Milne and Repatriation Commission [2002] AATA 119 (27 February 2002)

Last Updated: 1 March 2002

DECISION AND REASONS FOR DECISION [2002] AATA 119

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/ 674

VETERANS' APPEALS DIVISION )

Re DOUGLAS MILNE

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Ms N Bell, Member

Date 27 February 2002

Place Sydney

Decision The Tribunal affirms the decision under review.

[SGD] N Bell

Member

CATCHWORDS

VETERANS' APPEALS - disability pension - rate of pension - whether Applicant is entitled to temporary payment at the Special rate for the period February 1999 to July 1999 - assessment period - application day

Veterans' Entitlements Act 1986 - sections 15, 18, 19, 21, 24 and 25

K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309

McDonald v Director-General of Social Security (1984) 1 FCR 354

REASONS FOR DECISION

Ms N Bell, Member

1. This is an application by Mr Douglas Milne ("the Applicant") for review of the decision of the Veteran's Review Board of 20 April 2001 to set aside a decision of the Repatriation Commission ("the Respondent"), which increased the Applicant's disability pension to 100 percent of the General rate with the Extreme Disablement Adjustment, and to substitute therefor a decision that pension be paid at the Special rate from 25 September 2000.

2. The parties elected to have the application decided "on the papers" and without a hearing. The Tribunal had before it the documents lodged under section 37 of the Administrative Appeals Tribunal Act 1975 ("the T documents") and written submissions from the parties. The Applicant is a former Queens Counsel and made submissions to the Tribunal on his own behalf.

Background

3. The Applicant made an application for an increase in disability pension for previously accepted disabilities on 25 September 2000 (T3). On 21 November 2000 the Respondent decided to increase the Applicant's disability pension to 100 percent of the General rate with the Extreme Disablement Adjustment with effect from 25 September 2000 (T9). The Applicant lodged an application for review of the Respondent's decision with the Veterans' Review Board on 29 November 2000. On 20 April 2001 the Veterans' Review Board decided to set aside the Respondent's decision and in substitution decided that the Applicant's disability pension be assessed at the Special rate with effect from 25 September 2000. The Applicant then applied on 25 May 2001 for review of that decision to this Tribunal.

4. The Applicant claimed in his "grounds of appeal" to the Veterans' Review Board that he is entitled to temporary payment at the Special rate of disability pension in respect of the period from approximately February 1999 to July 1999. That payment is provided for in section 25 of the Veterans' Entitlements Act 1986 ("the Act"). In his application to this Tribunal the Applicant gave as his reason for application that he had asked the Veterans' Review Board in his grounds of appeal to grant him a pension under section 25 of the Act and that the Veterans' Review Board failed to address that request.

Issues

5. The issue to be considered in this application is whether the Applicant is entitled to temporary payment of disability pension at the Special rate for the period from approximately February 1999 to July 1999.

6. It is common ground between the parties that the Applicant applied for an increase in his rate of disability pension on 25 September 2000. This application appears to involve no factual dispute and the issue is one of statutory interpretation.

Legislation

7. The legislation relevant to this application is sections 15, 18, 19, 21, 24 and 25 of the Act. It is convenient to set out the provisions of section 25 of the Act here. The remaining provisions are set out later or discussed in these reasons. Section 25 of the Act provides:

"25 Temporary payment at special rate

(1) Where the Commission is satisfied that:

(a) a veteran is temporarily incapacitated from war-caused injury or war-caused disease, or both; and

(b) if the veteran were so incapacitated permanently, the veteran would be a veteran to whom section 24 applies;

the Commission shall determine the period during which, in its opinion, that incapacity is likely to continue and this section applies to the veteran in respect of that period.

(2) Where this section applies to a veteran in respect of a period, the rate at which pension is payable to the veteran in respect of that period is the rate applicable under subsections 24(4) and (5).

(3) The Commission may, under this section:

(a) determine a period that commenced before the date on which the determination is made; and

(b) determine a period in respect of a veteran that commenced or commences upon the expiration of a period previously determined by the Commission under subsection (1) in respect of the veteran."

Submissions

8. The Applicant's submissions are contained in his letter to the Department of Veterans' Affairs dated 19 May 2001, containing an Opinion by the Applicant in relation to the provisions of section 25 of the Act, and in his submissions dated 2 August 2001 in reply to the Respondent's submissions.

9. The Applicant submitted that section 25 of the Act requires no claim or application to be made, imposes no time limit, is framed in the present tense by use of the words "the Commission is satisfied" and "incapacity is likely", and places an imperative duty on the Respondent in stating that "...the Commission shall determine...".

10. The Applicant further submitted that the legislative intent of section 25 is to cast a duty on the Respondent to act on its own motion without a claim or an application being made by a veteran, and that that duty arises once the Respondent "is satisfied" that the veteran "is totally incapacitated". He submitted that the duty of the Respondent is couched in imperative terms, for example, "shall determine the period", and once the duty in subsection 25(1) has been performed, the whole of the section operates by legislative force by virtue of subsection 25(2). It follows, he submitted, that no claim or application is necessary.

11. The Applicant submitted that he had been hospitalised in 1999 for a number of months and the Respondent became aware of his hospitalisation within a number of days, having approved the medical treatment costs. It thus became "satisfied" that the Applicant was "totally incapacitated" and a duty sprang into life to "determine the period".

12. The Applicant submitted that the Respondent failed to "determine the period" then, or at a later time, notwithstanding that it had the power, under section 25(3)(a) of the Act to "determine a period that commenced before the date on which the determination is made". The relevant period was, in the Applicant's submission, the period from his hospitalisation in February 1999 to his return to work at the end of July 1999.

13. The Respondent referred the Tribunal to Division 3 of Part II of the Act and, in particular, section 15 which deals with claims for pension and applications for increase in pension. Section 15 provides:

"15 Application for increase in pension

(1) A veteran who is in receipt of a pension under this Part in respect of the incapacity of the veteran may apply, in accordance with subsection (3) of this section, for an increase in the rate of the pension on the ground that the incapacity of the veteran has increased since the rate of the pension was assessed or last assessed.

(2) Where there is in force in respect of the incapacity of a veteran a determination of a kind referred to in subsection 14(2) but a pension has not been granted to the veteran on the ground that the extent of the incapacity is insufficient to justify the grant of a pension under this Part, the veteran may make application, in accordance with subsection (3) of this section, for a pension on the ground that the incapacity of the veteran has increased since the grant of a pension in respect of the incapacity was refused or last refused.

(3) An application under subsection (1) or (2):

(a) shall be in writing and in accordance with a form approved by the Commission;

(b) shall be accompanied by such evidence available to the applicant as the applicant considers may be relevant to the application; and

(c) shall be made by forwarding to, or delivering at, an office of the Department in Australia the application and any evidence referred to in paragraph (b).

(4) Subsection (3) shall not be taken to impose any onus of proof on an applicant or to prevent an applicant from submitting evidence in support of the application subsequently to the making, but before the determination, of the application.

(5) Where:

(a) a person has made an application under this section for a pension at an increased rate, or for a pension; and

(b) the application has not been finally determined;

the person is not empowered to make another application under this section.

(6) For the purpose of subsection (5), an application is finally determined when either:

(a) a decision that has been made in respect of the application is not subject to any form of appeal or review; or

(b) a decision that has been made in respect of the application was subject to some form of appeal or review, but the period within which such an appeal or review could be instituted has ended without an appeal or review having been instituted."

14. The Respondent submitted that section 15 specifically deals with applications for an increase in pension and that it is clear that payment of pension at the Temporary Special rate under section 25 is an increase in pension if the criteria of that section are satisfied. The Respondent also submitted that it is clear that section 25 is governed by, and requires consideration of, section 24 of the Act (see subsection 25(1)(b)). Section 24 provides:

"24 Special rate of pension

(1) This section applies to a veteran if:

(aa) the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and

(aab) the veteran had not yet turned 65 when the claim or application was made; and

(a) either:

(i) the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or

(ii) the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and

(b) the veteran is totally and permanently incapacitated, that is to say, the veteran's incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and

(c) the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and

(d) section 25 does not apply to the veteran.

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

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

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

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

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

(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 or 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-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 25 does not apply to the veteran.

(2B) For the purposes of paragraph (2A)(e), a veteran who is incapacitated from war-caused injury or war-caused 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.

(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) Subject to subsection (5), the rate at which pension is payable to a veteran to whom this section applies is $571.70 per fortnight.

(5) If section 115D applies to a veteran, the rate at which pension is payable to the veteran is the amount specified in subsection (4) less the pension reduction amount worked out under that section."

15. The Respondent submitted that, for its part, section 24 of the Act is subject to sections 14 and 15 and applies to a veteran "...if 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 pension..." (subsection 24(1)(aa)). It follows, the Respondent submitted, that the requirements of section 15 apply to any application for, or consideration of, an increase in pension under section 25.

16. The Respondent also referred the Tribunal to section 19 of the Act, which deals with the determination of claims and applications by the Respondent. Section 19 provides relevantly:

"19. Determination of claims and applications

...

(4A) The Commission must deal with an application under subsection 15(1) in accordance with subsections (5A), (5B) and (5C) and determine the application under subsection (5D).

...

(5A) If:

(a) paragraph (3)(b) applies in respect of a claim; or

(b) subsection (4A) applies in respect of an application under subsection 15(1); or

(c) paragraph (5)(b) applies in respect of an application under subsection 15(2);

the Commission must assess the matters set out in subsection (5C).

(5B) The Commission must assess the matters set out in subsection (5C) in accordance with whichever of sections 22, 23, 24, 25, 27 and 30 are applicable in the particular case.

(5C) The matters that the Commission must assess are:

(a) the rate or rates at which the pension would have been payable from time to time during the assessment period; and

(b) subject to subsection (6), the rate at which the pension is payable.

(5D) After making an assessment under subsection (5C), the Commission must determine that pension is payable at the rate assessed.

...

(6) Where the Commission has, pursuant to subsection (5C), assessed that the pension was payable at some time during the assessment period at the rate provided by section 23 or 24 then, subject to section 24A, the rate at which the pension is payable shall not be lower than the rate provided by whichever of those sections applied, or applied most recently, during the assessment period.

...

(9) In this section:

...

'application day', in relation to a person who has made a claim or application or on whose behalf a claim or application has been made, means:

(a) the day on which the claim or application was received at an office of the Department in Australia; or

(b) if subsection 20(2) or 21(2) applies to the person--the day on which the claim or application referred to in paragraph 20(2)(a) or 21(2)(a) was so received.

'assessment period', in relation to a claim or application relating to a pension, means the period starting on the application day and ending when the claim or application is determined.

..."

17. The Respondent submitted that the effect of the above provisions is that the Respondent shall assess an application in accordance with section 25 at the rates at which the pension would have been payable from time to time during the "assessment period", which is defined in subsection 9 to mean "the period starting on the application day and ending when the claim or application is determined". "Application day" is defined as "the day on which the claim or application was received at an office of the Department in Australia". Therefore, the Respondent submitted, the period in 1999 for which the Applicant claims ended prior to his lodgement of any application and so had expired before the beginning of the assessment period.

18. The Respondent also referred the Tribunal to section 21 of the Act, particularly subsection 21(1), which allows the Tribunal to approve payment of pension at the increased rate from and including the date on which the application, in the approved form, was received at an office of the Department. The Respondent noted that the application lodged by the Applicant was not received by the Department until 25 September 2000.

19. The Applicant replied to this argument in his letter to the Respondent and to the Tribunal dated 2 August 2001. He submitted that, accepting, for the purposes of argument only, that an application is required to be made for temporary payment at the Special rate, then, in the absence of any time limit on the making of that application there is no obstacle to a determination being made by the Respondent even though the period of incapacity had passed when the application for an increase in pension was made (on 25 September 2000). The Applicant described section 19 of the Act as a procedural section and submitted that, as such, it cannot qualify the liability of the Commonwealth created by section 13 of the Act. He also referred to the existence of time limits elsewhere in the Act, for example sections 112 and 113, and suggested that the omission of a time limit in relation to section 25 was the intention of the draftsmen.

20. The Applicant also referred the Tribunal to section 107 of the Act which provides for the grant of a temporary incapacity allowance and noted that, unlike section 25, section 107 does not create a liability in the Commonwealth and section 112(1) imposes a 12 month time limit on the making of an application for temporary incapacity allowance. He submitted that it would be odd if the legislature intended to create a time limit in relation to section 25 in the circuitous manner argued by the Respondent, when section 112(1), in plain words, imposes one with clarity in relation to another temporary payment.

21. As part of the Respondent's submission, it also relied on the contents of its letter to the Applicant dated 14 June 2001, by which it initially responded to the arguments raised by the Applicant in relation to section 25. In that letter, the Respondent referred to the principle of statutory interpretation that the words of a statute are to be read in their context, and referred to the comments of Mason J in K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309). In this respect the Respondent noted that section 25 is contained in Part II of the Act and is therefore one of the various pension entitlements that is to be dealt with in accordance with the requirements of Part II. The Respondent noted that section 13 of the Act refers to eligibility for pension and provides that the Commonwealth is liable to pay a pension in accordance with the Act. The Respondent also referred, in its letter to the Applicant dated 14 June 2001, to section 18 of the Act which provides:

"18. Duties of Commission in relation to pensions

(1) It is the duty of the Commission in considering a claim or application submitted to it, to satisfy itself with respect to, or to determine, as the case requires, all matters relevant to the determination of the claim or application.

(2) Where the Board, the Administrative Appeals Tribunal or a court makes a decision remitting to the Commission a matter, being:

(a) the assessment of the rate, or increased rate, at which a pension is to be payable under this Part; or

(b) the fixing of the date as from which a decision of the Board, the Administrative Appeals Tribunal or the court is to operate;

it is the duty of the Commission to determine that matter having regard to the provisions of this Act and the reasons of the Board, the Administrative Appeals Tribunal or the court, as the case may be, for that decision."

22. The Respondent noted that this section requires it to "satisfy itself" of the various matters relevant to the determination of an application and argued that this term has not been construed by this Tribunal or by the Federal Court as imposing the statutory duty suggested by the Applicant. Rather, the Respondent contended that it refers to an evidential burden that is required to be met by an applicant to satisfy the decision maker of the existence of relevant facts. In this respect, the Respondent referred to the decision of the Federal Court in McDonald v Director-General of Social Security (1984) 1 FCR 354.

Consideration

23. The Tribunal agrees with the submission of the Respondent that the words of a statute are to be read in their context. The Respondent referred the Tribunal to the comments of Mason J in K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (supra). The relevant passage, at CLR 315, is as follows:

"On its face s 133, which is expressed in general terms, contains no limitation on the nature of the claim to damages or other remedy to which it refers. However, to read the section in isolation from the enactment of which it forms a part is to offend against the cardinal rule of statutory interpretation that requires the words of a statute to be read in their context: Cooper Brookes (Wollongong) Pty Ltd v FC of T (1981) 35 ALR 151 at 156-7, 169; (1981) 147 CLR 297 at 304, 319-20; Attorney-General v Prince Ernest Augustus of Hanover [1957] AC 436 at 461, 473). Problems of legal interpretation are not solved satisfactorily by ritual incantations which emphasize the clarity of meaning which words have when viewed in isolation, divorced from their context. The modern approach to interpretation insists that the context be considered in the first instance, especially in the case of general words, and not merely at some later stage when ambiguity might be thought to arise. In Prince Ernest Augustus of Hanover Viscount Simonds said (at p 461):

"...words, and particularly general words, cannot be read in isolation: their colour and content are derived from their context. So it is that I conceive it to be my right and duty to examine every word of a statute in its context, and I use 'context' in its widest sense ...as including not only other enacting provisions of the same statute, but its preamble, the existing state of the law, other statutes in pari materia, and the mischief which I can, by those and other legitimate means, discern the statute was intended to remedy."

In Re Bidie [1948] 2 All ER 995, Lord Greene MR said (at p 998):

"In the present case, if I might respectfully make a criticism of the learned judge's method of approach, I think he attributed too much force to what I may call the abstract or unconditioned meaning of the word 'representation'. ... The real question which we have to decide is: What does the word mean in the context in which we find it here, both in the immediate context of the sub-section in which the word occurs and in the general context of the Act, having regard to the declared intention of the Act and the obvious evil that it is designed to remedy?"

The instances of general words in a statute being so held to be constrained by their context are legion: eg Ross v R (1979) 25 ALR 137 at 142 et seq; 141 CLR 432 at 440 and the cases collected in Cross: "Statutory Interpretation" (1976) pp 44-56."

24. The Applicant has submitted that the absence of words, in section 25 of the Act, requiring an application to be made or imposing a time limit, means there is no such requirement or limitation. He submitted that the terms of the section are "imperative" and impose a duty on the Respondent to act of its own motion.

25. This argument cannot stand when section 25 is read, as it must in accordance with its own terms (section 25(2)), with section 24. Section 24 in turn requires reference to sections 14 and 15 of the Act. The combined effect of those sections is that in order for a person to be temporarily paid at the Special rate he or she must be a person to whom section 24 of the Act applies, that is, (among other things) a person who has made an application under section 15 for an increase in the rate of the pension he or she is receiving (section 24(1)(aa)), and that application must be (among other things) in writing and forwarded to or delivered at an office of the Department in Australia (section 15(3)).

26. There is no dispute that the Applicant made an application for an increase in his rate of disability pension on 25 September 2000. The question is then whether that application can ground a determination to temporarily pay the Applicant at the Special rate for the period of incapacity contended by the Applicant to be from February 1999 to July 1999.

27. The provisions of section 19 of the Act set out the way in which the Respondent must deal with an application for, among other things, an increase in pension. The provisions, although circuitous, are clear and precise in their effect and refer specifically to applications for increase in pension under section 25 and require assessment in accordance with that section. They also require reference to the period between the date on which the Applicant applied for the increase in pension, being in this case 25 September 2000, and the date of the determination being made. This period is referred to as the "assessment period" and it is the rate payable to an Applicant during this period that will determine the rate payable to him for the duration of the temporarily increased payment.

28. The difficulty faced by the Applicant is that his "assessment period" is the period starting from the date of his application, that is, 25 September 2000. That period clearly does not encompass his contended temporary incapacity from February 1999 to July 1999.

29. The Applicant noted the adoption of time limits in other parts of the Act and submitted that a procedural provision cannot affect the liability of the Commonwealth under section 13 of the Act. It should be noted that the liability imposed on the Commonwealth under section 13 is a liability to pay "pension by way of compensation to the veteran". The matter of concern here is not that liability per se but the means by which the rate of pension will be assessed and determined. Similarly, the provisions of section 19 of the Act (contained in Division 3 - "Claims for pensions and applications for increases in pensions") go to the matter of assessment and determination rather than to questions of entitlement or eligibility (contained in Division 2 - "Eligibility for Pension").

30. While the operation of section 19 in this case may have an effect similar to that of a time limit, its primary function is to facilitate and provide a framework for the assessment of rates of pension. The provisions of section 19 are something more than procedural. Among other things, the section identifies a period, the "assessment period", which is to be used as the sample period or basis for the assessment. Given that the Act requires an application to be made by a person in order for a person's rate of pension to be increased, it is predictable and logical that the "assessment period" is set, in section 19, to commence on the day that the application is received by the Department. In addition, the very specific and precise, as opposed to general, terms of the section leave little scope for, and indeed little call for, reference to other parts of the Act or to a context wider than that of the business of assessment of rates of pension.

31. For these reasons, the Tribunal considers that the relevant provisions have been interpreted correctly by the Veterans' Review Board and that it correctly determined that the Applicant is entitled to the Special rate of disability pension from 25 September 2000.

Determination

32. The Tribunal affirms the decision under review.

I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Member

Signed: .....................................................................................

Associate

Date of Hearing 19 November 2001

Date of Decision 27 February 2002

Representative for the Applicant Self

Advocate for the Respondent J Marsh