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Van Duren and Military Rehabilitation and Compensation Commission [2010] AATA 61 (29 January 2010)

Last Updated: 1 February 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 61

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2009/2076

GENERAL ADMINISTRATIVE DIVISION
)

Re
Shane Van Duren

Applicant
And
Military Rehabilitation and Compensation Commission

Respondent

DECISION

Tribunal
Professor RM Creyke

Date 29 January 2010

Place Canberra

Decision
The decision under review is affirmed.

........................[sgd]...................
Professor RM Creyke

CATCHWORDS

VETERANS’ AFFAIRS – grant under Veterans’ Vocational Rehabilitation Scheme – undergraduate degree course – Applicant’s medical and psychological conditions – cumulative criteria – decision under review affirmed

Disability Discrimination Act 1992 (Cth) s 22

Veterans’ Entitlements Act 1986 (Cth) s 115B

Veterans’ Vocational Rehabilitation Scheme 1997 (Cth)


29 January 2010 REASONS FOR DECISION
Professor RM Creyke

  1. Mr Van Duren is a veteran and is 35 years of age. He is receiving compensation for post traumatic stress disorder (PTSD) with associated depression, dysthymic disorder, lumbar spondylosis, intervertebral disc prolapse, and tinnitus, and he has a claim for a further back condition. He enlisted in the Australian Defence Force on 22 April 1997 and was discharged on 15 June 2001. He then joined the French Foreign Legion in 2001 until 2002 when he requested to transfer to the British Army but was rejected in April 2002 because he failed a hearing test. On his return to Australia he sought in 2004 to rejoin the Australian Army but was not accepted. He worked as a security guard for a few months until April 2004. He then did some commercial painting work to assist his brother but found this hard given his back condition.
  2. In June 2004 he was in financial difficulties, was drinking and, following news of the death of a former Army flatmate in East Timor, he got drunk and the next night was involved in an offence for which he was sent to gaol for three months. Since 2007, he has obtained the Gold Card from the Department of Veterans’ Affairs (DVA) and this has lessened his financial difficulties. His drinking is now limited to approximately once a week.
  3. In 2005, Mr Van Duren enrolled in a Bachelor of Engineering at the Australian National University (ANU) in Canberra. He did not seek assistance under the Veterans’ Vocational Rehabilitation Scheme (‘VVR Scheme’) and the course was self-funded. In 2006, he completed two courses, one in each semester, but did not pass the courses, apparently because he did not finish the assessment.[1] He then took a leave of absence in 2007 due to a car accident that aggravated his back condition. In 2007 he applied to transfer to the School of Social Sciences at the ANU and in 2008 he enrolled in an undergraduate degree in international relations and political science. He enrolled in one course, ‘Introduction to Politics’, in the first semester of 2008, for which he obtained a pass. He does not appear to have enrolled in second semester. In first semester 2009, he undertook ‘Introductory French I’, for which he achieved a mark of 50, a bare pass. He did one course in second semester 2009, ‘Introduction to International Relations’, for which he again received a mark of 50.
  4. Mr Van Duren is eligible for assistance under the VVR Scheme. The VVR Scheme is designed to assist veterans to find, or continue in, suitable paid employment. On 11 November 2005, Mr Van Duren applied for assistance with obtaining non-physical work while he attended university. His application was not assessed because Mr Van Duren could not be contacted by the Commonwealth Rehabilitation Service (CRS). However, the application was reopened on 24 July 2007 and on 3 September 2007 CRS recommended that he be supported to undertake undergraduate studies in international relations and political science. However, his application for support was rejected by the VVR Scheme on 17 December 2007 because the proposed course of study did not meet the criteria under clause 4.4.1 of the Scheme, namely, that the education program would enable him to obtain employment in a field in which he has expertise or experience.
  5. On 6 February 2008, Mr Van Duren appealed against this decision. On 23 February 2009 the Military Rehabilitation and Compensation Commission advised Mr Van Duren that the decision was affirmed. Mr Van Duren sought review by the Tribunal on 11 May 2009.

EVIDENCE OF MR VAN DUREN

  1. Mr Van Duren said he completed his Year 12 certificate. Mr Van Duren said in evidence that his qualifications gained in the Army were:
  1. Mr Van Duren says he is committed to upgrading his qualifications in order that he may re-enter the workforce. Due to his physical conditions, he needs retraining for an occupation involving less physical work than previously. He believes this can be achieved through obtaining a university qualification. He completed the pre-tertiary entry program for university and obtained a score of 84 per cent, so was offered and accepted a place at the ANU. He has since switched from engineering to political science and international relations at ANU. He has done so because he believes someone with his maturity and experience could be involved in work relating to international relations, and because he is passionate about the subject.
  2. At the same time, he acknowledged that he cannot sit for more than 20 minutes at a time because of his back condition, which is now worse than it was ten years earlier. However, he is not taking medication for his back condition. He is hopeful he can get some treatment for his back. He continues to experience flashbacks from his unpleasant times in East Timor, for example, if the conflict in that country is referred to in a lecture, but he has developed techniques to avoid the effects of the flashback. He has concentration problems and does not like crowds, and says he is more inclined since his time in East Timor to become frustrated and irritable and to lose his temper.
  3. Mr Van Duren has sleep disturbances about once a week and bad dreams about once every couple of months. He has felt suicidal but generally only following unsatisfactory contact with the Department of Veterans' Affairs. He is not taking medication for his depression and he says he is managing his depression and his PTSD fairly well. His hearing loss was a problem when he was learning French but he minimised the effect by using the volume control on his hearing aid so that it did not bother him. His tinnitus is with him all the time, but he is hoping it will clear up within the next twelve months. He has dermatitis on his chest and face which affect him about once a month and prevent him going out, but he is hoping that with management it will go away. The condition would prevent, him, for example, working on a building site but he would be fine in an air conditioned working environment. He has a partner who is supportive. He has been doing courses in Mandarin and French, although not in 2009, and he has been assisted with his writing skills through the academic and skills learning centre at the ANU.
  4. He said that he had applied for public service entry but had not sat the exam and has not applied for jobs in the Australian Public Service since 2004 although he agreed that office work would be suitable for him. He believes that he is capable and that an undergraduate degree would enable him to achieve his potential and to work in a professional environment. In that context, he noted that the Prime Minister had called for an education revolution to improve Australian's long term productivity growth and to invest in its human capital.[2] He did concede, however, that it was a long time since he had studied and this made it hard.
  5. Mr Van Duren said although the vocational assessment by the Recovre consultant suggested several short courses and other vocational options that he might undertake, he rejected these suggestions and said he wished only to do the international relations and political science degree. He claimed that the course is a refresher course to his earlier military studies and an upgrade of existing military qualifications, a claim he said was supported by an ANU academic in the field, and from his experience on deployment in East Timor.
  6. Mr Van Duren said that the pain from his back condition, which arose in 1998, has become worse by about 30 per cent and he suffers daily pain from the pinched nerves in his spine. He has learnt to manage his PTSD symptoms but his anxiety state does mean he has concentration problems. He conceded his dislike of being around people depended on the circumstances. If he gets ‘pushed’ he can get ‘frustrated’. He said he felt irritated in the hearing and he was aware that he had a tendency to lose his temper. However, he is not on medication for his depression. His eczema is not a problem professionally and with management he said it could go away. Overall, he said he is coping fairly well now. He has learned to understand the causes of his conditions and to manage them.
  7. His financial situation has improved since he qualified for the DVA Gold Card. He said he could do more courses a semester if he could afford them under the VVR Scheme. He acknowledged that there are TAFE courses which assist with office skills and he said he would perhaps be happy to do such a course but no-one at Recovre had suggested any.

OTHER EVIDENCE

  1. Dr Jim George, a lecturer in the ANU international relations course, provided evidence that as the course was primarily about warfare Mr Van Duren's background as a soldier gave him an understanding of this context. At the same time, he acknowledged that the international relations degree was not a vocational degree as such and there were no guarantees of obtaining employment in international relations simply through having such a degree. However, Dr George stated that a number of his students were engaged in defence and intelligence services in senior positions with international companies and in humanitarian organisations.
  2. Mr Van Duren also submitted a letter from Jeremy Hanson MLA, which said that Mr Hanson would 'without prejudice, consider Mr Van Duren for employment with my office at the adviser level upon completion of a bachelor's degree qualification'.
  3. Mr Van Duren’s desire for VVR Scheme eligibility for his international relations degree was also supported in a letter from Mr Randolph Sparks, a psychologist and pain counsellor, on the basis that it would be of positive assistance to Mr Van Duren’s’ rehabilitation.
  4. The CRS recommendation that Mr Van Duren receive VVR Scheme support for the ANU course was based on a vocational assessment report by Recovre dated 15 January 2009. That report concluded:
  5. The Recovre report of 15 January 2009 said that Mr Van Duren has undertaken various treatments including ‘pain management, psychological counselling and pain medication’; has undergone ‘diagnostic injections into his back’; ‘often experiences burning sensations in his spine’; ‘avoids certain activities that he knows will aggravate his pain’; and that ‘at times, it is the slightest movement that can “cause his back to go”’.
  6. There were also earlier vocational assessment reports. All acknowledged that Mr Van Duren had significant skills from his defence training, particularly in field work, but that it was difficult to transfer these skills to the mainstream employment area and he needed to do this because of restrictions he now faces due to his medical condition. They also noted his commitment to improving his employability. The CRS report of 3 September 2007, which recommended support under the VVR Scheme for Mr Van Duren to undertake the course in international relations and political science, said:
  7. The vocational assessment conducted by the CRS on 2 and 17 August 2007 reported:

RELEVANT LAW

  1. The Veterans’ Entitlements Act 1986 (Cth) section 115B authorises the Repatriation Commission to establish the Veterans’ Vocational Rehabilitation Scheme (VVR Scheme) to regulate the provision of vocational rehabilitation for veterans.[3] The objectives of the scheme, as relevant are: ‘[T]o assist veterans to find, or continue in, suitable paid employment, with particular emphasis on: (a) facilitating the transition from service in the Australian Defence Force to suitable paid employment’.[4]
  2. Thus under clause 1.2.2(d) of the VVR Scheme, rehabilitation services are to be provided only if the Repatriation Commission is satisfied that the services will result in suitable paid employment. Further, under clause 1.2.2(e), the services are to be approved according to principles of cost-effectiveness and will generally be the minimum necessary to achieve suitable paid employment.
  3. Article 4.4.1 of the VVR Scheme provides:

An education program may be part of an approved program and may include short course or other studies (not being a post-graduate degree or graduate diploma course) at an educational institution, if the veteran requires:

(a) a refresher course; or

(b) an upgrade of existing qualifications; or

(c) short term study;

to obtain employment in the same field or a related field in which the veteran has expertise or experience, provided that:

(d) the studies are essential for the veteran to retain or obtain employment in the relevant field; and

(e) there is a reasonable expectation that the veteran will retain or obtain sustainable employment in that field during, or at the end of, the studies; and

(f) the Commission is satisfied that the veteran has the capacity to complete the education program successfully.

ISSUES

  1. The relevant issues are:

CONSIDERATION

Will a Bachelor of Arts in international relations and political science result in suitable paid employment for Mr Van Duren?[5]

  1. Mr Van Duren may have particular disadvantages in obtaining such employment. His medical conditions: high frequency hearing loss; tinnitus; suberic dermatitis to the head and mild eczema of the chest; depression and PTSD; lumbar spondylosis; and intervertebral disc prolapse at L4-L5 make this less likely. His back condition in particular is likely to remain at that level, given that it has been present for 11 years, and Mr Van Duren's own evidence that his continuing level of pain means that he struggles to sit for more than 20 minutes at a time. This would make prolonged computer work or other sedentary work a barrier. In addition, these jobs require superior reading skills. Mr Van Duren's reading level was assessed at the 45th percentile, a moderate level only. These issues would create distinct problems for someone seeking forms of employment such as policy analysis or research which required superior proficiency in reading and analysis.
  2. Mr Van Duren's PTSD may also be a barrier. Although he gave evidence that he has developed techniques to control the effects of flashbacks, he still exhibits occasional inappropriate anger responses, and has difficulty coping with people who disagree with him, as for example, in his interactions with the Department of Veterans' Affairs. His sleep problems, depression, bad dreams and anxiety may also impact on his employability. Mr Van Duren also has difficulty dealing with people, even in the relatively non-interactive context of lectures and tutorials. These are pervasive conditions which are likely to provide additional hurdles to him successfully obtaining employment.

Is a Bachelor of Arts in international relations and political science the minimum qualification necessary for Mr Van Duren to achieve suitable paid employment?[6]

  1. The university undergraduate degree in international relations and political science may be a minimum qualification for some of the positions to which Mr Van Duren aspires. Nonetheless, vocational assessment reports indicated that there are vocational options that would assist Mr Van Duren to obtain suitable work that do not require long term study, including as an occupational health and safety officer, a law clerk, and a research assistant. In addition, there are jobs in the public sector which also do not require a degree as a minimum. A business skills course available at a TAFE would be a suitable qualification for such employment. However, Mr Van Duren appeared to be reluctant to explore short term courses which might lead to these qualifications and has not applied for a public sector job since 2004. On balance, the undergraduate degree in which Mr Van Duren is enrolled is not the minimum qualification which would enable him to achieve suitable paid employment.

Is a Bachelor of Arts in international relations and political science a refresher course or an upgrade of Mr Van Duren’s existing qualifications or short term study?[7]

  1. Mr Van Duren argued that his basic defence training, which included some introduction to international law principles, coupled with his experience in East Timor were relevant to the Bachelor of Arts in international relations and political science course. Dr George also asserted that those aspects of the course which focused on international conflict meant that Mr Van Duren's defence experience and training gave him insights into the context of that study. However, it would be hard to regard the degree course as a 'refresher course' for such prior knowledge or experience.
  2. In the first place, as the representative for the respondent argued, 'refresher' is defined in the Shorter Oxford English Dictionary as a 'short course for reviewing or updating previous study'. The undergraduate degree could not be so classified. Nor is a foundation university course a course which updates a person's knowledge of a particular area or expertise. An undergraduate degree is a basic degree providing a comprehensive education in a particular field of knowledge. So although Mr Van Duren may have some prior knowledge of the field, the degree course in which he is enrolled is not 'refreshing' that knowledge.
  3. Finally, the undergraduate degree is not updating an existing 'qualification', that is, according to the Shorter Oxford English Dictionary, as relevant, 'a quality, skill or desire of knowledge or expertise which qualifies or fits a person for a certain office or function or which is formally or officially recognised' or 'a condition which must be fulfilled or complied with before a certain right can be exercised or office held'. In other words, a 'qualification' is something which is formally or officially recognised in the community at large. Mr Van Duren's basic military training as a rifleman or in field work is not formally recognised outside defence, nor is deployment to East Timor a qualification in international relations and political science. In addition, these forms of training are not being updated or refreshed by the undergraduate degree in international relations and political science. Hence, his current studies are not upgrading a relevant formal qualification which Mr Van Duren already possesses.

Will a Bachelor of Arts in international relations and political science assist Mr Van Duren to obtain employment in the same or a related field in which the applicant has expertise or experience?[8]

  1. Mr Van Duren's previous expertise is as a rifleman in the defence force. There is no reliable evidence that having the degree in international relations and political science would mean that Mr Van Duren will obtain employment at the end of the course in that field. Nor is international relations and political science a 'related field'. It is far-fetched to suggest that this is so. Employment as a soldier is not sufficiently close to international relations and political science to be considered to be 'related'. As the representative for the respondent indicated, peeling potatoes in a field kitchen, or even delivering supplies, or engaging in tactical or legal advice work is not the practice of international relations. So the chosen course does not fall within this criterion of the VVR Scheme. It follows that the course is not essential for him to obtain employment 'in the same field or a related field'.[9]

Is there a reasonable expectation that Mr Van Duren will obtain sustainable employment in international relations and political science during, or at the end of, his course?[10]

32. The evidence was equivocal. Mr Hanson said, 'without prejudice' that he would 'consider Mr Van Duren for employment with my office at the adviser level upon completion of a bachelor's degree qualification'. However, Dr George said that the international relations degree was not a vocational degree as such and there were no guarantees of obtaining employment in international relations simply through having such a degree. The Recovre report noted that job prospects for policy analysts are good, vacancy levels are moderate and employment for policy analysts to 2011-12 is expected to be strong. Nonetheless, the Tribunal finds that whether Mr Van Duren would find such employment is probably best captured by Dr George's more cautious statement that there would be no guarantee of such an outcome and the fact that these are highly sought after jobs.

33. In addition, Mr Van Duren's medical and psychological conditions make it unlikely that he will obtain sustainable employment in this field during or at the end of his course. In that context, the Tribunal notes that although Mr Van Duren has been making consistent efforts to upgrade his qualifications and to improve his health; he is still only studying part-time; he is presently unable to work; and his difficulties interacting with people will impact adversely on his ability to find employment. In terms of employment, the need for superior communication skills in any position covered by international relations and political science, including a facility for working closely with other people, casts doubt on whether he could satisfy this criterion.

Does Mr Van Duren have the capacity to complete a Bachelor of Arts in international relations and political science successfully?[11]

34. Mr Van Duren has shown remarkable persistence in his commitment to his studies. In addition, he has been doing some short courses in Mandarin and French at TAFE. Nonetheless, his capacity is likely to be impacted by his multiple medical and psychological conditions. He needs assistance to study because of his disabilities, and he has said he is still finding study hard. In four years he has not been able to manage more than part-time study, that is, one course per semester. In addition, his academic results to date suggest that he is struggling. Although he may, in time, become more proficient, he is unlikely to finish the course for some time. So although his determination may see him complete the course and that may be considered sufficient to show that he has the capacity to do so 'successfully', there remains some doubt that he will do so.

35. There is no need to consider the arguments of the representative for the applicant that the failure of the Commission to give preference to the CRS recommendation affects the validity of the decision under review. Nor is there invalidity under the Disability Discrimination Act 1992 (Cth). The Australian National University, an education institution, has not discriminated against Mr Van Duren.[12] He has been permitted to study and indeed has received considerable assistance and encouragement to do so, for example, through the academic skills and study centre. Nor was there any evidence provided that Mr Van Duren had been discriminated against by any employer. No discriminatory action can be identified.

CONCLUSION

36. The mandatory criteria in the VVR Scheme in clause 4.4.1(d)-(f) are cumulative. That means that failure to meet any one is sufficient to mean that the application is unsuccessful. The Tribunal has found that not only does the course not fit within the general criteria in clauses 4.4.1(a)-(c), but he is unlikely to meet the criteria in either clause 4.4.1(d) or (e), even if he is capable of finishing the course (clause 4.4.4(f)). In other words, he does not meet a number of the criteria in that clause.

37. Mr Van Duren has exhibited considerable personal resources. He has managed to surmount personal and medical difficulties in a manner which is admirable and his commitment to his study is to be commended. Nonetheless, the course he has chosen does not fall within the ambit of the VVR Scheme and for that reason the decision under review is affirmed.


I certify that the 37 preceding paragraphs are a true copy of the reasons for the decision herein of


Signed: .................................[sgd]..............................................

C. Kocak, Associate


Date/s of Hearing 26 November 2009

Date of Decision 29 January 2010

Solicitor for the Applicant Vietnam Veterans’ Association of Australia

Solicitor for the Respondent DLA Phillips Fox

[1] Mr Van Duren’s transcript from the ANU shows an ‘NCN’ for his engineering courses in 2006, which indicates a student has not completed the course assessment.
[2] The Hon. Kevin Rudd, MP and The Hon. Stephen Smith, MP, ALP Directions Paper, The Australian economy needs an education revolution (2007), 1.
[3] Veterans’ Entitlements Act 1986 (Cth) s 115B.
[4] Department of Veterans’ Affairs, Veterans’ Vocational Rehabilitation Scheme (1997), cl 1.2 (‘Veterans’ Vocational Rehabilitation Scheme’).
[5] Veterans' Vocational Rehabilitation Scheme, cl 1.2.2(d).
[6] Veterans' Vocational Rehabilitation Scheme, cl 1.2.2(e).
[7] Veterans' Vocational Rehabilitation Scheme, cl 4.4.1(a), (b), (c).
[8] Veterans' Vocational Rehabilitation Scheme, cl 4.4.1.
[9] Veterans' Vocational Rehabilitation Scheme, cl 4.4.1.
[10] Veterans' Vocational Rehabilitation Scheme, cl 4.4.1(e).
[11] Veterans' Vocational Rehabilitation Scheme, cl 4.4.1(f).
[12] Disability Discrimination Act 1992 (Cth) s 22.

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