Temporary payment at the special rate
Section 25 provides for the temporary payment of pension at the special rate in certain circumstances. The veteran must be temporarily incapacitated to such an extent that, if the veteran were so incapacitated permanently, he or she would be a veteran to whom section 24 applied. Therefore, all of the tests within section 24 must be met except that instead of requiring that the incapacity be permanent (paragraph 24(1)(b)), it need only be temporary. Section 25 provides:
|
Section 25 25. (1) Where the Commission is satisfied that: (a) a veteran is temporarily incapacitated from war-caused injury or war-caused disease, or both; and (b) if the veteran were so incapacitated permanently, the veteran would be a veteran to whom section 24 applies; the Commission shall determine the period during which, in its opinion, that incapacity is likely to continue and this section applies to the veteran in respect of that period. (2) Where this section applies to a veteran in respect of a period, the rate at which pension is payable to the veteran in respect of that period is the rate specified in subsection 24(4). (3) The Commission may, under this section: (a) determine a period that commenced before the date on which the determination is made; and (b) determine a period in respect of a veteran that commenced or commences upon the expiration of a period previously determined by the Commission under subsection (1) in respect of the veteran.
|
Subsection 25(1) requires the Commission to determine a period during which the relevant incapacity is likely to continue. This means that the Commission cannot merely fix a commencement date for payment of special rate, but must fix an end date. Paragraph 25(3)(b) provides that the Commission can determine a further period that extends beyond an end date that has previously been fixed.
While the section does not expressly provide that the Commission set a reversion rate of pension upon the expiration of the temporary special rate period, it is implicit in its powers in subsection 19(5)(b) and that the period must come to an end that the Commission should fix such a rate based on what evidence it has at the time of its decision as to the likely degree of incapacity and the rate of pension that is likely to be applicable at that time.
Clearly, the preferable course of action is to arrange for the veteran to be re-assessed close to the end of the period fixed under subsection 25(1), and a new rate of pension determined or the temporary period extended as envisioned by paragraph 25(3)(b).
There have been very few cases on section 25 in the Tribunal and none in the Federal Court. However, similar legislation exists within the Social Security context, and it is submitted that manner in which the words "temporary" and "permanent" have been interpreted by the Tribunal and Court in that context is equally applicable to sections 24 and 25.
The words "temporary" and "permanent" take their meaning from the context in which they appear. It is clear from the context of sections 24 and 25 that permanent means that the relevant incapacity will continue for an indefinite period and that temporary means that the incapacity will continue for a limited period that may be reasonably estimated.
In
Re Tiknaz and Director-General of Social Security, the Tribunal (President Davies J, Senior Member Ballard and Member Dr Garlick) said:"In the context of ss.23 and 24 of the Social Services Act 1947, the word 'permanent' does not refer to an incurable condition but rather to one that is static or constant, one that will not persist only for a temporary period, one that will persist at least for an indefinite time in the future. A person who is temporarily incapacitated is entitled to a Sickness Benefit. He is entitled to an Invalid Pension if he is permanently incapacitated. In the context, the word 'permanent' does not refer to a condition which will necessarily continue for the remainder of the person's life. It refers to a condition which is established and continuing, a condition which is not temporary or transitory. See Henriksen v Grafton Hotel Ltd. [1942] 2 KB 184 at 196, Applegate v Federal Commissioner of Taxation, 18 ALR 459 at 463, the remarks of Mr A N Hall and Dr M Glick in Re Panke and Director-General of Social Services (delivered 23 July 1981), paragraph 50, and the remarks of Mr E Smith, Dr M Glick and Mr W B Tickle in Re Bradley and Director-General of Social Services (delivered 19 August 1981), paragraphs 37 and 38."
The Full Federal Court, in
McDonald v. Director-General of Social Security, agreed with this passage from Re Tiknaz. Woodward J said:"In my view the true test of a permanent, as distinct from temporary, incapacity is whether in the light of the available evidence, it is more likely than not that the incapacity will persist in the foreseeable future. (Cf. Re Tiknaz and Director-General of Social Services (1981) 4 ALN N44.)
"This test involves two questions. The first is whether it is more likely than not that the disability will terminate (or fall below 85% in the sense referred to above) at some time in the future. Even if the answer to this question is 'Yes', I think it would be inaccurate in the context of employment to describe as 'temporary' a condition which was likely to last for a number of years. Hence the two elements of degree of likelihood of improvement and time-span for that improvement, should be weighed together in determining what is permanent and what is temporary. The greater the likelihood of substantial improvement and the earlier that it is likely to occur, the more accurate will be a 'temporary' label. The longer the period and the less probable the improvement, the more appropriate will be a finding of permanent incapacity.
"I do not regard what I have just said as conflicting in any way with the passage from Re Panke and Director-General of Social Security (above), quoted by the AAT. The choice is indeed between incapacities 'likely to last indefinitely' - meaning for a long and indeterminate time but not necessarily forever - and incapacities 'likely to last only for a time' - meaning a time which is predictable and capable of being quantified, though not necessarily with any precision."
Northrop J said
"The phrase 'permanently incapacitated for work' appears in social welfare legislation which also makes provision for sickness benefits to be paid to a person 'incapacitated for work' being 'an incapacity of a temporary nature'; see s.108 of the Act. A distinction of a temporal nature is thus drawn, even though in this context, of necessity, 'permanent' must be limited in time. In some workers' compensation legislation, another type of social welfare legislation, reference is made to 'permanent' disablement. In the context of that type of legislation, the High Court has characterised the concept of "permanent" as being forever. Thus, in Wicks v. Union Steamship Company of New Zealand Ltd (1933) 50 C.L.R. 328 , the Court comprising Gavan Duffy CJ, Rich, Starke, Dixon, Evatt and McTiernan JJ at pp.338 said:
'The sub-section then excepted from the limitation cases of permanent and total disablement. The Commission was, therefore, called upon to decide whether the worker had been permanently and totally disabled, an expression which, in our opinion, means physically incapacitated from ever earning by work any part of his livelihood.'
"To some extent the absolute nature of 'forever' in relation to an incapacity for work is eased by the statement of principles enunciated in Panke's case, supra, that under the Act, 'permanent incapacity must be taken to refer to an incapacity which is likely to last indefinitely as opposed to one which is likely to last only for a time'. I agree with the opinion of Woodward J that under the Act the true test of whether incapacity for work is permanent as distinct from being of a temporary nature is whether, in the light of all the evidence and material before the Director-General, or his delegate, or the AAT, the incapacity for work is more likely than not to persist in the foreseeable future."
In
Dragijlovic v. Director-General of Social Security, the Federal Court held that a "disability which can be relieved by treatment which is reasonably available is not permanent". However, Smithers J went on to say that "where the claimant is a person who actually cannot, for fear, or religious beliefs, for example, or for some other reason of a genuinely compulsive nature, accept that treatment, the question is whether his disability is one which can, in fact, be relieved".