Kershaw v Repatriation Commission
[2000] FCA 1802
•12 DECEMBER 2000
FEDERAL COURT OF AUSTRALIA
Kershaw v Repatriation Commission [2000] FCA 1802
VETERANS – pension assessment – lifestyle rating – whether SUB-criteria in Guide merely illustrative
Veterans Entitlement Act 1986 (Cth) ss 23(4)(c), 29(1)(a)7
Table 22.2 Guide the tax Assessment of Rates of Veterans’ Pension
Collins v Repatriation Commission (1994) 33 ALD 557 applied
FRANCIS HENRY KERSHAW v REPATRIATION COMMISSION
NO. T 20 OF 2000HEEREY J
12 DECEMBER 2000
MELBOURNE (HEARD IN HOBART)
IN THE FEDERAL COURT OF AUSTRALIA
TASMANIA DISTRICT REGISTRY
T 20 OF 2000
BETWEEN:
FRANCIS HENRY KERSHAW
APPLICANTAND:
REPATRIATION COMMISSION
RESPONDENTJUDGE:
HEEREY J
DATE OF ORDER:
12 DECEMBER 2000
WHERE MADE:
MELBOURNE (HEARD IN HOBART)
THE COURT ORDERS THAT:
1. The application is dismissed.
2. The applicant pay the respondent’s costs including reserved costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
TASMANIA DISTRICT REGISTRY
T 20 OF 2000
BETWEEN:
FRANCIS HENRY KERSHAW
APPLICANTAND:
REPATRIATION COMMISSION
RESPONDENT
JUDGE:
HEEREY J
DATE:
12 DECEMBER 2000
PLACE:
MELBOURNE (HEARD IN HOBART)
REASONS FOR JUDGMENT
The applicant appeals against a decision of the Administrative Appeals Tribunal which affirmed decisions of the Veterans’ Review Board and the Repatriation Commission rejecting the applicant’s application for an increase in his pension by fifty per cent pursuant to s 23(4) of the Veterans Entitlement Act 1986 (Cth) (“the Act”).
The only condition prescribed by s 23(4) in issue was that contained in s 23(4)(c) viz:
“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 [‘the Guide’].”
The 5th edition of the Guide, which commenced on 18 April 1998, sets out the criteria by reference to which the extent of the incapacity of a veteran resulting from war-caused injury or disease shall be assessed – see s 29(1)(a).
The Guide is part of the law authorised by the Act, and has effect according to its terms: Collins v Repatriation Commission (1994) 33 ALD 557 at 566. The Guide provides the rules whereby incapacity is to be assessed. The task of the Commission (and on review the Tribunal) is to apply the facts of the particular case to the rules so expressed: Collins at 567.
The Guide provides for two elements of assessment of degree of incapacity – medical impairment and lifestyle effects. The later is dealt with in Chapter 22 of the Guide, which provides that 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 (p 263).
Under the heading “How are lifestyle effects assessed?” the Guide states (p 264)
“The effects of impairment on lifestyle are specific to a veteran and are determined by reference to four components of that veteran’s life:
·personal relationships,
·mobility,
·recreational and community activities, and
·employment and domestic activities.”
The rating that best accommodates the veteran’s circumstances is to be selected from the descriptions in Tables 22.1 to 22.5. A rating is given to each of these components and the average, rounded to the nearest integer, is the final lifestyle rating (p 265).
On the review the Tribunal’s assessment was
·for personal relationships 5. This was higher than the rating proposed by the Commission.
·for each of recreational and communal activities and employment and domestic activities, 6. These ratings were common ground
·for mobility, 3.
·As a consequence the applicant failed the s 24(4)(c) test because his total of 20 (5+6+6+3) divided by 4 was less than the required lifestyle rating of 6.
As to the critical issue of mobility, the Tribunal said:
“13. 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.
14. 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.
15. 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.
16. 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.
17. 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.”
Table 22.2 of the Guide dealing with mobility is as follows:
Lifestyle Effects
Table 22.2MOBILITY
CriteriaRatings
NIL No or minimal restrictions of mobility, ie full mobility.
ONE Intermittent or periodic effects on mobility:-mobility affected only when impairment eg migraine, angina, sciatica, or panic attack, is present. Between attacks there are no restrictions.
-if there is permanent impairment, eg night blindness, the effect is only sporadically limiting.
TWOMild effects on mobility, eg slowing of pace in some circumstances, or need for a walking stick
THREEModerately reduced mobility:
-mobility curtained or diminished because of frailty, lack of confidence; or moderate agoraphobia;
-travel as a passenger, in private and public transport, possible in most circumstances without undue difficulty (‘undue difficulty’ not being the need for a break in travel or for special seating arrangements);
-dependent on a walking stick or similar device. Independent in leaving home and reaching destination, but has some difficulty.
FOURMarkedly reduced mobility:
-assistance is needed to cope with public or private transport;
-there is considerable difficulty in travelling from home to destination;
- restricted in the use of at least two forms of public transport.
FIVEMajor impediments to mobility:
-dependent upon others, or mechanical devices such as wheelchairs;
-unable to use most forms of public transport;
-able to drive a car only in a situation of emergency and then only for a short distance.
SIXSevere impediments to mobility:
-restricted to home and immediate vicinity, unless door to door transport and assistance from others are provided;
- unable to drive a car in any circumstances whatever.
SEVENRestricted to room or chair:
-severe agoraphobia permanently confines veteran to home;
- dependent upon others, or hoists or similar appliances, for getting in and out of bed.
One rating from this table is to be selected.
On the appeal counsel for the applicant argued that the different indicators of each rating eg “assistance is needed to cope with public or private transport” (which I will refer to as sub-criteria) were merely illustrative and not binding.
I do not accept this argument. The sub-criteria are part of the assessment system laid down by the Guide which, as already explained, has legislative force.
The underlying assumption is that an individual veteran must fit in one, and only one, of the seven ratings. Obviously enough there would be many instances where a veteran satisfied one or more (but not all) of the sub-criteria within one rating and other sub-criteria in other ratings. The approach of the Tribunal in the present case was to see whether the evidence supported a finding that the applicant satisfied any of the sub-criteria of rating 5. The Tribunal’s conclusion that he did not was a finding of fact which cannot be challenged in this Court.
In the circumstances of the present case the result would be the same whether the applicant was assessed in rating 3 or rating 4 for mobility. He needed at least a rating 5 to obtain the lifestyle effects average of 6. So it is not necessary to decide whether the correct approach is (i) to make an assessment in a lower rating unless a veteran satisfies all the sub-criteria of a higher rating; or (ii) to make an assessment in a higher rating if the veteran satisfies at least one of the sub-criteria in the higher rating; or (iii) to make an assessment as to which is the more appropriate rating in the light of all the evidence as long as the veteran satisfies at least one sub-criterion in the rating selected. In the present case the Tribunal paid regard to the sub-criteria as it was required to do. No legal error has been shown.
The application will be dismissed with costs, including reserved costs.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey. Associate:
Dated: 12 December 2000
Counsel for the Applicant: R M Webster Solicitor for the Applicant: R M Webster Counsel for the Respondent: P Hanks QC Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 5 December 2000 Date of Judgment: 12 December 2000
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