadly defined’.
Mr O’Donnell commenced doing mystery shopping in 2003. He says that he did not regard that activity as remunerative work at earlier relevant times. He says that after a time he picked up assignments on a regular basis. The number of hours worked varied. He has tended to count only observation time and the time taken to complete surveys. Some of the earlier mystery shopping involved taking flights or staying at hotels. The work might involve visiting car dealerships and making enquiries there. More usually it would involve travel to and from shops and purchasing items in the shops, and then reporting on the level of service he received. He said the number of jobs done over the years were too many to mention.
He said that after 2016 he worked only four hours per week, although in cross-examination he conceded that the four hour estimate excluded travelling time.
Was the mystery shopping remunerative work?
It is far from clear that the balance of Federal Court authority about “remunerative work” is in favour of the view arguably expressed by Fox J in Starcevich that it must be “substantial”. Indeed in Starcevich itself, Jenkinson J seems to me only to have allowed that, perhaps, the expression would exclude work done only for a very short period. Later still, Sackville J stated that there was no general rule to the effect suggested tentatively by Jenkinson J, as noted in [20] above.
As noted above, I am in any event not sure that Fox J intended to lay down any general rule as to the remunerative work being “substantial”.
Pincus J in Gauntlett left open whether insubstantial or trivial losses would qualify as “remunerative work”, but did not lay down any principle. Nor did Pincus J treat Starcevich as authority laying down that the remunerative work had to be “substantial”.
As at present advised, I am not inclined to go beyond the terms of s 5Q(1) in understanding the expression “remunerative work”. It may be that some work, if it produces a trivial sum, may be excluded on the basis of the absurdity rule. In this case, Mr O’Donnell clearly wished to give himself something to do, and to earn a small supplement to his superannuation income, and mystery shopping appealed to him because it involved a degree of flexibility. That satisfies me that the work was “remunerative work”. He did supplement his income with the mystery shopping.
A submission was made by Ms Baggett, for the respondent, that the words should be construed in the light of the fact that the special rate in s 24 is intended to compensate someone for the complete lack of their ability to do any work, a loss of their career and employment prospects.
Remunerative work would obviously exclude voluntary work, done for a charity and the like. That is not remunerative at all.
The context and purposes of s 24 need to be considered in construing the section. Section 24(1) is clearly enough intended to restrict the earnings-related pension to cases of real financial need. That does not entail that the broadly expressed definition of remunerative work ought to be confined.
The issues arising under s 24(1)
The respondent does not dispute that the requirements of s 24(1)(a) are satisfied. It submits that the evidence does not support the applicant, having regard to the way his case is put, under s 24(1)(b) or s 24(1)(c).
As to s 24(1)(b), the respondent submits that it ought not to be found that during the assessment period, the aggregate of 8 hours per week was not exceeded. Secondly, the respondent submits that, based upon the evidence of Dr Chase, it ought not to be found that the applicant was incapable of undertaking his mystery shopping work for periods aggregating more than 8 hours per week
As to s 24(1)(c), the respondent submits that during the assessment period, the applicant was not prevented from continuing his remunerative work by reason alone of his war-caused disabilities, and that his earnings would not be greater if he did not have an incapacity, again relying, in part at least on the evidence of Dr Chase.
The respondent also submitted that the applicant’s age, labour market forces, receipt of pension, psychological symptoms, other physical conditions, transport costs, fast food health factors, employer business circumstances, and financial reasons all contributed to the applicant ceasing work as a mystery shopper, so that his accepted conditions alone did not bring about his ceasing mystery shopping.
It is, of course, as has been observed in the courts, difficult to discern the need for the legislature to have included s 24(2) in the Act, which seems not to add to s 24(1)(c).
The “assessment period” is an expression defined in s 19(9) of the Act. It is as follows:
assessment period, in relation to a claim or application relating to a pension, means the period starting on the application day and ending when the claim or application is determined.
The date of determination in the present case expires at the date of these reasons for decision. There is no intention in the statute to limit the assessment date to the date of the decision which took place before the respondent. The second-reading speech also made it clear that the assessment period would include the date of decision by any review body.
The evidence to which the Tribunal must attend therefore covers the period commencing on 4 May 2016 and ending on this day.
As to s 24(1)(b), the applicant said that over the period from 2016 he worked close to four hours per week on the mystery shopping, until stopping that work altogether in January 2020. An itemised statement of his in the T documents estimates that for the period from January to June 2016 he worked about 5 hours per week.
In cross-examination Mr O’Donnell said that the amounts paid to him for mystery shopping ranged from $5 for very small assignments to bigger jobs done in the earlier period for which he might receive $70 to $100. He said he did not retain records of travelling time and could not calculate those times.
For what was described as his recent shopping activity, he said that he generally worked close to his home and estimated one additional hour per week ‘if that’.
Mr O’Donnell’s credit
Mr O’Donnell was not consistent in his various accounts about the mystery shopping work. Before the VRB , some of his evidence his evidence about 2016 was misleading. He said that by July 2016 he had given up mystery shopping. However in 2018, when he gave that evidence, it was clear that the contrary was the case. During evidence before me he advanced the explanation that he had ceased actively to apply for assignments at that time and only accepted assignments offered to him. That explanation is not persuasive. He should have told that to the VRB.
On the other hand, the evidence before the VRB was very brief, and follow-up questions were not asked. He also has a lot of pain, which was obvious during the hearing before me, and that may have distracted him to some extent when he was giving his evidence before the VRB.
It also should be noted that in earlier written representations to the respondent and in one statement filed with the Tribunal, he gave misleading statements about having ceased to do his mystery shopping work at various times. In sworn evidence before the Tribunal he said that he did the mystery shopping work from 2003 until January 2020, when he stopped altogether.
I am not satisfied that when he told doctors that he was not working, he was deliberately misleading them. He could have been more forthcoming with his doctors, and added that he was supplementing his income with small sums for his mystery shopping, but to regard his part-time activity of mystery shopping as work is hardly something on which all minds would agree. Similarly, I am aware of no evidence that the applicant read or understood the definition in the statute of “remunerative work” when he made various statements.
I did not discern any attempt by Mr O’Donnell to mislead the Tribunal in his various answers in evidence. His evidence was given spontaneously, and without any evident desire to hold anything back. He made it clear on certain matters that he did not have sufficient records to be able to give an accurate answer. He said that he limited his working hours in the mystery shopping because of back pain, which seems quite likely to have been the case. That is relevant to the question whether his accepted conditions alone rendered him incapable of working for more than eight hours per week. That matter is also affected by Dr Chase’s evidence referred to below.
My general assessment of Mr O’Donnell’s credit is that unless his evidence is corroborated, I will scrutinise it carefully. Also, I prefer to make the critical findings necessary in this case on the basis of a better foundation than reliance upon Mr O’Donnell’s evidence alone.
Mr O’Donnell’s evidence that over the assessment period he did not in fact work more than about five hours per week, even allowing for travelling time, seemed to me to be supportable on evidence other than his own. The estimate had the support of his more contemporaneous record given to the VRB in writing in 2018. His estimate of the travelling time was not inherently improbable. Because he was generally limiting himself to local jobs, even if his estimate was wrong, his time spent on the mystery shopping is unlikely to have reached an aggregate of eight hours per week.
The medical evidence
The applicant’s general practitioner wrote in a medical impairment assessment dated 30 May 2016 that the applicant experienced back symptoms when standing or sitting, suffered from sciatica on both sides and about a 75% loss of range of thoracolumbar spinal movement.
Dr Coughlan, neurosurgeon, first reported in 2015 on the applicant whom he had been treating then for one year. He noted that it was likely that the applicant’s lumbar spine condition would have a permanent negative effect on his ability to ‘enjoy life, achieve gainful employment or maintain full independence’.
In October 2017, Dr Coughlan said that he agreed with the applicant’s general practitioner that working was not the right thing for the applicant as his condition was becoming worse.
In a 2019 report, Dr Coughlan stated that he would agree that he is unable to perform heavy tasks and some moderate tasks ‘and is certainly unable to work’, which I do not assume comprehends to part-time work involved in mystery shopping, which was continuing throughout most of the assessment period, although scaling down, in more recent years, including during the assessment period. It appears from Mr O’Donnell’s extracts of his tax return that such work as he was doing as a mystery shopper was tailing off. In FY 2016-2017 he earned about $2,283 from that endeavour. In FY 2018-2019 he earned $1,247 from mystery shopping. He says that he ceased the endeavour altogether in January 2020. That may well be so, although I am not comfortable in making a finding to that effect for the reasons expressed above.
Dr Coughlan did not give oral evidence. His reports reveal a consistent history of back pain, which I also saw exhibited during the hearing when the applicant gave evidence.
I have accepted that the applicant did not in fact work in the mystery shopping activity more than eight hours per week in the aggregate. It seems to me that I should also accept on the probabilities that but for his back pain, he would have continued to do his mystery shopping work, for the same reasons as I assume affected his decision to undertake mystery shopping work in the period before the assessment period.
He originally undertook that work to keep himself occupied and earn a supplement to his superannuation pension. He says that he gradually reduced his working hours because his worsening back pain obliged him to do so. That appears to accord with the probabilities.
The respondent qualified Dr Chase, an occupational physician, in 2018. He reported that he could see no reason why the applicant could not continue to perform some form of clerical or administrative work. As to mystery shopping, Dr Chase said that none of the roles of a mystery shopper are particularly onerous and ‘they would be not be anymore onerous than the normal activities of everyday living in which Mr O’Donnell engages’.
He answered question 11 which was put in the following terms:
If he is not able to work, or can only work in a very limited part-time capacity, what is the reason for this? Is it:
(a) His accepted disabilities alone?
(b) His accepted disabilities and his rejected (or any other) disabilities?
(c) Or some other factor (please describe the factor)?
It is due to his accepted disabilities alone.
He answered questions 12 and 13 as follows:
Has he been genuinely seeking remunerative employment or alternative remunerative employment?
No.
Is he capable of genuinely seeking remunerative employment or alternative remunerative employment?
On balance no.
He expressed the view that Mr O’Donnell might have been seeking to mask his true capacities during the examination and concluded:
However on the basis of the history and examination on 21 September 2018 I would have to state that his chronic back pain effectively precludes any meaningful return to work in any capacity.
On the last-mentioned matter, Mr O’Donnell said that when he saw Dr Chase, he was experiencing considerable back pain, which may possibly explain those remarks of Dr Chase.
When asked by Ms Baggett to assume that Mr O’Donnell continued to do mystery shopping until 2020, he said that he had no reason to query Mr O’Donnell’s reported work capacity until he heard that information. Dr Chase met Mr O’Donnell once only and pointed out that he had no up to date information.
There is a plain difference between the reports of Dr Coughlan and Dr Chase. Dr Coughlan does not doubt that the applicant’s reported back pain was genuine, and that as a result he could not do strenuous tasks, and some moderate tasks.
His activities of daily living were for the most part tasks he had to perform even if it was painful for him to do so. For example, he needed to sustain himself, and attend medical appointments. Work in the mystery shopping field was not in the same category of something that was necessary.
Dr Chase, perhaps because of his suspicion that the applicant was masking his true physical abilities, and because of his observation that mystery shopping was no more onerous than the activities of daily living, formed a quite different view. His answer to question 11 quoted above, provides some support for the applicant’s case, albeit that the question asked him to make certain assumptions.
I have decided that, on the differences between Dr Coughlan and Dr Chase, I ought to prefer the evidence of Dr Coughlan as the applicant’s treating doctor, who saw much more of the applicant than did Dr Chase. Dr Coughlan’s reports do not make any suggestion that the applicant was, or may have been malingering.
Section 28 makes certain matters mandatory to the consideration of s 24(1)(b) of the Act. Section 28(a) requires the Commission, and therefore this Tribunal, to take account of the vocational, trade and professional skills, qualifications and experience of the applicant. His vocational experience since 2003 has been in mystery shopping, rather than in his former work with the RAAF. He has also, no doubt vocational, trade and professional skills which once fitted him to work as he did for a long time when employed by the RAAF, some of which no doubt made his reports all the better to those who engaged him to do the mystery shopping work.
Section 28(b) requires the decision-maker to take into account those matters. Section 28(c) requires the decision-maker to take into account the degree to which the physical or mental impairment of the applicant as a result of the accepted impairments, has reduced his or her capacity to undertake the kinds of remunerative work just referred to. I accept that the mystery shopping work was reduced gradually because of the worsening back pain which the applicant suffered. The RAAF work was out of the question for the same reasons.
I therefore resolve the issue under s 24(1)(b) in favour of the applicant.
Similarly, the issue arising under s 24(1)(c) is largely, in my opinion, to be resolved in the same way, for the same reasons as affect my conclusion under s 24(1)(b).
It seems to me that the sole reason the applicant ceased to do his mystery shopping work is that his worsening back pain alone caused him to do so. A very minimal part of his mystery shopping work consisted of his making telephone calls for which he would typically receive $5. He said in evidence that he could continue to do that part of his mystery shopping work but that it was such a minor part of his mystery shopping work that it was not worth his while. One can well understand why that view would be taken. Returning to the respondent’s submissions summarised in paragraph 34 above, I reject those submissions. His age was not why he stopped work as a mystery shopper, and he manages to perform to this day the activities of daily living. Labour market conditions did not later, so far as the evidence reveals. He could, but for his worsening back pain, have continued to earn a small supplement to his superannuation pension as a mystery shopper, and it was not labour market conditions which stopped him from doing so. Of course, some twenty years ago, he was more active as a mystery shopper, taking flights and the like. That kind of work fell away as his pain worsened. It ceased to exist during the years leading up to the assessment period. The evidence does not suggest that any other physical condition, such as knee or neck pain, played any role in his decision to cease mystery shopping work. Similarly, his depression is not shown to have caused him to cease the mystery shopping altogether. On the contrary, having something to do while he continued mystery shopping may have at least slightly improved his depression. As a person doing mystery shopping, he was entitled to pick those employers or clients whose business practices favoured him, and to cease to work for certain clients without a favourable business model, was not to cease his mystery shopping.
Today, his mystery shopping work may have ceased altogether, and if not it is no more than minimal, and the sole reason appears to be his war-caused disabilities, resulting in back pain which is more serious than it was before the assessment period. On balance, my preference for the opinions of Dr Coughlan, coupled with my finding that the remunerative work in question is either non-existent or minimal seems to me to produce that result. The mandatory combination of the considerations mentioned in s 28 seem to me to produce no different result.
The reviewable decision will therefore be set aside and substituted with a decision that the applicant is entitled to a pension in accordance with s 24 of the Act.
I certify that the preceding 72 (seventy -two) paragraphs are a true copy of the reasons for the decision herein of Deputy President Rayment
........................[sgd]................................................
Associate
Dated: 9 July 2021
Date(s) of hearing: 17 August 2020 and 19 March 2021 Date final submissions received: 27 April 2021 Advocate for the Applicant: Mr W Forsbey, Terrigal Wamberal RSL and Mr R Kelloway OBE, Veterans Centre Mid North Coast Solicitors for the Respondent: Ms E Baggett, Moray & Agnew Lawyers
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