Oldmeadow and Repatriation Commission (Veterans' entitlements)

This matter concerned an application by the Applicant to the Tribunal for a review of a decision by the Repatriation Commission to refuse an increase in his disability pension. The Applicant sought payment at the Special Rate, or alternatively, the Intermediate Rate, of pension under the *Veterans' Entitlements Act 1986* (Cth). The core of the dispute revolved around whether the Applicant's defence-caused incapacity rendered him unable to undertake remunerative work for more than 8 hours per week (for the Special Rate) or 20 hours per week (for the Intermediate Rate).

The Tribunal was required to determine two primary legal issues. Firstly, whether the Applicant's incapacity from his accepted defence-caused conditions was of such a nature as to render him incapable of undertaking remunerative work for more than 8 hours per week, thereby qualifying him for the Special Rate. Secondly, if he did not qualify for the Special Rate, whether his incapacity rendered him incapable of undertaking remunerative work for 20 or more hours per week, which would entitle him to the Intermediate Rate. These determinations necessitated an examination of the Applicant's trade and professional skills, qualifications, and experience, and the effect of his accepted disabilities on his capacity to perform such work, as well as whether he had been prevented from continuing his previous remunerative work due to his incapacity and suffered a consequent loss of earnings.

The Tribunal applied the principles outlined in sections 24 and 23 of the *Veterans' Entitlements Act 1986*, which establish a composite test for eligibility for the Special and Intermediate Rates. This test requires that the veteran's incapacity, arising solely from service-caused conditions, must be of a nature that, of itself, renders them incapable of undertaking remunerative work for the specified hours. The Tribunal considered the Applicant's history as a hospital clerk in the RAAF and his subsequent employment at the Australian Taxation Office, noting his back injury and later diagnosis of PTSD. It also considered his part-time employment as a cash processor. The Tribunal referenced *Smith v Repatriation Commission* [2014] FCAFC 53 regarding the composite nature of the test and *Chambers v Repatriation Commission* [1995] FCA 1144 concerning the broad interpretation of skills and qualifications.

The Tribunal found that the Applicant did not meet the criteria for the Special Rate. However, it determined that the Applicant's defence-caused incapacity rendered him incapable of undertaking remunerative work for 20 or more hours per week. Accordingly, the Tribunal set aside the previous decision and substituted a new decision that the Applicant was entitled to payment of pension at the Intermediate Rate.