Soul and Repatriation Commission (Veterans' entitlements)

[2017] AATA 2780

Soul and Repatriation Commission (Veterans' entitlements) [2017] AATA 2780 (22 December 2017)

Division:VETERANS' APPEALS DIVISION

File Number:           2016/3352

Re:Stephen Soul

APPLICANT

AndRepatriation Commission

RESPONDENT

DECISION

Tribunal:Deputy President Dr P McDermott RFD

Date:22 December 2017  

Place:Brisbane

I set aside the decision under review and substitute the decision that the applicant is entitled to pension at the special rate with effect from the date of lodgement of his application on 1 July 2014.

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Deputy President Dr P McDermott RFD

CATCHWORDS

VETERAN’S ENTITLEMENTS – Rate of pension – Whether Applicant eligible for special rate – Whether Applicant eligible for intermediate rate – Consideration of “Alone test” in ss 23 and 24 – Evidence insufficient to satisfy alone test – Ameliorating provisions apply – Evidence indicates applicant genuinely seeking to engage in work before assessment period – Applicant entitled to payment at the special rate – Decision under review set aside and substituted.

LEGISLATION

Veteran’s Entitlements Act 1986 ss 19, 23, 24, 28, 120

CASES

Repatriation Commission v Watkins [2015] FCAFC 10

Repatriation Commission v Richmond (2014) 226 FCR 21

Repatriation Commission v Hendy (2002) 76 ALD 47

Repatriation Commission v Butcher (2007) 94 ALD 364

Smith v Repatriation Commission (2014) 142 ALD 410

REASONS FOR DECISION

Deputy President Dr P McDermott RFD

22 December 2017

BACKGROUND

1. The applicant lodged a claim for an increase in disability pension under the Veterans’ Entitlements Act 1986 (“the Act”) dated 19 June 2014 for the conditions of ‘general anxiety/depression’ and ‘skin cancers/disfigurement’.[1]

   [1] Exhibit A, T-documents, T104 at p. 340-341

2. The respondent made a decision on 31 October 2014 accepting that the applicant’s solar keratosis was defence caused, rejecting the claim for a panic disorder condition and finding that the applicant’s claimed psychiatric condition was not defence caused and granting a disability pension to the applicant at 100% of the General Rate (i.e. at the same rate granted to the applicant since 28 November 2005).[2]

   [2] Exhibit A, T-documents, T111 at p. 362-368

3. The applicant applied for review of this decision on 18 December 2014.[3]

   [3] Exhibit A, T-documents, T113 at p. 372

4. The Veteran’s Review Board (the “VRB”) made a reviewable decision on 12 April 2016 in which it varied the original decision with regard to the diagnosis of the applicant’s psychiatric condition, altering this from ‘panic disorder’ to ‘anxiety disorder (in remission)’ and ‘panic disorder’, set aside the original decision and accepted the applicant’s psychiatric conditions as defence caused, and affirmed the original decision with regard to the granting of disability pension at 100% of the General Rate.[4]

   [4] Exhibit A, T-documents, T128 at p. 507-518

5. On 21 June 2016 the applicant applied for review of the VRB decision with this Tribunal to seek payment of the disability pension at the special rate.[5]

   [5] Exhibit A, T-documents, T2 at p. 3-4

6. The applicant is currently in receipt of a pension for a number of conditions including ischaemic heart condition which was accepted as defence-caused dating from 2003.[6]

   [6] Exhibit A, T-documents, T80 at p. 271

7. The hearing of this matter did not proceed and the parties agreed for the matter to be heard on the papers.  

   SERVICE

8. The applicant was a member of the Royal Australian Air Force (the “RAAF”) after enlisting on 27 February 1968 to 26 February 1977. He then reenlisted in the RAAF, commencing on 20 May 1985 and resigning on 5 November 1989.[7]

   [7] Exhibit A, T-documents, T4 at p. 8-9

9. The applicant performed eligible defence service from 7 December 1972 to 26 February 1977 and from 20 May 1985 to 5 November 1989.[8]

   [8] Exhibit A, T-documents, T4 at p. 8-9

   LEGAL FRAMEWORK

10. To be eligible for pension at the special rate, the requirements of section 24 of the Veterans’ Entitlement Act 1986 (Cth) (“the Act”) must be met. Section 24 provides:

    24 Special rate of pension

    (1)This section applies to a veteran if:

    (aa) 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

    (aab) the veteran had not yet turned 65 when the claim or application was made; and

    (a) …

    (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; …

    (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; …

    (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)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.

11. To be eligible for pension at the intermediate rate, the requirements of section 23 of the Act must be met. Subsections 23(1)(b) and s 23(2) of the Act provide:

    23 Intermediate rate of pension

    (1)This section applies to a veteran if: …

    (b) the veteran’s incapacity from war-caused injury or war-caused disease, or both, is, of itself alone, of such a nature as to render the veteran incapable of undertaking remunerative work otherwise than on a part-time basis or intermittently; ...

    (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

12. The references in sections 23 and 24 of the Act to a “war-caused” injury or a “war-caused” disease is, by reason of the application of section 73 of the Act, to be read as a reference to a “defence-caused” injury or a “defence-caused” disease.

13. Section 28 of the Act provides:

    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).

14. Section 19(5C)(a) of the Act provides that the rate of pension payable to the applicant must be determined during the “assessment period”. Section 19(9) of the Act defines the assessment period, in relation to a claim or application relating to a pension, as the period starting on the application day and ending when the claim or application is determined.

15. Therefore the assessment period in relation to this matter commenced on 1 July 2014 when the applicant made his claim and ends on the date when the claim is finally determined.

16. The standard of proof required is that outlined in section 120(4) of the Act whereby the Tribunal must determine any issues to its reasonable satisfaction.

17. Section 120(4) of the Act provides:

    (4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re‑assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.

    EVIDENCE

    Dr Brian Witt, General Practitioner

18. Dr Witt stated in his communication to DVA in 2014 that he has treated the applicant as a sporadic patient between 2001 and 2014.[9]

    [9] Exhibit A, T-documents, T107 at p. 347

19. Dr Witt’s records indicate that the applicant was medicated in 2014 for anxiety and ischaemic heart disease, for which there was a script last issued in 2003.[10]

    [10] Exhibit A, T-documents T107 at p. 349

20. Dr Witt submitted details of the applicant’s conditions in the applicant’s initial application to DVA on 19 June 2014, stating in relation to the disability and medical diagnosis of ‘General anxiety/disorder’:[11]

    “[Completed by Dr Witt] Basis for diagnosis: Worrying a great deal about different things. >6 months. Worse when sleep disturbance. Tired. Incremental concern re ischaemic heart disease with knowledge of blocked coronary arteries. At recent cardiac review restless, aches, poor concentration. Easily annoyed. Worrying ++…

    “[Completed by the applicant] When did you become aware of the signs and symptoms of the disability, or aggravation of the disability? December 1989….

    “[Completed by Dr Witt] When did the veteran first consult you for this condition? 19/6/2014 & 8/11/2001.”

    [11] Exhibit A, T-documents, T104 at p.340

21. There is no express evidence provided by Dr Witt as to the impact of the applicant’s conditions on his capacity to seek and sustain work between 2001 and 2014.

    Professor Spain Uneanong, Psychiatrist

22. Professor Uneanong completed two reports for the purposes of the applicant’s claim, one in 2014 and a further report in 2015.

23. Professor Uneanong’s first report dated 22 September 2014[12] outlines the applicant’s self-reported symptoms and his psychiatric condition and makes an assessment of his impairment.

    [12] Exhibit A, T-documents, T109 at p. 357

24. Professor Uneanong states that the applicant’s anxiety arises from his accepted ischaemic heart condition and that the applicant exhibits persistent symptoms of moderate, and on some occasions, severe anxiety which require medication to ameliorate the symptoms. Professor Uneanong notes that the applicant also has, among other things, “angina on exertion, chest pains, tingling in his extremities, shortness of breath, sleeplessness.”[13]

    [13] Exhibit A, T-documents, T109 at p. 357

25. The report goes on to outline that the applicant is in no fit condition to work:

    “[The applicant] states that, despite his psychiatric and physical condition, he felt obligated to return to work as soon as possible after his hospitalization and as he had a dependent wife and three teenaged children, and financial obligations to meet. He resumed work for the second semester of 1999 on agreement his workload was reduced from 200 to 60 students and he struggled through 2000 without medication but due to mounting pressure from anxiety he ceased to work after first semester 2001. He has not worked since. He did obtain employment with the Universities Admission Commission in 2005 and was able to complete the initial two week course of instruction but was forced to resign on the second day of work due to his overwhelming anxiety which verged on panic. His feelings of anxiety arose due to stress over his inability to perform his tasks at the required level. He has continued to struggle and to apply himself to ordinary household tasks and has difficulty in interacting with people in authority and those who impose on him to meet standards of behavior and compliance. Importantly, his anxiety symptoms increase in severity and often verge on panic when he is placed in stressful, confronting situations.”

26. Professor Uneanong concludes his 2014 report by stating that he is able to confirm a diagnosis that the applicant has a panic disorder.

27. Professor Uneanong’s further letter dated 1 May 2015 confirms that the applicant has experienced symptoms of anxiety disorder since 1998 when he suffered from a heart attack.

28. Professor Uneanong opines that:

    “[The applicant’s] anxiety is triggered spontaneously and unpredictably with symptoms of breathlessness, palpitations, sweating, ear ringing, tingling fingers, apprehension and feelings of foreboding.

    He is unable to prevent or induce their onset and thus his condition will impact his daily functioning and render him unable to work.
    I diagnose the patient’s condition as moderate to severe anxiety disorder which developed from 2005 into a panic disorder.”

    Dr Sarah Lockley, General Practitioner

29. Dr Lockley completed a work ability report for the applicant which accompanied the applicant’s claim for an unrelated claim for pension made on 13 January 2006. In Part C of the report at the heading “Permanent incapacity details” Dr Lockley states the following:[14]

    “1. Lecturer at Southern Cross University. Collapse during fun-run – AMI detected à angioplasty/stenting LAD. Attempted to return to work as contractor (restricted hours), symptoms of breathlessness and anxiety associated with repeat occurrence.

    2. Also worked during 2000 Olympics (part-time) à anxiety associated [care of] repeat/recurrence of occlusion/AMI, shortness of breath, fatigue.”

    [14] Exhibit A, T-documents, T93 at p. 309

30. Dr Lockley then goes onto state that she has not provided a report in support of Dr Soul’s retirement on medical grounds, but responds to the question “Do you consider Mr Soul [sic] is presently able to work?” with “Less than 8 hours per week”.

31. In response to the question “If Mr Soul [sic] is unable to continue the type of work he was previously undertaking, do you consider he would be able to carry out any other type of work?”, Dr Lockley ticks the answer “No”. She then states her reasons as follows:

    “Stress associated with work (emotional/physical) may cause recurrence of (+ chest tightness) anxiety. Also suffers breathlessness with limited physical exertion – potentially exacerbated by emotional stress”

32. Dr Lockley then goes on to answer the question “Are there any other comments you would make regarding any other factors, including psychological aspects, that affect the claimant’s ability to work?” as follows:[15]

    The sudden onset of the cardiac event (AMI) has had a profound added effect on confidence & ability to perform under stress (ie. Due to fear of repeated sudden collapse/AMI).”

    Other evidence

    [15] Exhibit A, T-documents, T93 at p. 310

33. There are a number of other pieces of evidence that are relevant to the applicant’s claim for an increase in the pension rate.

34. There are a number of contemporaneous medical reports, compiled for the purposes of the applicant’s previous claims with DVA that provide some idea of the impact of the applicant’s condition and the effect the applicant’s conditions had on his ability to seek work in the years preceding his application in 2014. There are additionally notations made by the applicant in claim forms for previous service related conditions, as well as in a number of lifestyle questionnaires completed by the applicant for the purposes of those claims, that contain pertinent information.

35. The lifestyle questionnaire completed by the applicant on 28 June 2001 stated he was not currently employed and in response to the question “Why did you stop working?” the applicant noted “age initially but forced to cancel plans to re-enter work force due to ill health”. This questionnaire was completed in relation to a prior service-related claim for perianal abscess condition.[16]

    [16] Exhibit A, T-documents, T50 at p. 145

36. Associate Professor Mattick completed a report dated 26 October 2001 after examination of the applicant and made the following relevant remarks:[17]

    “He denied any significant phobias and denied suffering panic attacks or symptoms of generalised anxiety”

    [17] Exhibit A, T-documents, T62 at p. 178

37. In a claim made for heart disease, undated but received by DVA on 23 August 2003, the applicant reported that he was not currently employed and in response to a question about the impact of his claimed condition on his ability to seek employment he stated that he was “unemployable”.[18] The heart condition of the applicant is an accepted condition by the DVA after the decision of this Tribunal under section 42C of the Administrative Appeals Tribunal Act 1975 dated 28 November 2005.[19]

    [18] Exhibit A, T-documents, T73 at p. 235

    [19] Exhibit A, T-documents, T80 at p. 271

38. On 12 December 2005 the applicant submitted a claim for increase in disability pension, in which he states that he was not currently employed and that his “last full time job was 2000” and that he had ceased working in 2000 due to ill health, that is, heart disease. The applicant further stated that he did not intend to seek employment on the basis that he was “unemployable”. He stated in response to question 33 “Did your disabilities stop you working in any way?” that he was “no longer able to work. Employer unwilling to accept risk. Future likely appointments not proceeded with (overseas).” In the same claim form at question 35 the applicant goes onto state that heart disease ended his career, family and social outlets, and he outlines the ways in which his life was changed by heart trauma. There is no mention of anxiety as a part of that submission.[20]

    [20] Exhibit A, T-documents, T82, at p. 282-283.

39. In a claim submitted on 13 January 2006, the applicant stated that he ceased employment on 1 November 2000 due to illness and that his last employment was as a contract lecturer from 1990 to 2000 and as a contractor during July 2000 to November 2000.[21] In the same claim, the applicant submitted two undated statements containing the following information:

    “Following onset of heart trauma and surgery I attempted to continue at work with university for 1999 with reduced workload. The university was reluctant for me to continue and my contracted hours fell to a point where work was still stressful but unviable.

    I attempted to discontinue work and… attempted to find other, less stressful work with SOCOG (the Olympic Games) during late 2000 but found I was unable to cope and decided to discontinue working in favour of trying to remain alive. I have not worked since 2000”[22] and;

    “[I] was unable to continue [working] after initially returning to work… I have not worked since November 2000 as I have been unable to cope with the demands/stress of working… [I am] unwilling to gamble with own life by working or place further unnecessary stress on my coronary system.”[23]

    [21] Exhibit A, T-documents, T90 at p. 298-299.

    [22] Exhibit A, T-documents, T91, at p. 304.

    [23] Exhibit A, T-documents, T92, at p. 305-306.

1. As a part of this claim in 2006, the applicant submitted the work ability report completed by Dr Lockley referred to above which outlined the impact of the applicant’s heart condition, and the resultant stress and anxiety, on his ability to work.

   SUBMISSIONS

2. The respondent accepted that the applicant satisfies section 24(1)(a), 24(1)(aa), 24(1)(aab) and 24(1)(b) of the Act: the application was lodged under section 14 and 15 of the Act, at the time of lodgement the applicant was not yet 65 years old, the applicant suffers from a degree of incapacity of at least 70% and he was prevented from working for eight hours a week due to the disability arising from his accepted conditions.[24] The respondent submitted however that the applicant does not qualify for the special rate of pension because he does not satisfy the ‘alone test’ set out in section 24(1)(c) of the Act by virtue of the fact that the applicant’s age, time out of the workforce, and overseas travel and residence were factors that contributed to his inability to undertake work, as at the commencement date of the assessment period.[25] Further, the respondent submitted that the ameliorating provisions in section 24(2)(b) do not apply as the applicant has not demonstrated that he has genuinely sought to engage in remunerative work, but rather that the applicant ceased efforts to find work prior to the commencement of the assessment period.[26] The respondent submits in support of this contention that the contemporaneous evidence fails to show that the applicant’s cessation of employment over 15 years ago was due to the effects of his accepted condition, that the evidence fails to show that but for the incapacity caused by the accepted conditions he would have continued to seek to engage in remunerative work and that there is an overall failure to document the applicant’s health concerns as being relevant to job seeking prior to the commencement period.[27]

   [24] Exhibit D, Respondent’s Statement of Facts, Issues and Contentions dated 17 December 2016, [8], [12]

   [25] Exhibit D, Respondent’s Statement of Facts, Issues and Contentions dated 17 December 2016, [25] - [27]

   [26] Exhibit D, Respondent’s Statement of Facts, Issues and Contentions dated 17 December 2016, [37] - [39].

   [27] Respondent’s Closing Submissions dated 18 April 2017

3. With regard to whether the applicant is entitled to be paid a disability pension at the Intermediate Rate, the respondent submitted that the applicant put forward evidence that supports a finding that the applicant was totally incapacitated for employment at the commencement of the assessment period and so was not able to do any work, rather than merely work on a part-time or intermittent basis and so on that basis the applicant does not qualify for the intermediate rate.[28]

   [28] Exhibit D, Respondent’s Statement of Facts, Issues and Contentions dated 17 December 2016, para 49.

4. The applicant submitted that he qualifies for the disability pension at the Special Rate on the basis that he only stopped working full time due to the impact that the stress of working in his profession would have on his accepted heart condition and due to the impact of a panic and anxiety disorder which is connected to the applicant’s heart condition. The applicant submitted that he searched for work in the period following ceasing work, and there were short periods where he undertook work as an academic, with a reduced workload, and other part-time assignments between 1999 and 2005, however his accepted conditions prevented him from being able to pursue and sustain full-time work.[29] The applicant submitted that he continued to seek work before and during the assessment period, as recently as August 2016,[30] and that his age at the time of commencement of the assessment period (64 years) would not have otherwise affected his ability to do academic work in a sedentary capacity and rather that his age would allow him better prospects as an academic, as an academic’s performance is “enhanced with age and knowing”.[31]  Further, the applicant submitted that his residence overseas has been due to circumstances of convenience with better affordability and access to cheap over the counter medication, not for the purposes of ‘retirement’ despite the circumstances of the visa he has used to reside in Thailand.[32]

   [29] Exhibit C, Applicant’s statement, rebuttal of reasons in VRB decision and rebuttal of respondent’s key facts and contentions dated 17 February 2017 at p. 14 and 22

   [30] Ibid at p. 17

   [31] Ibid at p. 16

   [32] Ibid

5. The applicant did not separately address the issue of the Intermediate Rate of pension.

   CONSIDERATION

   Special rate – “Alone” test

6. It is not in contention, and the Tribunal accepts, that the applicant meets the threshold criteria in order to qualify for the Special Rate of pension. The issue for consideration is whether on the basis of the applicant’s disability arising from his accepted conditions alone that he is unable to undertake paid work for more than eight hours per week.

7. I have to determine whether section 24(1)(c) of the Act is met. This one criterion in contention is often referred to as the “alone” test and requires that "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…".

8. At the time of the commencement of the assessment period, that is the applicant’s application in July 2014, the applicant was 64 years old. The submissions of the respondent do not expand upon the actual impact of the applicant’s age on his employability or on his ability to undertake work other than to mention as a matter of fact that it is a factor that impacts it. The respondent did not address the applicant’s submissions that his age would enhance his performance of academic work and that a more advanced age may lead to better prospects as an academic.

9. The respondent did not particularly address the applicant’s substantial submissions surrounding his circumstances and inability to sustain work in the long term in the interim periods between 2005 and 2014; rather, the respondent has relied on contemporaneous records made by the applicant noting variously that he had retired.

10. In Repatriation Commission v Watkins [2015] FCAFC 10, the Full Court of the Federal Court of Australia referred to the decisions of Repatriation Commission v Richmond (2014) 226 FCR 21, Repatriation Commission v Hendy (2002) 76 ALD 47 and Repatriation Commission v Butcher (2007) 94 ALD 364 and reaffirmed the settled principle that:

    …if non war-caused factors play a part in or contribute to preventing a veteran from engaging in remunerative work, even if those preventative factors are of secondary importance and not of themselves sufficient to prevent remunerative work, the “alone” requirement will not be satisfied. (at [41])

11. In this context the reference to “war-caused factors” is taken to be a reference to defence-caused factors.

12. I am required to determine whether the applicant was prevented by an accepted condition from continuing to undertake remunerative work that the veteran was undertaking.  I have had regard to the statement made by the applicant in his lifestyle questionnaire in 2001 that the reason why he stopped working was “age initially”.[33] Having regard to that statement I cannot be reasonably satisfied that the applicant satisfies the requirements of the “alone” test.

    [33] Exhibit A, T-documents, T50 at p. 145

13. While the applicant has not made a claim for payment of pension at the intermediate rate of pension, in my view he is not entitled to pension at that rate as I am not reasonably satisfied that he meets the requirements of the “alone” test in section 23 of the Act.

    Ameliorating provisions

14. As the applicant was under 65 years at the time of his claim, the ameliorating provisions of sections 23(3) and 24(2) of the Act are relevant. At the commencement of the assessment period at the time of claim the applicant was not engaged in remunerative employment and had not been in work for several years. The applicant has lived in Asia for more than 10 years and now lives in Thailand on a retirement visa. There is no evidence that the terms of the retirement visa prevent his employment.

15. In Smith v Repatriation Commission (2014) 142 ALD 410 the Full Court of the Federal Court of Australia, at 417, 428 and 446, emphasised that there is no requirement that the applicant must be genuinely seeking work in the assessment period and that regard can be had to the circumstances which obtained before the assessment period. While the evidence indicates that the applicant self-reported being ‘retired’ at various times between 2000 and 2014, there is evidence that the applicant did seek work during this time. The applicant obtained some work before the assessment period with the Universities Admission Board in 2005; he completed two weeks of instruction but had to cease such work after three days because of his accepted psychiatric condition. I accept that this is the case having regard to the unchallenged reports of Dr Lockley and Professor Uneanong who have reported that the accepted psychiatric and heart conditions prevents the applicant’s employment insomuch as it renders the applicant unfit for work. I consider that the applicant satisfies the ameliorating provisions of section 24(2)(b) of the Act.

    CONCLUSION

16. After having reviewed the considerable documentation that is in evidence I am reasonably satisfied that the applicant is eligible for the payment of the pension at the special rate.

    DECISION

17. I set aside the decision under review and substitute the decision that the applicant is entitled to pension at the special rate with effect from the date of lodgement of his application on 1 July 2014.

I certify that the preceding 56 (fifty-six) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD

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Associate

Dated: 22 December 2017

Date(s) of hearing:	27 March 2017, On the Papers
Date final submissions received:	9 May 2017
Advocate for the Applicant:	Mr J Simpson
Solicitors for the Respondent:	Moray & Agnew Lawyers