Simmons and Repatriation Commission (Veterans' entitlements)

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.