ROBERT OAKES and REPATRIATION COMMISSION
[2012] AATA 279
•10 May 2012
[2012] AATA 279
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/4216
Re
ROBERT OAKES
APPLICANT
And
REPATRIATION COMMISSION
RESPONDENT
DECISION
Tribunal Mr R G Kenny, Senior Member
Date 10 May 2012 Place Brisbane The Tribunal affirms the decision under review.
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Mr R G Kenny, Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – Benefits and entitlements – Disability pension payable at 100% of general rate – Eligibility for special rate of pension – Incapacity from war-caused conditions sufficient to prevent applicant undertaking remunerative work for more than 8 hours per week – Course of study not equivalent to remunerative work – Applicant not prevented by reason of incapacity from war-caused conditions, alone or substantially, from continuing to undertake remunerative work – No loss of salary, wages or earnings that would not be suffered if free from incapacity – Decision under review affirmed.
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth) ss 5Q, 15, 19, 22, 23, 24, 120
CASES
Flentjar v Repatriation Commission (1997) 26 AAR 93; (1997) 48 ALD 1
Leane v Repatriation Commission [2004] FCAFC 83; (2004) 81 ALD 625
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] FCA 399
REASONS FOR DECISION
10 May 2012
BACKGROUND
On 15 December 2010, Robert Oakes lodged a claim under s 15 of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”) for an increase in the disability pension paid to him in respect of conditions previously accepted by the Repatriation Commission (“the respondent”) in relation to his service in the Australian Regular Army (“the Army”). Those conditions are chondromalacia patella of left knee, epicondylitis – lateral (right), epicondylitis – lateral (left), bilateral sensori-neural hearing loss, anxiety disorder and alcohol abuse. On 1 February 2011, a delegate of the respondent determined that, in accordance with s 22 of the Act, pension should continue to be paid to Mr Oakes at 100% of the general rate and not at an earnings-related rate under ss 23 or 24 of the Act. On 7 July 2011, that decision was affirmed by the Veterans’ Review Board (“the Board”).
ISSUES AND LEGISLATION
The standard of proof applicable in this matter 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 15 December 2010, and ending when the claim or application is determined.[2]
[1] Repatriation Commission v Smith (1987) 15 FCR 327 at 335.
[2] Veterans’ Entitlements Act 1986 (Cth) ss 19(5C)(a) and 19(9).
It is not disputed that the general rate of pension payable to Mr Oakes was correctly assessed by the respondent at 100%. The issue raised by Mr Oakes is whether he meets the criteria for payment of an earnings-related rate of pension under ss 23 or 24 of the Act. These relate, respectively, to the intermediate rate and special rate of pension. The matter that needs to be determined is whether or not Mr Oakes meets the requirements of ss 24(1)(a)(i), (b) and (c) of the Act. These read:
(1) This section applies to a veteran if:
…
(a) …
(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;
…
(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
…
Mr Bruce Williams, for the respondent, conceded that Mr Oakes meets the requirements of ss 24(1)(a)(i) and (b) of the Act. However, he submitted that he does not satisfy the terms of s 24(1)(c) thereof and that, accordingly, a rate under s 24 of the Act was not payable to Mr Oakes. He also submitted that s 24(2)(b) of the Act was not satisfied in this matter.
It is not disputed that Mr Oakes served in the Army from 2 October 1968 until 4 December 2003; that he has not been in employment since his discharge; or that in 2005, he commenced to undertake a Course in Information Technology (IT) at the Wide Bay Institute of TAFE. Mr Oakes submitted that he intended to utilise that IT qualification to obtain employment and that this was sufficient to satisfy the requirements of s 24(1)(c) of the Act. He conceded that he was unable to complete the IT course but submitted that this was due the effects of his accepted disabilities.
EVIDENCE
Mr Oakes
Mr Oakes gave the following evidence. In the Army, he served as an infantryman and was also qualified as a driver of light and heavy vehicles. His driving duties ceased when he was unable to renew his driver licence because of limitations in his vision. He completed a quartermaster’s course in 1997 and was engaged as a storeman from 1999 onwards. His final posting was at Nhulunbuy on the Gove peninsula where he was involved in surveillance of vessels and aircraft. This required him to undertake field activities. He also performed storeman duties, such as stock taking, for which he was required to use a computer. He had undertaken a basic computer usage course in the Army in 1983. Mr Oakes ceased his service in the Army because of the requirement that he retire at age 55 years. However, he was able to continue for a further 12 months because of the difficulty of filling his position at Nhulunbuy.
On leaving the Army, Mr Oakes had a period of approximately 12 months on full pay because of the entitlements he accumulated during his service. Initially, he moved to his parents’ place in New South Wales to spend time with his ailing father. He then visited a friend in Perth, who was also in ill health, and travelled around Australia with him for about nine months. In 2005, he moved to his current address near Bundaberg. Before going to Perth, he went to a Centrelink office in New South Wales and enquired about work prospects. He said that he was advised that, at his age and with the length of time he spent in the Army, he should obtain some formal qualification to assist him. He put this advice into effect on settling near Bundaberg by enrolling in the IT TAFE course. He said that he had not wanted to work as a storeman because he hated it in the Army. He approached the proprietor of a computer firm in Bundaberg about working in the computer industry. He was not seeking work at that time but advised him of the course he was doing. Mr Oakes said that he was told that he should come back to see him after he finished his course. The firm was involved in selling, maintaining and updating computers and Mr Oakes said that his TAFE course would have equipped him to become a computer technician which was the kind of work carried on by that firm. The course was conducted on a full-time basis of five days per week and would have taken four years to complete. After two and a half years, he was forced to cancel his enrolment because of his anxiety and alcohol abuse.
Medical evidence
Dr Scott Jenkins, psychiatrist, has treated Mr Oakes since January 2007. He provided reports dated 15 February 2007, 30 May 2007, 3 March 2011 and 24 April 2012. The first of those was concerned with Mr Oakes entitlement claims. In his second report, Dr Jenkins noted that Mr Oakes ceased his army service “due to pain in knees and elbows, hearing loss, and anxiety”. His opinion was that Mr Oakes was totally and permanently disabled. In his third and fourth reports, he noted that Mr Oakes had intended to obtain employment through his IT course but had been prevented from continuing with the course because of his anxiety and alcohol abuse. His opinion was that Mr Oakes is unable to work for even eight hours per week because of his accepted disabilities.
Other evidence
In evidence were Certificates from TAFE Queensland indicating that Mr Oakes completed successfully the first and second years of his IT course in 2005 and 2006.
CONSIDERATION
Mr Oakes was in receipt of pension at more than 70% of the general rate at the commencement of the assessment period. The evidence is that Mr Oakes’ accepted disabilities render him incapable of undertaking remunerative work for periods aggregating more than eight hours per week. Accordingly, I am satisfied that the requirements of ss 24(1)(a)(i) and (b) of the Act are met throughout the assessment period. As noted above, this was conceded by Mr Williams.
The application of s 24(1)(c) involves a consideration of what Mr Oakes would probably have done in the assessment period in the absence of his accepted disabilities.[3] The Federal Court has said that a proper consideration of s 24(1)(c) of the Act requires responses to the following questions:[4]
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?”
[3] See Repatriation Commission v Hendy (2002) 76 ALD 47 at 54.
[4] See Flentjar v Repatriation Commission (1997) 26 AAR 93; (1997) 48 ALD 1 at 2.
Consideration must also be given to s 24(2)(a) of the Act, which operates in conjunction with the fourth of those questions, and s 24(2)(b) of the Act which operates, in the case of a person under 65 years of age, in conjunction with the third of those questions.
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. Mr Oakes’ experience as a driver may have been relevant in considering the remunerative work that he was undertaking. However, his evidence was that he no longer holds the relevant driver licences because of his vision limitations and this is not a service-related condition. I am satisfied that, for the purposes of his claim, Mr Oakes’ remunerative work is as a storeman. I also accept that, for the purposes of the second of the questions noted above, Mr Oakes’s accepted disabilities were such that, in the assessment period, they would have prevented him from continuing to undertake that remunerative work.
The third of the questions noted above raises what is referred to as the “alone test” in the first part of s 24(1)(c) of the Act. In Willis v Repatriation Commission,[5] Bromberg J said:
[23] The question raised by the “alone test” is not whether, on its own, the war-caused incapacity prevents the veteran’s continued employment. The question is whether apart from the war-caused incapacity, there is another factor or factors which prevent employment. The existence of other factors which prevent the veteran from working has a disqualifying result for an application for a pension at the special rate. The war-related incapacity must be the lone factor which prevents continued employment. That is what is meant by “alone”.
[24] Another way of re-stating that proposition, which more closely focuses upon the language of s 24(1)(c), is that the alone test requires that the war-caused incapacity is the reason, rather than merely a reason, for the veteran’s inability to engage in the remunerative work which the veteran had previously done. If there is another reason which, independently of the war-caused reason, is preventing the veteran from working, the inability of the veteran to engage in remunerative work is not “by reason” of the war-caused incapacity “alone”.
[5] [2012] FCA 399.
There must be no other factor, apart from Mr Oakes’s accepted disabilities, which would impact upon his capacity to undertake the relevant remunerative work at the start of, or during, the assessment period. Such a factor may be associated with a wide variety of considerations such as incapacity from a non-service-related medical condition, the effects of age, relocation to a locality distant from work opportunities or the impact of the length of time out of the workforce. Such factors, individually or in combination with each other or with accepted disabilities, may serve to prevent a person from continuing to undertake relevant remunerative work.[6] In the event that they would have contributed to preventing Mr Oakes from doing so in the assessment period, s 24 of the Act will not be satisfied.
[6] See Repatriation Commission v Hendy (2002) 76 ALD 47 at 54–55; and Repatriation Commission v Alexander (2003) 75 ALD 329 at 334 per Spender J.
By the start of the assessment period, Mr Oakes had been out of remunerative work for more than six years. I am satisfied that this is a factor which would impact on his capacity to obtain work. Also, in addition to his accepted left knee condition, Mr Oakes has significant difficulty with his right knee. In documents such as a lifestyle questionnaire completed on 5 February 2009, he advised that he has problems with both knees “all the time” and that both knees impact on his capacity to do certain things such as drive a vehicle. However, the main reason for Mr Oakes not being engaged in his work as a storeman was his attitude to that form of work. His evidence was that he “hated” it. The alone test requires that the war-caused incapacity is the reason, rather than merely a reason, for the veteran’s inability to engage in the remunerative work which he had previously done.
I am satisfied that the incapacity associated with Mr Oakes’s accepted disabilities was not the only factor which, during the assessment period, would have prevented him from continuing to be engaged in the relevant remunerative work. This means that the third question listed above is, at this stage of the analysis, answered in the negative. However, consideration must be given to s 24(2)(b) of the Act, which operates, in the case of a person under 65 years of age, in conjunction with that question. It reads:
(2) For the purpose of paragraph (1)(c):
…
(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.
Mr Oakes submitted that his circumstances met the terms of that provision. At the commencement of the assessment period, Mr Oakes was under 65 years of age. A pre-condition to the application of s 24(2)(b) of the Act is that Mr Oakes must have been genuinely seeking to engage in remunerative work. He submitted that he met that requirement because of his endeavours to obtain an IT qualification at the TAFE College, which had been unsuccessful, after two years of study, because of his accepted disabilities. In Leane v Repatriation Commission,[7] the Full Federal Court referred to this requirement in the following way:
[7] [2004] FCAFC 83; (2004) 81 ALD 625.
27. The policy of s 24(2)(b) of the Act was explained in the speech on the second reading of the Bill for the insertion of that provision: see per Sackville J in Repatriation Commission v Hendy (1995) 133 ALR 654 at 660-661; 39 ALD 286 at 292. In that speech the relevant Minister made the point that “special provision is made by the bill to cover veterans who are under 65 years of age, are unemployed, and are genuinely seeking to engage in remunerative work”.
28. The primary judge interpreted the word “seeking” to mean “attempting to” or “trying to”. This may be accepted. Such a meaning involves something more than a mere wish or hope. It requires that a claimant “do” something. On the other hand the word “genuinely” is used in the sense of “sincerely” or “honestly”. It involves an assessment of the subjective intention or purpose of a claimant. What is required is that the claimant honestly be trying to engage in remunerative work.
29. It may be accepted that, in the ordinary course, a person in the position of the veteran would have difficulty in establishing that he or she was honestly trying to engage in remunerative work unless there were some “objective signs of active pursuit of remunerative work”. However, it would be wrong to turn the practical issue of how a person might establish his or her case into some legal pre-condition. Assume, for example, that a claimant satisfied the Tribunal that:
· he or she honestly wished to engage in remunerative work;
· he or she had made a reasonable assessment of his or her disabilities;
· he or she had reasonably concluded that he or she could only be employed in a particular type of work;
· he or she was checking employment advertisements on the lookout for such employment; but
· he or she had not yet identified any such employment prospects.
Counsel for the Commission properly conceded that, on these facts, the tribunal [sic] might be satisfied that the claimant was “genuinely seeking to engage in remunerative work”. This example highlights that the adjectives “objective” and “actual” in the redefinition adopted by the tribunal [sic] are at least unhelpful and may be misleading. The proper course was for the tribunal [sic] to ask itself whether, on the evidence before it, it was satisfied that the veteran was “genuinely seeking to engage in remunerative work” or not, rather than to ask itself the different question that it did ask.
Mr Oakes had more than a “mere” wish or hope to return to work. That is demonstrated by his enrolment and participation in his IT course in which he was successful for the first two years of the four year program. I am satisfied on the basis of Dr Jenkins’ evidence that he discontinued his course because of his accepted disabilities. Nonetheless, the completion of the IT course was no guarantee that he would be able to obtain work in his newly chosen field. He had no experience in that work and would have been 61 years of age at the completion of his four year course. His informal discussion with the proprietor of the computer firm gave him no assurances of any work. There is no evidence that he was checking employment advertisements or was on the lookout for such employment as his concentration was on his course of study. He had not yet identified any employment prospects. I am satisfied that his endeavours involved him in seeking a qualification which may have led to remunerative work rather than in seeking remunerative work in itself. There were no assurances given to him from the only firm he made contact with. Accordingly, I am satisfied that the ameliorating terms of s 24(2)(b) of the Act are not applicable to Mr Oakes. The third question listed above is answered in the negative.
The fourth of the questions listed above is whether Mr Oakes is, by reason of being prevented from continuing to undertake the remunerative 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? That requirement is qualified by the terms of s 24(2)(a) of the Act which reads:
(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
…
Mr Oakes ceased work in 2003 when he was discharged from the Army. That procedure was not associated with his accepted disabilities. He was obliged to retire from the Army because of his age. I am satisfied that Mr Oakes ceased his remunerative work for reasons other than the incapacity from his accepted conditions and, accordingly, is not taken to be suffering a loss of salary or wages, or of earnings on his own account, by reason of that incapacity.
I am satisfied that Mr Oakes does not meet the requirements for the payment of the special rate of pension because he fails to satisfy the terms of s 24(1)(c) of the Act. The intermediate rate of pension, for which provision is made in s 23 of the Act, was not raised in this case. However, I am also satisfied that the requirements for payment of pension at that rate are not met because of s 23(1)(c) of the Act which operates in the same manner as s 24(1)(c) thereof.
DECISION
The Tribunal affirms the decision under review.
I certify that the 23 (twenty three) preceding paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member.
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Associate
Dated 10 May 2012
Date(s) of hearing
2 May 2012
Applicant Self-represented Advocate for the Respondent Mr Bruce Williams
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