The following case has been forwarded by the Acting Commissioner of Pensions to me for advice:

There is no doubt as to the permanency of the claimant's disease but the Commonwealth medical referee certifies that at present claimant is only partially incapacitated. I suggest that we refer the papers to the Attorney-General with request that he will kindly advise whether the Commissioner would be justified in granting a pension in the following case:-A claimant suffers from an infectious disease which, from the medical point of view, only partially incapacitates him for work, but the claimant is unable to obtain work partly because he is infirm and partly because the repellent nature of his disease causes possible employers to look upon him with disfavour.

Section 20 of the Invalid and Old-age Pensions Act 1908-1909 is as follows:

20. Subject to this Act, every person above the age of sixteen years who is permanently incapacitated for work, by reason of an accident or by reason of his being an invalid, and who is not receiving an old-age pension, shall, whilst in Australia, be qualified to receive an invalid pension.

Under this section a man, to get a pension must be permanently incapacitated for work by reason of accident or by reason of his being an invalid.

The Act should, I think, be construed with regard to the practical realities of life.

Thus, it may happen that one man may, by reason of being an invalid, be incapable of doing any work, while another may, also by reason of disease, be incapable of getting work, although he may be capable of doing some work if he could get it. The position of both men is precisely the same and arises from the same cause.

Consequently, there is no reason why one should be preferred to the other. The first man is clearly eligible, and I think the second is also.

The question in each case appears to me to be a question of fact for the Commissioner to decide. If he is satisfied that the claimant is an invalid and that his being an invalid prevents him from either doing work or getting work, and that the incapacity is permanent, he can grant the claimant a pension.

I am of opinion therefore that the question contained in the case should be answered in the affirmative.

[Vol. 8, p. 478]