Bird and Repatriation Commission (Veterans' entitlements)

[2020] AATA 796

Bird and Repatriation Commission (Veterans' entitlements) [2020] AATA 796 (16 April 2020)

Division:VETERANS’ APPEALS DIVISION

File Number:          2019/5311

Re:Brian Bird

APPLICANT

Repatriation CommissionAnd  

RESPONDENT

DECISION

Tribunal:Senior Member Katter

Date:16 April 2020

Place:Brisbane

The decision of the Respondent dated 22 July 2019 affirming the decision made on 10 June 2019 is varied with the Applicant to receive the further sum of $3,296.97 travel allowance for the entitled person. 

........................................................................

Senior Member Katter

CATCHWORDS

VETERANS’ AFFAIRS – claim for travel expenses for attendant – decision under review varied

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)
Veterans’ Entitlements Act 1986(Cth)
Veterans’ Entitlements Regulations 1986 (Cth)

CASE

Germain v Repatriation Commission (2015) 146 ALD 452; [2015] AATA 473

REASONS FOR DECISION

Senior Member Katter

16 April 2020

APPLICATION

1. The Applicant seeks a review of the decision by the Respondent to pay specific travel expenses for particular travel of Mrs Codd[1].    

   [1]           Exhibit 8, page 2.

   INTRODUCTION

2. The Applicant served in the Royal Australian Air Force[2] from 7 December 1972[3] to 15 April 1993[4].    

   [2]           Exhibit 1, page 1.

   [3]           Exhibit 1, page 1.

   [4]           Exhibit 1, page 1.

3. The “Veteran Community Details Report” states the ‘level of incapacity assessment’ for the Applicant as “Extreme Disablement Adjustment”[5]. 

   [5]           Exhibit 1, page 1.

4. The Applicant travelled for treatment on 27 March 2019 from the Hillcrest Hospital, The Range, Rockhampton, Queensland[6], to the Wesley Hospital, Auchenflower, Queensland, by Royal Flying Doctor Service and Ambulance[7].  On 3 May 2019 the Applicant was discharged from the Wesley Hospital, Auchenflower, Queensland[8] and returned to his residence in Central Queensland, north-east of Rockhampton[9].  It is not in contention that the Respondent paid all the travel expenses of the Applicant to and from Central Queensland and Brisbane, Queensland in that regard[10]. 

   [6]           Exhibit 7, page 2, paragraph 2.1.

   [7]           Exhibit 7, page 2, paragraph 2.1.

   [8]           Exhibit 7, page 2, paragraph 2.3.

   [9]           Exhibit 1, page 1 and Exhibit 7, page 2, paragraph 2.3.

   [10]          Exhibit 7, page 2.

5. Mrs Codd is the daughter of the Applicant[11]. 

   [11]          Exhibit 8, page 1, paragraph 2 and Transcript, P-2, line 20.

6. Mrs Codd on 27 March 2019 travelled from Central Queensland to Brisbane by Virgin plane and Hughes car[12].  Mrs Codd stayed in accommodation in Brisbane[13] and returned with the Applicant to Central Queensland by Virgin plane and Hughes car on 3 May 2019[14].  The travel expenses of Mrs Codd from Brisbane to Central Queensland on 3 May 2019 were paid by the Respondent[15].   

   [12]          Exhibit 7, page 2, paragraph 2.2.

   [13]          Exhibit 7, page 2, paragraph 2.2.

   [14]          Exhibit 7, page 2, paragraph 2.2.

   [15]          Exhibit 7, page 2, paragraph 2.2.

7. On 8 June 2019 the Applicant lodged a claim as to Mrs Codd for travelling expenses[16]:

   [16]          Exhibit 1, T4, pages 35-38.

   “Claim for travel expenses …

   2.  Add trip information …
   Date:  … 27/03/2019
   Time:  … 830am
   Which health provider did you attend?
   Provider type:  … Orthopaedic surgeon
   Name:  Dr R Hanly …
   Suburb:  … Auchenflower
   State:  … QLD
   Postcode:  … 4066
   What is this trip for?  … Treatment …
   What are you claiming?
   Private vehicle:                  kms
   Public transport:  $
   Taxi:  … $88.56
   Community:  $
   Air:  … $342.38
   Parking fees:  $
   Road tolls:  $
   Did DVA arrange/pay for this travel (e.g. booked car with driver, air travel or ambulance)?  ... No
   Note:  To receive the maximum benefits travel should be to the closest practical provider.
   Did you require accommodation?  … Yes
   Accommodation type:  … Commercial
   How many nights?  … 36
   Amount paid  … 720.00
   Did you travel with an attendant?  … Yes
   Did you pay for a separate room when travelling with your medically required attendant?  … Yes …

   3. Additional information
   Please enter any additional information that may assist with your claim.
   This claim is for my medical required attendant’s expences [sic]. (Mrs Sian Codd)

   1.        Airfare Rockhampton-Brisbane (Virgin 27/03/19)

   2.        Taxi Brisbane Airport-Wesley Hospital (Hughes 27/03/19)

   3.Accommodation 36 nights (Please refer attached supporting letter from Dr R Hanly)”

8. On 10 June 2019 the Respondent stated as follows[17]:

   [17]          Exhibit 1, page 10.

   “10/06/2019
   Travelling Expenses Claim QLD 2019-024958   Total Payment $474.77
   Thank you for your claim for travelling expenses which was received on 08 June 2019.  A claim number has been allocated as shown above.
   Your claim has been accepted and a payment of $474.77 has been made.
   The above amount has been paid into your bank account, and should be available within 5 business days of the date of this letter.  Please contact the Department if you have not received payment after 10 days.

   Details of your claim are as follows:

   27/03/2019 8.30AM to Dr R Hanly.  Total $474.77 comprising $445.17 for 1254 Kms, $29.60 Meals.

   a contributing allowance has been paid towards your attendant’s accommodation while you were in hospital.  This contributing allowance is calculated by comparing the kilometre distance from the attendant’s home and the number of nights of accommodation used.”

9. On 11 June 2019 the Applicant stated by email to the Respondent[18]:

   [18]          Exhibit 1, pages 14 and 15.

   “I would like to have the payment of the subject claim reviewed.  In support I list my following reasons:

   1.There was no reimbursement for my attendants airfare Rockhampton to Brisbane on 27Mar2019.  I was flown to Brisbane by the RFDS and there was no room on the aircraft for my attendant so I paid her airfare.

   2.There was no reimbursement for my attendants taxi fare Brisbane Airport to Wesley Hospital on 27Mar2019.  I paid her taxi fare.

   3.Please refer to prior Travel Expenses Claim QLD 2018-026208.  My Attendant’s accommodation was paid on this occasion for the duration of my stay in the Wesley Hospital.  The need for my Attendant to remain in Brisbane was supported in a letter by my Vascular Surgeon Dr Mark Ray which appears to have been accepted.

   4.Please refer to prior Travel Expenses Claim QLD 2018-031859.  My Attendant’s accommodation was again paid on this occasion for the duration of my stay in the Wesley Hospital.  The need for my Attendant to remain in Brisbane was supported in a letter by my Vascular Surgeon Dr Mark Ray which again appears to have been accepted.

   5.It would appear that my Orthopaedic Surgeon Dr Richard Hanly’s letter of recommendation for my Attendant to remain in Brisbane for the duration of my hospital stay was not accepted on this occasion.

   6.Could you please request a reason be given to me by your Medical professionals as to why one specialist’s recommendation was accepted (twice) and another not.  I am sure Dr Hanly would be interested.

   7.I am thousands of dollars out of pocket for Attendant’s cost that in the past have been paid.”

10. On 19 August 2019 the Applicant stated by email to the Respondent[19]:

    “This is further follow-up correspondence in relation to the subject claim.
    On 22/07/2019 “D” rang and informed me that after examining Dr Hanly’s supporting letter, my appeal had been rejected due to the following reasons:

    1.        My Carer’s involvement was of a “moral” basis, and

    2.        My Carer had no “medical intervention” in my care.
    I was further advised that a formal letter would be sent to me detailing the determination.
    On 06/08/2019 James rang and stated that he had received my subject claim for processing and asked if I has [sic] done it on lime [sic] or by mail.  I explained to him the situation with the claim.  He said he would need to speak with his supervisor “D” and would definitely ring me back that afternoon.
    

    [19]          Exhibit 1, page 13.

    To date I have neither received the letter of Determination nor a return phone call from either James or his supervisor.  If formal written notification of the determination or a phone call is not received by COB Friday 23/08/2019 the [sic] I will be contacting the AAT.”

11. By an Application for Review of Decision form submitted on 26 August 2019 the Applicant applied to this Tribunal to review the decision dated 10 June 2019, stating as to ‘why the decision is wrong’[20]:

    “On two previous occasions my Carer’s accommodation costs were paid but on this particular occasion only a “contributing allowance” has been paid.  This has left me quite a [sic] amount out of pocket.  The need for my Carer to remain in Brisbane on all three occasions for the duration of my hospitalisation is supported in writing by my attending specialists (DR Ray and Dr Hanly).  All three treatments were on my right leg at the Wesley Hospital.  Initial treatment for the last problem was at the Hillcrest Hospital in Rockhampton but worsened and resulted in me being flown to Brisbane by the RFDS.  Due to the lack on [sic] seating available for my Carer on the RFDS flight resulted in me paying for her to travel by Virgin airline from Rockhampton to Brisbane.  I also met the taxi cost of her travel to the Wesley hospital from the Brisbane airport.  I appealed the DVA travel compensation payment in writing and have had no official written notification of their determination.  Please refer to the attached email paper trail.  I would also like to mention that none of my emails were replied to.  I also made numerous phone calls to DVA Transport in relation to this matter, and received the same response from whomever I spoke to “I will need to discuss the matter with my supervisor and call you you [sic] back” … never received the return call.” 

    [20]          Exhibit 1, pages 3-7.

12. The Applicant received on 27 August 2019 a letter from the Respondent dated 22 July 2019[21]:

    “Thank you for your email that was received by the Department on 11 June, 18 June, 8 July and the 17 July 2019 requesting the reconsideration of accommodation expenses for your medical attendant and the cost to the [sic] while in the care of the hospital and daily meal allowance. I have reviewed the original decision made on the claim number QLD 2019-024958 under sub section 9AI of the Veterans’ Entitlements Regulations 1986 ... .

    Decision
    I will be affirming the original decision in relation to travel claim QLD 2019-024958 for reimbursement of accommodation for 36 nights’ accommodation, taxi fares and flights for your medical attendant, while you were an inpatient at the Wesley Hospital.

    Legislation
    Under Section 110 of the Veterans’ Entitlements Regulation 1986 … , states in subsection (18) If an attendant accompanies a veteran to a hospital or other institution to which the veteran is admitted, and the attendant stays in commercial accommodation while the veteran or dependant is in the hospital or other institution, the attendant is entitled to payment for 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

    [21]          Exhibit 1, pages 24-25.

    While I acknowledge that you are appealing the original decision of your paper claim processed by Kim Cuncliffe on the 10 June 2019 for additional 36 nights’ accommodation while you were in the care of the hospital.  Whilst we acknowledge the letter provided by Dr Hanley, I must uphold the original decision.”

    ISSUE

13. The Applicant submits that the following additional amount should be paid by the Respondent for the travel of Mrs Codd to Brisbane[22]:  1. commercial airfare Rockhampton to Brisbane $342.38; 2. taxi (Hughes car) Brisbane Airport to Wesley Hospital $88.56; 3. commercial accommodation (Angus House) 36 nights at $176.50 per night $6354.00; sub-total $6784.94; less amount received by claim QLD 2019 – 024958 $474.77; amount outstanding total $6310.17.

    [22]          Applicant’s submission filed 25 February 2020, page 2. 

    LEGISLATION

14. Section 110 of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”) states[23]:

    [23]The current compilation of the Act is compilation 158, which includes amendments up to Act No. 122, 2019. Endnote 4 to the Act states that the last amendment to s 110 was No. 108, 2017.

    “Travelling expenses

    (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.

    …

    (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.

    (2A)An approval under subsection (1) or an authorisation under paragraph (2)(b) may be given before or after the travel is completed. … ”   

15. The Veterans’ Entitlements Regulation 1986 (Cth) (“the Regulations”) relevantly states[24]:

    [24]Statutory Rules No. 97, 1986 made under the Act, Compilation No. 17: 28 December 2017. Includes amendments up to F2017L01641, registered 5 January 2018.

    “9      Travelling Expenses

    Definitions

    (1)In this regulation:

    "attendant" means:

    (a)a person who is authorised by the Commission under section 110 of the Act to accompany a 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.

    "commercial accommodation" means accommodation provided by a commercial establishment such as a hotel or motel.
    "entitled person" means a person who is entitled to be paid travelling expenses under section 110, 132, 170B, 196ZO or 196ZQ of the Act.
    "private accommodation" means accommodation that is not commercial accommodation or subsidised accommodation.
    "residence", for a person at a time, means the permanent or temporary place of residence of that person at that time.
    "subsidised accommodation" means accommodation provided on a cost-recovery basis by an organisation that receives a subsidy for providing the accommodation, such as a hostel.
    "travel", for an entitled person, means travel referred to in section 110, 132, 170B, 196ZO or 196ZQ of the Act from his or her residence to his or her destination and return.

    Composition of travel expenses

    (2)Subject to this regulation, and to regulations 9AD and 9AE, travelling expenses 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 mentioned in section 110, 132, 170B, 196ZO or 196ZQ of the Act.

    (3)Subject to subregulations (4) and (4A), and regulation 9AD, the amount of travelling expenses payable to an entitled person in relation to transport for travel will not exceed an amount calculated by the Commission as the cost of travel by the most appropriate form of transport over the relevant distance.

    Note:    For the calculation of the cost of transport, see subregulation (11).

    (4)Subject to regulation 9AD, if the cost incurred by an entitled person in relation to transport for travel mentioned in subregulation (3) is less than the amount calculated by the Commission under that subregulation, the cost will be the amount of travelling expenses payable to that person for transport. …

    Forms of transport

    (5)For subregulation (3), the most appropriate form of transport is the form determined by the Commission with reference to:

    (a)the forms of transport that were reasonably available to the person for the purpose of that travel; and

    (b)the cost of each of those forms of transport, including, if a form of transport was reasonably available in more than 1 class, differences in cost between those classes; and

    (c)the desirability of using the cheapest form of suitable transport for that travel; and

    (d)the degree of any mental or physical disablement of the person; and

    (e)       the distance travelled; and

    (f)whether the route taken in that travel was the most direct, practical route;

    as the most appropriate form of transport for that travel.

    Relevant distance

    (6)For subregulation (3), the relevant distance for travel by an entitled person under section 110 of the Act is:

    (a)if the distance from the residence of the entitled person to the treatment location is more than 50 km, the greater of:

    (i)the distance determined by the Commission to be the distance between the entitled person's residence and the closest practical treatment location; and

    (ii)       50 km; or

    (b)if the distance from the residence of the entitled person to the treatment location is 50 km or less--that distance. …

    Cost of transport

    (11)For this regulation, the cost of transport for travel between 2 places over the most direct route between the places is taken to be the following:

    (a)       for travel by private motor vehicle--26.7 cents per kilometre;

    (b)if paragraph (a) applies--the costs necessarily incurred by an entitled person for tolls paid in relation to travel by private motor vehicle;

    (c)for travel by any other means--the costs necessarily incurred by an entitled person.

    Note:Travelling expenses may be payable for travel outside Australia--see paragraph 132(1)(d) of the Act. Travelling expenses outside Australia are not otherwise payable--see subsections 110(3), 170B(3), 196ZO(3) and 196ZQ(3) of the Act.

    Accommodation and meals

    (12)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 the following amount for whichever of the following kinds of accommodation was used on each night:

    (a)for commercial accommodation that is not in a capital city--$110.10 each night;

    (b)for commercial accommodation that is in a capital city--$130.80 each night;

    (c)       for subsidised accommodation--$68.80 each night;
    (d)       for private accommodation--$34.40 each night.

    (13)If an entitled person, not being an attendant, and an attendant share commercial accommodation for a night, the amount of travelling expenses payable to the entitled person for the night's accommodation and meals for both the person and the attendant is $178.90.

    (15)The amount of travelling expenses payable to an entitled person for meals during travel on a day on which overnight accommodation is not required is:

    (a)if the distance from the residence of the entitled person to the person's destination exceeds 50 km but does not exceed 200 km--$10.90 each day; or

    (b)if the distance from the residence of the entitled person to the person's destination exceeds 200 km--$22.10 each day.

    Attendant entitlements

    (16)If an attendant accompanies a veteran or a dependant of a deceased veteran to a hospital or other institution to which the veteran or dependant is admitted, the attendant is entitled to payment of travelling expenses in accordance with subregulation (17), in addition to the expenses payable for the journeys to and from the hospital or other institution with the veteran or dependant:

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

    (b)to return to the hospital or other institution when the veteran or dependant is discharged.

    (17)The travelling expenses payable to an attendant under subregulation (16):

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

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

    (18)If an attendant accompanies a veteran or a dependant of a deceased veteran to a hospital or other institution to which the veteran or dependant is admitted, and the attendant stays in commercial accommodation, subsidised accommodation or private 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; and

    (b)the travelling expenses payable under subregulation (12) for the period from the admission of the veteran or dependant until his or her discharge.”

    CONSIDERATION   

1. The Applicant travelled from Central Queensland to Brisbane for the purpose of obtaining treatment and/or for the restoration of health (s 110(1)(a)-(b) of the Act).

2. As the daughter of the Applicant, Mrs Codd is a child of the Applicant and therefore a “dependent” in relation to a veteran in accordance with s 11(1)(d) for the purposes of the Act[25]. 

   [25] See also s 10 of the Act. Exhibit 8, page 1, paragraph 2 and Transcript, P-2, line 20.

3. It is not in contention that Mrs Codd travelled from Rockhampton to Brisbane on the same day and for the same total day period as the Applicant, returning with the Applicant from Brisbane on 3 May 2019. Section 110(2) of the Act states that where the “Commission authorises a person to accompany the veteran as his attendant, the attendant is, subject to that section, entitled to be paid such travelling expenses, in connection with that travel, as are prescribed”. Section 110(2A) states that an authorisation under paragraph (2)(b) may be given before or after the travel is completed.

4. Sub-regulations 9(16) and (17) are as to an attendant who accompanies a veteran to a hospital.  Sub-regulation 9(18) states that if an attendant accompanies a veteran to a hospital to which the veteran is admitted and the attendant stays in accommodation while the veteran or dependent is in hospital, the attendant is entitled to payment of travelling expenses. 

5. In Germain v Repatriation Commission (2015) 146 ALD 452; [2015] AATA 473 a veteran was transported from the Bowen Hospital to the Mater Hospital in Townsville by Royal Flying Doctor Service on 22 February 2014[26].  The veteran’s wife travelled to Townsville by vehicle on the next day, 23 February 2014, staying in Townsville for two nights (and not for the duration of the veteran’s hospitalisation) and then returning home to Bowen[27].  It was held in Germain that the veteran’s wife did not accompany her husband on the Royal Flying Doctor flight from Bowen to Townsville and could not therefore be considered an attendant for the purposes of the Regulations, in contrast with the trip home where the wife accompanied the veteran[28].

   [26] (2015) 146 ALD 452; [2015] AATA 473 at [2] per Senior Member Cotter.

   [27] (2015) 146 ALD 452; [2015] AATA 473 at [3] per Senior Member Cotter.

   [28] (2015) 146 ALD 452; [2015] AATA 473 at [14] per Senior Member Cotter.

6. The facts in this application can be contrasted with those in Germain[29].  Mrs Codd travelled to Brisbane on the same day as the Applicant[30].  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”[31].  Mrs Codd stayed in the same location in Brisbane for all the days when the Applicant was at the Wesley Hospital, Brisbane[32].  Mrs Codd was on 3 May 2020 with the Applicant from Brisbane to Rockhampton[33]. 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.

   [29] (2015) 146 ALD 452; [2015] AATA 473.

   [30]          Exhibit 7, page 2, paragraph 2.2.

   [31]          Exhibit 1, pages 3-7.

   [32]          See paragraph 6 above.

   [33]          Exhibit 7, page 2, paragraph 2.2.

7. The cost of the airfare from Rockhampton to Brisbane on 27 March 2019 was $342.38[34].  The cost of the Hughes car from the Brisbane Domestic Airport to Toowong was $88.56[35]. 

   [34]          Exhibit 1, Page 18.

   [35]          Exhibit 1, Page 19.

8. Sub-regulation 9(3) is subject to sub-regs 9(4), 9(4A)[36] and reg 9AD[37], and states that the amount of travelling expenses payable to Mrs Codd in relation to transport for travel will not exceed an amount calculated as the cost of travel by the most appropriate form of transport over the relevant distance. Sub-regulation 9(4) states that if the cost incurred by Mrs Codd in relation to transport for travel mentioned in sub-reg 9(3) is less than the amount calculated under sub-reg 9(3), the cost will be the amount of travelling expenses payable to that person for transport. Sub-regulation 9(5) states that for sub-reg 9(3) the most appropriate form of transport is the form determined with reference to: (a) the forms of transport that were reasonably available to Mrs Codd for the purpose of that travel; (b) the cost of each of those forms of transport, including, if a form of transport was reasonably available in different classes and differences in cost in those classes; (c) the desirability of using the cheapest form of suitable transport for that travel; (e) the distance travelled; and (f) whether the route taken was the most direct and practical route. Sub-regulation 9(6) states that for sub-reg 9(3) the relevant distance for travel by Mrs Codd under s 110 is the distance determined to be the distance between Mrs Codd’s residence and the closest practical treatment location. Sub-regulation 9(11) states that for reg 9 the cost of transport for travel between two places over the most direct route is taken to be for private motor vehicle a rate per kilometre including tolls necessarily incurred or for travel for any other means the costs necessarily incurred by an entitled person.

   [36]          That sub-regulation is as to parking fees.

   [37] Regulation 9AD is as to travelling expenses under ss 170B or 196ZO of the Act up to $500.

9. It is found that the flight and Hughes car on 27 March 2019 was the most appropriate form of transport that was reasonably available to Mrs Codd, having regard to the distance travelled[38], with those expenses being the cost of travel over the relevant distance in accordance with sub-reg 9(3). 

   [38]Transcript P-21, line 24.  It is a distance of 623 kilometres from Mrs Codd’s residence in Rockhampton to the Wesley Hospital Brisbane by motor vehicle.

10. ‘As Mrs Codd stayed in commercial accommodation or subsidised accommodation while the Applicant was is in the hospital, Mrs Codd 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 the travelling expenses payable under subregulation (12) for the period from the admission of the veteran or dependant until his or her discharge’ (sub-reg 9(18)(b)).

11. As to Mrs Codd’s accommodation and meals during the relevant travel, it is the amount for whichever of the following kind of accommodation is used on each night:  sub-reg 9(12).  In response to a question as to whether the accommodation was commercial accommodation in a city, the Applicant submitted that Angus House is privately owned accommodation by RSL Queensland and is the same as hotels and motels which charge a fee, although the fee is ‘generously low’[39].  The Respondent submitted that Angus House is owned by RSL Queensland and provides accommodation that is not on commercial rates of return and more comfortably fits within the definition of accommodation provided on a cost-recovery basis by an organisation that receives a subsidiary before providing the accommodation, such as a hostel[40].  It is found, on the evidence before the Tribunal, that the accommodation is subsidised, adopting therefore the submission of the Respondent in that regard. 

    [39]          Transcript, P-30, lines 6-14.

    [40]          Transcript, P-31, lines 36-45 and P-32, lines 1-5.

12. Regulation 9AA of the Regulations states that despite any other provision of the Regulations, a rate prescribed by sub-regulations 9(11) and 9(12) is increased, as applicable, in accordance with regulation 9AB on each anniversary of 1 July 2006.  The Respondent stated that the HSV02 Fact Sheet identifies an accommodation rate of $92.80 in accordance with sub-regulation 9(12)(c) of the Regulations[41].  Thirty-six nights of accommodation at that rate, which is for accommodation and meals, is $3,340.80. 

    [41]          Transcript P-33, lines 20-27.

13. Therefore, the Applicant is entitled to be paid such travelling expenses for Mrs Codd, in connection with that travel, as are prescribed, in accordance with s 110 of the Act: 1. airfare Rockhampton to Brisbane $342.38; 2. Hughes car Brisbane Airport to Toowong $88.56; 3. accommodation and meals 36 nights at $92.80 per night $3,340.80 - sub-total $3,771.74; less amount received by claim QLD 2019 – 024958 $474.77; amount outstanding total $3,296.97.

    DECISION

14. The decision of the Respondent dated 22 July 2019 to affirm the decision made on 10 June 2019 is varied with the Applicant to receive the further total sum of $3,296.97 travel allowance for the entitled person. 

I certify that the preceding 29 (twenty-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member Katter

.............................................................

Associate

Dated: 16 April 2020

Date of hearing:	15 January 2020
Date final submissions received:	25 February 2020
Applicant:	By telephone
Advocate for the Respondent:	Mr B. Williams