Johnson and Repatriation Commission - [2002] AATA 684

DECISION AND REASONS FOR DECISION [2002] AATA 684

ADMINISTRATIVE APPEALS TRIBUNAL )

) No S2002/26

VETERANS' APPEALS DIVISION       )
           Re      KEITH DOUGLAS JOHNSON
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Senior Member J.A. Kiosoglous MBE

Date10 July 2002
PlaceAdelaide

Decision      The Tribunal affirms the decision under review.
  (Signed)
  J.A. KIOSOGLOUS

(Senior Member)

CATCHWORDS
VETERANS' AFFAIRS - veterans' entitlements - Recreation Transport Allowance - whether applicant qualified for higher rate – effect of accepted disabilities on applicant's locomotion.
Veterans' Entitlements Act 1986 s.104
Re Clifford & Repatriation Commission (1988) 14 ALD 721

REASONS FOR DECISION

10 July 2002 Senior Member J.A. Kiosoglous MBE

This is an application by Mr Keith Douglas Johnson (the applicant) for review of two decisions of the Repatriation Commission (the respondent) dated 1 November 2002 (T2) wherein the decision of 26 September 2001 (T9) to grant Recreation Transport Allowance (RTA) at the lower rate was affirmed and that the date of payment was varied with effect from 9 May 2001. The matter was heard by the Tribunal on Wednesday 10 July 2002 and at the conclusion of the hearing the Tribunal handed down an oral decision affirming the respondent's decision. The applicant has requested reasons in writing and the Tribunal so obliges through these written reasons.
The Tribunal received into evidence the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1-T12) as well as three exhibits, two lodged by the applicant (Exhibits A1 and A2) and one by the respondent (Exhibit R1). In addition, the Tribunal heard oral evidence from the applicant, who represented himself, whilst the respondent was represented by Mr G. Doube, a departmental advocate.
The issues before this Tribunal were firstly, whether or not the applicant qualifies for payment of RTA at the higher rate in accordance with the provisions of section 104 of the Veterans' Entitlements Act 1986 (the Act); and secondly, whether or not the applicant is suffering incapacity from war-caused conditions of a kind described in items 1, 2 and 3 of Column 1 of the table contained in sub-section 104(1) of the Act.
The applicant, Keith Douglas Johnson, who was born on 20 December 1944, is currently aged 57 years and is unemployed. He stated in his evidence that he enlisted in the Army on 13 February 1962 and was discharged on 19 April 1986. He served in the Australian Army Catering Corps doing "stints" in both Malaya and Sarawak (Borneo). He stated that he served in all about sixteen months in both places with about four months in Sarawak in 1965 and the full year in Malaya in 1964. He further stated that he served in Vietnam from about April 1967 to January 1968 and in 1975 at the Butterworth base, Malaysia, for about four months. Apart from these all other time was served in Australia.
In his oral evidence the applicant agreed that his accepted disabilities include tinnitus, epilepsy, allergic rhinitis, dermatitis, photophobia, chronic solar skin damage, bilateral sensorineural hearing loss, post traumatic stress disorder, vertigo, lumbar spondylosis and cervical spondylosis. Without setting out the rejected disabilities he agreed that these as set out in the section 37 documents were correct.
The applicant stated that soon after his discharge in 1986 he applied for and was granted a disability pension backdated to 16 February 1986 at the ten per cent rate. After that the rate was increased to thirty percent on 28 May 1994, rising from that time until 7 March 1999 when his rate was increased to ninety per cent. On 9 March 1999 it was further increased to one hundred per cent, giving him eligibility for the totally and permanently incapacitated benefit (TPI).
Mr Johnson in his evidence stated that in addition to this he also applied for the Recreation Transport Allowance (RTA) on 25 May 2001 pursuant to section 104 of the Act (T3). On 26 September 2001 the respondent granted the RTA but at the lower rate (T9). The applicant was notified of this by letter dated 28 September 2001 (T10) with the lower payment of $29.90 per fortnight with effect from payday 31 May 2001. On 8 October 2001 Mr Johnson wrote to the respondent seeking a review of the decision (T11). This was received on 10 October 2001 wherein the applicant not only sought to obtain the higher rate but also that the date of effect to be 9 March 1999. The Review Officer upon review by virtue of section 115 of the Act determined that that part of the decision granting the lower rate be affirmed but varied the date of effect to be 9 May 2001 in lieu of 31 May 2001 (T2). On 25 January 2002 the applicant lodged an application for review of the respondent's decisions with the Administrative Appeals Tribunal (AAT) seeking to increase the RTA from the lower rate to the higher rate (T1).
In addition the applicant, in accordance with his application (T1), contended that although he did not have the physical disabilities set out in section 104 of the Act, his mental anguish, stress, fear and physical pain together with his accepted war-caused disabilities at times left him with some disabilities which rendered him nearly as affected as someone with an amputated leg and arm.
In support of his application before this Tribunal, the applicant referred to his accepted disabilities and in particular "vertigo", "epilepsy" and "tinnitus" as emphasis to the symptoms he experiences. He was strongly of the belief that he should be eligible for RTA at the higher rate rather than the lower rate already granted him.
The relevant legislation is contained in section 104 of the Act which provides as follows:
"104 Recreation transport allowance
(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 $

Both legs amputated above the knees 44.80
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
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
Both arms amputated at or above the wrists 22.40
Both legs amputated below the knees 22.40
One leg amputated above the knee and the other below the knee 22.40
One leg amputated above or below the knee and one arm amputated below the elbow 22.40
Blinded in both eyes 22.40
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
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)Recreation transport allowance is not payable to a veteran under subsection (1):
(a)in respect of any period during which the veteran is being cared for, at public expense, in a hospital or other institution; or
(b)if the veteran has participated, or is participating, in the Vehicle Assistance Scheme:
(i)during the period of 2 years commencing on, and including, the date on which the veteran was first provided with a vehicle under that Scheme;
(ii)during the period of 2 years commencing on, and including, the date on which a replacement motor vehicle grant was or is made under that Scheme in respect of the veteran;
(iii)during any period during which there is, under that Scheme, due and payable by the veteran to the Commission the whole or part of an amount equal to the cost to the Commission of providing the veteran with a motor vehicle under that Scheme; or
(iv)during any other period during which the veteran is, under that Scheme, eligible to be paid an allowance as a contributor towards the running and maintenance of a vehicle provided for the veteran under that Scheme.
(5)For the purpose of the application of subsection (4), a vehicle provided for a veteran before 22 May 1986 under the scheme known as the "Gift Car Scheme" shall, after the commencement of this subsection, be deemed to have been provided under the Vehicle Assistance Scheme."
The applicant in order to be eligible for the higher rate in accordance with the legislation needs to comply with items 1, 2 and 3 of sub-section 104(1) of the Act. The applicant sought support from Dr M. Orsillo, general practitioner, who in his report (T8/26) stated, inter alia, that the applicant's condition enables him to benefit from the use of RTA. It was with this in mind that the respondent reached its decision (T9) and granted the applicant the RTA albeit at the lower rate.
Mr Johnson in his submissions stated that he accepted the difference between the higher and lower rates. He also stated that he realised that he could not claim the higher rate but felt that with his disabilities he should have been entitled to a rate in between the higher rate and the lower rate. When pointed out to him that the legislation does not provide for such discretion to be exercised by the Tribunal he stated that he understood this but felt aggrieved that a person with his disabilities should be discriminated against and that provision should also be provided within sub-section 104 of the Act for an RTA category in between the current criteria.
The Tribunal is mindful of the decision of Re Clifford & Repatriation Commission (1988) 14 ALD 721 and in particular, in reference to locomotion, it stated (inter alia) at paragraph 24:
"… the word 'locomotion' in common parlance refers to the act or power of moving from one place to another. …"
Furthermore, the Tribunal in Re Clifford rejected the applicant's application for RTA and in so doing the Tribunal set out a number of factors at paragraph 67 which the Tribunal in the current matter notes. Paragraph 67 states:
"67. However, in the meantime, making such sense as we can from this section, the common factors are as follows:
(1) The injury or condition in all items must be permanent
(2)The overall degree of handicap or incapacity flowing from the injury or condition must also be permanent although there may be minor fluctuations which occur from time to time
(3)The nature of the injury or condition must be severe
(4)The injury or condition must in particular affect the veteran's ability to move
(5)Item 3 requires a comparison to be made having regard to the use of crutches and walking sticks
(6)Items 9 and 10 require comparison to be made without regard to the use of mechanical aids or prostheses."
In Re Clifford the Tribunal made a determination that Mr Clifford was entitled to RTA. In the current matter the respondent decided that Mr Johnson was entitled to RTA but at the lower rate. As previously stated Mr Johnson sought a higher rate from this Tribunal.
Mr Johnson gave evidence as to the effect his condition has on his mobility. He stated that his locomotion is affected at a greater rate than that although he was not sure if to a sufficient degree to warrant the higher rate. He stated that he was rather looking for something in between the two rates. The Tribunal in arriving at its conclusion takes into account the factors set out in Re Clifford as well as the provisions of section 104 of the Act.
The Tribunal is satisfied that despite the oral and written information provided to it by Mr Doube for the respondent as well as that of Mr Johnson at the hearing, the issue before it was in fact a simple one and which is narrow in its scope.
It is not in dispute as to the incapacity suffered by the applicant, for in that respect he is in receipt of TPI pension. What remains for the Tribunal to determine is the effect of his incapacity, and in particular, whether such effects are comparable to those listed disabilities set out in the table contained in sub-section 104(1) of the Act. In this respect, the question for the Tribunal is whether he can be said to fit items 1, 2 or 3 of that table.
The Tribunal is satisfied that the rates set are the two already referred to with no other rate provided for between the two. Mr Johnson agreed that the legislation was such that the Tribunal could only determine within the provisions of the legislation and in this case whether or not he was eligible for the higher rate. Mr Johnson spoke of the unfairness of the legislation and the Tribunal considers that the table in sub-section 104(1) of the Act is far from perfect and indeed its limitations may be seen to be lacking in equity. The Tribunal indicated to the applicant that this was something that the respondent should give attention to with the hope that this anomaly be corrected.
The Tribunal is, therefore, left but to look at the eligibility to the applicant of the higher rate. In respect of item 1 of sub-section 104(1), the applicant does not satisfy this as this requires for both legs to be amputated above the knees. Likewise he does not satisfy item 2 which provides for negligible powers of locomotion so as to be capable of moving, with the aid of crutches or walking sticks, for short distances only. Whilst in his evidence he stated that he can only walk short distances at a time, such movement is without the aid of crutches or walking sticks.
In considering item 3, the Tribunal needs to consider whether the applicant is handicapped in his ability to move from one place to another to an extent that is similar in degree to either a person with both legs amputated above the knees or with negligible powers of locomotion so as to be capable of moving, with the aid of crutches or walking sticks, for short distances only. In Re Clifford, locomotion is considered to refer to the "ability" to move from one place to another.
In his application for RTA (T3/11) the applicant in answer to questions set out therein stated:
"9.       List the disability/ies that affect your powers of locomotion.
Ans:'Unable to walk more than 150-200 metres back ache dizzy spells vertigo'
10.Describe how the disability/ies affect the way you are able to walk and move around.
Ans:     'Tinnitus vertigo tend to force me to walk to the left'
11.      How far can you walk before you need to rest?
Ans:     'As little as 100 mtrs at times other times 200-250 mtrs'
12.      How far can you walk in 30 minutes if you take short rests?
Ans:     '2-3 km on a good day, 1 km on a bad day'"
The applicant's ability to walk as little as 100 metres at times was in reference to the distance he could walk before the need to rest and other times some 200 to 250 metres. He further stated that on a bad day he could walk a distance of one kilometre in thirty minutes, whilst on a good day he could walk two to three kilometres in that time. He also stated that he did not use a walking aid.
On the evidence before it, the Tribunal accepts that the applicant's ability to move from one place to another is affected as a result of his disabilities. However, on the evidence before the Tribunal, such restrictions cannot be said as a matter of factual comparison to be as severe in respect of capacity to move from one place to another as the restrictions imposed by the disabilities in items 1 and 2. The Tribunal accepts that the applicant can only walk short distances without needing rest. This must be considered as a matter of degree however, and whilst the applicant has handicap to locomotion the Tribunal cannot be satisfied as a matter of fact that the severity is comparable to items 1 and 2 of the table and so finds. The applicant does not satisfy item 3 of the table and the Tribunal so finds. He is, therefore, ineligible at this stage for the higher rate.
For the reasons outlined above and pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decision under review.
I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member J.A. Kiosoglous MBE.
Signed:   (Signed)
  Barbara Armstrong, Associate
Date/s of Hearing  10 July 2002
Date of Decision  10 July 2002
Counsel for the Applicant        In person
Solicitor for the Applicant         -
Counsel for the Respondent    Mr Greg Doube
Solicitor for the Respondent    DVA