Kershaw and Repatriation Commission - [2000] AATA 766

DECISION AND REASONS FOR DECISION [2000] AATA 766

ADMINISTRATIVE APPEALS TRIBUNAL )

) No T2000/69

VETERANS' APPEALS   DIVISION     )
           Re      FRANCIS HENRY KERSHAW
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Ms A F Cunningham (Part-time Member)

Date17 August 2000
PlaceHobart

Decision      The decision under review is affirmed.
   [Sgd A F Cunningham]
  Part-Time Member
CATCHWORDS
Veterans' appeals – lifestyle rating.

STATEMENT OF REASONS FOR DECISION

30 August 2000 Ms A F Cunningham (Part-time Member)

This is a statement of reasons pursuant to s.43(2A) of the Administrative Appeals Tribunal Act 1975 in respect of a decision made on 17 August 2000.
This was the review of a decision made on 13 October 1999 by the Repatriation Commission ("the Commission") and affirmed by the Veterans' Review Board on 16 May 2000, rejecting the applicant's application to increase his pension above the General Rate of 100%.
The applicant is seeking a pension payable at the Extreme Disablement Adjustment in accordance with the provisions of s.22 of the Veterans' Entitlements Act 1986 ("the Act").
The applicant was represented by Mr. R. M. Webster, and the respondent Commission by Mr. M. Castle.
The applicant appeared and gave evidence at the hearing. Mr. Castle called no evidence on behalf of the respondent. The 'T' documents were tendered pursuant to s.37 of the Administrative Appeals Tribunal Act 1975.
The application is made pursuant to the provision s.22 of the Act. A concession was made on behalf of the respondent that the applicant satisfies the requisite requirements of the section apart from the requirement of a lifestyle rating of at least 6 points which is determined in accordance with the approved Guide to the Assessment of Rates of Veterans Pensions.
The requisite standard of proof is as contained in s.120(4) being that the Tribunal must decide all relevant matters to its reasonable satisfaction.
The applicant had a number of accepted medical conditions.
Personal Relationship
The lifestyle affects are listed at Chapter 22 of the Guide. The applicant contends that an appropriate rating for the applicant's personal relationships is 5 whereas it was contended by Mr. Castle 4 was an appropriate rating. Mr. Castle submitted that the applicant had a satisfactory relationship with his wife, albeit a testing one, and that this was not related to his disabilities.
The evidence from the applicant was however that his relationship with his wife was "just alright", as she maintains that he is too quiet and does not take much notice of what she says to him. The applicant said that for half the time he does not hear what she says. The Tribunal concludes that there is a somewhat strained relationship between the applicant and his wife and that this is due to his hearing impairment, an accepted medical condition. The applicant's evidence was that his relationships with other people are confined to the family which include a grand-daughter, his daughter who visits weekly and her husband with whom the applicant does not enjoy much of a relationship because as his evidence suggested, he has difficulty communicating because of his hearing disability.
The applicant said that he had lost touch with previous friends. The Tribunal accepts the reason for this is because of his communication difficulties. When asked why he does not wear a hearing aid, the applicant's response was that it exacerbated the dermatitis in his ear.
The Tribunal determines that the evidence warrants a higher rating than that contended for by Mr. Castle. The evidence was that the applicant has no relationships with others outside his family and spends no time socialising as he previously used to do. The Tribunal accepts that the relationship with his wife is severely affected by his hearing impairment and the reason why he does not relate well to his son-in-law is because of his communication difficulties. The Tribunal determines that the evidence supports the criteria prescribed for a rating of 5.
Mobility
In relation to this category the Tribunal cannot accept that the evidence presented justifies a higher rating than 4, and concludes that 3 is a more appropriate rating on the evidence presented.
There was no suggestion that the applicant is dependent upon others or mechanical devices such as a wheelchair. His evidence in relation to the use of public transport was that he chooses not to because of his fear of falling and there was no medical evidence linking his falls to an accepted disability.
The evidence in relation to his ability to drive was that he prefers not to because of safety reasons caused by a lack of feeling in his hands, a restriction with neck movements as well as his nervous condition. The Tribunal admires his judgment in this regard.
However in the Tribunal's view he does not satisfy the indicators for a rating of 5 which requires more than a mere difficulty with his driving a motor vehicle.
Even for a rating of 4 there is no evidence that the applicant needs assistance to cope with public or private transport. The Tribunal accepts that he has difficulty in travelling from his home to his destinations and chooses to travel by taxi because he is not keen to drive. The Tribunal determines that a rating of 3 is appropriate for the applicant's restrictions resulting from his accepted disabilities. The evidence was that he can independently leave his home and reach his destination, but experiences some difficulty.
Recreational and Community Activities; Domestic Activities
The Tribunal was informed that the respondent accepts a rating of 6 for the lifestyle effects of recreational and community activities and domestic activities, and the Tribunal has no difficulty in ascribing a rating of 6 for each of these categories. However a total rating of 20 when divided by 4, results in an average of 5, which is less than the rating of 6 required under the relevant legislative provisions for the award of an extreme disablement adjustment pension.
The applicant's application therefor fails and the appeal is dismissed with the decision under review being affirmed.
I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Part-time Member)
Signed:         .....................................................................................
  Personal Assistant
Date/s of Hearing  17 August 2000
Date of Decision  17 August 2000
Solicitor for the Applicant         Mr R M Webster
Solicitor for the Respondent    Mr M. Castle (Department of Veterans' Affairs)