Stafford and Repatriation Commission (Veterans’ entitlements)

[2016] AATA 935

Stafford and Repatriation Commission (Veterans’ entitlements) [2016] AATA 935 (23 November 2016)

Division	VETERANS' APPEALS DIVISION
File Number(s)	2015/0150
Re	Terry Stafford
APPLICANT
And	Repatriation Commission
RESPONDENT

DECISION

Tribunal	Ms N Isenberg, Senior Member
Date	23 November 2016
Place	Sydney

The decision under review is affirmed

.................................[sgd].......................................

Ms N Isenberg, Senior Member

Catchwords

VETERANS’ ENTITLEMENTS – disability pension – special rate  – increase beyond general rate sought — whether war-caused conditions alone render veteran incapable of working more than 8 hours per week – professional skills, qualifications and experience –kinds of remunerative work suitable – impact of mental condition on ability to work –decision under review affirmed.

Legislation

Veterans’ Entitlement Act 1986 (Cth) ss 23, 24, 28, 119(1)(h)

Cases

Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305

Chambers v Repatriation Commission [1995] FCA 1144; (1995) 36 ALD 207

Repatriation Commission v Buckingham [1996] FCA 1218

REASONS FOR DECISION

Ms N Isenberg, Senior Member

23 November 2016

BACKGROUND

1. The Applicant, Terry Stafford, served in the Royal Australian Navy from 1972 to 1991, including periods of operational service in Vietnam.  He has a number of medical conditions that have been accepted as related to this service:

   ·Erectile Dysfunction;

   ·Alcohol Dependence;

   ·Generalised Anxiety Disorder;

   ·Sensorineural Hearing Loss;

   ·Tinnitus;

   ·Asbestos-Related Pleural Disease;

   ·Chronic Emphysema; and

   ·Osteoarthritis affecting both knees.

2. In addition, he has a number of non-accepted disabilities:

   ·Varicose Veins;

   ·Bilateral Sensorineural Hearing Loss;

   ·Varicose Veins of the Left Leg;

   ·Varicose Veins of the Right Leg;

   ·Sleep Apnoea;

   ·Diabetes Mellitus;

   ·Internal Derangement of the Right Knee;

   ·Internal Derangement of the Left Knee; and

   ·Osteoarthritis affecting both ankles.

3. In applications to the Repatriation Commission dated 15 May 2013 and 14 June 2013, Mr Stafford sought an increase in his pension beyond the General Rate in respect of his accepted disabilities – specifically, he seeks the Special Rate of pension.  His applications were refused.  His application for review to the Veterans’ Review Board was also refused.  He now seeks review by this Tribunal. 

   Criteria for the Special Rate

4. The special rate criteria are set out in s 24 of the Veterans’ Entitlement Act 1986 (Cth) (VEA).  That section provides, in part:

   Special rate of pension

   (1)  This section applies to a veteran if:

   … and

   (a)    either:

   (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; or

   (ii)the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and

   (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; and

   (d)section 25 does not apply to the veteran.

   (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.

   (2A)  This section applies to a veteran if:

   (a)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

   (b)the veteran had turned 65 before the claim or application was made; and

   (c)paragraphs (1)(a) and (1)(b) apply to the veteran; and

   (d)the veteran is, because of incapacity from war-caused injury or war-caused disease or both, alone, prevented from continuing to undertake the remunerative work (last paid work) that the veteran was last undertaking before he or she made the claim or application; and

   (e)because the veteran is so prevented from undertaking his or her last paid work, the veteran is suffering a loss of salary or wages, or of earnings on his or her own account, that he or she would not be suffering if he or she were free from that incapacity; and

   (f)the veteran was undertaking his or her last paid work after the veteran had turned 65; and

   (g)when the veteran stopped undertaking his or her last paid work, the veteran:

   (i)    if he or she was then working as an employee of another person--had been working for that person, or for that person and any predecessor or predecessors of that person; or

   (ii)   if he or she was then working on his or her own account in any profession, trade, employment, vocation or calling--had been so working in that profession, trade, employment, vocation or calling;

   for a continuous period of at least 10 years that began before the veteran turned 65; and

   (h)section 25 does not apply to the veteran.

   (2B)   For the purposes of paragraph (2A)(e), a veteran who is incapacitated from war-caused injury or war-caused disease or both, is not taken to be suffering a loss of salary or wages, or of earnings on his or her own account, because of that incapacity if:

   (a)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

   (b)the veteran is incapacitated, or prevented from engaging in remunerative work for some other reason.

   …

5. Section 28 of the Act sets out the matters to which regard must be had in considering whether s 24(1)(b) or s 23(1)(b) apply.  It states:

   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).

   THE APPLICANT’S EVIDENCE

6. Mr Stafford was born in 1956, and at the time of his original application was 57 years of age.  He joined the Navy at age 15, and served for 20 years, during which time he spent thirteen years doing engineering work, and also some time in the military police.

7. After leaving the Navy in 1991 he worked for various companies in hygiene services and as a truck driver for a linen company from 1992 to 2003.  He worked as a pest control technician from 2004 to 2006, then returned to the hygiene company briefly, before resuming the pest control work between 2007 and 2012.

8. The role as a commercial pest control technician involved travelling all over Sydney at all times of the day - sometimes starting work at 6:00 am, which would require him to get up at 4:30 am.  Early starts, he said, were not assisted by his sleep apnoea, although he had obtained a CPAP machine in 2011.  He said that his restless sleep caused by nightmares caused him to knock off his mask.  Sometimes he would work until 2:00 am to conduct the work when people were not using the premises.  The role involved climbing ladders and bending to get into confined spaces. 

9. He said he found the role stressful.  He found it difficult to deal with customers; he became ‘angry and annoyed’ and there were a couple of complaints about him.  There were a number of verbal altercations and once, in about 2010, the police were called, although the in-patient at the nursing home where the incident occurred was, in his view, ‘not all there’.  Apparently no charges arose out of the incident.  He said his anxiety affected his ability to think straight and, as a result, he was unable to write up inspection reports logically.  He also found the role very physically taxing and he struggled – easily becoming out of breath and having aches in his knees, which made doing the job very difficult.  As to his varicose veins, he said that they now cause him some mild discomfort.

10. He first consulted Dr Koller in 2006 and, since that time, has seen him every 3-4 months.  In 2012 he was taking Effexor 150mg on Dr Koller’s prescription, as he had done for some years. 

11. He said he struggled with work for several years.  His oral evidence about his work was somewhat confused.  On the one hand, he said he was working 37 to 40 hours per week and would come home from work exhausted and fall asleep.  On the other hand, his evidence was that he tried to reduce his hours, but no work with fewer hours was available.  This is inconsistent with his lifestyle questionnaire completed on 18 October 2012 in which he wrote that he had been laid off.  Another inconsistency was in an employment questionnaire dated 6 November 2012, in which he wrote that he had reduced his hours because of fatigue and stress and because of pain he suffered from driving a vehicle.

12. He said he temporarily ceased work from 27 March 2012 to 10 April 2012 on the advice of Dr Koller, his treating psychiatrist, given his service-related disabilities, anxiety and osteoarthritis.  He said in his statement that he returned to work, (also) in April 2012 on reduced hours - 12 hours a week - on the advice of his GP, Dr Shah – a further inconsistency.  In his evidence he said he was sure he was working more than 12 hours a week, so perhaps the reference had not included travel time.  He then said he was working 5 days a week but on reduced hours. 

13. He said in cross-examination that at the time he ceased work he was working 7.5 hours a day, 5 days a week.  He wanted to work part time – 3 days a week. 

14. On 9 May 2012, when Dr Koller certified that he was unfit for work and unemployable due to his service-related conditions, particularly his anxiety and osteoarthritis, his energy levels were low; he became fatigued and experienced shortness of breath walking up stairs.  His concentration was poor.  He found the anxiety was still too much for him to do his job.  Further reduced hours were not available. 

15. Since that time, he has not worked, and has felt incapable of working, given his anxiety disorder and osteoarthritis; the veteran did not register with Centrelink, nor otherwise search further for remunerative work.  He thought it unlikely that he could gain any employment, given his disabilities.    

16. In relation to his varicose veins, the veteran said they were a problem for many years and he received a number of treatments, the last of which was in 2011.  In 2013, Dr Shah said that his veins had been treated and were not an ongoing problem.  He said he no longer suffers any pain from them.  The veteran, however, said that, currently, some aching has gradually returned. 

    MEDICAL EVIDENCE

    Dr Karl Koller, the Applicant’s treating psychiatrist

17. Dr Koller has been the veteran’s treating psychiatrist since 2006 and, the veteran said, he sees him every 3-4 months, although Dr Koller thought it was between every month to 3 months. 

18. On 27 March 2012 Dr Koller certified the veteran as unfit for work until 10 April 2012 due to his unspecified ‘service-related disabilities’.  Similarly, on 9 May 2012 he certified the veteran as ‘unemployable’ due to his unspecified ‘service-related disabilities.’

19. Again, on 12 June 2013 Dr Koller described the veteran as ‘unemployable’ and noted that his varicose veins had been surgically removed in 2011 and he had used a sleep mask since 2010. 

20. Dr Koller wrote in his reports dated 22 and 23 July 2015 that he certified the veteran as unemployable in 2012.  He first provided the veteran with medical leave after which he returned to work.  When the veteran returned to work he could not manage, and Dr Koller concluded that he was unemployable.  He repeated his view in relation to varicose veins and sleep apnoea.   

21. In a further report dated 25 May 2016 Dr Koller again repeated his view about sleep apnoea and varicose veins.  He noted that the veteran’s osteoarthritis of his knees had been accepted and said that the previous reference to ‘internal derangement of knees’ was not to be regarded as fundamentally different to osteoarthritis because they both related to pathology inside the [knee] joints.    

22. In his evidence Dr Koller said he gave the veteran some time off as a test and then, when the veteran was unable to cope on his return to work, he ‘rendered the veteran unemployable’ because of a combination of his psychological and physical problems.  When asked to elaborate, Dr Koller was adamant that it was the combination of his depression, anxiety, irritability, pain in the knees, poor hearing, pleural plaques, emphysema – the ‘totality of his symptoms’.  As to the substantial reason for the veteran’s cessation of work, Dr Koller passionately re-iterated that it was both his psychological and his physical symptoms that made him unemployable, and described the veteran as ‘kaput’.  He forthrightly referred many times during his evidence to the veteran’s ‘multitude’ of medical problems.  He said that ‘after 10 years he came to the view that the veteran was unemployable’ (although, it is observed, that by 2012 he had been seeing the veteran for only 6 years), and became agitated, even with the veteran’s counsel, that his clinical assessment of the veteran may be questioned. 

23. Dr Koller was unperturbed by Dr Smith’s alternative diagnosis of adjustment disorder with anxious mood, and ‘entirely agreed’ with this as an alternative diagnosis. 

24. When asked about his notes of the consultation of 9 May 2012, Dr Koller said he had recorded that the veteran was at that time working 7.5 hours a day and was starting work at 5:00 am.  He said the veteran had told him it was ‘far too much’ and that ‘it’s killing [him]’.  When asked if the veteran might be able to manage a later start instead of his early starts, he was entrenched in his view that that the veteran was incapable of working at all. 

    Dr Selwyn Smith, consultant psychiatrist

25. On 17 June 2015 Dr Smith, who saw the Applicant at the Respondent’s request, reported that the psychiatric condition affecting the Applicant was adjustment disorder with anxious mood; he did not find generalised anxiety disorder, post traumatic stress disorder or major depressive disorder.  

26. Dr Smith recorded that the veteran had told him he experienced difficulties working, which he attributed to his varicose veins, being physically tired, his generalised anxiety disorder resulting in difficulties dealing with customers, and focusing and concentration.  He also experienced shortness of breath and pain in the knees.  He observed that, as a means of relaxation, the veteran consumed a case of beer a week (3-4 beers a day) plus wine and whiskey. 

27. Dr Smith observed that despite a diagnosis of generalised anxiety disorder some time ago, the veteran had managed to continue working for some time until advised to cease work by Dr Koller.  From a psychiatric viewpoint he considered Mr Stafford capable of work.   

28. In his evidence he agreed that a treating doctor may have a better understanding of their patient’s overall capacity for work.  However, he was critical of Dr Koller’s lack of detail of his assessment of the veteran’s work ability – noting that ‘suddenly’, after years of treatment, he decided the veteran is unable to work.  As well, he said there was no information as to what steps Dr Koller had taken in managing the veteran’s alcohol dependence, which might have impacted his work ability.  In any event, on the history he took, the veteran had in fact decreased his alcohol intake.  He queried the veteran’s motivation for work.

29. He referred to what he considered to be the veteran’s background of a very good work record.  He noted that while the veteran may have had a multiplicity of jobs – 9 in 15 years, he nonetheless had a continuous work history.

    Dr Robin Chase, occupational physician

30. On 13 July 2015 Dr Chase, who saw the Applicant at the Respondent’s request, reported that the only physical disability impact on the veteran’s work ability was the mild osteoarthrosis of his knees.  Overall, he found no significant limitations on the veteran’s ability to work.

31. In the course of the consultation the veteran became abusive towards Dr Chase, on somewhat innocuous probing by Dr Chase about aspects of his lifestyle.  Dr Chase conceded that if that kind of conduct occurred in the work context, his employability could be affected but observed that if a person is motivated to control their temper, this can be achieved.  Further, he said, even in circumstances where a person had trouble interacting with customers that would only mean a partial impairment for work, namely in customer service.  By way of example, he said there would be no problem restocking bathrooms or other roles where there was minimal customer interaction.

32. Dr Chase, when asked about whether a treating doctor might be in a better position to assess a person than a specialist conducting a medico-legal assessment, Dr Chase observed that a treating doctor proceeds on the basis of the history given and is obliged to take into account their patient’s wishes, protect their patient and advocate on their behalf, whereas a medico-legal assessment is independent. 

    Other medical opinions

33. Somewhat belatedly, the veteran’s counsel provided reports of Dr R Muratore, sports physician and Dr T Anderson, occupational physician, dated 3 August 2015 and 21 September 2015 respectively.    

34. Dr Muratore reported that the veteran told him he had ceased work because he could not cope with the stress involved and the workload.  He observed the veteran to have some neck and shoulder pain and some reduced range of movement of his hips, none of which was of any consequence.  As to his knees, he considered there to be little evidence of severe pathology.  Neither the osteoarthritis nor the internal derangement of knees require any treatment.  His knee conditions would not affect his ability to work.  He considered the veteran was capable of working at least 4 hours a day, 5 days a week, avoiding stairs and working in confined spaces.  Dr Muratore found that the Applicant could work full time, from a physical perspective, 'if he was willing to do so'.

1. Dr Anderson regarded the veteran as ‘perfectly fit’ for work in pest control and hygiene deliveries for at least 20 hours a week.  He considered he was ‘unmotivated to try’ to return to work and thought the main reason the veteran is not working is his belief or desire that he could not or should not work.  He considered the veteran’s osteoarthritis of his knees to be relatively mild.  The meniscal tears were not severe - there was no history of locking, collapsing and giving way.  He noted the veteran plays 18 holes of golf twice a week (walking) although sometimes gets breathless on low hills on the course.  He noted the veteran goes to the gym twice a week and he occasionally plays Sudoku.  Dr Anderson thought his alcohol consumption was not indicative of a significant alcohol condition.  

2. In a report dated 12 September 2013, Dr Huang, orthopaedic surgeon, noted the veteran had reported bilateral anteromedial pain in both knees over the previous few years.  On 24 September 2013, Dr Huang observed that the veteran had meniscal tears which had been confirmed by MRI.  The veteran had elected to forgo operative intervention until he became more symptomatic.   

3. In a report dated 14 February 2013, Dr Sanjiv Shah, the veteran’s GP stated that the Applicant’s varicose veins had been treated and were resolved and “do not contribute to his being unable to work”.  Dr Shah considered that the main reason for veteran’s inability to work was ‘deep anxiety and stress’.

   CONSIDERATION

4. The legislation requires that the material before the Tribunal must satisfy a number of tests.

5. Firstly, the Applicant's degree of incapacity from war-caused conditions must be at least 70% of the General Rate: s 24(1)(a) of the VEA.  There was no dispute that Mr Stafford met this test.

6. Next, s 24(1)(b) of the VEA requires that an Applicant's incapacity from war-caused conditions, must be of such a nature as, of itself alone, to render him incapable of undertaking remunerative work for more than 8 hours a week. This does not require an examination of other causes that might render him unable to undertake remunerative work, but merely whether the war-caused disabilities, on their own, are sufficient to render him incapable of undertaking such work.

7. Section 28 provides assistance in determining whether a veteran is incapable of undertaking remunerative work, by setting out the only matters that regard can be had to in deciding that question.

   What are Mr Stafford’s trade and professional skills, qualifications and experience?

8. Section 24(1)(b) requires an examination of the veteran’s capacity to undertake any remunerative work which the veteran is physically and mentally able to carry out; the test is not limited to the type of work previously undertaken or for which the veteran is qualified by training or experience: Chambersv Repatriation Commission [1995] FCA 1144;  (1995) 36 ALD 207 , where the Court said (at [47]):

   A person's skills are not confined to those acquired in formal training or by virtue of experience in particular employment. They include innate aptitude for tasks and abilities acquired or developed independently of employment or training. For example, a person may never have used computers at work and have no formal computer training. If that person has self-taught word processing skills, he or she nonetheless has skills that may well enhance opportunities for remunerative work. Similarly "qualifications" means (Oxford Shorter Dictionary and Macquarie Dictionary) "a quality or accomplishment which qualifies or fits a person for some office or function". The word is not confined to qualifications obtained as the result of formal training or work experience. Again, a person's experience is not necessarily restricted to that acquired in employment or formal training.

9. From the Applicant’s evidence and from the history taken by Dr Chase, his Navy work involved engineering activities for 13 years, with another 7 years in the military police.  In his subsequent civilian career since 1991, he worked in roles in hygiene services and as a truck driver.  His last work was as a pest control technician.

   What kinds of remunerative work might a person with Mr Stafford’s skills, qualifications and experience reasonably undertake?

10. Section 28(b) of the VEA requires an examination of all of the different kinds of work that a hypothetical person with the relevant skills and experience of the veteran, found under s 28(a) of the Act, might reasonably undertake: Repatriation Commission v Buckingham[1996] FCA 1218.  The remunerative work referred to in s 24(1)(b) accordingly has a broad meaning.

11. I therefore find that a person with Mr Stafford’s skills, qualifications and experience could reasonably undertake semi-skilled roles such as truck driving, deliveries and pest control technician.  It is unlikely, after an absence of 25 years, that his Navy skills would be currently relevant.

    To what degree do Mr Stafford’s war-caused conditions reduce his capacity to undertake the kinds of remunerative work referred to above?

12. In considering this question, the Tribunal must disregard all of the Applicant's non-accepted disabilities or any other factors that might have an impact on his capacity to undertake those kinds of remunerative work and decide whether his incapacity from his war-caused conditions alone prevent him from working more than 8 hours per week in any kinds of work that a person with his skills, qualifications and experience might reasonably undertake.

13. The Respondent contended that the Applicant is capable of working 20 hours or more per week.  Drs Chase, Muratore and Anderson were all of the view that that the Applicant’s physical conditions present no impediment to his working at least 20 hours per week, although Dr Muratore thought he should avoid stairs and working in confined spaces. 

14. Much was made of whether the veteran’s non-accepted disabilities of internal derangement of the knees, varicose veins and sleep apnoea affected his ability to work.  In the end, this question proved irrelevant in circumstances where the preponderance of the evidence persuades me that even his accepted physical disabilities do not prevent him from working. 

15. The real issue was in relation to the impact of his psychiatric condition on his work ability. 

16. The veteran’s counsel invited me to form my own view about the Applicant’s work ability from his demeanour at the hearing.  I accept that the veteran’s evidence was, at times, hard to follow, and that he was somewhat inarticulate.  I was invited to consider his evidence in the context of s 119(1)(h) VEA, namely that I should take into account the passage of time since he ceased work.  I observe that, while the legislation in the section is beneficial, the period of time since the event in question is only 4½ years ago; I was not, for example, canvassing what may have occurred during the veteran’s service, now about 45 years ago. 

17. The Respondent did not take issue with Dr Koller’s diagnosis of generalised anxiety disorder, and Dr Smith’s diagnosis of adjustment disorder with anxious mood.  I note too, that Dr Koller also accepted this as an ‘alternative diagnosis’.  I have proceeded on the basis that the veteran suffers only one psychiatric condition (other than alcohol dependence), however described, but which has been accepted as service-related as ‘generalised anxiety disorder’. 

18. Dr Smith’s evidence was that the Applicant was, from a psychiatric viewpoint, capable of working 20 hours per week.  He, and Drs Chase, Muratore and Anderson, all questioned the veteran’s motivation for work.

19. The veteran relied on Dr Koller’s evidence that he was incapable of any work at all.  Dr Koller was profoundly fixed in his view that the veteran’s inability to work is due to a combination of his accepted disabilities.  Despite being invited to comment as to the substantial cause of the veteran’s inability to work, and thereby provide comment on the impact of the veteran’s psychiatric condition alone, he remained steadfast, without any helpful elaboration, that it was the combination of his conditions. 

20. Dr Koller’s evidence serves to remind of the principle in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305: that an expert witness must furnish the trier of fact with criteria which enable it to evaluate the validity of the expert's conclusions (see [59]). Dr Koller’s dogmatism did not provide me with help in determining the effect of the veteran’s psychiatric condition on his work ability. His approach did not assist the veteran’s case. That he was so adamant that it was the combination of the veteran’s psychiatric and physical conditions that prevent him working, and as I have found the veteran’s physical conditions do not prevent him from working, lead me to a clear conclusion that the veteran’s accepted disabilities do not, of themselves, prevent the veteran working.

21. I therefore find that the veteran's incapacity from war-caused conditions, alone, does not render him incapable of undertaking remunerative work in semi-skilled roles such as truck driving, deliveries and as a pest control technician for periods aggregating more than 8 hours per week.  He therefore does not meet the test in s 24(1)(b) of the VEA.  Consequently, he does not meet this criterion for the Special Rate of pension. 

22. Having come to that view, it is unnecessary for me to consider the remaining criteria.

    DECISION

23. The Tribunal affirms the decision under review.

I certify that the preceding 57 (fifty-seven) paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member

............................[sgd]............................................

Associate

Dated 23 November 2016

Date(s) of hearing	28 July; 2 & 8 August 2016
Counsel for the Applicant	Mr T Saunders
Solicitors for the Applicant	Kemp & Co Lawyers
Solicitors for the Respondent	Sparke Helmore