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.
........................................................................
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

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
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
The applicant applied for review of this decision on 18 December 2014.[3]
[3] Exhibit A, T-documents, T113 at p. 372
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
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
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…

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: [2017] AATA 2780
Decision Date: 22 December 2017

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of an applicant seeking a veteran's pension against the Repatriation Commission. The dispute centred on whether the applicant was eligible for the special rate or intermediate rate of pension, specifically concerning the "alone test" as stipulated in sections 23 and 24 of the relevant Act.

The Tribunal was required to determine if the applicant's incapacity, solely due to his accepted war-caused conditions, prevented him from undertaking remunerative work for more than eight hours per week. This involved assessing whether any non-war-caused factors contributed to his inability to work, which would preclude him from satisfying the "alone" requirement.

The Tribunal acknowledged that the applicant met the threshold criteria for the special rate but found that the evidence did not sufficiently satisfy the "alone" test. This was primarily due to the applicant's own statement in a 2001 lifestyle questionnaire that "age initially" was the reason he stopped working. Applying the principle established in *Repatriation Commission v Watkins* and related cases, the Tribunal held that if non-war-caused factors, even if secondary, contribute to preventing a veteran from working, the "alone" requirement is not met. Despite this finding regarding the "alone" test, the Tribunal, after reviewing all the evidence, was reasonably satisfied that the applicant was nonetheless eligible for payment at the special rate.

Consequently, the Tribunal set aside the decision under review and substituted a new decision, finding the applicant entitled to pension at the special rate from 1 July 2014.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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.EVIDENCEDr Brian Witt, General Practitioner 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 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 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 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 Professor Uneanong completed two reports for the purposes of the applicant’s claim, one in 2014 and a further report in 2015. 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 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 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.”

Decision

Reasons for decision

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 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.

Ratio Decidendi

Legal Principle Established

The applicant did not separately address the issue of the Intermediate Rate of pension. CONSIDERATIONSpecial rate – “Alone” test 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. 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…". 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. 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. 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]) In this context the reference to “war-caused factors” is taken to be a reference to defence-caused factors. 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