Peter Sweet and Repatriation Commission

Case [2014] AATA 497

[2014] AATA 497

Division VETERANS' APPEALS DIVISION

File Number

2013/1004

Re

Peter Sweet

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal

Mr R G Kenny, Senior Member
Date 18 July 2014
Place Brisbane

The Tribunal sets aside the decision under review and substitutes its decision that the applicant is entitled to be paid the special rate of pension under s 24 of the Veterans' Entitlements Act 1986 (Cth) with effect from 7 March 2012.

............................Sgd............................................

Mr R G Kenny, Senior Member

CATCHWORDS

VETERANS’ AFFAIRS – Benefits and entitlements – Disability pension payable at 100% of general rate – Application for increase in pension – Eligibility for special rate of pension – Remunerative work – Incapacity from war-caused conditions sufficient to prevent applicant undertaking remunerative work for more than 8 hours per week – Applicant prevented from undertaking remunerative work due solely to accepted disabilities – Special rate payable from date of claim for increase in pension – Decision under review set aside

LEGISLATION

Veterans’ Entitlements Act 1986 (Cth) ss 5Q, 15, 19, 23, 24, 25, 28, 120(4), 157

CASES

Flentjar v Repatriation Commission (1997) 26 AAR 93; (1997) 48 ALD 1

Martin and Repatriation Commission (2001) 68 ALD 397

Repatriation Commission v Alexander (2003) 75 ALD 329

Repatriation Commission v Hendy (2002) 76 ALD 47

Repatriation Commission v Smith (1987) 15 FCR 327

Willis v Repatriation Commission (2012) 202 FCR 323; [2012] FCA 399

REASONS FOR DECISION

Mr R G Kenny, Senior Member

18 July 2014

BACKGROUND

  1. On 7 March 2012, at the age of 64 years, Peter Sweet (“the applicant”) applied, under


    s 15 of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”), to the Repatriation Commission (“the respondent”) for an increase in the rate of disability pension paid to him. This was in respect of the following conditions which the respondent had accepted as being related to his service in the Australia Regular Army (“the army”): intervertebral disc lesion, bilateral sensorineural hearing loss with tinnitus, posttraumatic stress disorder, alcohol abuse, erectile dysfunction, acquired cataracts in both eyes, bilateral osteoarthritis of knees, gastro-oesophageal reflux disease, solar keratosis and colon adenoma. Currently, he is paid pension at 100% of the general rate. The respondent rejected the claim on 20 March 2012 and the Veterans’ Review Board (“the Board”) affirmed that decision on 21 February 2013. The applicant sought further review by this Tribunal on 6 March 2013.

    ISSUES AND LEGISLATION

  2. The

    standard of proof applicable to assessment of pension is set out in s 120(4) of the Act, which requires that matters be determined to the decision-maker’s reasonable satisfaction. This imports the civil standard of proof so that matters must be determined on the balance of probabilities.[1] The procedure to be followed is set out in s 19 of the Act. It requires the rate of pension to be determined during the “assessment period” which is defined as meaning the period starting on the application day, in this case


    7 March 2012, and ending when the application is determined.[2]

    [1]

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Peter Sweet and Repatriation Commission [2014] AATA 497
Case
[2014] AATA 497
Decision Date

CaseChat Overview and Summary

The applicant, Peter Sweet, sought a special rate of pension from the Repatriation Commission under the Veterans' Entitlements Act 1986 (Cth). The case was heard and decided by a member of the Administrative Appeals Tribunal. The primary issue for determination was whether the applicant met the eligibility criteria under section 24 of the Act for the special rate of pension. This involved assessing whether the applicant's incapacity from war-caused injury or disease rendered him incapable of undertaking remunerative work for periods aggregating more than eight hours per week.

The Tribunal considered the various components of the applicant's work history and the extent of his incapacity due to war-caused conditions. It found that the applicant had worked as a builders' labourer, union organiser, and instructor, among other roles. Despite his posttraumatic stress disorder and other medical issues, the Tribunal determined that the applicant's capacity to work more than eight hours per week was not consistently impaired. The Tribunal relied on the applicant's employment history and his ability to work 18 hours per week in 2004, as well as medical evidence from 2002 and 2003 indicating he could work more than eight hours per week. Consequently, the Tribunal concluded that the applicant met the requirements of section 24(1)(b) of the Act from the date of the 2005 medical report.

The Tribunal set aside the decision under review and determined that the applicant was entitled to the special rate of pension under section 24 of the Act, effective from 7 March 2012. This decision was based on the applicant meeting the statutory criteria for the special rate of pension, despite arguments from the Repatriation Commission that he did not satisfy the requirements.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

For the special rate of pension, the matters that need to be determined are whether or not the applicant meets the requirements of ss 24(1)(aa), (aab), (a)(i), (b) and (c) of the Act. These read:(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…(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 veteranEVIDENCE On 9 November 2005, the applicant completed an Employment Report in which he listed his special work qualifications as scaffolder’s licence, dogman’s licence and rigger’s licence. He described his usual type of employment as “builders’ labourer”. He gave his work history, after completing national service in 1971, as: The applicant’s evidence was that he was employed by the Builders’ Labourers Federation (“BLF”) from May 1989 until February 2003. This was as a union organiser until 1995 and then as an instructor for the Construction Skills Training Centre (“CSTC”) which was a branch of the BLF. CSTC paid his wages from monies received from the BLF. In 1999, he was seconded to the Building Construction Industry Training Fund (Queensland) (“BCITF”) for three days per week but continued with the CSTC on the other days. This arrangement resulted from the BCITF providing funding to CSTC for his position. This continued until February 2003 when his position was terminated. He successfully took unfair dismissal proceedings against the CSTC in the Industrial Commission. As a result, he received an undisclosed sum and the terms of settlement remained confidential. However, he said that there was no clause in the agreement excluding him from working for the BLF subsequently. He said that the problems he had at CSTC were related to disputes with management and were associated with his posttraumatic stress disorder. He was on sick leave because of that condition, stress and behaviour problems for three months before returning to work on 28 February 2003 when his position was terminated.

Decision

Reasons for decision

It is not in dispute that s 25 of the Act has no application in this matter. It follows that the applicant meets the requirements of s 24 of the Act and that the special rate of pension is payable to him under that provision with effect from the date of his claim: 7 March 2012. It follows that a determination under s 23 of the Act is not required.DECISION The Tribunal sets aside the decision under review and substitutes its decision that the applicant is entitled to be paid the special rate of pension under s 24 of the Act with effect from 7 March 2012.[13][13] Date of effect set in accordance with s 157 of the Act.

Ratio Decidendi

Legal Principle Established

Mr Williams submitted that the requirements of s 24 of the Act were not met and that the decision under review ought be affirmed. He also submitted that the applicant did not satisfy the terms of s 23 of the Act which relate to the intermediate rate of pension CONSIDERATION I am satisfied that the concessions by Mr Williams in respect of ss 24(1)(aa), (ab) and (a) of the Act have been properly made. I am also satisfied that such is the case in relation to s 24(1)(b) of the Act but not until some time after he ceased working for HPL. That employment was not consistent with the medical evidence in 2002 and 2003 of Dr Finegan and Dr Lotz that the applicant was unable to work more than eight hours per week at that time. At HPL, the applicant demonstrated an actual capacity to do so by completing 18 hours of work per week for 10 weeks in 2004. There was no evidence that the applicant was not performing to a standard required by his employer with HPL and, though he may have been considering retiring from that job because of his knee and posttraumatic stress disorder symptoms, he did not do so. I am satisfied that s 24(1)(b) of the Act is met with effect from the date of Dr Gibson’s report in 2005. This was reinforced by the report of Dr Yeung in 2013. The application of s 24(1)(c) of the Act involves a consideration of what the applicant would probably have done in the assessment period in the absence of his accepted disabilities.[6] The Federal Court has said that a proper consideration of s 24(1)(c) of the Act requires responses to the following questions:[7]1. What was the relevant “remunerative work that the veteran was undertaking” within the meaning of s 24(1)(c) of the Act?2. Is the veteran, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?3. If the answer to question 2 is yes, is the war-caused injury or war-caused disease, or both, the only factor or factors preventing [the veteran] from continuing to undertake that work?4. If the answers to questions 2 and 3 are, in each case, yes, is the veteran, by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of that incapacity?[6] See Repatriation Commission v Hendy (2002) 76 ALD 47 at 54. [7] See Flentjar v Repatriation Commission (1997) 26 AAR 93; (1997) 48 ALD 1 at 4-5. Consideration must also be given to s 24(2)(a) of the Act, which operates in conjunction with the fourth of those questions.First question For the first of those questions, the term “remunerative work” is broadly defined in s 5Q(1) of the Act as including “any remunerative activity”.[8] The applicant worked on construction sites in various capacities. He held rigging, dogging and scaffolding licences. However, he described himself on several occasions as a labourer and I am satisfied that labourer comprises one component of his remunerative work. I am also satisfied that that the term labourer is broad enough to embrace the less intensive factory hand-work he undertook with HPL. Other components of his remunerative work are constituted by his role as a union official and his instructional role with construction workers and employers in the construction industry. Second question[8] See also s 28 of the Act.