Bennett and Repatraition Commission - [2000] AATA 805

DECISION AND REASONS FOR DECISION [2000] AATA 805

ADMINISTRATIVE APPEALS TRIBUNAL )

) No T99/128

VETERANS' APPEALS DIVISION          )
           Re      GEORGE ALFRED BENNETT
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr J. Handley, Senior Member

Date13 September 2000
PlaceHobart

Decision The decision under review is set aside and in substitution it is decided that the applicant is entitled to Recreational Transport Allowance at the higher rate.

...Sgd. Mr J. Handley…
Senior Member

VETERANS' ENTITLEMENTS: Recreational Transport Allowance; whether applicant has negligible powers of locomotion so as to be capable of moving with the aid of crutches or walking sticks for short distances only. Decision set aside.

Veterans Entitlements Act 1986 s104
Administrative Appeals Tribunal Act 1975 s37

Re Clifford and Repatriation Commission 1988 14ALD721

REASONS FOR DECISION

13 September 2000 Mr J. Handley, Senior Member

The applicant applies to review a decision made by the respondent on 3 February 1999, subsequently affirmed by a senior delegate on 7 May 1999 who decided to continue payment to the applicant of Recreation Transport Allowance at the lower rate.
The hearing was convened in Launceston on 29 August 2000. The documents filed by the respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975 did not contain any documents relating to the initial grant of Recreational Transport Allowance ("RTA"). Mr Bennett said that he has received RTA at the lower rate for approximately 4 years. He also currently receives extreme disablement adjustment and service pension. S104 of the Veterans Entitlements Act 1986 provides that the respondent "may grant an allowance" for differing descriptions of incapacity found at column 1 as appended to s104. Neither the applicant nor the respondent's representative were able to explain the legal basis for payment of RTA at the "lower rate" or at the "higher rate", which latter benefit was sought by the applicant by these proceedings.
The parties agreed that the "description of incapacity" as found in column 1 was:
"negligible powers of locomotion so as to be capable of moving, with the aid of crutches or walking sticks, for short distances only."
In the decision of the senior delegate dated 7 May 1999, it was decided that by reason of a departmental medical officer recording that the applicant was capable of walking 50 metres it was "clearly outside of the requirement of negligible powers of locomotion, which implies a few steps only".
Mr Bennett suffered extensive injuries, by reason of his service, during World War 2. He was shot and wounded on a number of occasions and on one occasion was forced to crash-land a plane of which he was the pilot. He suffers from functional dyspepsia, reflux and diverticulitis but significantly has had spinal surgery which was unsuccessful and which has precipitated severe pain radiating into his right leg. He walks with the assistance of two elbow supported walking sticks.
In evidence, Mr Bennett said that he attempts to be as independent as is possible. He said if he walks too far he "suffers the consequences".
He attends a complex in Launceston known as the "Roman Baths" for hydrotherapy daily and has physiotherapy once or twice per week. He takes 8 Panadeine Forte tablets daily for relief of back and leg pain. He is unable to undertake or complete any housework and is assisted by a neighbour. He has been provided with disabled motorists' stickers for his windscreen and parks in designated places. He is unable to undertake any gardening. He uses his walking sticks at home but has recently fallen and was admitted to hospital for treatment involving sutures of his face.
Mr Bennett said he played football and cricket before enlistment but by reasons of his back injuries in service he has thereafter become a spectator. He attends horse races at Mowbray weekly but remains in his motor car and is allowed to park on course where he is able to observe the racing. Similarly, he attends football at York Park each week and cricket at East or West Launceston Reserve in summer time. When he attends football or cricket he is permitted to remain seated in his car, as a spectator. Mr Bennett said he purchased a Cressida motor vehicle because of the comfort provided by the seat and the electronic controls. He said it was the "only car" which did not cause jolting.
He drives his car to the Roman Baths daily and parks in a position he estimated to be 6 metres from the door entrance. When he travels to a bank and the chemist at Kings Meadows he parks "out the front". When he attends Dr Hutchison, his GP, he said he is permitted to park at the back door and walks a distance of 7 or 8 metres to the doctor's rooms. Mr Bennett estimated that he would walk a total of 50 metres per day but not in a single journey. He said this would be made up of 3 or 4 "calls" on shops and at other places.
Mr Bennett said that he is unable to walk without his walking sticks, except at home, when he walks from the bedroom to the bathroom. In so doing, he holds rails which have been fitted to his walls, otherwise he loses balance.
In cross-examination Mr Bennett said that he would attend race meetings for between half and two-thirds of a meeting. He said he did not know whether he parked near bookmakers because he did not bet. He said he did not attend a toilet when at the races and remained at all times in his car.
Mr Bennett was aware that Dr Hutchison had recorded in a report that he was able to walk 50 metres, but said that this was wrong. Similarly, he disputed the distances alleged by Dr Brigden, the LMO, engaged by the respondent. Mr Bennett said that on the occasions he has attended Dr Brigden he was walked 8 or 9 metres from his room to a foyer, where he rested for 5 minutes, before he continued his journey to his car which was parked adjacent to the front door of the doctor's clinic. Similarly, Mr Bennett disputed the distance of 30 metres, reported by Dr Jones in a report of 22 December 1999, being the distance estimated that he had walked to his examination room. Mr Bennett said that he recalled the examination and had said to Dr Jones "you are putting me to test". He said he walked half the distance to his rooms, and then rested before he completed his journey. Mr Bennett said on occasions where he is "forced to walk a distance" he will suffer for it in the following week.
doctors evidence
A number of reports were filed with the Tribunal prior to the hearing or were contained in the documents filed by the respondent pursuant to s37. The reports were prepared by Dr Brigden, Dr Hutchison and Dr Jones. The doctors all estimated varying distances capable of being walked by the applicant, ranging from 10 metres in a report of Dr Hutchison dated 17 February 1999, to Dr Brigden estimating a distance of 50 metres, in a report of 27 January 1999. Whilst Mr Bennett acknowledged that Dr Hutchison in a report of 14 December 1998, estimated the applicant could walk 50 metres, Mr Bennett said this distance was wrong and was an incorrect estimate of the distance between where he parks his vehicle at the doctor's clinic and his consulting room.
Mr Bennett said at the hearing that he believed that he was deteriorating. In a report of 27 January 1999, whilst Dr Brigden said that the applicant "may have deteriorated", in a report of 19 March 1999, he said he had not deteriorated.
The advocate for the respondent submitted that the evidence of the applicant was more referable to his lifestyle rather than his mobility. In fact, the advocate doubted that the applicant could have qualified for 6 lifestyle points for extreme disablement adjustment. It was submitted that the evidence of the doctors and their observations should be preferred and whilst it is acknowledged that the applicant is substantially inconvenienced, he does not have "negligible powers of locomotion".
conclusion and reasons for decision
The applicant impressed me as being a witness of truth and was frank and forthright in his evidence. He produced a number of photographs to demonstrate the locations where he parks his car when he attends the doctor's surgery, his newsagent and his chemist.
Whilst these locations are strictly not relevant to an application involving "Recreation Transport Allowance" it is indicative of the measures taken by the applicant when he attends these places so as to ensure that he walks minimal distances.
I accept the evidence of the applicant that he does engage in the recreation of football, cricket and horse racing, for which he is provided with parking positions where he is able to observe these sports without having to move from his car.
Because I am satisfied as a fact that the applicant is a witness of truth, I accept the estimates of the distances that he is capable of walking – only "with the aid of crutches or walking sticks". I am satisfied having heard the applicant describe his conversations with doctors, that the estimates made by them as to the distances that he is capable of walking, have been over estimated or are incorrect.
I am satisfied that the decision under review should be set aside and in its place the applicant should be paid Recreational Transport Allowance at the higher rate.
In making this decision I am influenced by the decision of the Tribunal in Re Clifford and Repatriation Commission 1988 14ALD721 where the Tribunal recorded that the allowance was only payable with respect to engagement of a veteran in recreation, not for transport "to or from work or in relation to medical treatment".
The allowance should be paid to the applicant to permit him to pursue the recreations he currently enjoys and to assist him to afford the cost of his transport.
I agree with and adopt the conclusions recorded by the Tribunal in Re Clifford at paragraphs 24, 25 and 26 with respect to the meaning of the words "powers of locomotion" and "negligible". These paragraphs read as follows:
"(24) The phrase "powers of locomotion" appears only in this item in the column. The phrase is to be contrasted with the phrase "with regard to locomotion" which appears in both items 3 and 10. The word "locomotion" in common parlance refers to the act or power of moving from one place to another. In view of the juxtaposition of the word "powers", the phrase "powers of locomotion" appears to relate to the inherent ability of a person to move from one place to another. The ability of a person to so move, would in turn be referring to the inherent ability to move by the use of one's legs, being the usual means of locomotion.
(25) The word "negligible" in common parlance means "very little" or "may be disregarded". Therefore, the overall effect of the phrase "negligible powers of locomotion" is that the disability or injury suffered by the veteran must be such that the veteran is left with very little inherent ability to use his/her legs to move from one place to another.
(26) The remainder of the item description, "so as to be capable of moving, with the aid of crutches or walking sticks, for short distances only" appears to be descriptive of the negligible powers of locomotion. That is, the veteran's negligible powers of locomotion must be such that the veteran is capable of moving only short distances even if the veteran uses aids in the form of crutches or walking sticks. The corollary is that if the veteran is capable of walking long distances with the aid or crutches of walking sticks, then the veteran would not be regarded as having negligible powers of locomotion."'
The applicant clearly has a severe and permanent spinal injury, which causes referred right leg pain. He consumes great quantities of pain killing medication and can only walk with the assistance of elbow supported walking sticks. Whilst he is able to "move from one place to another" (refer Re Clifford), that ability is restricted by both the use of the walking sticks and by the severe physical injury that he suffers.
I am also satisfied that the distances capable of being walked by the applicant may be regarded as "negligible" because Mr Bennett is "left with very little inherent ability to use his legs to move from one place to another" (refer Re Clifford).
It follows that by reason of the distances capable of being walked by the applicant – which I accept as a fact to be truthful – the applicant satisfies the words "short distances only" as appear in the description of incapacity.
Mr Castle on behalf of the respondent said that the decision made by the senior delegate to reject the claim for RTA at the higher rate because he was capable of walking 50 metres was a policy decision and not to be found in any authority or under the legislation. For my part, I would regard that policy as being unduly harsh and would have regarded being able to walk for 50 metres as amounting to a "short distance". It is worth recording that the applicant said his doctors had recommended to him that he get "out" and not "mope" at home. The applicant by the activities he described is obviously stoic and well intentioned, despite his constant pain and restrictions.
Nonetheless, the even shorter distances capable of being walked by the applicant satisfy me that the decision under review should be set aside and the allowance as claimed should be paid.
The applicant was engaged in meritorious military service during the Second World War and has engaged in voluntary work counselling and assisting veterans' despite his severe immobility. The examination of the applicant by the respondent's advocate at the hearing was unduly aggressive. I recommend that in the future, responding to applications be approached with an increased level of fairness and humanity.

I certify that the twenty nine (29) preceding paragraphs are a true copy of the reasons for the decision herein of Mr J. Handley, Senior Member
Signed:    Linda Nemeth    ............................................
                 Secretary
Date of Hearing  29 August 2000
Date of Decision
Counsel for the Applicant        Not represented
Solicitor for the Applicant
Counsel for the Respondent    Mr Castle
Solicitor for the Respondent