Saxton and Repatriation Commission (Veterans’ entitlements)

[2015] AATA 836

Saxton and Repatriation Commission (Veterans’ entitlements) [2015] AATA  836 (29 October 2015)

Division	VETERANS' APPEALS DIVISION
File Number(s)	2014/3209
Re	Peter Saxton
APPLICANT
And	Repatriation Commission
RESPONDENT

DECISION

Tribunal	Ms N Isenberg, Senior Member
Date	29 October 2015
Place	Sydney

The Tribunal affirms the decision under review.

.........................[sgd]...............................................

Ms N Isenberg, Senior Member

CATCHWORDS

VETERANS AFFAIRS — disability pension — special rate — intermediate rate — accepted condition post traumatic stress disorder — whether veteran over 65 years of age is prevented from continuing to undertake the remunerative work he was last undertaking — "alone" test  — whether applicant was working in the same role for a continuous period of 10 years before turning 65 —decision under review affirmed. 

LEGISLATION

Veterans’ Entitlement Act 1986 ss 23, 24, 28

CASES

Cavell v Repatriation Commission (1988) 9 AAR 534

Chambers v Repatriation Commission (1995) 129 ALR 219
Flentjar v Repatriation Commission (1997) 48 ALD 1
Grant v Repatriation Commission [1999] FCA 1629
Ireland and the Repatriation Commission [2004] AATA 890
Thomson v Repatriation Commission [2000] FCA 204
Repatriation Commission v Buckingham [1996] FCA 1218
Repatriation Commission v  Haskard [2002] FCA 1493
Repatriation Commission v Hendy (2002) 76 ALD 47
Repatriation Commission v Richmond [2014] FCAFC 124
Repatriation Commission v Watkins [2015] FCAFC 10

SECONDARY MATERIALS

Veterans' Affairs (1994/95 Budget Measures) Legislation Amendment Act 1994 Explanatory Memorandum

Australia, House of Representatives, Debates (9 June 1994) p1809.

REASONS FOR DECISION

Ms N Isenberg, Senior Member

29 October 2015

BACKGROUND

1. The applicant, Commander (CMDR) Peter Saxton, served in the Royal Australian Navy as a Reservist.  He had periods of continuous full time service, which included deployments to Timor.  He has a number of medical conditions that have been accepted as related to his service:

   ·fracture of the right foot

   ·post traumatic stress disorder 

   ·major depression

   ·hypertension

2. In an application to the Repatriation Commission dated 20 May 2013 he sought an increase in his pension in respect of those conditions beyond 90% of the General Rate.  At the time he lodged the application he was 67 years of age.  His application was refused.  His application for review to the Veterans’ Review Board was also refused.  He now seeks review by this Tribunal.  In particular, he seeks the Special Rate of pension, or, in the alternative, the Intermediate Rate. 

   Criteria for the Special Rate

3. The special rate criteria are set out in s 24 of the Veterans’ Entitlement Act 1986 (VEA).  That section provides, in part:

   Special rate of pension

   (1) This section applies to a veteran if:

   … 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

   (ii) … and

   (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) ….

   (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

   (b) …

   (2A) This section applies to a veteran if:

   (a) 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

   (b) the veteran had turned 65 before the claim or application was made; and

   (c) paragraphs (1)(a) and (1)(b) apply to the veteran; and

   (d) the veteran is, because of incapacity from war-caused injury or war-caused disease or both, alone, prevented from continuing to undertake the remunerative work ( last paid work ) that the veteran was last undertaking before he or she made the claim or application; and

   (e) because the veteran is so prevented from undertaking his or her last paid work, the veteran is suffering a loss of salary or wages, or of earnings on his or her own account, that he or she would not be suffering if he or she were free from that incapacity; and

   (f) the veteran was undertaking his or her last paid work after the veteran had turned 65; and

   (g) when the veteran stopped undertaking his or her last paid work, the veteran:

   (i) if he or she was then working as an employee of another person--had been working for that person, or for that person and any predecessor or predecessors of that person; or

   (ii) if he or she was then working on his or her own account in any profession, trade, employment, vocation or calling--had been so working in that profession, trade, employment, vocation or calling;

   for a continuous period of at least 10 years that began before the veteran turned 65; and

   (h) ...

   (2B) For the purposes of paragraph (2A)(e), a veteran who is incapacitated from war-caused injury or war-caused disease or both, is not taken to be suffering a loss of salary or wages, or of earnings on his or her own account, because of that incapacity if:

   (a) 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

   (b) the veteran is incapacitated, or prevented from engaging in remunerative work for some other reason.

4. Section 23 is in similar terms with respect to the Intermediate Rate but differs as to the applicant’s work capacity, namely:

   (2) Paragraph (1)(b) shall not be taken to be fulfilled in respect of a veteran who is undertaking, or is capable of undertaking, work of a particular kind:

   (a) if the veteran undertakes, or is capable of undertaking, that work for 50 per centum or more of the time (excluding overtime) ordinarily worked by persons engaged in work of that kind on a full-time basis; or

   (b) in a case where paragraph (a) is inapplicable to the work which the veteran is undertaking or capable of undertaking--if the veteran is undertaking, or is capable of undertaking, that work for 20 or more hours per week.

5. Section 28 of the Act, which sets out the matters to which regard must be had in considering whether s  24(1)(b ) or s 23(1)(b) apply. It states:

   28 Capacity to undertake remunerative work
   
   In determining, for the purposes of paragraph 23(1)(b) or  24(1)(b ), whether a  veteran  who is incapacitated from war caused injury or war caused disease, or both, is incapable of undertaking remunerative work, and in determining for the purposes of section 24A whether a  veteran  who is so incapacitated is capable of undertaking remunerative work, the Commission shall have regard to the following matters only:

   
   (a) the vocational, trade and professional skills, qualifications and experience of the  veteran ;
   
   (b) the kinds of remunerative work which a person with the skills, qualifications and experience referred to in paragraph (a) might reasonably undertake; and
   
   (c) the degree to which the physical or mental impairment of the veteran as a result of the injury or disease, or both, has reduced his or her capacity to undertake the kinds of remunerative work referred to in paragraph (b).

   APPLICANT’S EVIDENCE

6. CMDR Saxton was trained as a property valuer but in 1994, when he was aged 48, he joined the Navy Reserve.  Over the years he was promoted, rising to the rank of Commander in 2008.  During his period of service CMDR Saxton had three periods of continuous full-time service, including a deployment to East Timor.  CMDR Saxton’s evidence was that he effectively worked full-time for the Navy from 1994 to 2010. 

7. He was a senior officer within the Naval intelligence community involved in recruitment, training and administration of all intelligence reservists in Australia, and later, all Naval intelligence officers.  Ultimately he became Director Navy Communication Intelligence Capability Support. 

8. He was formally based in Canberra but also had an office in Fleet Headquarters in Sydney.  However, he performed nearly all of his work from his home, on an encrypted computer.  At first he  he worked in Sydney and then from his home in the Southern Highlands and later, again in Sydney after he and his wife moved in 2004.  He had to attend meetings several times a year in either Sydney or Canberra.  The majority of those meetings involved his annual reporting meetings or meetings to deal with especially sensitive issues.

9. From about 2006 he also worked 15-20 hours a week as a part time project executive for a developer, but in November 2008 the developer suffered a financial collapse and that work ceased.  In October 2009 he secured another part time role with a local firm of financial advisers, working 10-20 hours per week, although the role lasted only 2 months, he said, because he was required to attend the firm’s office. 

10. In June 2010 he requested his first extension of his service to May 2013.

11. Between 2010 and 2013 he said he worked virtually full-time hours - split between his Navy job and his work as a property consultant although, he said, the majority of his income was derived from his Navy work.

12. His successor was appointed and took up duty in June 2012, and CMDR Saxton was transferred to a staff officer position until his posting was to end.  In July 2012, at age 66 years, however, CMDR Saxton requested a further extension, which was granted until 15 May 2015, his 69th birthday.  He was confident of further postings being available. 

13. In the latter half of 2012 he also worked for a firm of engineers and property development managers (the developer), averaging about 4-5 hours a week.  At the same time he completed 104 Navy days although he spread the work out over 7 days, undertaking about 3.5 hours a day, or 25 hours a week.  He found working 29 hours a week too stressful. 

14. At the end of that year he secured other part time work with a real estate agent, working 6-8 hours a week.  The work was mainly on Saturdays and proved ‘disastrous’, and he left after a few weeks.

15. In January 2013 he again secured further part time work – about 7 hours a week – as a consultant with the developer.  It appears that that work continued for some months, according to his statement – to at least until June.

16. When asked by the VRB whether, in the normal course, he would have retired in 2013 at age 67 years, he explained that his decision was influenced by the Navy's integration of its workforce in Canberra.  He was advised that he had to commence working in Canberra, although in his evidence he said that any new posting did not necessarily require him to relocate to Canberra, but he would likely have had to work more in an office, which he had not done for some years.  He said: "I knew something bad would have happened" if he had gone to work in Canberra.  The decision concerning integration was made around 2012 after he had received his age extension and was put into place in 2013.  There were significant changes to the Navy’s organisational structure which he found difficult to deal with.  He said that the disorganisation was so intolerable that he would have "erupted".  Instead, he chose to retire and on 5 February 2013 he requested a transfer to the Retired List.  He said he was asked to reconsider his position but declined to do so.  He ceased his Navy work on 16 May 2013, the day after his 67th birthday. 

17. In January 2014 he secured yet another project with the developer for work not exceeding 7 hours per week, according to his employment contract.  His project manager role was to ‘resurrect’ a stalled development.  He worked in a large dilapidated building with no one else on his floor.  He could work in solitude; he could listen to music, exercise and even take his dog to work.  He had little contact with his employer until there was a verbal altercation in December 2014 and he resigned.  He has not worked since that time.

18. It was submitted that he was unable to work more than eight hours a week due to his accepted disabilities – in particular his PTSD - alone.  He said he had intended to keep working for the Navy.  He noted that the Reserve has serving members aged 70 years and he anticipated that in the years to come that members could serve until they were 72 or 73 years of age.

19. CMDR Saxton stated that he had previously been able to handle a lot of changes by working from home where he had he had worked at his own pace, and which he had described as a "sheltered environment".  In his last four years he had had a staff officer who had taken the ‘flak’ for him and effectively sheltered him from the bureaucracy.

20. He had originally been referred by his then GP, Dr Ann Parker to Professor Mitchell who then referred him to Dr W Williams, consultant psychiatrist who he consulted while he lived in the Southern Highlands.  When he moved to Sydney he was untreated for about 2 years until he commenced consulting Dr G Altman who has seen him monthly for about 2 years. 

21. When asked by the VRB about receiving treatment for his PTSD through the Navy, CMDR Saxton responded that he did not do so because it 'would end his career’ if he was known to have a psychiatric condition.  Although he was extremely well reported on, the impact of his PTSD was unknown because he was able to work at home between 2006 and 2013.  During that period he underwent six annual reports.  At no time did he disclose his PTSD.  He said he was never asked about his mental state.  He managed to hold a Top Secret security clearance for 18 years.  Every three years he was given psychometric testing which, he said, did not involve questions about mental state.  He said he passed his annual medical because of his very high level of physical fitness.  He did not undertake a final medical examination.

    MEDICAL EVIDENCE 

22. CMDR Saxton suffers ischaemic heart disease, which is a non-accepted disability –but reports from a cardiologist, Dr D Kuchar indicate that CMDR Saxton's ischaemic heart disease is well controlled.  Further, a report dated 8 January 2014 from Dr D Roy indicates that CMDR Saxton's ischaemic heart disease has no effect on his ability to remain working in the Navy Reserve.  A Work Ability Report was provided by Dr Mouroukas, CMDR Saxton's current GP, wherein he reported that there were no conditions other than PTSD which affected CMDR Saxton’s work ability.  In summary, the medical evidence does not indicate that CMDR Saxton has any non-accepted conditions which would affect his capacity for work.

23. CMDR Saxton’s former GP, Dr Parker provided a Work Ability Report dated 29 July 2010 stated that he was then able to work 20 hours or more per week.  Dr Williams, his former treating psychiatrist wrote in a report dated 10 August 2010 stated:

    Assuming that the projected improvement in his PTSD manifestations takes place, I think that he might ultimately be fit for between 20 and 25 hours of work per week. He would be well advised to go for a low stress work environment, and something totally divorced from the experiences he had in East Timor.

    …

    In essence, his service has caused major problems in his marriage, he has markedly diminished interest in his social activities, and is often unable to work, even though he works from home.

24. More recent reports are more relevant to the reasons CMDR Saxton left the Navy and has difficulty in the workplace. 

25. Dr C Mouroukas, his current GP, provided an Ability to Work Report dated 18 June 2013 noting that CMDR Saxton was working part-time and was not experiencing difficulty remaining in the workforce.  In a subsequent medical impairment assessment dated 11 October 2013 Dr Mouroukas reported that CMDR Saxton had taken off long periods from work due to an exacerbation of his symptoms.

26. In a report dated 11 June 2013 from Dr G Altman, who is his is current treating psychiatrist, stated that CMDR Saxton was, at that time, only well enough, because of his psychiatric conditions alone, to work on a part-time basis, between eight and 20 hours per week.  The applicant agreed in his evidence that that accorded with how he felt at the time.  Most recently, Dr Altman provided a report dated 10 June 2015 in which he considered the applicant now to have deteriorated such that he is now no longer well enough to work 8 or more hours per week. 

27. Dr A Dinnen, consultant psychiatrist provided a report dated 5 November 2014, and gave evidence.  He noted that the VRB had placed some weight on “the requirement to have to work in a structured environment in Canberra and relocate again indicated that it was not his accepted disabilities alone which prevented him from and continuing undertake his Navy Reserve work”.  He said that such a response by CMDR Saxton was consistent with psychiatric opinion.  If CMDR Saxton had been able to work with ‘optimal environmental circumstances he may have been able to keep working much longer’.  In his evidence the doctor explained that CMDR Saxton told him he was going to be moved to Canberra and that he would be unable to cope with such a move.  Dr Dinnen considered this reluctance to be entirely consistent with the applicant’s inability to engage in social intercourse in the workplace.         

28. Dr S Smith, consultant psychiatrist, who examined the applicant at the request of the respondent, provided a report dated 15 December 2014 and gave evidence.  In his report he wrote that the applicant had told him he anticipated his posting would be terminated in line with usual practice of rotating Reserve positions every 3 years or so.  CMDR Saxton told him he had been hopeful of working in other parts of the Navy provided he had the opportunity to work from home.  While Dr Smith thought the applicant could work longer than 8 hours per week he added a caveat that the work would need to be undertaken in the applicant‘s home environment. 

29. In his evidence Dr Smith said he considered the applicant was able to work provided he could do so in relative isolation, by which he meant there were no other people and he could work in his own ‘safe’ environment without interacting with others.  He considered that it would be problematic for CMDR Saxton if he had to work in a ‘more socialised workplace’ which entailed interacting with others frequently. 

30. Dr R Chase, occupational physician, who examined the applicant at the request of the respondent, provided a report dated 29 December 2014, and gave evidence.  In his report he wrote that the applicant is not capable of working as an intelligence officer due to his accepted disabilities alone, in particular his PTSD.  He noted that CMDR Saxton was working between 4 and 7 hours per week doing a feasibility study for a property group.  

31. In his evidence he said that the applicant told him that, at the time he saw him, he was still working.  He said he was not surprised the applicant had since ceased work because the history he gave was poor –“chaotic”.  He understood that in his Navy work he applicant had worked from home.  He thought that any change that required him to go to the office more would have been difficult for him; interacting with people would be very stressful.  He regarded him as having no work capacity.

1. When both Dr Smith and Dr Chase saw the applicant in mid-December 2014 he indicated that, at that time, he was working for several hours a week.  This was contrary to CMDR Saxton’s evidence that he had ceased work on 9 December 2014.

   CONSIDERATION

2. The legislation requires that the material before the Tribunal must satisfy a number of tests.

3. Firstly, the Applicant's degree of incapacity from war-caused conditions must be at least 70% of the General Rate: s 24(1)(a) of the VEA.  There was no dispute that CMDR Saxton met this test.

4. Next, s 24(1)(b) of the VEA requires that an Applicant's incapacity from war-caused conditions, must be of such a nature as, of itself alone, to render him incapable of undertaking remunerative work for more than 8 hours a week, or, for the Intermediate Rate, either 50 per cent of what is ordinary worked in a particular kind of work or 20 or more hours per week: s 23(1)(b).  This test requires an examination of the veteran’s incapacity from his war-caused conditions to determine whether or not that incapacity is such, of itself alone, to render him incapable of undertaking remunerative work for more than 8 hours per week.  This does not require an examination of other causes that might render him unable to undertake remunerative work, but merely whether the war-caused disabilities, on their own, are sufficient to render him incapable of undertaking such work.

5. Section 28 provides assistance in determining whether a veteran is incapable of undertaking remunerative work by setting out the only matters that regard can be had to in deciding that question.

   What are CMDR Saxton’s trade and professional skills, qualifications and experience?

6. Section 24(1)(b) requires an examination of the veteran’s capacity to undertake any remunerative work which the veteran is physically and mentally able to carry out; the test is not limited to the type of work previously undertaken or for which the veteran is qualified by training or experience: Chambers v Repatriation Commission (1995) 129 ALR 219, where the Court said:

   A person's skills are not confined to those acquired informal training or by virtue of experience in particular employment. They include innate aptitude for tasks and abilities acquired or developed independently of employment or training. For example, a person may never have used computers at work and have no formal computer training. If that person has self-taught word processing skills, he or she nonetheless has skills that may well enhance opportunities for remunerative work. Similarly "qualifications" means (Oxford Shorter Dictionary and Macquarie Dictionary) "a quality or accomplishment which qualifies or fits a person for some office or function”. The word is not confined to qualifications obtained as the result of formal training or work experience. Again, a person's experience is not necessarily restricted to that acquired in employment or formal training.

7. From Dr Chase’s report, the evidence is that CMDR Saxton holds a Masters of Business Administration, has a Graduate Diploma in Fraud Investigation, a Graduate Certificate in Intelligence, a Diploma in Agriculture and he is a registered valuer.  He did a 2 month international executive program at Fontainebleau.  CMDR Saxton’s history was of a distinguished career as a Naval officer, in particular, in the Naval intelligence community, and with an emphasis on selection, retention and training of intelligence officers.  In recent years he had undertaken project work in relation to property developments.    

   What kinds of remunerative work might a person with CMDR Saxton’s skills, qualifications and experience reasonably undertake?

8. The test requires an examination of all of the different kinds of work that a hypothetical person with the relevant skills and experience of the veteran might reasonably undertake: Repatriation Commission v Buckingham [1996] FCA 1218. The remunerative work referred to in s 24(1)(b) accordingly has a broad meaning.

9. With his skills, qualifications and experience CMDR Saxton could reasonably undertake a great many roles eg, Naval officer, intelligence officer, HR/training manager, property valuer, and property development consultant.

   To what degree do CMDR Saxton’s war-caused conditions reduce his capacity to undertake the kinds of remunerative work referred to above?

10. In considering this question the Tribunal must disregard all of the Applicant's non-accepted disabilities or any other factors that might have an impact on his capacity to undertake those kinds of remunerative work and decide whether CMDR Saxton’s incapacity from his war-caused conditions alone prevent him from working more than 8 hours per week in any kinds of work that a person with his skills, qualifications and experience might reasonably undertake.

11. The Respondent contended that the applicant is capable of working 8 hours or more per week but less than 20 hours per week.  The Respondent relied on the reports of Drs Chase and Smith in this regard. 

12. All the doctors, however, including Drs Chase and Smith, were of the view that, because of his PTSD, CMDR Saxton could not work at a job that required his regular attendance in a traditional office environment.  In my view, all of the kinds of remunerative work identified above would, in the ordinary course, require attendance in a traditional office environment and the associated social interaction.  That he most recently worked ‘in an office’ of sorts does not militate against such a finding because the ‘office’ was in a dilapidated building where he worked alone, taking his dog, and where he could listen to music and exercise as he wished. 

13. I therefore find that of itself alone, CMDR Saxton’s PTSD renders him incapable of undertaking remunerative work for more than 8 hours a week.

14. The third test requires that the veteran's incapacity from war-caused conditions alone is preventing him from continuing to undertake his last remunerative work that he was undertaking and is therefore suffering a loss of salary or wages or earnings that he would not be suffering if he were free from that incapacity: s 24(2A)(e).  See Starcevich v Repatriation Commission (1987) 76 ALR 449.

15. In Flentjar v Repatriation Commission (1997) 48 ALD 1, the Full Federal Court considered s 24(1)(c) of the Act, in respect of the under-65 provisions . Adapting Flentjar to the present case, the following questions must be asked in relation to the third test:

    1.    What was the last paid work that CMDR Saxton was undertaking?

16. In Repatriation Commission v  Haskard [2002] FCA 1493 , Hill J discussed s.24(2A) in relation to over-65 applicants:

    26 When one comes to look at the provisions dealing with the Special Rate of pension, ie s 24, it is again clear that the veteran may be prevented from continuing to undertake remunerative work that he or she was undertaking, notwithstanding that the veteran may be capable of undertaking remunerative work for periods aggregating at least up to eight hours per week. 

    27 However, when one comes to the provision in question, s 24(2A), no reference at all is made to capacity for intermittent or part-time work of any kind, nor is there any provision which raises an implication that the veteran have some capacity to work intermittently or part-time.

    28 . . .It seems to me that in each case where language equivalent to s 24(2A)(d)is used, what is required is that the veteran, by reason only of the war-caused injury or disease or both, can no longer work in the particular job or occupation that the veteran has had. In none of the occasions where these words are used is there any implication one way or the other that the veteran would be incapacitated from working in any other job or occupation. There is nothing in these words which goes to the question of capacity to work. All that is in question is whether the veteran has been prevented from continuing to undertake the particular remunerative work that he had undertaken…

    31 Not surprisingly, in the case of a veteran over the age of 65, the tests are more stringent. The degree of incapacity must still be at least 70%, except in the case where the veteran is suffering from pulmonary tuberculosis and have a degree of incapacity which prohibits the veteran from working more than eight hours per week. Those requirements go to the degree of incapacity but do not go to the provisions of s 24(2A)(d) which provides that it is that incapacity which prevents the veteran from continuing to undertake remunerative work that the veteran last undertook. Whether the incapacity does so prevent the veteran from continuing to undertake the remunerative work is a matter of fact. Either the veteran is or the veteran is not prevented from continuing to undertake the last paid work he undertook. If that last paid work was as here, acting as a property valuer on his own account, the question to be asked is whether that last paid work has ceased or whether it has continued. On the facts here it has not ceased but continued. All that has happened is that the quantity of work has declined but that does not mean that the work itself has ceased.

17. In Grant v Repatriation Commission [1999] FCA 1629 the Full Federal Court in an examination of s24(2A)(d) held at [8] –[9]:

    8. In order for a decision maker to be satisfied that the criterion in s 24(2A)(d) has been met the decision maker must determine: 

    * the "remunerative work" that the veteran was last undertaking before he or she made the claim or application; 

    * whether the veteran is, at any time during the assessment period, because of incapacity from war-caused injury or war-caused disease or both, alone, prevented from continuing to undertake that remunerative work.

    9. Determination of the "remunerative work" referred to in s 24(2A)(d) requires the characterisation of the specific remunerative activity or activities that the veteran was last undertaking before making the claim or application rather than of the capacity in which that work was undertaken. The particular capacity in which the work was undertaken is dealt with as a separate criterion in s 24(2A)(g). Thus, whether or not the work was undertaken as an employee or as a self employed person is irrelevant to the characterisation to be given to that work under s 24(2A)(d). That conclusion follows from the definition of "remunerative work" in s 5Q, the recognition in s 24(2A)(g) that the capacity in which work is undertaken is to be treated as a matter separate from the work that was undertaken for the purposes of s 24 and is consistent with the purpose of s 24(2A) of providing for payment at the special rate where a person is prevented solely by war-caused incapacity from continuing to undertake the work that the veteran was last undertaking before making the claim or application. In our view it would be inconsistent with that purpose for the characterisation of that work to include, or to be made to depend upon, the capacity in which that work was undertaken. (Tribunal’s emphasis).

18. Remunerative work is defined in s.5Q(1) of the Act as including any remunerative activity.  On a plain reading it is clear that  s24(2A)(d) is concerned with any paid work the applicant was undertaking before he lodged his application for an increase in the rate of his pension. 

19. The applicant submitted that CMDR Saxton’s last paid work was his work with the Navy.  The respondent submitted, on the other hand, that over the years CMDR Saxton had consistently, although not necessarily continuously, worked 2 jobs – his Navy work, as well as other property project contract work, and that his ‘last paid work’ should not be limited to his Navy work.

20. I was referred by the respondent to Ireland and the Repatriation Commission [2004] AATA 890 which had referred extensively to Grant and Haskard.  In Haskard the applicant continued, albeit on a much reduced basis, his long-standing work as a podiatrist.  It was that continuation of this ‘last paid work’ that meant he was unable to meet s.24(2A)(d).  I do not think Ireland nor Thomson v Repatriation Commission [2000] FCA 204, to which I was also referred, are particularly useful, because in those cases there was only one ‘remunerative activity’, unlike in this matter.

21. The history of CMDR Saxton’s property project work appeared to be on the basis that he was engaged to undertake projects as they arose.  Evidence he gave to the VRB and his accounts of his civilian work in Dr Altman’s clinical notes suggest he had averaged around 10 hours per week from March 2012 with the developer.  Prior to June 2013 he also wrote that he was working between 10 and 15 hours per week for the developer.  He wrote that he had resigned from his significant Navy role and was working in a low key home-based support role for about 13 hours per week.  It appears then that before he left the Navy he was working virtually equally in his Navy and civilian roles.  It is therefore appropriate to consider his ‘last paid work’ was both the Navy and civilian work.

    2.     Is CMDR Saxton, by reason of his PTSD prevented from continuing to undertake that work?

22. The evidence was somewhat equivocal about when CMDR Saxton gave up work completely, although this is likely to have been in mid-December 2014, after he had seen Drs Chase and Smith who he told he was working.  All the medical evidence is to the effect that he cannot work in a role that requires attendance at a traditional office.  This eliminates his work ability for an ongoing Navy role, as this requirement was what was foreshadowed.  It did not, in my view, however, eliminate his job with the developer which offered a sufficiently sheltered work environment that he was able to work, at least from March 2014, according to his contract for up to 7 hours per week.  However, consistent with the medical evidence about his irritability and volatile mood to which Dr Dinnen referred, that work ended when he had a verbal altercation with his boss.  

23. I therefore find that CMDR Saxton was, from mid-December 2014 prevented from continuing his last paid work by virtue of his PTSD. 

    3.    If the answer to question 2. is “yes”, is CMDR Saxton’s incapacity from PTSD the only factor preventing him from continuing to undertake that work?

24. In Cavell v Repatriation Commission (1988) 9 AAR 534, Burchett J said further, at 539, that the true task of the Tribunal, in applying the “alone” test [in s 24(1)(c)] of the VE Act, was to make a practical decision whether the veteran’s loss of remunerative work is attributable to his service-related incapacities, and not to something else as well. It is a decision that should not be made upon nice philosophical distinctions, but with an eye to reality, and as a matter in respect of which common sense is the proper guide.

25. The correct approach to the “alone” test, and the potential relevance of other factors which might prevent a veteran from continuing to undertake the relevant remunerative work, was further explained in Repatriation Commission v Hendy (2002) 76 ALD 47 at [36] - [37] as follows:

    [36]     The tribunal’s task was to assess what the veteran probably would have done, if he had none of the service disabilities during the assessment period.  The requirement to consider ‘remunerative work that the veteran was undertaking’ does not mean a particular job with a particular employer but the substantive remunerative work that the Veteran had undertaken in the past.  That is the exercise that the tribunal undertook.  The tribunal was not bound to limit its consideration to the last employment that the veteran actually undertook.

    [37]     The consideration of what the veteran probably would have done, absent the service disabilities, is a hypothetical exercise.  The language of s24(1)(c) of the Act directs attention to the question of whether incapacity from the relevant condition alone prevents a veteran from continuing to undertake remunerative work.  The provision does not contemplate that other factors are only to be taken into account if they, of themselves, prevent the Veteran from working.  The decision-maker is required to take into account any factor that plays a part or contributes to a veteran being prevented from continuing to engage in remunerative work.  If a period of time elapses after a veteran ceases remunerative work and before the commencement of the assessment period, lack of recent work experience, time out of the workforce and increasing age will be relevant for consideration under s 24(1)(c) of the Act.  The decision-maker is required to consider the effect, contribution to, and relative weight to be attached to any or all of those factors during the assessment period. … (H)aving considered any or all of the factors which may have contributed to a veteran’s incapacity, the tribunal is then required to determine whether it is the veteran’s war-caused injury or war-caused disease, or both, alone which prevent the veteran from continuing to undertake remunerative work.

26. As discussed, I find that the limitation upon CMDR Saxton continuing to work is that he is unable to work in a traditional work environment, and that this, according to the medical evidence is because of his PTSD.  I do not consider his unwillingness to undertake a new Navy role which would require him to do so is a factor unrelated to his PTSD.  This approach is not inconsistent with Repatriation Commission v Richmond [2014] FCAFC 124 and Repatriation Commission v Watkins [2015] FCAFC 10 to which I was referred.

    4.    If the answer to question 2. and 3. is “yes”, is CMDR Saxton suffering a loss of wages or salary of his own account that he would not be suffering if he were free of his incapacity from PTSD?

27. Although there was no direct evidence as to a loss of wages or salary, I am prepared to accept that CMDR Saxton suffering a loss of wages or salary of his own account that he would not be suffering if he were free of his incapacity from PTSD.

    A further requirement for over 65s

28. Subsection 24(2A)(g) provides, in effect, that the veteran must have been working in the same role for a continuous period of 10 years before turning 65. 

29. The evidence was that CMDR Saxton commenced property consulting in about 2006 and worked for the developer from possibly about 2010, or for its predecessor from about 2008.  In any event, he has neither worked for the same employer (per s24(2A)(g)(i)) nor has been engaged on his own account (per s 24(2A)(g)(ii)), for a continuous period of 10 years that began before he turned 65.

    CONCLUSION

30. Consequently, the applicant, not having satisfied all the requirements for the Special Rate, cannot succeed.  The same considerations also preclude CMDR Saxton meeting the criteria for the Intermediate Rate.

    FURTHER OBSERVATIONS

31. Section 24 of the Act was amended by the insertion of sub-section (2A) by the Veterans’ Affairs (1994/95 Budget Measures) Legislation Amendment Act 1994.  An explanatory memorandum then published by the Veterans’ Affairs Minister records (p24):

    New paragraph (2A)(d) provides a test similar to that in the first part of the current paragraph (1)(c), but relates it to the veteran’s "last paid work". The paragraph defines "last paid work" to mean the remunerative work that the veteran was last undertaking before he or she made the claim or application. Thus, the veteran must, because of incapacity from war-caused injury or war-caused disease or both, alone, be prevented from continuing his or her last paid work.

32. In the Second Reading Speech when the above amending Act was introduced to the House of Representatives on 9 June 1994, the Minister for Finance on behalf of the Veterans’ Affairs Minister (Hansard page 1809) – in reference to the amendments to s 24 of the Act – advised the House:

    The second initiative relates to changes to the eligibility criteria for special and intermediate rate pensions. The former being known in the past as the TPI, or totally and permanently incapacitated, pension. The criteria for these higher rates of disability pension were changed in 1985 when it became clear that the outmoded terminology of the old Repatriation Act was enabling these pensions to be paid to veterans who had completed a full working life, after retiring on superannuation and other retirement benefits. This was never intended. The original intention of these higher levels of pension was to compensate those severely disabled veterans who could not work to support their families on their return from service. It was to be in only very rare cases that any veteran beyond the normal retirement age would be eligible for such rates of pension. 
    
    

    Subject to certain exceptions and to protection of existing special and intermediate pensions, the changes being made by this bill reinforce that intention. They will mean that these pensions will not normally be granted to veterans who are over 65. An exception to this rule will apply if the veteran was engaged in remunerative work after the age of 65 and that work was in the same business or employment in which the veteran had been working for 10 continuous years. This would include, for example, many in the farming community.

1. The policy of the Government recorded in the Second Reading Speech when the 1994 amendments were introduced make it clear that the intention with respect to access for over 65s to the Special Rate (and the Intermediate Rate) of pension was not to be ordinarily available to those who had led a full working life.  I accept that, possibly due to his very high level of fitness, and because he was able to carve out jobs which provided a work environment that met his needs, CMDR Saxton was not only able to work to the normal retirement age of 65, but engaged in fulfilling roles beyond that age.  However, as the Tribunal said in Ireland:

   [The Special Rate] however is not a "reward" for service but rather is intended to provide a modest form of income to veterans who are unable to work by reason of war-caused injuries.

   DECISION

2. The Tribunal affirms the decision under review.

I certify that the preceding 65 (sixty -five) paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member

......................[sgd]...............................

Associate

Dated 29 October 2015

Date(s) of hearing	17 and 18 August 2015
Solicitors for the Applicant	Legal Aid NSW
Solicitors for the Respondent	Department of Veterans Affairs