Consideration
69 Section 24(1)(c) may be divided into limbs, each of which are qualified or amplified by other provisions of s 24 (see Forbes at [12]-[16]).
70 The first limb of s 24(1)(c) is:
(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 ...
71 That limb is read subject to the application of s 24(2)(b), which states:
For the purposes of paragraph (1)(c):
…
(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.
72 Section 24(2)(b) is ameliorative, as a veteran who has not been engaged in remunerative work may still satisfy the alone criterion in s 24(1)(c) if he or she satisfies s 24(2)(b).
73 In Smith v Repatriation Commission (2012) 131 ALD 63; [2012] FCA 1043 ("Smith v Repatriation Commission"), Gordon J described s 24(2)(b) as follows:
[18] Before turning to its ameliorative effect, some aspects of the section should be noted. It operates when the veteran has not been engaged in remunerative work. Next, if the conditions are satisfied, it operates as a deeming provision. It creates a fiction -- it treats a veteran not engaged in remunerative work as "having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking".
[19] Section 24(2)(b) operates to ameliorate the effect of s 24(1)(c) in two important ways:
(1) it extends the class of veterans entitled to make an application for a pension at the special rate to include veterans who have not been engaged in remunerative work; and
(2) it provides that the veteran's war-caused injury or war-caused disease need not be the sole cause but must be a "substantial cause" of his or her inability to obtain remunerative work.
74 In Smith v Repatriation Commission, Gordon J did not accept that s 24(2)(b) was intended to extend to a veteran with a work history (at [41]).
75 The second limb of s 24(1)(c) is:
(c) the veteran ... 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 of that incapacity; …
76 That limb is to be read in conjunction with s 24(2)(a), which provides:
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 his or her own account, by reason of that incapacity if:
(i) 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; or
(ii) the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; and
...
77 There is a further requirement in s 24(1)(d) that s 25 does not apply to the veteran, which, as was common ground, it did not in this case.
78 The different functions of subparagraphs (b) and (c) of subsection 24(1) were explained by Spender J in Alexander as follows:
[12] Section 24(1)(b) addresses the severity of incapacity from war-caused injury or war-caused disease. It imposes a requirement, for the special rate of pension with which s 24 is concerned, that the veteran be totally and permanently incapacitated, which is defined by s 24(1)(b) to be an incapacity from war-caused injury or war-caused disease or both to be 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.
[13] Section 24(1)(b) thus addresses the extent of the veteran's war-caused incapacity. Section 24(1)(c) is directed at a quite different question, causation. Section 24(1)(c) requires that the veteran's war-caused incapacity, and only that war-caused incapacity, prevented the veteran from continuing to undertake remunerative work that the veteran was undertaking.
[14] Section 24(1)(c) is a "sole cause" requirement: the subsection contains the requirement that incapacity from war-caused injury or war-caused disease or both "alone" prevents a veteran from continuing to undertake remunerative work that the veteran was undertaking.
79 Section 19(5C) of the Act requires the respondent to assess the rate or rates of pension which would have been payable to an applicant from time to time during the assessment period. As Gordon J stated in Smith v Repatriation Commission (at [9]), s 19(5C) "introduces the notion that the respondent's inquiry is restricted to the 'assessment period'". The "assessment period" is defined in s 19(9) to mean the period starting on the application day and ending when the claim or application is determined. The "application day" is defined as the day on which the application was received.
80 The words expressing the "alone" test central to the first limb of s 24(1)(c) and the third Flentjar question are, as recognised by Dowsett J in Moorcroft v Repatriation Commission (1999) 58 ALD 143; [1999] FCA 862 ("Moorcroft"), ambiguous, and may either (at 148):
1. … look to the extent of the war-caused condition to ascertain whether it is actually preventing the veteran from working in his previous employment; or
2. … exclude a claim, where, notwithstanding such a condition, other factors (including medical conditions) prevent such employment.
81 While Dowsett J preferred the first interpretation (on the basis that the second appeared to leave little room for the impact of s 24(2)(a)), as discussed below, the weight of authority endorses the second interpretation.
82 In Flentjar, Branson J (with whom Beaumont and Merkel JJ agreed) articulated the four questions set out at paragraph 14 above, which are relevant to determining whether the requirements of s 24(1)(c) are satisfied.
83 The Full Court in Flentjar dismissed an appeal from the decision of Spender J, who held that the Tribunal had erred in holding that a veteran had satisfied the requirements of s 24(1)(c) of the Act and was accordingly entitled to a special rate pension.
84 The veteran in Flentjar had retired as a taxi owner/driver aged 54 due to his war-caused irritable bowel condition and had sold both his taxi licence and the cab in 1970. He then worked for a brewery and as a painter until he retired at 62. He applied for a pension for adenocarcinoma of the colon on 7 August 1991 when he was aged 74 years and 11 months. It was not disputed that the veteran had then been, from 7 August 1991 until February 1994, prevented by age limits imposed by the taxi authority from working as a taxi driver. When the authority lifted the restriction to permit persons over 70 to drive a taxi subject to medical fitness, the veteran was over 77 years of age.
85 The Tribunal accepted that the veteran satisfied the requirements of ss 24(1)(a) and 24(1)(b) of the Act. It concluded that he also satisfied s 21(1)(c) because, although aged 77, but for his war-caused disease of irritable bowel, he would have been medically fit and able to obtain a taxi driver's certificate.
86 Branson J, having identified the four relevant questions, found that the Tribunal did not address the first question and failed to give "proper, genuine and realistic consideration" to the fourth Flentjar question.
87 First, the Tribunal failed clearly to identify the relevant "remunerative work" that the veteran was undertaking, which was a reference to "a type of work which the veteran previously undertook and not to any particular job" (at 4). The failure to address that primary question had, her Honour observed, created ongoing confusion as to the real issues in the case.
88 Secondly, Branson J observed that, as Spender J correctly found, the Tribunal failed to address the crucial issue of whether the veteran (had he been free of his war-caused incapacity) would probably have worked as a taxi driver or taxi owner/driver in the assessment period.
89 Branson J observed that it was not self-evident that, but for his war related incapacities, the veteran would have continued to drive a taxi into his advanced years.
90 Her Honour held the Tribunal failed to give proper, genuine and realistic consideration to the fourth question, "which throws up for consideration the question of what [the veteran] probably would have done if he had none of his service disabilities" (at 5). Branson J noted that if the veteran's relevant remunerative work were taxi driving, the second question would require consideration of possible impediments being given to his re-entering the workplace as a taxi driver during the assessment period, which commenced when he was almost 75 years of age.
91 Branson J stated (at 5):
[If the veteran's] war-caused incapacities were the only factors preventing [him] from continuing to undertake the work of a taxi driver or taxi owner-driver, [the fourth question] would involve consideration of whether, having been legally disqualified from driving a taxi for more than 7 years, [he] would have sought to re-enter the workforce as a taxi driver or taxi owner-driver at the age of 77 when such disqualification was lifted.
92 In Forbes Nicholson J observed that Dowsett J's view (in Moorcroft) that s 24(1)(c) was directed at whether the war caused condition was actually preventing the veteran from working in his previous employment had not been followed in other authorities (at [34]). His Honour stated:
32 In Cavell v Repatriation Commission (1988) 9 AAR 534 at 539, Burchett J agreed with Davies J in Re Easton and Repatriation Commission (1987) 6 AAR 558 at 570-571 the word "alone" should not have substituted for it other words in the absence of ambiguity. He saw the requirement of the word "alone" as it appears in s 24(1)(c) as requiring a practical decision whether the veteran's loss of remunerative work is attributable to his or her service-related incapacities, and not to something else as well. He regarded that as a decision not to be made upon nice philosophical distinctions, but with an eye to reality, and as a matter in respect of which common sense is the proper guide.
33 Burchett J also referred to a statement by the Tribunal in Cavell that it followed from the use of the word "alone" in s 24, that any factor having employment consequences which played a part in the applicant's inability to work or to obtain and hold remunerative employment, is sufficient to displace the applicant's case for pension at the special rate. Burchett J regarded that statement as revealing clearly an application of the statutory test in an unexceptional manner to the material in evidence before that Tribunal. Those remarks address the third question identified in Flentjar and are, correctly in my view, relied upon for the respondent in this application. They do not provide support to the applicant's contentions. Nor do I consider that reference to Repatriation Commission v Strickland (1990) 22 ALD 10 at 18 assists the applicant's case.
93 Nicholson J also noted that Dowsett J's preferred approach was dicta and made no reference to Flentjar (at [34]). His Honour noted (at [35]) that Tamberlin J in Jackman v Repatriation Commission (unreported, Federal Court of Australia, Tamberline J, No NG 521 of 1996, 30 June 1997) had endorsed Burchett J's approach in Cavell v Repatriation Commission (1988) 9 AAR 534.
94 In Turnbull v Repatriation Commission (unreported, Federal Court of Australia, Merkel J, VG 7 of 1996, 21 May 1997), Merkel J held that, as the applicant's non-war-caused pain and disability played a part in preventing him from engaging in remunerative work, although the war-caused injuries had a more substantial effect, both contributed to his loss of earnings and this warranted refusal of the application under s 24(1)(c) of the Act (at 7).
95 More recently, in Willis v Repatriation Commission (2012) 202 FCR 323; [2012] FCA 399 ("Willis"), Bromberg J stated (at [22]):
Although Dowsett J [in Moorcroft] preferred the first interpretation, the preponderance of authority (which I will follow) supports the second: Cavell v Repatriation Commission (1988) 9 AAR 534 at 538-539; Repatriation Commission v Alexander (2003) 75 ALD 329 at [22]; Repatriation Commission v Van Heteren (2003) 37 ALD 533 at [24]; and generally, Flentjar v Repatriation Commission (1997) 26 AAR 93, and [Repatriation Commission v Hendy (2002) 76 ALD 47].
96 The four questions articulated by Branson J in Flentjar have been endorsed in subsequent authority as embodying the correct approach to the application of s 24(1)(c).
97 In Peacock v Repatriation Commission [2004] FCA 1449 ("Peacock"), for example, Dowsett J regarded consideration of the Flentjar questions essential to the proper application of s 24(1)(c).
98 In Peacock, Dowsett J set aside the decision of the Tribunal, which had found that the veteran did not satisfy s 24(1)(c) of the Act and hence was not entitled to a special pension.
99 In Peacock, the Tribunal, in response to the first Flentjar question, found that the veteran's previous work was of a clerical or administrative nature. In response to the second Flentjar question, the Tribunal was not satisfied that the veteran was prevented from undertaking such work because of his war-caused injuries or diseases. (Dowsett J held that such a finding appeared inconsistent with the respondent's concession and the Tribunal's finding that the veteran satisfied s 24(1)(b), although the latter did not raise an identical question (at [33]).)
100 In Peacock, the Tribunal, in response to the third Flentjar question, found that (even were the second Flentjar question answered positively) the veteran's war-caused injuries alone did not prevent him from continuing to undertake the work. Dowsett J observed that this conclusion was based on its findings that another factor was that the veteran had decided, in any event, to retire from his contract position, access his superannuation benefit and relocate to Queensland.
101 Dowsett J concluded that the Tribunal had, in several respects, misunderstood both s 24(1)(c) and the Flentjar decision. First, it had apparently considered the situation in 2000 when the veteran ceased work, rather than the claim period (at [33]).
102 More importantly, while the Tribunal's treatment of the third Flentjar question was probably also affected by the error relating to the claim period, it erred in concluding that the veteran's access to superannuation benefits was a factor preventing him from continuing to work (at [33]). Dowsett J stated "[s]uch access may be an incentive to retire, but it cannot prevent work" (at [33]).
103 Dowsett J considered that the Tribunal had, under the aegis of the third Flentjar question, probably considered the fourth Flentjar question, which he analysed as follows:
34 The fourth Flentjar question requires a consideration, not of the veteran's incapacity, but of whether that incapacity is causing a loss of remuneration. In practice that often requires a consideration of whether the veteran, had he not suffered his war-caused conditions, would have been earning remuneration during the claim period. If a veteran has previously stopped work, it may be necessary to ascertain whether that would have occurred irrespective of his incapacity. Much of the discussion at [29] - [32] of the Tribunal's reasons concerned this question, although the Tribunal's language suggests that it was there considering the third, and not the fourth, Flentjar question. It concluded, at [31], that one of the reasons for the applicant's retirement in 2000 was the availability of his superannuation benefits. The Tribunal inferred from this that by the date of claim, he had retired, with no intention of resuming work. It was said to follow that 'it was not his war-caused injuries or diseases, alone, which prevented him from continuing to undertake his previous remunerative work …'.
(emphasis in original)
104 His Honour reiterated:
35 As I have said, the availability of superannuation benefits may have induced the applicant to retire in 2000, but such availability did not prevent him from performing work in 2004. Further, even if he was not incapacitated for work in 2000, he may well have been so incapacitated by 2004. This aspect of the Tribunal's reasoning seems to reflect a further misunderstanding of s 24 and of the decision in Flentjar.
36 The Tribunal should have considered whether the applicant would have retired in 2000 or between then and 2004 had he not been suffering the war-caused conditions from which he now suffers, to the extent to which they were then manifest. The applicant claimed that prior to 1997, and until 2000, he coped with his work, but with difficulty. He asserted that Mr Howard had "protected" him by finding work which was within his limited capacity. It is likely that the Tribunal rejected that assertion. However it did not expressly accept or reject the applicant's claim that he had difficulty in performing his duties and the suggestion that his efforts to do so caused him to experience difficulties in other aspects of his life. The applicant claimed that as a result of these matters, he decided to retire at age 55 when his superannuation benefits became available. If that claim is accepted at face value, two alternative inferences are open. The first is that the opportunity to retire at age 55, with his superannuation benefits was, itself, attractive to him and therefore contributed to his decision to retire at that time, without regard to his war-caused conditions. Such a view might lead to the conclusion that even in the absence of the applicant's incapacity, he would not have been working for remuneration in 2004. The alternative inference is that early retirement was of no interest to him as such but offered him an opportunity to escape the difficulties which he was experiencing in his work. In that case, the Tribunal might well have inferred that in the absence of his incapacity, the applicant would have been working for remuneration in 2004. It seems, however, that the Tribunal did not directly address the fourth Flentjar question.
(emphasis in original)
105 In my opinion, Dowsett J's analysis in Peacock is persuasive.
106 It is well established that, in the context of the first Flentjar question, the Tribunal must consider the remunerative work that the veteran was undertaking. Such work "does not mean a particular job with a particular employer but the substantive remunerative work that the veteran had undertaken in the past": Hendy at [36].
107 The inquiry under s 24(1)(c) is directed at the assessment period, which commences on the day that the application was received.
108 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.
109 However, a factor which prevents or contributes to preventing the veteran from continuing to undertake the remunerative work, but is itself the consequence of the veteran's war-caused condition, will not constitute an independent preventative factor for purposes of defeating the "alone" requirement in s 24(1)(c).
110 In the present case, the Tribunal recognised that it should consider and determine the questions in Flentjar. It considered and determined the first and second questions.
111 Although the Tribunal did not then expressly state that it would consider the third question in Flentjar, it seems apparent from its preceding citation of and quotations from the authorities of Forbes, Alexander and Hendy, and its answers to the first and second questions in Flentjar, that in paragraphs 51-56 the Tribunal was purporting to carry out the task outlined in Hendy in relation to the third Flentjar question.
112 Accordingly, the Tribunal was required to consider and determine whether there were any factors other than the applicant's war-caused condition that played a part in, or contributed to, the veteran's being prevented, during the assessment period commencing on March 2007, from continuing to engage in remunerative work as a trade teacher, boiler maker and boat operator. It was also required, having considered any or all of the factors which contributed to a veteran's incapacity, to determine "whether incapacity from the relevant condition alone prevents a veteran from continuing to undertake remunerative work": see Hendy at [37].
113 In the present case, the Tribunal's ultimately negative answer to the third Flentjar question in paragraph 64 necessarily depended on findings that there were factors other than the applicant's war-caused conditions that prevented, or contributed to preventing, him from continuing to undertake the relevant remunerative work of a trade teacher, boiler maker and boat operator.
114 Between introducing what was clearly intended to be a discussion of matters relevant to the third Flentjar question and reaching its conclusion on that issue at paragraph 64, the Tribunal, in my opinion, made no finding, expressly or implicitly, that there was any other factor which prevented or contributed to preventing the applicant from undertaking remunerative work. Rather, the Tribunal considered factors which caused or contributed to the applicant's "decision to cease remunerative work" including some of the matters, such as the applicant's attaining 60 years of age and his dissatisfaction with the conduct of students and management practices in the TAFE system, referred to at paragraph 54 of its reasons.
115 At paragraph 55, the Tribunal recorded that the applicant's counsel emphasised that the accepted war-caused conditions, particularly the applicant's "anxiety state", had had an impact on his inability to work.
116 The Tribunal did not expressly or implicitly recognise any material distinction between, on the one hand, factors which cause, or contribute to causing, an inability or incapacity to continue to undertake work and, on the other hand, incentives or reasons for the applicant deciding not to continue it. The Tribunal appeared to treat the two concepts interchangeably, or at least, proceeded on the basis that a factor of the latter kind was fatal to the satisfaction of the "alone" test in the third Flentjar question.
117 In my opinion, the Tribunal erred in treating, in the context of the third Flentjar question, a factor acting as an incentive or influencing a decision voluntarily to cease to work as equivalent to a factor which prevents, or contributes to preventing, a veteran from continuing to undertake the relevant remunerative work. As Dowsett J recognised in Peacock, the third Flentjar question concerns the latter, not the former.
118 The language, structure and context of s 24(1)(c), in my view, indicates that contrary to the respondent's submission, the "alone" test in the first limb is defeasible only by factors additional to the veteran's war-caused condition which prevent or contribute to preventing, the veteran's continued undertaking of the relevant work. To prevent an activity, according to its ordinary meaning, is to prohibit, disable or restrain, rather than to induce or provide a reason or incentive for action which a person remains capable of taking. The third Flentjar question, although similar to the question in s 24(1)(b) is not identical. It does not follow that because the requirements of s 24(1)(b) are satisfied, those of the third Flentjar question are also satisfied. The first limb of s 24(1)(c) refers to, an incapacity (from war-caused conditions) which "prevents". That language indicates a factor which imposes an involuntary barrier to the relevant activity. Whether such an incapacity alone prevents an activity, in my view, necessarily requires consideration of whether there are any other factors which impose an involuntary barrier.
119 The first limb of s 24(1)(c) and the third Flentjar question thus require consideration of whether there are any other factors preventing, in the sense of hindering or disabling, the veteran's continued undertaking of the relevant work, and not whether there are any other reasons generally for stopping work.
120 The relevance of inducements and incentives voluntarily to decide not to continue to undertake work is, in my view, as Dowsett J held in Peacock, confined to the fourth Flentjar question.
121 In Flentjar and Hendy, the question whether an incentive or inducement voluntarily to cease work despite being capable of continuing did not arise, and was hence not specifically addressed. However, the tenor and reasoning of those authorities support Dowsett J's analysis in Peacock.
122 In Flentjar, the applicant's age was, for a part of the assessment period, clearly a factor preventing him from working as a taxi driver, as he was prohibited due to the age limit imposed by the relevant authority. That prohibition was subsequently lifted during the assessment period. The Full Court in Flentjar clearly distinguished between factors which prevented the veteran from undertaking work (such as the age limit) and elective factors which might cause him not to seek work. Branson J noted "the difference between [the veteran's] capacity to drive at the age of 77 and the likelihood that he would have chosen to do so to produce income" (at 3). Branson J regarded matters of choice as relevant to the fourth question (at 5).
123 In Forbes, Nicholson J did not appear to consider that elective factors would "prevent" a veteran from continuing to work. He considered that "any factor having employment consequences which played a part in the applicant's inability to work or to obtain and hold remunerative employment, is sufficient to displace the applicant's case for pension at the special rate" (emphasis added).
124 Similarly, in Hendy, the language and analysis is consistent with the view that the third Flentjar question is focussed on factors which render a veteran unable to work, rather than electing not to do so.
125 In the present case, the Tribunal's discussion of medical evidence at paragraph 56 left open the possibility that the applicant's war-caused condition was the main, but not the sole, cause of the applicant being unfit to continue to work. It remained unclear, however, whether the work referred to in the medical evidence was a particular job or the identified occupations.
126 The Tribunal, did not refer again to the medical evidence or determine whether there was a non war-caused medical condition that prevented or contributed to preventing the applicant from continuing to undertake the relevant work.
127 Rather, the Tribunal stated that it was not satisfied (despite the applicant's evidence that his ceasing work at Goulburn Ovens TAFE was not related to turning 60 years of age) that it was a coincidence that the applicant chose his 60th birthday to cease employment there.
128 The Tribunal's finding that the applicant chose to cease work at 60 years of age (when he could access certain retirement benefits) was not equivalent to a finding that the applicant's age was a factor preventing, or contributing to preventing him, from continuing to work.
129 In contrast to Flentjar (where during the assessment period age was initially a factor preventing the veteran from working as a taxi driver), in the present case, there was no suggestion that the applicant's age prohibited or disabled him from continuing to work, whether in the TAFE colleges in which he was last employed or in the range of occupations identified by the Tribunal in paragraph 49 of its decision.
130 Similarly, the Tribunal's implicit finding at paragraph 59 that the applicant's dissatisfaction with the staff, students and teaching at the Gordon Institute and his sentiment that the position (although readily available to persons of the applicant's age) should be reserved for someone younger, is not tantamount to a finding that his dissatisfaction or his age were factors that prevented the applicant from continuing to work either at the Gordon Institute or in the other relevant occupations. Rather, on a fair reading, the Tribunal did not view the applicant's age and dissatisfaction as contributing to his inability to continue the work but as reasons for deciding to stop work.
131 The Tribunal noted at paragraph 62 that the applicant had emphasised the impact of his war-caused conditions on his inability to work and at paragraph 63 concluded that it was not satisfied that they were the sole factors that had prevented him from working for more than eight hours per week during the assessment period. However, it immediately thereafter stated that it found that the applicant's "age and frustration at the teaching environment were two of the additional factors adding to his decision to stop working". The conjunction of the observations fortifies the conclusion that the Tribunal did not distinguish between factors which prevented (in the sense of disabling) the continuation of work from factors which contributed to a decision not to continue.
132 In my opinion, contrary to the respondent's submission, the Tribunal's reference to the applicant's decision to stop working was not a surrogate finding that the applicant's age and frustration were factors that prevented him from continuing to undertake the identified remunerative work.
133 That conclusion is fortified by the Tribunal's observation that the applicant was a conscientious employee who did not take much time off due to his war-caused conditions, which indicates that the Tribunal did not view the frustration as a disabling war-caused condition that prevented the applicant from working but, rather, as a reason why he chose to do so.
134 The Tribunal further concluded in paragraph 63 that the applicant "ceased work as a trade teacher due to his accepted disabilities but also because of his age". The evidence before the Tribunal, which it had discussed in some detail, established, however, that age was not an impediment to or prohibition on the applicant's continued employment in the TAFE colleges.
135 The Tribunal's treatment of the third question in Flentjar, in my opinion, evidenced the same misunderstanding, and largely replicated the same error, as occurred in Peacock.
136 Further, the Tribunal addressed only the reasons for the applicant's ceasing work as a trade teacher and to some extent as a boat operator. Leaving to one side the distinction between a factor preventing continued work and a factor inducing the veteran to cease work, the Tribunal also failed to address the inquiry to the relevant occupations as required by Flentjar and similar authorities.
137 The Tribunal did not make clear whether the applicant's frustration at modern teaching conditions and his advancing age (which it identified as additional factors leading it to answer the third Flentjar question "no") were relevant only to trade teaching (or the particular institutes at which the applicant had been recently employed) or were also relevant to the other two occupations.
138 Further, the Tribunal did not address the situation during the assessment period which commenced in March 2007, as it was required to do. Despite its misstatement of the commencement date, the Tribunal did not significantly mistake the assessment period, but its consideration of relevant factors was limited to those up to and including mid-2005.
139 The Tribunal did not state, and it cannot be assumed, that the factors remained unchanged during the assessment period. As held in Peacock, although particular factors may have induced the applicant to cease work in 2005 it could not be assumed that he was not prevented by war-caused conditions alone from working during the assessment period.
140 If and in so far as, contrary to the above, the Tribunal was purporting to address the fourth, rather than the third, Flentjar question, the Tribunal did not make that clear. It also failed to ask the hypothetical question (discussed below) which on any view applied to the fourth Flentjar question and failed to consider the assessment period or the range of relevant occupations.
141 In my opinion, the error alleged in ground 1 was established.