VETERANS' AFFAIRS - claim for special rate of pension -incapacity from war or war-caused disease - prevented from being able to continue to undertake remunerative work that he was undertaking - alone test - decision under review affirmed.

PRACTICE AND PROCEDURE - recusal application - apprehended bias because of previous appointment at Veterans' Review Board in making decision involving applicant - recusal application dismissed.

Administrative Review Tribunal Act 2024 (Cth)

Banovich v Repatriation Commission [1986] FCA 397

Director of Public Prosecutions v Smith (2024) 98 ALJR 1163

Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337

Fox v Repatriation Commission [1997] FCA 176; (1997) 45 ALD 317

Leane v Repatriation Commission [2004] FCAFC 83

Magill v Repatriation Commission [2002] FCA 244

Repatriation Commission v Hendy [2002] FCAFC 424

Repatriation Commission v Richmond [2014] FCAFC 124

Repatriation Commission v Smith [1987] FCA 260; (1987) 15 FCR 327

Repatriation Commission v Woodall [2015] FCA 1267

Richmond v Repatriation Commission [2014] FCA 272

Smith v Repatriation Commission [2014] FCAFC 53

Summers v Repatriation Commission [2015] FCAFC 36

Wright v Repatriation Commission [2005] FCA 7; (2005) 144 FCR 302

1. On 14 May 2023, the applicant, Mr Harris, made an application for review[1] to the General Division of the Administrative Appeals Tribunal (the AAT)[2] of the decision by the Veterans' Review Board (the VRB) dated 26 April 2023[3] to affirm the determination that Mr Harris was not entitled to the disability pension at the 'Special Rate' pursuant to s 24 of the Veterans' Entitlement Act 1986 (Cth) (VEA).
2. By the VRB decision, it affirmed an earlier decision by the Repatriation Commission (the Commission) made on 20 December 2022, by which the Commission had determined to continue Mr Harris's pension at 100% of the 'General Rate', with effect from 22 January 2021.
3. In doing so, the VRB had determined that Mr Harris did not qualify for the 'Special Rate' of pension, pursuant to s 24 of the VEA because he could not satisfy the 'alone' test due to his non VEA accepted conditions.
4. Mr Harris and Adjunct Professor Navathe, an occupational physician, gave evidence at the hearing. Mr Harris was self-represented. Mr Watts, instructed by the Australian Government Solicitor, represented the Commission.
5. The Tribunal admitted into evidence the exhibits which are listed in the annexure to these reasons.

1. Mr Harris was born in March 1957, and is now aged 68.
2. Mr Harris served in the Royal Australian Air Force (RAAF) for twenty years from January 1973 to January 1993 as a radio technician, reaching the rank of Flight Sergeant[4].
3. Post his service in the RAAF, Mr Harris completed a Bachelor of Adult and Vocational Teaching and taught at TAFE and Griffith University in the period from 1973 to 2007, including teaching overseas in Micronesia for 6 months in 2002.
4. From around 2007, Mr Harris undertook a short stint as a meatworker and then in a gardening role before taking up employment from 2009 as a traffic controller with the company Evolution.
5. Mr Harris intended to retire in 2014 at the age of 57, drawing on his Defence Forces Retirement and Death Benefits (DFRDB) pension, to travel around Australia as a 'grey nomad'. He did so for a number of years but ran low on finances and returned in 2018 to work casually with Evolution.
6. On 17 March 2021, Mr Harris made a claim for major depressive disorder and an increase in disability pension (Claim).[5] At that time, Mr Harris was 63 years of age.
7. By a determination dated 20 December 2022, a delegate of the Commission accepted Mr Harris's claim for major depressive disorder with effect 17 December 2020 and granted him a disability pension at 100% of the 'General Rate' with effect from 17 December 2020, and continued at that rate with effect from 22 January 2021.[6]
8. The delegate refused to grant the 'Intermediate' or 'Special Rate' because the non VEA accepted condition of cervical spondylosis contributed to Mr Harris's chronic pain and he could not satisfy the 'alone' test. The determination provided a lifestyle rating of 5 and an impairment rating of 70 points, combining to give a degree of incapacity of 100%.
9. On 21 December 2022,[7] Mr Harris applied to the VRB for a review of the 20 December 2022 determination.
10. On 26 April 2023,[8] the VRB affirmed the decision which is now under review before the Tribunal.

1. After the hearing on 16 December 2024, the constituted member of the Tribunal, Senior Member Thomae, found in the documents filed with the Tribunal a decision of the VRB dated 18 February 2020[9] (2020 VRB Decision).
2. The 2020 VRB Decision:

(a) Was a decision of the VRB affirming a decision of the Commission not to accept Mr Harris's application for acceptance of cervical spondylosis under the VEA. > > (b) Was not referred to by the parties during the hearing or in submissions. > > (c) Was made by Senior Member Thomae, as a Senior Member of the VRB, as he then was.

3. On 13 February 2025, the Tribunal wrote to the parties, asking for submissions from the parties in respect of their position in respect of the 2020 VRB Decision.
4. On 20 February 2025, Mr Harris objected to Senior Member being constituted in his application for review on the basis that 'it is my opinion that the senior member may have a conflict of interest in this matter due to his previous position'.
5. On 26 February 2025, the Commission made submissions to the Tribunal that Senior Member Thomae should decide the application because:

2.1. a fair-minded lay observer would not have a reasonable apprehension that Senior Member Thomae might not bring an impartial mind to the resolution of this issues that the Tribunal is required to determine in this application, and

2.2. determining this application is consistent with the Tribunal's objective to provide an independent mechanism of review that ensures applications are resolved as quickly, and with as little formality and expense, as a proper consideration of the matters before the Tribunal permits.

1. On 13 March 2025, an interlocutory hearing was held for the parties to make any further submissions:

(a) Mr Harris reiterated his objection to Senior Member Thomae deciding his application for review because of the VRB decision in respect to his claim for cervical spondylosis under the VEA and the consequential impact of that decision on his subsequent application for special rate due to the Commission and VRB decisions that he could not satisfy the 'alone' test. > > (b) The Commission relied on its written submissions that: > > > (i) No apprehension of bias is established, a fair-minded lay observer would not reasonably apprehend that Senior Member Thomae might not bring an impartial mind to the resolution of the questions he is required to decide.[10] > > > > (ii) The 2020 VRB Decision did not have any material bearing on the present application as it did not determine the rate of disability pension payable during the assessment period or at any time (the assessment period for the present application being after the 2020 VRB Decision). > > > > (iii) The Tribunal does not have jurisdiction in the present application for review to review the 2020 VRB Decision in respect to cervical spondylosis.

2. In Ebner[11] at 344, Gleeson CJ, McHugh, Gummow and Hayne JJ said:

A judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. (Footnotes omitted)

1. At 345, their Honours explain the application of the principle of apprehended bias as follows:

Its application requires two steps. First, it requires the identification of what is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits.

1. Mr Harris was not able to identify anything that might lead Senior Member Thomae to decide his application other than on its legal and factual merits. The fact that Senior Member Thomae, as a senior member of the VRB, determined an application that went against Mr Harris, is not in itself enough to establish apprehended bias.
2. The 2020 VRB Decision made no credit findings in respect to Mr Harris's evidence and is not the reviewable decision before the Tribunal for Mr Harris's present application.
3. Mr Harris did not make any articulation of what the logical connection between the 2020 VRB Decision and his feared deviation from deciding his application on its merits.
4. As such, the Tribunal finds that a fair-minded lay observer would not consider that the Tribunal's approach could give rise to a reasonable apprehension of bias.
5. The Tribunal finds that Mr Higgins has not made out his application for recusal and the application is dismissed.

1. The issue before the Tribunal is whether Mr Harris is entitled for payment of the pension at the 'Intermediate' or 'Special Rate'. These rates for pension under the VEA are substantially more generous then the 'General Rate' and in the case of the 'Special Rate' is to provide for severely disabled veterans who are unable to have a normal working life because of the incapacity resulting from their war or defence service.
2. The Tribunal must determine:[12]

(a) The 'assessment period'.

(b) Whether Mr Harris:

(i) made a valid application under s 15 of the VEA for an increase in pension;

(ii) had not yet turned 65 at the time his application was made; and

(iii) was being paid the disability pension at a rate equal to or greater than 70% of the 'General Rate' of pension.

(c) If the answer to (b) is yes, whether Mr Harris is totally and permanently incapacitated, that is unable to work more than 8 hours per week (Special Rate) or 20 hours per week (Intermediate Rate) due to service-caused incapacity alone.

(d) If the answer to (c) is yes, whether Mr Harris by reason of incapacity from his service-caused conditions, alone, is prevented from continuing to undertake remunerative work that he was undertaking.

(e) If the answer to (d) is yes, whether Mr Harris, by reason of being prevented from continuing to undertake remunerative work, suffered a loss of salary of wages, or of earnings, that he would not be suffering if he was free of that incapacity.

(f) If the answer to (e) is yes, from what date should Mr Harris be paid the pension at the Intermediate or Special Rate

1. Part 2 of the VEA deals with pensions, other than service pensions, for veterans and their dependents. Section 15 of the VEA allows a veteran to make a claim for an increase in pension.
2. Section 19 of the VEA provides the way in which a claim for a pension is to be determined. Relevantly, for the present application for review s 19(5B) of the VEA mandates that s 23 (Intermediate Rate) and s 24 (Special Rate) of the VEA applies in assessing Mr Harris's eligibility for a pension.
3. When determining an application for an increase in the rate of pension (in this case from General Rate to Intermediate or Special Rate), a veteran's entitlement is determined in respect of any circumstances within the 'assessment period'.
4. The assessment period starts on the day of the application for an increase in the pension was received until the date of the decision of the Tribunal.[13]
5. Pursuant to s 19(6) of the VEA, if the Intermediate or Special Rate Pension is payable at some point during the assessment period, then, subject to s 24A of the VEA, Mr Harris will become eligible for the Intermediate or Special Rate for the whole of the assessment period.[14]
6. Section 23 of the VEA provides for entitlement to the Intermediate Rate pension and relevantly states:

(aa) the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and

(aab) the veteran had not yet turned 65 when the claim or application was made; and

(i) the degree of incapacity of the veteran from war‑caused injury or war‑caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or

(ii) the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and

(b) the veteran's incapacity from war‑caused injury or war‑caused disease, or both, is, of itself alone, of such a nature as to render the veteran incapable of undertaking remunerative work otherwise than on a part‑time basis or intermittently; and

(c) the veteran is, by reason of incapacity from 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 from that incapacity; and

(d) section 24 or 25 does not apply to the veteran.

(2) Paragraph (1)(b) shall not be taken to be fulfilled in respect of a veteran who is undertaking, or is capable of undertaking, work of a particular kind:

(a) if the veteran undertakes, or is capable of undertaking, that work for 50 per centum or more of the time (excluding overtime) ordinarily worked by persons engaged in work of that kind on a full‑time basis; or

(b) in a case where paragraph (a) is inapplicable to the work which the veteran is undertaking or capable of undertaking - if the veteran is undertaking, or is capable of undertaking, that work for 20 or more hours per week.

(a) a veteran who is incapacitated from war‑caused injury or war‑caused disease, or both, to the extent set out in paragraph (1)(b) 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:

(i) if 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;

(ii) if the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; or

(iii) if the veteran has been engaged in remunerative work on a part‑time basis or intermittently for reasons other than his or her incapacity from that war‑caused injury or war‑caused disease, or both; and

(b) where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented, by reason of that incapacity, from continuing to undertake remunerative work that the veteran was undertaking.

1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37. Section 24 of the VEA provides for entitlement to the Special Rate pension and relevantly states:

Section 24 Special rate of pension > > (1) The section applies to a veteran if:

(aa) the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and

(aab) the veteran had not yet turned 65 when the claim or application was made; and

(a) either:

(i) the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or

(ii) the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and

(b) the veteran is totally and permanently incapacitated, that is to say, the veteran's incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and

(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 her or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and

(d) section 25 does not apply to the veteran.

(2) For the purpose of paragraph (1)(c):

(a) a veteran who is incapacitated from war-caused injury or war-caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on her or her own account, by reason of that incapacity if:

(i) the veteran has ceased to engage in remunerative work for reasons other than her 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; and

(b) where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of her or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking.

38. Section 28 of the VEA provides that in determining for the purposes of s 24(1)(b) of the VEA, whether a veteran who is incapacitated from war-caused injury or war-caused disease, or both, is incapable of undertaking remunerative work, then regard must be had to the following matters (only):

(a) The vocational, trade and professional skills, qualifications and experience of the veteran.

(b) The kinds of remunerative work which a person with the skills, qualifications and experience referred to in paragraph (a) might reasonably undertake.

(c) The degree to which the physical or mental impairment of the veteran as a result of the injury or disease, or both, has reduced his or her capacity to undertake the kinds of remunerative work referred to in paragraph (b).

39. Section 120 of the VEA provides the standard of proof required; s 120(4) of the VEA requires that a veteran's entitlement to an increased pension be decided on the decision-makers reasonable satisfaction.[15]

(a) In consequence of his military service Mr Harris has several VEA-accepted medical conditions (the VEA-accepted conditions):[16] > > > (i) major depressive disorder; > > > > (ii) thoracic spondylosis; > > > > (iii) bilateral osteoarthritis of the knees; > > > > (iv) lumbar spondylosis; > > > > (v) bilateral tinnitus; > > > > (vi) osteoarthritis of the right ankle; and > > > > (vii) bilateral sensorineural hearing loss. > > (b) Mr Harris has several medical conditions not accepted under the VEA (the non VEA accepted conditions):[17] > > > (i) cervical spondylosis; and > > > > (ii) psoriasis. > > (c) The assessment period commenced on 17 March 2021[18] and runs until the date of the Tribunal's decision. > > (d) Mr Harris validly applied for an increase to his pension pursuant to s 15 of the VEA. > > (e) Mr Harris had not yet turned 65 at the time of his application (he was 63). > > (f) Mr Harris was being paid 100% of the General Rate pension by way of the 20 December 2022 determination that provided a lifestyle rating of 5 and an impairment rating of 70 points, combining to give a degree of incapacity of 100%.[19]

1. Mr Harris in his written statement, relevantly provides[20]:

(a) Between 2009 and 2014 he worked for Evolution Traffic Group ('Evolution') as a traffic controller level 1 and eventually as level 2, he was on site and then a ute driver. > > (b) Most weeks he worked 40 hours or more but it varied. > > (c) He left employment with Evolution in September 2014 due to his plans to be a 'grey nomad'. > > (d) Between 2014 and 2018 he travelled extensively around Australia and did not seek employment, relying on his superannuation funds. > > (e) In April 2018 he commenced working for Evolution again because he had run out of money. > > (f) From April 2018 he was employed as a level 1 traffic controller on site. > > (g) His hours varied from week to week but less than 30 hours per week as downturn in industry. > > (h) He left employment with Evolution in July 2019 because of pain and poor mental attitude. > > (i) Between July 2019 and March 2020, he did not work or seek employment because he was not physically capable. He was in a caravan park in Townsville trying to rest and recover. > > (j) In March 2020 he applied to work with Evolution again because he needed money to survive. > > (k) After March 2020 he did not seek any other employment because he was not physically or mentally capable and does not intend to in the future. > > (l) Since March 2020 he has travelled on cruises, national and international. He has travelled to Townsville from Brisbane to escape winter in 2020, 2021, 2022 & 2023. > > (m) He received his DFRDB pension from 25 January 1993.

(a) He last worked for Evolution on 9 July 2019. > > (b) Due to financial considerations, he was forced to seek continued employment and in early March 2020 he applied to Evolution to do a refresher course. > > (c) He completed the course successfully and submitted a health profile. > > (d) He was advised by Evolution HR that due to his medical issues he was no longer able to be employed by them and he should resign. [22] > > (e) His resignation was accepted by Evolution on 12 March 2020. > > (f) On 19 May 2020 he was granted the DVA 'gold card'. Prior to this he was unable to seek treatment for his accepted conditions and, at that time, non-accepted conditions. > > (g) He engaged a psychiatrist, Dr Sean Tracey, who prescribed Cymbalta and then Amitriptyline. He had negative experiences on those medications and ceased being under the care of Dr Tracey. > > (h) In March 2023, he was prescribed Venlafaxine, and this gradually stabilised his mental health. He was under the care of Dr Beaney, psychiatrist, and Dr Viray, general practitioner. > > (i) When he saw Professor Navathe on 19 February 2024, he had been on Venlafaxine for almost 12 months and 5 weeks short of turning 67. > > (j) He had applied for the old age pension. > > (k) His cervical spondylosis has never been a limiting factor in his ability to work. > > (l) His injury to his right hand was injected with cortisone by a Dr Jason Scott and it was fixed and remains ok. > > (m) An MRI identified a tear in his rotator cuff that he did not know was injured. It was fixed by Dr Levi Morse and he supposes it is better. > > (n) He was 63 when he applied for TPI and he had successfully completed the refresher course for Evolution.

3. Evolution in a letter dated 12 March 2020, confirmed that the resignation was on 'medical grounds' and the 'last day of employment was 09/07/2019'[23].
4. In his application for an increase in disability pension,[24] Mr Harris states that his chronic pain affects his mood and personality. His mobility is affected all of the time, and he has problems with sitting for extended periods, difficulty walking any distance, over uneven ground causes pain, difficulty bending and kneeling due to pain and standing after sitting is painful. He cannot drive for longer than 30 minutes before he needs a rest. Because of his knees, ankle and lower back pain he has been unable to gain employment. His major depressive disorder has caused an inability to do training or re-training. His pain causes distraction from tasks.
5. In his application for review to the Tribunal, Mr Harris claims the VRB decision is wrong because 'The alone test for TPI (Special Rate) is met according to my GP. The Psych Doctor has listed all ailments. My Grey Nomad hiatus was for depression and pain relief, instigated by my concerned wife.'
6. In his application to claim compensation for cervical and thoracic spondylosis, dated 7 May 2019, Mr Harris states:[25]

I gave up full time work in 2014 intending to retire but unfortunately due to restrained financial circumstances I had to go back to work in March 2018. When I started with my current employer I was getting 20 hours per week on a casual basis. However since January I have only been given 2 days of work. This is due to the fact that my lower back becomes unbearable after a few hours and I cannot continue. I have tried to find full time work but get rejected due to my lower back.

1. During cross-examination by Mr Watts, Mr Harris was asked:

Q. After you discharged from the RAAF, you went to work at TAFE, is that right?

A. Well, after 20 years during the Air Force, I had a bit of a stint of instructing and I quite liked the job...So I decided I'd be a better as teaching people how to do electronics...and so I did higher duties for almost 2 years as a teacher...At one stage there I went to Griffith University part time and did a Bachelor of Education and Vocational teaching over three years, I think it was, I got the degree, kept applying for teaching positions, couldn't get them...So then I went overseas teaching for the College of Micronesia, I did electronics training over there for six months...in 2002 I came back and I did a job at ATAE at Archerfield, yes I taught electronics to well avionics technicians... then I got a job for Griffith University doing aviation English...And so after 12 months, my position at ATAE, I'm sorry at Griffith stopped. And I think I was totally unemployed at one stage.

Q. We are fair to say you are in various teaching roles between 1993 and 2007?

Q. So summing up on the last few questions would it be fair to say with teaching roles, some of the tasks you could, or you did sit down to complete some of the tasks you chose to stand up and move around the room, but others might not choose to stand up while they are performing those duties?

A. I mean, I'm your lecturers of walk in, give you the notes and say right off you go. That's the way they taught.

Q. You haven't applied for any sedentary roles, have you?

Q. Any roles that didn't involve a lot of heavy lifting?

A. No, I suppose because I'd done carpet cleaning and whipper snippering and traffic control. I never thought of well, I mean I did. I did go through Max employment one stage and Max employment sent me to a job at cash convertors and I think I was 50 something at the time. And I said to the guy, what the hell would a 50 something guy like me because I mean I had a degree at the time as when I was at Max and I was said why would they hire me. And every time I applied for a job, it's that they said would write back saying oh, you've got more qualifications than I've got so I can't employ you because you'll take my job. It gets frustrating after a while when you continually applied for positions and either don't hear anything back or you hear back saying I'm sorry, you know, we needed somebody with blonde eyes and blue hair or blue eyes and blonde hair, you know, right, and you've got grey hair and green eyes. So, you know, whatever they needed to say because they didn't want to offer you a job.

Q. So would it be fair to say that your neck or cervical spine were a major reason you felt you're unable to continue working in June 2019?

A. I can't say that I didn't have pain in my neck, but whether it affected my ability to do my job as a traffic controller, I'd say no.

1. Adjunct Professor Navathe, a consultant occupational physician, in a written report, dated 17 April 2024, relevantly states:[26]

When Mr Harris came to my rooms and we discussed the pain arising from his ankle, his knees and his shoulder he said the pain was there but it was related to activity, but he was able to walk reasonably comfortably and function reasonably comfortably in spite of that. He felt that the constant pain in his back, shoulders and neck resulted in having an impact on his mental health and that was the impact which was the major problem for him.

Mr Harris said he is now able to participate in some of the activities of daily living and he is able to share some of those activities with his wife, Deborah. Instrumental activities of daily living are unaffected and he sleeps reasonably well with the medications he is on.

Impact of Symptoms on Psychological Functioning:

Mr Harris denied any pre-existing psychiatric history during his period of service. He reported having an injury in 1979 resulting in injury to the cervical spine at the level of C3/C4 causing some paraesthesia in his hands. Around 1993, these worsened and Mr Harris reported the onset of depression in 2020 directly as a result of the chronic pain which impacted his capacity to work and he said that he retired from his work as a traffic controller in 2020 because of this pain. He described his mood as currently being stable. He had good interest in activities and took pleasure from what he was doing. His appetite was good. His libido was normal and there was no evidence of any suicidal ideation.

Mr Harris reported being in a family of two brothers and parents. He reported his childhood as having been happy. He went to school and left it in Year 10 at which time he joined the Air Training Corps and the RMIT for two years, then he joined the Royal Australian Air Force as a Radar Fitter where he worked for 17½ years before leaving to join TAFE, where he continued to teach for 15 years. He then went to Griffith University and did a Bachelor of Teaching and he took a job at Archerfield, following which he took a job at Griffith University for 12 months. After this he took on jobs working in the meat works, working in carpet cleaning and working with Whipper Snappers. He then started working in traffic control where he worked for five years.

In the period 2015 onwards he became a grey nomad and travelled around Australia for about five years. At this stage he did not require any pension or any financial support because he was living off his superannuation. In around 2018/2019 he said he ran out of money, so he took a job once again within traffic control working as a "lollipop man" and in March 2020 he gave up the job because of his chronic pain.

Examination of the spine, thoracic, lumbar and cervical; there was no overt evidence of spinal asymmetry. Movements were slightly reduced. Lumbar flexion to 45°, extension to 10°, left and right lateral bending to 10° and the straight leg raising test on both sides were 45°. Thoracic flexion was reduced to 20° in flexion, 20° in left-sided rotation and 20° in right-sided rotation. Cervical movements were significantly impaired and were only about 10° in all axes.

I refer to your letter of instruction, which at para 9 states "The applicant has been assessed at 100% degree of incapacity, paragraph 4(a) above. We require your opinion to assist with the assessment required in paragraphs 4(a), (b), and (c) above."

Referring to paragraph 4(a), at the time of my interaction with Mr Harris he appeared to be in normal and well-controlled mental state and remained in a good humour throughout the consultation. Noting that I am not a psychiatrist, I would not have considered him to be significantly impaired from a mental health perspective.

From the perspective of his physical conditions the pain in his neck, shoulder, knee, ankle, while these were painful, Mr Harris was quite clear that he was able to function in spite of those activities and that he had been able to perform for up to 30 hours a week, which he had to stop because he was required to stand for ten hours a day in his role. Accordingly, I am not convinced that he could be assessed as having at least 70% of functional impairment as per the Guide to the Assessment of Rates of Veterans' Pensions. That said, your letter of instruction advises me that Mr Harris has been assessed at 100% degree of incapacity.

Referring to paragraph 4(b) which requires that the veteran is totally and permanently incapacitated, that is to say the veteran's incapacity is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than four hours per week. I had a long conversation with Mr Harris and discussed his activities of living and what he does on a day-to-day basis. I am of the view that he is capable of undertaking remunerative work for more than eight hours per week.

The difficulty he has had is that he was not able to perform continuous duties for ten hours per day and that is legitimate and it is the combination of the pain in his knees and ankles and his increasing age which has led to his inability to perform those functions. However, working eight hours per week that would total to less than two hours per day and I believe that he is able to perform those duties at this time.

Referring to question 4(c), which requires that the veteran is by reason of incapacity 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 earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity. In this matter, Mr Harris has been prevented from continuing to take remunerative work that he was undertaking which was that of a traffic controller. Those roles are normally offered for a minimum of eight hours and usually a ten-hour shift and because of his bilateral knee joint pain and his ankle pain he has difficulty in performing those roles. As such, that has resulted in a loss of salary or wages, which the veteran would not be suffering if he were free of that incapacity.

Mr Harris is a 67-year-old gentleman who is marginally overweight who complained of the following: Thoracic spondylosis, lumbar spondylosis, cervical spondylosis, major depressive disorder, bilateral knee osteoarthritis, right ankle osteoarthritis, bilateral sensorineural hearing loss, bilateral tinnitus, coronary artery disease, right shoulder pathology, psoriatic arthritis, type 2 diabetes, hypothyroidism and fibromyalgia. There are no other medical or surgical morbidities of significance. There is also the psychiatric condition of major depressive disorder which is stated to have arisen from the chronic pain.

Notwithstanding all of these conditions, in his presentation to me Mr Harris was in good humour and declared that he was psychiatrically stable and he was enjoying the time that he had with his wife.

His overall pain scores were very low and the ongoing pain resulted in his having to manage his activity and that activity which was causing the chronic low-level pain was causing him to be depressed in his opinion. He said with the use of venlafaxine he was well-controlled. He was reasonably comfortable and mobile though he was not able to drive for long distances and had to have a rest. He was able to actively participate in activities of daily living. He had good psychosocial and environmental support by way of his wife of 45 years, and his son with whom he occasionally lives when he is not living in a caravan park in his caravan.

2. What was the Applicant's usual field of work? Please provide a brief history of the tasks and duties the Applicant was required to undertake in his last employment.

He was working as a traffic controller, where he had to stand for up to ten hours and control traffic.

3. Is the Applicant capable of continuing work in that field?

4. Do you think the Applicant has a capacity for employment, having regard to his

5. Is the Applicant capable of working in a full-time job commensurate with his age, skill set, and experience, without any need for restriction of usual work practices (e.g. limited duties)? If no, how many hours is the Applicant capable of working per week?

7. If the Applicant is not able to work, or can only work in a very limited part-time capacity, what is the reason for his inability to work? Is it due to:

(a) any incapacity resulting from the accepted conditions alone?

(b) any incapacity resulting from the accepted conditions, non-accepted conditions and any other conditions from which suffers?

(c) some other factor? If so, please provide further details.

He has incapacity from his accepted knee condition that does not allow him to stand for a whole day.

8. If the Applicant has some capacity for work, has he been genuinely seeking remunerative employment or alternative remunerative employment?

9. If the Applicant has some capacity for work, but has not been genuinely seeking remunerative employment or alternative remunerative employment, what is the reason or reasons for that?

He knows he cannot do his last job, and has not attempted other roles.

10. Do you have any other comments to make about the degree of any incapacity suffered by the Applicant as a result of the accepted conditions and the effect of any such incapacity on his ability to undertake remunerative employment?

I believe Mr Harris can work in a part time role which does not require him to be on his feet throughout the day.

1. Adjunct Professor Navathe, in a written report, dated 13 August 2024, relevantly states:[27]

15. With regard to the contemporaneous records for the applicant in and around July 2019, please address the following questions:

a. Would you expect a person with the cervical spondylosis, as outlined in the incapacity report of Dr Dawson dated 11 June 2019 (Brief 2, Tab 1), to affect the capacity of a person to perform the work of a traffic controller in July 2019? Please explain your answer.

The capacity of an individual would be affected, and would have been affected in July 2019. However, during my consultation, I was advised that the predominant issue was the pain in the knees and ankles, rather than the neck pain issues. As such, in this case, while the condition was present and probably did impact his capacity, it was not the primary or the predominant issue affecting his capacity.

b. Would you expect a person with chronic small joint arthropathy of the right hand, as outlined in the report of Dr Bonev dated 6 September 2019 (Brief 2, Tab 2, p 261), to affect the capacity of a person to perform the work of a traffic controller in July 2019? Please explain your answer.

The capacity of an individual would be affected, and would have been affected in July 2019. However, during my consultation, I was advised that the predominant issue was the pain in the knees and ankles, rather than the pain in his hands As such, in this case, while the condition was present and probably did impact his capacity, it was not the primary or the predominant issue affecting his capacity. The primary complaint was inability to stand for the duration of the shift.

16. In your report you note that the applicant had significantly impaired cervical movements. Can you confirm whether this limited range of movement is attributable to the applicant's diagnosed cervical spondylosis? In your opinion does the applicant's cervical symptoms contribute in any way to his current incapacity to work.

The impaired range of movements is directly attributable to the cervical spondylosis. It would contribute to his current incapacity to work. That said, he is able to drive, and he is able to participate in ADLs, so the lack of capacity would appear to be partial in nature.

17. You refer to the applicant's previous shoulder surgery and medical history. Having regard to the new summonsed records, please provide your opinion as to whether the below conditions have contributed to and are still contributing to any incapacity the applicant has to work as a traffic controller:

The pain in the shoulder impacts on capacity. The issue here is that there are various areas of pain, and they all independently can and do affect capacity. However, the major problem is the inability to stand (as a result of knee and ankle pain), and so the Right Shoulder pain has a relatively lower contribution to the incapacity.

1. 50. Adjunct Professor Navathe in examination in chief by Mr Watt answered:

Q. You said in response to question 6, there's Mr Harris is capable of working about 20 hours per week, and then in response to question 10, I believe Mr Harris can work in a part time role which does not require him to be on his feet throughout the day? Could I please ask you to confirm or clarify that? What you meant in those 2 responses was the Mr Harris could work 20 hours per week in a role that didn't require him to be on his feet throughout the day, that he would have a reduced capacity to work, which was lower than 20 hours per week in roles where he would be required to be on his feet throughout the day?

1. The Tribunal asked Adjunct Professor Navathe how he had calculated that Mr Harris could work 20 hours per week and he answered that to a large extent it was a judgment call by looking at all the conditions and he assessed Mr Harris's primary problem was he was unable to stand due to pain in his ankles and knees. He went on to say that if he was doing a half day not having to stand then Mr Harris would be able to do that.

1. Doctor Sean Tracey, a consultant psychiatrist, prepared a medical impairment assessment, dated 5 September 2022, where he opines that Mr Harris has no capacity to work at all.
2. In a report dated 8 September 2022, Dr Tracey states:[28]

Mr Harris is a 65 year old married male living with his wife in Townsville. Mr Harris is an ex serviceman, working with the RAAF as a radio technician between 10th January 1973 - 25th January 1993. Since his time with the Armed Services Mr Harris had also taught at TAFE and then worked as a traffic controller, before retiring in March 2020 due to chronic pain.

Mr Harris has a complex medical history with diagnoses including psoriatic arthritis, bilateral knee osteoarthritis, cervical spondylosis and lumbar disc protrusion, all contributing to the chronic pain, in addition to diagnoses of type II diabetes and hypothyroidism.

He has also been diagnosed with various medical conditions directly contributing to the chronic pain and resultant impairment including:

• Psoriatic Arthritis - diagnosed approximately 12 years ago and resulting in pain in knees, hips and ankles and impacting his mobility. Well managed currently.

•Fibromyalgia - diagnosed by Rheumatologist Dr Linda Barnes in 2018.

1. Dr Tracey did not give evidence at the hearing.

1. Doctor John Dawson, a general practitioner, in an incapacity assessment dated 11 June 2019, states that cervical spondylosis contributes 60% to Mr Harris's inability to work, with thoracic/lumbar spondylosis 30% and right ankle osteoarthritis and knee osteoarthritis 5% each.[29] Further in the incapacity assessment, Dr Dawson opines that for upper limb conditions, the condition of cervical spondylosis contributes 100% to his upper limb impairment with 'pain occurs often - usually requires and responds to additional periods of rest or specific treatment' ticked for description of the impairment.[30]
2. Dr Dawson's opinion as to Mr Harris's ability to undertake work for light unskilled/skilled roles, professional, clerical and customer service work (administration, caretaker, fast-food worker, security, artist, hospitality, retail, sales, telephone work, manager technician, instructor, teacher, clerk) Mr Harris is capable of 8 hours per week. For heavy physical work his unable to work at all.
3. In a letter dated 4 March 2021, Dr Dawson states Mr Harris's "inability to work in the roles for which he had appropriate training or experience (radio technician; vocational trainer; traffic controller) is due mostly to his physical conditions. I believe the contribution of his Major Depressive Disorder to his ability to work is minor".[31] No reference is made to cervical spondylosis.
4. In an incapacity assessment form dated 24 November 2022[32], Dr Dawson states that Mr Harris has no capacity for work because of Mr Harris's back, knees and ankle conditions. No reference is made to cervical spondylosis.
5. In an impairment assessment form dated 1 December 2022,[33] Dr Dawson lists the conditions thoracic spondylosis, osteoarthritis of the right ankle, osteoarthritis of both knees and lumbar spondylosis as the conditions that make up the impairment of Mr Harris. No reference is made to cervical spondylosis.
6. In a letter dated 23 March 2023, Dr Dawson relevantly states:[34]

Mr Stephen Harris has been a patient of this practise since 26th Oct 2015.

He suffers from several medical conditions (noted below) and White Card conditions in Annex A.

Psoriatic arthritis Previously seen Dr D Careless (Rheumatology)

Cervical & Thoracic spondylosis XRs - 1995: C2/3 osteophytes with some foraminal encroachment

In a previous letter (dated 4th March 2021) I outlined Mr Harris's inability to Mr Harris's inability to work stemmed from the impact of his osteoarthritis (knee and ankle) and spondylosis (thoracic and lumbar).

His other conditions of Type 2 Diabetes, hyperthyroidism, cervical spondylosis and psoriatic arthritis have been well managed and have had no impact on his ability to work.

1. Dr Dawson did not give evidence at the hearing.

1. Mr Harris contends that he should be entitled to 'Special Rate' as his accepted conditions alone prevent him from remunerative work. He says that his non VEA accepted condition of cervical spondylosis and psoriasis have no impact on his capacity to work.

1. The Commission accepts that Mr Harris: [35]

(a) Had not yet turned 65 when the claim was made. > > (b) Degree of incapacity has been determined as at least 70%.

(a) Contends 'that work of this kind includes skills, qualification and experience in traffic controlling, education and training, manual labour, and administrative and clerical work'.[36] > > (b) Contends that the evidence supports Mr Harris ceasing employment on 9 July 2019.[37] > > (c) Contends 'that the evidence of a single attempt of the applicant to seek to re-enter the workforce during the assessment period by this application to Evolution is not sufficient on its own to demonstrate he was 'genuinely seeking to engage in remunerative work' where there is a lack of evidence of any other attempts by the applicant to find work in the assessment period in other areas or in alternate roles'.[38] > > (d) Contends that Mr Harris is not totally and permanently incapacitated because he does not satisfy s 24(1)(b) of the VEA

because there is no clinical justification for their opinion that the applicant is totally and permanently incapacitated as a result of his accepted psychiatric condition alone. The applicant's treatment providers rely solely on the applicant's self-reporting. Instead the Tribunal should find the applicant does not satisfy the requirements of s 23(1)(b) or s 24(1)(b) in respect of his physical service-related conditions because the weight of evidence supports that the applicant had capacity for remunerative work for more than 8 hours per week and 50 per centum or more of the time (excluding overtime) ordinarily worked by persons engaged in the kind of remunerative work of the kind the applicant was undertaking on a full-time basis.[39]

(e) Relies on the evidence of Dr Navathe, occupational physician, who opines that Mr Harris has the capacity for suitable part-time light work, up to 20 hours per week and his non VEA accepted condition of cervical spondylosis, chronic small joint arthropathy of the right hand and right shoulder pain is likely to present difficulty for return to full work.[40]

(f) Cited the decision of Hendy[41] for the proposition:

that increasing age and time out of the workforce will be relevant if a period of time elapses after a veteran ceases remunerative work and before the commencement of the assessment period. The applicant was 63 years old at the commencement of the assessment period and the evidence supports the applicant ceased work on 9 July 2019, being approximately 1 year and 8 months prior to the commencement of the assessment period. The respondent contends these factors would be barriers to him working now.[42]

1. The Tribunal must apply the factual findings it makes to the conditions in ss 23 and 24 of the VEA to make its determination as to whether Mr Harris is entitled to either 'Intermediate' or 'Special Rate'. In Smith v Repatriation Commission[43] Rares J stated:

The conditions specified in each of ss 23 and 24 are bedevilled with bewildering complexity. Regrettably the fog of the drafting style of this, like many Commonwealth Acts, has created a nearly impenetrable shroud over the meaning that the Court is expected to attribute to the intention of the Parliament. The cost to the community of this obscurity must be enormous. Two days of hearing by this Court were largely devoted to an attempt to make sense of key entitlements provided in the Act to persons who have been injured in war conditions in service of this nation. Perhaps it suffices to say that s 23 commences on page 187 of the first volume of the latest reprint of the Act.

1. The assessment period is not in contention. The Tribunal determines pursuant to s 19(9) of the VEA the assessment period commenced on 17 March 2021 being the date Mr Harris's claim for an increase in pension was received by the Commission and ends upon final determination of the matter.

General Eligibility Criteria - Intermediate and Special Rate

1. The VEA provides three general eligibility criteria for the application of ss 23 and 24 of the VEA, these are factual matters that are non-contentious and can be dealt with shortly.
2. The Tribunal is satisfied, based on the evidence before it, that Mr Harris:

(a) made a valid claim for a pension under s 15 of the VEA, therefore he met the requirements of ss 23(1)(aa) and 24(1)(aa) of the VEA from 17 March 2021. > > (b) had not yet turned 65 when the claim was made, therefore he met the requirements of ss 23(1)(aab) and 24(1)(aab) of the VEA from 17 March 2021. > > (c) met the requirements of ss 23(1)(a) and 24(1)(a) of the VEA from 17 March 2021 as he had received a determination that his degree of incapacity from his war-caused injuries or disease or both, is greater than 70%.

1. In Smith v Repatriation Commission[44], Buchanan J described at [47] that when ss 24(1)(b) and (c) are read together they:

state a composite test containing a series of conditions. First, s 24(1)(b) requires that a veteran be rendered, by the war-related incapacity alone, incapable of working more than eight hours per week. Secondly, s 24(1)(c) requires that the veteran be prevented, by that incapacity alone (i.e. not for other reasons) from continuing earlier remunerative work. Thirdly, s 24(1)(c) requires that prevention for that reason from continuing that work be the cause of a loss of earnings. Fourthly, s 24(1)(c) requires that the loss of earnings would not be suffered but for the incapacity.

1. Alone Test. The consideration of the 'alone' test has been a subject of much contention in 'Special Rate' cases. In Repatriation Commission v Richmond [2014] FCAFC 124 (Richmond) at [65], Middleton, Murphy and Rangiah JJ stated:

We respectfully agree with the learned primary judge's view (at [108]) where her Honour said:

The authorities in my view establish that if there is a non war-caused factor which prevents, or contributes to preventing, the veteran from continuing to undertake the relevant remunerative work, even if it is only of secondary weight and insufficient in itself to prevent the veteran from continuing, the "alone" test will not be satisfied.

1. The Commission contends that the non VEA accepted conditions of cervical spondylosis and chronic small joint arthropathy of the right hand are medical conditions that preclude Mr Harris being abl_e_ to satisfy the 'alone' test.
2. In support of this contention reliance is placed on the opinion of Adjunct Professor Navathe that, whilst the predominant issue was the pain in Mr Harris's knees and ankles, rather than the neck pain issues, affected his capacity to work, the conditions of cervical spondylosis and chronic small joint arthropathy of the right hand would contribute to is incapacity to work. Mr Harris had an opportunity to cross examine Adjunct Professor Navathe but chose not to.
3. Mr Harris has had his diagnosed condition of cervical spondylosis accepted under the Safety, Rehabilitation and Compensation (Defence-related claims) Act 1988 (Cth).[45] The acceptance under that act does not assist Mr Harris under the VEA.
4. Mr Harris contends that his capacity to work is not affected by his cervical spondylosis and chronic small joint arthropathy of the right hand. He relies on the evidence of Dr Dawson in that regard and his own evidence during the hearing.
5. In Dr Dawson's written assessments of Mr Harris, Dr Dawson went from stating that cervical spondylosis contributed to 60% of Mr Harris's impairment to later it not having any impact on his capacity to work. This change in position in Dr Dawson's assessment of Mr Harris was not subject to cross examination and without any explanation of how he came to change his opinion.
6. On balance, the Tribunal gives greater weight to the expert opinion of Adjunct Professor Navathe who opines that cervical spondylosis and chronic small joint arthropathy of the right hand does contribute to Mr Harris's incapacity to work because Adjunct Professor Navathe's opinion is soundly based on a comprehensive analysis of the briefed materials and was not undermined in cross examination. Further, as the opinion of Dr Dawson as to the impact of cervical spondylosis on Mr Harris's capacity to work changed over time without an explanation, the Tribunal gave less weight to Dr Dawson's opinion.
7. Capacity to work no more than 8 hours per week. In Wright v Repatriation Commission[46] Hill J explained the interpretation of s 24(1)(b) of the VEA:

goes to the nature and level of incapacity by which ability to undertake remunerative work is to be assessed. If the character and effect of the incapacity is such as to render the veteran incapable of undertaking remunerative work for a period aggregating more than eight hours per week then s 24(1)(b) is satisfied.

1. The evidence of Mr Harris's capacity to undertake remunerative work for 8 hours or more per week is conflicting:

(a) Mr Harris contended, relying on the opinion of Dr Dawson, that due to the incapacity caused by his VEA accepted conditions alone, he is unable to undertake remunerative work for which he was engaged in or that he might reasonably undertake for periods aggregating more than 8 hours per week, namely working as a traffic controller. That role being one where he is required to stand for long periods of time. > > (b) The Commission contends that, relying on Adjunct Professor Navathe, that Mr Harris is able to work up to 20 hours per week in sedentary roles.

2. The reference to 'remunerative work which the member was undertaking' is not to any particular job but should be read as a reference to the type of work the member previously undertook.[47]
3. Mr Harris contends that he can no longer carry out his role as a traffic controller. On this the medical evidence agrees_._ But Mr Harris has shown through his long work history that he is capable of roles outside that of traffic controller. His time as a traffic controller from 2009 to 2014 and then in April 2018 to July 2019 as his last role was for a relatively short period of time (approximately 6 years) in comparison to his lengthy service as a trade technician in the RAAF (20 years) and various roles in vocational education (14 years). From 2014 to 2018 Mr Harris did not work, instead he travelled around Australia as a 'grey nomad' drawing upon his DFRDB pension_._
4. The evidence before the Tribunal shows that Mr Harris's skills, qualifications and work experience is such that he might reasonably undertake employment of the kind that includes roles in light, sedentary administrative and management roles. He is well educated and has considerable experience in teaching.
5. There is no evidence before the Tribunal that Mr Harris has sought any of those sedentary types of roles, rather other physically demanding roles that he is clearly medically unsuited to.[48]
6. Having consideration to the medical evidence and other evidence as a whole, the Tribunal accepts Associate Professor Navathe's opinion that Mr Harris is able to work up to 20 hours per week in light, sedentary administrative and management roles. The Tribunal does not give weight to the opinion of Dr Dawson as he limits his opinion to Mr Harris's capacity to work in his last role as a traffic controller without making an assessment of other roles Mr Harris could reasonably undertake given his work experience and skills.
7. Other Factors. In Hendy[49], Whitlam, Emmett and Stone JJ at [37] stated:

The consideration of what a veteran would probably have done, absent the service disabilities, is a hypothetical exercise. The language of s 24(1)(c) of the Act directs attention to the question of whether incapacity from the relevant condition alone prevents a veteran from continuing to undertake remunerative work. The provision does not contemplate that other factors are only to be taken into account if they, of themselves, prevent the Veteran from working. 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.

1. It is not contentious that Mr Harris ceased working in July 2019 and has not worked since[50]. He did apply to work with Evolution again after completing refresher training in March 2020 but 'resigned' because of his medical conditions.[51]
2. Mr Harris was out of the work force for a four-year period between 2014 and 2018 travelling and that period along with the relatively short period he worked casually from April 2018 to July 2019, contributes to a lack of recent work experience that is a relevant consideration for the Tribunal.
3. Mr Harris was 63 years at the commencement of the assessment period. He is now 68 years of age. The Tribunal is reasonably satisfied that age and time out of the work force from 2014 to 2018 and then from July 2019 are barriers to Mr Harris being able to find remunerative work[52].
4. Conclusion. The Tribunal accepts the evidence of Dr Navathe that Mr Harris's cervical spondylosis and chronic small joint arthropathy of the right hand, whilst not the predominant conditions, do impact on Mr Harris's capacity to undertake remunerative work.
5. The Tribunal finds that Mr Harris's non VEA accepted Conditions of cervical spondylosis and chronic small joint arthropathy of the right hand are contributing factors that affect Mr Harris's capacity to work. Further, the Tribunal is reasonably satisfied that Mr Harris has the capacity to work for up to 20 hours per week in a sedentary role and takes into account his age, lack of recent work experience and time out of the work force as factors affecting his ability to obtain remunerative work.
6. Therefore, the Tribunal finds that s 24(1)(b) of the VEA is not satisfied and, due to its cumulative requirements, s 24(1) is not satisfied, thus Mr Harris has no entitlement to a 'Special Rate' pension.

1. As stated above, Mr Harris satisfies the general eligibility conditions for Intermediate Rate.
2. Again, based on the findings by the Tribunal that Mr Harris does not satisfy the 'alone test' and is capable of working up to 20 hours as well as his time out of work, lack of recent work experience and age, Mr Harris does not meet the requirements of s 23(1) of the VEA.

1. The harshness of the strict requirements of the 'alone' test in eligibility for Intermediate or Special Rate can be 'ameliorated'[53] by operation of ss 23(3) and 24(2)(b) of the VEA. The distinction can be ascribed to Mr Harris being 'prevented' from continuing his employment by incapacity for war caused injuries alone to circumstances where he is not working and his incapacity by war caused injuries was the 'substantial' cause of an inability to work.[54]
2. As Mr Harris was not engaged in remunerative work when he applied for an increase in his disability pension, ss 23(3) and 24(2)(b) of the VEA are on the same terms, and in determining whether ss 23(1)(c) and 24(1)(c) are satisfied, three elements must be established.[55]
3. Applying the wording in ss 23(3) and 24(2)(b) of the VEA to Mr Harris the provision reads:

Where Mr Harris, who is less than 65 years, who has not been engaged in remunerative work satisfies the Commission that [1] he has been genuinely seeking to engage in remunerative work, that [2] he would, but for that incapacity, be continuing so to seek to engage in remunerative work and [3] that incapacity is the substantial cause of his inability to obtain remunerative work in which to engage, Mr Harris shall be treated as having been prevented, by reason of that incapacity, from continuing to undertake remunerative work that Mr Harris was undertaking

1. Firstly, whether Mr Harris has been genuinely seeking to engage in remunerative work[56].
2. There is no evidence that Mr Harris has been seeking to apply for work during the assessment period. He gave oral evidence of using an employment service to apply for jobs, but that was not during the assessment period. Mr Harris's evidence was that he was not physically or mentally capable of seeking any employment from July 2019, even though he had attempted to work for Evolution in March 2020 due to his financial circumstances.[57] He did give oral evidence that he would work if he could.
3. In Leane v Repatriation Commission [20044] FCAFC 83 (Leane), Emmet, Conti and Selway JJ at [29] stated:

It may be accepted that, in the ordinary course, a person in the position of the Veteran would have difficulty in establishing that he or she was honestly trying to engage in remunerative work unless there were some 'objective signs of active pursuit of remunerative work'. However, it would be wrong to turn the practical issue of how a person might establish his or her case into some legal pre-condition. Assume, for example, that a claimant satisfied the Tribunal that:

• he or she honestly wished to engage in remunerative work;
• he or she had made a reasonable assessment of his or her disabilities;
• he or she had reasonably concluded that he or she could only be employed in a particular type of work;
• he or she was checking employment advertisements on the look out for such employment; but
• he or she had not yet identified any such employment prospects.

(a) is satisfied that Mr Harris honestly wished to engage in remunerative work based on his oral evidence. > > (b) is not satisfied that Mr Harris made a reasonable assessment of his disabilities in respect to his capacity to a role that did not require him to stand for extended periods. > > (c) is not satisfied that it was reasonable for Mr Harris to conclude that he could only be employed as a traffic controller or some other physically demanding role, because his disabilities, education and work experience meant that a sedentary role in administration, teaching or management were open to him. > > (d) is not satisfied that Mr Harris was looking for such employment as his evidence was that he was not.

2. The Tribunal is reasonably satisfied that Mr Harris has not satisfied the first element under ss 23(3) and 24(2)(b) of the VEA and thus is not required to further consider the ameliorating provision[58].
3. The Tribunal finds that Mr Harris is not entitled to a s 23 Intermediate Rate or s 24 Special Rate disability pension under the VEA.
4. For completeness, the Tribunal finds that Mr Harris is not entitled to the 'Extreme Disablement Adjustment' under the VEA as his lifestyle rating is less than 6.

(a) Dismisses the applicant's application for recusal. > > (b) Affirms the decision under review.

Briefing letter to Adjunct Professor Pooshan Navathe, dated 16 February 2024

Report of Adjunct Professor Pooshan Navathe, dated 17 April 2024

Briefing letter to Adjunct Professor Pooshan Navathe, dated 15 July 2024

Supplementary Report of Adjunct Professor Pooshan Navathe, dated 13 August 2024

Letter from Dr Sarah Beaney, dated 14 September 2023

[2] On 14 October 2024, the Administrative Appeals Tribunal became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.

[10] Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337, [6]; see also Director of Public Prosecutions v Smith (2024) 98 ALJR 1163, [92]

[11] Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337

[12] ss 23 (Intermediate Rate) and 24 (Special Rate) VEA.

[13] See section 19(9) of the VEA; Richmond v Repatriation Commission [2014] FCA 272 ('Richmond') at [107].

[14] Repatriation Commission v Smith [1987] FCA 260; (1987) 15 FCR 327 ('Smith').

[15] Smith v Repatriation Commission [2014] FCAFC 53 at [161].

[35] Respondent's Statement of Facts, Issues and Contentions ('SFIC') at [50].

[36] Ibid, at [54] and Banovich v Repatriation Commission [1986] FCA 397.

[38] Ibid, at [59] and Summers v Repatriation Commission [2015] FCAFC 36.

[41] Repatriation Commission v Hendy [2002] FCAFC 424 (Hendy) at [37].

[43] [2014] FCAFC 53 at [26].

[44] [2014] FCAFC 53.

[46] [2005] FCA 7; (2005) 144 FCR 302 at [15]

[47] Banovich v Repatriation Commission [1986] FCA 397 at [23].

[49] Repatriation Commission v Hendy [2002] FCAFC 424

[52] Repatriation Commission v Richmond [2014] FCAFC

[53] Magill v Repatriation Commission [2002] FCA 244 at [8].

[54] Repatriation Commission v Woodall [2015] FCA 1267 at [58].

[55] See Smith v Repatriation Commission [2014] FCAFC 53 at 456.

[56] Leane v Repatriation Commission [20054] FCAFC 83

[58] Leane v Repatriation Commission [20054] FCAFC 83 at [23].