[2014] AATA 370
Division VETERANS' APPEALS DIVISION File Number
2013/2227
Re
Roger Ryan
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Dr M Denovan, Member
Date 12 June 2014 Place Brisbane The Tribunal affirms the decision under review.
............................Sgd..........................................
Dr M Denovan, Member
CATCHWORDS
VETERANS’ AFFAIRS – Service pension – Special rate of pension – Whether applicant ceased remunerative work for reasons other than his war-caused incapacity – Decision under review affirmed
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth) ss 19, 24, 120
CASES
Flentjar v Repatriation Commission (1997) 48 ALD 1
Forbes v Repatriation Commission (2000) 58 ALD 394
REASONS FOR DECISION
Dr M Denovan, Member
12 June 2014
Mr Roger Ryan is the applicant in these proceedings. He served in the Australian Army from 8 July 1967 to 30 December 1970. He had operational service in Vietnam from
17 September 1970 to 1 October 1970. Mr Ryan completed a degree in Business after leaving the Army. He has worked as an accountant since graduating.
Mr Ryan has a number of medical conditions that have been accepted as service caused: sensorineural hearing loss, tinnitus, posttraumatic stress disorder (“PTSD”) and depressive disorder. He also suffers from lumbar spondylosis, type two diabetes, gout and sleep apnoea, none of which have been accepted as related to his service.
On 7 June 2012 a delegate of the Repatriation Commission determined that disability pension was payable at 90% of the general rate. Mr Ryan believes he is entitled to pension at above the general rate, so he appealed the decision. The Veterans’ Review Board affirmed the decision not to pay above the general rate on 22 February 2013.
Mr Ryan applied to this Tribunal for review on 10 May 2013.
STATUTORY FRAMEWORK
The requirements which must be satisfied before the special rate of pension can be paid are set out in s 24 of the Veterans’ Entitlement Act 1986 (Cth) (“the Act”). The eligibility criteria are different for applicants who are under 65 years of age, and are dealt with under s 24(1) of the Act. For Mr Ryan, who was under 65 years of age when he lodged his claim, to be eligible for special rate he must, among other things:
·have a degree of incapacity due to a war-caused injury or disease, or both, of at least 70% (s 24(1)(a));
·be incapable of undertaking remunerative work for more than 8 hours per week (s 24(1)(b)); and
·
the war-caused injury or disease, or both, alone, prevented him from continuing to undertake remunerative work that he was undertaking, and because of this, he is suffering a loss of salary, wages or earnings that he would not be suffering if he were free of his service related incapacity
(s 24(1)(c)).
A veteran who ceased to engage in remunerative work for reasons other than a war-caused incapacity, or is unable to engage in remunerative work for some other reason, will not be regarded as suffering a loss of salary, wages or earnings (s 24(2) of the Act).
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- Roger Ryan and Repatriation Commission [2014] AATA 370
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CaseChat Overview and Summary
The legal issues that the AAT was required to decide included whether Mr Ryan's cessation from remunerative work was due to his war-caused injury or disease, and if his PTSD alone prevented him from continuing his work as a self-employed accountant. The AAT considered this by applying the four questions established in Flentjar v Repatriation Commission to determine the applicability of sections 24(1)(b) and (c) and sections 23(1)(b) and (c) of the relevant Act. The court also needed to assess whether Mr Ryan satisfied the ameliorating provisions under section 24(2)(b).
The AAT concluded that Mr Ryan did not satisfy the statutory requirements for a special rate of pension. It found that Mr Ryan ceased his work for reasons other than his PTSD, and thus he did not meet the criteria under sections 24(1)(b) and (c) or 23(1)(b) and (c) of the Act. Furthermore, the court was not satisfied that Mr Ryan qualified under the ameliorating provisions in section 24(2)(b). Consequently, the AAT affirmed the original decision, denying Mr Ryan the special rate of pension.
In light of the above findings, the AAT upheld the decision under review, maintaining that Mr Ryan did not qualify for the special rate of pension based on the statutory requirements and the evidence presented.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
I must decide whether Mr Ryan satisfies the requirements of s 24(1)(b) and (c), or s 23(1)(b) and (c) of the Act.CONSIDERATIONDoes Mr Ryan satisfy s 24(1)(c) of the Act? That is, do his war-caused injuries or diseases alone prevent him from continuing to undertake remunerative work that he was undertaking, and because of this, he is suffering a loss of salary, wages or earnings that he would not be suffering if he were free of his service related incapacity? It is usual for decision-makers to approach consideration of s 24(1)(c) of the Act having regard to the four questions propounded in Flentjar v Repatriation Commission (1997) 48 ALD 1 at 2, as per Branson J (“Flentjar”).1. What was the relevant work that Mr Ryan was undertaking within the meaning of s 24(1)(c) of the Act? Mr Ryan worked as an employee accountant from the time he graduated until 1992. He has been a self-employed accountant since 1992. He was in private practice with a partner from approximately 1992 to 1997. Mr Ryan told me the partnership relocated from Woodridge to Springwood in 1995. When the partnership was dissolved in 1997, Mr Ryan returned to Woodridge and set up as a sole practitioner. He remained in that practice until 2007. Until about 2002 he operated the business as the sole accountant, with the assistance of his wife who was the office manager. From 2002 to 2007 Mr Ryan remained as principal accountant and employed professional staff. Just how much work Mr Ryan performed from 2004 is a matter of contention. It is his claim that from this time he was having problems, which he attributes to his accepted condition of PTSD, and that he progressively reduced the hours he worked. He claims that by June 2007 he was working only 2 hours or less a week. The respondent does not accept this to be the case and contends that Mr Ryan continued to work in a full time capacity until 1 July 2007. What is not in contention is that after Mr Ryan sold his business, with effect from 1 July 2007, he assumed the role of principle accountant in a much smaller business. The only other professional staff member of the business was Mr G, an accountant who previously worked for Mr Ryan at the Woodridge practice. Mrs Ryan remained in her role as practice manager. It is accepted by both parties that from 1 July 2007 Mr Ryan worked less than 8 hours a week in a part-time capacity as a self-employed accountant. In 2010 Mr Ryan worked for 5 weeks full time as a movie extra. Most of that time was spent waiting around. I do not consider this remunerative work for the purpose of the Act. In summary, the relevant work that Mr Ryan was undertaking prior to when he says the effects of PTSD impacted on his work, was as a self-employed full time principle of an accountancy practice. Mr Ryan claims he needed to give up work completely in 2014 due to the effects of PTSD. Prior to giving up work in 2014, Mr Ryan was working in a part time capacity of less than 8 hours a week as a self-employed accountant.2. Is Mr Ryan, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?