VNJL and Repatriation Commission (Veterans' entitlements)

[2019] AATA 4394

VNJL and Repatriation Commission (Veterans' entitlements) [2019] AATA 4394 (6 September 2019)

Division:VETERANS’ APPEALS DIVISION

File Number:           2018/5221

Re:VNJL   

APPLICANT

Repatriation CommissionAnd  

RESPONDENT

DECISION

Tribunal:Senior Member Katter

Date:6 September 2019

Place:Brisbane

The decision under review is affirmed.

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Senior Member Katter

CATCHWORDS

VETERANS’ AFFAIRS – claim for defence-caused conditions – claim for an increase in disability pension – application for special rate – decision affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)
Veterans’ Affairs Legislation Amendment (Budget Measures) Act 2017 (Cth)
Veterans’ Entitlements Act 1986 (Cth)

CASES

Burgess v Repatriation Commission [2016] AATA 598
Norman Robert Cowper and Repatriation Commission [1996] AATA 360
Re Maurice Joseph Vann v Repatriation Commission [1986] AATA 223
Thomson v Repatriation CoPmmission [2000] FCA 204

REASONS FOR DECISION

Senior Member Katter

6 September 2019

INTRODUCTION

1. On 1 August 2017 the Respondent increased the Applicant’s pension to 100% of the general rate but did not additionally increase the Applicant’s rate of pension to the intermediate, special rate and/or apply the extreme disablement adjustment.  The Applicant seeks a review of the decision of 1 August 2017 to not increase the pension rate to the special rate[1].

   [1]Applicant’s submission dated 19 March 2019, paragraph 2.

   BACKGROUND

2. The Applicant served in the Australian Regular Army from 13 December 1950 to 16 March 1969.  After graduation from the Royal Military College, the Applicant served in Korea and twice in Vietnam.  The Applicant subsequently served in the Australian Army Reserves from 17 March 1969 to 18 March 1979[2].

   [2]Respondent’s Statement of Issues, Facts and Contentions dated 13 February 2019, paragraphs 3-4.

   ISSUE

3. The Applicant claimed a pension from the Respondent in 2001, which was granted[3]. 

   [3]T50.

4. On 9 July 2009 the Applicant made application for an increase in the disability pension for previously accepted disabilities.  On 30 September 2009 there was a decision by the Respondent that the application of 9 July 2009 for an increase in the disability pension was “unsuccessful”, with the disability pension continuing at 70% of the general rate[4].   

   [4]T76.

5. On 6 January 2012 the Applicant made application for an increase in the disability pension.  On 22 March 2012 that application for an increased disability pension was “unsuccessful”, with the disability pension continuing at 70% of the general rate.  On 1 June 2012 the Applicant made application for review to the Veterans’ Review Board, stating:  “I do not believe that the decision maker properly took into account my work history and as a result I was denied a disability pension at the Special Rate.  In addition I believe that the assessment of my accepted disabilities is incorrect and my impairment points should be greater.”  On 3 October 2013 the Veterans’ Review Board set aside the decision under review of 22 March 2012 and substituted its decision that the pension be payable at 80% of the general rate with effect from 8 August 2013[5].

   [5]T98.

6. On 2 May 2017 the Applicant lodged an application for an increase in the disability pension for previously accepted disabilities[6].  On 1 August 2017 the Respondent accepted the application lodged on 2 May 2017 for an increased disability pension, increasing the disability pension to 100% of the general rate with effect from 2 May 2017.  The reasons for decision of the Respondent dated 1 August 2017 state an impairment rating of 50 points and a lifestyle rating of 5, combined to give a degree of incapacity of 100%.  The reasons state as to the special rate, intermediate rate and the extreme disablement adjustment as follows[7]:

   [6]T99.

   [7]T103.

   “When the degree of incapacity is 100%, I must also consider whether payment can be made at the Special or Intermediate Rates, or whether payment of the Extreme Disablement Adjustment applies. …

   The Special Rate can be paid to a veteran who is totally and permanently incapacitated for paid work of more than 8 hours per week because of war or defence caused incapacity alone.  In addition, he or she must be prevented from continuing paid work solely because of accepted disabilities, and as a consequence be suffering a loss of earnings.

   If a veteran has reached 65 years of age, additional criteria apply.  The veteran must have been engaged in remunerative work for a continuous period of at least ten years that commenced prior to the veteran turning 65 and continued past the age of 65.

   The criteria for the Intermediate Rate are the same as for the Special Rate, except that the veteran must be incapacitated for work other than on a part-time basis or intermittently.  Part-time work is considered to be work not exceeding 50 per cent of the time ordinarily worked in a particular kind of work or, in kinds of work in which there are no ordinary working hours, work not exceeding 20 hours per week.

   [VNJL] advised on his disability claim lodged on 2^nd May 2017 that he ceased employment in October 2001 due to hearing loss.  [VNJL] was also granted the age service pension on 31^st October 2001 aged 72 and has remained a pensioner and effectively a retired person since he was granted [a] service pension. …

   I have determined that you are not entitled to receive disability pension at the Intermediate Rate or Special Rate because you have been out of the workforce for approximately 16 years, have not sought employment or intend to seek employment, and also have non-accepted disabilities that also impact upon your ability to undertake remunerative employment.

   Therefore you are not prevented from engaging in remunerative employment and you are not suffering a loss of earnings because of your war caused disabilities alone.

   The Extreme Disablement Adjustment is payable to veterans who are severely incapacitated by service related incapacity but who are not eligible for pension at either the Special or Intermediate Rate.

   To receive the Extreme Disablement Adjustment a veteran must:

   -be at least 65 years of age;

   -have a degree of incapacity of 100%; and

   -have a medical impairment rating for accepted disabilities of at least 70 points, and a lifestyle rating of at least 6.

   I am satisfied that [VNJL] is not eligible for the Extreme Disablement Adjustment as his medical impairment and lifestyle ratings are less than the amounts prescribed.

   [VNJL’s] disability pension is therefore increased to 100% of the General Rate with effect from 2 May 2017.”

7. On 29 September 2017 the Applicant requested a review by the Veterans’ Review Board as to the Special Rate.  By the Veterans’ Review Board decision on 29 May 2018 the Board decided to affirm the decision under review.

   SECTION 24

8. Section 24(2A) of the Veterans’ Entitlements Act 1986 (Cth)[8] (“the Act”) stated:    

   [8]As registered at 11 April 2017, C2017C00133, having a start date of 5 April 2017 and an end date of 18 May 2017.

   “(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.”

9. The application made on 2 May 2017 was an application for an increase in pension pursuant to section 15(1) of the Act. The determination as to that application was made on 1 August 2017[9]. Section 19(1)(c) of the Act states that where an application is submitted to the Commission in accordance with sub-s 17(2), the Commission shall subject to section 19, determine an application under sub-s 15(1) under sub-s 19(5D). Sub-section 19(5D) states that after making an assessment under sub-s 19(5C), the Commission must determine that a pension is payable at the rate assessed.

   [9]T103, 409-413.

10. Section 24 was amended by Act No. 59 of 2017, the Veterans’ Affairs Legislation Amendment (Budget Measures) Act 2017 (Cth) (“the amendment Act”). Section 2(1), Column 1, item 5, of the amendment Act states that Schedule 2 of the amendment Act commences on 1 July 2017.

11. Schedule 2 (Work test for intermediate or special rate of pension), item 2, to the amendment Act repealed sub-s 24(2A)(g) of the Act and substituted the following:

    “(g)     when the veteran stopped undertaking his or her last paid work, the veteran had been undertaking remunerative work for a continuous period of at least 10 years that began before the veteran turned 65; … ”

12. Schedule 2, item 3, of the amendment Act states that the amendments made by the Schedule apply in relation to a claim or application referred to in paragraph 24(2A)(a) of the Act that is made on or after the commencement of that item.

    CONSIDERATION

13. At the time that the Applicant lodged the application on 2 May 2017 he was over 65 years of age. 

14. To be entitled to the Special Rate, all of the sub-paragraphs in s 24(2A) are to be applicable[10].  The Respondent submits that the Applicant satisfies sub-ss 24(2A)(a), (b), (f) and (h)[11]. The Respondent, however, contends that the Applicant is not eligible for an increase in pension to the Special Rate because the Applicant does not satisfy sub-s 24(2A)(g) of the Act[12]. 

    [10]Norman Robert Cowper and Repatriation Commission [1996] AATA 360 at [2] per Deputy President D. Chappell.

    [11]Respondent’s Statement of Issues, Facts and Contentions dated 13 February 2019, paragraph 35.

    [12]Respondent’s Statement of Issues, Facts and Contentions dated 13 February 2019, paragraph 36.

15. The last paid work of the Applicant before the application on 2 May 2017 was between November 2006 and January 2007, being the completion of reports for Queensland Consulting Project Partners Pty Ltd, for which the Applicant was paid[13].  There is a contract between the Applicant and Queensland Consulting Project Partners Pty Ltd dated 25 September 2005[14].  That contract was for 18 months[15], with fees to be paid in arrears at a fixed rate per month as to services or at a daily rate, being 1/30^th of the monthly rate[16].  The payment does not include sickness, recreation leave, long service leave, extended hours of work or superannuation which are “the responsibility of the” Applicant[17]. 

    [13]T90, p 338. 

    [14]T59. 

    [15]T59, p 241, clause 2.1.

    [16]T59, p 242, clause 4.1.

    [17]T59, p 242, clause 4.2. 

16. In Thomson v Repatriation Commission [2000] FCA 204 the Court (Ryan, North and Merkel JJ) stated at [10] that: “… A veteran meets the requirements of the sub-section if the last paid work has been undertaken in the relevant capacity for a continuous period of at least 10 years. If the capacity is as an employee, the veteran must have been employed by the same employer (or its predecessor) continuously for the 10 year period. If the veteran is self-employed, then the last paid work must have been undertaken in that capacity continuously for the 10 year period. When sub-clause (ii) refers to the requirement that the self-employed veteran must have been "so working" continuously for the 10 year period, the reference is to the capacity in which the veteran worked.”

17. The Applicant turned 65 on 18 March 1994. Sub-section 24(2A)(g) asks whether the Applicant had been working on his own account in the same paid work as he was doing between November 2006 and January 2007 for a continuous period of at least 10 years that began before the Applicant turned 65 on 18 March 1994. There were periods where the Applicant was not able to work on his own account for a continuous period in the profession, vocation or calling in the 10-year period that begun before the applicant turned 65[18]:  17 September 1996 to 31 December 1996.  Therefore, the Applicant was not working on his own account in any profession, vocation or calling for a period of 10 years that began before the veteran turned 65, as it was not “continuous”, as required by sub-s 24(2A)(g).  Further, the Applicant’s documents indicate that the Applicant was working in the period January 1996 until May 1996 as an employee of another person, in that the Applicant states that he was “taking the leave accrued”[19] and “was promoted to the position”[20], that employment being in contrast to the last paid work of the Applicant between November 2006 and January 2007, as referred to above.  The Applicant was not therefore working on his “own account” in the same paid work as he was doing between November 2006 and January 2007 for a continuous period of at least 10 years that began before the Applicant turned 65 on 18 March 1994, as required by sub-s 24(2A)(g).    The Applicant submitted that if the pre-1 July 2017 sub-s 24(2A)(g) provision applied the application ‘fails’[21], but if the amended sub-s 24(2A)(g) provision applied the application ‘succeeds’[22]. 

    [18]T90, T99.2 and T99.7. 

    [19]T90, page 342. 

    [20]T90, page 342. 

    [21]Submission of 19 March 2019 at paragraph 4. 

    [22]Submission of 19 March 2019 at paragraph 4. 

18. The Applicant relies on a letter from the then Minister for Veterans’ Affairs to the Member for Leichardt dated 9 July 2017[23], which states relevantly:  ‘DVA will consider the information provided by [VNJL] with his application, together with the employment history held on his file to determine it in accordance with the new rules that apply from 1 July 2017’. 

    [23]Exhibit 5, Letter dated 9 July 2017.

19. The Applicant submitted that the communication of the Minister of 9 July 2017 to the Member for Leichardt was a “promise” by the Respondent ‘over the signature of its Minister’, committing itself to applying the 1 July 2017 amended sub-s 24(2A)(g)[24].  The Minister in the correspondence to the Member for Leichardt stated that, as Minister “… you will appreciate that I have no power to influence decisions made by independent authorities, such as the [Respondent] and its delegates, nor do I have any discretion to review or intervene in any individual case”.  The Tribunal has no legal power or authority other than that conferred upon it by the Administrative Appeals Tribunal Act 1975 (Cth) and the Act[25]. The Tribunal’s jurisdiction is limited to a review of the Applicant’s claim for an increase in his disability pension in accordance with the provisions of the Act, having regard to the available evidence. The Applicant referred to the correspondence of the Minister as a “promise”, but the Tribunal has no jurisdiction to enquire into or decide questions relating to estoppel[26]. 

    [24]Submission of 19 March 2019 at paragraph 4. 

    [25]Burgess and Repatriation Commission [2016] AATA 598 at [21] per Deputy President K. Bean and Member LtCol R. Ormston (Rtd.).

    [26]Re Maurice Joseph Vann v Repatriation Commission [1986] AATA 223 at [25] per Deputy President C.J. Bannon QC, Member Dr M.E.C. Thorpe and Member S. Crawshaw.

20. The Applicant specifically limited his application to only the Special Rate, with no requirement therefore to consider whether the Applicant is entitled to receive the Intermediate Rate or the Extreme Disablement Adjustment.

21. The amended sub-s 24(2A)(g) provision only applies in relation to an application referred to in paragraph 24(2A)(a) of the Act that is made on or after 1 July 2017, for the reasons referred to above. As not all the criteria in sub-s 24(2A) of the Act are met, the Applicant is not entitled to a pension at the Special Rate.

    DECISION

22. The decision under review is affirmed.

I certify that the preceding 22 (twenty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member Katter

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Associate

Dated: 6 September 2019

Date of hearing:	2 July 2019
Date final submissions received:	5 August 2019
The Applicant:	In person
Solicitor for the Respondent:	Mr Joshua Sproule
Solicitors for the Respondent:	Australian Government Solicitor