Ward and Repatriation Commission (Veterans' entitlements)
[2017] AATA 406
•31 March 2017
Ward and Repatriation Commission (Veterans' entitlements) [2017] AATA 406 (31 March 2017)
Division: VETERANS' APPEALS DIVISON
File Number: 2015/1221
Re:Philip Ward
APPLICANT
Repatriation CommissionAnd
RESPONDENT
DECISION
Tribunal:Egon Fice, Senior Member
Date:31 March 2017
Place:Melbourne
The Tribunal affirms the decision under review.
........................................................................
Egon Fice, Senior Member
VETERANS – entitlements – pensions – rates – qualification for Special Rate – veteran over 65 – whether applicant had ceased to undertake remunerative work when applying for Special Rate – applicant found to have ceased the remunerative work that he was last undertaking before turning 65 – decision affirmed
Legislation
Veterans’ Entitlements Act 1986 (Cth) ss. 24(1)(a), 24(1)(b). 24(2A), 24(2A)(d), 24(2A)(f) 24(2B), 31, 136, Division 4 Part I
Taxation Administration Act 1953 (Cth) s. 12-47
Fringe Benefits Tax Assessment Act 1986 (Cth) s. 57Cases
Repatriation Commission v Haskard [2002] FCA 1493
REASONS FOR DECISION
Egon Fice, Senior Member
31 March 2017
Mr Phillip Ward served in the Australian Army having operational service in South Vietnam between 1970 and 1971. He applied for and was granted a disability pension.
On 11 August 2011 the Repatriation Commission determined that Mr Ward was entitled to the pension at 90% of the General Rate. The rate of pension payable to veterans is determined by their degree of incapacity (see Division 4 of Part I of the Veterans’ Entitlements Act 1986 (the VE Act). The degree of incapacity is determined according to the provisions of the approved Guide to the Assessment of Rates of Veterans’ Pensions, 5th edition (the Guide). It is determined as 10% or a multiple of 10%, not exceeding 100%.
Dissatisfied with that decision, Mr Ward sought a review by the Veterans’ Review Board (VRB). On 7 June 2012 the VRB set aside the decision of the Repatriation Commission and determined that from and including 16 May 2011, Mr Ward was entitled to be paid at the Intermediate Rate.
On 18 February 2013 Mr Ward lodged an application with the Department of Veterans’ Affairs (DVA) for an increase in the Disability Pension. Having been born on 28 November 1946, Mr Ward was about 66 years and 3 months of age at the time he lodged that application. He claimed the following reasons for his application for an increase in the rate of pension:
The veterans PTSD has been the major factor in him having to cease employment. He is totally unable to mix with people any longer and has found it easier on his stress levels to stay at home away from people. He has ceased seeing his psychiatrist as it was too confronting for him and is now seeing Dr. Geoff Allen [GP] on a regular basis. He can relate to him easier.
Hearing loss and bilateral tinnitus has also become worse.
Erectile dysfunction is still a major issue.
Pruritus ani is still a problem.
On his application form for an increase in the disability pension, Mr Ward said that his Post Traumatic Stress Disorder (PTSD) had caused him to cease employment and he was not able to seek any alternative employment. He noted that he ceased work on 16 November 2010, stating the reason for cessation was war-caused disabilities alone.
In a letter dated 28 February 2013 a delegate of the Repatriation Commission notified Mr Ward that his application for increased disability pension was unsuccessful. The delegate also noted that his disability pension was to be continued at the Intermediate Rate. The delegate was satisfied that Mr Ward had an overall medical impairment rating of 50 under the Guide and a lifestyle rating of 4.
Dissatisfied with the Repatriation Commission’s decision, Mr Ward requested a review under s. 31 of the VE Act and under s. 136 for review by the VRB. In a letter dated 21 May 2013 a delegate of the Repatriation Commission informed Mr Ward that because he ceased work prior to reaching the age of 65 years and had lodged his application for increased benefits after turning 65, he was precluded by the VE Act from receiving a pension beyond the Intermediate Rate. The delegate also informed Mr Ward that his application for review would proceed to the VRB.
The VRB heard Mr Ward’s review application on 5 December 2014 and decided, on that date, to affirm the decision under review. Mr Ward then lodged an application for review to this Tribunal on 17 March 2015.
Although I first heard this matter on 21 March 2016, the matter was adjourned to allow further materials to be lodged on behalf of Mr Ward. The Repatriation Commission lodged further documents on 24 May 2016. The hearing then resumed on 20 July 2016, concluding on that day. On 19 August 2016 the Repatriation Commission lodged a number of documents received from Westpac Group which had been summonsed earlier. I allowed the parties two weeks after inspecting the summonsed documents to make further submissions. Mr Ward’s solicitors contacted the Tribunal on 25 August 2016 requesting a further extension of two weeks to lodge further submissions as Mr Ward was overseas. That extension was granted extending the time to 7 September 2016. The final submissions from Mr Ward’s solicitors relating to the Westpac documents were received by the Tribunal on 8 September 2016.
Mr Ward claims he is entitled to the Special Rate of pension as set out in
s. 24 of the VE Act.
The issues which arise in this case are:
(a)whether Mr Ward, at the time of his application for the Special Rate of pension, ceased to undertake remunerative work; and
(b)if Mr Ward did cease to undertake remunerative work, when did Mr Ward cease to undertake the remunerative work that he was last undertaking before he made the claim or application for the Special Rate.
QUALIFICATION FOR SPECIAL RATE OF PENSION
Section 24 of the VE Act deals with the Special Rate of pension. In particular, s. 24(2A) deals with applications made for an increase in the rate of pension after the veteran has turned 65 years of age. As Mr Ward was over 65 years of age at the time he lodged the application for an increase in the Disability Pension, he must meet the qualifying criteria set out in ss. 24(2A) and (2B) of the VE Act. Relevantly, they provide:
(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 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-cause 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)(b), a veteran who is incapacitated from war-caused injury or war-cause 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.
I note in passing that the VRB apparently overlooked the fact that both ss. 24(2A) and (2B) applied in this case.
Section 24(2A) refers to s. 24(1)(a) and (1)(b). Those sections relevantly provide:
(1) This section applies to a veteran if:
…
(a)either:
(i) the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 20 (1A) to be at least 70% or has been so determined by 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; and
…
Given that s. 24(2A) makes reference to ss. 24(1)(a) and (b), and that they must apply to a veteran who turned 65 before his or her application was made, I need to clarify how those subsections affect the provision in s. (2A)(d) which requires the veteran, as a result of incapacity from a war-caused injury or war-caused disease, alone, to have been prevented from continuing to undertake remunerative work, that being his or her last paid work before making their claim.
Hill J in the Federal Court of Australia case, Repatriation Commission v Haskard [2002] FCA 1493 (29 November 2002), dealt with this issue. His Honour said, at [26] and [27]:
26. When one comes to look at the provisions dealing with the Special Rate of pension, ie s 24, it is again clear that the veteran may be prevented from continuing to undertake remunerative work that he or she was undertaking, notwithstanding that the veteran may be capable of undertaking remunerative work for periods aggregating at least up to eight hours per week.
27. However, when one comes to the provision in question, s 24(2A), no reference at all is made to capacity for intermittent or part-time work of any kind, nor is any provision which raises an implication that the veteran have some capacity to work intermittently or part-time.
Accordingly, Hill J then explained the operation of s. 24(2A)(d) in the following way:
28.… It seems to me that in each case where language equivalent to s. 24(2A)(d) is used, what is required is that the veteran, by reason only of the war-caused injury or disease or both, can no longer work in the particular job or occupation that the veteran has had. In none of the occasions where these words are used is there any implication one way or the other that the veteran would be incapacitated from working in any other job or occupation. There is nothing in these words which goes to the question of capacity to work. All that is in question is whether the veteran has been prevented from continuing to undertake the particular remunerative work that he had undertaken.
His Honour went on to say:
30. Finally, in the case of the Special Rate pension where the incapacity must be at least 70%, the veteran under 65 may have the capacity to, and in fact undertake, remunerative work for some number of hours per week but nevertheless, be prevented from undertaking the remunerative work that he in fact was undertaking. However the veteran must have ceased to be undertaking the particular remunerative work that he had previously undertaken before the Special Rate pension is payable.
31. Not surprisingly, in the case of a veteran over the age of 65, the tests are more stringent. The degree of incapacity must still be at least 70%, except in the case with a veteran is suffering from pulmonary tuberculosis and have a degree of incapacity which prohibits the veteran from working more than eight hours per week. Those requirements go to the degree of incapacity but did not go to the provisions of s. 24(2A)(d) which provides that it is that incapacity which prevents the veteran from continuing to undertake remunerative work that the veteran last undertook. Whether the incapacity does so prevent the veteran from continuing to undertake the remunerative work is a matter of fact. Either the veteran is or the veteran is not prevented from continuing to undertake the last paid work he undertook. If that last paid work was as here, acting as a property value on his own account, the question to be asked is whether that last paid work has ceased or whether it has continued. On the facts here it has not ceased but continued. All that has happened is the quantity of workers declined but that does not mean that the work itself has ceased.
As will become apparent presently, the explanation given by Hill J regarding the distinction between capacity for work and whether the veteran has ceased performing the last paid work which he or she was undertaking before making the claim or application, is a relevant consideration in Mr Ward’s case.
MR WARD’S CLAIM THAT HE CEASED REMUNERATIVE WORK
Mr Ward’s evidence regarding when he ceased to undertake the remunerative work that he was last undertaking is controversial. The remunerative work which he was undertaking was as a pastor of the Assemblies of God (now called Australian Christian Churches Services). According to Mr Ward, that employment commenced on 1 February 1999.
The DVA records disclose that on or about 16 November 2010 Mr Ward lodged an application with DVA for a Service Pension and also the Pension Bonus. On that application form, Mr Ward was required to state the date his employment ceased and he entered the date 16 November 2010. Mr Ward was also required to enter the details of retirement benefits which he was receiving. He noted that his long service leave entitlement ($770.25) was paid out on 19 November 2010 as was his recreational leave entitlement ($600.21). His employer at the time he made his application was stated to be Gateway Church Geelong.
Ms Glenda Baas, who described herself as an Administrator with the Gateway Church at Geelong, provided a supporting letter dated 17 November 2010 which states:
This is to certify that on 16 November, 2010 Mr. Phillip A Ward has ceased taxable employment with the Gateway Church Geelong. This is due to accepted disabilities with the Veteran Affairs Department.
All Long Service Leave and Annual Leave have been paid out.
All Superannuation payments have been paid out.
…
There was a second letter sent to DVA by Ms Baas on the same day indicating that Mrs Ward had also ceased employment with the Gateway Church Geelong and that her long service leave and annual leave entitlements had been paid out as well as her superannuation.
On 1 March 2011 a Pension Officer with the Vietnam Veterans’ Federation informed DVA that Mr Ward wished to change his Service Pension application from Invalidity to an Age Pension. This enabled Mr Ward to apply for the Pension Bonus scheme on the basis that he deferred claiming the Service Age Pension, which may be claimed by a male veteran on reaching the age 60 years. On the same day, Mr Ward completed an application to register with the Pension Bonus Scheme. On 4 March 2011 DVA notified Mr Ward that he satisfied the work test during his period of pension deferral being between 28 November 2006 and 21 November 2010.
As I understand it, Mr Ward at that time claimed to be employed for the four-year period in question but was eligible for an age pension under the VE Act. That, save for a four day period, coincides with Mr Ward’s statements that he ceased employment on 16 November 2010. Mr Ward received the pension bonus as a tax-free lump sum payment of $19,940.90 on 10 March 2011. DVA also notified Mr Ward on 4 March 2011 that he would receive payment of a service pension effective from 22 November 2010.
Ms Baas completed an Employer’s Questionnaire for DVA on 5 April 2011 regarding the state of Mr Ward’s employment by the Gateway Church Geelong. She responded to question number 3 which required her to state the reason for the termination of Mr Ward’s employment. She wrote: Ill health. Post Traumatic Stress. Ms Baas noted that when employed, Mr Ward worked on average 40 hours per week but at times worked more than those hours and at other times less due to stress. In answer to the question asking if the veteran worked less than full-time and what was the reason for that, she responded: Not applicable. In answer to the question whether Mr Ward’s hours of work reduced in the last 12 months, she responded: Ceased 16 November, 2010.
Mr Ward also completed an Employment Questionnaire on 5 April 2011. In answer to the question whether he was currently employed, Mr Ward answered: No and stated he ceased employment on 16/11/2010. In answer to a question whether he received any form of salary continuance payments since ceasing work, Mr Ward put an X in the No box . Immediately above Mr Ward’s signature on that document is a statement reminding him that the Declaration he signed on the claim form also covered the information supplied on that form. It stated that there are penalties for knowingly making false or misleading statements.
In a letter dated 24 November 2011 Ms Baas wrote to the Advocate Officer, RSL in Melbourne in which she confirmed Mr Ward ceased employment with the Gateway Church Geelong on 16 November, 2010. She also said:
It is to be clearly noted that since 16th of November, 2010, Mr Ward has only managed to put in between 5 to 8 hours most weeks doing voluntary work around the Church.
Mr Ward provided the Tribunal with a statement dated 3 March 2015 which was taken into evidence. In his statement, Mr Ward testified that up until about 2008 his normal hours of duty each week were about 40. He decided to reduce his hours of work in about 2008 due to difficulties coping with the symptoms of post-traumatic stress disorder and said the reduction in hours of work was gradual. He said he reduced his hours of work to less than 20 per week by about 2010. Mr Ward testified that there was a further significant reduction in his hours of work in 2013 and another decrease in about 2014.
In his evidence-in-chief, Mr Ward was asked when he stopped working and he said he thought it was in May 2015. He also testified that he was planning to retire at age 70 but found he couldn’t do it. Mr Ward claimed that but for his PTSD he would have continued working.
In cross-examination regarding his working history and cessation of full-time work, Mr Ward’s responses were totally unsatisfactory. When taken to statements made by Ms Baas regarding his employment, particularly in relation to his claim for a service pension, Mr Ward simply said he could not recall. He could not recall or was not sure whether all of his entitlements were paid out as stated by Ms Baas in her letter of 12 November 2010. When taken to the signature on the Service Pension Claim, Invalidity Details and asked if that was his signature, Mr Ward agreed it was. When taken to his response that he had ceased working on 16 November 2010, Mr Ward said he could not recall that. In fact in answer to every question put by Mr K Rudge, who appeared on behalf DVA, regarding statements made about when he ceased employment, he gave the same answer. Frankly, those answers are unacceptable. That is particularly so given that he made declarations regarding the accuracy of that information on the understanding there may be penalties for deliberately giving false or misleading information.
The problem with Mr Ward’s evidence is that if he had not in fact ceased working when he claimed he had done so, I do not understand how he would have been entitled to a tax‑free, lump sum payment under the Pension Bonus Scheme on 21 November 2010. If that information was false as he now appears to claim, stating he did not cease work on
16 November 2010 but he continued to work, perhaps DVA should re-examine his entitlement to the Pension Bonus payment, particularly the rate at which that was paid. That is so because on his Service Pension Claim form, Mr Ward stated that neither he nor his partner currently received any income from work. Furthermore, Mr Ward also indicated that both he and his partner had stopped working for an employer in the
12 months prior to completing that form.
At the hearing held in March 2016, I queried whether Ms Baas intended to give oral evidence at the hearing and I was told that she was seriously ill. I suggested that if possible, a witness statement should be obtained from her as, on many of the documents before me, she made a statement about Mr Ward ceasing employment with the Gateway Church Geelong. A statement was obtained from Ms Baas on 31 March 2016 and lodged with the Tribunal on 11 April 2016. It was taken into evidence.
Ms Baas testified that she worked in church administration for 27 years, commencing employment at Gateway Church Geelong on 11 September 2002 and ceasing employment on 21 February 2014. After about 18 months, she became responsible for the administration of the Gateway Community Church.
She described that from 1 February 1999 until November 2010 Mr Ward received two separate kinds of remuneration which she described as Taxable Income and Ministerial Fringe. She explained that Taxable Income was payments made which attracted tax obligations. However, the Ministerial Fringe payments were made by the Church to Mr Ward for the performance of pastoral duties. According to Ms Baas, they were exempt from the income tax regime. She also explained that Ministerial Fringe payments could only be made upon receipt of the invoices or receipts because those payments were drawn from a reimbursement account. Ms Baas then frankly stated that Mr Ward received the full Ministerial Fringe even if his incurred expenses (which he was entitled to have reimbursed) did not amount to that figure because the Ministerial Fringe was in fact remuneration paid to Mr Ward for the work he performed.
While it is not my duty in this type of claim to express any concerns with payments received by applicants, I must point out that the receipt of payments intended to be reimbursement of work expenses, which in fact were made not for that purpose but rather as a tax-free remuneration, appears, on its face, to be improper. Schedule 1 of the Taxation Administration Act 1953 at s. 12-47 makes it clear that an entity must withhold an amount from the payment it makes to a religious practitioner for an activity or series of activities done by the religious practitioner in pursuit of his or her vocation as a religious practitioner. If in fact the Church met some of the liabilities incurred by Mr Ward in conjunction with his employment, that may be regarded as a fringe benefit under the Fringe Benefits Tax Assessment Act 1986 (the Fringe Benefits Tax Act). If that were the case, the employer becomes liable to pay the fringe benefits tax. There are specific exclusions or exemptions from fringe benefits tax and one of those applies to religious institutions. Section 57 of the Fringe Benefits Tax Act provides:
Where:
(a)the employer of an employee is a religious institution;
(b)the employee is a religious practitioner;
(c)the benefit is provided to, or to a spouse or child of, the employee; and
(d)the benefit is not provided principally in respect of duties of the employee other than:
(i) any pastoral duties; or
(ii) any other duties or activities that are directly related to the practice, study, teaching or propagation of religious belief;
the benefit is an exempt benefit.
Mr Lee Eden, Mr Ward’s son-in-law, said that he and his wife, Mr Ward’s daughter, formally took over as pastoral leaders of the Gateway Church Geelong in 2015. In a witness statement dated 3 March 2016 which was taken into evidence, Mr Eden said that Mr Ward always received a modest direct payment of salary (which was subject to taxation) but his primary remuneration has always been what is known as Ministerial Fringe benefits. Mr Eden then said:
The ministerial fringe benefits which the Geelong Church paid on behalf of Phil related to outgoings such as electricity, gas, water, loans and the like. At face value, the direct payments which were declared by Phil for taxation purposes from the Gateway Church indicate that he received a meagre remuneration but it is necessary to take into account the ministerial fringe benefits to obtain a true picture of the remuneration.
The problem in this case is that the evidence of Ms Baas and Mr Eden was that the Church paid Mr Ward remuneration regardless of whether he performed any duties associated with the Church. According to Mr Eden, the Church has not paid any Ministerial Fringe benefits on behalf of Mr Ward since the end of 2015 but up until then it had been paying his phone and petrol costs. Unless those expenses were incurred in the performance of his pastoral or related duties, they are not exempt benefits.
Ms Baas said that Mr Ward ceased receiving Taxable Income in November 2010. However Mr Ward continued to receive Ministerial Fringe payments at a reduced rate and she believed this was due to his reduced duties which he was performing. She said at that time Mr Ward was receiving $50 of Taxable Income per week and $729.99 of Ministerial Fringe per week until 13 November 2010. After that date, he received $340.10 per week, those payments said to be Ministerial Fringe payments. Ms Baas then claimed that Mr Ward continued to be employed by Gateway Church Geelong after November 2010 and that his remuneration from that day was exclusively by way of Ministerial Fringe payments until she resigned.
In her witness statement, Ms Baas agreed that Mr Ward was paid out long service leave and holiday entitlements derived from his stream of Taxable Income. However he was not paid out any entitlements from his stream of Ministerial Fringe remuneration and he continued to accumulate those entitlements after November 2010. She claimed that auditors of the Church required entitlements for the two streams of remuneration to be calculated independently.
With respect to Ms Baas, Mr Ward did not have two independent forms of employment with the Church. It appears he was entitled to two forms of remuneration for that work: the first is properly described as income and the second as reimbursement for expenses incurred in carrying out the work or fringe benefits. The reimbursement, on its face, was never intended to provide a tax-free form of remuneration to the recipient. However, in this case, it seems to have been treated as such. Furthermore, long service leave and annual leave entitlements accrue out of the period of employment, not out of different forms of remunerative payments.
Ms Baas made it plain that she indicated Mr Ward’s period of employment ceased on
16 November 2010 because that was the date on which he ceased to receive Taxable Income. She then stated that his taxable employment had ceased. Again, with respect to Ms Baas, whether or not tax is payable on the remuneration received by an employee is not indicative of whether remunerative work is being undertaken or it has ceased. In fact, despite making the bold statements that Mr Ward had ceased employment with the Gateway Church Geelong, the fact that it was later claimed that Mr Ward continued to receive fringe benefits is indicative of the fact that he was regarded as an employee of the Church. On the other hand, the evidence of Ms Baas and Mr Eden was that Mr Ward had significantly reduced this hours of work associated with Church.
In her witness statement Ms Baas made it clear that when she said Mr Ward’s employment with the Gateway Church ceased on 16 November 2010, she was referring to his taxable employment but not his employment which entitled him to payments from the Ministerial Fringe. With respect, Mr Ward cannot have it both ways. Either his employment ceased or it did not.
I have concern about a number of statements made by Ms Baas regarding Mr Ward’s remuneration. The issue of remuneration appears to be significant because, not only does the VE Act refer to the veteran being prevented from continuing to undertake the remunerative work that he or she was last undertaking, but statements made by Ms Baas to Mr Ward’s Vietnam Veterans’ Federation representative and DVA state, unequivocally, that Mr Ward’s remuneration ceased in 2010 and that he did not receive any allowance other than his remuneration salary from the Gateway Community Church. In an email sent to Mrs Iris Cargill of the Vietnam Veterans’ Federation on 20 June 2011, Ms Baas said:
This is to verify that Mr Phillip A Ward did not receive any allowance above his remuneration salary when employed at Gateway Community Church. He did not receive separate allowances for rent, fuel or car.
In an email sent to a Claims Assessor of DVA in Melbourne on 24 June 2011, Ms Baas said:
As per our phone conversation today, I hereby verify the following: Mr Philip Anthony Ward was not given a car, or house nor was rent paid for his house.
He only received a weekly salary, which is [sic] now ceased as of 2010.…
The problems with the evidence given by Ms Baas and Mr Eden are glaringly obvious. When Ms Baas completed documents relating to Mr Ward’s claim for a service pension, she had no hesitation in stating that Mr Ward ceased working on 16 November 2010. Although she referred to Mr Ward ceasing taxable employment on 16 November 2010 in her letter to DVA dated 22 February 2011, she added that all long service leave and annual leave as well as superannuation payments had been paid out. There is not so much as a suggestion that Mr Ward had in fact reduced his working hours or that he continued to be paid for that work via the so-called Ministerial Fringe. When asked in cross-examination why she referred to taxable employment Ms Baas said that it was not her decision but that it was the decision made by what she described as the management of the church. When asked who was involved in the management of the Church, she described that it was a body of 5 persons. She agreed that Mr Ward was one of those persons.
In a letter dated 19 February 2014 signed by Ms Baas, which was apparently sent to DVA in support of Mr Ward’s claim for an increase in the invalid pension he was then receiving, Ms Baas said:
Due to health reasons Mr Ward’s hours of employment were reduced on 13 November, 2010.
…
Mr Ward’s remuneration is as follows:
· He receives a gross weekly wage of $138. He works up to 6 hours per week at a rate of $23 per hour
· He receives reimbursement for related ministerial expenses.
Not only is the above statement inconsistent with prior statements made by Ms Baas and Mr Ward regarding Mr Ward’s employment by the Gateway Community Church, it is also incorrect because Mr Ward did not receive reimbursement for related ministerial expenses. In fact what he was receiving was tax-free remuneration under the rubric of Ministerial Fringe.
It should be obvious that I find the evidence regarding whether Mr Ward in fact ceased employment with the Gateway Church was wholly unsatisfactory. The issue regarding cessation of remunerative work must be distinguished from the degree of incapacity suffered by an applicant. As Hill J pointed out in Haskard, the degree of incapacity to conduct remunerative work which results in a reduction of work capacity, even to the level of less than eight hours per week, does not go to the provisions of s. 24(2A)(d). The question to be answered is whether the last paid work has ceased or whether it has continued.
While payments clearly continued to be made to Mr Ward by the Gateway Church after 16 November 2010, according to Ms Baas, who was responsible for making those payments, what he received after that date purported to be fringe benefits. While I have serious doubts about whether those continued payments satisfy the legislative requirements dealing with Fringe Benefits Tax, what Mr Ward and Ms Baas plainly represented to DVA was that Mr Ward had ceased his employment with the Gateway Church on 16 November 2010 and from that date, neither he nor his wife received any income from work. Those statements were made by Mr Ward under a declaration that the information given was correct and that there were penalties attached to deliberately giving false and misleading information. Ms Baas made that statement in a number of documents provided to DVA. Therefore, regardless of what Mr Ward, Ms Baas or Mr Eden now claim to be the case, given the highly contentious nature of the so-called subsequent fringe benefits which Mr Ward received, I find that Mr Ward ceased remunerative employment with the Gateway Church on 16 November 2010. On that date, Mr Ward was 63 years and 11 months of age, some 13 months short of reaching 65.
FAILURE TO MEET THE STATUTORY REQUIREMENT
Given my finding that the date on which Mr Ward ceased performing remunerative work was prior to him reaching the age of 65 years, and considering that he had turned 65 before his application for an increase in pension payment from the Intermediate Rate to the Special rate was lodged with DVA, clearly Mr Ward does not satisfy the provisions set out in s. 24(2A)(f) of the VE Act. He was not undertaking his last paid work after he had turned 65.
CONCLUSION
On the date when Mr Ward lodged an application with DVA for an increase in the Disability Pension which he was then receiving, Mr Ward had reached the age of 65 years. That being the case, in order to qualify for the Special Rate of pension, he needed to satisfy the eligibility requirements set out in s. 24(2A) the VE Act.
Section 24(2A)(f) provides that to qualify for the disability pension at the Special Rate, the veteran must have been undertaking his or her last paid work after they had turned 65. Although there was considerable controversy regarding the date on which Mr Ward ceased remunerative work with the Gateway Church, given the numerous unequivocal statements made in many documents which preceded his application for the disability pension at the Special Rate, and the sanctions which apply for making false statements, I have found that Mr Ward ceased his remunerative employment with the Gateway Church on 16 November 2010. At that time, Mr Ward had not reached the age of 65 years.
Therefore, I find that Mr Ward does not meet the qualifying criteria for the grant of a disability pension at the Special Rate. In the decision made by the VRB on 5 December 2014 affirming the decision made by the Repatriation Commission on 28 February 2013 continuing his pension at the Intermediate Rate, the VRB based its findings on s. 24(1) of the VE Act. While the decision was correct, in my opinion, that decision should have been made under the provisions set out in s. 24(2A). The decision made by the VRB 5 December 2014 must be affirmed.
54. I certify that the preceding 53 (fifty-three) paragraphs are a true copy of the reasons for the decision herein of Egon Fice, Senior Member
..............................[sgd]..........................................
Associate
Dated 31 March 2016
Date of hearing 21 March and 20 July 2016 Counsel for the Applicant Ms Fiona Ryan Solicitors for the Applicant Williams Winter Solicitors Advocate for the Respondent Mr Ken Rudge Solicitors for the Respondent Department of Veterans' Affairs
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