White and Repatriation Commission [2010] AATA 469 (25 June 2010)

Last Updated: 25 June 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 469

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2009/5328

VETERANS' APPEALS DIVISION		)
	Re		GORDON WHITE

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

Dr M Denovan, Member

Date 25 June 2010

Place Brisbane

Decision

The Tribunal affirms the decision under review.

.................[Sgd].............................
Member

CATCHWORDS

VETERAN’S AFFAIRS – Pensions and benefits – Eligibility for special rate pension – Decision affirmed.

Veterans’ Entitlement Act 1986 (Cth) ss 19, 24

Flentjar v Repatriation Commission [1997] FCA 1200; (1997) 48 ALD 1

Repatriation Commission v Braund [1991] FCA 422; (1991) 23 ALD 591

Repatriation Commission v Hendy [2002] FCAFC 424; (2002) 76 ALD 47

Re Peter Banovich v the Repatriation Commission [1986] FCA 397

REASONS FOR DECISION

25 June 2010

Dr M Denovan, Member

INTRODUCTION

1. Mr Gordon White, the applicant, served in the Australian Regular Army from 1 March 1962 to 29 February 1968. The respondent has accepted Mr White’s conditions of lumbar spondylosis, erectile dysfunction, post traumatic stress disorder, tinnitus, alcohol dependence/abuse, and recurrent mycotic infections of ear channels, perianal region and feet as being conditions arising from his war service.
2. Mr White is currently in receipt of 100 percent of the general rate of disability support pension, and he now seeks to be paid an earnings related pension referred to as “special rate” in the Veterans’ Entitlement Act 1986 (Cth) (the Act).

ISSUES AND THE LAW

3. Section 24 of the Act sets out several criteria that must be satisfied before a pension is payable at the “special rate”. It is agreed by both parties that all but that specified in s 24(1)(c) are satisfied. The issue is therefore whether Mr White satisfies s 24(1)(c) of the Act. That section provides:

(1) This section applies to a veteran if:
(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...

4. Section 24(2)(a) provides that for the purposes of the second limb of s24(1)(c), the so-called loss test, a veteran 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; ...

5. Section 24(2)(b) operates in certain circumstances to ameliorate the consequences of failing to satisfy the first limb of s 24(1)(c), the so-called “alone” test.
6. In Flentjar v Repatriation Commission [1997] FCA 1200; (1997) 48 ALD 1 at 4-5 Branson J, with whom Beaumont and Merkel JJ agreed, described the issues raised by s 24(1)(c) as being:

(1) What was the relevant “remunerative work that the veteran was undertaking” within the meaning of s 24(1)(c) of the Act?
(2) Is the veteran, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?
(3) If the answer to question 2 is yes, is the war-caused injury or war-caused disease, or both, the only factor or factors preventing the veteran from continuing to undertake that work?
(4) If the answers to questions 2 and 3 are, in each case, yes, is the veteran by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of that incapacity?

BACKGROUND

7. When Mr White was discharged from the Army at the age of nearly 25, he was a qualified Technician Electronics and Cipher. He held a number of positions in the electronics/technical field until 1981 when he entered the TAFE system, where he held full time teaching positions at various locations throughout the ACT and South Australia until 2001.
8. Mr White’s last employment was at TAFE Torrens Valley from 1996 to 2001. This position required him to teach 20 hours in the class room, and dedicate 15 hours to preparation. The classroom was a self learning environment, and as such his position was to assist students whenever they needed during those 20 hours. His relationship with other lecturers was amicable at first, however by the time he left he was working on his own and his relationship with others was strained.
9. Mr White told me that he had difficulty working in a team environment and had conflicts with the managers. He refused to accept criticism and felt that the problem was with everyone else and not himself. He felt he was more qualified than everyone else and resented having performance appraisals by those whom he perceived were less qualified than he.
10. During his appraisal with manager Mr Alan Manley, Mr White raised the possibility of a termination package. He was aware that the government was offing termination packages in an attempt to reduce the total number of staff. Mr Manley gave evidence to the Tribunal by phone. He confirmed that Mr White was a difficult employee, who was reluctant to work with students and in a team environment. He told me that Mr White’s acceptance of a termination package averted the need for disciplinary action. Mr Manley had not decided what the form of that disciplinary action would be.
11. Mr White told me that prior to accepting the termination package he had intended to stay employed at TAFE until the normal retirement age, which was then 65 years of age.
12. Mr White did not appreciate at the time that his difficulties in the workforce were a consequence of his PTSD. It was only when his wife threatened to leave him that he sought help for his problem in 2008.
13. When he decided to accept the redundancy payment, Mr White anticipated that he would obtain similar teaching work elsewhere. He had previously left other teaching positions, and had no trouble finding new employment, usually resigning from one job and immediately beginning the next one. Mr White commenced receiving unemployment benefits and was required by Centrelink to apply for employment. He was able to get some interviews, however he received very little feedback other than a letter saying that he was ‘unsuitable’ for the position. He said that he became despondent and would sometimes drink prior to attending an interview. On one occasion during an interview he recalled being asked if he had been drinking.
14. Mr White and his wife own a caravan and have travelled extensively over the years. Mr White decided to seek work in Alice Springs. Centrelink agreed to this because South Australia had one of the highest rates of unemployment and Alice Springs had one of the lowest. Mrs White left her part time job, however after unsuccessfully attempting to gain work in Alice Springs, Darwin and Western Australia, they returned to South Australia. They decided to sell their home and relocate in Hervey Bay primarily because the cost of housing was cheaper there. Although Mr White accepted a service pension at the age of 60 he continued to look for work until he turned 65 years old.

CONSIDERATION

15. Whether a person satisfies the criteria for the “special rate” pension must be assessed against the “assessment period”, which runs from the date, on which his claim was received, to the date of this decision: s 19(5C) of the Act. It is not necessary that the applicant satisfy the criteria throughout the entirety of that period: Repatriation Commission v Braund [1991] FCA 422; (1991) 23 ALD 591 at 594 per Pincus J. However the pension will only be payable from the date within the assessment period.
16. Veterans who have turned 65 years of age must also have been working beyond the age of 65 years and have worked for at least 10 years in their last period of paid work.
17. Mr White lodged his claim on 18 February 2008, less than two weeks prior to his 65th birthday. As Mr White did not work after turning 65, there is only a very small window of opportunity for Mr White to meet all of the criteria for special rate; that is from 18 February 2008 to his birthday.
18. I considered this matter in light of the four Flentjar questions:

What was the remunerative work that Mr White was undertaking?

19. The respondent made much of Mr White’s multiple qualifications and capacity to work in a variety of fields. What is of relevance is the work Mr White has undertaken, which is as a technician in the electrical industry, and as a teacher in a TAFE type institution as an electrical and information technology teacher.

Did war caused disability prevent Mr White from continuing to undertake remunerative work?

20. Mr White has been treated by psychiatrist Dr S Jenkins since 10 January 2008. In his report dated 9 February 2010, Dr Jenkins has indicated that since he has been seeing Mr White there is no doubt that he has been unable to work due to his accepted conditions. I am satisfied on the basis of this evidence that the answer to the second question, during the assessment period is yes.

Is war caused disability the only factor preventing Mr White from undertaking remunerative work?

21. Mr Hanson for the respondent submitted that Mr White was prevented from working because of a number of factors, including his other non accepted disabilities, the length of time he has been out of the workforce, the state of the labour market, his redundant skills and age.
22. Ms Frizelle for the applicant submitted that Banovich[1] was authority for the proposition that the remunerative work that the veteran was undertaking refers to the type of remunerative work, and is not to be considered with reference to a particular job. I accept that Mr White’s voluntary resignation from his last position at TAFE does not destroy his entitlement to special rate. The question is what prevented him from continuing to work in the fields of remunerative activity that he had previously been undertaking.
23. The Federal court has provided guidance when applying s 24 (1)(c) of the Act. In Repatriation Commission v Hendy[2] if was said:

The decision-maker is required to take into account any factor that plays a part or contributes to a veteran's being prevented from continuing to engage in remunerative work. If a period of time elapses after a veteran ceases remunerative work and before the commencement of the assessment period, lack of recent work experience, time out of the workforce and increasing age will be relevant for consideration under s 24(1)(c) of the Act. The decision-maker is required to consider the effect, contribution to, and relative weight to be attached to any or all of those factors during the assessment period. So long as the tribunal performs this exercise, the conclusions drawn from the assignment of the relative impact the various factors on the ability of the veteran to continue in remunerative work is not reviewable, except in exceptional circumstances. Moreover, having considered any or all of the factors which may have contributed to a veteran's incapacity, the tribunal is then required to determine whether it is the veteran's war-caused injury or war-caused disease, or both, alone which prevent the veteran from continuing to undertake remunerative work.

24. Mr White was keen to gain further employment. He had left three similar jobs previously and was reemployed almost immediately on those occasions. Why he was unable to do so after leaving work in 2001 appears from his own evidence to have been surprising to him, and be multi-factorial in cause.
25. First and foremost the unemployment rate at the time was a factor that must have played a part. It was Mr White’s evidence that unemployment was high in South Australia at the time he ceased his last job. The government was offering termination packages with a view to reduce the total number of staff. This decision of the government was clearly affecting work of the kind Mr White had been undertaking.
26. Mr White considered himself capable of working when he travelled 1000’s of kilometres around Australia seeking employment. It was his own evidence that when he arrived at regional areas jobs in his field were not as plentiful as he expected. The scarcity of suitable jobs available was apparently not limited to South Australia.
27. I accept that Mr White turning up to job interviews smelling of alcohol would be likely to have a detrimental effect on the likelihood of him gaining employment. It was however Mr White’s evidence that he only commenced doing this after a period of time, when he became despondent and began to lose confidence, due to the lack of success he had experienced in obtaining employment. Mr White told me he often did not make it to the interview stage. There were no submissions as to how this lack of success in obtaining interviews could be related to Mr White’s accepted conditions. The most likely explanation is that others more suitable for the positions had been shortlisted above Mr White.
28. At the time Mr White accepted the termination package he was 58 years old and normal retirement in his industry was then 65 years. Mr White told me that at one job interview he was told he was not suitable due to his lack of ‘networking skills’. I consider that his age, and as time progressed, lack of recent experience in the work force were significant factors that contributed to Mr White failing to continue to undertake remunerative work. I do not accept that it was due to Mr White’s accepted disabilities alone that he was unable to obtain work after 2001.
29. I next turn to the issue of whether Mr White can take the benefit of the ameliorative provision. The subsection provides that where a person who has not been engaged in remunerative work is genuinely seeking such work, may be entitled to “special rate” if their war caused incapacity is the substantive reason they are not continuing in the work force.
30. Ms Frizelle for the applicant submitted that the fact that Mr White obtained an age pension at the age of 60 did not preclude him from seeking and obtaining work up to the age of 65. I accept that is the case, and that Mr White continued to seek employment after being granted age pension.
31. I accept that Mr White sought work from 2001, and that these efforts continued after he turned 60. He described applying for only a few jobs at Hervey Bay. By the time Mr White applied for “special rate”, he had been unemployed for many years. His time out of the work force, lack of recent work experience in the areas of his expertise, and his age would have been significant factors reducing his likelihood of gaining employment. I do not accept that his accepted disabilities were the substantive reason why Mr White was prevented from engaging in remunerative work.

DECISION

32. The decision under review is affirmed.
    

I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Dr M Denovan, Member

Signed: .........................[Sgd]....................................................

Kate Slack, Research Associate

Date/s of Hearing 26 May 2010

Date of Decision 25 June 2010

Counsel for the Applicant Ms Ann Frizelle

Solicitor for the Applicant G Couper Solicitors

Counsel for the Respondent Mr Martin Hanson

Solicitor for the Respondent Australian Government Solicitor

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[1] Re Peter Banovich v the Repatriation Commission [1986] FCA 397
[2] [2002] FCAFC 424; (2002) 76 ALD 47 at [54] and [55]