Simmons and Repatriation Commission (Veterans' entitlements) [2019] AATA 4362 (25 October 2019)
Division:VETERANS’ APPEALS DIVISION
File Number(s): 2018/5015
Re:Gregory Simmons
APPLICANT
Repatriation CommissionAnd
RESPONDENT
DECISION
Tribunal:Deputy President J Sosso
Date:25 October 2019
Place:Brisbane
The decision under review is affirmed.
........................................................................
Deputy President J Sosso
CATCHWORDS
VETERANS’ ENTITLEMENTS — Disability pension — Where the veteran is in receipt of the pension at 100% of the general rate — When the veteran suffers from a number of accepted and non-accepted conditions – Special rate pension – Whether ss 24(1)(c) or 24(2)(b) met – The alone test – War-caused disease or war-caused injury not sole cause of incapacity – Whether “genuinely seeking” work – Whether the accepted conditions are the substantial cause of the veteran’s inability to obtain work – Decision under review affirmed
LEGISLATION
Veterans’ Entitlements Act 1986
Repatriation Act 1920
CASES
Banovich v Repatriation Commission (1986) 6 AAR 113
Birtles v Repatriation Commission (1991) 33 FCR 290
Flentjar v Repatriation Commission (1997) 26 AAR 93
Forbes v Repatriation Commission (2000) 101 FCR 50
Fox v Repatriation Commission (1997) 45 ALD 317
McKenna v Repatriation Commission [1999] FCA 323
Smith v Repatriation Commission (2014) 220 FCR 452
Repatriation Commission v Hendy (2002) 76 ALD 47
Repatriation Commission v Richmond (2014) 226 FCR 21
Repatriation Commission v Smith (1987) 15 FCR 327
Repatriation Commission v Watkins (2015) 228 FCR 573
Repatriation Commission v Woodall [2015] FCA 243
Sheehy v Repatriation Commission (1996) 41 ALD 205
Starevich v Repatriation Commission (1987) 18 FCR 221
Watkins v Repatriation Commission (2014) 142 ALD 106REASONS FOR DECISION
Deputy President J Sosso
25 October 2019
INTRODUCTION
Mr Gregory Kenneth Simmons (the veteran) seeks a review of a decision of the Veterans’ Review Board (VRB) of 29 May 2018 which affirmed a decision of the Repatriation Commission (the Commission) continuing the veteran’s disability pension at 100% of the General rate – Exhibit 1 T143 pp. 575 - 581.
At the time of the Hearing the veteran was 56 years of age. He enlisted in the Australian Army on 29 July 1980 and was medically discharged on 30 March 1987 – Exhibit 1 T135 p. 512.
The veteran’s period of service constitutes eligible service under the Veterans’ Entitlements Act 1986 (the Act).
Subsequent to his discharge, the veteran was engaged in civilian employment. The veteran outlined the various positions he filled and employers he worked for in an Employment Report dated 22 June 2011 – Exhibit 1 T110 p. 418:
Position Employer Duration of Employment Reason for Ceasing Carpet cleaner Aqua Jet Mid 1988 – Mid 1988 Lifting and movement too painful Storeman J. Penny’s Mid 1988 – Early 1989 Got better job Storeman International Fitters Early 1989 – Mid 1989 Dishonest employer Storeman Truckline Mid 1989 – Late 1990 Got a strain lifting Bus driver BCC Late 1990 – 1995 In pain, too much stress
The veteran also claimed that after ceasing employment with the Brisbane City Council he sought employment with P…
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- Case
- [2019] AATA 4362
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the Tribunal were whether the veteran's accepted conditions were the substantial cause of their inability to obtain work, and whether they were "genuinely seeking" work, as required by sections 24(1)(c) and 24(2)(b) of the Act. The Tribunal also considered the distinction between section 24(1)(b), which relates to total incapacity for remunerative work, and section 23(1)(b), which contemplates partial or intermittent capacity for work.
The Tribunal noted that section 24(1)(b) requires a veteran to be incapable of undertaking remunerative work for periods aggregating more than eight hours per week, whereas section 23(1)(b) allows for capacity to work up to 50% of full-time hours or more than 20 hours per week. While the veteran's total and permanent incapacity under section 24(1)(b) was not pressed by the Commission, the Tribunal proceeded on the assumption that this limb was met, given the beneficial nature of the legislation. However, the Tribunal found that the veteran had not satisfied the first limb of section 24(1)(c), which requires the accepted conditions to be the substantial cause of the inability to obtain work.
Consequently, as the first limb of section 24(1)(c) was not met, it was unnecessary for the Tribunal to consider the second limb concerning whether the veteran was genuinely seeking work. The decision under review was affirmed.
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
At the conclusion of the Hearing, leave was given to the parties to provide written submissions rather than an oral summing-up. The Tribunal received the veteran’s summing-up in the form of an email dated 18 July 2019. The Commission provided the Tribunal with a document entitled “Respondent’s Submissions” (RS) dated 5 August 2019.CONSIDERATIONCapacity for work – ss 24(1)(b), 23(1)(b) and 28 As Hill J observed in Wright and Repatriation Commission (2005) 144 FCR 302 at [15]/308 ss 24(1)(b) and (c) “pose different hurdles which the veteran must surmount”. His Honour explained that s 24(1)(b) “goes to the nature and level of incapacity by which ability to undertake remunerative work is to be assessed. If the character and effect of the incapacity is such as to render the veteran incapable of undertaking remunerative work for a period aggregating more than eight hours per week then s 24(1)(b) is satisfied.” As was explained by Buchanan J in Smith, the primary difference between ss 24(1)(b) and 23(1)(b) is the amount of remunerative work a veteran is rendered incapable of undertaking. Rares J observed in Smith (at [8]/455) the evident intention of s 24(1)(b) “is to define when a veteran is totally and permanently incapacitated for the purposes of determining whether he or she can qualify for an increase in the rate of pension.” In contradistinction s 23(1)(b) contemplates that a veteran is capable of working on a part-time basis or intermittently. Consequently s 24(1)(b) contemplates that a veteran is incapable of undertaking remunerative work for periods aggregating more than 8 hours per week. In contradistinction, s 23(1)(b) contemplates a veteran being either able to undertake remunerative work for 50% of the time ordinarily worked by persons in work of that kind on a full-time basis or being capable of undertaking work for more than 20 hours per week – s 23(2). It is important to note that the task of the Tribunal is to make a determination on the veteran’s capacity to engage in remunerative work during the assessment period. The VRB in the reviewable decision was not satisfied that the veteran was totally and permanently incapacitated from his accepted conditions – Exhibit 1 T143 p. 578. This issue was not pressed by the Commission either in its written submissions (RSFIC pp. 14 – 15) or during the Hearing. Instead, the Commission has focused on whether the veteran has satisfied the requirements of s 24(1)(c). In the absence of any submissions on this matter, the Tribunal, in accordance with the beneficial nature of the legislation, will proceed on the assumption that the requirements of s 24(1)(b) are met.Prevented from undertaking remunerative work – ss 24(1)(c), s 23(1)(c)Introduction The drafting of the provisions relating to veterans’ pensions is opaque and poses numerous difficulties for a decision-maker. The copious jurisprudence on these provisions highlights the errors that often occur when attempting to apply these provisions.