Cobley and Repatriation Commission
[2007] AATA 1968
•19 November 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1968
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/0849
VETERANS’ APPEALS DIVISION )
ReTHOMAS COBLEY
Applicant
AndREPATRIATION COMMISSION
Respondent
DECISION
TribunalSenior Member M D Allen
Date19 November 2007
PlaceSydney
DecisionThe decision under review is SET ASIDE and the Tribunal substitutes in lieu thereof its decision, viz. THAT Thomas Cobley is entitled to Recreation Transport Allowance at the rate prescribed from time to time by Item 3 in Column 1 to the Schedule in subs104(1) of the Veterans’ Entitlements Act 1986 as and from 21 April 2006.
.................[sgd]..........................
M D Allen
Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – application for review of decision by repatriation commission refusing applicant’s claim for payment of recreation transport allowance at a higher rate – injuries causing incapacity must be war-caused – injuries for higher rate to same extent or severity as disabilities outlined in recreation transport allowance criterion – extreme disablement adjustment – decision under review set aside
LEGISLATION
Veterans’ Entitlements Act 1986 sections 104 and 104(1)
CASE LAW
Re Clifford and Repatriation Commission (1988) 8 AAR 420
Re Sleep and Repatriation Commission (1999) 30 AAR 179
REASONS FOR DECISION
19 November 2007
Senior Member M D Allen
Summary
1. By application made 20 March 2007, the Applicant sought review of the decision by a delegate of the Respondent to refuse his claim for payment of Recreation Transport Allowance at the higher rate.
2. The Applicant currently is in receipt of RTA at the so-called “lower rate” consequent upon the restriction to his powers of locomotion caused by his war-caused disabilities of psoriasis, generalised osteoarthritis and cervical spondylosis.
3. Section 104 of the Veterans’ Entitlements Act 1986 states inter alia:
…
(1)Subject to this section, the Commission may grant an allowance, called recreation transport allowance, to a veteran who is suffering an incapacity from a war‑caused injury or a war‑caused disease of a kind described in column 1 of the following table:
Column 1
Column 2
Description of incapacity
Rate per fortnight
$1. Both legs amputated above the knees
44.80
2. Negligible powers of locomotion so as to be capable of moving, with the aid of crutches or walking sticks, for short distances only
44.80
3. Handicapped with regard to locomotion to a degree that, in the opinion of the Commission, is similar to the degree of handicap with regard to locomotion associated with a disability described in item 1 or 2
44.80
4. Both arms amputated at or above the wrists
22.40
5. Both legs amputated below the knees
22.40
6. One leg amputated above the knee and the other below the knee
22.40
7. One leg amputated above or below the knee and one arm amputated below the elbow
22.40
8. Blinded in both eyes
22.40
9. Incapacitated to an extent that, in the opinion of the Commission, is similar in effect or severity to the extent of incapacity associated with a disability described in item 4, 5, 6, 7 or 8
22.40
10. Handicapped with regard to locomotion to a degree that, in the opinion of the Commission, is similar in degree to the handicap with regard to locomotion associated with a disability described in item 5, 6, 7 or 8
22.40
(2) For the purposes of subsection (1):
(a)a leg that has been rendered permanently and wholly useless above the knee or below the knee shall be treated as if it had been amputated above the knee or below the knee, as the case may be; and
(b)an arm that has been rendered permanently and wholly useless at or above the wrist or below the elbow, shall be treated as if it had been amputated at or above the wrist, or below the elbow, as the case may be.
(3)Recreation transport allowance is payable to a veteran, in respect of the costs incurred by the veteran in travelling for recreational purposes, at the rate specified in column 2 of the table in subsection (1) opposite to the kind of incapacity described in column 1 from which the veteran is suffering.
(4) …
(5) …
…
4. As is clear from the words of the section, the injuries or diseases causing incapacity must be war-caused. Many veterans in their later years become frail and have diminished powers of locomotion due to the exigencies of old age, but these cannot be taken into account. The reduction in powers of locomotion must be from war-caused injury or disease.
5. In this matter, there is no doubt that the Applicant is severely restricted by his war-caused injuries and diseases. This is evidenced by the fact that he is in receipt of the Extreme Disablement Adjustment pursuant to s22 VEA.
6. Exhibit A1 is an extract from a Department of Veterans’ Affairs manual and deals with eligibility for the Extreme Disablement Adjustment. It states inter alia:
… as a rough guide, to achieve the points mentioned above a veteran would have to be severely incapacitated and in a nursing home or at least be house-bound except for the occasional outing with assistance, because of his/her war-caused injury or disease.
…
7. That the Applicant is restricted in his mobility is recognised by the Respondent in that he is in receipt of the lower payment for RTA.
8. Evidence as to the Applicant’s degree of restriction in mobility is found in the report of Ms Bell, Occupational Therapist, who assessed the Applicant at his home on 29 May 2007. In that report, Ms Bell states:
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Walking
Mobilised indoors with a single walking stick and outdoors with two Canadian crutches. Movements are slow and endurance is limited. Mr Cobley was observed to walk a few metres between various rooms of his home intermittently throughout the assessments. He would always sit when the opportunity arose to do so.
Mr Cobley was observed to walk from the rear lounge room to the door with his walking stick and then to the kerbside with two crutches. Movements were slow and Mr Cobley needed to sit and rest on a chair on his patio before re-entering his home. The distance covered before a rest was required was approximately 20 metres.
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9. At page 11 of her report Ms Bell noted:
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Mr Cobley avoids stairs and steps. He was observed to step over the single rear step at the glass patio door and the threshold step at the front door. The front access steps have been ramped. There are steps in the rear garden, three plus eight, with unilateral handrails in situ. Mr Cobley fell on these steps, requiring ambulance assistance, and thus now avoids them. He stated his son did assist him on these steps sometime ago to allow him to see his birds but he was fearful of falling and needed physical assistance. He does not plan to negotiate these steps again and his son will be taking the birds to his own home.
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10. Ms Bell concluded her report by stating:
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Mr Cobley is an 84 year-old married man who mobility is greatly restricted, resulting in him being essential house-bound unless he is transported door to door by another person. …
…
Mobility is primarily impaired by osteoarthritis causing pain and decreased movement in his lower and upper limbs. Additionally, mobility is impaired by pain arising from psoriasis in the groin area and by fatigue. Mobility would also be impaired by his CVA although it is acknowledged that he was able to continue to work for many years, performing his normal duties as a storeman, following the CVA.
Mr Cobley is, however, able to mobilise for short distances around his home with a single walking stick: he is able to mobilise the short distance to the kerbside from his home with two Canadian crutches; is able to transfer in and out of a vehicle, albeit with difficulty; and is able to mobilise from a vehicle to visit his doctor and to attend the RSL on the few occasions he is taken there by his daughter.
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11. The Applicant took issue with some of Ms Bell's report. He stated that he was required to sit whilst walking to the kerb and had to rest for five to six minutes before continuing. His measurement is that from front door to kerb is 12.5 metres.
12. Dr Tey is the Applicant’s local medical officer. In his report dated 18 May 2006, Dr Tey stated that the Applicant could walk for 50 metres when taking short rests. The Applicant disputed this and Dr Tey does report that the Applicant can walk for five to six minutes only before resting.
13. In their reports both Dr Tey and Ms Bell refer to the Applicant suffering a cerebro-vascular accident in 1974. However, as pointed out by Ms Bell and the Applicant, the Applicant was able to continue working after this incident and worked until he retired in 1985 with no further sequalea.
14. I am satisfied that the “stroke” suffered by the Applicant plays no part in his reduced mobility, likewise I am satisfied on the evidence of the Applicant that he did not at any time suffer a myocardial infarct.
15. Ms Bell concludes her report by stating that in her opinion the Applicant’s service-related incapacity is not to the same extent that is similar in effect or severity to the extent of the incapacity associated with the disabilities outlined in the RTA Criterion for the higher rate of RTA to be payable. Unfortunately, Ms Bell does not go on to state her reasoning for coming to this conclusion.
16. The Applicant bases his claim upon Item 3 in Column 1 of subs104(1) of the Act, namely being “Handicapped with regard to locomotion to a degree that, in the opinion of the Commission, is similar to the degree of handicap with regard to locomotion associated with a disability described in item 1 or 2”.
17. Item 2 of Column 1 refers to “Negligible powers of locomotion” and being “capable of moving … for short distances only”. Of Item 2, Deputy President Layton in Re Clifford and Repatriation Commission (1988) 8 AAR 420 at 425-6 said:
..
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.
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 of crutches or walking sticks, then the veteran would not be regarded as having negligible powers of locomotion.
It is of note that this is the only item in the column which refers to mechanical aids and further, the reference to mechanical aids suggests that the use of such aids is to be taken into account in assessing whether the criterion is fulfilled.
A further matter to note is that the only mechanical aids mentioned are crutches and walking sticks and not, for example, walking frames, wheelchairs or prostheses. Their absence would suggest that these aids are not to be considered in determining the locomotive ability of a veteran under item 2.
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18. Even the passage above leaves obscure just what is meant by a “short” distance compared to a “long” or “medium” distance. But as Senior Member Kiosoglous pointed out in Re Sleep and Repatriation Commission (1999) 30 AAR 179 at 188, cases under s104 VEA must be decided upon their own factual circumstances.
19. In this matter, I accept that the Applicant can walk for some 12.5 metres at least but with rests. He was able to make a return journey of the same distance but again with rests. In his home, he has chairs readily available as he can only walk a few metres before the necessity to sit.
20. I am satisfied that the Applicant, because of war-caused incapacity can correctly be described as having negligible powers of locomotion.
21. The decision under review is set aside and the Tribunal substitutes its decision, namely that Thomas Cobley is entitled to RTA at the rate prescribed from time to time by Item 3 in Column 1 to the Schedule in subs104(1) VEA as and from 21 April 2006.
I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen
Signed: ....[sgd]....
Mwela Kapapa, AssociateDate/s of Hearing: 6 November 2007
Date of Decision: 19 November 2007
Solicitor for the Applicant: Self-represented
Advocate for the Respondent: Department of Veterans’ Affairs
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