Roy Henderson v Repatriation Commission
[2007] AATA 52
•22 January 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 52
ADMINISTRATIVE APPEALS TRIBUNAL )
)No Q2006/703
VETERAN’S APPEALS DIVISION ) Re ROY HENDERSON Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr EK Christie, Member Date 22 January 2007
Place Brisbane
Decision The decision under review is affirmed. This means that Mr Henderson’s application for review is unsuccessful.
The Tribunal raises the possibility of an Act of Grace payment in the factual circumstances..........[Sgd]..........
Dr EK Christie
Member
CATCHWORDS
VETERANS’ AFFAIRS – veterans’ entitlements – extreme disablement adjustment - special rate – lumbar spondylosis – anxiety neurosis – date of effect of special rate of pension –whether legislative outcome unintended – Act of Grace payment – observations on the use of ADR for application for review
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 68
Ryde v Repatriation Commission (2005) 85 ALD 586WRITTEN REASONS FOR ORAL DECISION
7 February 2007 Dr EK Christie, Member 1. This is an application by Mr Roy Henderson for a review of a decision made by the Veterans’ Review Board (“the VRB”) on 18 August 2006 that he receive disability pension at the Extreme Disablement Adjustment rate and not at the Special Rate.
2. At the hearing, Roy Henderson represented himself. The respondent was represented by Terry Thrupp, a Departmental Advocate.
3. At the hearing the Tribunal had in evidence before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the “T” Documents, Exhibit 1) and the various exhibits lodged by the parties.
4. The general facts were not in dispute and may be stated briefly:-
a.Mr Henderson was born on 27 December 1919. He is now aged 87.
b.Mr Henderson was called up for Army Service in March 1940. He was discharged on 24 January 1946. He was an NCO and fought in the New Guinea campaign with distinction.
c.Lt WG Moody MC wrote the following testimonial about Mr Henderson (Exhibit 2, 6 August 1956):
“I wish it to be known that Mr ROY HENDERSON of Morningside, Brisbane, served as an N.C.O. under me, as Platoon Commander 18 Platoon D Company 15 Infantry Battalion in operations on Bougainville during 1944/1945.
Mr Henderson was a popular N.C.O. As his superior Officer I appreciated his loyalty, devotion to duty and comradeship; the men under his command, whilst respecting his rank and judgment as a leader, benefited from his keen sense of humour and ready willingness to help out at all times.
Mr Henderson gave such commendable service both during operational and rest periods that I could not have asked for, nor reasonably expected, more from him.”
d.In addition, his Company Commander, Major D Provan, provided the following testimonial about Mr Henderson (Exhibit 3).
“This is to certify that I have known Mr Roy Henderson since 1941. We served in the same battalion from 1941 to 1946. During that period, as his company commander, I had every opportunity to study him. He was always thoroughly conscientious, and extremely intelligent in his approach to a task be it in battle or otherwise. He was a courageous soldier and was much respected by his junior in rank, and by his senior officers for his unselfishness and loyalty in all circumstances. I hold Mr Henderson in the highest regard.”
5.Mr Henderson has the following accepted service related disabilities:
i.Lumbar spondylosis
ii.Anxiety neurosis with chest pains
iii.Allergic rhinitis
iv.Bilateral sensorineural hearing loss
6. The following chronology provides a history of claims made by Mr Henderson to the Department:
· 2 October 1956: Claim for a back condition lodged
·20 November 1956: Review Board rejects claim for “recurrent fibrositis”
·29 September 1990: A new claim for a back condition lodged (Exhibit 1, Folio B) following further medical reports being obtained.
·11 December 1990: Lumbar spinal condition rejected by the Delegate of the Repatriation Commission (Exhibit 1, Folio 11)
·27 April 1993: The VRB affirmed the decision of the delegate made on 11 December 1990 (Exhibit 1, Folio 11) i.e. the lumbar spine condition not being caused by his war service.
·7 December 1996: At a hearing before the Administrative Appeals Tribunal, the parties agreed that Mr Henderson be paid disability pension at the Extreme Disablement Adjustment rate (Exhibit 1, Folio 15).
·13 December 2005: Mr Henderson lodged a new claim for his back condition (Exhibit 1, Folio 18).
·21 April 2006: The Repatriation Commission accepts the claim for the back condition as being an accepted war service disability with the decision to take effect from 13 September 2005.
·10 May 2006: Mr Henderson appealed to the Veterans’ Review Board.
·18 August 2006: The Veterans’ Review Board affirmed the delegate’s decision of 10 May 2006. Disability pension was to be paid the Extreme Disablement Adjustment rate and not the Special Rate.
The Issues to be Decided
7. The only issue for the Tribunal to decide was whether Mr Henderson was entitled to receive disability pension at the Special Rate rather than at the Extreme Disablement Adjustment Rate.
STATUTORY REQUIREMENTS AND CASE LAW
8. The Veterans’ Entitlements Act 1986 (“the VE Act”) contains the following statutory requirements [section 24(2A),(2B) and section 20] that are relevant to Mr Henderson’s application for review.
·Effect of being over 65 at the time of the claim or application for Special Rate – s 24(2a), (2b)
9. If a veteran is over 65 at the time of the claim or application for Special Rate, more burdensome criteria apply compared to a veteran who applies before turning 65. In addition to the general eligibility criteria for s 24, Mr Henderson must meet all of the following criteria to be eligible to be paid disability pension at the Special Rate:
a)The paid work which Mr Henderson’s war-caused injuries [or diseases] affect is the last paid work that Mr Henderson undertook before making his claim or application: VE Act s24(2A)(d);
b)That Mr Henderson was doing that paid work i.e. “a chain tester”, continually for at least 10 years before turning 65: VE Act s 24(2A)(g); and
c)That Mr Henderson continued to do the same paid work [as a “chain tester”] after turning 65 as he did before turning 65: VE Act s 24(2A)(f).
·Dates of effect that may be specified in respect of grant of claim for pension Section 20
10. Section 20 provides a discretion to set a date for payment of pension for a claim that has been granted. However, there are statutory boundaries to this discretion:
“Where a claim in accordance with section 14 for a pension is granted, 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.” (Emphasis added).
11.Subsection (3) of section 20 then goes on to provide:
“Nothing in this section empowers the Commission to specify as a date that a determination of a claim under subsection 19(3) takes effect in respect of a person who has made a claim for a pension under section 14, a date before the date that the person became eligible to be granted the pension.”
12. The Federal Court has considered the interpretation and application of these statutory provisions.
13. In the decision by the Federal Court in Ryde v Repatriation Commission (2004) 85 ALD 586, Sackville J concluded:
“Section 20(3) merely says that nothing in s 20 empowers the commission to specify a date from which a determination takes effect earlier than the date upon which a person became eligible to be granted the pension. It cannot authorise the commission to specify a date earlier than that provided for in s 20(1).”
14. Consequently under s 20(1) of the VE Act, where a claim is granted, the Commission can approve payment of the pension from a date – but not earlier than 3 months before the date that the claim was made.
EVIDENCE OF ROY HENDERSON
15. Mr Henderson was employed by Falkiner chains as a “chain tester” from 16 June 1955 to 30 September 1977. He was retrenched from this Company on the latter date as the company had become bankrupt.
16. Mr Henderson explained to the Tribunal that his work as a “chain tester” involved quality control checks and weighing of chains used by RAN ships. His work as a “chain tester” did not involve any heavy lifting as this was all done by fork lifts and pulleys. Most of his work involved work on a small lathe.
17. When he was retrenched by Falkiner Chains in 1977, he was aged 57. He then sought work as a “chain tester” – but there were no other companies doing this type of work in Brisbane. He applied for many other varied jobs but without success.
18. However, on 20 February 1979 (Exhibit 1, Folio 5) Dr C Crowley prepared a medical report for the DVA in which he diagnosed Mr Henderson as having “osteoarthritis lumbo sacral spine”. Following this medical opinion being provided to the Repatriation Board, the Board determined on 6 March 1979 that Mr Henderson was “permanently unemployable”. The Repatriation Board noted that Mr Henderson had not worked since 1977 and was receiving unemployment benefits (Exhibit 1, Folio 7).
19. When asked by the Tribunal why he did not apply for Special Rate at this time, Mr Henderson said that “the whole thing was mucked up by the Repatriation Commission and himself”. He explained that he requested assistance from the Repatriation Commission to lodge his claim but was provided with no assistance in return. As a result he could not lodge a claim.
20. Mr Henderson also spoke about his “anxiety neurosis” condition. This condition became evident after arduous fighting in Bougainville in 1945 and he was later admitted to Heidleberg Hospital, in Victoria, with very bad nerves. From that time, he has continued to suffer from anxiety symptoms and remains under the care of a psychiatrist. In more recent years his psychiatrist has informed him that he suffers from “Post Traumatic Stress Disorder”.
21. Mr Henderson said that he did not undertake any paid employment after he turned 65 years.
22. The following statement by Dr Darryl Wall, General Surgeon, Princess Alexandra Hospital (Exhibit 1, Folio 96; 2 June 1989) supports the evidence of Mr Henderson.
“This statement concerns Mr Roy Henderson who I have known for fifteen years. During this time Mr Henderson has endured a chronic profound anxiety disorder which has not responded to conventional and dedicated treatment. This anxiety state has been well established in the distant past during his hospitalisation after being withdrawn from the New Guinea front of the second World War.”
Consideration of the Issues and Findings of Fact
23. In Mr Henderson’s case, there are a number of decisions possible. The question for the determination of the Tribunal is whether the decision under review is the preferred one.
[See Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 68]
24. The Tribunal finds Mr Henderson to be an impressive witness and a person of truth who answered all questions asked of him in a forthright manner. This is not a surprising finding given his valour as a soldier in the New Guinea campaign, throughout World War II.
25. Based on the facts before the Tribunal, Mr Henderson first applied for Special Rate on 13 December 2005. At this time he was older than 65.
26. Mr Henderson did not apply for Special Rate in 1979, when the Repatriation Commission found him to be permanently unemployable because he was not provided with any form of assistance he sought from the Commission to complete his claim. The Tribunal notes that Mr Henderson completed his education to Grade VI (Exhibit 1, Folio 6).
27. To be eligible for Special Rate after turning 65, the first step is for three eligibility criteria to all be satisfied.
28. In Mr Henderson’s case, by applying the facts to the three criteria, the Tribunal finds that:
(i)The paid work which Mr Henderson’s war caused injuries (lumbar spondylosis and anxiety disorder) affected was his work as a “chain tester” which was the last paid work Mr Henderson undertook before making the claim for Special Rate in 2005. Mr Henderson satisfies this Criteria.
(ii)Mr Henderson was doing this work as a “chain tester” continually from 1955 – 1977 i.e. for a continuous period of at least 10 years. Mr Henderson satisfies this Criteria.
(iii)Mr Henderson, to be eligible for Special Rate, was required under the legislation to do the same work he did as a “chain tester”, before turning 65, as well as after he turned 65. Mr Henderson does not satisfy this Criteria as he ceased work as a “chain tester” when aged 57.
29. As a matter of law, as Mr Henderson does not satisfy all of the above three criteria, he is not entitled to be paid disability pension at the Special Rate.
30. Whilst this outcome may seem harsh, it would be more appropriate to describe the outcome as unfortunate. The legislation gave the Tribunal no other option than to make such a finding. There is no discretion in the legislation for the Tribunal to make any other decision, as a matter of law, for Mr Henderson to be entitled to the Special Rate of pension.
31. However, the Tribunal does raise for consideration by Mr Henderson and the Repatriation Commission, the Departmental Policy Guideline “Act of Grace Payments” (Part 3, Chapter 9).
32. The Departmental Policy Guideline states as follows:
“Section 3 Act of Grace Payments
What is an Act of Grace payment
An Act of Grace payment may be made where a person has suffered a loss. Although there is no legal liability on the Commonwealth to meet the loss, it is considered that the Commonwealth bears some responsibility for the loss…
Eligibility for an Act of Grace payment
Eligibility for an Act of Grace payment depends on the claimant’s circumstances and a wide range of matters may be taken into account to determine eligibility although there is no set eligibility criteria for an Act of Grace payment, claims may be considered where:
§a person received incorrect advice leading to detriment, but where there is no legal liability
§a matter is covered by legislation, but its application produces a result which is unintended, anomalous, inequitable or otherwise unacceptable
§it is considered desirable to apply the benefits of proposed legislation, or
§there are other special circumstances where there may be a moral obligation to make a payment
Request for an Act of Grace payment
Requests for ‘Act of Grace payments’ can arise from almost any aspect of Commonwealth administration and include payments normally paid under Part III (service pension) or Part IIIA (income support supplement) of the VEA.
Claims for Act of Grace payments
A claim for an Act of Grace payment should first be considered under the criteria for ‘compensation for detriment caused by administrative error’. If a claim satisfies that criteria it will be determined under the compensation for detriment provisions. Claims that do not satisfy the compensation criteria may be determined under the Act of Grace provisions.”
33. In relation to the Departmental “Act of Grace Policy”, the Tribunal considers that there is no issue for a claim under the Departmental Policy, “Compensation for Detriment caused by Administrative Error”, as there appears to be no departmental administrative procedures that normally would have applied to Mr Henderson’s circumstances.
34. In any external consideration of the possibility for an Act of Grace Payment, due regard must be given to the sworn evidence given by Mr Henderson at the hearing [see paras. 15 - 21].
35. Essentially, Mr Henderson’s concerns reflected his situation that he had served his country in good faith during war time and with valour – but has suffered accepted injuries that not until a great many years later, after he has turned 65, been found to be war caused disabilities; injuries that have prevented him from undertaking paid employment since March 1979 (Exhibit 1, Folio 7).
36. In relation to the Act of Grace policy, the Tribunal makes the observation that the outcome of this application for review, as covered by the provisions of the Veteran’ Entitlements Act, in Mr Henderson’s factual circumstances, may have led to a result that may be considered as an “unintended anomalous, inequitable, unjust or otherwise unacceptable result”. On consideration of the overall circumstances, it may even lead to a conclusion “that there is a moral obligation on the Commonwealth to make a payment” (Tribunal emphasis).
37.The Tribunal makes this observation for the following reasons.
38. Firstly, given that the Repatriation Commission decided that Mr Henderson was permanently unemployable in 1979, (when he was aged 60), there is no way that he would ever be able to satisfy the requirements of s 24(2A) of the Veterans’ Entitlements Act. Not only could he not work, there was no work for him in his work as a “chain tester” when his employer went bankrupt in 1977. Yet he had worked continuously as a “chain tester” for the one employer from 1955 – 1977. Mr Henderson, for factual circumstances beyond his control, has been placed in a position where he would never be able to satisfy one of the eligibility criteria for Special Rate, when an application is made after turning 65.
39. A further problem for Mr Henderson is the time taken (almost 60 years) for him to establish, in 2005, that his lumbar spondylosis and anxiety neurosis (“PTSD”) were accepted war caused injuries. Some of the earlier decisions may not have reflected the true fact situation. For example: the following finding of fact by the Delegate of the Repatriation Commission (Exhibit 1, Folio 10, 11 December 1990):
“I note veteran has been a chain manufacturer and wood machinist in his life. These are occupations which would involve a large degree of lifting and wear and tear.”
is not consistent with the oral evidence of Mr Henderson in this regard (see para 16). However, notwithstanding past issues of determination on his injuries, the fact is that in 2005, these past determinations have been overridden as Mr Henderson’s lumbar spondylosis and anxiety disorder are now accepted war caused service disabilities.
40. With respect to stress/human health interrelationships, significant issues continue to arise in relation to exposure to psychological stressors and the consequential emergence of defined psychiatric conditions. In this regard it is important to recognise that conditions that may have been simply characterised as some form of “war neurosis” in the past [e.g. World War II veterans such as was the case of Mr Henderson] - with increasing medical research and knowledge over time are now given quite different diagnostic categories. Psychiatric conditions can now be diagnosed with greater precision. For example, since 1987 (in DSM III)[1], the recognition of the disorders of “Post-traumatic stress disorder”[2], “Panic disorder” and “Generalised anxiety disorder”.
[1] Past DSM II(1968) classification, Anxiety neurosis.
[2] No corresponding DSM II category.
41. The Tribunal makes the further observation that a Special Rate application was not made in 1979 when the Repatriation Commission found him to be unemployable, because there was a “muck up” (see para 19). Mr Henderson’s request for assistance from the Repatriation Commission needs to be considered by the fact that he had only completed a Grade VI level of education.
42. Mr Henderson needs to consider the Tribunal’s observations to decide whether he may have a case to support an Act of Grace payment – especially if he believes that the decision under review may either be “unintended” or “inequitable” (i.e. unfair) or “otherwise unacceptable”: alternatively, the factual circumstances indicate that there may be a moral obligation to make a payment.
43. The Tribunal emphasises that it has no power whatsoever to order that an Act of Grace Payment be made to Mr Henderson. The process for such a payment is for Mr Henderson to make a claim to the Repatriation Commission for an Act of Grace payment and to request that his claim be assessed under the specified eligibility criteria. The final authority to grant an Act of Grace payment does not rest with the Tribunal, but the Minister for Finance or their appointee.
44. Finally, the Tribunal raises with the Repatriation Commission that an appropriate conflict resolution pathway to resolve matters such as this application for review may have been by alternative dispute resolution (“ADR”), now available in the Tribunal, rather than by litigation. That is, the use of ADR for appropriate cases by the Repatriation Commission warrants consideration.
45. For all of the above reasons, the Tribunal affirms the decision under review.
I certify that the 45 preceding paragraphs are a true copy of the reasons for the decision herein of Dr EK Christie, Member
Signed:
Legal Research OfficerDate of Hearing 22 January 2007
Date of Decision 22 January 2007
Date of Written Reasons 7 February 2007
The applicant appeared in person
For the Respondent Mr T Thrupp, Departmental Advocate
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