Tyas and Repatriation Commission
[2008] AATA 1158
•23 December 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 1158
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/2786
VETERANS’ APPEALS DIVISION ) Re RONALD TYAS Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Rear Admiral A R Horton AO, Member Date23 December 2008
PlaceSydney
Decision The decision under review is affirmed. ................[sgd]..............................
Rear Admiral A R Horton AO
Member
CATCHWORDS
VETERANS’ AFFAIRS – applicant in receipt of extreme disablement adjustment – claim for increase in pension (to special rate) lodged at age 82 – ceased work at age 66 – consideration of work circumstances – veteran does not meet the criteria in respect of working for continuous period of at least 10 years – not eligible for special rate – decision under review affirmed
Veterans’ Entitlements Act 1986 – s 22, 23, 24
REASONS FOR DECISION
23 December 2008 Rear Admiral A R Horton AO, Member 1. Mr Ronald Tyas (“the Applicant”) has been in receipt of the disability pension at the Extreme Disablement Adjustment rate (vide section 22 of the Veterans’ Entitlements Act 1986 (“the Act”) since 26 September 2003. On 3 October 2007, at the age of 82, he lodged a claim for an increase in disability pension, this claim being rejected by the Repatriation Commission (“the Respondent”) on 15 October 2007. On 7 April 2008, the Veterans’ Review Board (“the VRB”) affirmed the decision. Mr Tyas lodged an application for review by the Administrative Appeals Tribunal (“the Tribunal”) on 24 June 2008.
2. The matter was initially heard by me on 7 October 2008. Mr Tyas gave evidence by telephone, and Mr Tim O’Reilly represented the Respondent by telephone. The Tribunal took into evidence the documents provided pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (“the T documents”), and the Respondent’s Statement of Facts and Contentions dated 3 October 2008 (Exhibit R1).
3. The circumstances surrounding the resumed hearing on 13 November 2008 and telephone directions hearing on 2 December 2008, the actions arising, and details of the additional documentation made available to the Tribunal, will be discussed below as appropriate.
LEGISLATION
4. Because Mr Tyas lodged his claim for increased disability pension after he turned 65 his eligibility for the Intermediate Rate or Special Rate of pension will be determined by reference to subsections 23(3A) and 24(2A) of the Act, respectively. The requirements in both cases are similar. It is sufficient to define the criteria for Special Rate, this being the rate sought by Mr Tyas.
5. Subsection 24(2A) of the Act states:
(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.
For the purposes of subsection 24(2A) of the Act, paragraphs (1)(a) and (1)(b) relevantly state:
(1) …
(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) …
(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; …
EVIDENCE
6. Mr Tyas is in receipt of a service pension; he is a widower and lives alone. His daughter lives close by and is in receipt of a carer pension. He has a number of accepted disabilities, with the earliest, shown in the T documents, being accepted in 1997. They include post traumatic stress disorder, bilateral sensorineural hearing loss with tinnitus, chronic solar skin damage, cerebral ischaemia and psychoactive substance abuse or dependence involving alcohol. A medical impairment rating of at least 70 and a lifestyle rating of 6, combine to give a degree of incapacity of 100%, and as earlier noted, disability pension at the Extreme Disablement Adjustment rate was granted from 26 September 2003.
7. Mr Tyas told me that his health is deteriorating. He professed to be dizzy “all the time”, such that he hardly ever goes out. His legs are not good, particularly following a fall where he damaged a knee. I observe that the VRB noted that according to his application “[Mr Tyas] was ‘very agitated constantly’, his stroke had affected both legs badly and he needed a cane at all times as he was constantly falling over and injuring himself and his skin cancers were increasingly more frequent necessitating medical attention and the resultant scarring was worse.” Mr Tyas stated that he sees his general practitioner every fortnight; currently he does not see any specialists.
8. Of relevance in this matter is that both the delegate of the Respondent and the VRB, apparently based on advice from Mr Tyas, denied his claim on the understanding that he had not worked past the age of 65 and hence did not meet the criteria for Special Rate for veterans applying after the age of 65. Evidence before me introduced a different scenario in respect of Mr Tyas’s work history.
9. Born in December 1924, Mr Tyas served in the Australian Army from 13 January 1943 until 11 October 1946. He served in New Guinea with the 25th Australian Infantry Battalion, a notable battle between that battalion and Japanese forces on Bougainville Island being that known as Slater’s Knoll. On completion of his military service he worked in various occupations, including operating a catering business with his wife. His evidence is that he and his wife moved to Maroochydore in 1977, and he operated a pie business for about the next three years. He was subsequently employed as a doorman by the Maroochydore Returned Services League (“RSL”) Club.
10. Mr Tyas stated that he had retired from that full-time position in about 1985, citing that a stoush outside the Club led to that decision. A complementary reason for that decision, as he explained, was that as he had turned 60 years of age, he took the opportunity to apply for a service pension. Mr Tyas also stated that at the time he was drinking “too much”.
11. Mr Tyas told me that the management of the RSL Club had wanted him to stay on, but accepting his decision to retire, had offered him a part-time job, which he took, and which commenced immediately upon his retirement from the full-time position. He thought that the part-time job had continued to about 1990, when he was 66 years old, when he moved to Tweed Heads and then to the Central Coast, where he resides to this day. Mr Tyas referred to the local golf club at Maroochydore presenting him with a clock when he moved to Tweed Heads; whilst this confirmed that he had lived at Maroochydore, it does not assist in determining his employment.
12. Mr Tyas described this part-time job as generally working as a “rouseabout” from about 6:00 am for a variable number of hours seven days each week, collecting glasses and generally cleaning up. He stated that he was paid at a rate commensurate with his hours of work. Mr Tyas was unable to produce any evidence to support this claim of part-time work; I considered that if this later evidence could be substantiated by the Maroochydore RSL Club, then it should be taken into account in considering this matter. Accordingly, Mr O’Reilly undertook to investigate further with the RSL Club. Hence the matter was adjourned.
13. The hearing resumed by telephone on 13 November 2008. Mr O’Reilly advised that the Maroochydore Sub-Branch of the RSL had responded to his request for information as to the employment of Mr Tyas, stating in a letter of 5 November 2008 (Exhibit R2) that neither the Sub-Branch nor Maroochydore RSL Club had knowledge of Mr Tyas.
14. It became evident in subsequent consideration that the Sub-Branch and the RSL Club no longer had records of membership or employment dating back to the period in question. It further became evident that the Respondent had some documentation on a departmental file in respect of earlier matters wherein Mr Tyas was seeking repatriation benefits and/or was advising the Respondent of his movements. Such documentation was subsequently provided to the Tribunal, and to Mr Tyas, under cover of a Department of Veterans’ Affairs letter of 27 November 2008 (Exhibit R3).
15. Employer Reports completed by the Maroochydore RSL Club state that the employment of Mr Tyas commenced on 19 April 1981. One of these reports, received by the Department of Veterans’ Affairs on 15 February 1985 contains financial data which indicates that Mr Tyas was employed on a full-time basis until around 23 December 1984, when he converted to part-time employment at a much lower remuneration rate. This period of full-time employment is confirmed in an Income and Assets Statement completed by Mr Tyas on 28 January 1985.
16. A later Income and Assets Statement signed by Mr Tyas on 24 March 1990 shows that he ceased employment on 16 February 1990. That he ceased work in that month is also confirmed in a letter to the Department of Veterans’ Affairs where he advises his intention to move to New South Wales and states “I also will not be working at my casual job as from 4th Feb[ruary]”.
CONSIDERATION
17. At a telephone directions hearing convened on 2 December 2008 to consider this new evidence, Mr Tyas accepted that the dates of his employment with the Maroochydore RSL Club were as noted above.
18. The circumstances of Mr Tyas accord with subsection 24(2A)(b) in that he had turned 65 before the claim was made. However, whilst he meets the criteria in subsection 24(2A)(f) in that he was undertaking his last paid work after turning 65, he does not meet the criteria in subsection 24(2A)(g) in that he had not been working as an employee of the RSL Club “for a continuous period of at least 10 years …”. That being the case, there is no reason to consider other subsections of section 24 as to their applicability.
19. Mr Tyas voiced his strong opinion that the legislation in respect of eligibility for the Special Rate, as it relates to age at the date of claim and to work circumstances, was unnecessarily restrictive and was biased against World War II veterans. Had he been aware of the relevant legislative requirements, then he would have claimed Special Rate earlier. He reasons that his age disadvantages him against the circumstances of Vietnam and more recent veterans, yet his health is deteriorating with age, and also as a result of his demanding and stressful service in World War II.
20. As explained to Mr Tyas, the legislation does not permit any flexibility in respect of the age and work criteria, and each case must be considered against the circumstances of the individual. On the evidence before me, and for the reasons given above, he cannot be eligible for the Special Rate or Intermediate Rate of pension. That he has no eligibility, in no way detracts from his valuable and highly regarded war service.
21. In the circumstances, the Tribunal must affirm the decision under review that Mr Tyas is not eligible to receive an increased disability pension and continues to be eligible to be paid disability pension at the Extreme Disablement Adjustment rate.
I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Rear Admiral A R Horton AO, Member
Signed: ................[sgd]................................................................
AssociateDates of Hearing 7 October, 13 November and 2 December 2008
Date of Decision 23 December 2008
Appearance for the Applicant Self-represented
Advocate for the Respondent Mr T O'Reilly, Department of Veterans’ Affairs
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