Apthorpe, R.H v The Repatriation Commission
[1987] FCA 121
•23 MARCH 1987
Re: ROBERT HARRY APTHORPE
And: THE REPATRIATION COMMISSION
No. NSW G81 of 1986
Repatriation
COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Wilcox J.
CATCHWORDS
Repatriation - General rate pension - Degree of incapacity - Whether Administrative Appeals Tribunal bound to have regard to Guide to Assessment of Incapacity issued by Department - Whether Tribunal entitled to consider degrees of incapacity set out in Schedule 4 of Act - Failure of Tribunal also to refer to Schedule 5.
Repatriation Act 1920 s.35, Schedules 3, 4, 5.
Re McPherson and Repatriation Commission (1985) 8 ALD 484, Wicks v. Firth (1983) 2 AC 214, Hanning v. Maitland (1970) 1 QB 580 and Inland Revenue Commissioners v. Trustees of Sir John Aird's Settlement (1982) 1 WLR 270 referred to.
HEARING
SYDNEY
#DATE 23:3:1987
Counsel for the Applicant: Mr I Khan.
Solicitors for the Applicant: Australian Legal Aid Office.
Counsel for the Respondent: Ms P Fleming QC with Mr J S Hilton.
Solicitors for the Respondent: Australian Government Solicitor.
ORDER
The application be dismissed.
The applicant pay to the respondent its costs of the application.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
The question which arises upon this appeal concerns the manner of assessing the degree of partial incapacity of a veteran claiming benefits under the Repatriation Act 1920. I emphasize the reference to that Act because the legislation which has now superceded that Act, the Veterans' Entitlements Act 1986, contains express provisions -- see ss.22 and 26-29 -- which deal with the subject matter of this case. But those provisions are not relevant to this appeal, which questions the legal correctness of a decision made by the Administrative Appeals Tribunal (Mr B J McMahon, Senior Member, and Mr S Crawshaw and Dr M Thorpe, Members) under the previous legislation.
The applicant, Robert Harry Apthorpe, served in New Guinea with the Royal Australian Air Force during the second world war. He has for many years suffered two disabilities which are related to that service: osteoarthritis of the knees and cervical spondylosis. However, as the Tribunal found, these disabilities did not prevent Mr Apthorpe obtaining and continuing in employment. For 31 years he was employed by a hardware company. He started as a design draftsman and, after a series of promotions, was chief engineer for some years before his retirement on 31 January 1983. Mr Apthorpe had suffered heart trouble for some time prior to his retirement, culminating in a coronary by-pass operation in September 1982.
On 22 October 1982 the applicant claimed an increase in his pension, that increase to reflect an increase in the extent of his incapacity from the neck and knee injuries and, as a new claim, his heart condition. On 23 March 1983 a Repatriation Board decided to increase the pension to 60% of the general rate but to reject the claim that the heart condition was war related. Mr Apthorpe appealed and, on 14 January 1985, the Veterans' Review Board increased the rate from 60% to 70%. The Board's assessment accepted only the neck and knee conditions as war related. However, Mr Apthorpe was dissatisfied with that assessment and he applied to the Administrative Appeals Tribunal for review of that assessment.
Section 35 of the Repatriation Act provided that, subject to an immaterial provision, "the rates of pension payable ... are those specified in the Schedules". Schedules 1 to 5 inclusive dealt with pension rates. Schedule 1 set out inter alia a basic pension rate payable on total incapacity, with provision for additional payments in certain circumstances. These included (cl.6) inability to earn a living, in which case an additional payment was to be made. That higher rate is often referred to as "the intermediate rate". Schedule 2 contained provisions relating to the Special Rate (or TPI) pension. Schedule 3 dealt with pensions payable on death (Table A), total incapacity (Table B) and partial incapacity (Table C). The terms of Table C are important in the present case and should be set out:
"Rate of Pension Payable -- Such rate, being less than the rate or the maximum rate, as the case may be, prescribed by Table B of this Schedule, as is assessed, having regard to the nature and probable duration of the incapacity, or in accordance with Schedules 4 and 5 in the cases to which those Schedules apply."
Schedules 4 and 5 dealt with payments in respect of incapacity occasioned by certain specified disabilities. Schedule 4 opened with the following words:
"The rate of pension payable to a member of the Forces who is incapacitated by reason of a disability specified in the first column of this Schedule is a rate equal to such percentage of the General Rate of pension to which the member would be entitled under Schedule 3 if he were totally incapacitated as is set out in the second column of this Schedule opposite to the description of the disability."
There followed a table containing a list of disabilities with a figure alongside each item specifying the percentage of the general rate to be assessed as applying to an applicant suffering that disability.
Schedule 5 provided a specified fortnightly payment, additional to any entitlement under Schedule 4, to a claimant who suffers one of a list of disabilities contained within the Schedule. That list contained some, but not all, of the items in Schedule 4. Schedule 5 had no application to recipients of Special Rate pensions.
Before the Tribunal three alternative cases were put on behalf of the applicant. The primary case was that Mr Apthorpe was entitled to a Special Rate pension under Schedule 2 of the Repatriation Act. The second case was that, if Schedule 2 was inapplicable because of his capacity to undertake part-time work, Mr Apthorpe was entitled to the intermediate rate pension. Finally, it was claimed that, if neither of those rates was applicable, the assessment of 70% made by the Veterans' Review Board understated the degree of disability. The applicant contended for 100% of the general rate.
The Administrative Appeals Tribunal considered, but rejected, each of the first two claims. No challenge was made in this Court to the rejection of the Special rate claim. The Notice of Appeal to this Court did call in question the Tribunal's rejection of the intermediate claim but, at the hearing, that matter was abandoned; apparently as a result of the intervening decisions, given on 17 November 1986 and not yet reported, of a Full Court in Banovich v. Repatriation Commission, Delkou v. Repatriation Commission and Lucas v. Repatriation Commission.
The Tribunal also rejected the claim to a general pension at a rate greater than 70%. Its decision to take that course is the only matter under present challenge and, of course, in that regard the applicant is limited to an appeal upon a point of law: see s.44 of the Administrative Appeals Tribunal Act 1975.
In its reasons for decision the Tribunal dealt at some length with the relationship between Mr Apthorpe's decision to retire and his neck and knee disabilities; it being by then common ground that the heart condition was not war related. The Tribunal concluded that the retirement was not caused by the war related disabilities alone. It then turned to a consideration of the appropriate percentage of the general rate.
The Tribunal noted that the Veterans' Review Board had sought assistance, in making its assessment, from a document, entitled "Guide to Assessment of Incapacity", which was apparently used by Departmental Medical Officers in assessing entitlements to general rate pensions. A copy of this document is reproduced in the Appeal Papers in this Court. It is dated February 1975; although there appear to be some later amendments. The document states (para.3) that the guidelines and the formulary set out in the document have been drawn up to assist Departmental Medical Officers when assessing incapacity, inter alia, after applications for the grant of a pension or for an increase in a pension rate. Paragraph 8 contains a table setting out what are called "basic gradations for assessing incapacity", ranged in percentages stated as multiples of ten, that is 10%, 20%, etc up to 100%. Guidance is given, both from the descriptions in the table itself and from other comments in the document, as to the type of disability which is thought likely to attract an assessment at a particular percentage.
The Tribunal rejected the use of the Guide. It applied a passage from an earlier decision of the Tribunal -- constituted on that occasion by the President, Davies J. -- in Re McPherson and Repatriation Commission (1985) 8 ALD 484. In that decision Davies J. referred, at p 490, to the Guide but he expressed the opinion that "better guidance is to be gained from the provisions of the Schedules, including Sch.4 and para.6 of Sch.1". At the following page his Honour added:
"In my opinion, all the Schedules are guides to the extent of incapacity which parliament has in mind for the general rate. A diminishment in capacity to earn is given particular significance in paras.3 and 6 of Sch.1 and the provisions of Sch.2 give special emphasis to it. Physical disability is given particular emphasis by the provisions of Sch.4 and also by Sch.5 though the latter Schedule has no reference to the present case. From all the Schedules, an impression, albeit an imprecise one, can be gained as to what parliament has in mind by 'total incapacity'."
In the present case the Tribunal quoted this passage. It noted that it was open to it to take into account the evidence which it had received regarding the non-employment aspects of the applicant's disabilities. It went on:
"However, the principal matters that we should take into account for comparison purposes, are those disabilities listed in Schedule 4, which illustrate the rates of percentage of the general rate which Parliament had in mind. Doing the best we can, we must try to compare or contrast the disabilities that the applicant has, with for example the loss of two or more limbs, the loss of both eyes, the loss of one eye together with the loss of a leg, foot, hand or arm, the loss of both arms, the loss of both legs and so on. These are the types of disabilities apparently intended by Parliament to qualify for a pension at 100% of the general rate.
Referring to similar considerations, the Tribunal in Re McPherson noted that the loss of an arm or hand is equated with the rendering of such parts of the body permanently and wholly useless. Are the applicant's disabilities as great as these? It is clear to us that the types of disabilities suffered by the present applicant are nowhere near as serious as the types described in Schedule 4 that attract 100% of the general rate. Comparing the present disabilities insofar as they affect all aspects of the applicant's life with those to which we have referred, we consider that the present assessment rate of 70% is a generous one and should not be increased."
Counsel for the applicant contends that, in reaching that conclusion, the Tribunal fell into legal error in three respects. First, he says, the Tribunal erred in excluding from its consideration the "Guide to Assessment of Incapacity"; secondly, it was erroneous for the Tribunal to have regard to Schedule 4 of the Act; and, finally, if Schedule 4 was to be considered, the Tribunal erred in failing also to take account of the terms of Schedule 5.
In support of the first submission counsel refers to a number of decisions of the Tribunal in which, in the course of the assessment of an applicant's disability, reference has been made to the contents of the Guide. But the fact that the Tribunal has, from time to time, referred to the Guide in making its assessment does not help to resolve the question whether it erred in rejecting its assistance in the present case. The issue is whether the Tribunal was bound, as a matter of law, to have regard to that document in its assessment of the extent of disability in this case.
Counsel draws attention to a passage in Bennion, "Statutory Interpretation". In dealing with what he calls the "informed interpretation rule" the learned author suggests that, in aid of interpretation of a statute, reference may be made to its legislative history, including post-enactment events. In connection with this category he suggests at para.253 that "official statements by the government department administering an Act, or by any other authority concerned with the Act, may be taken into account as persuasive authority on the meaning of its provisions".
Bennion cites three cases as examples of the principle he proposes: Wicks v. Firth (1983) 2 AC 214, Hanning v. Maitland (1970) 1 QB 580 and Inland Revenue Commissioners v. Trustees of Sir John Aird's Settlement (1982) 1 WLR 270. I have reservations as to whether any of these cases supports so wide a statement. But it is not necessary to pursue that matter. Bennion merely says that the courts are entitled to look at official statements in considering the proper construction of statutes. He does not say that they are bound to do so. And he confines his remarks to the task of construction. He says nothing about the use of official statements in the application of a statute to a particular case.
Nonetheless, I do not think that it would be an error of law for the Administrative Appeals Tribunal to have considered the terms of the Guide in a case where it thought that this course would assist it in assessing the degree of incapacity of a particular applicant. It is true that the Guide was not issued pursuant to any statutory authority and that, at the time of the Tribunal's decision, there was no statutory provision which required that it be taken into account in the making of an assessment. Of course, nothing in the Guide could be allowed to derogate from any relevant statutory provision but it seems to me that the Tribunal was always free, if it wished, to use the document for guidance in the difficult task of fixing a percentage appropriate to an applicant's degree of disability. That degree has to be expressed somewhere along a line between nil incapacity at one extreme and total incapacity at the other. It is almost inevitable that any assessor will consider how much worse off, or better off, a claimant might be. If the assessor thinks it useful, in that consideration, to refer to a previously formulated table, setting out different degrees of incapacity, rather than to make comparisons ad hoc, I see no error of law in so doing. Of course, the table should remain the servant, not the master. No table can anticipate the circumstances of every case. In the end, after taking into consideration such guidance as the document may furnish, the assessor must make his or her own judgment as to the appropriate percentage.
However, I do not read the Tribunal's reasons as denying its entitlement to take the Guide into account. The Tribunal merely said that "the principal matters" that it should take into account for comparison purposes are the disabilities listed in Schedule 4; and it then proceeded to compare the applicant's disabilities with those items. The Tribunal in this case did clearly adopt what was said in McPherson but Davies J. did not hold that he was precluded from considering the Guide; on the contrary, he set out the provisions of the Guide which were relevant to the case before him. He rejected reliance upon the Guide because he thought that it was of little assistance to him in the particular case. Noting that the basis upon which the Guide was prepared had not been explained and that counsel for the respondent Commission did not place a great deal of weight upon it, Davies J. expressed the view that "better guidance" was to be gained, in his case, from the provisions of the Schedules; and he proceeded to consider their terms.
Having regard to the terms of the Tribunal's decision, counsel for the present applicant has to go so far as to say that the Tribunal was, in law, bound to take into account the terms of the document. He does go so far. But, in my opinion, the submission is without substance. To so conclude would be to accord the document the same status as if it were contained, or referred to, in the legislation. This document has no legislative imprimatur. It is put out by the Department for the assistance of persons charged with the duty of making assessments under the legislation. If they find it of assistance, they are free to use it. If they do not, they are equally free to reject it.
The second submission of the applicant, that the Tribunal erred in having regard to Schedule 4 for comparitive purposes, is plainly untenable. Schedule 4 is part of the statute under which the Tribunal had to assess the applicant's degree of incapacity. It indicated the percentage of the general rate appropriate to be applied in the cases of the disabilities which it specifies. To that extent the Schedule provides a legislative assessment of disability. Had Mr Apthorpe's disabilities fallen within the Schedule, a particular specified percentage would have applied automatically and by force of the Schedule. That was not the case, as the Tribunal correctly understood. Nonetheless the list may provide assistance in other cases. It gives some guidance as to the degree of incapacity intended by the Parliament in its use of the phrase "total incapacity" in Table B of Schedule 3; which concept is picked up by Table C of that Schedule. As Davies J. pointed out in McPherson, in ordinary parlance a person is not "totally incapacitated" unless he or she is in a coma. But Schedule 4 helps to show that, in this legislation, Parliament had in mind that a lesser state of incapacity may be regarded as "total". It also helps to show the type of incapacity which it had in mind. The items specified in Schedule 4 are comparatively few. In many cases the incapacity suffered by an applicant will be so different from any of the items that the Schedule will provide no more than general guidance. On other occasions, the disability may be so close to a specified disability -- although not itself specified -- that a direct comparison may be made.
In the present case the Tribunal appreciated all this. It did not suggest that Mr Apthorpe's incapacity was closely akin to any of the items listed in the Schedule. It used the Schedule merely to gain some understanding of the type of injury regarded by the legislature as answering the description of "total incapacity". It noted the types of incapacity -- all grossly incapacitating -- which attracted the 100% general rate. It compared those disabilities to the incapacity suffered by Mr Apthorpe for the purpose of considering whether it could be said that Mr Apthorpe was more than 70% incapacitated. It was entitled to take that course.
The third point taken by the applicant is a short one: was it an error of law to have regard to Schedule 4 for comparative purposes without taking into account the benefits given by Schedule 5 to some of the persons who would be affected by Schedule 4? I do not think so. The function of Schedule 4 is to specify the percentage of incapacity which should be attributed to particular types of disability. That is the same exercise upon which the Tribunal was engaged. The Tribunal used the list in a general way, to better understand the Parliament's intention in speaking of total incapacity. I think that it could be so used without the necessity of adverting to the fact that some of the people who fall within some of the categories in Schedule 4 will also be entitled to additional benefits under Schedule 5.
I see no substance in any of the matters argued on behalf of the applicant. The appeal must be dismissed with costs.
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