Bevin and Repatriation Commission
[2006] AATA 99
•7 February 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 99
ADMINISTRATIVE APPEALS TRIBUNAL )
) No T2005/52
VETERANS' APPEALS DIVISION ) Re WILLIAM STEWART BEVIN Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal The Hon R J Groom (Deputy President) Date7 February 2006
PlaceHobart
Decision The decision under review is affirmed.
[Sgd R J Groom]
Deputy President
CATCHWORDS
Veterans’ Entitlements – application for extreme disablement adjustment – assessment of lifestyle rating – effect on “personal relationships” and “recreational and community activities” – lifestyle rating assessed at 5 – applicant not eligible for extreme disablement adjustment – decision under review affirmed.
Veterans’ Entitlements Act 1986 – s22
Guide to the Assessment of Rates of Veterans’ Pension (5th Edition)
Raisbeck v Repatriation Commission (1993) 31 ALD 704
REASONS FOR DECISION
3 February 2006 The Hon R J Groom (Deputy President) 1. Mr Bevin, now aged 77 years, served as a merchant mariner during World War 2. He has an accepted war-caused disability of “chronic air flow limitation” and currently receives a disability pension at 100 per cent of the General Rate. Mr Bevin has applied for an “extreme disability adjustment” to his disability pension.
2. On 5 November 2003 a Delegate of the Repatriation Commission refused the claim on the basis that the applicant’s medical impairment was less than 70 points and his lifestyle rating was less than the required 6 points. On 8 April 2005 the Veterans’ Review Board affirmed that decision.
3. The hearing of this application was held in Hobart on 6 December 2005. Mr D Skinner appeared for the applicant and Mr M Castle for the respondent. The documents lodged pursuant to s37 of the Administrative Appeals Tribunal Act 1975 were received into evidence. Mr Bevin and his wife Mrs Patricia Margaret Bevin gave oral evidence.
4. The legislative requirements for the granting of an extreme disablement adjustment to a disability pension are set out in s22 of the Veterans’ Entitlements Act 1986 (“the Act”). That section requires that the veteran be aged 65, be in receipt of a pension at 100 percent of the General Rate, have a medical impairment of 70 points and a lifestyle rating of 6 points. The veteran must not be receiving a pension under sections 23, 24 or 25 of the Act.
5. Following a medical examination on 15 April 2004 the applicant’s medical impairment was assessed at 70 points.
6. It was uncontested at the hearing and the Tribunal is satisfied that the applicant is over the age of 65, is receiving a disability pension at 100% of the general rate and has a medical impairment of 70 points. The Tribunal is also satisfied that the applicant is not receiving a pension under ss23, 24 or 25 of the Act.
The Issue
7. The sole issue in dispute in this application is whether the applicant is able to satisfy the lifestyle rating requirement of 6 points.
8. Section 22(4)(ii)(c) of the Act requires that the lifestyle rating is to be “... determined in accordance with the approved Guide to the Assessment of Rates of Veterans’ Pensions ... (“the Guide”).
9. The Guide provides that the ”lifestyle” score is calculated by reference to four components of the veteran’s life. They are:
. personal relationships (table 22.1) . mobility (table 22.2) . recreational and community activities (table 22.3) . domestic activities (table 22.4)
10. The points arrived at for each of the four components are added and the total divided by four. The result is then rounded to the nearest whole number. A fraction of 0.5 is to be rounded upwards.
11. Both the applicant and the respondent agree with the ratings determined by the Veterans’ Review Board for the mobility and domestic activities components of “lifestyle”. Those ratings were 5 and 6 respectively. In light of that agreement and the evidence before it the Tribunal is satisfied that the ratings of 5 for mobility and 6 for domestic activities are appropriate.
12. The only remaining matters for the Tribunal to determine are the ratings for “personal relationships” and “recreation and community activities”. Mr Skinner for the applicant contends that those ratings should be 5 and 6 respectively. On the other hand Mr Castle for the respondent submits that the Veterans’ Review Board “... got it right ...” in assessing the two ratings at 4 and 5 respectively.
Personal Relationships (Table 22.1)
13. “Personal relationships” refers to the veteran’s ability to take part in and maintain customary social, sexual and interpersonal relationships.
14. To determine the effect on personal relationships, it is necessary to establish how the physical and psychological effects of the accepted condition affect the veteran’s ability to interact socially with others (see the Guide at p266).
15. The applicant’s accepted war-caused condition has resulted in extreme shortness of breath making conversation and movement including walking very difficult. His breathing difficulties make remaining in any room or confined space for any length of time extremely uncomfortable. He walks with crutches, walking sticks or a walking frame as required. It is almost impossible to speak on the phone for any length. He depends each day on the regular use of oxygen and medication. His condition causes the applicant to be moody and irritable. He has coughing spells and swallowing food is often not easy. His sex life is said to be “non-existent”. Making and maintaining relationships is clearly more difficult because of the wide range of effects on his life of his accepted condition.
16. Mr and Mrs Bevin have been married for 30 years. Mrs Bevin who is a physiotherapist, is clearly a capable and loving wife. She assists Mr Bevin in daily activities. This helps him cope with his disability. He is heavily dependent on her “... for 95 per cent ...” as he said in his evidence. It is clear the two have a strong relationship, despite the significant challenge of dealing day by day with the problems associated with the applicant’s war-caused condition.
17. Although the many effects of the war-caused condition are difficult to bear, the evidence shows that there remains genuine quality in the relationship between Mr and Mrs Bevin. This is borne out by the fact that together they have undertaken two long and no doubt arduous interstate car trips to Darwin in 2004 and Wollongong, Sydney and Canberra in March 2005. They shared the driving on those trips. Although social outings are now rare, they recently travelled by ferry to a restaurant at Peppermint Bay in Tasmania to celebrate a special occasion.
18. The applicant’s two daughters reside interstate. Mr and Mrs Bevin’s trip to Darwin was to visit a daughter. Both daughters travelled to Tasmania in the recent Christmas holiday period to visit Mr and Mrs Bevin. There is regular but brief contact with the daughters by telephone. The brevity of the telephone conversations causes him to become irritated. He believes there is a lack of appreciation by his daughters of his health problems and this causes tension. However after considering all of the evidence and despite his war-caused condition and the obvious difficulties it causes the Tribunal is satisfied that Mr Bevin essentially has reasonable relations with his daughters.
19. Mr Bevin is still able to assist with the shopping. He frequently drives with his wife to the shops and the pharmacy. He appears to have cordial relations with the shopkeepers and pharmacist. This undoubtedly requires a great deal of effort by Mr Bevin. On the interstate trips to the Northern Territory and New South Wales to visit relatives, he has met people along the way and had brief conversations with them.
20. The applicant told the Veterans’ Review Board in April 2005 that his neighbours were “great and that they came to see him two or three times per week”. However at the hearing Mr Bevin informed the Tribunal that these visits had recently become quite infrequent, but he still “gets on with a neighbour Peter”.
21. When asked how many visitors attended his house to visit him over a six month period the applicant answered “two”. Other people go to his house to visit his wife.
22. The rating accepted by the Veterans’ Review Board, namely rating 4, does require that the applicant’s war-caused condition has seriously impacted on personal relationships. It states:
“Markedly affected relationships. Most relations are unsatisfying, maintenance of usual relations with relatives, friends, neighbours and colleagues is difficult. Much less time is spent socialising than was the case formerly”.
23. Rating 4 appears to most accurately describe the applicant’s personal relationships and the very serious effect of his accepted condition on them. The Tribunal is not satisfied that rating 5 is appropriate in this application. The evidence does not establish that the applicant is only able to relate to “... particular, or few people, eg spouse or children. These remaining relationships are strained and of low quality”. The evidence indicates that, although his war-caused condition creates significant difficulties, his relationship with his wife remains of good quality. Similarly, although his war-caused condition and the tyranny of distance have had an impact on his relationship with his daughters, those relationships cannot be fairly described as being “of low quality”. Though now very limited in number and duration there are a small number of other personal contacts.
24. After carefully considering all of the evidence the Tribunal finds that the appropriate rating for personal relationships is 4.
Recreational and Community Activities (Table 22.3)
25. This rating is based on the veteran’s normal recreational and community activities and measures the limitation placed by the accepted condition on the ability to continue those activities (see the Guide at p270).
26. The applicant is now aged 77 years. Apart from his war-caused conditions he now has other health problems including prostate cancer and generalised osteoarthritis. He had bilateral knee replacements 22 and 8 years ago. The issue to be considered by the Tribunal is the effect of his war-caused condition on his ability to participate in his normal recreational and community activities.
27. Mr Bevin’s involvement in recreational and community activities is now severely limited. He was formally a very active man. The evidence establishes that he and Mrs Bevin frequently went out socially or entertained at home. Commendably, Mr Bevin was also actively involved for many years in his union’s committee of management and with other community, sporting and political organisations. He attended the theatre and movies, went fishing, attended the races, did a good deal of cooking at home and helped care for the children. He and his wife also previously attended church regularly.
28. Mr Bevin now has very limited recreational and community activities. He is not able to participate in the range of activities mentioned above. He can, of course, still drive a motor vehicle and goes out socially but only on special occasions. As has already been mentioned he has recently been on interstate trips with his wife in the family car. He appears to have a special interest in crosswords and does them on a regular basis. Mr Bevin also reads the paper, listens to the radio and watches some television. At present he pursues no other hobbies or recreational activities. It might be considered that Mr Bevin’s age, his retirement from work and his non-accepted health conditions would have significantly restricted his participation in his previous range of activities. As well, it could be argued that if Mr Bevin can undertake a long ship and car trip from Tasmania to Darwin he should be able, if he was so inclined, to still attend, for example, race meetings or church. However the Tribunal is satisfied on the evidence that his war-caused condition itself has prevented the applicant from continuing to pursue many of his former recreational and community interests.
29. After carefully considering all of the evidence and each of the ratings in Table 22.3 of the Guide the Tribunal is of the view that Table 6 most accurately describes the limitations currently placed on Mr Bevin’s recreational and community activities by his accepted war-caused condition. As far as recreation is concerned he is essentially now limited, because of his breathing difficulties, to passive activities within his home particularly listening to the radio, watching some television, reading and doing crosswords.
30. The appropriate recreational and community activities rating is therefore 6 points.
The Lifestyle Rating
31. The total points for the four components of the applicant’s lifestyle rating is 21. When divided by 4 it results in an average lifestyle rating of 5.25. This figure is rounded to the nearest whole number. The final lifestyle rating is therefore 5.
32. It follows that the applicant does not satisfy the lifestyle rating requirement as specified in s22 of the Act of 6 points and is therefore not eligible for the extreme disablement adjustment to his disability pension.
33. The applicant continues to be entitled to receive a disability pension at 100% of the General Rate.
34. The decision under review is therefore affirmed.
I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon R J Groom (Deputy President)
Signed: R Hunt (Administrative Assistant)
Date/s of Hearing 6 December 2005
Date of Decision 7 February 2006
Representative for the Applicant Mr D Skinner
Counsel for the Respondent Mr M Castle
Solicitor for the Respondent Department of Veterans’ Affairs
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