Henderson and Repatriation Commission - [2001] AATA 185

DECISION AND REASONS FOR DECISION [2001] AATA 185

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/1286

VETERANS' APPEALS DIVISION       )
           Re      Albert George Henderson
  Applicant
           And    Repatriation Commission
  Respondent

DECISION

Tribunal Ms SM Bullock, Senior Member

Date19 February 2001
PlaceNewcastle

Decision      For the reasons given orally at the conclusion of the hearing, the Administrative Appeals Tribunal affirms the decision of the Repatriation Commission dated 20 October 1998.
  .................[sgnd]...................
  Ms SM Bullock
  Senior Member
Catchwords
VETERANS' AFFAIRS – Extreme Disablement Adjustment – Lifestyle

Legislation
Veterans' Entitlements Act 1986 s22

REASONS FOR DECISION

Ms SM Bullock, Senior Member

This is an application for review to the Administrative Appeals Tribunal by Mr Albert George Henderson. The decision under review is a decision made by the Repatriation Commission on 20 October 1998, which decided to continue Mr Henderson's pension at 100 per cent of the General rate with no Extreme Disablement Adjustment.
There have been a number of decisions by the Repatriation Commission since that decision and, indeed, a decision by the Veterans' Review Board which was dated 21 May 1999; the decision of the Board was that Mr Henderson's pension impairment should be assessed at 65 points with a lifestyle rating rounded to five points.
At the hearing, the Respondent conceded that from 9 December 1999, Mr Henderson meets the impairment rating of 68 points rounded to 70 points. This impairment rating was assessed in a report of 9 December 1999, by Dr M. Burns who is an Occupational Physician. The Tribunal has gone through that report thoroughly and looked at it in terms of the Guide to the Assessment of Rates of Veterans' Pensions ("the Guide") and the medical impairment information and agrees with the Respondent that that is a correct impairment rating.
That being the case, in order to qualify for the Extreme Disablement Adjustment, which is dealt with under section 22 of the Veterans' Entitlements Act 1986, Mr Henderson must satisfy a number of criteria. He already satisfies some of those criteria in that Mr Henderson is over the age of 65 and he is assessed at 100 per cent of the General rate with an impairment rating of 70 points. Mr Henderson is also not qualified for any other pension such as the Intermediate or Special rate of pension.
The issue that remains in contention, however, is that relating to the lifestyle. Lifestyle is a rating which is arrived at by applying the various tables in Chapter 22 of the Guide. Those tables concern "Personal Relationships", Table 22.1; "Mobility", Table 22.2; "Recreational and Community Activities", Table 22.3; "Domestic Activities" , Table 22.4 and/or, if applicable, "Employment Activities" Table 22.5. Employment activities are not relevant in the present circumstances because Mr Henderson has been retired for many years.
Thus, the Tribunal turns to consider the issues and the tables of Chapter 22. Before doing that, the Tribunal wishes to make quite clear and acknowledge the extreme honesty and forthright way in which Mr Henderson answered questions. He was considered to be a most credible Applicant.
Dealing firstly with Personal Relationships, which is assessed under Table 22.1, Mr Henderson's relationships are strained on occasions. Mr Henderson told the Tribunal that he walks away from arguments and he has learned to do this over the years. The Tribunal notes, however, that Mr Henderson does have secure and good relationships with his children. He has a son in Canberra who regularly telephones him and a daughter who lives nearby who visits just about every night. Further, Mr Henderson has some association with various friends from his army days whom he may ring from time to time and he has people visit him at home.
The Tribunal considers that the correct rating under Table 22.1 for Personal Relationships is 4 points, which covers markedly affected relationships and that the maintenance of usual relations with relatives or friends is sometimes difficult. The Tribunal considered the higher rating, which is the rating of 5 points, but thought that this was not appropriate at this time in Mr Henderson's circumstances. That higher rating requires that there are severely affected relationships and that Mr Henderson would only be able to relate to a few people and that the remaining relationships are strained and of very low quality. The evidence provided by Mr Henderson did not meet that higher category. The appropriate rating for Personal Relationships is determined to be 4 points.
Turning to Table 22.2, which covers Mobility, there is no doubt in the Tribunal's mind that Mr Henderson is restricted in his mobility and particularly the pain that he suffers and that he has to take medication every day amounting to at least four tablets of "Panamax". Mr Henderson, however, does not have to use rails or ramps in his house. He does not have to use mechanical devices such as a wheelchair or a walking stick and he is able to, occasionally - and the Tribunal acknowledges that this might change fairly soon - but at present he still is able to drive his car and is able to use public transport in the form of a bus. Mr Henderson regularly uses the bus to go to meetings at the RSL Club and to attend Legacy meetings.
Indeed, today Mr Henderson used the bus to travel to the Newcastle Court House where the hearing was held. The rating that the evidence suggests under Table 22.2, is a rating of 4 points. The higher rating, which I also considered, requires that Mr Henderson must be dependent on others, use mechanical devices such as a wheelchair, that he is unable to use most forms of public transport and he is able to drive a car only in a situation of emergency. This is not the case with Mr Henderson. Therefore, the rating of 4 points is confirmed as the correct rating.
Turning to the next category, which is Table 22.3, Recreational and Community Activities, Mr Henderson most commendably is involved in a voluntary capacity in the RSL Club where he is the Honorary Treasurer, he attends meetings once a month and signs cheques approximately every fortnight. He is also the Chairman of the Funding Appeals Committee with Legacy. Mr Henderson was previously very active in charities including Freedom From Hunger, Red Cross and the Salvation Army and although now unable to keep up this work he still maintains an interest.
The Tribunal considers that the appropriate rating is 5 points, which reflects there being a greater reduction in the number and kind of recreational activities which Mr Henderson undertakes. The higher rating of 6 points, which the Tribunal does not think is appropriate on the evidence that Mr Henderson has provided today, would require that he would be unable to engage in other than a very few satisfying recreational activities and he would be restricted to passive activities such as watching TV, listening to radio, reading or receiving visitors.
Finally, the Tribunal turns to the Table 22.4 which is Domestic Activities. It is the Tribunal's view that this table reflects a higher rating because of the very clear restrictions that are placed on Mr Henderson because of the particular conditions of his back, shoulders, his feet and legs. In this regard, Mr Henderson is only able to undertake very few activities. He cannot mow the lawn, he is unable to put out the garbage, he is unable to attend to the garden any more, although that was something he would do previously. Mr Henderson is required to pay for assistance to undertake work such as household repairs and mowing the lawn.
The Tribunal considers that the appropriate rating is 6 points, to reflect that Mr Henderson is only able to carry out a very few limited number of domestic activities. The higher rating in the table would be a rating of 7 points and that is total dependency and certainly on the evidence heard by the Tribunal on the day of hearing, Mr Henderson is not totally dependent.
The Tribunal, therefore, applying the processes of Chapter 22 must divide the total of the ratings for the Chapter 22 tables by four. This results in the rating for lifestyle at 5 points (rounded). This is clearly not enough for Mr Henderson to be eligible at this time for the Extreme Disablement Adjustment. It is clear that on the evidence of Mr Henderson's level of activity which he described at the hearing, that he is not yet at the stage where he could be considered eligible for the Extreme Disablement Adjustment.
I echo the Respondent's remarks that the Tribunal would not wish Mr Henderson to be further ill than he is already but at this particular time, given the level of activity and, indeed, his level of independence, there is no qualification for the Extreme Disablement Adjustment under the legislative requirements.
The Tribunal wishes to emphasise to the Applicant that the decision today should not be seen in any way to diminish his contribution to the war effort nor this Tribunal's appreciation of his efforts. What the decision reflects is the evidence of a level of activity and drive for independence which at this stage is not reflective of the Extreme Disablement Adjustment. In so deciding, the Tribunal must acknowledge the great contribution which Mr Henderson makes to the community.
What this decision means is that the Tribunal is affirming the decision under review that Mr Henderson is not qualified at this time to receive the Extreme Disablement Adjustment.
I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Ms SM Bullock, Senior Member
Signed:         ............[sgnd]..................................................................
  Rikka Cullen, Associate
Date of Hearing  19 February 2001
Date of Decision  19 February 2001
Representative for the Applicant              Self Represented
Representative for the Respondent        Mr J Marsh, Advocate for the Department of Veterans' Affairs