Arthur and Repatriation Commission
[2000] AATA 245
•13 March 2000
DECISION AND REASONS FOR DECISION [2000] AATA 245
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1999/221
VETERANS' APPEALS DIVISION )
Re JOSEPH ARTHUR
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member M D Allen
Date13 March 2000
PlaceCoffs Harbour
ADMINISTRATIVE APPEALS TRIBUNAL ) No N1999/221
)
GENERAL ADMINISTRATIVE DIVISION )
Re JOSEPH ARTHUR
Applicant
AndREPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member M.D. Allen
Date 13 March 2000
Place Coffs Harbour
DecisionFOR the reasons given orally at the conclusion of the hearing in this matter, the decision under review is AFFIRMED.
(Sgd) M.D. ALLEN
.............................
Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS - Extreme Disablement Adjustment – consideration of lifestyle effects. Interpretation of Guide to Assessment of Veterans' Pensions.
Veterans' Entitlements Act 1986 - subs22(4)
REASONS FOR DECISION
Senior Member M D Allen
At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. After service upon the Applicant of a copy of the decision that was in fact made, the Applicant through his Solicitors and pursuant to Sub-section 43(2A) of the Administrative Appeals Tribunal Act 1975 requested the Tribunal to furnish to the Applicant a statement in writing of the reasons of the Tribunal for its decision.
The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.
The said transcript is annexed hereunto and furnished to the Applicant and to the Respondent as it is the reasons for the Tribunal's decision.
I certify that this and the preceding page are a true copy of the decision and reasons for decision herein of:
Senior Member M D Allen
Signed: Ivanka Mamic
....................................................................................Associate
Date of Hearing 13 March 2000
Date of Decision 13 March 2000Solicitor for Applicant Mr B Winship, Rockliffs
Advocate for Respondent Ms S Breuer, Department of Veterans' AffairsDRAFT JUDGMENT [11.55am]
ADMINISTRATIVE APPEALS TRIBUNAL
Matter No N99/221
By MR M.D. ALLEN, Senior Member
ARTHUR and REPATRIATION COMMISSION
COFFS HARBOUR, 13 MARCH 2000MR ALLEN: In this matter, the applicant, on the 13th day of February 1999, made application to review a prior determination of the Repatriation Commission, made 13 January 1998, refusing to increase his disability pension beyond 100 per cent of the general rate. That determination had been affirmed by a Veterans' Review Board on 2 December 1998. The increase sought was the extreme disablement adjustment.
It can be stated that no questions of intermediate rate or special rate pensions were raised in these proceedings, and the intermediate rate of pension is defined in section 22 of the Veterans Entitlements Act 1986 in the following terms – subsection 4 of section 22:
(a)Where a degree of incapacity of a veteran from war-caused injury or war-caused disease is determined under section 21A to be 100 per cent -
and the applicant meets that criteria;
(b) The veteran has attained the age of 65 -
which also applies in the case of Mr Arthur;
(c)The veteran has an impairment rating of at least 70 points and a lifestyle rating of at least 6 points, each determined in accordance with the approved guide to the assessment of rates of veterans' pensions; and,
(d)The veteran is not receiving a pension at a rate provided by sections 23, 24 or 25 -
and, again, that applies to this particular veteran. The question therefore before me was whether the applicant had an impairment rating of 70 per cent and a lifestyle rating of 6 points determined under the guide to the assessment of rates of veterans' pensions. The current guide is the 5th edition, and no question was taken as to its applicability. The matter was made more easy for me because the respondent very properly conceded, in its statement of facts and contentions, that the
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©Auscript 2000applicant's combined impairment rating was properly assessed at 70 points.
That was a responsible attitude to take, and, on the material before me, the concession was properly made. It is therefore a matter of having regard to the various so-called lifestyle effects, as in table 22 of the guide. I was assisted in that by the report of Dr Baz, of 12 April 1999, which became exhibit A2 in these proceedings, suffice it to say, however, that, although I can be guided by Dr Baz's report, the ultimate decision on the evidence remains with the Tribunal.
Dealing with the various headings, taking those headings into account with the evidence given this morning, the first is table 22.1 which is headed Personal Relationships. Now, the applicant it must be said, lives a very restricted life. His accepted disabilities so far as is relevant, are psychoneurosis with dyspepsia, sensorineural deafness, solar keratoses, tinnitus, ischaemic heart disease, chronic airflow limitation, malignant neoplasm of the lung, hypertension, and diabetes mellitus. Can readily appreciate that the psychoneurosis combined with deafness and tinnitus restricts one's personal relationships. As he said, "I find it difficult to relate to people", and I can understand that.
My understanding of his evidence is that he really has no social activities at all. His life is constrained to the effect the only people he has contact with are his children and grandchildren. As he said, he finds it difficult to relate to strangers, although he does have some contact with neighbours at the back of his house. I also gather that that was a contact which was instituted by the neighbours and although he does have the occasional cup of tea with them, he would find it very uncomfortable if they sought to presume further upon the particular friendship which does exist.
It strikes me that although it was suggested he may equate to 6 on the scale which reads, "Extreme difficulty in relating to anyone", and then gives examples, the applicant cannot meet that scale, but that is to say because he still has an ongoing relationship with his daughters and his grandchildren, 5 is more appropriate which reads:
Severely affected relationships, able to relate only to particular or few people, for example, spouse or children. These remaining relationships are strained and of low quality.
Well, it would appear that he sees the daughters every one or two weeks. There doesn't appear to be any – they deliver meals, do some housework for him but it doesn't appear that there is any real
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©Auscript 2000involvement of the applicant with his immediate family as opposed to what might be termed a filial responsibility in ascertaining that he is still maintaining his life. So that it seems to me 5 is the appropriate heading there. I might mention the applicant also said he does feel comfortable at the RSL Sub-branch meeting but he doesn't stay long at those meetings, perhaps half an hour, and they are once a month at the most. He doesn't attend all.
That also would lead into recreational activities. I find that the applicant is very restricted in his recreational activities. His only interest, really, if it can be termed that, outside the home is the monthly meeting of the sub-branch. He does not concern himself with the activities of the services club. He undertakes none of the activities they provide, and as I have said earlier, he stays perhaps for half an hour after the sub-branch meeting and that's it until the next month. There are no other activities. What he does do – spends his day very restrictedly, he has the TV on most days but as he says, that's on because he gets lonely.
There is only himself in the house plus a cat, and it is background noise, the TV. He does read the newspaper, he listens to some news, and there was some discussion of crossword puzzles, but all in all, it seems to me that under this heading, it should be 6, that is to say:
Able to engage in only a very few satisfying recreational activities, restricted to a few passive activities such as watching TV, listening to radio, reading or receiving visitors.
I note 7 is "unable to take part in any recreational activities", but it seems to me that that must be a worse case scenario and it is perhaps too much for this particular applicant to say he can't take in any recreational activities. I would also mention under this heading that he at one stage did woodwork but has now given that up as well. As he said, he has lost interest. Following that, his domestic activities. He is able to live independently, that is t rue, but he is able to live independently because his daughters assist him. They occasionally bring some meals which can be heated up.
They do the domestic cleaning. The applicant's activities restricted to around the house, as I gathered, is preparing some breakfast, preparing meals at lunch and dinner which consist of just a sandwich, that is to say, some salmon and onion on bread, some tomato, or else he might put something in the microwave. As he makes his bed, he says, once a week but otherwise all cleaning is left to his daughters. I note under the commentary on Lifestyle Effects under Domestic Activities, it is said that:
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©Auscript 2000Domestic activity refers to a veteran's ability to sustain effective routines in a domestic environment.
And as he said here, sweeping he can't do because he becomes breathless. He can't make his bed every day because bending over causes him discomfort. He does it once a week. As he said, he couldn't change a light bulb because he couldn't climb up a ladder. As far as the garden goes, it is a low maintenance garden with native plants which don't require watering. He depends on the normal rainfall to look after the garden. His neighbour quite often puts out the wheelie bin which contains rubbish. The applicant, I understood him to say, he could perhaps get the bin down to the kerb for collection but would have difficulty in bringing it back up again.
So that, all in all, he is, as I see it, able to carry out only very limited domestic activities. I note the word is "limited" not nil, and it says usually a restricted range of indoor activities. May require supervision in carrying out such activities, for example, able to do very light tidying, dusting, but unable to cook or prepare meals, has difficulty standing to set table or wash dishes, but they are examples, only. It seems to me that with the very limited domestic activities this applicant does, plus the restriction and the inability to sustain effective routines, 6 is the appropriate.
I have left mobility to the last because this is where I have the most difficulty. The applicant does drive a motor vehicle. He drives at the most 2 to 2.5 kilometres in a very narrow area in which he is familiar. He otherwise does not travel outside that area. As he stated very tellingly, he doesn't get on to the highway. By that I understand him to mean here in Coffs Harbour. He doesn't get to a stage where he has to drive on the Pacific Highway which is the major route; neither does he cross it. So as I said, he is restricted in his normal suburban area.
He does drive to his doctor's every fortnight but also he does, as I understand the evidence, drive – I don't think he said every, but one can say most days in order to collect a newspaper and whilst there, he may buy some minor domestic items, the majority of his shopping being done by his daughters. It was submitted that he drives to keep his hand in because he has no public transport and would be threatened if he didn't, and I fully understand and can appreciate this. If it were just a matter of driving to his doctor, I would regard it as an emergency and although the applicant does drive a short distance over a familiar route, it is still, under the very strict wording of the particular table, it is still an ability to be mobile. For 6, it reads:
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©Auscript 2000Severe impediments to mobility, restricted to home and immediate vicinity unless door to door transport and assistance from others provided, unable to drive a car in any circumstances
On the evidence, the applicant does not meet 6. 5 states:
Major impediments to mobility, dependent on others or mechanical devices such as wheelchairs, unable to use most forms of public transport -
And I agree he is unable to use most forms of public transport. He did have a train journey last year to see Dr Baz and it made him ill. As he said, "I don't want to travel on a train again". If he can't travel on a train I could understand him to also feel restrictions and be unable to travel on a bus. So it seems he cannot use most forms of public transport. I'd simply mention too aeroplanes no doubt, his psychoneurosis would affect him, being closed in for that. The applicant mentioned that he would feel closed in and uncomfortable, but t also reads:
Able to drive a car only in a situation of emergency and then only for a short distance.
That must be compared to 4 which is "markedly reduced mobility" and where he is restricted in the use of public transport with considerable difficulty in travelling from home to destination and assistance is needed of going to the doctor, I'd accept an emergency, but where the applicant every day or most days used a familiar route in his car, I cannot see how it can be brought within the wording, "drive a car only in a situation of emergency".
If it were possible, to take a more broad brush approach, I would do so. Indeed, if it was 4.5, I would do so, but it is not, as I read the wording of the particular tables, so it must be a 4 for mobility. On my mathematics, therefore, personal relationships a 4, mobility is 5, recreational and community activities are 6, and domestic activities are 6. That adds up to 21 which rounded out to the nearest as I find it, is 5 and therefore for the lack of one point, the applicant fails and the decision under review is affirmed.
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©Auscript 2000
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