Simmons and Repatriation Commission (Veterans' entitlements) - [2023] AATA 2720

Simmons and Repatriation Commission (Veterans' entitlements) [2023] AATA 2720 (25 August 2023)
Division:VETERANS' APPEALS DIVISION
File Number:2019/3211
Re:Malcolm Simmons
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Member D Mitchell
Date:25 August 2023
Place:Brisbane

The Tribunal sets aside the decision under review and in substitution decides that the Veteran is entitled to be paid the pension at the Special Rate from 27 October 2018.
........................[SGD].............................
Member D Mitchell

Mr Malcolm Simmons (the Veteran) made a claim for disability pension for ’osteoarthritis of the right ankle, osteoarthritis of the left knee and diabetes mellitus’ received by the Respondent on 6 June 2016.[1]
[1] Exhibit 1, T Documents, T6, pages 19-28, Claim form.
On 22 August 2016, the Respondent issued a determination accepting the Veteran’s claim for osteoarthritis of the right ankle and osteoarthritis of the left knee, finding that his diabetes mellitus was not related to service and continued his pension at 100% of the General Rate.[2]
[2] Exhibit 1, T Documents, T15, pages 102-108, Determination.
The Veteran’s request for review of that decision was received by the Respondent on
[3] Exhibit 1, T Documents, T16, page 111, VRB Decision.
19 August 2017.[3]
On 26 April 2018, the Veterans’ Review Board (VRB) set aside the determination of
22 August 2016 and accepted the Veteran’s diabetes mellitus as defence-caused from
[4] Exhibit 1, T Documents, T16, pages 109-118, VRB Decision.
19 February 2017 and remitted assessment of pension back to the Respondent.[4]
On 21 September 2018, the Respondent determined that from 19 February 2017, the Veteran’s pension was to be paid at 100% of the General Rate.[5]
[5] Exhibit 1, T Documents, T5, pages 12-18, Determination.
On 26 October 2018, the Veteran sought review of that decision.[6]
[6] Exhibit 1, T Documents, T3. Pages 1-10 VRB Application for Review.
On 1 April 2019, the VRB issued a reviewable decision affirming the Respondent’s determination of 21 September 2018.[7]
[7] Exhibit 1, T Documents, T2, page B2, VRB Decision.
On 5 June 2019, the Veteran made an Application for Review of a Decision to the Tribunal seeking review of the VRB decision.[8]
[8] Exhibit 1, T Documents, T1, pages A-A2, Application for Review.
Since making an application to the Tribunal the Veteran has had osteoarthritis right knee, hypertension, erectile dysfunction, diverticular disease of the colon with colovesicular fistula, duodenitis, diabetic neuropathy, obstructive sleep apnoea and gastro-oesophageal reflux disease accepted as being service-caused from 27 October 2018.[9]
[9] Exhibit 18, List of Accepted Conditions.
From April 2019, the Veteran has been paid the pension at the Extreme Disablement Adjustment Rate.[10]
[10] Exhibit 6, Determination.
BACKGROUND
The Veteran enlisted in the Australian Army on 18 May 1971, serving mainly as a Clerk Admin. He discharged in May 1992 with the rank of Warrant Officer, Class 2. The Veteran served with the Army Reserve from 1992 to 1998.[11]
[11] Exhibit 21, Veteran’s Submission filed on 2 May 2021.
The Veteran turned 65 in April 2019.
The Veteran provided the following…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] AATA 2720
Decision Date: 25 August 2023

CaseChat Overview and Summary

This matter concerned an appeal by a veteran against a decision of the Repatriation Commission regarding their eligibility for a special rate pension. The veteran, who had served in the Australian Army, was seeking to have their pension paid at the special rate, which requires a determination of total and permanent incapacity. The core of the dispute revolved around whether the veteran's inability to undertake remunerative work was solely caused by service-related conditions.

The legal issues before the Tribunal were whether the veteran met the criteria for the special rate pension under section 24 of the *Veterans' Entitlements Act 1986*. Specifically, the Tribunal had to determine if the veteran was totally and permanently incapacitated, meaning unable to work more than eight hours a week, due to service-caused incapacity alone. Furthermore, the Tribunal needed to assess if the veteran was prevented from continuing remunerative work they were undertaking, and if this prevention resulted in a loss of salary or wages that would not have been suffered if free of the incapacity. If not, the Tribunal had to consider if the veteran, not having attained 65, had been genuinely seeking remunerative work and if the service-caused incapacity was the substantial cause of their inability to obtain such work.

The Tribunal reasoned that while the veteran had a significant number of service-caused conditions, the "alone test" under section 24(1)(c) was not met. This meant the veteran was not prevented from continuing remunerative work solely by their service-caused conditions. However, the Tribunal then considered the ameliorating provisions of section 24(2)(b) of the Act. Applying the principles from *Smith v Repatriation Commission*, the Tribunal found that the veteran's genuine efforts to engage in remunerative work, which would have continued but for their incapacity, and where that incapacity was the substantial cause of their inability to obtain work, satisfied the requirements.

Consequently, the Tribunal set aside the decision under review. In substitution, the Tribunal decided that the veteran was entitled to be paid the pension at the Special Rate from 27 October 2018, the date on which all the requirements of section 24(1) of the Act were found to have been met.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

From April 2019, the Veteran has been paid the pension at the Extreme Disablement Adjustment Rate.[10][10] Exhibit 6, Determination.BACKGROUND The Veteran enlisted in the Australian Army on 18 May 1971, serving mainly as a Clerk Admin. He discharged in May 1992 with the rank of Warrant Officer, Class 2. The Veteran served with the Army Reserve from 1992 to 1998.[11][11] Exhibit 21, Veteran’s Submission filed on 2 May 2021. The Veteran turned 65 in April 2019. The Veteran provided the following details of his employment history post discharge:[12][12] Exhibit 12, Employment History Questionnaire. The Veteran outlined that he was last employed by the RSL in February or March 2013 and ceased that employment in October or November 2013 when he was granted the Centrelink disability support pension (DSP).[13][13] Exhibit 12, Employment History Questionnaire. The Veteran volunteered as the live-in adult presence and supervisory person with the at-risk Homeless Hostel operated by Community Transition Centre (CTC) in Kingaroy[14] between April 2013 and September 2020.[14] Exhibit 7, Veteran’s submission in reply to the Respondent’s Statement of Facts, Issues and Contentions. On 6 January 2022, the Respondent wrote to the South Burnett CTC HQ requesting information in relation to the Veteran’s engagement with CTC. The Respondent provided the following together with a form to complete:[15]I am assessing a request for review by the Administrative Appeals Tribunal (AAT) of a decision of the Repatriation Commission pursuant the Veterans' Entitlements Act 1986. [The Veteran] lodged the review application. A specialist medical report notes; [The Veteran] initiated voluntary work in 2013 at the Community Transition Centre (CTC). This role involves [the Veteran] overseeing young adults. [The Veteran] provides a supervisory role between 5:00pm and 8:30am. In this role he is given accommodation and meals. In this role, [the Veteran] is predominantly responsible for the supervisory role. Should anything happen, [the Veteran] contacts other people for assistance including the police. To enable me to make a decision in this matter, I require additional information concerning [the Veteran’s] employment, confirming his job title, duties and responsibilities, term of employment and ours worked including a copy of the relevant award or individual contract of employment. I would appreciate your assistance in completing the enclosed employer report.[15] Exhibit 15, Employment Information request. The completed form, signed and dated, 28 January 2022, provided the following:[16][16] Exhibit 15, Completed Employment Information Form.1.What is/was [the Veteran’s] period of employment with the employer to whom this letter is addressed?21/04/13 to 28/09/20…4. What is/was [the Veteran’s] trade or profession?Volunteer Youth Hostel Lead Tenant5. How would you describe the duties which [the Veteran] performed?Light/skilled6. How many hours (on average) did/does [the Veteran] work per week?Volunteer – 507. Is/was [the Veteran’s] employment: Permanent Full-time, Permanent Part-time, Casual Full-time or Casual Part-time?Not completed.8. Has the number of working hours been reduced at any time?No9. Were there any specific employment provisions made for any disabilities or special needs of [the Veteran]?We worked with [the Veteran’s] abilities…14. What was the reason for the termination of employment?Voluntary retirement/Redundancy…LEGISLATIVE OVERVIEW

Evidence

Evidence Before The Court

The issue before the Tribunal is whether the Veteran is eligible for payment of the pension at the Special Rate. This requires determining:(a)What is the assessment period?(b)Whether the Veteran:(i)made a valid application under section 14 of the Act for an increase in the rate of pension that he was receiving (section 24(1)(aa) of the Act); (ii)had not yet turned 65 when the application was made (section 24(1)(aab) of the Act); and(iii)was being paid the disability pension at a rate equal to or greater than 70% of the General Rate of pension (section 24(1)(a)(i) of the Act). (c)If the answer to (b) is yes, whether the Veteran is totally and permanently incapacitated, that is unable to work more than eight hours a week, due to service-caused incapacity alone (section 24(1)(b) of the Act); and (d)If the answer to (c) is yes, whether the Veteran by reason of incapacity from his service-caused conditions, alone, is prevented from continuing to undertake remunerative work that he was undertaking and by reason of being prevented from continuing to undertake remunerative work, suffered a loss of salary or wages, or of earnings, that he would not be suffering if he was free of that incapacity (section 24(1)(c) of the Act); and(e)If the answer to (d) is no, whether the Veteran had not been engaged in remunerative work, had been genuinely seeking to engage in remunerative work that he would, but or the service-caused incapacity, be continuing so to seek to engage in remunerative work and that, that incapacity is the substantial cause of his inability to obtain remunerative work in which to engage (section 24(2) of the Act); and(f)If the answer to (d) or (e) is yes, from what date should the Veteran be paid the pension at the Special Rate?MEDICAL EVIDENCE The Veteran has the following conditions accepted as being service-caused under the Act:[25][25] Exhibit 18, List of Veteran’s Accepted Conditions and Exhibit 22, Respondent’s Submissions on Special Rate, pages 4-5, paragraph 16.(a)Lumbar spondylosis.(b)Cervical spondylosis.(c)Chondromalacia patellae. (d)Osteoarthritis of the right knee.(e)Osteoarthritis of the left knee. (f)Osteoarthritis of the right ankle.(g)Dysthymic disorder.(h)Diabetes mellitus.(i)Diabetic neuropathy.(j)Obstructive sleep apnoea.(k)Duodenitis.(l)Diverticular disease of the colon with colovescicular fistula.(m)Erectile dysfunction.(n)Solar keratosis.(o)Bilateral carpal tunnel syndrome.(p)Gastro-oesophageal reflux disease. (q)Hypertension.(r)Tinnitus. The Veteran’s following conditions were not accepted as being service-caused under the Act:[26](a)Aquagenic urticaria.(b)Nasal fracture.(c)Haemorrhoids.(d)Sensorineural Hearing Loss.(e)Peripheral neuropathy both hands.(f)Cubital tunnel syndrome left arm.(g)Adjustment Disorder with Mixed Anxiety and Depressed Mood.[26] Exhibit 18, List of Veteran’s Rejected Conditions. The Tribunal notes that the corresponding list found at Exhibit 22, Respondent’s Submissions on Special Rate, page 5, paragraph 17 is not consistent with that provided in Exhibit 18.

Decision

Reasons for decision

Consistently with the decision in Smith and section 19 of the Act the Tribunal finds that the Veteran is eligible to be paid the pension at the Special Rate pursuant to section 24 of the Act from 27 October 2018, being the date on which the Tribunal found that he first met all requirements of section 24(1) of the Act. DECISION The Tribunal sets aside the decision under review and in substitution decides that the Veteran is entitled to be paid the pension at the Special Rate from 27 October 2018.

Ratio Decidendi

Legal Principle Established

The Respondent did not contend that the Veteran did not experience a loss of salary, wages or earnings. There is no evidence to suggest that he did not suffer a loss due to his inability to engage in remunerative work. As such, given the beneficial nature of the Act, the Tribunal on balance is reasonably satisfied that the Veteran’s incapacity which prevents him from continuing to undertake remunerative work causes such a loss that he would not suffering that loss if he was not incapacitated.Ameliorating considerations provided by section 24(2)(b) of the Act Based on the findings outlined regarding section 24(1)(c) of the Act when considered together with section 24(2)(a) of the Act, the Tribunal is led to a finding that the Veteran did not meet the alone test. The Tribunal has found that the Veteran was not prevented from continuing to undertaken remunerative work that he was undertaking by reason of incapacity from his service-caused conditions alone and as such could not be taken to be suffering a loss of salary or wages, or of earnings on his own account by reasons of that incapacity. Having made such a finding, the Tribunal must consider the ameliorating requirements of section 24(2)(b) of the Act which provides that for the purpose of section 24(1)(c) of the Act:(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. In Smith, Buchanan J stated:[96]49 Section 24(2)(b) provides some relief from the potentially harsh consequences of this arrangement. It applies where remunerative work is not being done. In my view, it accommodates a cessation of earlier remunerative work, as well as a circumstance where a veteran has not worked since injury, or since the development of the incapacity. In all those circumstances, in my view, a veteran may demonstrate genuine efforts to obtain work which are made fruitless by the incapacity. That is, the efforts would continue but for the incapacity and the incapacity is the substantial cause of the inability to obtain work. Those circumstances are taken to satisfy the basic test in s 24(1)(c) of being actually prevented by the incapacity from continuing remunerative work. Economic loss (i.e. loss of the opportunity for economic gain by way of income) follows naturally enough from this scenario. The search is for remunerative work. The economic consequence of failure to obtain it is the result of the incapacity.(Emphasis in the original)[96] Smith v Repatriation Commission [2014] FCAFC 53 at [49]. Confirmed by a differently constituted Full Federal Court in Repatriation Commission v Richmond [2014] FCAFC 124 at [66].