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The Work History Test -
Special Rate – 24(1)(c), and 24(2)(a)
Intermediate Rate – 23(1)(c), 23(2) and 23(3)(a)
- The Work History test contains three separate components which require the delegate to ascertain whether it is the veteran's accepted conditions alone that are preventing him or her continuing to undertake remunerative work that the veteran was undertaking i.e. their normal remunerative work or another type of remunerative work in their employment history. The Economic Loss Test then requires that as a result of this prevention from continuing to undertake their remunerative work, they are losing salary wages or earnings. Attachment C contains further discussion on the terms contained in the Work History test.
- The application of the Work History test must take into consideration changes to the nature and quality of the veteran's work and restrictions such as reduced hours due to the impact of the accepted conditions. It does not require cessation of work or an actual occupation.
- The central aspect of this test is whether the sole cause of a veteran's prevention from continuing to undertake the remunerative work that they were undertaking is by reason of an accepted condition. This requires the delegate to consider all factors that may have played a part in the veteran's inability to continue their work.
- The only exception is the potential application of s 24(2)(b) for Special Rate and s 23(3)(b) for Intermediate Rate (the Ameliorating Provisions) for unemployed veterans under the age of 65 who are unable to obtain remunerative work substantially due to their accepted condition/s (see ”Prevented Test” below).
- The delegate needs to consider the medical evidence regarding the reasons for the veteran being prevented from continuing their work. If any factor other than the accepted condition(s) plays a part in preventing the veteran from continuing to undertake their normal remunerative work, then the test is not met, irrespective of whether the accepted conditions on their own would have this effect.
- For example, if the medical evidence shows that a non-accepted medical condition contributes to the veteran's inability to continue their remunerative work, the veteran does not satisfy this test. It is important to note however, that the mere presence of a non-accepted condition is not enough to mean failure of the test. The question is, does the non-accepted condition make a real contribution to the veteran's inability to continue to undertake remunerative work? Delegates needs to examine the medical evidence regarding the effects of non-accepted condition/s on the veteran's inability to continue their work and consider:
- if the non-accepted condition/s has a specific impact on the veteran's work; and
- the relative significance of the non-accepted condition/s compared to the accepted conditions.
- Other (non-medical) factors that may prevent a veteran from continuing to undertake remunerative work include age, time out of the workforce, failure to retain employment-related skills, loss of employment, retirement, or family matters. Some factors may be related to the work environment, such as:
- the state of the labour market for the type of remunerative work that the veteran was undertaking;
- the veteran's type of work is no longer available;
- the veteran's position was made redundant due to his/her employer undergoing an organisational restructure.
- For example, if a veteran relocates upon medical advice to manage the symptoms of their accepted conditions, and is prevented from continuing to undertake their work as a result, he/she may satisfy the alone test. The delegate needs to establish if the veteran moved to an area where employment opportunities were known to be restricted, and if the medical advice provided other re-location options.
- The question of the impact of these other factors needs to be assessed in the circumstances of each case.
- This test requires that the veteran must have been prevented from continuing to undertake remunerative work that they were undertaking due to the impact of the Alone Test (as outlined above). A delegate must have regard to the nature and quality of the remunerative work the veteran has undertaken and not just the actual occupation or type of work, when considering whether or not this specific test has been met. Where a veteran has not completely ceased the remunerative work they were undertaking due to their accepted conditions alone, a delegate must assess whether there has been a material change in the nature of their work.
- A material change is one sufficiently significant to influence an individual to the extent that they are restricted in the way they can perform their normal remunerative work activities. It is not intended that any changes in the remunerative work be seen as sufficient for this test.
- For example, if a veteran has had to reduce their work hours from full-time to part-time or intermittent work, or from part-time to limited irregular work or restricted duties, due to their accepted conditions alone and suffered a resultant loss of earnings, it may be considered that the veteran has been prevented from continuing to undertake the remunerative work they were undertaking, provided the delegate is satisfied that the restricted nature of the work gives it an entirely different character.
- Another element of the remunerative work that might be affected could include the veteran's duties or the range/scope of work being undertaken, the quality/quantity in their output in terms of intensity, scale/volume. This list is not intended to be exhaustive and each case must be assessed on its merits. Delegates will need to establish if the test is met based on the veteran's descriptions of their work and the medical evidence regarding the effects/impact of their accepted conditions on their remunerative work.
- For the 'prevented test', a delegate may need to consider the veteran's entire work history. It is important to recognise the distinction for claimants who are 65 years or over, where the requirement only relates to last paid work. (See Part 3 of this Guideline) This is particularly relevant for veterans who have changed employment a number of times, or those who were engaged in a range of unskilled jobs.
- Examining the veteran's work history means looking more broadly at the range of work the veteran has undertaken in order to establish a reasonable account of the veteran's remunerative work. The reference to remunerative work for each claimant will need to take account of their particular circumstances. It does not include hobbies or recreational pursuits, even though the activities may generate some income. In view of the purpose of the Special Rate and Intermediate Rate pensions, it is appropriate to consider the 'substantive' or 'substantial' remunerative work the veteran has successfully undertaken, rather than employment that was undertaken for only a short period of time, or those activities that were performed on an infrequent basis. (See also Attachment D).
- The question is, at any time in their employment history, was the veteran prevented from continuing their substantive remunerative work due to his or her accepted conditions alone, and, are they still prevented from undertaking that work? A veteran who has been prevented from undertaking their substantive remunerative work in their past due to their accepted conditions, but during the assessment period, is no longer prevented from undertaking that work due to their accepted conditions alone, does not satisfy this test.
- As previously stated, it is important to note that the veteran is not required to cease all employment in order to be considered as being prevented from continuing to undertake the remunerative work that the veteran was undertaking. A veteran may still be undertaking their normal remunerative work but on a restricted and ongoing basis.
Ameliorating Provisions (Under 65 Veterans)
- If a veteran who does not satisfy the Prevented and Alone Tests, is not currently working and is under 65 at the date of application, the delegate must examine the ameliorating provisions in s 24(2)(b) for Special Rate and s 23(3)(b) for Intermediate Rate. Sections 24(2)(b) and 23(3)(b) are intended to recognise situations where the veteran has been trying to engage in remunerative work.
- In order for s 24(2)(b) or s 23(3)(b) to be satisfied, the veteran must:
- be under 65 at the date of application; and
- have not been engaged in remunerative work; and
- have genuinely been seeking to obtain work; and
- be incapacitated from accepted conditions that are 'the substantial cause' preventing the veteran from continuing to seek to obtain work.
- Further information and examples of how these provisions should be interpreted is given in Attachment C.
Economic Loss Test
- To satisfy the Economic Loss Test, a veteran who has met all the other components within the Work History Test:
- 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 delegate must determine that the veteran being prevented from continuing to undertake their normal remunerative work (or another type of remunerative work in their work history), or from obtaining work, is causing a financial loss.
- Note that this test relates to loss of personal salary or wages, or earnings on the veteran's own account. If the case involves income derived other than as a salaried worker, the delegate must carefully examine the nature of the veteran's involvement in the enterprise providing the income and be satisfied that any loss of income of that enterprise reflects the veteran's inability to work.
- For example, in the case of income from investments, the delegate would need to be satisfied that, the veteran's work involved the active management of the portfolio resulting in direct decisions on transactions and thus in earnings, and that the accepted conditions impacted on their capacity. Any continuing ability to manage investments may also be relevant under the Work Capacity test.
- 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 Rehabilitation and Entitlements Policy Branch.
- Sections 24(2)(a)(i) and (ii) for Special Rate and 23(3)(a)(i), (ii) and (iii) for Intermediate Rate expand, for the purposes of the Economic Loss Test, 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.
- Sections 24(2)(a)(i) for Special Rate and 23(3)(a)(i) for Intermediate Rate provide that, if the veteran has 'ceased to engage' in remunerative work for reasons other than the veteran's incapacity from accepted conditions, the veteran does not meet this test.
- Sections 24(2)(a)(ii) for Special Rate and 23(3)(ii) for Intermediate Rate provide that if the veteran is 'incapacitated' or 'prevented' from engaging in remunerative work for some other reason during the assessment period, then the veteran does not meet this test.
- Section 23(3)(iii) further provides that for Intermediate Rate pension, if the veteran has been engaged in remunerative work on a part-time basis or intermittently for reasons other than his or her incapacity from accepted conditions, then the veteran does not meet this test (for example, other factors such as the effects of non-accepted conditions, or a preference to work less hours.)
- In considering the above circumstances, if a veteran is under 65 at the date of application, the delegate must also examine the ameliorating provisions in s 24(2)(b) for Special Rate or s 23(3)(b) for Intermediate Rate.