Whitehouse and Repatriation Commission (Veterans’ entitlements)
[2016] AATA 996
•7 December 2016
Whitehouse and Repatriation Commission (Veterans’ entitlements) [2016] AATA 996 (7 December 2016)
Division
VETERANS' APPEALS DIVISION
File Number(s)
2016/1821
Re
David WHITEHOUSE
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Senior Member A F Cunningham
Date 7 December 2016 Place Hobart The Tribunal affirms the decision under review.
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Senior Member A F Cunningham
VETERANS’ AFFAIRS - intermediate rate of pension - veteran over 65 years of age - meaning of “last paid work” before claim made – reduction from full-time work as a legal practitioner – not prevented from continuing to undertake last paid work before making claim – decision under review affirmed
Legislation
Veteran’s Entitlements Act 1986, ss 23 and 24
Administrative Appeals Tribunal Act 1975, s 37
Cases
Grant v Repatriation Commission (1999) FCA 1629
Repatriation Commission v Connell (2011) FCAFC 116
Repatriation Commission v Haskard (2002) 126 FCR; [2002] FCA 1493
Repatriation Commission v Thorpe (2011) AATA 491
Thomson v Repatriations Commission (2001) FCA 107
Secondary Materials
REASONS FOR DECISION
Senior Member A F Cunningham
7 December 2016
REASONS FOR DECISION
The applicant, David Whitehouse, seeks the review of a decision of the Veteran’s Review Board dated 30 November 2015 which affirmed a decision of the Repatriation Commission refusing his application for an increase in disability pension. Mr Whitehouse’s application was refused on the basis that he did not satisfy the requirements of s 23(3A) of the Veteran’s Entitlements Act 1986 in that he had not ceased performing the last paid work that he was undertaking prior to his claim.
ISSUES
The central issue for determination by this Tribunal is what is meant by “the remunerative work (last paid work)” that Mr Whitehouse was last undertaking before he made the claim for an increase in pension.
EVIDENCE AND BACKGROUND FACTS
The background facts relevant to the application were not in dispute and can be summarised as follows.
Mr Whitehouse was born on 22 March 1946 and was 67 years of age at the date of his claim. He worked as a solicitor with the legal firm Murdoch Clark from 1 July 1976 to the present. Mr Whitehouse was a partner between 1 July 1977 and June 2012, when he worked between nine and 10 hours per day, five days per week.
Due to the effects of prostate cancer treatment, Mr Whitehouse reduced his hours of work to between four to five hours per day and retired as a partner of Murdoch Clark in June 2012. The nature of his work has been as a commercial/property/estate planning lawyer.
Mr Whitehouse has the following accepted war caused disabilities: malignant neoplasm of the prostate, anxiety disorder, shrapnel wound neck, recurrent urinary infection, dyspepsia and perceptive deafness.
The T documents were tendered pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 and no other evidence was called in support of the application for review.
LEGISLATION
An application for the intermediate rate of pension is to be assessed in accordance with the provisions of section 23 of the Veteran’s Entitlements Act 1986 (the VE Act):
Intermediate 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's incapacity from war-caused injury or war-caused disease, or both, is, of itself alone, of such a nature as to render the veteran incapable of undertaking remunerative work otherwise than on a part-time basis or intermittently; and
(c) the veteran is, by reason of incapacity from 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 from that incapacity; and
(d) section 24 or 25 does not apply to the veteran.
(2) Paragraph (1)(b) shall not be taken to be fulfilled in respect of a veteran who is undertaking, or is capable of undertaking, work of a particular kind:
(a) if the veteran undertakes, or is capable of undertaking, that work for 50 per centum or more of the time (excluding overtime) ordinarily worked by persons engaged in work of that kind on a full-time basis; or
(b) in a case where paragraph (a) is inapplicable to the work which the veteran is undertaking or capable of undertaking--if the veteran is undertaking, or is capable of undertaking, that work for 20 or more hours per week.
(3) For the purpose of paragraph (1)(c):
(a) a veteran who is incapacitated from war-caused injury or war-caused disease, or both, to the extent set out in paragraph (1)(b) 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:
(i) if 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;
(ii) if the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; or
(iii) if the veteran has been engaged in remunerative work on a part-time basis or intermittently for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; 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.
(3A) 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) (as affected by subsection (2)) 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 24 or 25 does not apply to the veteran.…
Because he had turned 65 before lodging his claim, Mr Whitehouse’s claim is to be assessed in accordance with the provisions of subsection (3A). Mr Rudge, who appeared on behalf of the respondent, advised that the provisions of sub paragraphs (a), (b), (c), (f) and (h) are not in issue. What is in issue is the remunerative work that was last undertaken by Mr Whitehouse before lodging his claim and how that determination affects the provisions of sub paragraphs (e) and (g).
CONTENTIONS
Mr Vince, who appeared on behalf of the applicant, submitted that for the purposes of subsection (3A)(d), “the remunerative work (last paid work)” undertaken by Mr Whitehouse was his work as a partner of the firm Murdoch Clark. Mr Vince maintained that this interpretation is consistent with the objectives of the VE Act; to compensate veterans whose war caused injuries have resulted in an incapacity to undertake work either on a full-time or part-time basis.
It is not in contention that Mr Whitehouse’s accepted war caused injuries prevented him from undertaking his work in a full-time capacity from around the end of 2011. Mr Whitehouse reduced his working hours from around 50 hours per week to 20 hours per week over the ensuing six months and resigned as a partner of the firm at the end of June 2012. Included in the T documents are several statutory declarations from practising solicitors who support Mr Whitehouse’s claim that the usual number of hours worked by a full-time partner in a legal firm is in the order of 50 hours per week or more (T12).
Mr Vince further contended that subparagraph (d) does not require that this work be the work that the veteran was undertaking immediately before he made his claim as the subsection simply uses the word “before”. Mr Vince maintained that the relevant distinction is the change from the full-time work to the part-time work that Mr Whitehouse was forced to undertake because of his accepted war caused disabilities.
Mr Vince referred to a number of authorities in support of his contention that the term “remunerative work” contemplates a distinction between full-time and part-time work.
Mr Rudge distinguished the authorities referred to by Mr Vince on the basis that they related to claims made by veterans who were aged under 65 at the time of their claims. Mr Rudge also noted the inclusion of the word “the” before the term “remunerative work” in subsection (3A)(d) which is absent from those provisions that relate to claims of veteran’s aged under 65 years.
Mr Rudge submitted that in both subsections 23(3A) and 24(2A), paragraph (d) deals with the characterisation of the specific remunerative activity or activities that the veteran was last undertaking before making the claim or application. It was further submitted that in both subsections, paragraph (g) deals, not with the type of remunerative activity, or type of work undertaken, but with the capacity in which it was undertaken, whether it was as an employee or working on one’s own account. Mr Rudge maintained that the remunerative work (last paid work) undertaken by Mr Whitehouse before he made his application was as a solicitor, or part-time solicitor. As he is not prevented from undertaking that work, and it continues, he does not satisfy the provisions of s 23(3A)(d).
Mr Rudge said that the type of work undertaken by Mr Whitehouse was as a solicitor and that the capacity in which he undertook that work, either on a full-time or part-time basis, is irrelevant. Accordingly Mr Whitehouse is unable to satisfy the provisions of subsection (3A)(e) as he was not prevented from undertaking that work as a solicitor Further, subparagraph (g) could not be satisfied because Mr Whitehouse had not stopped undertaking his last paid work as a solicitor.
CONSIDERATION AND DETERMINATION
The principal authority relied upon by the applicant is the decision of the Full Court of the Federal Court in Repatriation Commission v Connell (2011) FCAFC 116. The Full Court agreed with the decision of the Administrative Appeals Tribunal that Mr Connell should be paid at the intermediate rate of pension. The question before the Full Court was whether Mr Connell satisfied the provisions of s 23(1)(c) of the VE Act and in particular whether he was “prevented from continuing to undertake remunerative work” that he was undertaking, and by reason thereof suffering a loss of salary or wages or earnings that he would not be suffering if he were free from the incapacity. It was submitted by the respondent that an applicant who is still engaged in remunerative work that he was undertaking prior to the relevant injury or disease was not eligible to be paid the pension at the intermediate rate.
Reference was made to obiter dicta observations made by Hill J in Repatriation Commission v Haskard (2002) 126 FCR; [2002] FCA 1493. At paragraph 32 Hill J considered that the correct construction of s 23(1)(c) was that:
“…a veteran who had worked full-time but whose ability to work full time was impaired because of incapacity from war caused injuries so that he or she was only able to work part-time, might be said to have been prevented by reason of incapacity from continuing to undertake his [or her] initial full-time remunerative work…”
The Tribunal had noted that s 23(1)(c) does not require that the veteran must be prevented by his war caused injury or disease from continuing to undertake any remunerative work of the kind previously undertaken but that the requirement in paragraph (c) focuses on the loss of salary, wages or earnings suffered as a result of the incapacity.
In Connell, due to his war caused injuries, the veteran was prevented from continuing to work as a painter on a full-time basis. At paragraphs 27 and 28 the Full Court said:
“The Repatriation Commission’s construction is based on the expression “remunerative work” being read as though it said “all remunerative work”. The contention also equates the word “work” with “occupation”. A plain reading of the provision does not support that contention. The prevention of some of the work that the veteran was undertaking is also encompassed by the phrase “prevented from continuing to undertake remunerative work”. This is particularly so because the definite article “the” does not precede “remunerative work”. It would be erroneous to equate “work” with occupation because “remunerative work” is defined in s 5Q(1) of the act as including “any remunerative activity”. On the facts of this case, it is clear that Mr Connell was prevented from continuing some of the remunerative activities that he had been undertaking.”
“Further, in the context of the beneficial nature of the Act in question, “remunerative work” should not receive a restrictive interpretation. There is no valid reason to confine expression to work of a particular type. “Remunerative work that the veteran was undertaking” should not be confined to the actual type of work involved but should be referrable to its nature and quality. A person who works as a painter on a full-time basis but who, due to incapacity, can now only do that work on an intermittent or part-time basis is not continuing to perform the same remunerative work. The restricted nature of the work gives it an entirely different character. Being able to perform work without restriction because of illness or injury is a situation far removed from being able to perform the same work, but with restrictions due to illness or injuries. Each is remunerative work of the same type, in this case, painting. But it is not the same remunerative work considering the nature and quality of the work. If one is performing full-time work without any health-related restriction is that reduce one’s hours on account of such restrictions it cannot be sensibly said that the latter work is a continuation of the work previously undertaken. It.is of an entirely different nature and quality, although identical in terms of describing the relevant occupation.”
At paragraph 33 the Full Court went on to state:
“In addition, as the Tribunal noted at (24) of its reasons for decision, there is no requirement in s 23 or s 24 that the veteran who has not turned 65 before applying for an increase in the rate of pension is prevented from continuing to undertake his or her last paid remunerative work is such a requirement for veteran’s over 65 years of age; see ss 23(3A)(d) and 24(2A)(d). The construction favoured by the Repatriation Commission of the contentious part of s 23(1)(c) in issue on this appeal would have the effect of imposing such a restriction on a veteran who is under 65 when the legislation could have and did not impose such a restriction on those veteran is as it has with older veterans.”
In Connell, the Full Court noted the distinctions in the wording of the provisions relating to the Intermediate rate of pension in s 23(1)(c) and subsection (3A)(d). In particular it was noted that subsection (3A)(d) refers to the remunerative work that the veteran was last undertaking before applying for an increase in the rate of pension. The Full Court considered that the effect of difference in the wording meant that different restrictions were imposed for veterans aged 65 years and over.
The interpretation favoured by the Full Court in Connell was influenced by the particular wording of subsection 23(1)(c). This subsection provides that a war caused incapacity prevents the veteran from continuing to undertake remunerative work that he or she was undertaking. As a result, the veteran is suffering a loss of salary or wages that he or she would not suffer if the veteran was free of the incapacity. Whilst the requirements for an incapacity from war caused injury preventing the veteran from continuing to undertake the remunerative work that the veteran was last undertaking and the consequential loss of salary, wages or earnings are conjunctive requirements in subsection (3A), they appear in separate sections. A further requirement in subparagraph (d) is the reference to the remunerative work that the veteran was last undertaking before making the claim. This requirement does not appear in the provisions relating to claims for veterans aged under 65.
The Full Court in Connell also noted (at paragraph 27) that the word “the” does not precede “remunerative work” in subsection 23(1)(c), whereas it does in subsection (3A)(d), and is linked to the remunerative work undertaken before the claim is made.
The Full Court in Grant v Repatriation Commission (1999) FCA 1629 considered the companion paragraphs (d) and (g) with respect to a claim for special rate of pension under s 24(2A) and said at paragraph 9:
“Determination of the “remunerative work” referred to in s 24(2A)(d) requires the characterisation of the specific remunerative activity or activities that the veteran was last undertaking before making the claim or application rather than of the capacity in which that work was undertaken. The particular capacity in which the work was undertaken is dealt with as a separate criterion in s 24(2A)(g). Thus, whether or not the work was undertaken as an employee or as a self-employed person is irrelevant to the characterisation to be given to that work under s 24(2A) (d). That conclusion follows from the definition of “remunerative work” in s 5Q, the recognition in s 24(2A)(g) that the capacity in which work is undertaken is to be treated as a matter separate from the work that was undertaken for the purposes of s 24 and is consistent with the purpose of s 24(2A) of providing for payment at the special rate where a person is prevented solely by war caused incapacity from continuing to undertake the work that the veteran was last undertaking before making the claim or application. In our view it would be inconsistent with that purpose for the characterisation of that work to include, or to be made to depend upon, the capacity in which that work was undertaken.”
In both the subsections 23(3A) and 24(2A), paragraph (d) deals with the characterisation of the specific remunerative activity or activities that the veteran was last undertaking before making the claim or application. The Full Court in Thomson v Repatriations Commission (2001) FCA 107 said at paragraph 10:
“… subsection (g) of s 24(2A) is concerned with the capacity in which the last paid work was undertaken.…”
In both subsections, paragraph (g) deals, not with the type of remunerative activity, or type of work undertaken, but with the capacity in which it was undertaken, whether it was as an employee of another person or whether it was working on one’s own account.
This Tribunal does not consider that the definition of the term “remunerative work” in s 5Q(1) is of any assistance in interpreting the provisions within subsection 23(3A) in this case. This Tribunal does not accept the contention made behalf of the applicant that in this case “the remunerative work” (last paid work) undertaken by Mr Whitehouse before lodging his claim would relate back to his work as a full-time solicitor which ceased in June 2012, some 19 months before his claim for an increase in pension was made. The only rationale advanced for accepting Mr Whitehouse’s full time work as his last paid work was the fact that the reason for his change to part-time work was due to his accepted war caused injuries. Whilst the Tribunal accepts the submission regarding the beneficial nature of the VE Act, it considers that the specific wording of subsection (3A) for claims made by veterans aged 65 years and over does not support such an interpretation.
Mr Vince submitted that if it is accepted that the “last paid work” is the veteran’s current part-time work, it would require applicants to perfectly time their applications to avoid otherwise arbitrary results. However, as Mr Vince pointed out, subparagraph (d) does not include the word “immediately” prior to the words “before he or she made the claim or application”. Consistent with the beneficial nature of the legislation, the Tribunal does not consider that veterans would be required to lodge their applications immediately following the change in the nature of their work from either full-time to part-time or by a reduction in the number of hours worked because of incapacity from war caused injury or disease.
The Tribunal determines that Mr Whitehouse does not satisfy s 23(3A)(d) because the remunerative work (last paid work) that he was last undertaking before he made his claim was as a solicitor, or part-time solicitor. He is not prevented from undertaking that work and it continues. As Hill J said in Repatriation Commission v Haskard (2002) 126 FCR; [2002] FCA 1493, (at paragraph 31):
“… 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 valuer 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 that the quantity of work has declined but that does not mean that the work itself has ceased.”
Whilst concerned with an application of a veteran aged under 65 years, Deputy President Forgie in Repatriation Commission v Thorpe (2011) AATA 491 undertook a comprehensive consideration of the meaning of “remunerative work” within both sections 23 and 24 of the VE Act. At paragraph 71 she noted that the provisions referable to a claim for an increase in pension made by a veteran 65 years and over, namely s 23(3A)(d) and s 24(2A)(d), focus on the remunerative work that the veteran “was last undertaking” and was “prevented from continuing to undertake” before he or she made the claim or application. In this decision DP Forgie noted that it was the legislature’s intention to impose more onerous qualification requirements for applications made by veterans aged 65 years and older.
Because the Tribunal has determined that the last paid work is Mr Whitehouse’s work as a solicitor, he does not satisfy the provisions of s 23(3A)(e). Mr Whitehouse is not suffering a loss of salary or wages or earnings because the loss is contingent on him being prevented from continuing to undertake the last paid work.
The applicant concedes that if the Tribunal determines that Mr Whitehouse’s last paid work was his part-time work, then he cannot satisfy subsection s 23(3A)(g) because he has not stopped and nor is he prevented from undertaking his last paid work.
Because the subparagraphs within s 24(3A) are conjunctive, requiring that each must be satisfied for a veteran aged over 65 years to qualify for the intermediate rate of pension, Mr Whitehouse's application for an increase in pension must fail. The Tribunal accordingly affirms the decision under review.
I certify that the preceding 34 (thirty four) paragraphs are a true copy of the reasons for the decision herein of Senior Member A F Cunningham ...................................................................
Associate
Dated 7 December 2016
Date(s) of hearing 13 October 2016 Counsel for the Applicant Mr Aled Vince Counsel for the Respondent Mr Ken Rudge
Key Legal Topics
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Administrative Law
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Statutory Interpretation
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Appeal
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Judicial Review
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