The Guidelines set out the Repatriation Commission's position on the legislation concerning the Special Rate of pension. They are based on the words of the legislation and the interpretation given to them in the Courts. The Guidelines indicate the way in which the Commission believes the legislation should be applied.

The Guidelines are divided into three parts:

� Part One - Overview,

� Part Two - Cases Where The Veteran Is Under Age 65, and

� Part Three - Cases Where The Veteran Is Age 65 Or Over

The introduction of the Special Rate of Pension dates back to the Australian Soldiers' Repatriation Act 1920, which stated:

"The Special Rate of Pension may be granted to members of the Forces who have been blinded as the result of War Service, and to members who are totally and permanently incapacitated (ie. incapacitated for life to such an extent as to be precluded from earning other than a negligible percentage of a living wage)"

The Special Rate of Pension is colloquially known as the TPI pension.

The original test for the pension was as stated in the 1920 legislation. In 1985 the Act was changed because veterans who had been able to engage in a reasonably full working life were able to fulfil the Special Rate requirements at or after retiring age. This was seen as a distortion of the true purpose for granting the pension. Thus, in introducing new Special Rate legislation in 1985, the Acting Minister for Veterans' Affairs said:

"The special or TPI rate pension was designed for severely disabled veterans of a relatively young age who could never go back to work and could never hope to support themselves or their families or put away money for their old age. It was never intended that the TPI rate would become payable to a veteran who, having enjoyed a full working life after war service, then retires from work possibly with whatever superannuation or other retirement benefits are available to the Australian work force.

If a person has had the usual span of a working life or has retired voluntarily or has left employment for reasons other than accepted disabilities, a T&PI pension is not payable."

The current Special Rate legislation is based on the 1985 provisions with two major amendments. In 1988, the requisite degree of incapacity was reduced from 100% to 70%. In 1994, further amendments were made to introduce a separate series of tests for veterans aged 65 and over at the date of application.

The purpose of the Special Rate provisions continues to be that stated by the Acting Minister in 1985:

To provide for severely disabled veterans who would normally be in the work force and who are unable to resume or continue in employment because of a permanent incapacity resulting from their war or defence service.

Section 24 contains a series of tests that must be satisfied before Special Rate pension can be granted. The concept behind the tests is straightforward, namely that: -

� incapacity from war caused disabilities must have reached total and permanent levels; and

� these disabilities, and not other factors, are the reason preventing the veteran from working, thus causing a loss that the veteran would not otherwise be suffering.

In determining whether the legislative criteria are met and, in particular, whether other factors play a real part in preventing the veteran from continuing to undertake remunerative work, Repatriation Commission delegates:

� must carefully gather and assess the material presented in each particular case;

� where necessary, seek clarification of the evidence presented;

� provide clear and substantiated reasons for their decision; and

� provide advice of other possible assistance (eg, rehabilitation options).

The Repatriation Commission is mindful of its obligations to consider the 'whole of veteran' needs and to provide what assistance it is authorised to provide in meeting those needs. This obligation stems from the general responsibilities and duties of the Repatriation Commission and not from section 24 of the VEA.

Therefore, if a veteran is under 65 and, at the end of the decision making process, does not meet all of the requirements of a Special Rate pension, the veteran should be informed that the Repatriation Commission will assist in linking the veteran, into a rehabilitation or vocational training program. Entry into the rehabilitation or vocational training program will be voluntary and is not a prerequisite for obtaining Special Rate pension.

Alternatively, a veteran under age 65 and in receipt of Special Rate pension may apply to the Repatriation Commission for entry into the Veterans' Vocational Rehabilitation Scheme. This scheme contains safeguards in relation to the veteran's ongoing entitlement to pension.

The standard of proof applicable to s.24 is the 'reasonable satisfaction' standard (that is, the balance of probabilities). The evidentiary provisions of s.119 also apply. There is no presumption of entitlement (s.120 (5) refers).

Findings of fact and inferences can only be made about qualifying or disqualifying criteria if there is material before the decision-maker that permits such findings or inferences to be made. 1

All the Special Rate criteria must be met at the same point in time within the assessment period. The assessment period:

� begins on the day the formal claim for pension or application for increase in pension is lodged; and

� ends on the day the claim is determined.

A claim or application is lodged when it is received at an office of the Department of Veterans' Affairs in Australia.

Where a veteran is aged under 65 at the time of lodging the claim, there are four tests to be satisfied before a determination granting a Special Rate pension can be made. These tests must be met concurrently for the veteran to be eligible, ie; all four tests must be met at the same point in time during the assessment period.

The tests are set out in s. 24(1)(a), (b) and (c) of the Veterans' Entitlements Act 1986. The last, s.24 (1)(c), is a two part test - hence the reference to four tests.

This test requires that the 'degree of incapacity' from accepted disabilities must be determined under s. 21A of the Act to be at least 70% or there is a previous determination in place at the time of assessing Special Rate pension. The required assessment must occur between the application date and the decision date. It must be a permanent 'degree of incapacity'.

An alternative, but rarely used, test is where the veteran is receiving or has received 100% of the general rate disability pension because he or she was or is suffering from pulmonary tuberculosis.

For the 'degree of incapacity' to be permanent, it must be likely to continue indefinitely. The best material to assist in determination of permanency is a report from the veteran's general practitioner complimented by a report from an occupational physician or similar professional.

If the evidence indicates that the permanency of the veteran's 'degree of incapacity' is at issue, the decision-maker should assess whether: -

(i) The veteran can reasonably update past skills or undertake a program of retraining within a reasonable time; or

(ii) The veteran's condition would improve following a program of medical rehabilitation or course of treatment.

If these circumstances apply, the decision-maker should consider whether the veteran meets the requirements for temporary payment at the Special Rate (s. 25) as required by s. 24 (1)(d).

Under this test, the veteran's incapacity from accepted disabilities must, of itself alone, render the veteran permanently incapable of undertaking remunerative work for periods aggregating more than 8 hours per week.

The matter to be decided is the effect of accepted disabilities only on the veteran's capacity to work. It does not matter for this test that the veteran might have other disabilities or that there are other factors that affect the veteran's work capacity.

The veteran's incapacity from accepted disabilities must be such that the veteran is unable to work for periods aggregating more than 8 hours per week. The fact that a veteran may actually only work 6 hours a week is not the test. The question to be answered is how many hours does the veteran have the capacity to work in a week. Work capacity is a matter for professional advice.

Where there is a clear basis for a decision to be made, the decision-maker need not obtain further professional advice.

Determining capacity to undertake remunerative work brings s. 28 of the Act into consideration. Under this section, capacity to work has regard only to:

� the vocational, trade and professional skills, qualifications and experience of the veteran; and

� the kinds of remunerative work that a person with the veteran's skills, qualifications or experience might reasonably undertake; and

� the degree to which war caused impairment has reduced the veteran's capacity to undertake work that might reasonably be undertaken.

Work in this context thus means:

� work that a person with the veteran's skills, qualifications, and experience might reasonably undertake possibly with retraining; and

� work that is actually undertaken and is not uncommon in the Australian work force; and

� work that is of a kind for which remuneration may be attracted.

But work in this context is not necessarily limited:

� to the particular type of job that the veteran has previously undertaken; and

� to work readily available to the veteran at this time or in the veteran's local area.

Therefore, for the purposes of Test 2, the test is the kind of work a veteran might reasonably be able to do. The veteran's skills are not confined to those acquired in formal training or by virtue of experience in a particular employment. They include innate aptitude for tasks, as well as abilities acquired or developed independently of employment or training. Equally, qualifications are not confined to those obtained as a result of formal training or work experience. However, the skills, qualifications and experience must still be capable of being characterised as being vocational, trade or professional.

The decision-maker should adopt a commonsense approach to this issue.

For example, the veteran has a long work history and experience as an insurance claims assessor with high public contact. The veteran's medical file contains numerous reports from his local medical officer and treating psychiatrist that indicate that the veteran has a decreasing ability to deal with the public, his fellow employees and management. The latest medical report indicates that the veteran has been absent from work for a number of weeks due to his inability to cope with his working environment. The report recommends that the veteran should not return to work or work in any other standard office environment. It further states that the veteran should not be considered for outdoor labouring jobs as his accepted disability of solar keratosis would be further aggravated. The veteran has no other employment skills, previous experience or innate skills that could be considered for the purposes of Test 2. In these circumstances, the decision-maker could be reasonably satisfied that the veteran does not have the capacity to undertake remunerative work.

Attachment A provides further information on the application of s. 28.

Test 3 ascertains whether it is the veteran's accepted disabilities alone that are the reasons preventing him or her continuing to undertake remunerative work. and as a result are losing salary wages or earnings (see Test 4).

All the reasons for not working, not just the veteran's accepted disabilities, are considered. The test is satisfied if there is no real reason, other than the veteran's accepted disability that the veteran is not working.

Other potential reasons may or may not exist. If they do, they should be able to be identified from the information gathered in each case. They might include age, time out of the workforce, failure to retain employment-related skills, loss of employment, other disabilities, retirement, or family matters.

They may also include:

� the state of the general labour market for the type of remunerative work that the veteran was undertaking;

� whether the veteran's type of work is no longer available; or

� whether the veteran moved, without good reason, to an area where employment opportunities were known to be restricted.

Of course, the loss of a particular job or the fact that the veteran left a particular job does not necessarily mean that the veteran has ceased to engage in remunerative work altogether or ceased for the reason the veteran left that particular job. For example, a veteran may take a redundancy package in order to maximise the financial benefit of leaving a particular job but intend to remain in the work force. The decision-maker must carefully examine the circumstances in which redundancy or retirement packages are taken and assess the whole of the material in order to determine whether the veteran has ceased to engage in remunerative work.

Once other factors are identified, their importance and relevance must be tested. Their effect should be checked at the same time as gathering information on factors for Test 2. Advice should be sought from medical, rehabilitation or work specialists as appropriate.

The question of the real effect of these other factors is difficult and needs to be assessed in the circumstances of each case. For instance, a veteran may have a long-standing medical condition such as diabetes or epilepsy that has been controlled with medication and has not interfered with the veteran's working life. The mere presence of this condition or any other factor is not enough to mean failure of the test. The decision-maker must be reasonably satisfied that the evidence demonstrates that such factors, either singly or in combination, had a real effect in contributing to the veteran being prevented from continuing to undertake the kind of work previously undertaken.

In Test 3, the definition of work differs from that used for Test 2. Test 3 focuses on the reasons for the veteran being unable to continue the kind of work that the veteran was doing, not the kind of work that the veteran might be able to do (Test 2), nor the particular job that the veteran previously had. Capacity to update skills or retrain may be relevant. This will have been considered in part under Test 2. Failure to maintain skill levels may, however, reflect an innate inability to do so. Evidence would need to be carefully evaluated.

If the veteran does not satisfy the alone requirement, and is under 65 at the date of application, the decision-maker must examine the ameliorating provisions in s. 24 (2)(b). Section 24 (2)(b) is intended to make it easier for some veterans to satisfy Test 3 in respect of determining whether accepted disabilities alone are preventing the veteran from continuing to undertake remunerative work.

In order for s. 24 (2)(b) to be satisfied, the veteran must:

� be under 65, at the date of application; and

� have genuinely been seeking to obtain work; and

� be incapacitated from accepted disabilities that can be viewed as 'the substantial cause' preventing the veteran from continuing to seek to obtain work.

If the veteran meets these requirements, then Test 3 is satisfied in this respect.

In order for a veteran to be genuinely seeking work, it is not necessary that, at the date of application, the veteran is actively job hunting, although it would be more straightforward if this were the case. It is sufficient that the veteran genuinely sought work within a reasonable time of last working, thereby demonstrating a clear intention to remain in the work force.

Evidence of a veteran genuinely seeking employment may include, but is not limited to, a combination of:

� Visits to doctors to monitor progress / improvement to the veteran's health.

� Visits to an employment counsellor.

� Registering for employment.

� Attempts to obtain employment (part time or full time).

� Retaining a professional membership and updating skills as required by that membership.

The Repatriation Commission recognises that evidence may establish that some veterans are so sick that they could not be expected to actively seek work. Some veterans may cease to seek work because of a realisation that if work were obtained, incapacity from their accepted disabilities would make it impractical for them to perform the work. This applies particularly in circumstances where a veteran has an accepted disability of Post Traumatic Stress Disorder or some other war caused psychiatric or psychological disease.

While there is no requirement for the veteran to retrain, update skills, professional licences or qualifications, or relocate to obtain worksuch effort would add to the evidence that the veteran has been genuinely seeking employment.

Decision-makers need to carefully consider any relocation by a veteran to an area of low employment relative to the veteran's skills. Unless the reason for moving clearly relates to the health or welfare of the veteran or family such a move may not support a finding that the veteran has been genuinely seeking employment.

If the veteran has been genuinely seeking work, it is necessary, in addition, to determine that the veteran's accepted disabilities are the substantial reason preventing the veteran from continuing to seek to obtain work in order for Test 3 to be satisfied under the amelioration provisions.

This requires identification of the effect of the disability as well as of other factors that might apply, such as age or time out of the workforce or loss of skills for the type of work that the veteran was previously undertaking.

In determining 'the substantial cause', the decision-maker must consider "that, if the incapacity [from accepted disabilities] is not of itself productive of the inability to obtain work, it is nevertheless the operative factor".2

Many factors may be present which are of themselves significant enough to be considered 'substantial'. However, the use of 'the' in 'the substantial cause' means that in order for the veteran to meet 'the substantial cause' test, the veteran's accepted disabilities must be 'the operative cause'. The other factors will constitute 'the substantial cause', (ie, 'the operative cause') if they are "individually, and in conjunction, substantial in their operative effect" in preventing the veteran from obtaining remunerative work.

Examples of the application of the ameliorating provisions of s. 24 (2)(b) are given at Attachment B.

Relationship of Test 3 to Test 4

Even if a veteran obtains the benefit of Test 3, Test 4 must still be applied.

To satisfy Test 4, a veteran who has met all the other tests:

� must be found to be suffering a loss of salary or wages, or earnings on his or her own account; and

� the loss must be one that he or she would not otherwise have been suffering.

The decision-maker must determine that the veteran's inability to work, or to obtain work, is causing a loss.

Note that the test relates to loss of personal salary or wages, or earnings on the veteran's own account, and is not necessarily concerned with a loss of income. If the case involves income derived other than as a salaried worker, the decision-maker must carefully examine the nature of the veteran's involvement in the enterprise providing the income and be satisfied that any loss of income reflects the veteran's inability to work.

For example, in the case of income from investments, the decision-maker would need to be satisfied that, before accepted disabilities intervened, the veteran's work involved the active management of the portfolio resulting in direct decisions on transactions and thus in earnings. Any continuing ability to manage investments may also be relevant under Test 2.

Losses by trusts, partnerships, companies, managed funds or other financial arrangements are not usually the kinds of losses that would satisfy the legislation. Care is needed as some businesses may be structured to appear to produce an overall loss with the veteran receiving payments in the form of commissions, bonuses or business loans. These are difficult issues to assess. In these cases, advice should be sought from the Compensation Branch and the Legal Services Group, National Office.

S. 24 (2)(a)(i) expands, for the purposes of Test 3, the circumstances in which a veteran is not to be taken to have suffered a loss of salary or wages, or of earnings on his or her own account.

S. 24 (2)(a)(i) provides that, if the veteran has 'ceased to engage' in remunerative work for reasons other than the veteran's incapacity from accepted disabilities, the veteran will not be taken to have suffered a loss of salary or wages, or earnings on his or her own account from accepted disabilities.

The decision-maker may return here to the outcome of Test 3. If under Test 3 it was determined that the veteran had ceased work because of accepted disabilities alone ie that there are no other real factors for the veteran not working, then the veteran passes this part of Test 4.

S.24 (2)(a)(ii) provides that if the veteran was 'incapacitated' or 'prevented' from engaging in remunerative work for some other reason, then the veteran will not be taken to have suffered a loss of salary, wages or earnings from accepted disabilities.

This provision requires that if there is also another factor(s) for not working, the s.24 (1)(c) test is not satisfied.

However, in the case of a veteran who is under 65, who has not 'ceased to engage' in remunerative work and who otherwise satisfied s.24 (2)(b) by seeking work, the other factor(s) must be 'the substantial cause' for the veteran not working before the veteran is excluded by this second part of the test.

In effect therefore, the decision-maker should return to the results of Test 3. If Test 3 is satisfied, the veteran will not be excluded by this second part of Test 4.

For example, where the decision-maker is satisfied that the veteran had retired from the workforce at age 55, then retirement may be the reason that the veteran has suffered a loss of salary, wages or earnings and not the veteran's accepted disabilities.

The 1994 amendments to s.24 introduced special rules for veterans who were 65 years of age or over. These rules, however, only apply to claims or applications made on or after 1 June 1994. Few claims made before 1994 should now be extant. If one is encountered, advice on the determining procedures to be followed should be sought from the Compensation Branch and Legal Services Group, National Office.

Claims for veterans aged 65 or over are governed by s.24 (2A). A significant point to note is that it must be that the veteran is prevented from carrying on their last paid work and thereby suffering a loss. This work must be of 10 years' duration, starting from a date before the veteran turned 65 and continuing until after the age of 65.

There are five tests to be satisfied before a claim can be granted.

The first test to be satisfied is that degree of incapacity from accepted disabilities must be determined under s21A of the Act to be at least 70%. This degree of incapacity must be permanent.

An alternative, but rarely used, test is where the veteran is receiving or has received 100% of the general rate disability pension because he or she was or is suffering from pulmonary tuberculosis.

Factors to be considered by decision-makers for this test are the same as for veterans aged under 65.

This test requires that the veteran's incapacity from accepted disabilities must 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.

This test is the same test as for veterans under age 65.

This test focuses on whether it is only the veteran's accepted disabilities that prevent him or her continuing to undertake remunerative work (last paid work). This work is the kind of work that the veteran has undertaken over the last 10 years and that the veteran commenced before age 65 and continued after that age.

The factors to be considered are the same as in Test 3 for veterans under age 65 with two exceptions:

� firstly, the kind of remunerative work that may be considered is limited to the last paid work; and

� secondly, the ameliorating provisions of s.24 (2)(b) do not apply for veterans age 65 and over.

The purpose of this test is to determine whether the veteran who has satisfied the previous tests is suffering a loss, and that the loss is not one that the veteran would have been suffering in any event.

This test is basically the same as Test 4 for veterans under 65 and the discussion under that test is applicable here, again with the exceptions that the loss relates specifically to the last paid work and that the ameliorating provisions of s.24 (2)(b) do not apply in determining whether there are other reasons incapacitating or preventing engagement in remunerative work.

There must be a real loss of remuneration at the application date when looking at the 10-year period of last paid work. That loss, as discussed for the under 65 veterans, must be one that the veteran would not be suffering, in any event, if free of his or her war-caused incapacity.

S.24 (2B) provides that this part of the test will not be satisfied if the veteran:

� has ceased to engage in remunerative work (the last paid work) for reasons other than his or her incapacity, or

� is incapacitated or prevented from engaging in remunerative work for some other reason.

In deciding whether this provision applies, the decision-maker should refer back to the outcome of Test 3. The discussion of Test 3 and Test 4 for under 65s is also relevant here.

S. 24 (2B) expands, for the purposes of Test 3, the circumstances in which a veteran is not to be taken to have suffered a loss of salary or wages, or of earnings on his or her own account.

S. 24 (2B) provides that, if the veteran has 'ceased to engage' in remunerative work for reasons other than the veteran's incapacity from accepted disabilities, the veteran will not be taken to have suffered a loss of salary or wages, or earnings on his or her own account from accepted disabilities.

The decision-maker may return here to the outcome of Test 3. If under Test 3 it was determined that the veteran had ceased work because of disabilities alone ie that there are no other real or operative factors for the veteran not working, then the veteran passes this part of Test 4.

A veteran is taken to have 'ceased to engage' in remunerative work if the veteran has stopped working and has stopped looking for work that the veteran would reasonably be expected to obtain.

The reason why a veteran has 'ceased to engage' in work may not necessarily be the same reason why that veteran left their last job. The loss or leaving or a job for another reason is not necessarily significant in determining that a veteran has ceased work for a reason other than a war caused incapacity.

Under Test 5, the decision-maker must first determine that the veteran was undertaking his or her last paid work after turning 65.

Once this part of the test is satisfied, the Decision-maker must then establish that the veteran had been working in that last paid employment for a continuous period of 10 years commencing from a date before the veteran turned 65.

To meet this test, the veteran must have been an employee for the same employer (or if the employer's company was taken over, the legal successor of that employer) for the last ten-year period of paid work. For self-employed veterans, the veteran must have been working in the same profession or field of work for the last ten-year period of paid work.

In each case the ten-year period must have commenced prior to the veteran turning 65. That ten-year period may include periods during which the veteran was not working (taking holidays etc) but it cannot include periods where the veteran ceased to work. These are questions of fact to be decided by the decision-maker.

Professionals; self-employed and owner-operators of businesses such as doctors, dentists, accountants, lawyers, consultants; have a different work history to most veterans seeking Special Rate. The decision-maker must be satisfied that the material shows that in the ten-year period prior to the claim, the veteran was in fact conducting the business or carrying out the duties or performing the tasks of the profession or occupation. Supportive material might include records of continuing professional development or the possession of licences or charters. In other cases, knowledge of the amount of work conducted or the hours of work in performance of the tasks will be necessary for a decision to be made.

If the activity is no more than a continuation of the veteran's previous interests pursued while undertaking another occupation, material may be required to satisfy the decision-maker that the activity was a genuine profession, trade, employment, vocation or calling.

'Experience' is not limited to job experience, and 'vocational qualification' may encompass a person's physical fitness. Thus, even though a veteran's job experience has not included physical labour, if he or she is physically and mentally able to do such work, the veteran could be said, in the circumstances of a particular case, to have the skills, qualifications and experience to undertake particular remunerative work involving physical labour.

Taking into account the veteran's particular circumstances, if he or she is capable of being retrained within a reasonable period, that must be taken into account because it is a vocational skill.

Work that the veteran might reasonably undertake (s.28 (b))

This question is not directed to the actual veteran, but to a hypothetical veteran possessing the subject veteran's skills and experience. It is necessary to consider the kind of work for which employers currently employ people.

It is not relevant to have regard to the fact that the labour market might be depressed and the veteran might have difficulty in actually obtaining a job. It is appropriate to consider if that kind of work is rare in the workforce generally. One reason why the general state of the labour market cannot be taken into account is that an incapacity to undertake remunerative work cannot be said to be permanent (or caused by incapacity from accepted disabilities) if it is dependent on economic fluctuations. The kind of work must be work that is capable of attracting remuneration.

The 'kind of work' is to be assessed by reference to the nature of the tasks and duties that would be performed, not by reference to any specific job or employer.

A veteran may cease a particular job because of incapacity from a war caused injury or disease alone. The veteran may well believe, at that time, that he or she is able to do other work and satisfies a decision-maker that he or she has been genuine in attempts to get back into the workforce. At this point, other factors may also be affecting his or her capacity to obtain work, such as age and time out of the work force.

In circumstances where the genuinely seeking work requirement is satisfied, the veteran may be taken to have met 'the substantial cause' test if his or her accepted disabilities continue to be the substantial reason, that is the operative factor, more than any other single or collective reason(s) for being unable to rejoin the workforce.

In this example, matters such as time out of the workforce, age, changes in skill requirements, the incapacity from other conditions and similar factors may not be as important as they are for someone who did not seek further employment or who is over 65, provided that the other factor(s) is not the 'operative cause' as explained in the guidelines.

The veteran leaves the workforce due to a condition that a number of years later is accepted as war caused. If the veteran had applied to have the condition accepted at the time he or she left the workforce, the veteran would have satisfied the alone test in s. 24 (1)(c). If, now, the veteran is still under 65 and the accepted disability still continues to be 'the substantial cause' (see example 1) preventing him or her from engaging in remunerative work, the veteran may satisfy s. 24 (2)(b).

The veteran leaves his or her last job for a reason other than an accepted disability. The veteran genuinely and realistically seeks employment. If the effects of an accepted disability then intervenes to prevent the veteran from obtaining employment and there are no other factors that make a real or operative contribution to the veteran's ability to obtain remunerative employment, the veteran would satisfy s. 24 (1)(c) through s. 24 (2)(b). If the other factors were evident, but the accepted disability continues to be 'the substantial cause' (see example 1) preventing the veteran from engaging in remunerative work, the veteran would satisfy s. 24 (2)(b).