Stenchion and Repatriation Commission (Veterans' entitlements) - [2025] ARTA 91

Stenchion and Repatriation Commission (Veterans' entitlements) [2025] ARTA 91 (11 February 2025)
Applicant:Gayle Stenchion
Respondent: Repatriation Commission
Tribunal Number: 2023/6975

Tribunal:Senior Member Thomae
Place:Brisbane
Date:11 February 2025

Decision:The Tribunal sets aside the decision under review and in substitution decides that the Veteran is entitled to be paid the pension at the Special Rate from 4 May 2022.

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Statement made on 11 February 2025 at 12:59pm
CATCHWORDS
VETERANS’ AFFAIRS – claim for special rate of pension –incapacity from war or war-caused disease – prevented from being able to continue to undertake remunerative work that she was undertaking – alone test – loss of salary or wages – dates of effect where application for review was made in time – decision under review set aside and substituted
Legislation
Administrative Review Tribunal Act 2024 (Cth)
Veteran’s Entitlements Act 1986 (Cth)
Cases
Banovich v Repatriation Commission [1986] FCA 397

Flentjar v Repatriation Commission (1997) 48 ALD 1
Richmond v Repatriation Commission [2014] FCA 272
Repatriation Commission v Hendy [2002] FCAFC 424
Repatriation Commission v Richmond [2014] FCAFC 124
Repatriation Commission v Smith (1987) 15 FCR 327
Wright v Repatriation Commission (2005) 144 FCR 302
Statement of Reasons

INTRODUCTION

On 20 September 2023, the applicant, Mrs Stenchion, made an application for review to the General Division of the Administrative Appeals Tribunal (‘the AAT’)[1] of the decision by the Veteran’s Review Board (‘the VRB’) dated 30 August 2023 to affirm the determination that Mrs Stenchion was not entitled to the disability pension at the Special Rate pursuant to s 24 of the Veterans’ Entitlement Act 1986 (Cth) (‘VEA’).
[1] On 14 October 2024, the Administrative Appeals Tribunal became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.
By the VRB decision, it affirmed an earlier decision by the Repatriation Commission (‘the Commission’) made on 28 July 2022, by which the Commission had determined to continue Mrs Stenchion’s pension at the Intermediate Rate, with effect from 4 May 2019. In doing so, the VRB had determined that Mrs Stenchion did not qualify for the Special Rate of pension, pursuant to s 24 of the VEA.
Mrs Stenchion gave evidence at the hearing. Dr Naidoo, general practitioner, gave evidence.
The Tribunal admitted into evidence the exhibits which are listed in the annexure to these reasons.

BACKGROUND

Mrs Stenchion was born on 4 November 1957, and is now aged 66-years.
Mrs Stenchion served in the Australian Army for forty-six years from September 1976 to April 2022 as a soldier in the Royal Australian Army Ordnance Corps, achieving the rank of Warrant Officer Class 1. Mrs Stenchion was a permanent member of the Australian Army until April…

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

AGLC: Stenchion and Repatriation Commission (Veterans' entitlements) [2025] ARTA 91
Case: [2025] ARTA 91
Decision Date: 11 February 2025

CaseChat Overview and Summary

The case involves Mrs Stenchion, a veteran, who is seeking an increased pension rate from the Repatriation Commission under the Veterans' Entitlements Act 1986 (VEA). Mrs Stenchion argues that she is unable to undertake remunerative work due to physical incapacities arising from her service, thus qualifying her for a higher pension rate. The dispute was adjudicated in the Administrative Appeals Tribunal (AAT). The primary legal issues centred on whether Mrs Stenchion met the criteria set out in sections 24(1)(aa), (aab), (a) and (b) of the VEA, which relate to the incapacity from war or war-caused disease preventing her from undertaking remunerative work. Specifically, the Tribunal had to determine if Mrs Stenchion's incapacity rendered her unable to undertake more than eight hours of remunerative work per week.

The Tribunal meticulously reviewed the evidence provided, including Mrs Stenchion's statements and the medical reports. It found that Mrs Stenchion had a valid claim for an increase in pension, having made the claim before turning 65, and the Commission had previously determined her degree of incapacity to be greater than 70%. The Tribunal concluded that Mrs Stenchion’s incapacity, primarily due to physical limitations such as difficulty with stairs and aversion to multi-story buildings, rendered her unable to undertake remunerative work for more than eight hours a week. This satisfied the criteria of section 24(1)(b) of the VEA. The Tribunal also considered the broader context of Mrs Stenchion's skills and experience, concluding that she was capable of undertaking roles in light, sedentary administrative, and management positions, but her incapacity precluded her from doing so.

The Tribunal set aside the decision under review and substituted it with a determination that Mrs Stenchion was entitled to an increased rate of pension. This decision was grounded on the evidence that her physical limitations effectively prevented her from undertaking remunerative work for more than eight hours per week. The Tribunal's decision was based on a detailed analysis of the evidence and the statutory requirements, ensuring that all relevant factors were considered in accordance with the provisions of the VEA.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The non-contentious evidence is that:(a)The assessment period commenced on 4 May 2022[19] and runs until the date of the Tribunal’s decision.(b)Mrs Stenchion validly applied for an increase in the rate of her pension pursuant to s 15 of the VEA.(c)Mrs Stenchion had not yet turned 65 at the time of her application (she was 64).(d)Mrs Stenchion was being paid the Intermediate Rate of pension by way of the 28 July 2022 determination that provided a lifestyle rating of 4 and an impairment rating of 55 points, combining to give a degree of incapacity of 90%.[19] Exhibit R1 at T19.Mrs Stenchion’s Evidence Mrs Stenchion provided three statements outlining her work history and how her conditions affected her.[20] These statements included her submissions in support of her application for review and response to the Commission’s statement of facts issues and contentions.[20] Ibid. at A2, A3 & A4 Relevantly, Mrs Stenchion states:(a)She served proudly as a soldier for almost 46 years, and it was the only employment she has ever had.(b)Her service involved a variety of instructional, regimental, and administrative positions.(c)After 21 years full-time service she transferred to the Army Reserves on 8 November 1997.(d)She served in the Reserves until her medical discharge on 21 April 2022.(e)She has never been diagnosed with any mental health conditions and never has had any mental health conditions.(f)References to anxiety and depression by Dr Naidoo arose to her normal reaction to abnormal events and not an indication of any mental condition.(g)Radiology results in 2020 mentioned mild degenerative changes in her lumbar spine. She has had no incapacity associated with that condition during her service or during the assessment period. She has never been diagnosed with lumbar spondylosis.(h)In 2021 she was diagnosed and treated for minor bursitis in her shoulder. It had no effect on her capacity for work. It recurred in a very minor way in June 2023 but had no effect on her capacity to work.(i)The role she was undertaking prior to her medical discharge was not in the nature of being age restrictive nor did it require ongoing upgrading of qualifications.(j)Her workplace was an environment needing extensive and appropriate experience.(k)Age extensions (beyond 65) were given to people in her workplace.(l)She had no thoughts of finishing work at the time of her MECRB determination and loved her work and being a soldier. She had ambitions to become the longest-ever serving female soldier and wanted at least 50 years’ service with the appropriate medallic recognition.(m)She commenced making job applications in September 2022. The gap between her discharge in April and September was due to her taking some time with her family and investigating the job market to see how civilian job applications are done. She had never made an application for a job since joining the Army. She was seeking employment in a largely unfamiliar environment.(n)She disputes that she is able to go up and down stairs and in discussion with Dr Christian she told him to consider the level of embarrassment she endured as a senior warrant officer in the Army when a lift malfunction caused her to have to negotiate the stairs at her workplace on her rear end.(o)She avoids steps and stairs and in multi-story buildings she is terrified of the possibility of an emergency evacuation with inoperable lifts.(p)Her normal work at the time of her medical discharge was effectively the regimental sergeant major for her last unit. She provided advice to inquiry officers regarding service for soldiers, staff checking inquiry reports and supporting senior officers.(q)Her physical incapacities are such that she would have physical problems working in any ‘normal’ office type environment. Her physical limitations are such that office work would require substantial compromise by a prospective employer in work hours, responsibilities and location.(r)She believes that she suffered economic loss immediately on discharge as she no longer earned any money from Army.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

At the hearing, Mr Dube contended that:·The evidence as a whole is not something you say that there is no capacity at all for Mrs Stenchion to work which is what Dr Vecchio says.·Mrs Stenchion had demonstrated by her activities in preparing the various materials that she put together and her presence during the course of the hearing for over two hours her ability.·Mrs Stenchion’s evidence was that she would like to work if she could, but she is of the view that she’s physically unable to work. That is at odds with saying that someone is genuinely seeking to obtain employment and in consideration of s 24 of the VEA.·Greater weight should be given to the evidence of Dr Christian.·The fact that Mrs Stenchion’s lumbar spondylosis is non-symptomatic of itself does not exclude it from consideration.CONSIDERATIONAssessment Period The assessment period is not in contention. The Tribunal determines pursuant to s 19(9) of the VEA the assessment period commenced on 4 May 2022 being the date Mrs Stenchion’s claim for an increase in pension was received by the Commission and ends upon final determination of the matter.Section 24(1)(aa), (aab) and (a) of the VEA The Tribunal notes that the Commission does not dispute that Mrs Stenchion satisfies ss 24(1)(aa), (aab) and (a) of the VEA. The Tribunal is satisfied on the basis of the evidence before it that Mrs Stenchion:(a)Made a valid claim for an increase in pension under s 15 of the VEA, therefore she met the requirements of s 24(1)(aa) of the VEA from 4 May 2022.(b)Had not yet turned 65 when the claim was made, therefore she met the requirements of s 24(1)(ab) of the VEA from 4 May 2022.(c)Had received a determination that her degree of incapacity from her war-caused injuries or disease or both, is greater than 70% by the decision of the Commission made on keeping her rate of disability pension at the Intermediate Rate, with effect from 4 May 2022. Therefore, she met the requirements of s 24(1)(a) of the VEA from 4 May 2022. The Tribunal is satisfied that during the assessment period Mrs Stenchion satisfied the requirements of s 24(1)(aa), (aab) and (a) of the VEA.Section 24(1)(b) of the VEA In Wright v Repatriation Commission[34] Hill J explained the interpretation of s 24(1)(b) of the VEA “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.”[34] (2005) 144 FCR 302 at [15] The evidence before the Tribunal shows that Mrs Stenchion’s skills, qualifications and work experience is such that she might reasonably undertake employment of the kind that includes roles in light, sedentary administrative and management roles. The Tribunal finds that those kinds of remunerative work are relevant to determining the extent to which Mrs Stenchion’s accepted conditions have impaired her capacity to work in accordance with s 28(c) of the VEA.