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Paragraph 24(2)(b) (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.
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The principal effect of paragraph 24(2)(b) is to permit veterans, who are under 65 years and who would have met the special rate tests at the time that they ceased working, to retain that eligibility while their service-related incapacity remains the substantial cause of their inability to obtain remunerative work.
The usual circumstance is where a veteran ceases working because of incapacity from war-caused injury or disease alone, but still thinks that he or she might be able to do other work. The veteran does not apply for an increase in pension to the special rate but tries to get employment. However, the veteran finds that he or she is unable to do so. As time goes by, other factors, such as time out of the work force or age or the state of the labour market, may begin to impact on the veteran's capacity to obtain remunerative work. Provided that the service-related incapacity remains the substantial cause, the veteran will remain entitled to receive the special rate of pension. Thus this provision is a protection for this class of veteran.
In
Hoskins v. Repatriation Commission, it was held that, "The effect of paragraph (2)(b) of s.24 of the VE Act is to provide an extension of the meaning of the expression 'prevented from continuing to undertake remunerative work that the veteran was undertaking', which is to be found in paragraph (1)(c)."It should be noted that paragraph 24(2)(b) does not extend the meaning of both elements of paragraph 24(1)(c). That is, "the loss of salary or wages, or of earnings of his or her own account" test is not covered by paragraph 24(2)(b), but must still be met in accordance with paragraph 24(2)(a). In
Fry v. Repatriation Commission, Spender J agreed with a finding of the Tribunal in which it was said that:"even if the ameliorating provision of s.24(2)(b) is applied to s.24(1)(c), the applicant was not entitled to the special rate of pension because of the effect of s.24(2)(a)(i), which provides that a veteran shall not be taken to be suffering the loss of salary or wages if the veteran ceased to engage in remunerative work for reasons other than his incapacity from war-caused injury or disease, or both."
Paragraph 24(2)(b) requires that incapacity from war-caused disabilities be at least the substantial cause of the veteran's inability to obtain remunerative work. A prerequisite to its operation is that the veteran has been genuinely seeking to engage in remunerative work. In
Hall v. Repatriation Commission, Spender J said:"It seems to me that the question of whether a veteran has been 'genuinely seeking to engage in remunerative work', that he or she would, but for that incapacity, be continuing to so seek has to be addressed in a realistic way, having regard to the nature and extent of the incapacity. Many veterans are permanently incapacitated by war-caused injury or disease for any form of remunerative work, and the requirement that such persons should be genuinely seeking work seems to involve something of a charade. While it may be that Mr Hall was advised to pursue his attempts at seeking employment through the CES by advice which focussed on the desirability of efforts to seek remunerative work rather than on any realistic prospect that such work might be obtained, the report by the CES does not seem to cast doubt on the willingness of Mr Hall to accept work if any might be found for him."
In this statement, His Honour is not saying that genuine attempts are not necessary. Indeed, he indicates that there was evidence that Mr Hall's attempts to find work were genuine in that he had sought the assistance of the CES and was prepared to work if suitable work could be found.
In
Repatriation Commission v. Sheehy, Sackville J said that if a veteran is under the age of 65, the fact that he or she has not engaged in a particular kind of remunerative work does not necessarily prevent that veteran from satisfying paragraph 24(1)(c). He said that this is because paragraph 24(2)(b) specifies three criteria applicable to a veteran under the age of 65 that do not apply to veterans 65 years or over. They are:"(i) that the veteran has been genuinely seeking to engage in remunerative work;
(ii) that the veteran, but for the incapacity, would be continuing to seek to engage in remunerative work; and
(iii) that the incapacity is the 'substantial cause' of the veteran's inability to obtain remunerative work in which to engage."
In
Repatriation Commission v. Sheehy, Sackville J also indicated that while a short period of employment might not constitute "remunerative work" for a veteran over the age of 65 years, this might not be the case for a veteran under the age of 65 because of the effect of paragraph 24(2)(b).In
Fox, A. v. Repatriation Commission, Kiefel J explained what was meant by "the substantial cause". He said:"The words 'the substantial cause' require that, if the incapacity is not of itself productive of the inability to obtain work, it is nevertheless the operative factor which, more than any other, explains it. That something might be 'a substantial cause' has regard to the situation where there may be a number of factors operating which are of sufficient causal significance to qualify as 'substantial' (the phrase which was contained in the legislation dealt with in University of Tasmania v. Cane (1994) 4 Tas R 156, 163, to which I was referred in argument). The definite article in s.24(2) of the 1986 Act (compare Repatriation Act 1920, Schedule 2, as amended in 1985), requires a stronger and more direct causal connexion between the incapacity and the inability to obtain remunerative work."
The equivalent provision in the Repatriation Act 1985 merely required "a substantial cause". The change from the indefinite article ("a") to the definite article ("the") indicates a deliberate change in legislative policy.