Re James Mcintyre Mccartney and Repatriation Commission [1986] AATA 116 (30 April 1986)

ADMINISTRATIVE APPEALS TRIBUNAL

Re: JAMES McINTYRE McCARTNEY
And: REPATRIATION COMMISSION
No. Q85/77
AAT No. 2652
Veterans' Affairs

COURT

ADMINISTRATIVE APPEALS TRIBUNAL
VETERANS' APPEALS DIVISION
I.R. Thompson (Deputy President)
I.R.W. Brumfield (Member)
T.R. Gibson (Member)

CATCHWORDS

Veterans' Affairs - disability pension - Schedule 2 to Repatriation Act 1920 - application to increase to special (TPI) rate pension - chronic emphysema and sinusitis - incapacity at time of hearing resulting from both accepted and other disabilities - incapacity at time of application for increase resulting from accepted disabilities alone - applicant entitled to special rate of pension

Veterans' Affairs - disability pension - Schedule 2 to Repatriation Act 1920 - applicant ceased employment in 1972 because of accepted disabilities - application in 1982 for increase of pension to special (TPI) rate - in 1982 applicant totally incapacitated as result of accepted disabilities alone - whether in 1982 applicant was prevented by accepted disabilities from continuing to undertake remunerative work

Words and Phrases: "is prevented from continuing"

Administrative Appeals Tribunal Act 1975 s. 43

Repatriation Act 1920 ss. 25, 26, 107VZB, 107VZW, 107VZX, 107VZY, Schedule 2

Repatriation Legislation Amendment Act 1985 s. 68(2)

Social Security Act 1947 s. 15A

Re Greenham and Minister for Capital Territory (1979) 2 ALD 137

Re Costello and Secretary, Department of Transport (1979) 2 ALD 934

R v Lukin: Ex parte Sunshine Pty. Ltd. (1967) Qd R 49

Sofi v Wollondilly SC (1975) 2 NSWLR 614

Re Hospitals Contribution Fund of Australia and Minister for Health (No. 3) (1979) 2 ALD 401

Re Tiknaz and Director-General of Social Services (1981) 4 ALN N44

HEARING

CANBERRA
30:4:1986

ORDER

The decision under review is set aside and in substitution for that decision it is decided to increase the rate of the applicant's pension to the Special Rate, and to approve the payment of his pension at that increased rate from 16 July 1982.

DECISION

The applicant is now 59 years old. He served from 12 December 1944 to 11 April 1946 in the Royal Australian Air Force. On the date of his discharge he held the rank of Leading Aircraftsman. The application in these proceedings is for review of a decision made by the Veterans' Review Board on 4 March 1985 affirming a decision of a Repatriation Board made on 16 July 1982 that the rate of the pension payable to the applicant under Division 1 of Part III of the Repatriation Act 1920 ("the Act") should remain at 100% of the General Rate and should not be increased to the Special Rate. The applicant had applied on 19 August 1982 under section 107VD of the Act (as in force at that date) for the Repatriation Board's decision to be reviewed by the Repatriation Review Tribunal. By the end of 1985 that review had not been completed and, by virtue of section 55(1) of the Repatriation Legislation Amendment Act 1984, the application was required to be treated as if it were an application duly made under section 107VC of the Act as amended by that Act, that is to say as an application for review by the Veterans' Review Board. On 10 May 1985 the applicant applied for the Board's decision to be reviewed by the Administrative Appeals Tribunal under section 107VZW of the Act.

2. On 13 November 1953 a Repatriation Board accepted, in pursuance of section 101(1) of the Act, that the applicant suffered incapacity as the result of fibrositis in both shoulder regions and that that was attributable to his war service. On 26 January 1960 a Repatriation Board accepted that he suffered incapacity also as a result of recurrent bronchitis and that that was attributable to his war service. On 23 August 1962 the Board decided that the condition causing incapacity was asthmatic bronchitis and substituted that for the condition, recurrent bronchitis, previously accepted. On 2 October 1970 incapacity resulting from chronic sinusitis was also accepted as attributable to his war service.

3. Subsequently, the applicant sought to have accepted the fact that he was suffering incapacity also as the result of a heart condition, a nervous condition and emphysema. All those claims were rejected, although the Repatriation Commission recorded its view that "the incapacity described as emphysema . . . is the same incapacity diagnosed as asthmatic bronchitis and accepted . . . on 23.8.62." In 1975 a claim that the applicant suffered incapacity resulting from generalised spondylosis of the spine and attributable to his war service was rejected. In December 1975 the claim that he was incapacitated as a result of psycho-neurosis and that the incapacity was attributable to his war service was rejected on the ground that, although he suffered from psycho-neurosis, it was not attributable to his war service. It appears that his claim for incapacity resulting from the condition of his spine is now being reconsidered. It is not clear, however, what stage the matter has reached.

4. On 27 August 1979 a Repatriation Board, taking into account the conditions of fibrositis of both shoulder regions, asthmatic bronchitis and chronic sinusitis assessed the applicant's incapacity as warranting payment of his pension at the rate of 100% of the General Rate. It re-assessed that rate on 16 July 1982; its decision on the re-assessment was the decision in respect of which the applicant applied for review by the Repatriation Review Tribunal and which was reviewed by the Veterans' Review Board.

5. At the hearing of the application to this Tribunal for review the Tribunal had before it the documents lodged by the respondent in pursuance of section 37 of the Administrative Appeals Tribunal Act 1975; they ran to 374 pages. Many of those pages contain reports by medical practitioners on the applicant and the various medical conditions from which he has suffered over the years since he submitted his claim in respect of shoulder pains in August 1953. A number of other documents were tendered at the hearing including medical reports on the applicant which resulted in his being granted an invalid pension under the Social Security Act 1947 from 2 November 1972, and in his having continued to receive that pension ever since. Another document, prepared by the applicant, sets out the medication which he is now taking daily as the result of medical advice. Oral evidence was given by the applicant and by Dr C.T. Diamond; Dr Diamond was the Commonwealth Medical Officer who examined the applicant in November 1972 and recommended that he be granted an invalid pension. Since that time, but not before it, he has been the general practitioner whom the applicant has attended for medical advice and treatment. He was called as a witness by the respondent.

6. When the Veterans' Review Board made its decision, it had before it a summary, made by a medical officer employed by the Department of Veterans' Affairs, of the evidence relating to the applicant's medical conditions and the degree of disability resulting from each of them. It appears to have accepted that assessment in reaching its decision. The assessment was that there was no disability from fibrositis but that the applicant was suffering disability from bilateral rotator cuff lesions which, the medical officer said, were a different condition from the fibrositis. He stated that the chronic sinusitis and asthmatic bronchitis resulted in "chronic productive cough with recurrent attacks of acute respiratory tract infections, needing frequent treatment with antibiotics. No dyspnoea at rest but capable of only 30 yards on the flat or half flight of stairs. Restricted respiratory functions tests." The Board came to the conclusion that the applicant, "though quite severely incapacitated by his accepted disabilities, is capable of sedentary work" and that the assessment of 100% of the General Rate was appropriate.

7. For a person suffering incapacity to be qualified to be paid his pension at the Special Rate it is necessary that he meet the requirements of Schedule 2 of the Act. The provisions of that Schedule were substantially altered by the Repatriation Legislation Amendment Act 1985, with effect from 6 June 1985. It was, therefore, not in its present form when the decision of the Veterans' Review Board was made in March 1985. However, by virtue of section 68(2) of the amending Act it is the Schedule in its present form to which the Tribunal must have regard in these proceedings. So far as is relevant in these proceedings Schedule 2 reads as follows:-

"The special rate of pension may be granted to -

(b) any . . member of the Forces if -

(i) the . . member is in receipt of, or
is eligible to receive, a general
rate pension at the rate specified in
column 3 of the table in Schedule 1;

(ii) the . . member is totally and
permanently incapacitated, that is to
say, the member's incapacity from
injury or disease that has been
accepted as related to the member's
relevant war service is of such a
nature as, of itself alone, to render
the member incapable of undertaking
remunerative work for periods
aggregating more than 8 hours per
week; and

(iii) the . . member is, by reason of
incapacity from that injury or
disease alone, prevented from
continuing to undertake remunerative
work that the member 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 member would not be
suffering if the member were free of
that incapacity.

For the purpose of the last preceding paragraph -

(a) a member of the Forces who is incapacitated
from injury or disease that has been
accepted as related to the member's
relevant war service 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 member has ceased to engage in
remunerative work for reasons other
than his or her incapacity from that
injury or disease; or

(ii) the member is incapacitated, or
prevented, from engaging in
remunerative work for some other
reason; and

(b) where a member of the Forces, not being a
member 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 a substantial cause of his or her
inability to obtain remunerative work in
which to engage, the member shall be
treated as having been prevented by reason
of that incapacity from continuing to
undertake remunerative work that the member
was undertaking.

In determining whether a member of the Forces
who is incapacitated from injury or disease is
incapable of undertaking remunerative work, the
Commission shall have regard to the following matters
only:

(a) the vocational, trade and professional
skills, qualifications and experience of
the member;

(b) the kinds of remunerative work which a
person with skills, qualifications and
experience referred to in sub-paragraph (a)
might reasonably undertake; and

(c) the degree to which the incapacity of the
member from injury or disease that has been
accepted as related to the member's
relevant war service has reduced his or her
capacity to undertake the kinds of
remunerative work referred to in
sub-paragraph (b).

. . . . .

In this Schedule, a reference to remunerative
work shall be read as including a reference to any
remunerative activity."

8. It is necessary for the Tribunal, therefore, to decide first whether the applicant's accepted incapacity from his fibrositis, his asthmatic bronchitis and his chronic sinusitis is of such a nature as to render him incapable of undertaking remunerative work for periods aggregating more than eight hours per week. In deciding that matter we can have regard only for the kinds of remunerative work which a person with his vocational, trade and professional skills, qualifications and experience might reasonably undertake and the degree to which the incapacity has reduced his capacity to undertake remunerative work of those kinds.

9. According to records maintained by the Department of Veterans' Affairs and included in the documents lodged with the Tribunal under section 37 of the Administrative Appeals Tribunal Act 1975 the applicant was employed as a clerk before he was enlisted into the RAAF, apparently as an aircraft mechanic, then as a carpenter attending a training course for nine months after his discharge, then as a driver, then during the 1950s as a radio operator for a taxi company in Sydney and as a yardman in a timber works, then in the 1960s as a tile layer and a dispatch clerk, and finally as a self-employed painter/handyman. However, when the applicant gave evidence, he said that before he enlisted in the RAAF he was employed as an office boy. He said that he had attended a course after his discharge with a view to qualifying as a carpenter but the fibrositis in his shoulders had prevented his completing that course. He had then been "put into a job as clerk in charge of a store" with another man but the air-conditioning had caused him health problems and he had then been offered a job driving a truck. He said that he had eventually had to give up that job after a few years because of the pain in his shoulders. He had worked as a radio operator for a taxi company in Sydney for about 12 months; he had given that up because his mother had asked him to move from Sydney to Wollongong. There he and his wife had started a business selling second hand gloves. They had bought the gloves, cleaned them and repaired them, before reselling them. However, there had not been enough work for both his wife and himself; so she had continued with that work and he had obtained a licence to drive taxis and had worked as a taxi driver. He had also helped his wife in their shop.

10. He said that his work as a yardman in a timber yard had been for only three months. He had had to give it up because of the pain in his shoulders. He had then gone to work with his brother-in-law laying vinyl floor covering and tiles, and also carpets. His brother-in-law's firm, however, had been dissolved and he had obtained employment with Cyclone KM Products, working in its warehouse as a storeman. His work had mostly been driving forklift machines but each morning he had had to issue goods to drivers of the company's vehicles for delivery and each evening he had had to check orders which they had brought in. It was that part of his job which had apparently caused him to be described as doing the work of a dispatch clerk. However, it formed only a small part of the job, which was essentially that of a storeman in charge of a store.

11. He said that he stopped work in 1972 because of problems he had with his breathing. At that time he had been self-employed doing painting and repair work; he had become unable to cope with it. Once after he had been granted the invalid pension he had tried to see whether he could do such work; but he had to abandon the attempt after only three days.

12. We have no doubt that he possesses no formal vocational, trade or professional qualifications. He has acquired skills as a driver of motor vehicles and forklift machines, as a layer of vinyl floor coverings and carpets and, apparently, as a painter and handyman. He has had one year's experience of working as a radio operator for a taxi company and three years' experience of issuing goods from the store and collating orders. He has had no general clerical experience.

13. Having examined all the medical reports in the documents tendered in evidence and having heard the oral evidence of the applicant and Dr Diamond, we have no doubt that both in July 1982 and now the effect of the applicant's fibrositis in the shoulders was and is such that he experiences pain when he has to hold his arms at or above shoulder height for any sustained period and when he does any heavy lifting. Apart from that, however, the fibrositis does not seriously disable him. However, in 1982 his chest condition resulted - and it still results - in his being unable to walk for more than 30 paces, or to climb stairs, without his suffering severe breathlessness. He suffered then - and still suffers - frequent infections of the lungs, resulting in exacerbation of his breathing problems; on such occasions he was, and is, unable to remain standing or seated; he had, and has, to lie down propped up on four pillows for periods of up to four hours at a time during which he was, and is, unable to undertake any activity whatsoever because of the severity of the breathlessness. Even when not suffering from a lung infection he had, and still has, to inhale four puffs of Ventolin, four puffs of Atrovent and four puffs of Becotide every four hours, in addition to taking one tablet of Theodur each morning and evening.

14. We have no doubt that the applicant is now suffering from emphysema and that that is contributing to causing him to experience severe breathlessness. However, Dr Diamond gave evidence that emphysema is a natural consequence of a long period of suffering asthmatic bronchitis. He said that the asthmatic bronchitis causes the lung tissues to lose elasticity and that, when they have done so, emphysema results. The applicant gave evidence that, in order to clear his lungs of fluid, he attends a physiotherapist every day for postural drainage; Dr Diamond gave evidence that it was necessary for him to do so. We have no doubt that, both in 1982 and now, the applicant's asthmatic bronchitis and emphysema was and is severely disabling.

15. The Veterans' Review Board accepted the opinion of the Department's medical officer that the applicant was capable of undertaking sedentary employment. However, the only kinds of remunerative work of a sedentary nature which a person with his skills and experience might reasonably undertake are work as a radio operator with a taxi company and, possibly, work as a stores clerk. His frequent lung infections and the totally disabling effect of such infections for periods of up to four hours would make him unacceptably unreliable for work as a radio operator with a taxi company. Nor, for the same reason, would he be likely to be acceptable for employment as a stores clerk; further the work of a stores clerk usually involves fetching and carrying as well as the clerical work. We are satisfied that the applicant could not undertake such work now. He certainly could not undertake work as a driver, as a layer of floor coverings or as a painter or handyman; nor, we are satisfied, could he have done so in July 1982. We find, therefore, that in terms of Schedule 2 his incapacity from disease that has been accepted as related to his relevant war service is, and was in July 1982, of such a nature as to render him incapable of undertaking remunerative work for any period.

16. However, that is not the end of the matter. For him to be qualified for a pension at the special rate, the incapacity must be of such a nature as "of itself alone" to render him incapable of undertaking remunerative work and he must be prevented by reason of that incapacity alone from continuing to undertake remunerative work that he was undertaking and, by reason thereof, be suffering a loss of salary or wages, or of earnings on his own account, that he would not be suffering if he were free of that incapacity. He is now severely disabled by the condition of his back and neck. Dr Diamond gave evidence that he suffers severe pain in the neck, which is referred to the head and arms, and pain and stiffness of the lower back, the pain being referred down both legs; there is a disc protruding in the cervical spine and surgery is required to relieve the pain. However, Dr Diamond said, because of the applicant's chest condition surgery has not been undertaken; instead he has to attend daily for physiotherapy. Dr Diamond had no doubt that at present, even if the applicant did not suffer from asthmatic bronchitis and emphysema, he would be totally disabled by the condition of his spine from undertaking any remunerative work of a kind which a person with his skills and experience might reasonably undertake.

17. However, he said that the condition of the applicant's back had deteriorated rapidly since 1982. Although at that time he had generalised spondylosis, with pain and stiffness, it was not such that it would have prevented him from undertaking remunerative work. Even though his asthmatic bronchitis and his emphysema have become worse since late 1972 when the applicant gave up work, he was then disabled by them as he is now, Dr Diamond said, but he was not disabled by his back. At present he is suffering also from a number of other medical conditions, anxiety, a peptic ulcer, colitis and solar keratosis. The colitis and peptic ulcer are of recent development. Both the applicant and Dr Diamond expressed the view that the anxiety by itself would not be such as to seriously impede him from engaging in remunerative work. The solar keratosis does not affect the applicant in his daily life.

18. We are satisfied that it is proper for us to rely on Dr Diamond's evidence. He has seen the applicant frequently between late 1972 and the present and has been responsible day to day for dealing with his various medical problems. We find, therefore, that it has been established that in 1972 the applicant ceased to undertake remunerative work by reason of the incapacity resulting from his asthmatic bronchitis and emphysema alone and that in July 1982 he was still prevented by that incapacity alone from undertaking remunerative work. However, now he is prevented from doing so by that incapacity and also by the incapacity which results from the condition of his spine. If he were not suffering from the incapacity resulting from the asthmatic bronchitis and emphysema, he would nevertheless be prevented from undertaking remunerative work by the condition of his back.

19. On the basis of those findings of fact we are satisfied that in July 1982 the applicant was totally and permanently incapacitated in terms of placitum (ii) of sub-paragraph (b) of the first paragraph of Schedule 2. However, Mr P. Callioni, who represented the respondent Commission at the hearing, submitted that we are required to reach our decision on the basis of the applicant's ability or inability to meet the requirements of Schedule 2 today and not on the basis of his ability to meet those requirements in July 1982.

20. Jurisdiction to review decisions of the Veterans' Review Board is conferred on the Administrative Appeals Tribunal by section 107VZW of the Act. The Administrative Appeals Tribunal Act 1975 is then applied in relation to the review of such decisions by section 107VZX. Unless, therefore, the Act expressly or by necessary inference requires the Tribunal to review decisions of the Board on a basis different from that on which it generally reviews decisions in the exercise of its other jurisdictions it should review them on that basis. In Re Greenham and Minister for Capital Territory (1979) 2 ALD 137 the Tribunal held that administrative review, which is the function of the Administrative Appeals Tribunal, was to be contrasted with judicial proceedings and that unless, in relation to a particular jurisdiction there was an express limitation either upon the grounds which an applicant might raise or those which the Tribunal might consider, it was not precluded from considering any matter which was relevant to the decision under review. It. referred to the provisions of section 33 of the Administrative Appeals Tribunal Act 1975 and decided that the Tribunal was required to take into account all relevant facts of which it became aware even though those facts might not have been known to the original decision-maker.

21. In Re Costello and Secretary, Department of Transport (1979) 2 ALD 934 the Tribunal considered the time at which the facts and the applicable law were to be ascertained. It pointed out that there was "abundant" authority for the proposition that an "appeal" (so called) to a court or administrative tribunal against an administrative decision would normally involve a full re-hearing on the merits before the Court or Tribunal, and that in such "appeals" the reviewing body was not limited to a consideration of the facts or materials before the primary decision-maker. The Tribunal then considered the situation where there had been a change in the relevant law between the date of the administrator's decision and the date of the decision of the review tribunal. After referring to decisions of the Full Court of the Supreme Court of Queensland in R v Lukin: Ex parte Sunshine Pty. Ltd. (1967) Qd R 49 and a decision of the Administrative Law Division of the Supreme Court of New South Wales, Sofi v Wollondilly SC (1975) 2 NSWLR 614, the Tribunal stated:-

"It is clear, firstly, that in the exercise of our
review function under s. 43 of the Administrative
Appeals Tribunal Act 1975 we stand in the shoes of
the decision-maker and that the exercise of our
review jurisdiction is the occasion of a fresh
exercise of administrative power. In the ordinary
course of events, therefore, the Tribunal is entitled
to have regard to the facts or matters as they stand
at the date of its decision . . . "

22. In Re Hospitals Contribution Fund of Australia and Minister for Health (No. 3) (1979) 2 ALD 401 the Tribunal, constituted by Davies J. (Deputy President, as he was then), Mr A.N. Hall (Senior Member, as he was then), and Mr W.B. Borthwick (Member) said at pages 404 and pages 405:-

"(Section 43) provides that, for the purpose of
reviewing a decision, the Tribunal may exercise all
the powers and discretions that are conferred by any
relevant enactment upon the decision-maker. The
Tribunal must consider not merely whether the
decision is one which a decision-maker might properly
have made but whether, having regard to all the
relevant matters and circumstances, it is the
decision which should be made. Moreover, in
exercising its powers to make a decision, the
Tribunal acts on the facts or the matters as they
stand at the date of its decision unless the relevant
legislation otherwise requires."

23. We accept that, unless the legislation under which the decision was made and the review is being carried out by the Tribunal requires that the decision be made on the facts as they stood at some date other than the date when the Tribunal's decision is made, it is the facts at that time on which the Tribunal must act.

24. An example of legislation which the Tribunal has regarded as requiring that the Tribunal should act on the facts as they stood at some time before the date of the review is the Social Security Act 1947. Even then, we hasten to add, it acts on the facts as they stood at that time but as ascertained from the evidence which the Tribunal has before it, not merely the facts as they might have been ascertained from the material which the original decision-maker had available to him. That Act provides for the payment of various pensions, benefits and allowances. It requires that a person seeking to be granted a pension, benefit or allowance should make a claim in writing on the prescribed form. It then relates the date from which payment is to be made to the date on which the claim was lodged. It contains no express provision that the Tribunal, when exercising its powers of review under section 15A, is to act on the facts as they existed at the time of the claim rather than the facts as they stand at the time of the review. However, because of the nature of the provisions of the Act the Tribunal has regarded itself as required to act on the facts as it finds them to have stood at the time of the claim. The acceptance by the Tribunal that the Social Security Act 1947 requires it to act on the facts as they stood at the time when the claim was made was highlighted by the case of Re Tiknaz and Director-General of Social Services (1981) 4 ALN N44. There the respondent argued that, if the Tribunal found that the applicant was not entitled to a pension at the time when he made his claim but had become qualified for the pension by the time when the Tribunal had to make its decision, the Tribunal had no power to grant him the pension, as it could only do so from a date related to the date of the claim. The Tribunal expressed the view that, if it had found those to be the facts, it would have had the power to grant the pension from the date when the applicant became qualified for the pension to be granted to him; but it granted the pension to him from the date of his claim as it found that he was qualified for it at that time.

25. It is necessary, therefore, for us to examine the provisions of the Repatriation Act 1920 to decide whether or not, when the Tribunal exercises its powers of review under it, it is, or may in some circumstances be, required to act on the facts as it ascertains them to have stood at some time other than the time of the review. The Act requires, in the same way as does the Social Security Act 1947, that a claim for a pension for incapacity should be made in writing in a form approved by the Repatriation Commission (section 25). Section 26 authorises a person to whom a pension has been granted to apply for the rate of the pension to be increased on the ground that his incapacity has increased; such claim is required to be in writing in a form approved by the Repatriation Commission. Sub-section (5) of that section empowers the Commission, when it decides to increase the rate of pension, to approve payment of the pension at the increased rate from and including the date on which the application for the increase was received by the Department of Veterans' Affairs. Where, after refusal by the Commission to grant an increase, the Veterans' Review Board decides on review that an increase should be granted, it is required by section 107VZA to specify in its decision the date from which the decision is to operate. The date which may be specified varies according to the circumstances set out in section 107VZB; the earlist possible date is that from which the Commission could have approved payment if it had decided to increase the pension. If the Administrative Appeals Tribunal is required to review a decision of the Board affirming the original refusal and it grants an increase, it likewise may approve payment of the pension from a date earlier than the date of its decision and, in circumstances specified in section 107VZY, from the earliest date which the Board could have specified.

26. The power to approve payment of pension at an increased rate from a date before the date of the Tribunal's decision is, of course, dependent upon the Tribunal having granted the increase. It is arguable, therefore, that the Tribunal, in deciding whether or not to grant the increase, must act on the facts as they stand at the time when the review is made and consider the facts as they stood at an earlier time only afterwards, when deciding whether or not to approve payment of the increase from an earlier date.

27. The problem does not arise in respect of claims for invalid pensions under the Social Security Act 1947 because qualification for such a pension depends on incapacity being permanent. If it has ceased to exit, or has ceased to be capable of being regarded as permanent by the time of the Tribunal's review, it is most unlikely that it can properly be regarded as having been permanent at the time when the claim was made. By contrast, however, the terms of Schedule 2 to the Repatriation Act 1920, as they have been since May 1985 (although not before then), are such that a person may be totally and permanently incapacitated and meet all the requirements of the Schedule on one date but, although remaining totally and permanently incapacitated by an incapacity accepted as related to his war service, cease at some later date to meet some of the requirements of the Schedule.

28. If, as appears to be envisaged by section 30, a pension may be cancelled upon the person to whom it was granted being no longer qualified to receive it, it could be suggested that in such cases persons to whom the special rate of pension has been granted should cease to receive it when they cease to meet the requirements of the Schedule. However, that would run counter to the manner in which the Act, which is remedial legislation, has been administered over many years and we doubt whether it was the intention of the legislature that the substitution of the new Schedule 2 would have that effect. If it had been the government's intention to make such a radical change, one would have expected that, when it introduced the legislation into Parliament, it would have been clearly stated in the Minister's second reading speech. There was no such clear statement. We note that Schedule 2 is couched in terms of the granting of the special rate of pension, rather than in terms of eligibility to receive it; that may have been intended to indicate that qualification need exist only at the time of the original grant. In any event, we conclude that it was not intended that a person to whom the special rate of pension had been granted should cease to be paid his pension at that rate, except possibly if, contrary to expectation, he ceased to be totally incapacitated.

29. That being so, we are satisfied that the Tribunal, in a case such as the present one, should decide the applicant's qualification for grant of the special rate of pension on the basis of the facts as they stood at the earliest date from which it can approve payment at that rate. He has already been disadvantaged, in comparison with persons to whom the special rate was granted in 1982, because the Tribunal is required, by section 68(2) of the Repatriation Legislation Amendment Act 1985, to test his qualification for grant of the special rate by reference to Schedule 2 in its present form instead of the form which it had in 1982. It would, we consider, unfairly disadvantage him further in comparison with such persons if on the facts as they stood then, he was qualified for it in terms of the present more stringent provisions of Schedule 2. We reiterate that the Act is remedial legislation, and should be administered accordingly.

30. Although no copy of the applicant's application for an increase in the rate of his pension which resulted in the decision of the Repatriation Board against which he appealed to the Repatriation Review Tribunal is in evidence, the statement of the Boards' reason for its determination commences: "This is an application by the member for an increase in war pension . . .". It is apparent, therefore, that the applicant made in about July 1982 such an application which was accepted as complying with the requirements of section 26. He made both his applications for review within the times specified in section 107VZB and 107VZY; if the Tribunal grants the increase sought, it may approve payment of the pension at the increased rate from July 1982. We are satisfied, therefore, that, at least in the circumstances of the present case where the applicant has applied within the specified times for review by the Veterans' Review Board and by the Administrative Appeals Tribunal, the Tribunal should act on the facts, not as they stand at present, but as they stood at the time when the Repatriation Board considered the applicant's application for an increase in the rate of his pension.

31. We turn now to consideration of placitum (iii) of sub-paragraph (b) of the first paragraph of Schedule 2. We have no doubt that in July 1982 the applicant was prevented from undertaking remunerative work by reason only of the incapacity accepted as attributable to war service and that he was, by reason thereof, suffering a loss of salary, wages or earnings that he would not have been suffering if he had been free of that incapacity. He was then only 55 years old. From 1948, when he left the RAAF, until 1972 he remained constantly in employment or self-employed. He had a number of skills and experience of various types of work, to which we have already referred; before 1972 his incapacity accepted as attributable to war service had not prevented him undertaking remunerative work of a number of the types for which his skills and experience fitted him. However, he ceased to undertake remunerative work late in 1972. We are satisfied that he did so because at that time he was prevented from continuing to undertake remunerative work by reason of the incapacity resulting from his asthmatic bronchitis and developing emphysema; he then suffered a loss of wages which he would not have been suffering if he had been free of that incapacity. We are satisfied that that continued to be the situation from then onwards and it was still so in July 1982.

32. Mr Callioni submitted, however, that in July 1982 the applicant was not prevented from continuing to undertake remunerative work; he referred to the fact that placitum (iii) is couched in the present tense. He further submitted that it was not the facts as they were in 1982 to which regard must be had but those existing at the time of the present review; we have dealt fully with a similar submission in relation to placitum (ii) and what we have said in regard to that we consider to be applicable in respect of placitum (iii) also. With regard to his first submission, we observe that in the English language the present tense of a verb may import a notion of continuity of a state which has existed for some time past; that is to say, it is capable of connoting a present state of facts which is a continuation of a previously existing similar state of facts. In July 1982 it would have been possible for the Repatriation Board to have made a finding, expressed in the terms that "the applicant is prevented from continuing to undertake remunerative work", meaning that "he is and has for the period since he ceased work been prevented from continuing to undertake the remunerative work that he was undertaking before he ceased it". In our view that meets the requirement of placitum (iii).

33. If it were otherwise, a pensioner forced by his incapacity to cease work would not be qualified for grant of the special rate of pension if he failed to make a claim under section 26(2) for an increase in his pension immediately he ceased work; any delay would result in his being unable to meet the requirements of placitum (iii). Again we stress that the Act is remedial legislation. It would be absurd and unfair if a person who would have been qualified in terms of placitum (iii) on the day he ceased work should be regarded as not meeting the requirement of that placitum only because he delayed by, say, six months the making of his application for the rate of his pension to be increased. We are satisfied, therefore, that the present tense is used in that placitum in the continuing sense to which we have referred and that, provided that from the time when the pensioner ceased work he has been prevented from continuing or resuming to undertake remunerative work by reason only of the incapacity accepted as attributable to his war service and he is by reason thereof suffering a loss of salary, wages or earnings which he would not otherwise be suffering, he meets the requirements of placitum (iii).

34. We find, therefore, that in July 1982 the applicant met all the requirements of sub-paragraph (b) of the first paragraph of Schedule 2 and was qualified to be granted the special rate of pension at that time. We are satisfied that it is to the facts as they stood at that time, but ascertained in the light of all the evidence available to the Tribunal now, that we must look to decide whether or not the decision under review was the correct and preferable decision and, if it was not, whether an increase in the rate of his pension should be granted to the applicant. It is on that basis that we have decided to grant him an increase in his pension to the special rate referred to in Schedule 2, and to approve the payment of the pension at that rate with effect from 16 July 1982, the date of the Repatriation Board's decision. We have chosen that date, rather than the date on which he lodged his claim for the increase, because he has not provided us with the material from which we might have ascertained on that date; we are satisfied that to allow the increase with effect from the date of the Board's decision accords him substantial justice in the circumstances.