Hatherall and Repatriation Commission [2003] AATA 83 (31 January 2003)

Last Updated: 31 January 2003

DECISION AND REASONS FOR DECISION [2003] AATA 83

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/477

VETERANS' APPEALS DIVISION	)
	Re	KATHLEEN JEAN HATHERALL

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

Senior Member M D Allen

Date 31 January 2003

Place Sydney

Decision

This matter is remitted to the Respondent with the direction that in accordance with the Tribunal's decision of 11 February 2002 the Applicant Kathleen Jean Hatherall is entitled to pension at the Special Rate pursuant to section 24 of the Veterans' Entitlements Act 1986 (as amended) as and from today's date.

(Sgd) M. D. ALLEN

..................................

Senior Member

CATCHWORDS

VETERANS' ENTITLEMENTS - Application for special rate pension - Whether incapacity permanent - Permanent means for the foreseeable future not forever.

Veterans' Entitlements Act 1986 - s24A

McDonald v Director General Social Security 1 FCR 354

Jebb v Repatriation Commission 80 ALR 329

REASONS FOR DECISION

31 January 2003

Senior Member M D Allen

1. On 11 February 2002 the Tribunal made a decision in this matter in the following terms, namely:

"The decisions under review are set aside and the Tribunal substitutes in lieu thereof its decision namely THAT the Applicant, Kathleen Jean Hatherall, is entitled to payment of pension for the defence-caused diseases of osteoarthritis right knee, adjustment disorder with depressed mood and lumbar spondylosis as and from 19 July 1998 AND THAT the assessment of the rate of pension to be paid is adjourned to the 1^st day of July 2002 with payment to the Applicant as and from the 19^th day of July 1998 to the 30^th day of June 2002 at the Temporarily Totally and Permanently Incapacitated rate as set forth in section 25 of the Veterans' Entitlements Act 1986 (as amended)."

2. At paragraph 62 of the reasons for decisions I said:

"...The Tribunal's intention is that following it's finding that the Applicant is entitled to pension at the Special Rate that this matter be adjourned until the 1^st of July 2002. In the interim the Applicant is granted a pension pursuant to section 25 of the VEA, that is to say at the temporarily totally incapacitated rate. If in that time steps can be taken by the Respondent to undertake rehabilitation for the applicant and place he in one of the clerical positions which it argued she could fulfil, than the matter can be reassessed. If the Applicant is on 1^st July 2002 still unable to engage in remunerative work, she will be entitled to pension at the Special Rate unless some other matters intervene."

3. In conformity with the above decision and the reasons for it on 11 July 2002 a directions hearing was held. At that directions hearing the Respondent appeared by Counsel Miss R Henderson, instructed by the Commonwealth Crown Solicitors Office.

4. During discussion of the matter Miss Henderson stated:

"Belatedly we have been trying to make contact with the Applicant to talk to her about a suitable rehabilitation plan for her. Unfortunately we have not got a response yet."

5. After further discussion and over the vigorous objections of the Applicant's representative, I made a direction that the matter be adjourned to 11 December 2002 and pension continued at the totally and temporarily incapacitated rate. I concluded the directions hearing by stating:

"I am not spelling it out, Miss Henderson, but I think you can understand that it's adjourned so that there is [sic] proper moves made regarding rehabilitation."

6. The matter was next before me on 6 December 2002. At that directions hearing I received into evidence the report of Dr Laycock, consultant in rehabilitation medicine dated 4 December 2002. I was told from the bar table by the Applicant's representative, without objection, that it was the Applicant herself who had arranged for her assessment and treatment by Dr Laycock.

7. At the request of the Respondent the matter was then adjourned for the lodging with the Tribunal of written submissions.

8. In her written submissions Counsel for the Respondent refers to an assessment report by CRS Australia regarding the Applicant. That report is not before me.

9. Dr Laycock in his report states:

"Ms Hatherall was admitted under my care to the Medical Unit of Hunter Valley Private Hospital on the 8.11.02. She was transferred to the Rehabilitation Unit in the same hospital for a specific rehabilitation program. She had been referred to me by her local doctor, Dr Maurice Wark."

Dr Laycock than added under the heading "How long is she expected to be hospitalised?":

"Ms Hatherall is currently receiving a comprehensive interdisciplinary rehabilitation program with inputs physiotherapy, occupational therapy, clinical psychology, rehabilitation nursing and myself. The program is directed at her regaining independence in her basic self-care sufficient for her to be discharged to home. I believe she is currently in the latter stages of her inpatient rehabilitation program. I am anticipating that she will be able to have day leave (for the first time) this Sunday, 8.12.02. If that is successful, further periods of leave will take place in the following week culminating with a trial of overnight leave at home. Once she is able to manage this independently, her rehabilitation program will then continue on an outpatient basis. I am very keen for Ms Hatherall to be discharged home prior to Christmas."

Dr Laycock then concluded his report under the heading "What prospect if there of Ms Hatherall being able to undertake remunerative employment for the foreseeable future?":

"When I first met Ms Hatherall, a vocational goal was very high on her agenda. This was somewhat incongruous with the reality of the situation in that she was unable to live at home and undertake her basic self-care independently. One significant progress that has been made during this admission has been for Ms Hatherall to regain insight into the broader picture and she has appropriately reset her goals. As a consequence, it is not a short or even medium-term goal to re-enter the competitive workforce. I believe that that is an important longer-term goal, but the time frame for this is yet to be ascertained. There is the potential that Ms Hatherall will have a long-term work disability (in relation to her ability to gain and maintain a position in the field of competitive employment). It is only once she has regained proficiency with her basic self-care that vocational goals can be reasonably set."

10. Section 24 VEA requires that the incapacity be "permanent". The context of "permanent" in social welfare legislation was discussed by the Full Court of the Federal Court in McDonald v Director General Social Security 1 FCR 354. At p360 Woodward J said:

"...The true test of a permanent as distinct from temporary incapacity is whether in the light of the available evidence it is more likely then not that the incapacity will persist in the foreseeable future."

cf Northrop J at p 365:

"...I agree with the opinion of Woodward J that under the Act the true test of whether incapacity for work is permanent as distinct from being of a temporary nature is whether, in the light of all the evidence and material before the Director-General, or his delegate, or the AAT, the incapacity for work is more likely than not to persist in the foreseeable future."

11. That a "permanent" incapacity could resolve was acknowledged by Woodward J. At p360 he said:

"It is not inconsistent with the notion of permanent incapacity that the pensioner's position should be reviewed from time to time. Unexpected improvements in the person's condition, advances in medical science, the achievement of fresh skills, or even changes in the labour market, could bring to an end an incapacity which had been thought to be permanent."

12. So far as permanent incapacity for the purposes of section 23 and 24 VEA is concerned the matter is specifically dealt with by s24A VEA which reads inter alia:

(1) Subject to subsection (2), if the Commonwealth is or becomes liable to pay a pension to a veteran at the rate applicable under section 23 or 24, that rate continues, while a pension continues to be payable to the veteran, to apply to the veteran unless:

(a)...

(b)...

(c) in the case of a veteran to whom section 24 applies--the veteran is undertaking or is capable of undertaking remunerative work for periods aggregating more than 8 hours per week."

13. As pointed out by Davies J in Jebb v Repatriation Commission 80 ALR 329 at 340 citing the second reading speech to the Social Security and Veterans' Entitlements Amendment Act (2) 1987:

"The second change is to insert a new s24A in the Veterans' Entitlements Act. This will ensure that person who are eligible to receive and are receiving a TPI or intermediate rate pension will not ordinarily lose payment of the pension at such a rate in their lifetimes. The only exceptions are where the grant of pension would not have been made but for a false statement or misrepresentation or, whether the veteran's war-caused incapacity improves to the extent that he or she is undertaking, or becomes capable of undertaking, remunerative work for periods greater than specified in the existing law."

14. Having regard to the report of Dr Laycock I find that the Applicant will continue to be incapacitated for remunerative work for the foreseeable future. This means that the incapacity is permanent. That at some indeterminate time she may improve is precisely the situation covered by s24A VEA and thus as of today's date she is entitled to pension at the totally and permanently incapacitated rate of pension as prescribed by s24 VEA.

15. This matter is therefor remitted to the Respondent with the direction that in accordance with the Tribunal's decision of 11 February 2002 the Applicant Kathleen Jean Hatherall is entitled to pension at the Special Rate pursuant to section 24 VEA as and from today's date.

I certify that the 15 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen.

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

Associate

Date/s of Hearing 11 July 2002, 6 December 2002

Date of Decision 31 January 2003

Advocate for the Applicant Mr R Sherlock, Legal Aid commission NSW

Counsel for the Respondent Miss R Henderson

Solicitor for the Respondent Ms A Nanson, Australian Government Solicitor