Allen and Repatriation Commission [1987] AATA 868 (27 November 1987)

Administrative Appeals Tribunal

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Allen and Repatriation Commission [1987] AATA 868 (27 November 1987)

Last Updated: 31 January 2008

ADMINISTRATIVE APPEALS TRIBUNAL

Veterans' Affairs - disability pension – special rate -retirement aged 60 - claim for special rate aged 65.

Veterans' Entitlements Act 1986 ss.24, 28, 39(1), 120, 175

Banovich. v Repatriation Commission (1986) 69 ALR 395

Repatriation Commission v Maxwell J Smith (decided 10 August 1987)

Re Apthorpe and Repatriation Commission (1986) 9 ALD 467

Re Pringle and Repatriation Commission (1986) 9 ALD 467

DECISION & REASONS

Re RONALD JAMES ALLEN
And: REPATRIATION COMMISSION

No V86/468
AAT Decision No 3955

Tribunal: Mrs H E Hallowes, Senior Member
Commodore BG Gibbs. Member

Mrs J Maher, Member

Place: Melbourne

Date: 27 November 1987

ADMINISTRATIVE APPEALS TRIBUNAL)
) No V86/468
VETERANS' APPEALS DIVISION )

Re: RONALD JAMES ALLEN

Applicant

And: REPATRIATION COMMISSION

Respondent

DECISION

Tribunal: Mrs H E Hallowes, Senior Member
Commodore B G Gibbs Member
Mrs J Maher, Member

Place: Melbourne
Date: 27 November 1987
Decision: The decision under review is affirmed.

(sgd) Mrs HEHallowes

Senior Member

ADMINISTRATIVE APPEALS TRIBUNAL)

No V86/468

VETERANS' APPEALS DIVISION)

Re: RONALD JAMES ALLEN

Applicant

And : REPATRIATION COMMISSION

Respondent REASONS FOR DECISION

Tribunal: Mrs H E Hallowes, Senior Member

Commodore BG Gibbs. Member

Mrs J Maher, Member

Date: 27 November 1987

1. This is an application pursuant to section 175 of the Veterans Entitlements Act 1986 ("the Act") for a review of a determination of the Repatriation Commission made 11 November, 1985 which increased Mr Allen’s disability pension entitlement to 100% of the general rate but which aid not grant him payment at the special rate provided for in section 24 of the Act. The determination of the Repatriation Commission was affirmed by a decision of the Veterans' Review Board ("VRB") made on 1 July, 1986.

2. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 together with a letter from Sir Edward Dunlop dated 25 November, I9B6. Sir Edward Dunlop was the applicant's Senior Medical Officer when he was a prisoner of war for two and a half years on the Burma Railway. The Tribunal also received into evidence medical reports from Dr WG Laycock, the applicant's general practitioner, dated 21 August, 1987 and a medical report from Mr D Billett, orthopaedic surgeon, dated 26 September, 1987. The applicant gave evidence. Further evidence was given by his wife; Mr RC Hayes and Mr SM Jordan who have both been office bearers of the Northcote Returned Servicemens' Club ("the Club") where Mr Allen was employed for a number of years and where he is now a member.

3. Section 24 of the Act sets out the qualifications for entitlement to pension at the special rate. It provides:

"24. (1) This section applies to a veteran, other than a veteran to whom section 25 applies, if-

(a) there is in force in respect of the veteran a determination under this Act determining that the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is 100 per centum;

(b) the veteran is totally and permanently incapacitated, that is to say, the veteran's incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and
(c) the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity.

(2) For the purpose of paragraph (1)(c) -

(a) a veteran who is incapacitated from war-caused injury or war-caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if-

(i) the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; or

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

(b) where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that: incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking.

(3) This section also applies to a veteran who has been blinded in both eyes as a result of war-caused injury or war-caused disease, or both.

(4) The rate at which pension is payable to a veteran to whom this section applies is $364.90 per fortnight."

4. The matter must be decided to our reasonable satisfaction (sub-section 120(4). The application is one in respect of the re-assessment of the rate of pension payable and does not fall within the provisions of sub-sections 120(1) or (2). On 7 June, 1985 Mr Allen lodged an application for increased rate of disability pension. On 11 November, 1985 a delegate of the Repatriation Commission assessed his disability pension at one hundred per centum of the general rate. On 27 January, 1986 Mr Allen applied to the VRB for a review of the decision. While not in its terms a claim for a special rate pension, the claim which initiated proceedings leading to this application for review in which Mr Allen has argued that he is entitled to a pension at the special rate was his claim dated 7 June, 1985. Whether Mr Allen satisfies the provisions of section 24 of the Act must he determined as at the time of his application to the primary decision maker (Banovich v Repatriation Commission (1986) 69 ALR 395 at 404).

5. In Repatriation Commission v Maxwell J Smith an as vet unreported decision of the Full Court of the Federal Court of Australia decided 10 August 1987 Beaumont J. said:

"It is convenient, in the first instance, to recall what, relevantly, was decided in Banovich, Deikou and Lucas: (1) The term 'remunerative work' refers to the type of work which the member previously undertook; hence the loss of a particular job, because, for example, of retrenchment for economic reasons, is immaterial for our purposes (Banovich at p 402). (2) Eligibility for pension at the special rate is to be determined as at the earliest available date, vis. three months before the date of application (s20(1); Banovich at pp 403-4). In so holding, the Full Court (Fisher, Beaumont and Wilcox JJ) rejected the member's submission that he was entitled to the special rate if he was at any time able to satisfy the statutory criteria, that is to say, the Court rejected the submission that once the entitlement arose, it was said, it was not lost because, before the final determination of the claim for that pension, there arose some additional impediment to remunerative work (at p 403). (3) Although a person is not automatically disentitled to a special rate pension on attaining 65 years, eligibility will only be established if, on the facts, the member was prevented from working by the service-related disabilities alone (Banovich at p 404; Deikou at pp 413-4; Lucas at pp 421-2)."

The earliest date on which Mr Allen can satisfy the provisions of paragraph 24(1)(a) of the Act is 7 June, 1985, the date there is in force a determination that Mr Allen's degree of incapacity is one hundred per centum.

6. Mr Allen was born on 10 November, 1919. He joined the Australian Army on 13 June, 1940. In June 1941 he was posted to the Middle East. When returning to Australia in 1943 fate intervened and the ship Mr Allen was sailing on was diverted. Mr Allen was ordered to disembark on Java. He told the Tribunal that there was a feeling of hopelessness amongst the troops who were in winter garb and unarmed as their weapons had been placed on another ship. Mr Allen had a revolver and three bullets in his possession. Ships sent from Australia to rescue the troops were sunk. Mr Allen was taken prisoner and transferred to Changi and from there to the Burma railway in the most appalling circumstances. He was in the first batch of troops to arrive at the railway. Mr Allen is unable to forget his experiences and he attributes the incapacity he suffers from to the weights he was required to carry when working on the railway and the conditions under which he had to try and survive.
7. After demobilisation Mr Allen completed his apprenticeship in the boot trade which had been interrupted by the war. However he had difficulty with that job in that it required standing for long periods of time and after four years he obtained work as a kitchen hand. He later obtained work as a barman before being invited to become the bar manager at the Club in 1973. The position was one of responsibility and required him to work forty hours each week finishing at approximately 7.00 or 8.00 pm each working day. He was responsible for one full-time hand and two casual workers, ordered the stock, served behind the bar and assisted at club functions. The job also involved him moving barrels and packaged deliveries. He enjoyed the work although it involved a lot of standing. He was a popular figure at the club. In 1977 he felt unable to continue with his work due to the pain in his neck and his depression. He was not aware that he might have been entitled to a service pension on the grounds of invalidity (sub-section 39(1) of the Act). He told the Tribunal that had he received a pension he would have retired from his work.
8. Mr Allen spoke to Mr Hayes, the then secretary of the Club, about retiring when he reached sixty years of age on 10 November, 1379. He had a superannuation policy through the Club vesting when he reached sixty-five years of age. The Club suggested that Mr Allen take over the responsibility of cleaning the Club. He accepted the offer and took a $38.00 per week drop in salary although he was paid at the award rate for a full-time cleaner. He was able to complete his cleaning job by working from 7.00 until 11.00 am each morning. The position suited him as he could do the work which was light and then go home for a rest. Four days before his sixtieth birthday Mr Allen retired on 6 November, 1979. He felt unable to continue with his cleaning job. He was aware that he could obtain a service pension. He told the Tribunal that, were it not for his disabilities, he had hoped to work until he was sixty-five. By retiring at the age of sixty Mr Allen lost approximately $9,000 in superannuation benefits.
9. In 1965 Mr Allen was granted disability pension of 20% of the general rate for his anxiety state and fibrositis. On 28 September, 1977 his incapacity from "conjunctivitis, hypermetropia with presbyopia" was rejected as not being service related. On 29 August, 1983 Mr Allen's service related disability fibrositis was amended to read "fibrositis with cervical disc degeneration" and his pension increased to 50% of the general rate. On 7 June, 1985 Mr Allen lodged a claim for increase of that rate. There is no dispute that Mr Allen's experiences during his war service have placed many difficulties in his way and the way of Mrs Allen. It was put to the Tribunal by Captain Benson, who represented Mr Allen at the hearing, that Mr Allen would have worked beyond the age of sixty-five had it not been for his war caused disability. Mr Allen knew of one other Bar Manager still working for an RSL Club beyond the age of sixty-five.

10. On 7 June, 1985 Mr Allen was aged sixty-five years. He satisfied the provisions of paragraph 24(1)(a) of the Act. Mr Smith, who represented the respondent at the hearing, put to the Tribunal that on the evidence before us we could be satisfied that the provisions of paragraph 24(1)(b) of the Act were satisfied. Dr Laycock's report dated 21 August, 1987 states:

"Since 1982 Mr Allen has had frequent visits for neck and back pain, becoming more incapacitating.

These disabilities caused him to retire in 1979 from work involving some lifting. He was suffering increasing disability before this time, and was forced to take a light cleaning job and to drop $40 per week in salary."

On 10 May, 1983 Dr L Fennessy reported that Mr Allen was an anxious, mildly depressed man. On 15 August 1985 Dr D Maginn, psychiatrist, advised:

"He sleeps about two hours and then may be restless for 3-4 hours. He has nightmares 2-3 times a week. He wakes up sweating and fearful. He is often irritable but usually doesn't express his feelings externally. He becomes tense inside and this sometimes precipitates diarrhoea. When worried he sometimes gets shaky and shivery. He is uncomfortable in crowds. He becomes irritable and has to get out."

A physiotherapist found Mr Allen had "grossly limited cervical movements and neck pain" when she assessed Mr Allen on 14 March, 1986. Before his retirement in November 1979 Mr Allen was only doing light cleaning duties for twenty hours each week with a sympathetic employer and felt unable to continue in that position, taking a considerable drop in his superannuation payment as a result of his retirement.

11. The essence of paragraph 24(1)(b) of the Act is that Mr Allen's incapacity from war caused disease must have been of such a nature as of itself alone to render him incapable of undertaking remunerative work for periods aggregating more than eight hours per week. Section 28 of the Act requires us to take only certain specified matters into account in deciding capability for undertaking remunerative work for the purposes of paragraph 24(1)(b). The section provides as follows:

"In determining, for the purposes of paragraph 23(1)(b) or 24(1)(b), whether a veteran who is incapacitated from war-caused injury or war-caused disease, or both, 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 veteran;
(b) the kinds of remunerative work which a person with the skills, qualifications and experience referred to in paragraph (a) might reasonably undertake; and
(c) the degree to which the physical or mental impairment of the veteran as a result of the injury or disease, or both, has reduced his or her capacity to undertake the kinds of remunerative work referred to in paragraph (b)."

Although Mr Allen completed his apprenticeship in the boot trade he has not worked in that trade for many years and could no longer be expected to undertake work in that trade. Mr Allen might reasonably be expected to undertake bar work or light cleaning duties. Paragraph 28(c) requires consideration of the way in which Mr Allen's physical or mental impairment, being his fibrositis with cervical disc degeneration and anxiety state, have reduced his capacity to undertake the above kinds of remunerative work. The evidence establishes that Mr Allen's neck pain and anxiety presented a major difficulty for him in undertaking his remunerative work before his retirement. However the evidence also satisfies us that Mr Allen's employers were happy with his work and did not ask him to retire at the age of sixty. He had taken no sick leave before his retirement and his doctor had not suggested to him that he retire. The vast majority of persons cease working at or before the age of sixty-five. The medical reports from Dr Fennessy dated 18 May 1983, Dr Mag inn dated 15 August 1985 and Dr Laycock dated 21 August 1987 make it probable that it is Mr Allen's fibrositis and anxiety state which rendered Mr Allen incapable of undertaking remunerative work by June 1985.

12. At the date Mr Allen lodged his application for increase in the rate of pension to the special rate he was aged sixty five and had not worked for approximately five and a half years. He was five months beyond the ordinary age of retirement for men. Despite Captain Benson's submission, there is nothing in the evidence before us that leads us to the conclusion that, apart from his disabilities, Mr Alien would have worked after the ordinary retiring age. He had arranged his superannuation to vest at that age. The ageing process had taken its toll. To qualify for pension at the special rate Mr Allen must meet the cumulative tests set out in paragraphs(a), (b) and (c) of sub-section 24(15 of the Act. The purpose of paragraph (c) is to limit the payment of benefits to those who have not only suffered an incapacity preventing work of more than 8 hours per week but who have in consequence between prevented from continuing to undertake work they would otherwise have undertaken and by reason thereof suffered a loss of wages. In Re Apthorpe and Repatriation Commission (.1986) 9 ALN 157 the Tribunal said:

"In our view, 'alone' must mean exclusively. One must be able to say that if the applicant were free of the accepted incapacities, he would still be working. One must be able to say that on the balance of probabilities his cessation of work can be attributed only to his service related incapacities and to nothing else. Those incapacities must in fact prevent him from continuing to undertake remunerative work."

An applicant cannot derive any comfort if the war caused disease is the substantial cause of his incapacity, the words of the statute require it to be the only cause. Thus if age plays a part in his inability to undertake remunerative work his case must fail. The evidence leads us to conclude that Mr Allen's age must be regarded as a factor standing between him and employment. Had Mr Allen no war-caused incapacity we are satisifed that he would have retired from work by his 65th birthday. Although we feel considerable sympathy for Mr Allen, eligibility for special rate pension must be determined in accordance with the provisions of the Act and not upon the basis of sympathy. The Federal Court in Banovich v Repatriation Commission (1986) 69 ALR 395 expressly disapproved a Tribunal decision in the matter of Re Pringle and Repatriation Commission (1986) 9 ALD 467 which the Court summarised as follows:

"The Tribunal found that, at a point of time earlier than the date of the application, all of the requirements of para [1](b) - as it stood at the date of the Tribunal's decision -were met by the applicant. It was held that he thereby became entitled to a grant of a special rate pension, an entitlement which was not lost because of subsequent events, 'Any other view', the Tribunal said, 'would discourage the well motivated person who would otherwise try to continue in useful work despite his disabilities and encourage those less well motivated for fear that if they did not apply for the TPI pension at the earliest possible opportunity they would later be debarred by the mere fact of increasing age.

. . .

We have some sympathy for the comment made in Pringle, quoted by us, as to the effect of confining examination of the facts to the period commencing from the date of the application for a special rate pension. But it appears to us that the terms of the legislation permit no other conclusion than that contended for by the Commission."

We would, with respect, adopt these words. The decision under review must be affirmed.

I CERTIFY THAT THE 10 (TEN)

PRECEDING PAGES ARE A TRUE COPY OF THE DECISION AND REASONS FOR DECISION HEREIN OF MRS H.E. HALLOWES
COMMODORE B.G.GIBBS, MRS J. MAHER

Clerk

Dated: 25.11.87