Ward and Repatriation Commission

Case [2002] AATA 809

DECISION AND REASONS FOR DECISION [2002] AATA 809

ADMINISTRATIVE APPEALS TRIBUNAL        Nº N2001/1439
VETERANS' APPEALS DIVISION
  Re:         Barrie Thomas Ward
  Applicant
  And:       Repatriation Commission
  Respondent

DECISION

Tribunal:Mr P.J. Lindsay, Senior Member, Dr J. Campbell and Mr S. Webb, Members

Date:             17 September 2002
Place:            Sydney

Decision:The decision under review is set aside.  In substitution the Tribunal decides that Mr Ward is entitled to a disability pension at the special rate from 5 February 1999.

[SGD]Senior Member
CATCHWORDS
VETERANS' AFFAIRS - veterans' entitlements - assessment of rate of pension - post traumatic stress disorder and sensori-neural deafness - whether war-caused incapacity, alone, was the cause of inability to undertake remunerative work - whether special rate of pension applicable

Veterans' Entitlements Act 1986 – ss. 14,19, 21A, 24, 28 and 120
Repatriation Legislation Amendment Act 1985 – Sch. 2
Parliamentary Debates, House of Representatives, 17 May 1985, Second Reading Speech, Minister for Veterans' Affairs
Department of Veterans' Affairs 1998 Guide to Assessment of Rates of Veterans' Pensions, 5th edition, Canberra
American Psychiatric Association 1995 Diagnostic and Statistical Manual of Mental Disorders, 4th edition, Washington DC

Cavell v Repatriation Commission (1988) 9 AAR 534
Birtles v Repatriation Commission (1991) 33 FCR 290
Bowman v Repatriation Commission (1981) 51 FLR 374
Repatriation Commission v Bowman (1981) 54 FLR 8
Flentjar v Repatriation Commission (1997) 26 AAR 93; (1997) 48 ALD 1
Repatriation Commission v Smith (MJ) (1987) 74 ALR 537
Forbes v Repatriation Commission (2000) 171 ALR 131
Chambers v Repatriation Commission (1995) 36 ALD 207
Defence Force Retirement and Death Benefits Authority v House (1989) 91 ALR 286; (1989) 11 AAR 369
Banovich v Repatriation Commission (1986) 69 ALR 395
Magill v Repatriation Commission [2002] FCA 744
Repatriation Commission v Sheehy (1995) 133 ALR 654
Fox v Repatriation Commission (1997) 45 ALD 317
Re Reilly and Repatriation Commission (1987) 12 ALD 533
Repatriation Commission v Braund (1991) 23 ALD 591

REASONS FOR DECISION

Mr P.J. Lindsay, Senior Member

  1. This is an application for review of a decision of the Repatriation Commission (the Commission) dated 2 September 1999, as affirmed by the Veterans' Review Board on 22 August 2001, to assess disability pension at 100 per cent of the general rate from 5 February 1999.

  2. At the hearing, Mr Ward, the applicant, was represented by Mr N. Dawson of counsel and the Commission by Ms S. Breuer of the Advocacy Section of the Department of Veterans' Affairs.  Mr Ward gave evidence and Dr Dinnen, consultant psychiatrist, gave evidence on his behalf.

  3. The Tribunal had before it the documents (T documents) lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 and the following documents were tendered at the hearing:
    - Exhibit A1              Report by Dr Dinnen dated 7 March 2002
    - Exhibit A2              Statement by Mr Ward dated 30 April 2002
    - Exhibit R1              Report by Dr Walden dated 7 March 2002
    - Exhibit R2              Report by Dr Chen dated 24 April 2002
    - Exhibit R3              Letter from AAP dated…

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Ward and Repatriation Commission [2002] AATA 809
Case
[2002] AATA 809
Decision Date

CaseChat Overview and Summary

In the case of Ward v Repatriation Commission, the dispute centred around the eligibility of Mr. Ward for a special rate of pension under the Veterans' Entitlements Act 1986. Mr. Ward, a former member of the RAAF with war-caused disabilities, including post-traumatic stress disorder and sensori-neural deafness, contended that his war-caused incapacity should qualify him for a special rate of pension, notwithstanding his voluntary redundancy and subsequent retirement. The Tribunal was tasked with determining whether Mr. Ward's incapacity, solely due to his war-caused disabilities, rendered him incapable of undertaking remunerative work for periods aggregating more than eight hours per week, as required by s.24(1)(b) of the Act.

The primary legal issue was whether Mr. Ward's war-caused incapacity alone was the cause of his inability to undertake remunerative work, thereby satisfying the criteria for a special rate of pension. The court examined whether Mr. Ward's disabilities, in isolation, met the threshold of total and permanent incapacity under s.24(1)(b) of the Act. Additionally, the Tribunal needed to consider if the ameliorating provisions in s.24(2)(b) applied, which might have excluded Mr. Ward from qualifying for the special rate due to other factors such as age.

The Tribunal found that Mr. Ward had made a valid claim for pension, was under the age of sixty-five at the time of the claim, and his degree of incapacity from war-caused disabilities met the threshold of at least 70% as per s.21A of the Act. However, the Tribunal concluded that Mr. Ward's incapacity due to his disabilities was not the sole reason for his inability to undertake remunerative work, as he had ceased employment due to redundancy and subsequent retirement. The Tribunal found that his incapacity did not render him incapable of undertaking work for periods aggregating more than eight hours per week, thus he did not qualify for the special rate of pension. The Tribunal's decision was based on the reasonable satisfaction standard as per s.120(4) of the Act.

The final orders of the Tribunal were that Mr. Ward's application for review of the decision to assess his disability pension at the general rate was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

The Tribunal had before it the documents (T documents) lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 and the following documents were tendered at the hearing:- Exhibit A1 Report by Dr Dinnen dated 7 March 2002- Exhibit A2 Statement by Mr Ward dated 30 April 2002- Exhibit R1 Report by Dr Walden dated 7 March 2002- Exhibit R2 Report by Dr Chen dated 24 April 2002- Exhibit R3 Letter from AAP dated 19 March 2002 with 2 attachmentsbackground Mr Ward was born on 3 August 1934. He left school at age 16 and commenced work as a copyboy with The Sydney Morning Herald in 1952. He undertook National Service training for six months in 1952 and was in the Air Force Reserves for a number of years. On 23 January 1967 he joined the RAAF and was commissioned as a Flying Officer. His operational service included a tour of duty in Vietnam, between 7 February 1967 and 5 February 1968, as a public relations photographer and gunner. On returning to Australia, he was discharged on 22 February 1968 and returned to work at News Limited. Mr Ward was employed by News Limited for approximately thirty-two years until being made redundant in 1991. Soon thereafter he was employed by AAP Information Services Pty Limited (AAP) to manage pictorial syndications. He continued in this role until being made redundant on 20 December 1996. On 5 May 1999 Mr Ward made a claim for disability pension under s.14 of the Veterans' Entitlements Act 1986 ("the Act"). On 2 September 1999 the Commission assessed disability pension at 100 per cent of the general rate and stated that "Neither Intermediate Rate nor Special Rate is payable as you took voluntary redundancy in 1996 and did not subsequently look for work as you had retired from employment" (T13). Mr Ward has the following disabilities accepted by the Commission as war-caused: On 12 October 1999 Mr Ward sought review of the decision "[b]ecause the circumstances surrounding voluntary redundancy were directly related to my accepted disabilities. Long history of difficulties in work place … now unable to work due to accepted disabilities" (T14). On 29 August 2001 the Veterans' Review Board affirmed the Commission's decision. Mr Ward applied for review by the Tribunal on 21 September 2001.legislation Mr Ward contends that his pension should be at the Special Rate, the qualifications for which are set out in s.24 of the Act which relevantly reads as follows:24 Special rate of pension(1) This section applies to a veteran if: (aa) 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 (aab) the veteran had not yet turned 65 when the claim or application was made; 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. …

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Ms Breuer extended argument to the question whether the ameliorating provisions in s.24(2)(b) apply, contending that Mr Ward's incapacity due to his accepted disabilities is not the substantial cause of his inability to obtain remunerative work, age being the significant factor. Ms Breuer argued that Mr Ward did not satisfy the condition contained in s.24(2)(a)(i) of the Act because he ceased to engage in remunerative work at AAP and at News Limited due to redundancy, and not his accepted disabilities. consideration of issues In making a determination, decision or assessment of the rate of pension payable in relation to Mr Ward's application, s.120(4) of the Act requires the Tribunal to decide the matter to its reasonable satisfaction, thereby introducing the civil standard of proof: Repatriation Commission v Smith (MJ) (1987) 74 ALR 537. Pursuant to s.19 of the Act, the relevant time for determining Mr Ward's entitlement to the special rate of pension is during the "assessment period", that is from 5 May 1999 until the date of the Tribunal's decision: Forbes v Repatriation Commission (2000) 171 ALR 131. There was no dispute between the parties concerning the matters covered by ss.24(1)(aa), 24(1)(aab) and 24(1)(a) of the Act. The Tribunal finds that Mr Ward has made a claim for pension, he had not turned sixty five when he made the claim and his degree of incapacity from war-caused disabilities has been determined under s.21A of the Act to be at least 70 per cent.Section 24(1)(b) In the first instance, the task of the Tribunal is, under s.24(1)(b), to determine whether Mr Ward is totally and permanently incapacitated. That is, his incapacity from his war-caused disabilities, alone, must have rendered him incapable of undertaking remunerative work for periods aggregating more than eight hours per week. In determining whether Mr Ward satisfies the criteria in s.24(1)(b), the Tribunal may take into account only the matters set out in s.28 of the Act. The Tribunal is mindful of the arguments raised in submissions but notes that s.28 is exhaustive of the matters to be taken into account when making a determination under s.24(1)(b). The following passage from the joint judgment of Moore and Sackville JJ (Davies J agreeing) in Chambers v Repatriation Commission (1995) 36 ALD 207 at 218 is instructive:It may be accepted that s.28 focuses the inquiry that s.24(1)(b) would otherwise require. As Davies J pointed out in Re Thompson and Defence Force Retirement and Death Benefits Authority (1987) 6 AAR 424 (AAT), at 430-1, in relation to an equivalent provision in the 1973 Act, the effect of s.28 is to exclude a number of matters which otherwise might have been relevant to the determination required by s. 24(1)(b). Such matters as depressed labour market conditions are excluded from consideration for the purposes of s.24(1)(b) (although some of the these may be relevant to the separate determination required by s.24(1)(c) of the 1986 Act as to whether war-caused incapacity has prevented the veteran from continuing to undertake remunerative work).