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[2002] AATA 708
appellant. The decision under review was affirmed, and Randall was to be paid a disability pension at the Intermediate Rate from 4 January 2000.
The Tribunal decided that Randall's accepted disabilities prevented him from working 20 hours or more each week, but did not establish that he was unable to undertake all remunerative work. It therefore affirmed an Intermediate Rate pension, rather than the General Rate alone or the Special Rate. The Tribunal also rejected his procedural-fairness complaint because he had been invited to attend the VRB hearing and make submissions but declined. Although the applicant argued that statutory provisions limited the power to reduce his rate, the Tribunal did not separately resolve that broader legal argument.
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Randall was a former Army Corporal who had performed office duties and acted as a medical assistant. He received a disability discharge in February 1999 and had not worked since. The judgment records accepted disabilities including disc degeneration and recurrent lumbar strain, internal derangement of a knee, and an adjustment disorder. Randall also described pain and altered sensation in both hands and arms, loss of grip, fatigue, and occasional spasm, but some claimed conditions had not been accepted as service-related ([3]–[4], [24]).
1 cited instrument linked from this judgment.
The pension assessment changed during the administrative review process. On 13 September 2000, a delegate assessed Randall at 100 per cent of the General Rate, with an impairment rating of 60 points and a lifestyle rating of 4 points. Further investigation of eligibility for the Intermediate or Special Rate was deferred pending psychological assessment ([15]). The medical reports then addressed his work capacity. Dr Burges-Watson considered Randall had a mild chronic adjustment disorder but did not think he was unemployable because of that disorder. He considered Randall probably unemployable on account of his physical condition ([16]). Dr Stewart, an occupational physician, considered that Randall was not totally unfit for work and could be fit for administrative work between 8 and 20 hours a week. He also considered it difficult, given Randall's age and experience, to say he was incapacitated for all employment ([17]).
On 1 March 2001, a Commission delegate granted the Intermediate Rate, effective from 1 January 2000 as recorded in paragraph 18. The delegate was reasonably satisfied that Randall's disabilities permanently prevented him from working 20 hours or more per week, but did not prevent him working more than 8 hours weekly, and that he suffered a resulting loss of income ([18]). The VRB later substituted its decision on 8 November 2001, reducing the pension to 100 per cent of the General Rate from a date to be fixed. Its reasons referred to reservations about the degree of Randall's incapacity and discrepancies among medical reports ([1], [19]).
The application before the Administrative Appeals Tribunal challenged the VRB outcome. Randall argued, among other things, that the VRB could not reduce a pension once the Intermediate Rate had been assessed, that he had not been given procedural fairness concerning the possibility of a reduction, and that he qualified for the Special Rate ([5]–[6], [9]–[11]). The respondent maintained that the Tribunal's task was to decide the appropriate rate based on the accepted disabilities and their impact on employability, rather than review the VRB's conduct as a separate question ([7], [13]).
The Tribunal heard the matter on 17 July 2002. Randall was represented but was not called to give evidence ([8]). On 20 August 2002, it affirmed payment at the Intermediate Rate with effect from 4 January 2000 ([28]). The decision's effective date is therefore 4 January 2000, as stated in the formal decision and final paragraph. Paragraph 18, describing the delegate's earlier decision, records a different effective date, 1 January 2000. The reasons do not explain that discrepancy.
The Tribunal treated its task as merits review. It said it stood in the shoes of the decision-maker and considered the evidence anew, giving due weight to statutory provisions, guiding principles and relevant information. It was not bound to accept prior determinations ([14]). This framing explains why the Tribunal examined the clinical reports and Randall's work capacity rather than treating the VRB's substituted decision as determinative.
The Tribunal identified the threshold question as whether Randall met the requirements for the Intermediate Rate or Special Rate, noting that the parties agreed he qualified for at least 100 per cent of the General Rate ([20]). It set out the three requirements in s 23 for a veteran under 65: the required degree of service-related incapacity; accepted disabilities that render the veteran incapable of remunerative work other than part-time or intermittently; and a resulting loss of earnings from work the veteran had been undertaking ([21]). The reasons also describe statutory qualifications concerning capacity to work more than half the usual hours or more than 20 hours per week, and circumstances in which loss of earnings is not attributed to war-caused incapacity ([22]–[23]).
The decisive factual assessment concerned the boundary between some work capacity and capacity for 20 or more hours per week. The medical evidence was not uniform. Randall had some normal range of movement, but described altered sensation, pain, grip loss and fatigue in both arms. The Tribunal also noted that he left the Army of his own volition and that there was no evidence he had actively sought work since early 1999 ([24]). Dr Stewart's opinion nevertheless supported a finding that administrative employment between 8 and 20 hours weekly remained possible ([17], [24]).
After weighing all the evidence, the Tribunal was reasonably satisfied that Randall's disabilities prevented him working 20 hours or more each week, while leaving it prospectively possible for him to seek work of at least 8 hours weekly. It also found he was suffering some loss of income as a result. Those findings supported the Intermediate Rate under the statutory criteria as the Tribunal understood them ([25]). The Tribunal did not find the evidence sufficient for the Special Rate. It said it was “not wholly convinced” that Randall's incapacity made him incapable of undertaking work or actively seeking remunerative work ([26]).
The procedural-fairness argument was addressed separately. Randall said he had not been warned that the VRB might reduce his pension and had not been given a chance to argue for continuation at the Intermediate Rate ([11]). The Tribunal noted that he had been invited in writing to attend and make submissions, but declined. It considered he must have known that the VRB would consider the matter anew, although he could not predict the result ([27]). On that basis, it rejected the complaint.
The judgment does not provide a separate, developed ruling on the statutory-power argument. Counsel relied on s 19(6), subject to s 24A, and on a passage quoted from Re Turner and Repatriation Commission ([9]–[10]). The Tribunal stated its own merits-review function ([14]) and decided the rate on the evidence, but did not expressly determine the full scope of the VRB's power to reduce a previously assessed Intermediate Rate. The outcome should not be read as a reasoned resolution of that wider statutory issue.
The judgment is an application of provisions in the Veterans' Entitlements Act 1986, not a stated legislative change or a comprehensive interpretation of every provision raised. The reasons identify s 120(4) as setting the “reasonable satisfaction” standard ([2]). They describe s 23 as setting the relevant Intermediate Rate requirements and explain how the Tribunal applied those requirements to Randall's work capacity and loss of income ([21]–[25]).
The applicant's argument about the security of an Intermediate or Special Rate drew on s 19(6), subject to s 24A, and on a passage from Re Turner. The passage quoted a Ministerial statement that people eligible for and receiving the Intermediate or TPI rate would not ordinarily lose payment during their lifetime, subject to stated exceptions ([9]–[10]). That material appears in the judgment as an argument advanced by counsel and a quotation from Turner. It should not be mistaken for a finding by this Tribunal that the provisions categorically prevented the VRB from reducing Randall's rate.
The Tribunal's express approach was to review the matter anew and determine the rate on the evidence ([14]). It affirmed the Intermediate Rate based on its assessment under s 23, not through a distinct holding that resolved the construction of ss 19(6) and 24A ([25], [28]). On the text provided, the judgment therefore shows how the Tribunal applied the Intermediate Rate criteria to the evidence in this case, but it does not establish a before-and-after change in the law or settle the broader statutory-power question.
The judgment likewise does not report a later legislative amendment, appeal, or subsequent judicial treatment. Nothing in its reasons supports claims about how the governing provisions changed after 2002 or how later courts have interpreted them.
At paragraph 14, the Tribunal said its role was to “stand in the shoes of the decision-maker and consider the evidence anew”. In plain English, it did not simply ask whether the earlier decision-maker had made an error. It reconsidered the relevant evidence and statutory framework for itself.
Paragraph 21 sets out the three s 23 requirements. In simplified terms, the Tribunal had to consider the degree of accepted service-related incapacity, whether those disabilities prevented work other than part-time or intermittent work, and whether that incapacity caused loss of earnings from the work Randall had been doing. Paragraphs 22 and 23 then describe qualifications relevant to work capacity and the cause of lost earnings.
The factual conclusion is in paragraph 25: the Tribunal was reasonably satisfied that Randall could not work 20 hours or more a week, but that it remained “prospectively possible” for him to seek work for at least 8 hours weekly. In ordinary language, the Tribunal accepted that his capacity was limited but not wholly absent. It also found some resulting loss of income. These findings led to the Intermediate Rate, rather than the Special Rate.
Paragraph 26 explains why the Special Rate was not granted. The Tribunal was “not wholly convinced” that Randall's incapacity made him incapable of undertaking work or actively seeking remunerative work. The wording signals that the Tribunal did not accept the more extensive incapacity said to be required for that rate on the evidence before it.
Paragraph 27 addresses the fairness complaint. The Tribunal emphasised that Randall had received an invitation to attend the VRB hearing and make submissions, and declined. It considered that he knew the VRB would reconsider the matter anew, though he could not know the precise outcome. The Tribunal therefore rejected the complaint on the circumstances it described. The reasons do not set out a general, exhaustive test for procedural fairness.
Finally, paragraph 28 gives the operative result: the decision under review was affirmed, with the Intermediate Rate payable from 4 January 2000. This final date differs from the 1 January 2000 date used in paragraph 18 for the delegate's earlier determination. The judgment does not reconcile the two dates.
The decision is most directly relevant to a merits review in which a veteran seeks an Intermediate Rate and the central factual question is whether accepted disabilities prevent work at or above the statutory hours threshold, while allowing some part-time work. Here, medical opinion supported the possibility of administrative employment for more than 8 but less than 20 hours weekly, alongside evidence of pain, grip difficulties and fatigue ([17], [24]–[25]).
It may also be relevant where the evidence is mixed and the Tribunal must assess work capacity against the statutory criteria rather than simply adopt an earlier medical or administrative conclusion. The decision records that some aspects of Randall's movement were normal, that medical reports differed, and that he had not actively sought work. Those matters formed part of the overall evidentiary picture, but the Tribunal still made its own assessment ([19], [24]–[25]).
A further fact pattern addressed is a procedural-fairness complaint following a review hearing that proceeded in the applicant's absence. The Tribunal relied on the written invitation and the applicant's choice not to attend ([19], [27]). The result is fact-specific and does not establish that an invitation alone will answer every fairness complaint.
The case is less directly informative where the dispute turns on whether a prior Intermediate or Special Rate assessment can legally be reduced. That issue was raised through ss 19(6) and 24A, but the Tribunal did not expressly resolve its full scope ([9]–[10], [14]). Similarly, although the Special Rate was argued, the reasons provide only a brief conclusion that the Tribunal was not convinced Randall could not work or actively seek work ([26]).
The supplied judgment contains no account of later courts or tribunals citing, following, distinguishing, or otherwise treating Randall. The only authority identified in its “Authorities” section is Re Turner and Repatriation Commission (1994) 37 ALR 705. The Tribunal records that Randall's counsel relied on Turner in support of an argument about s 24A and the ordinary preservation of Intermediate or Special Rate payments ([10]).
The reasons do not say that Turner was applied or adopted as the basis for the result. It is safer to describe it as cited in support of an argument made by counsel. The Tribunal's own stated basis for its decision was its review of the evidence and application of the s 23 criteria to Randall's work capacity and loss of income ([14], [21]–[25]).
No conclusions about subsequent treatment can be drawn from the judgment alone. Establishing whether later decisions followed, distinguished, or questioned it would require checking those later decisions, which are not included in the material provided.
The most evident unresolved issue in the reasons is the scope of ss 19(6) and 24A where a review body substitutes a decision that reduces a previously assessed rate. The applicant argued that the statutory provisions protected payment at the Intermediate or Special Rate except in specified circumstances, relying on Turner and a Ministerial statement quoted there ([9]–[10]). The Tribunal did not squarely decide that construction. A lawyer examining the issue would likely want to check the applicable statutory text at the relevant time, the precise review powers under s 139(3), and any authorities that directly decide how those provisions interact.
The reasons also leave a date discrepancy. Paragraph 18 says the delegate granted the Intermediate Rate effective 1 January 2000, while the formal decision and paragraph 28 say the Tribunal affirmed the rate effective 4 January 2000. The judgment does not explain the difference. It is important to preserve the final operative date when describing the Tribunal's disposition, while noting the earlier date as part of the procedural history.
The evidentiary discussion is necessarily specific to Randall. The Tribunal noted his decision to leave the Army, the absence of evidence that he sought work, symptoms in his upper limbs, and medical views about administrative work ([17], [24]). It does not explain in detail how much weight each factor carried or set out a general method for assessing hypothetical work capacity. Nor does it explain the exact evidence supporting its finding of some loss of income beyond the overall record described.
The Special Rate analysis is brief. The reasons state that the Tribunal was not wholly convinced Randall was incapable of working or actively seeking remunerative work, but do not provide a detailed element-by-element analysis of s 24 ([6], [26]). The source also does not report what further medical or vocational evidence might have changed that assessment.
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DECISION AND REASONS FOR DECISION [2002] AATA 708
Tribunal Associate Professor B W Davis AM (Part-time Member)
Decision The Tribunal affirms the decision under review i.e. Mr Randall is to be paid a disability pension at the Intermediate Rate, with effect from 4 January 2000.
Veterans' Appeals - disability pension - general rate - intermediate rate - special rate - impairment - lifestyle - remunerative work - reduction in rate - natural justice - jurisdiction - Veterans' Review Board - GARP (Guide to Assessment of Rates of Veterans' Pensions).
Veterans' Entitlements Act 1986 - ss19,23,24.24A,120(4),139(3)
Re Turner and Repatriation Commission (1994) 37 ALR 705
20 August 2002 Associate Professor B W Davis AM (Part-time Member)
1. The applicant, Michael Richard Randall, seeks review of a decision made by a delegate of the Repatriation Commission on 1 March 2001 which increased pension to the Intermediate Rate with effect from 4 January 2000, but which was subsequently varied by a decision of the Veterans' Review Board (VRB) on 8 November 2001, whereby the applicant's claim appeal was refused and disability pension was reduced to 100 per cent of the General Rate from a date to be fixed by the Repatriation Commission.
2. The appropriate standard of proof is that set out in s120(4) of the Veterans' Entitlements Act 1986 ("the Act) i.e. the "reasonable satisfaction" standard.
3. Mr Randall is a former Army Corporal, who carried out office duties and acted as a medical assistant prior to receiving a disability discharge in February 1999. His final posting was at the Army Medical Centre, Queencliffe, Victoria. Mr Randall has a number of accepted disabilities, including disc degeneration and recurrent lumbar strain, internal derangement of a knee and an adjustment disorder. He also has claimed disabilities involving pain in several joints and limbs, which have not been accepted as service related.
4. Mr Randall claims to have noticed a steady increase in the occurrence and severity of pain in both hands from 1994 onwards, also that his right arm has an occasion gone into spasm. He found it impossible to hold forceps and other surgical tools without getting severe pain in his hands. It was for these reasons he sought a medical discharge from the Army in February 1999. He has not worked since.
5. In a statement of facts and contentions filed by the applicant's counsel on 26 January 2002, it is claimed that the VRB did not have power to amend the Repatriation Commission's assessment of pension at the Intermediate rate; the applicant was denied natural justice or procedural fairness in that he was not warned his pension might be reduced, nor was he given an opportunity to make a submission that his pension should be continued at the Intermediate rate.
6. The applicant also contends that he qualifies for the Special Rate, pursuant to s24 of the Act, having a degree of incapacity of at least 70 per cent and being incapable of remunerative work aggregating more than 8 hours per week. Alternatively, that his incapacity is such as to cause inability to obtain remunerative work.
7. The respondent contends that the Tribunal's primary function is to review the original decision of the Repatriation Commission made on 1 March 2001 and does not have to consider the jurisdiction of the Veterans' Review Board to amend decisions. The respondent does not agree that the applicant's disabilities are of such a nature as to prevent him undertaking remunerative work.
8. At the Tribunal hearing conducted on 17 July 2002, Mr Randall was represented by Mr R M Webster and the Repatriation Commission by Mr M A Castle. Mr Randall was not called to give evidence.
9. Counsel for the applicant queried whether there was any power under the Act for the VRB or indeed the Tribunal to reduce pension. While the VRB was entitled to review decisions under s139(3) of the Act, thereby either affirming, varying or setting aside a decision under review, subsection (6) of the s19 of the Act provided that:
"Where the Commission has, pursuant to subsection (5C), assessed that the pension was payable at some time during the assessment period at the rate provided by section 23 or 24 then, subject to section 24A, the rate at which the pension is payable from the date of the determination shall not be lower than the rate provided by whichever of those sections applied, or applied most recently, during the assessment period."
Mr Webster claimed this meant that once an Intermediate or Special Rate had been determined, it could not be reduced unless it was shown that a false statement or misrepresentation had occurred, or in the case of s23, that the applicant was capable of undertaking work for 20 hours or more per week.
10. Reference was also made to s24A of the Act, in a decision of the Tribunal in Turner and Repatriation Commission (1994) 37 ALR 705, quoting a statement made by the Minister for Veterans' Affairs on 18 November 1987 (H of R Hansard at 2015):
"... [Section 24A] will ensure that persons who are eligible to receive and are receiving a TPI or Intermediate Rate pension will not ordinarily lose payment of the pension at such a rate in their lifetime. The only exceptions are where the grant of a pension would not have been made but for a false statement or misrepresentation or, where the veteran's war-caused incapacity improves to the extent that he or she is undertaking, or becomes capable of undertaking, remunerative work for periods greater than specified in existing law."
11. Mr Webster also contended that Mr Randall had been denied natural justice or procedural fairness, in that he was not informed his pension might be reduced, nor was he given any opportunity to make a submission that his pension should be continued at the Intermediate Rate.
12. Mr Webster noted that if Mr Randall succeeded in his claim, then the issue of whether he was entitled to the Special Rate would also arise.
13. Mr Castle, counsel for the respondent, argued that the role of the Tribunal was to consider the decision under review and then determine what rate of pension might be applicable in the light of Mr Randall's accepted disabilities and their resultant impact on his employability. It was not necessary for the Tribunal to consider whether the Veterans' Review Board had acted appropriately or not.
14. The Tribunal's role is to stand in the shoes of the decision-maker and consider the evidence anew, giving due weight to statutory provisions, guiding principles and all relevant information. The Tribunal is not required to accept prior determinations.
15. The initial assessment made by a delegate of the Repatriation Commission on 13 September 2000 was that Mr Randall was entitled to a disability pension at 100 per cent of the General Rate, based on an impairment rating of 60 points and a lifestyle rating of 4 points. The delegate deferred investigation of eligibility for Intermediate or Special Rate, pending a psychological assessment of claimed adjustment disorder.
16. A report on the latter was supplied by Dr Burges-Watson dated 23 October 2000. Dr Watson noted that Mr Randall had received some treatment from Dr Jennifer Nichols, Health Psychologist, but his personal assessment was that Mr Randall was still suffering from a mild chronic adjustment disorder with variable depressed mood. He did not think Mr Randall was unemployable or incapacitated by the adjustment disorder, but was probably unemployable on account of his physical condition.
17. Mr Randall was later examined by Dr Tim Stewart, Occupational Physician, his report being dated 8 February 2001. Dr Stewart noted that Mr Randall had a number of ongoing disabilities, but felt he was not totally unfit for work and that he would be eligible for the Intermediate Rate of disability pension, that is, fit to work from 8 hours to less than 20 hours per week in an administrative capacity. At his age, then 41 years, it would be difficult to state he was totally incapacitated for any employment within his experience.
18. Having noted these reports a delegate of the Repatriation Commission made a determination on 1 March 2001, that Mr Randall should be paid a disability pension at the Intermediate Rate, with effect from 1 January 2000. Citing reasons, the delegate stated:
"... I am reasonably satisfied that your war-caused disabilities permanently prevent you from twenty hours per week or more, but do not prevent you working more than eight hours per week, and that you are suffering from a substantial loss of income as a result. In making this decision I have taken into account, amongst other evidence, a comprehensive report from Dr Tim Stewart, Consultant Occupational Physician, who has indicated that you would be fit to work more than eight hours per week in an administrative capacity."
19. In reaching its decision of 8 November 2001, the Veterans' Review Board noted that the matter had been heard in absentia, Mr Randall having declined an invitation to appear. The VRB made a highly detailed assessment of all available medical evidence, concluding that the overall impairment rating would warrant pension at 100 per cent of the General Rate. This, as a substituted decision, had the effect of reducing the rate of pension to be paid. The VRB stated it had considerable reservations about the degree of incapacity suffered by the applicant, given variations and discrepancies in medical reports prepared by specialists.
20. The Tribunal has considered all this evidence and notes collective agreement amongst the parties that a disability pension of at least 100 per cent of the General Rate is warranted. The only question to be resolved is whether an Intermediate or Special Rate is also appropriate.
"(a) that the degree of service related incapacity of the veteran is or has been determined to be at least 70 per cent of the general rate;
(b) that the veteran is totally and permanently incapacitated from accepted disabilities which of themselves alone are 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) that the veteran is by reason of incapacity from accepted disabilities alone, prevented from continuing to undertake remunerative work that he was undertaking and is thereby suffering a loss of earnings on his own account that he would not otherwise be suffering."
22. The second test is qualified by sub-section 23(2)(a) and (b). A veteran who works, or is capable of working for more than half the time usually worked by persons engaged in the work undertaken by the veteran or who is capable of working more than 20 hours a week cannot satisfy the test.
23. The third test is qualified by sub-section 23(3)(a). A veteran who is incapacitated by war-caused injury or disease to the extent set out in the second test shall not be taken to be suffering a loss of earnings by reason of that incapacity if:
"(i) the veteran has ceased to engage in remunerative work for reasons other than incapacity from that of war-caused injury or disease of both; or
(ii) the veteran is incapacitated or prevented from engaging in remunerative work for some other reason; or
(iii) the veteran has been engaging in the type of work set out in the second test for reasons other than war-caused injury or war-caused disease or both.
24. The Tribunal agrees with the VRB there are some queries about Mr Randall's medical and psychological situation and hence prospects of employment. He left the Army of his own volition and there is no evidence he has actively sought work since early 1999. He has an accepted adjustment disorder and a number of other disabilities, principally relating to lumbar and lower limb situations, but it is his upper limb condition which is perhaps the key to employment prospects. Here the medical evidence is mixed, he has some range of movement which is normal, but claims that since 1994 he has experienced altered sensation and pain in joints as well as a loss of grip and excessive fatigue in both arms within a half hour of work. Nonetheless, Dr Tim Stewart considered that he would be fit for employment in situations where duties were from 8 to less than 20 hours per week in an administrative capacity.
25. Having weighed all evidence, the Tribunal is of a view that on the balance of probabilities he does meet the criteria specified in s23(c) of the Act and should be granted a disability pension at the Intermediate Rate. The Tribunal is reasonably satisfied that his disabilities prevent him working 20 hours or more per week, but it remains prospectively possible for him to seek employment for 8 hours of more per week. He is suffering some loss of income as a result of this situation.
26. The Tribunal has considered whether a Special Rate of pension should apply, but is not wholly convinced the applicant's incapacity renders him incapable of undertaking work or actively seeking remunerative work.
27. As to the claim Mr Randall was denied natural justice by the VRB, the Tribunal notes that Mr Randall was invited in writing to attend the hearing and make any submission he wished. He declined that opportunity, so the matter was conducted in absentia. Mr Randall must have been aware the VRB would consider the matter anew and that he could not predict the outcome.
28. The decision under review is affirmed, i.e. Mr Randall is to be paid a disability pension at the Intermediate Rate, with effect from 4 January 2000.
I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor B W Davis AM (Part-time Member)
Solicitor for the Respondent Department of Veterans' Affairs
(1994) 37 ALR 705
The decision under review was affirmed, and Randall was to be paid a disability pension at the Intermediate Rate from 4 January 2000.