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Whitehouse v Repatriation Commission

[2017] FCA 1085

COURT Federal Court, Tasmania
JUDGE Tracey J
DATE OF DECISION 15 September 2017
DECISION The appeal was dismissed
ISSUES Application for intermediate rate of pension – where the applicant had been working as a full-time partner of a law firm – where, because of his war-caused incapacity, he subsequently worked as a part-time consultant solicitor – where he was engaged in that part-time work at the time of his application – whether his full-time work should be considered to be his “remunerative work (last paid work)” for the purpose of s 23(3A)(d) of the VEA

Facts

The applicant, David Whitehouse, sought an increase in his disability pension to the intermediate rate in 2014.  At that time he was 67 years old and continued to be employed as a part-time solicitor consultant, after being a full-time partner in a law firm between 1977 and 2012.  The Repatriation Commission refused his application, and the Veterans’ Review Board (VRB) affirmed that decision.  The Administrative Appeals Tribunal (the Tribunal) affirmed the VRB’s decision.  The applicant appealed to the Federal Court.

Grounds of appeal

The question of law was:

Whether, on the evidence before the Tribunal, the Tribunal erred in the construction and application of section 23(3A)(d) by failing to find that the veteran’s “last paid work” was the full-time work that he was prevented from continuing to undertake by his war-caused incapacity.

The Court’s consideration

The Court considered the starting point was the text of s 23(3A)(d).  In Grant v Repatriation Commission [1999] FCA 1629 the Full Court considered the construction of s 24(2A)(d), which is in the same terms as s 23(3A)(d), at [8]-[12]:

In order for a decision-maker to be satisfied that the criterion in s 24(2A)(d) has been met the decision-maker must determine:

  • the “remunerative work” that the veteran was last undertaking before he or she made the claim or application;
  • whether the veteran is, at any time during the assessment period, because of incapacity from war-caused injury or war-caused disease or both, alone, prevented from continuing to undertake that remunerative work.

Determination of the “remunerative work” referred to in s 24(2A)(d) requires the characterisation of the specific remunerative activity or activities that the veteran was last undertaking before making the claim or application rather than the capacity in which that work was undertaken. The particular capacity in which the work was undertaken is dealt with as a separate criterion in s 24(2A)(g). Thus, whether or not the work was undertaken as an employee or as a self-employed person is irrelevant to the characterisation to be given to that work under s 24(2A)(d).

...

Section 24(2A)(d) can be contrasted with s 24(1)(c) which provides for a pension at the special rate for veterans under the age of 65 who are prevented by war-caused injury or disease from undertaking “remunerative work that the veteran was undertaking”; a term which has been construed as referring to the type of work that the veteran previously undertook: see Banovich v Repatriation Commission [1986] FCA 397; (1986) 69 ALR 395 at 401; [1986] FCA 397; 11 ALN N142. Although by focusing upon the last paid work s 24(2A)(d) may be more restrictive than s 24(1)(c), which focuses upon the remunerative work of the type the veteran previously undertook, neither subsection is concerned with the capacity in which the work is undertaken.

Having identified the last paid work for the purposes of s 24(2A)(d) the decision-maker is then required to determine whether at any time during the assessment period because of incapacity from war caused injury or disease or both, alone, the veteran was prevented from continuing to undertake thatremunerative work. Thus, the reason why the veteran may have ceased to undertake the past paid work prior to the date of the claim is relevant to, but not determinative of, the inquiry required by s 24(2A)(d).

A veteran who has satisfied the requirements of s 24(2A)(d) must also satisfy the criterion in s 24(2A)(e) that, because the veteran was 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 account, that he or she would not be suffering if he or she were free from the incapacity.

(Emphasis added.)

The Court noted that the references to “capacity in which the work was undertaken” are references to the legal employment status of the veteran at relevant times, namely, whether he or she was an employee or working on his or her own account – to be assessed under s 24(2A)(g).

The Court considered that the distinction drawn between veterans under and over the age of 65 at the date of application is significant.  This was the normal retiring age for workers at the time at which the scheme was enacted, which is clear from the passages from the Second Reading Speech.  In Repatriation Commission v Connell [2002] FCA 1493, Hill J said at [28]-[29]:

In s 23 capacity is dealt with in s 23[(1)](b), as supplemented by s 23(2). In the case of the Intermediate Rate, the veteran’s capacity to work must be such as not to permit the veteran to work other than intermittently or on a part-time basis.

When one comes to look at the Intermediate Rate pension as applicable to someone who had turned 65, having still been in the last paid work when this happened, it can be seen that the veteran may still be capable of undertaking remunerative work on a part-time basis or intermittently, and in fact be undertaking work, for example, of less than twenty hours per week and still be entitled to the pension. However, that fact itself has nothing to do with the question whether the veteran has been prevented, by virtue of the war-caused injury or disease incapacity from continuing to undertake the particular remunerative work that he was last undertaking.

The Court noted in the extract above the word “capacity” or its variants was used in a different sense from that adopted by the Full Court in Grant.  The Court considered it is used to refer to the veteran’s “ability” to work as a result of war-caused injury or disease.  The qualifying criteria for a veteran who is over 65 at the time at which a claim is made are more restrictive as the veteran has passed the normal retirement age, and people over 65 were not normally to be compensated for incapacity to work because of war-caused injury or disease.

The Court indicated that what s 23(3A)(d) requires is the identification of the particular remunerative work which constituted the applicant’s “last paid work” at the time that he made his application for an increased pension rate and then consideration of whether he was prevented from continuing to undertake that work.  On the facts found by the Tribunal, the applicant ceased to be engaged in full-time remunerative work in about June 2012 and at that time he had already turned 65.  He then commenced working between four and five hours per day as a consultant solicitor in the same firm.  In 2014 when he made his application for an intermediate rate of pension, he was continuing to perform this work as a part-time consultant solicitor.  The Court indicated this was the “remunerative work” which he was last undertaking and for which he was last paid before he made the application.  The applicant continued to perform this particular remunerative work during the whole of the assessment period.  Therefore, at no time during that period was Mr Whitehouse prevented, by his war-caused disabilities, from continuing to undertake his last paid remunerative work as a part-time consultant solicitor.  The question of law should be answered: “No”.

The Court’s Decision

The appeal was dismissed.

Editorial Note

As the applicant, who was over 65, had not stopped undertaking his last paid work he did not meet the criteria in s 23(3A)(d). 

All Practice Notes