Bird and Repatriation Commission (Veterans' entitlements)

[2023] AATA 2327

Bird and Repatriation Commission (Veterans' entitlements) [2023] AATA 2327 (3 August 2023)

Division:VETERANS' APPEALS DIVISION

File Number:          2022/10329

Re:Mr Brian Francis Bird

APPLICANT

AndRepatriation Commission

RESPONDENT

DECISION

Tribunal:Deputy President J Sosso

Date:3 August 2023

Place:Brisbane

The decision under review is affirmed.

................[SGD]................

Deputy President J Sosso

Catchwords

VETERANS’ ENTITLEMENTS – Claim for travel expenses of attendant – was the veteran accompanied by an attendant? – what is the veteran’s entitlement for reimbursement of the attendant’s travel expenses? – decision under review affirmed

Legislation

Veterans’ Entitlements Act 1986 (Cth)

Cases

Bird and Repatriation Commission (2020) 169 ALD 440; [2020] AATA 796

Secondary Materials

Veterans’ Entitlements Regulations 1986 (Cth)

REASONS FOR DECISION

Deputy President J Sosso

3 August 2023

1. On 13 September 2022 Mr Brian Bird (the veteran) lodged a claim for reimbursement of travel expenses relating to his attending Brisbane for medical treatment from

   
   

   23 August 2022 to 12 September 2022.

2. The veteran and his daughter, Mrs Codd, travelled by aeroplane and taxi from the veteran’s home in Rockhampton to the Wesley Hospital, Brisbane, on 23 August 2022. The veteran was discharged from the Wesley Hospital on 12 September 2022, and a return flight to Rockhampton was organised by the Department of Veterans’ Affairs (DVA) – Exhibit 2 Key Facts, para 1.

3. On 13 September 2022 the veteran submitted a claim for 20 nights of commercial accommodation for Mrs Codd at the Wesley Rotary Lodge, where she stayed while the veteran received medical attention. The claim was for $2,500, namely 20 days at $125 per day – Exhibit 1 T11A p. 43.

4. In his reimbursement claim, the veteran sought – Exhibit 1 T11 pp. 41-46:

   (a)$2,500 for Mrs Codd’s commercial accommodation as he had already paid the Wesley Rotary Lodge; and

   (b)$225.28 for taxi fares from the Wesley Hospital to Brisbane Airport and from Rockhampton Airport to his home.

5. On 26 September 2022 an officer of the DVA accepted the veteran’s claim but determined the amount to be reimbursed was $938.55 – Exhibit 1 T14 pp. 47-48.

6. Apart from two $65.20 meal payments, the officer determined that the veteran would be paid $808.15 as a contributing allowance for the veteran’s attendant’s accommodation while he was hospitalised – Exhibit 1 T14 p. 47.

7. On 19 October 2022, the veteran lodged a Request for Review in respect of the officer’s decision – Exhibit 1 T15 p. 49-51. Prior to lodging a formal Application for internal review, the veteran, on 27 September 2022 sent the following email to the DVA –

   
   

   Exhibit 1 T15 p. 51:

   “On 11 Jun 2019 I request a review of the amount offered for claim QLD 2019-024958. On 22 Jul 2019 a decision was made not to alter the amount payed [sic] for this claim. I was unhappy with this decision and therefore exercised my ‘Right of Review’ and submitted a request to the Australian Appeals Tribunal (AAT) on 26 Aug 2019 for them to make a determination in this dispute.

   On 16 Apr 2020 the AAT made a ‘Determination’ in the matter and found ‘that the Applicant is entitled to be paid such travelling expenses for Mrs Codd, in connection with that travel, as a prescribed in accordance with s 110 of the Act: 1. airfare Rockhampton to Brisbane $342.38; 2. Hughes car Brisbane Airport to Toowong $88.66; 3. accommodation and meals 36 nights at $92.80 per night $3,340.80 – sub-total $3,296.97; less amount received by claim QLD 2019 – 024958 $474.77; amount outstanding total $3,296.97.’…

   The circumstances for claims QLD 2019-024958 and QLD 2022-033835 are the same in nature…ie

   1.Attendant accompanied veteran from Rockhampton to Brisbane.

   2.Veteran was admitted to hospital.

   3.Attendant remained in Commercial accommodation whilst the veteran was in hospital.

   4.On discharge from the hospital, the attendant accompanied the veteran from Brisbane to Rockhampton.”

8. The Reviewable Decision was made on 15 December 2022 – Exhibit 1 T18 pp. 59-60.

9. The decision of 26 September 2022 was affirmed. The officer making the Reviewable Decision made the following finding – Exhibit 1 T18 p. 59:

   “Under the Veterans’ Entitlements Regulations 1986 (VER), Regulation 9 subregulation (18) states If an attendant accompanies a veteran to a hospital or other institution to which the veteran is admitted, and the attendant stays in accommodation while the veteran or dependant is in the hospital or other institution, the attendant is entitled to payment of travelling expenses, in addition to the expenses payable for the journeys to and from the hospital or other institution with the veteran or dependant, equal to the lesser of:

   (a)  the travelling expenses that would have been payable under subregulation (16), excluding any amounts for accommodation and meals, if the attendant had returned home and returned to the hospital or other institution using a private motor vehicle.”

10. The Respondent in these proceedings is the Repatriation Commission (the Commission).

    ISSUES

11. In theory there are two issues to be determined by the Tribunal:

    (a)

    was the veteran accompanied by an attendant when travelling to Brisbane for treatment as an inpatient at the Wesley Hospital from 23 August 2022 until

    
    

    12 September 2022?; and

    (b)if the answer to (a) is yes, what is the veteran’s entitlement for reimbursement of the attendant’s costs for accommodation during that period?

12. It is not contested that Mrs Codd accompanied the veteran when he travelled to Brisbane and remained in Brisbane whilst he received medical treatment at the Wesley Hospital. Consequently, the only issue to be determined is the quantum of the veteran’s entitlement for reimbursement.

    LEGISLATIVE OVERVIEW

    
    
    

13. Part 6 of the Veterans’ Entitlements Act 1986 (Cth) (the Act) provides for the payment of allowance and other benefits. In this matter the relevant provision is s 110 which establishes the entitlement for payment of travelling expenses.

14. The overall principle governing this entitlement is explained in s 110(1):

    (1)  “Where a veteran, or a dependant of a deceased veteran, travels, with the approval of the Commission, for the purpose of

    (a)  obtaining treatment;

    (b)  restoration of his or her health; or

    (c)   being fitted with surgical aids or appliances or artificial replacements;

    the veteran, or the dependant, as the case may be, is, subject to this section and to such conditions as are prescribed, entitled to be paid such travelling expenses, in connection with that travel, as are prescribed.”

15. Subsection 110(2) provides for the payment of the travelling expenses of a person accompanying a veteran as his or her attendant:

    (2)  “Subject to such conditions as are prescribed, where:

    (a)  a veteran, or a dependant of a deceased veteran, travels, with the approval of the Commission, as described in subsection (1); and

    (b)  the Commission authorises a person to accompany the veteran or dependant as his or her attendant;

    the attendant is, subject to this section, entitled to be paid such travelling expenses, in connection with that travel, as are prescribed.”

16. The rates of payment and conditions of eligibility are prescribed in the Veterans’ Entitlements Regulations 1986 (Cth) (the Regulations).

17. Regulation (“r”) 9 of the Regulations sets out the eligibility criteria and rates for travelling expenses.

18. The composition of travel expenses is prescribed by r 9(2) as follows:

    (2)  “Subject to this regulation, and regulations 9AD and 9AE, travelling expense comprise the amount required to reimburse in whole or part expenditure on:

    (a)  transport; or

    (b)  accommodation; or

    (c)   meals;

    necessarily incurred by or on behalf of an entitled person in connection with travel mention in section 110 … of the Act.”

19. As will be seen, the term “travelling expenses” is given a broad interpretation in the Regulations to include not just the physical travel to and from particular locations, but also accommodation and meals for the persons travelling.

20. Before proceeding to the terms and rates prescribed in the Regulations for travelling expenses, attention needs to be given to the definition given to key terms which are contained in r 9(1).

21. The term “attendant” is defined as follows:

    “attendant means:

    (a)  a person who is authorised by the Commission under section 110 of the Act to accompany the veteran or a dependant of a deceased veteran as his or her attendant; or

    (b)  a person who accompanies a person mentioned in subsection 132(1), (3), (5) or (7) of the Act; or

    (c)   if the Commission is of the view that it is reasonable for an applicant under section 170B, 196ZO or 196ZQ of the Act to be accompanied by an attendant – a person who accompanies the applicant.”

    [Emphasis in original]

22. The term “commercial accommodation” is defined as follows:

    “commercial accommodation means accommodation provided by a commercial establishment such as a hotel or motel.”

    [Emphasis in original]

23. Accommodation and meals are dealt with in r 9(12), which provides that subject to subregulations (13), (15) and (18), the amount of travelling expenses payable to an entitled person for each night’s accommodation and meals during travel is, relevantly, for commercial accommodation in a capital city, $130.80 each night – r 9(12)(b).

24. Although the figure of $130.80 is set out in the version of the Regulations provided to the Tribunal, which is Compilation No. 17,  registered on 5 January 2018, that figure that does not reflect the current rate. The Tribunal determined that the last Compilation registered is Compilation No. 17.

25. Sections 9AA and 9AB of the Regulations provide for rates prescribed by r 9(11), (12), (13) or (15) to be increased by reference to the All Groups Consumer Price Index.

26. The Tribunal was advised by the Commission that the relevant rate in r 9(12)(b) for this matter as at the date of the Hearing is $191.70 – Exhibit 2 para 9. The Tribunal accepts the accuracy of this figure.

27. It would be desirable, however, having regard to the wide difference between the stated rate in the last Compilation of the Regulations and the current rate, for the Compilation to be revised on an annual basis so that veterans and their dependants are able to ascertain what their potential entitlements are with a degree of accuracy.

28. Regulation 9 has specific provisions dealing with the entitlements of attendants.

29. Subregulation 9(16) relevantly provides that if an attendant accompanies a veteran to a hospital, the attendant is entitled to payment of travelling expenses in accordance with

    
    

    r 9(17), in addition to the expenses payable for the journeys to and from the hospital with the veteran:

    (a)  “to return to his or her residence at the time of the admission; and

    (b)  to return to the hospital when the veteran is discharged.”

30. The travelling expenses payable to an attendant under r 9(16) are, pursuant to r 9(17):

    (a)based on the same mode of transport as was used to accompany the veteran; and

    (b)include any applicable amounts for accommodation and meals.

31. Subregulation 9(18) provides, relevantly to the facts of this matter, if an attendant accompanies a veteran to a hospital to which the veteran is admitted, and the attendant stays in commercial accommodation while the veteran is in the hospital, the attendant is entitled to payment of travelling expenses, in addition to the expenses payable for the journeys to and from the hospital with the veteran equal to the lesser of:

    (a)the travelling expenses that would have been payable under r 9(16), excluding any amounts for accommodation and meals, if the attendant had returned home and returned to the hospital using a private motor vehicle; and

    (b)the travelling expenses payable under r 9(12) for the period from the admission of the veteran until his discharge.

    THE HEARING

32. A Hearing was convened in Brisbane on 10 July 2023.

33. Mr P Crethary of HWL Ebsworth Lawyers appeared in person for the Commission. The veteran was self-represented and appeared remotely via Microsoft Teams.

34. No witnesses were called by either party.

    CONSIDERATION

35. The Commission accepts – Exhibit 2 paras 10-11:

    (a)Mrs Codd accompanied the veteran as his attendant while travelling to Brisbane for treatment as an inpatient from 23 August 2022 to 12 September 2022;

    (b)Mrs Codd was authorised to do so; and

    (c)having regard to the distance travelled, the flight and transportation to the airport was the most appropriate form of transport reasonably available for Mrs Codd.

36. The Commission correctly points out that Mrs Codd’s reasonable travelling expenses are payable for accompanying the veteran to the hospital for the round trips on admission and discharge of the veteran pursuant to r 9(16) – Exhibit 2 para 14.

37. However, the key contention of the Commission is that if an attendant decides to stay in commercial accommodation whilst a veteran is an inpatient in a hospital, that attendant is entitled to reimbursement based on the accommodation allowance, provided the costs of the commercial accommodation does not exceed the amount it would have cost to return home in the interim and then return to accompany the veteran home on his or her discharge from the hospital – Exhibit 2 para 14.

38. As the Commission correctly contends, this entails a comparative analysis to determine which of the two options provided for pursuant to r 9(18)(a) or (b) is the cheaper. It is the lesser of the two options which is payable to the veteran on behalf of the attendant.

39. In this matter, having undertaken the comparative analysis mandated by r 9(18), the Commission contends that the lesser of the two options was Mrs Codd accompanying the veteran from Rockhampton to Brisbane and then returning to Rockhampton, and subsequently returning to Brisbane on the veteran’s discharge from hospital and accompanying him home to Rockhampton. This was calculated to entail an entitlement of $808.15 – Exhibit 2 para 15.

40. This figure is substantially less than the cumulative cost of Mrs Codd’s accommodation and meals as allowed under r 9(12) which would have amounted to $3,834.00 on the basis that she remained in commercial accommodation in Brisbane while the veteran was an inpatient – Exhibit 2 para 16.

41. The Commission contends, that as $808.15 is the lesser of the two options, it is the amount that is to be paid pursuant to r 9(18) – Exhibit 2 para 17.

42. The veteran relies on an earlier decision of the Tribunal involving a previous dispute over the costs of attendant travel involving himself and Mrs Codd, Bird and Repatriation Commission (2020) 169 ALD 440; [2020] AATA 796 (Bird).

43. In that matter the veteran travelled, on 27 March 2019, from the Hillcrest Hospital, Rockhampton, to the Wesley Hospital, Brisbane, by Royal Flying Doctor Service and ambulance. On the same day Mrs Codd travelled from central Queensland to Brisbane by commercial aircraft and from the Airport to accommodation by a Hughes car – Bird at [4] and [6]. Mrs Codd subsequently stayed in subsidised accommodation (Angus House) for 36 nights and returned to Rockhampton with the veteran when he was discharged from hospital – Bird at [13] and [18].

44. It was not disputed that Mrs Codd travelled to Brisbane on the same day as the veteran and that she was not able to fly with the veteran on the Royal Flying Doctor flight due to lack of seating – Bird at [21]. It was the submission of the Commission in Bird that Mrs Codd was not an attendant as she did not accompany the veteran to a hospital for the purposes of

    
    

    r 9(18). Senior Member Katter determined that she did accompany the veteran and made the following finding – at [21]:

    “… Mrs Codd travelled to Brisbane on the same day as the Applicant. The Applicant states, which was not contradicted, that Mrs Codd was not able to travel in the Royal Flying Doctor flight with the Applicant on 27 March 2019, ‘due to lack of seating’. Mrs Codd stayed in the same location in Brisbane for all of the days when the Applicant was at the Wesley Hospital, Brisbane. Mrs Codd was on 3 May 2020 with the Applicant from Brisbane to Rockhampton. There is no definition in the Act or the Regulations as to the word ‘accompanies’. Sub-regulation 9(18) does not use the word ‘with’. A synonym of the word ‘accompanies’ is the word ‘convoy’. It is found, in all the circumstances, that Mrs Codd ‘accompanies the veteran to a hospital’, being the Wesley Hospital, Brisbane, to which the Applicant was admitted.”

    [Citations omitted]

45. The key issue in Bird was whether Mrs Codd was in fact an attendant for the purposes of the Act, because she travelled to Brisbane separately to the veteran. As will be seen from the above finding of Senior Member Katter, he found that Mrs Codd was in fact an attendant even though she travelled to Brisbane on a different aeroplane.

46. It would appear from a reading of the rest of the judgment of Senior Member Katter that a comparative analysis pursuant to r 9(18) was not undertaken. It is not clear to the Tribunal why this omission occurred, but it highlights why the Commission’s submission that Bird is distinguishable is correct – Exhibit 2 paras 23-24.

47. The Tribunal has the benefit of a submission from the veteran – Exhibit 4. In that submission, the veteran relies on the findings of Senior Member Katter in Bird and, understandably, expressed surprise that there were inconsistencies between his current claim and that before Senior Member Katter.

48. Although Mrs Codd was not called to give evidence, she prepared a short statement dated 27 May 2023 – Exhibit 5. Mrs Codd provided the following information:

    “… As Dad’s Medical Attendant I have accompanied him to Brisbane for treatment on a number of occasions. Dad does not have any immediate relatives in Brisbane that can visit him whilst he is hospitalised. Due to the distance between his home and Brisbane (some 700 km) this can, and has in the past, lead to communications [sic] problems between Medical staff, his family and himself.

    My own/Our procedure is ALWAYS the same:

    1.I accompany him by air to Brisbane,

    2.On arrival we taxi to the hospital and Dad is admitted,

    3.I check into local accommodation in which I stay for the duration of Dad’s hospitalisation,

    4.I visit Dad daily (most times twice a day),

    5.I meet most days to discuss Dad’s treatment and concerns with his Doctors and Nursing staff. This enables me to update Mum and the family members on his recuperation progress.

    6.On his discharge, we taxi to the airport and I accompany him on his return flight home.”

49. The Tribunal was also presented with two medical certificates which dealt with the veteran’s medical conditions and the role played by Mrs Codd whilst the veteran is subject to inpatient care in Brisbane.

50. The first report was prepared by Dr Richard Hanly, Orthopaedic Surgeon, practising at the Wesley Orthopaedic Sports Injury Clinic and dated 13 May 2019 – Exhibit 6. After diagnosing the veteran as suffering from chronic osteomyelitis right tibia and culture proven serratia marcescens infection, Dr Hanly opined as follows:

    “I am writing in support of Mr Baird’s [sic] application for consideration of subsidisation of his daughter’s, Mrs Sian Codd, travel and accommodation expenses for the duration of Mr Bird’s inpatient hospital stay under the conjoint care of doctors Dr Paul Bartley, Dr Mark Ray and myself. Given, the tyranny of distance and the complexity of Brian’s medical presentation, he required a lengthy inpatient stay in order to perform the reconstructive surgery to his right lower limb. Mrs Codd was able to assist in the care of her father, as well as relaying information to his family in Rockhampton. She is playing an ongoing role with his intravenous antibiotic therapy on return to Rockhampton. I would appreciate any consideration for partial or complete subsidisation of expenses for Mrs Sian Codd.”

51. The Tribunal was also provided with an undated letter from Dr Mark Ray, Vascular and Endovascular Surgeon – Exhibit 7. It would appear that this letter was prepared shortly before the veteran’s 2018 surgery. Dr Ray opined as follows:

    “Mr Brian Bird has been a patient of mine for a number of years. On 30/5/2018, I will be performing arterial surgery on Brian’s right leg. This will be done at the Wesley Hospital, after which Brian is expected to remain in hospital for five days.

    In 2014 Brian experienced complications during a routine coronary stent procedure at Greenslopes Hospital resulting in coronary arrest and subsequent emergency 3xCABG, Life Support and ICU treatment. Brian also suffers from outbreaks of Osteomyelitis which he encountered post surgery. The combination of these conditions resulted in him remaining in hospital for 28 days. Brian was unaccompanied during his hospitalisation and has no immediate family in the Brisbane area. This unexpected prolonged stay in hospital was very emotionally testing on both Brian and his family back home.

    In view of Brian’s physical and mental conditions I strongly recommend that his attendant (Daughter) be approved to remain in Brisbane for the period of his stay in hospital. Her daily visits will be of immense emotional comfort to both Brian and his family plus greatly assist his post surgery recovery.”

1. A number of matters flow from the above discussion of the Commission’s submissions on the proper interpretation of the Regulations, as well as the submissions and documentation made and provided by the veteran.

2. First, reliance cannot be placed on Bird to assist in resolution of the matters in contention in this matter. As explained previously, it is not contested that Mrs Codd was the veteran’s attendant while he was travelling from Rockhampton to Brisbane for medical treatment, and that she was authorised to do so. The question whether Mrs Codd was the veteran’s attendant on his travel from Rockhampton to Brisbane for his 2019 medical procedure was the key matter in dispute in Bird. Further, as previously discussed, it would appear that a comparative analysis as mandated by r 9(18) was not a contested matter in Bird. For all of these reasons, the factual matrix in Bird and the findings of Senior Member Katter, are distinguishable from the facts and issues in contention in this matter.

3. Second, the key issue in dispute in this matter is the amount payable to the veteran pursuant to r 9(18) for Mrs Codd’s travelling expenses. The Tribunal agrees with the Commission that a comparative analysis of costs utilising the alternative scenarios outlined in r 9(18) is required, and that scenario involving the lesser costs must be applied.

4. The Tribunal has no reason to question the relative allowance costings outlined in the Respondent’s Statement of Facts, Issues and Contentions (Exhibit 2).

5. It is abundantly clear to the Tribunal that applying a comparative analysis, the lesser of the two options is the figure of $808.15, being the cost of Mrs Codd returning to Rockhampton at the time of the veteran’s admission to the Wesley Hospital and then returning to Brisbane and accompanying the veteran home on his discharge from the Wesley Hospital.

6. There is no discretion in this matter, as the comparative analysis prescribed by r 9(18) is mandatory, and a decision-maker is required to apply arithmetic measures without reference to the personal circumstances of the veteran.

7. Third, the application of the comparative analysis in this matter, although relatively straightforward from an administrative viewpoint, brings with it certain potentially harsh outcomes. These outcomes flow from subjective matters, namely the physical and mental health of a veteran and the role that an attendant can play in assisting such a veteran during the time of his or her hospitalisation and beyond.

8. The Regulations bring with them, no doubt, a number of important and desirable policy outcomes. The Regulations provide, inter alia, for the payment of travelling allowances for attendants, and the amount of the allowance is calculated by objective criteria. This approach has the obvious benefit of providing a safety net for attendant travel, a relatively simple means for a decision-maker to calculate the amount of the allowance and a scheme whereby all veterans are treated equally.

9. However, there are two matters that are, prima facie, not adequately addressed by the regulatory scheme.

10. The first is that in some instances a veteran will not know how long they will be treated in hospital, and will require for various reasons the emotional and physical support of an attendant. Because reimbursement of travelling expenses is by its very nature an ex post facto exercise, it will be unclear on admission which of the two options prescribed by r 9(18) will be the lesser. In short, a veteran would not know whether it would be better for their attendant to return home immediately or stay. For a short hospital stay, it would be cheaper for the attendant to remain with the veteran, however the longer the stay, the likelihood is that it will be cheaper for the attendant to return home. Should a veteran suffer unforeseen complications, and an attendant has decided to remain, then it is likely that the veteran will be placed in an undesirable financial situation of having to personally subsidise his or her attendant’s accommodation and meals.

11. Second, in the event that it is clear that a veteran will be treated in hospital for a longer period, but such a veteran is dependent on an attendant’s emotional and other support to handle their hospital treatment and stay, there is no discretion vested in a decision-maker to take into account those circumstances.

12. It is clear in this matter that the veteran is a very sick man. His daughter, Mrs Codd, has provided ongoing support to him whilst he was an inpatient at the Wesley Hospital. The support and care she provided to him has, from the evidence presented to the Tribunal, been of immense help in his recovery. Without the care and support of Mrs Codd, the evidence before the Tribunal suggests that the veteran’s recovery would have been less assured and of longer duration.

13. Although it is a policy matter for the Executive Government, it would be of assistance that consideration be given to vesting in a decision-maker some discretion to allow for the incorporation of the personal circumstances of a veteran in determining the quantum of the travelling allowance payable to an attendant. Such a discretion should be permitted in advance as well as at expiration of the inpatient care, to take account of the various circumstances that can arise, some of which have been set out above. The provision of a discretion of such a nature would ensure that some of the unintended harsh outcomes that flow from a strict application of the comparative analysis in r 9(18) could be either avoided or ameliorated.

    DECISION

14. The decision under review is affirmed.

I certify that the preceding 65 (sixty-five) paragraphs are a true copy of the reasons for the decision herein of Deputy President J Sosso

.................[SGD].................

Associate

Dated: 3 August 2023

Date(s) of hearing:	10 July 2023
Applicant:	In person
Solicitors for the Respondent:	Mr Peter Crethary, HWL Ebsworth Lawyers