Janssan and Repatriation Commission

[2003] AATA 788

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 788

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S2002/272

VETERANS' APPEALS DIVISION		)
Re		Clive Kenneth Janssan

Applicant

And Repatriation Commission

Respondent

DECISION

Tribunal D G Jarvis (Deputy President)

Date12 August 2003

PlaceAdelaide

Decision The Tribunal affirms the decision under review.

(Signed)

Deputy President

CATCHWORDS

VETERANS’ APPEALS – disability pension – general rate – extreme disablement adjustment – lifestyle rating – lifestyle effects – Table 22 of the GARP (Guide to the Assessment of Rates of Veterans’ Pensions)

Veterans’ Entitlements Act 1986 – section 22

Re Whiteley and Repatriation Commission Re (1993) 29 ALD 575

Starcevich v Repatriation Commission (1987) 76 ALR 449

Re Drake and Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634

REASONS FOR DECISION

12 August 2003   D G Jarvis (Deputy President)

1.      This is an application for a review of a decision of a delegate of the respondent, the Repatriation Commission dated 20 December 2001, whereby the applicant’s disability pension was increased to 100% of the general rate, and it was decided that the applicant was not eligible for the extreme disablement adjustment (“EDA”).

The delegate’s decision related to an application by the applicant received by the Department of Veterans’ Affairs (“DVA”) on 3 May 2001 whereby the applicant applied for an increase in his disability pension from his then rate of 90% of the general rate.

On 3 June 2002 the Veterans’ Review Board (“VRB”) decided to affirm the decision of the delegate.

2. At the hearing before this Tribunal, the applicant was represented by Mr Ower of Counsel and the Commission was represented by its advocate, Mr Doube. The documents lodged pursuant to s37 of the Administrative Appeals Tribunal Act 1975 (“T documents” – exhibit A1) were admitted in evidence, together with the following documents:

(a)Lifestyle Questionnaire completed by the applicant and received by the DVA on 21 May 2003 (exhibit A2); and

(b)      Transcript of proceedings before the VRB (exhibit R1).

Oral evidence was given by the applicant in support of his case.  The respondent acknowledged that the various disabilities relied upon by the applicant resulted from his accepted war-caused injuries.

the issue

3. The parties agreed that by a determination that was in force, the degree of incapacity of the applicant from war-caused injury was 100%, that he had attained the age of 65, that he had an impairment rating of at least 70 points, and that he was not receiving an intermediate or special rate of pension or a temporary payment at a special rate under ss23, 24 or 25 respectively of the Veterans’ Entitlements Act 1986 (the “Act”).

4.      The sole issue between the parties was accordingly whether or not the applicant had a lifestyle rating of 6 points in accordance with the approved Guide to the Assessment of Rates of Veterans’ Pensions (the “GARP”). 

lesiglative provisions

5.      Section 21A of the Act provides that the Commission shall determine a veteran’s degree of incapacity from a war-caused injury or war-caused disease according to the GARP. Provision for the GARP is made in s29..  Under that section, the Commission may from time to time prepare a document, to be known as the GARP, setting out (inter alia) criteria by reference to which the extent of the incapacity of a veteran resulting from war-caused injury or war-caused disease, or both, shall be assessed.  Section 29(4) provides that the GARP is binding on this Tribunal and requires this Tribunal to assess the extent of the veteran’s incapacity in accordance with the relevant provisions of the GARP.

6.      Section 22 of the Act provides for a disability pension to be paid at a rate of 150% of the general rate for a severely disabled veteran who does not qualify for the intermediate or special rate pensions; that is, if the requirements of s22(4) are met, the pension can be increased by the EDA.  Section 22(4) provides relevantly as follows:

“22(4)  Where:

(a)       either:

(i)the degree of incapacity of a veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be 100% or has been so determined by a determination that is in force; or

…

(b)the veteran has attained the age of 65;

(c)the veteran has an impairment rating of at least 70 points and a lifestyle rating of at least 6 points, each determined in accordance with the approved Guide to the Assessment of Rates of Veterans’ Pensions; and

(d)the veteran is not receiving a pension at a rate provided for by section 23, 24 or 25;

the rate at which pension is payable to the veteran is increased by 50% of the maximum rate set out in subsection (3).”

the application of the garp

7.      Chapter 22 of the GARP is to be used to assess lifestyle effects of accepted conditions.  It includes the following explanation of what is a lifestyle effect (at p.263.2):

“A lifestyle effect is a disadvantage, resulting from an accepted condition, that limits or prevents the fulfilment of a role that is normal for a veteran of the same age without the accepted condition.”

Thus, whilst the succeeding tables of Chapter 22 make it clear that there is to be no age adjustment in respect of the tables, it is necessary to compare the situation of the applicant with that of a veteran of the same age without the war-caused injury or disease.

The GARP enables the veteran to choose one of three optional methods of assessing lifestyle effects.  Prior to the decision by the delegate of the Repatriation Commission, the applicant elected to have his lifestyle rating based on the level of his medical impairment, and under the GARP, this resulted in a lifestyle rating of 4.  However, prior to the hearing before this Tribunal, the applicant completed a Lifestyle Questionnaire, and the Tribunal is required to use the information in this Lifestyle Questionnaire, together with all other relevant information available to it, to allocate ratings in accordance with the Tables to Chapter 22 (see the GARP, pages 263.5 and 264.5).

8.      The introduction to Chapter 22 provides at page 264 that the effects of impairment on lifestyle are specific to a veteran, and are determined by reference to the following four components of that veteran’s life:

§  personal relationships;

§  mobility;

§  recreational and community activities; and

§  employment and domestic activities.

The applicant is aged 83.  He has not worked for some 22 years, and it was agreed that the criteria relating to employment activities are not relevant.

9.      Mr Doube, the advocate for the respondent, commenced his analysis of each of the categories of criteria in each of the four relevant tables by starting with the highest rating, and then worked backwards to find the criteria which, in his submission, best fitted the position of the applicant.  He said that he could equally have started with the lowest ranking and worked upwards.

10.     Mr Ower, counsel for the applicant, contended that this “spectrum” approach was incorrect, and that the appropriate way to proceed was that upon finding a category which described the effects of the accepted conditions, the veteran should be allocated the resultant rating.  He submitted that in the present case, on this approach, a mobility rating of 6 should apply, because the applicant was unable to drive a car in any circumstances whatever.  He also relied on Re Whiteley and Repatriation Commission (1993) 29 ALD 575, where the Administrative Appeals Tribunal, in applying the GARP, said that in cases of uncertainty, the veteran was to be given the higher of any two possible ratings.

11.     I note that the approach in Whiteley’s case has been commonly followed in later decisions of this Tribunal, and is consistent with the approach of the Tribunal and the Federal Court of Australia in other contexts, where the Court has referred to the beneficial nature of the Act. For example, in Starcevich v Repatriation Commission (1987) 76 ALR 449, at 454, Fox J said:

“It is hardly necessary to say so, but the legislation should in my view be given a reasonably liberal interpretation.  It has often been pointed out that it is a matter of great public importance to provide adequately for incapacitated ex-servicemen.”

12.     It is necessary to select the rating that best accommodates the veteran’s circumstances from the descriptions in the relevant tables (see the GARP at page 264.8).  In order to do this, I consider that contrary to Mr Ower’s submission, it is necessary to examine the various categories of the criteria, in order to interpret and understand their import and compare the relevant categories, and then find the best fit for the particular veteran’s circumstances.  Of course, in many cases it will be readily apparent that one or more of the categories will be inappropriate, but other categories may be a close fit, and will need to be carefully considered.  It does not follow that because one of the aspects of the criteria applicable to a rating has been satisfied, that rating is necessarily appropriate to the veteran.  It would be unusual if all aspects of the description applicable to a particular rating apply exactly to a particular veteran, and that is why it is necessary to look for the best fit.  Further, some aspects of the criteria are included by way of example and are not in themselves determinative of the correct rating. 

13. It is clear that the process of determining the correct lifestyle rating under section 22(4) entails a determination of the degree to which accepted conditions affect the veteran’s lifestyle. It is appropriate to bear in mind the overall result intended to be produced by the relevant tables, as appears from the sentence commencing at the bottom of page 264 of the GARP, reading:

“A zero rating indicates that a veteran’s lifestyle is only negligibly affected by the accepted conditions.  A rating of 7 indicates that the effect of the accepted conditions on a veteran’s lifestyle is of the utmost severity.”

It seems to me that the criteria in the Tables are such that they should enable different persons who have the responsibility of determining the extent of effects on the lifestyle of veterans to achieve a high level of consistency in their assessments.  The achievement of consistency is of course important in ensuring that the legislation operates fairly, and to the satisfaction of those affected by it (cf, in the context of Government policy Re Drake and Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634, at 640, where Brennan J said:

“By diminishing the importance of individual predilection, an adopted policy can diminish the inconsistencies which might otherwise appear in a series of decisions, and enhance the sense of satisfaction with the fairness and continuity of the administrative process.”

The GARP does not include any prescription as to how to address the requirement to compare a particular applicant with a veteran of the same age who is not affected by the accepted condition.  This is therefore another example of a situation where decision makers or Courts need to determine the characteristics of an objective person (who in this case is to be a veteran, thus introducing a further element of complexity into the requisite determination).  It would of course be open to the parties in a particular case to adduce evidence of the relevant circumstances of an unaffected veteran of the same age.  No such evidence was adduced in the present matter.

evidence

14.     The applicant gave evidence as to matters relevant to the assessment of his lifestyle rating.  He gave his evidence in an open and matter-of-fact manner and was an excellent witness.  I accept his evidence in its entirety.  He confirmed the matters set out in the Lifestyle Questionnaire (exhibit A2), except that he said that his inability to do any gardening, or weeding, or heavy lifting was due to his hiatus hernia and not due to epilepsy, as appeared from his answer to question 18.

15.     I will consider each of the relevant lifestyle components in turn.

Table 22.1 – Personal Relationships

16.     Under the heading of Personal Relationships, the applicant gave evidence that he is moody and irritable and has a very difficult relationship with his wife and daughter.  He further gave evidence of the changes in the extent and nature of his relationship with other people.  He has given up playing bowls in consequence of a particular incident where, due to his nerves and depression, he lost his patience with a team member who did not follow his instructions as skipper on one occasion during a match.  He has also given up his association with the Masonic Lodge, where he had previously been an active participant.  It was contended on behalf of the applicant that a rating of 5 under Table 22.1 was appropriate.

17.     The respondent’s advocate referred to the applicant’s evidence as to the relations which the applicant enjoys with people other than his wife and daughter.  In particular, he referred to the evidence that the applicant has excellent relations with his son, daughter-in-law and grandchildren.  He also regularly walks to the home of a Mr Shepherd, a distance of some 1400 yards, and enjoys his company.  He also relates well to his sister, brother-in-law and some of his brothers (although he does not see his siblings very frequently).  He also accompanies his wife on occasional social outings, and every fortnight meets some of his former workmates for lunch in the city.

18.     Taking into account all of the evidence, in my view the applicant’s circumstances partly fall within the criteria of rating 3 and partly fall within the criteria of rating 4.  In accordance with the approach in Whiteley’s case, I determine a rating of 4.

Table 22.2 – Mobility

19.     As mentioned above, Mr Ower for the applicant submitted that a rating of 6 was appropriate, having regard to the fact that the applicant was unable to drive a car.  Mr Doube submitted that the appropriate rating was 3 or even 2.  In view of the applicant’s evidence that he is able to walk regularly to Mr Shepherd’s house, has no trouble using public transport or sitting in a car for long journeys, and does not need the aid of a walking stick or other device, I consider that a rating of 3 is appropriate under this Table.

Table 22.3 – Recreational and Community Activities

20.     Mr Ower submitted that the appropriate rating was either 6 or 5, and he referred in particular to the activities which the applicant had given up in consequence of his disabilities.  Mr Doube submitted that the best fit under this heading, and giving the applicant the benefit of the doubt, was 4.

21.     I have referred in paragraph 16 above to the activities which the applicant has been forced to give up, but I note that the applicant still enjoys some recreational and leisure activities, and is able to take part in them without the assistance of any other person.  Further, he is thinking of taking up social bowls next season.  I consider that a rating of 4 is appropriate under this Table.

Table 22.4 – Domestic Activities

22.     Mr Ower submitted that the appropriate rating was 6, whereas Mr Doube submitted that the appropriate rating was either 4 or 5, which would result in a rating of 5 on giving the applicant the benefit of the doubt.

23.     There is no doubt that the applicant’s ability to undertake household activity is significantly affected by his hernia, his nerves and epilepsy.  It is not clear that his inability to cook for himself is due to his accepted conditions as opposed to lack of skill or inexperience arising from the long-standing domestic arrangements where his wife has done the cooking.  In all of the circumstances I find that an assessment of 5 is appropriate under this heading.

24.     In accordance with Table 22, the ratings which I have assessed, namely 4, 3, 4 and 5 are added together and then divided by 4.  The result is 4.

decision

25. For the above reasons, I find that the applicant is not eligible to be paid the extreme disablement adjustment pursuant to s22(4) of the Act, and the decision under review is affirmed.

I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of
Mr D G Jarvis (Deputy President)

Signed:         ................................................................
  N. Quirke  Associate

Date/s of Hearing  30 July 2003
Date of Decision  12 August 2003
Counsel for the Applicant         Mr Ower
Solicitors for the Applicant        Tindall Gask Bentley
Advocate for the Respondent   Mr Doube