General comments
In introducing new special rate legislation in 1985, the Acting Minister for Veterans' Affairs said:
"Since 1920, there has been a special rate of disability pension payable in circumstances where, because of total and permanent incapacity resulting from war service, a veteran has been unable to resume or to continue in civil employment. 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. Determining authorities have found the application of the present legislative provisions difficult because the provisions, unchanged since 1920, contain outmoded and imprecise terms. The amendments clarify the eligibility criteria and make it clear that to qualify for a TPI pension a veteran must be eligible for the 100 per cent general rate pension. In addition, the TPI rate pension can become payable only when a veteran is totally and permanently disabled by accepted disabilities and is thereby precluded from continuing to engage in remunerative work. 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 TPI pension is not payable. It would be in only very rare cases that any veteran beyond the normal retirement age could be eligible for this pension. Special provision is made by the Bill to cover veterans who are under 65 years of age, are unemployed, and are genuinely seeking to engage in remunerative work."
For a person to be eligible for the special rate of pension, all of the criteria set out in subsection 24(1) must be met at the same time at any point in time within the "assessment period":
Ridyard v. Repatriation Commission; Servos v. Repatriation Commission; Birtles v. Repatriation Commission.the assessment period
Subsection 19(9) defines the "assessment period" as the period starting on the "application day" and ending when the claim or application is determined. The "application day" is the day on which the claim (under s.14) or the application for increase in pension (under s.15) was made. The date on which the claim or application is determined is the date on which either the Repatriation Commission, the Veterans' Review Board, or the Administrative Appeals Tribunal determines the matter before it. Thus the assessment period is of a different length, but has the same starting point, depending at which level of review the matter is being determined.
It is irrelevant that the veteran might have met the criteria before the assessment period. Unless the veteran meets the criteria at a time during the assessment period, the veteran cannot be entitled to the special rate of pension:
Banovich v. Repatriation Commission; Repatriation Commission v. Smith, M. J.. In Repatriation Commission v. Braund, Pincus J said:"It was not enough to hold that in 1975 the applicant was prevented from continuing to work because of his war-caused disabilities. The critical question, on these facts, was whether, as at 28 February 1984 [the application day], the respondent was within the description set out in s.24(1)(c) of the VE Act. He might well have retired because of war-caused incapacity in 1975, but nevertheless not have been able to show that his situation at the age of 70, nine years later, was that he was prevented from working by that incapacity alone. If the respondent's position in 1984 was that, incapacity or no, he would probably not have worked for a living, then in my opinion the Tribunal should not have held him entitled to the special rate pension."
The current section 19 was introduced into the Act in 1988. The Explanatory Memorandum to the Bill that introduced that section stated:
"30. Eligibility for pension at the intermediate or special rate under sections 23 or 24 of the Principal Act must be established as at the 'application day' - the date a claim for pension or an application for an increase in the rate of pension is made. This requirement was inserted by the Social Security and Veterans' Entitlements Amendment Act (No.2) 1987 as part of a package of measures intended to ensure, amongst other matters, that grants of intermediate and special rate pensions could not be made for limited periods.
"31. In response to the Reports of the VEA Monitoring Committee, it is now proposed to replace this framework with provision for the assessment of pension during the period from lodgement of a claim or application up to and including the date of determination by the Repatriation Commission or relevant review body. Subject to the protective provisions of section 24A of the Principal Act in relation to intermediate and special rate pensions, all eligibility factors would be taken into account in assessing the rate or rates of pension payable from time to time during the assessment period.
"32. In other words, a claimant for intermediate or special rate pension would qualify where he or she met all the eligibility criteria at some day between the date of lodgement and the date of the decision, subject only to improvement in health and the capacity to work.
...
"35. These changes to the powers and procedures of the Repatriation Commission would not alter the nature of the existing eligibility criteria for the intermediate and special rate pensions provided for in sections 23 and 24 of the Principal Act, as interpreted in the AAT and Federal Court decisions of
These amendments also effectively reversed an obiter statement in
Repatriation Commission v. Smith, M. J. that incorrectly indicated that the special rate criteria were to be assessed as at the earliest date from which pension could be paid (up to three months before the claim was made). Smith's case purported to rely on Banovich for this view, but there is nothing in Banovich that tends to support it. In the Minister's Second Reading Speech to the Bill introducing these amendments in 1988, he said:"The Federal Court took the view that the eligibility criteria must be met by a veteran on a continuing basis and that such a pension was not payable after attaining normal retirement age or indefinitely.
In order to overcome this interpretation, the Bill provides two related changes. The first will ensure that initial eligibility for the grant of T&PI or intermediate rate pension is not to be determined on a continuing basis.
"Eligibility is to be determined by reference to whether a veteran meets the requirements of section 23 or 24 on the date of lodgement of a pension claim or application.
"The amendments will prevent account being taken of alterations in the veteran's circumstances, subsequent to lodging the claim or application, which might adversely affect eligibility. This will avoid the possibility of a grant of T&PI or intermediate rate pension that is made being limited by the determining body to a specified period, up to say retirement age, as was adverted to by the Federal Court in the McGuire case."
These amendments (made after
Smith's case) clearly indicate that the special rate criteria are to be assessed as at the application day and not the earliest date from which pension could be paid. Nevertheless, subsection 20 (which permits payment of pension up to three months before the claim was made) provides, in subsection (3) that "Nothing in this section empowers the Commission to approve payment of a pension to a person from a date before the person became eligible to be granted the pension." Thus, for special rate pension to be backdated to a date within the three month period before the claim was made, the person would have to have been eligible to receive that rate of pension at that time. This means that the special rate criteria need to be met at this earlier time, but the veteran is not eligible to be granted pension at that rate unless the veteran also met all of the special rate criteria on or after the application day.incapacity from war-caused injury or disease
The criteria in section 24 relate to incapacity from war-caused injury or war-caused disease, or both. The section presupposes that a determination has already been made that an injury or disease has been war-caused. Assessment of the criteria within the section does not permit a new decision to be made in respect of whether or not an injury or disease is war-caused for the purposes only of that section. Where it is suggested that a new injury or disease is war-caused (because it is causally related to, or has been contributed to by, an already accepted war-caused injury or disease), the veteran must make a new claim in respect of that new injury or disease. It cannot be taken into account for the purposes of the section unless it has been the subject of a claim and has been determined under the Act to be war-caused: see
Owen v. Repatriation Commission; Meade v. Repatriation Commission.