FEDERAL COURT OF AUSTRALIA Ward v Repatriation Commission [2004] FCA 796 VETERANS AFFAIRS – pension – applicable rate – general rate – intermediate rate – special rate – extreme disablement adjustment – date of effect of pension – relevant claim for backdating – whether first unsuccessful claim could be used to determine date of effect of later successful claim – later proceedings in Administrative Appeals Tribunal on distinct incapacity – whether Administrative Appeals Tribunal erred in law – whether Administrative Appeals Tribunal empowered to consider backdating of pension by reference to first unsuccessful claim – no error of law by Administrative Appeals Tribunal – appeal dismissed. Veterans' Entitlements Act 1986 (Cth) GORDON M WARD v REPATRIATION COMMISSION W151 of 2003 FRENCH J 22 JUNE 2004 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W151 OF 2003 On Appeal from the Administrative Appeals Tribunal BETWEEN: GORDON M WARD APPELLANT AND: REPATRIATION COMMISSION RESPONDENT JUDGE: FRENCH J DATE OF ORDER: 22 JUNE 2004 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the respondent's costs of the appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W151 OF 2003 On Appeal from the Repatriation Commission BETWEEN: GORDON M WARD APPELLANT AND: REPATRIATION COMMISSION RESPONDENT JUDGE: FRENCH J DATE: 22 JUNE 2004 PLACE: PERTH REASONS FOR JUDGMENT Introduction 1 Mr Gordon Ward is in receipt of a pension under the Veterans' Entitlements Act 1986 (Cth) ('the Act') in respect of a war-caused condition affecting his eyesight and also in respect of the sequelae of malaria which he evidently contracted while on eligible service. His claim for eyesight related incapacity was originally made in 1986 and rejected by the Repatriation Commission ('the Commission'), the Veterans Review Board ('the Board') and the Administrative Appeals Tribunal ('the Tribunal'). A fresh claim was ultimately accepted upon a different diagnosis of the disability affecting his eyes. 2 Recently Mr Ward made a further claim in respect of hearing loss and tinnitus which was accepted by the Commission as war-caused but did not give rise to any increase in his entitlement. He presently receives 100% of the general rate of pension payable under the Act. The Tribunal came to the same conclusion in a decision, on review from the Board, which it gave on 9 May 2003. Mr Ward has appealed against that decision. In so doing, he raised a contention that his pension entitlement should be backdated to November 1985 not August 1991 which is the date from which it has taken effect. This was not a matter which it was within the power of the Tribunal to affect having regard to the nature of the application before it in this case. In this respect Mr Ward's appeal from the decision of the Tribunal does not disclose any error of law. Nor is there any other basis upon which any error of law appears from the decision of the Tribunal in its assessment of his entitlement. The appeal against the Tribunal's decision must be dismissed. Prior Claims History 3 Gordon Ward was born on 7 December 1926. He served in the Australian Army from 19 June 1945 to 11 March 1947. This was eligible war service for the purposes of s 7 of the Act. Mr Ward has a long claims history under the Act and its predecessor commencing on 13 February 1986 when he made a claim in respect of an 'eye injury' for 'compensation for pain and suffering over 40 years'.He was found upon medical examination to be suffering from bilateral optic atrophy. The Commission did not accept that his condition was war-caused and rejected his claim for a pension. Mr Ward had claimed he was struck by a flying insect in May 1946 while on service. The Commission found the injury sustained on that occasion was of a relatively minor nature and did not give rise to any substantial or persistent symptoms. It also found that Mr Ward's contentions did not support any reasonable hypothesis of a causal connexion between his eligible service and the diagnosed disability. An application to the Board led to the Board, on 7 July 1988, affirming the Commission's decision. 4 Mr Ward applied on 10 October 1988 to the Tribunal for review of the Board's decision. On 1 November 1990, the Tribunal affirmed the decision of the Board. It found no medical evidence connecting Mr Ward's eye condition to his war service. The Tribunal noted medical evidence of a diagnosis of nutritional optic neuropathy arising from a number of factors unconnected with his army service. One of those factors was alcohol abuse. The Tribunal's decision was not challenged by way of any appeal to the Federal Court. 5 A fresh claim for pension was lodged by Mr Ward on 20 December 1991. This was based on pterygium with symptoms of persistent pain and impaired vision in his right eye and bilateral optic atrophy. The claim was rejected on 3 June 1992 by the Commission. The Commission's decision was affirmed by the Board on 2 July 1993. 6 Mr Ward then lodged another fresh claim on 20 July 1993 for pain in the right orbital region. This was rejected by the Commission on 15 October 1993 as 'right retro ocular pain of unknown cause'. In the meantime, on 5 October 1993, Mr Ward sought review by the Tribunal of the Board's decision of 2 July 1993. However an agreement was reached on 13 June 1994 between Mr Ward and the Commission on the basis that his right orbital neuralgia would be accepted as war-caused. It was agreed that the date from which any pension entitlement would take effect would be no later than 14 August 1991. The Tribunal then referred the accepted condition to the Commission for assessment of its impact. 7 On 15 August 1994, Mr Ward was granted a pension at 40% of the general rate with effect from 22 August 1991. His accepted disability was malaria (accepted on 6 February 1948) and right orbital neuralgia. 8 On 23 December 1994, Mr Ward claimed an increase which was granted by the Commission on 1 May 1995. He was to be paid at 50% of the general rate with effect from 23 September 1994. This was in respect of right photophobia and depressive disorder. Mr Ward's entitlement was further increased to 100% of the general rate with effect from 13 August 1995. This decision by a delegate of the Commission was made on 12 June 1996 and followed the Commission's acceptance of psychoactive substance abuse or dependence and hepatic cirrhosis on 12 June 1996. The relevant claim was made on 13 November 1995. 9 On 14 March 1996, the Tribunal determined that the date from which the entitlement to the benefit based on Mr Ward's right orbital neuralgia should take effect was 14 August 1991. This date was determined as three months prior to the making of the claim on 14 November 1991. This decision was not appealed. Factual and Procedural History Relating to the Current Appeal 10 On 14 August 2000, Mr Ward made a claim for pension benefit based on a disability which he described in the claim form as 'hearing loss with tinnitus'. This, he asserted, was caused by 'exploding grenades, rifle fire'. The claimed disability was accepted by a delegate of the Commission as 'sensorineural hearing loss' and 'tinnitus' caused by 'acoustic trauma'. Acceptance was backdated to 14 May 2000. The delegate assessed Mr Ward's impairment rating at 70 points under the Guide to the Assessment of Rates of Veterans' Pensions ('GARP'). This, combined with a lifestyle rating of 5 points, gave Mr Ward, in the delegate's opinion, an entitlement to 100% of the general rate of pension, a rate which he was already receiving. The Intermediate, Special and Extreme Disablement Adjustment (EDA) rates were found not to apply. The delegate stated his reasons for so concluding thus: 'For veterans who had turned 65 before they lodged their application to be eligible for Intermediate or Special Rate, their last paid work must have started before they turned 65, been undertaken continuously for 10 years and ceased after they turned 65. As these requirements are not met in this case, you are not eligible for pension at either the Intermediate or Special Rate. For Extreme Disablement Adjustment pension (EDA) to be payable there are a number of criteria to be met, one of which is a requirement of an average Lifestyle Rating of 6 for accepted disabilities alone. As your Lifestyle Rating is below this, you do not qualify for EDA.' 11 Mr Ward applied to the Board on 23 February 2001 for review of the delegate's decision. The Board affirmed the decision on 21 August 2002. Mr Ward then applied to the Tribunal for review of the Board's decision on 13 September 2002. On 9 May 2003, the Tribunal affirmed the decision of the Board. On 14 July 2003, Mr Ward appealed to this Court from the decision of the Tribunal. The Decision of the Administrative Appeals Tribunal 12 In its ex tempore decision given on 9 May 2003, the Tribunal identified the issues before it as follows: '. whether pension was payable at the extreme disablement adjustment rate pursuant to section 22 of the Veterans Entitlements Act 1986; or . whether Mr Ward would be eligible for the special rate pursuant to section 24 of the Act.' The Tribunal noted that Mr Ward disputed the date of effect of his pension which had been found, at a previous hearing, to be 14 August 1991. 13 Referring to the legislative framework, the Tribunal noted that eligibility for EDA was conditional upon satisfaction of the requirements of s 22 of the Act and eligibility for special rate was subject to s 24 of the Act. The Tribunal said: 'I noted that Mr Ward was very unhappy about the date of effect. He told me that the claim was the same claim which he had made in 1986. He explained that he was then below the age of 65 and would have been eligible for a different and better pension. Mr Ward explained what he understood was the effect of sections 14 and 15 of the Veterans Entitlements Act, and became quite angry that I could not accept this explanation. I, in turn, explained to him that I am bound by the legislation and that jurisdictional issues bind me to consider his application dated 13 September 2002 which appealed the decisions of the Respondent dated 5 January 2001 and 21 August 2002.' The Tribunal said that it had told Mr Ward it could not change the date of effect. 14 The Tribunal then considered the evidence before it, which included evidence given by Mr Ward. There were no other witnesses. 15 The Tribunal referred to Ch 22 of GARP. It referred also to Mr Ward's earlier claims history and his complaint that his eye injury had been misdiagnosed as bilateral optic atrophy attributed to malnutrition due to alcoholism whereas the real injury, later accepted as right orbital neuralgia, had not been recognised as war-caused. The Tribunal considered whether Mr Ward was eligible for pension at the special rate noting that he applied after he was 65 years of age and that therefore s 24(2)A applied. The Tribunal said: 'The undisputed evidence was also that the Applicant ceased work before he reached the age of 65, and given the other tests in section 24 of the Act, he does not, therefore, qualify for an earnings related rate of pension.' Given that Mr Ward was not eligible for a pension at the special rate under s 24, the Tribunal, then considered whether he qualified for the EDA pension under s 22. The Tribunal had regard to the fact that an impairment rating of 70 points and a lifestyle rating of 6, was necessary for eligibility for EDA. It accepted that he had attained the necessary 70 point impairment rating. 16 Under the heading 'LIFESTYLE' the Tribunal applied the tests in Ch 22 in GARP noting that eligibility was determined by reference to personal relationships, mobility, recreational and community activities and employment and domestic activities. The Tribunal considered these factors in the light of those of Mr Ward's conditions which had been accepted as war-caused. It made the following findings: 1. Personal relationships. Mr Ward is single as his wife died in 1979. The Commission accepted the Board's rating under this heading which was 5. That is to say it accepted that Mr Ward had severely affected relationships and was able to relate only to particular people or a few people, that is his children. These relationships were strained and 'of no quality'. The Tribunal took into account all the evidence noting that Mr Ward did not have any social life at all. It rated him at 5 in Table 22.1 of GARP. 2. Mobility. The Commission submitted that the correct rating was 4 as found by the Board. However the Tribunal decided that the correct rating was 3. It found Mr Ward could drive a car and walk certain distances. He had moderately reduced mobility and satisfied other criteria in par 3 of Table 22.2 of GARP. 3. Recreational and Community Activities. In this respect he was rated at 6 by the Commission and the Board. The Tribunal agreed. It accepted that he has no recreational or social activities which he enjoys other than watching a little bit of television and that he suffers pain. He is able to engage in very few satisfying activities and restricted to a few passive activities such as watching television. 4. Domestic Activities. The Commission submitted that Mr Ward should be rated at 4 under the GARP tables. However the Tribunal rated him at 5 under this heading. 5. Employment Activities. The Tribunal found it was clear from the evidence and from Mr Ward's age that he was not in employment and would be unable to do paid work because of his disabilities. Under this heading it rated him 5. 17 A global lifestyle rating of 4 was reached, in accordance with GARP. Mr Ward therefore did not reach the figure of 6 required for eligibility of pension at the EDA rate. In the Tribunal's view his lifestyle rating, when calculated according to GARP and rounded up, was 4. The Grounds of Appeal and Contentions 18 Mr Ward prepared a notice of appeal for this Court without the benefit of legal assistance. He identified the question of law which he sought to raise thus: 'The Tribunal Erred in its decision in relation to Sections 14 and 15 of the Veterans Entitlements Act 1986. Similarly: Erred in relation to its Decision regarding Section 24 "SPECIAL RATE OF PENSION".'(sic) The orders sought by Mr Ward were as follows: 'The Federal Court orders the Date of Effect of Payments of Disability Pension to be in Accordance with Section 14 of the act and determined in Accordance With Section 16-17-18-19-20-24 of the V.E.A. And the AAT decision be set aside.'(Sic) 19 In his oral submissions Mr Ward agreed, in the course of discussion with the Court, that what he was challenging was the Tribunal's finding as to the date from which his entitlement took effect. In his written submissions he said that the Commission had suggested the applicable date was 14 November 1991. He wrote 'It is this matter which is disputed.' He said the relevant claim for calculation of the date of effect of his entitlement was the claim submitted on 13 February 1986. On that basis the correct date from which his entitlement should be calculated was three months earlier, on 17 November 1985. 20 The respondent also recognised that this was the point at issue. In its written submissions at par 6 it was said on behalf of the Commission: 'The Applicant's "real complaint" that he somehow seeks to ventilate in the within proceedings, appears to be that a claim for special rate pension under s 24 should be taken to have been instituted by him on 13 February 1986, when he had made a claim for an eye injury. He further appears to argue that that date should be taken as the effective date for his pension claim. (He was then 59 years old and may have been able to qualify for special rate pension under s 24).' In a written submission in reply, Mr Ward said of that contention: 'Agreed – incorrect/inappropriate diagnosis by Commission denied assessment.' 21 The Commission submitted that the Tribunal had rightly rejected Mr Ward's backdating argument as it had no jurisdiction to bring about such backdating. The point was also made for the Commission that the Tribunal's decision of 25 October 1990 had effectively brought to an end Mr Ward's 1986 application. That was a claim for an eye injury and not for hearing loss. That eye injury claim was considered and rejected. 22 It was acknowledged by the Commission that Mr Ward was evidently arguing that: '(a) the 1986 'eye injury claim' was essentially the same claim as the later claim for 'right orbital neuralgia', which was granted by the delegate on 15 August 1994; (b) the 1986 claim was only rejected as it was assessed on the basis of the Commission's own provisional diagnosis of that eye injury as 'bilateral optic atrophy'; and (c) if the Commission had correctly diagnosed the condition as 'right orbital neuralgia' then [benefit] would have been granted in 1986 and not only in 1994.' The Commission however submitted that Mr Ward's application to the Tribunal, now under appeal, did not allow scope for such an argument. The application before the Tribunal was for review of the assessment of his entitlements arising from the Commission's acceptance of his claim for hearing loss, not an eye injury. 23 It was also submitted for the Commission that the regime under the Act for considering and deciding claims has the consequence that a rejected claim such as that made in 1986 has no further significance and that a veteran can effectively make a number of separate consecutive claims relating to the same problem. Any backdating of entitlements is limited to a date not earlier than three months before the date of lodging of the relevant accepted claim. Statutory Framework 24 Section 14 of the Act provides, inter alia, for claims for pensions under the Act to be made by veterans (s 14(1)). Where a claim has been made and not fully determined the veteran cannot make another claim in respect of the same incapacity (s 14(5)). Section 15 allows a veteran, in receipt of a pension under the Act, to make a claim for an increase in the rate payable on the ground that the veteran's incapacity has increased since the rate of pension was assessed or last assessed (s 15(1)). The Commission is required, in considering a claim, to satisfy itself with respect to, or to determine, all matters relevant to the determination of the claim (s 18(1)). The obligation of the Commission to determine a claim is set out in s 19 of the Act. The date from which a determination under s 19 takes effect is to be fixed by the Commission but in any event is to be not earlier than three months before the date on which the claim was received at an office of the Department in Australia (s 20(1)). 25 Division 4 of Pt II of the Act deals with rates of pensions payable to veterans. The Commission is required to determine the degree of incapacity of a veteran from war-caused injury or war-caused disease or both according to the provisions of the approved Guide to the Assessment of Rates of Veterans' Pensions (s 21A(1)). Section 22 provides for the general rate of pension and the EDA. In s 22(4) the conditions for receipt of the EDA, a 50% increase on the maximum rate set out in s 22(3), are specified. One of those conditions is that: '22(4)(c) the veteran has an impairment rating of at least 70 points and a lifestyle rating of at least 6 points, each determined in accordance with the approved Guide to the Assessment of Rates of Veterans' Pensions...' 26 Section 23 provides for the payment of the intermediate rate of pension and applies to a veteran if the veteran has made a claim under s 14 for a pension or an application under s 15 for an increase in the rate of pension that he or she is receiving and had not yet turned 65 when the claim or application was made. The relevant degree of incapacity from war-caused injury or war-caused disease has to be at least 70% or the veteran must be entitled to receive pension at the general rate because he or she has suffered or is suffering from pulmonary tuberculosis. It is also a condition that the veteran's incapacity is of such a nature as to render the veteran incapable of undertaking remunerative work otherwise than on a part-time basis or intermittently. Moreover the veteran must, by reason of war-caused incapacity, be 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 of his or her own account that the veteran would not be suffering if free from that incapacity (s 23(1)). Where the veteran has turned 65 before the claim was made, then it is also a necessary condition, broadly expressed, that the veteran was undertaking paid work after turning 65 and was prevented from continuing that work and thus lost salary, wages or earnings as a result of the war-caused incapacity (s 23(3A)). 27 Special rate of pension is provided for in s 24. This requires total permanent incapacity rendering the veteran incapable of undertaking remunerative work for periods aggregating more than eight hours per week. Section 24(2A) imposes a condition similar to that imposed by s 23(3A) for veterans lodging claims after they have turned 65. Whether the Tribunal Erred 28 Mr Ward has made reference in his notice of appeal to the various provisions mentioned in the statutory framework. Although contentions about his entitlement to the intermediate or special rate or the EDA are not expressly raised in his submissions, there was nothing in the Tribunal's reasons to indicate that there was any error of law in its approach to the question of his entitlement to those particular rates. 29 The question, agitated by Mr Ward, as to the date from which his pension entitlement took effect, was simply not before the Tribunal. It was not a matter upon which the Tribunal could have made a decision in favour of Mr Ward. The claim made in 1986 upon which he relied had been determined adversely to him by the Commission, the Board and the Tribunal and there was no appeal from that decision. The later claim gave rise to an entitlement based on a new diagnosis of his eye injury. It is understandable that he should feel that this vindicated his original claim. He no doubt regarded the fresh claim, which was ultimately accepted, as a continuation of the one process of attempting to obtain a pension entitlement for a war-caused injury affecting his eyesight. 30 The decision presently under review however relates entirely to the question of whether he had established, by reason of his hearing loss, an entitlement to more than 100% of the general rate of pension. The factual assessments made by the Tribunal in that regard cannot be impugned in these proceedings. There was no apparent error of law underpinning them. The relevant claim was lodged in August 2000 when Mr Ward was well past the age of 65. Necessary conditions for the application of the special and intermediate rates could not be met. And as to the date from which his general rate entitlement took effect, that was not a matter upon which the Tribunal was empowered to make any decision by way of further backdating beyond August 1991. Conclusion 31 For the preceding reasons this appeal must be dismissed. I certify that the preceding thirty-one (31 numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French. Associate: Dated: 22 June 2004 Counsel for the Applicant: Mr GM Ward appeared in person Counsel for the Respondent: Dr JT Schoombee Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 29 April 2004 Date of Judgment: 22 June 2004