Lewis and Repatriation Commission (Veterans' entitlements)

[2020] AATA 2366

Lewis and Repatriation Commission (Veterans' entitlements) [2020] AATA 2366 (17 July 2020)

Division:VETERANS’ APPEALS DIVISION

File Number:2019/          6932

Re:BARRY LEWIS  

APPLICANT

AndREPATRIATION COMMISSION

RESPONDENT

DECISION

Tribunal:Senior Member Katter

Date:17 July 2020

Place:Brisbane

The decision under review is set aside and the matter is remitted for reconsideration in accordance with the direction that there were exceptional circumstances that justify extending the period of 12 months as to the travelling expenses claim for the period 29 May 2017 to 21 March 2018.

.......................[SGD]....................................

Senior Member Katter

CATCHWORDS

VETERANS’ AFFAIRS – claim for travel expenses – where claims received after the statutory twelve-month time limit – whether exceptional circumstances exist – decision under review set aside and remitted for reconsideration

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)
Veterans’ Entitlements Act 1986(Cth)

CASES

Turner and Repatriation Commission (Veterans' entitlements) [2019] AATA 2961

REASONS FOR DECISION

Senior Member Katter

17 July 2020

APPLICATION

1. The Applicant seeks a review of the decision by the Respondent dated 9 September 2019 to not pay specific travelling expenses for particular travel claimed by the Applicant[1].    

   [1]Exhibit 1, Section 37 T-documents, T2, page 6.

2. The Applicant lodged a claim for travelling expenses with the Respondent on 25 March 2019[2].  As to the Applicant’s “Travel details” on the claim form, the Applicant wrote “Attached list – multiple trips … please see attached”[3].  The attached list is four pages in length, in handwriting and stated: 

   [2]Exhibit 1, Section 37 T-documents, T4, pages 14-19.

   [3]Exhibit 1, Section 37 T-documents, T4, page 15.

Date	Medical	Dr Name	Km
29 May 17	NQ Eye Park Haven	Eye Specialist	17
30   “     “	Cateract Op. [sic]	Kings Road	16
31 May 17	Cateract [sic]	Kings Road	16
7 June 17	Rosslea Medical	18
2    “   17	Heart Bypass Op.	Admit to Mater	13
4 July 17	Discharged from Mater	“	“
6    “   17	Dressing change Mater	Mater Hospital	13
11   “   17	“          “           “	“	13
14   “   17	“           “           “	“	13
18 July 17	Rosslea Medical	Dr Munroe	18
21   “   17	Dressing change	Mater Hospital	13
24   “   17	Rosslea Medical	Podiatrist	18
26   “   17	NQ Eye	Park Haven	17
26   “   17	Dressing change	Mater	13
28 July 17	Heart Rehab Orientation	Mater	13
4 Aug 17	New Prosthetics	Kirwan	14
4   “   17	Dressing change	Mater Hospital	13
8   “   17	Mater	Dr. John Rogers	13
11   “   17	Dressing change	Mater	13
14   “   17	Heart rehab	Mater	13
28   “   17	Rosslea Medical	Podiatritrcs [sic]	18
28 “ 17	Dressing change	Mater	13
30 “ 17	Dressing change	Mater	13
31 Aug 17	Echo Cardiograph	Mater	13
1 Sept 17	Rosslea Medical	Dr. Manoz	18
4 “ 17	Dressing change	Rosslea Medical	18
7 “ 17	Amputee clinic	Kirwan	14
8 “ 17	“ “	“	14
11 “ 17	Dressing change	Mater	13
18 “ 17	Dressing change	Mater	13
25 “ 17	Dressing change	Mater	13
26 Sept 17	NQ Eye	Park Haven	17
27 Sept 17	Dressing change	Mater Hospital	13
29 “ “	“ “	“ “	13
3 Oct 17	“ “	“ “	13
6 “ 17	“ “	“ “	13
9 Oct 17	Rosslea Medical	Podiatrist	18
9 “ 17	Dressing change	Mater Hospital	13
13 “ 17	Mater Hospital	Dr John Rogers	13
16 “ 17	Mater	Dr Schrale  (heart)	13
18 “ 17	Mater Dressing Change	13
23 “ 17	Mater Rehab	(Heart)	13
25 “ 17	Change dressing	Mater	13
30 “ 17	Change dressing	Mater Hospital	13
2 Nov 17	Amputee clinic	Kirwan	12
14 “ 17	Rosslea Medical	Dr Munoz	18
17 “ 17	Amputee clinic	Prosthitics [sic]	14
23 “ 17	Dressing change	Mater	13
Date	Medical	Dr Name	Km
27 “ 17	“ “	“	13
30 Nov 17	“ “	“	13
16 Nov 17	Mater	Dr Iyer (Mater)	13
7 Dec 17	Dressing change	Mater Hospital	13
8 Dec 17	Prosthetics	Kirwan	14
12 “ 17	Rosslea Medical	Rosslea Medical	18
14 “ 17	Dressing change	Mater Hospital	13
18 “ 17	Podiatrist	Rosslea Medical	18
20 “ 17	Mater Hospital	Dr Iyer	13
22 “ 17	Prosthestics [sic)	Kirwan	13
28 “ 17	Change dressing	Mater	13
15 Jan 18	Mater	Dr Rogers	13
29 “ 18	Podiatist [sic]	Rosslea Medical	18
14 Feb 18	Rosslea Medial [sic]	Dr Munoz	18
23 “ 18	“ “	“ “	18
1 Mar 18	Dressing change	Mater	17
19 “ 18	Podiatrist	Rosslea Medical	18
21 “ 18	Mater Hospital	Dr Schrale	13
26 “ 18	“ “	“	13
5 April 18	Amputee clinic	Kirwan	14
9 “ 18	Mater	Dr Rogers	13
30 “ 18	Podiatrist	Rosslea Medical	18
1 May 18	Dressing change	Kirwan Clinic	14
10 “ 18	“ “	“ “	14
14 “ 18	“ “	“ “	14
21 “ 18	“ “	“ “	14
4 June 18	“ “	“ “	14
7 “ 18	“ “	“ “	14
11 Jun 18	Dressing change	Kirwan clinic	14
11 “ 18	Podiatrist	Rosslea clinic	18
5 July 18	Amputee clinic	Kirwan	14
6 “ 18	Mater	Dr. Rogers	13
16 “ 18	NQE	Eye examination	17
27 July 18	Amputee clinic	Kirwan	14
3 Aug 18	Rosslea Medical	18
8 “ 18	Townsville Hospital	Plastic Surgery
10 “ 18	Rosslea Medical	Dr Munoz	18
11 “ 18	“ “	“ “	18
13 “ 18	“ “	“ “	18
27 Aug 18	Podiatrist	Rosslea clinic	18
24 “ “	Mater Heart Health	13
31 Aug 18	Mater Blood Test	13
3-12 Sept 18	Chest operation	13
14 ” 18	Back in hospital	13
30 “ 18	Home from operation	13
5 Nov 18	Rosslea Medical	Dr Munoz	18
14 “ 18	Mater	Dr Rogers	17
19 “ 18	Care Plan	Rosslea Medical	18
1 Dec 18	NQ Eye	Park Haven	17
Date	Medical	Dr Name	Km
12 Dec 18	Rosslea Medical	Rosslea	18
4 Jan 19	Back in Hospital	Chest operation
27 “ 19	Home from Townsville Hospital
30 “ 19	Change dressing	Kirwan	14
9 Feb 19	Mater	Dr Schrale	13
12 “ 19	Dr Rogers	Park Haven	17
20 “ 19	Phrosthetic [sic] Centre	Kirwan	14
4 Mar 19	Podiatrist	Rosslea clinic	18
6 “ 19	Dressing change	Kirwan clinic	14
13 “ 19	“ “	“ “	14
18 Mar 19	Dressing change	Kirwan clinic	14
22 Mar 19	Dressing change	“ “	14

1. On 29 March 2019 the Respondent allocated a claim number as to the claim for travelling expenses received on 23 March 2019 and stated[4]: 

   [4]Exhibit 1, Section 37 T-documents, T5, page 20.

   “Travelling Expenses Claim QLD 2019-013686   Total Payment $211.14

   Thank you for your claim for travelling expenses which was received on 23 March 2019.  A claim number has been allocated as shown above.

   Please note when you submit more than one D800 claim form, they will be processed together under one claim reference number.

   Your claim has been accepted and a payment of $211.14 has been made.

   The above amount has been paid into your bank account, and should be available within 5 business days of the date of this letter.  Please contact the Department if you have not received payment after 10 days.

   Details of your claim are as follows:

   ·     29/05/2017 to N Q Eye.  Your claim was received more than 12 months after the date of travel.

   ·     30/05/2017 to Opthalmologist.  Your claim was received more than 12 months after the date of travel.

   ·     31/05/2017 to Opthalmologist.  Your claim was received more than 12 months after the date of travel.

   ·     02/06/2017 to Mater Hospital.  Your claim was received more than 12 months after the date of travel.

   ·     17/06/2017 to Rosslea Medical.  Your claim was received more than 12 months after the date of travel.

   ·     04/07/2017 from Mater Hospital.  Your claim was received more than 12 months after the date of travel.

   ·     06/07/2017 to Mater Hospital.  Your claim was received more than 12 months after the date of travel.

   ·     11/07/2017 to Mater Hospital.  Your claim was received more than 12 months after the date of travel.

   ·     14/07/2017 to Mater Hospital.  Your claim was received more than 12 months after the date of travel.

   ·     18/07/2017 to Rosslea Medical.  Your claim was received more than 12 months after the date of travel.

   ·     21/07/2017 to Mater Hospital.  Your claim was received more than 12 months after the date of travel.

   ·     24/07/2017 to Rosslea Medical.  Your claim was received more than 12 months after the date of travel.

   ·     25/07/2017 to Mater Hospital.  Your claim was received more than 12 months after the date of travel.

   ·     26/07/2017 to N Q Eye.  Your claim was received more than 12 months after the date of travel.

   ·     28/07/2017 to Mater Hospital.  Your claim was received more than 12 months after the date of travel.

   ·     04/08/2017 to Prosthetics.

   ·     04/08/2017 to Mater Hospital.  Your claim was received more than 12 months after the date of travel - your claim was received more than 12 months after the date of travel.

   ·     11/08/2017 to Mater Hospital.  Your claim was received more than 12 months after the date of travel.

   ·     14/08/2017 to Mater Hospital.  Your claim was received more than 12 months after the date of travel.

   ·     28/08/2017 to Rosslea Medical.

   ·     28/08/2017 to Mater Hospital.  Your claim was received more than 12 months after the date of travel - your claim was received more than 12 months after the date of travel.

   ·     30/08/2017 to Mater Hospital.  Your claim was received more than 12 months after the date of travel.

   ·     31/08/2017 to Mater Hospital.  Your claim was received more than 12 months after the date of travel.

   ·     04/09/2017 to Rosslea Medical.  Your claim was received more than 12 months after the date of travel.

   ·     07/09/2017 to Amputee Clinic.  Your claim was received more than 12 months after the date of travel.

   ·     08/09/2017 to Amputee Clinic.  Your claim was received more than 12 months after the date of travel.

   ·     11/09/2017 to Mater Hospital.  Your claim was received more than 12 months after the date of travel.

   ·     18/09/2017 to Mater Hospital.  Your claim was received more than 12 months after the date of travel.

   ·     25/09/2017 to Mater Hospital.  Your claim was received more than 12 months after the date of travel.

   ·     26/09/2017 to N Q Eye.  Your claim was received more than 12 months after the date of travel.

   ·     27/09/2017 to Mater Hospital.  Your claim was received more than 12 months after the date of travel.

   ·     29/09/2017 to Mater Hospital.  Your claim was received more than 12 months after the date of travel.

   ·     03/10/2017 to Mater Hospital.  Your claim was received more than 12 months after the date of travel.

   ·     06/10/2017 to Mater Hospital.  Your claim was received more than 12 months after the date of travel.

   ·     09/10/2017 to Rosslea Medical.

   ·     09/10/2017 to Mater Hospital.  Your claim was received more than 12 months after the date of travel - your claim was received more than 12 months after the date of travel.

   ·     13/10/2017 to Dr Jon Rogers.  Your claim was received more than 12 months after the date of travel.

   ·     16/10/2017 to Mater Hospital - your claim was received more than 12 months after the date of travel.

   ·     18/10/2017 to Mater Hospital.  Your claim was received more than 12 months after the date of travel.

   ·     23/10/2017 to Mater Hospital.  Your claim was received more than 12 months after the date of travel.

   ·     25/10/2017 to Mater Hospital.  Your claim was received more than 12 months after the date of travel.

   ·     30/10/2017 to Mater Hospital.  Your claim was received more than 12 months after the date of travel.

   ·     02/11/2017 to Amputee Clinic.  Your claim was received more than 12 months after the date of travel.

   ·     14/11/2017 to Rosslea Medical.  Your claim was received more than 12 months after the date of travel.

   ·     16/11/2017 to Mater Hospital.

   ·     16/11/2017 to Mater Hospital.  Your claim was received more than 12 months after the date of travel - your claim was received more than 12 months after the date of travel.

   ·     17/11/2017 to Amputee Clinic.  Your claim was received more than 12 months after the date of travel.

   ·     23/11/2017 to Mater Hospital.  Your claim was received more than 12 months after the date of travel.

   ·     27/11/2017 to Mater Hospital.  Your claim was received more than 12 months after the date of travel.

   ·     30/11/2017 to Mater Hospital.  Your claim was received more than 12 months after the date of travel.

   ·     07/12/2017 to Mater Hospital.  Your claim was received more than 12 months after the date of travel.

   ·     12/12/2017 to Prosthetics.  Your claim was received more than 12 months after the date of travel.

   ·     14/12/2017 to Mater Hospital.  Your claim was received more than 12 months after the date of travel.

   ·     18/12/2017 to Rosslea Medical.  Your claim was received more than 12 months after the date of travel.

   ·     20/12/2017 to Mater Hospital.  Your claim was received more than 12 months after the date of travel.

   ·     22/12/2017 to Prosthetics.  Your claim was received more than 12 months after the date of travel.

   ·     15/01/2018 to Mater Hospital.  Your claim was received more than 12 months after the date of travel.

   ·     29/01/2018 to Rosslea Medical.  Your claim was received more than 12 months after the date of travel.

   ·     23/02/2018 to Rosslea Medical.  Your claim was received more than 12 months after the date of travel.

   ·     01/03/2018 to Mater Hospital.  Your claim was received more than 12 months after the date of travel.

   ·     19/03/2018 to Rosslea Medical.  Your claim was received more than 12 months after the date of travel.

   ·     21/03/2018 to Mater Hospital.  Your claim was received more than 12 months after the date of travel.

   ·     26/03/2018 to Mater Hospital.  Your claim was received more than 12 months after the date of travel.

   ·     05/04/2018 to Amputee Clinic.  Your claim was received more than 12 months after the date of travel.

   ·     09/04/2018 to Mater Hospital.  Your claim was received more than 12 months after the date of travel.

   ·     30/04/2018 to Rosslea Medical.  Total $6.27 comprising $6.27 for 18 Kms.

   ·     01/05/2018 to Kirwan Clinic.  Total $4.88 comprising $4.88 for 14 Kms.

   ·     10/05/2018 to Kirwan Clinic.  Total $4.88 comprising $4.88 for 14 Kms.

   ·     14/05/2018 to Kirwan Clinic.  Total $4.88 comprising $4.88 for 14 Kms.

   ·     21/05/2018 to Kirwan Clinic.  Total $4.88 comprising $4.88 for 14 Kms.

   ·     04/06/2018 to Kirwan Clinic.  Total $4.88 comprising $4.88 for 14 Kms.

   ·     07/06/2018 to Kirwan Clinic.  Total $4.88 comprising $4.88 for 14 Kms.

   ·     11/06/2018 to Kirwan Clinic.  Total $4.88 comprising $4.88 for 14 Kms.

   ·     11/06/2018 to Rosslea Medical.  Total $6.27 comprising $6.27 for 18 Kms.

   ·     05/07/2018 to Amputee Clinic.  Total $4.97 comprising $4.97 for 14 Kms.

   ·     06/07/2018 to Dr Rogers.  Total $4.62 comprising $4.62 for 14 Kms.

   ·     16/07/2018 to N Q Eye.  Total $6.04 comprising $6.04 for 17 Kms.

   ·     27/07/2018 to Amputee Clinic.  Total $4.97 comprising $4.97 for 14 Kms.

   ·     03/08/2018 to Rosslea Medical.  Total $6.39 comprising $6.39 for 18 Kms.

   ·     08/08/2018 to Dr Jon Rogers.

   ·     08/08/2018 to Townsville Hospital.  Total $6.39 comprising $6.39 for 18 Kms.

   Your claim was received more than 12 months after the date of travel.  

   ·     10/08/2018 to Rosslea Medical.  Total $6.39 comprising $6.39 for 18 Kms.

   ·     11/08/2018 to Rosslea Medical.  Total $6.39 comprising $6.39 for 18 Kms.

   ·     13/08/2018 to Rosslea Medical.  Total $6.39 comprising $6.39 for 18 Kms.

   ·     24/08/2018 to Mater Hospital.  Total $4.62 comprising $4.62 for 13 Kms.

   ·     27/08/2018 to Rosslea Medical.  Total $6.39 comprising $6.39 for 18 Kms.

   ·     31/08/2018 to Mater Hospital.  Total $4.62 comprising $4.62 for 13 Kms.

   ·     03/09/2018 to Mater Hospital.  Total $4.62 comprising $4.62 for 13 Kms.

   ·     12/09/2018 to Mater Hospital.  Total $4.62 comprising $4.62 for 13 Kms.

   ·     14/09/2018 to Mater Hospital.  Total $4.62 comprising $4.62 for 13 Kms.

   ·     30/09/2018 to Mater Hospital.  Total $4.62 comprising $4.62 for 13 Kms.

   ·     05/11/2018 to Rosslea Medical.  Total $6.39 comprising $6.39 for 18 Kms.

   ·     14/11/2018 to Mater Hospital.  Total $4.62 comprising $4.62 for 13 Kms.

   ·     19/11/2018 to Rosslea Medical.  Total $6.29 comprising $6.29 for 18 Kms.

   ·     01/12/2018 to N Q Eye.  Total $6.04 comprising $6.04 for 17 Kms.

   ·     04/01/2019 to Mater Hospital.  Total $4.62 comprising $4.62 for 13 Kms.

   ·     27/01/2019 to Mater Hospital.  Total $4.62 comprising $4.62 for 13 Kms.

   ·     30/01/2019 to Mater Hospital.  Total $4.62 comprising $4.62 for 13 Kms.

   ·     09/02/2019 to Mater Hospital.  Total $4.62 comprising $4.62 for 13 Kms.

   ·     12/02/2019 to Dr Rogers.  Total $4.62 comprising $4.62 for 13 Kms.

   ·     14/02/2019 to Rosslea Medical.  Your claim was received more than 12 months after the date of travel.

   ·     20/02/2019 to Prosthetics.  Total $4.97 comprising $4.97 for 14 Kms.

   ·     04/03/2019 to Rosslea Medical.  Total $6.39 comprising $6.39 for 18 Kms.

   ·     06/03/2019 to Kirwan Clinic.  Total $4.97 comprising $4.97 for 14 Kms.

   ·     13/03/2019 to Kirwan Clinic.  Total $4.97 comprising $4.97 for 14 Kms.

   ·     18/03/2019 to Kirwan Clinic.  Total $4.97 comprising $4.97 for 14 Kms.

   ·     22/03/2019 to Kirwan Clinic.  Total $4.97 comprising $4.97 for 14 Kms.

   The Department cannot pay for the visit being claimed as it is outside the 12 month lodgement period allowed under the Veteran’s Entitlements Act 1986.  Your claim may be reconsidered under exceptional circumstances but information supplied to support your claim must be in writing.”

2. On 16 July 2019 the Applicant wrote a letter, seeking statements from medical specialists, stating[5]:

   “[The Respondent] only approved the last 12 months and only pa[id] for 12 months[.] I told them because of all my medical appointments I didn’t know whe[ther] I was coming or going. …

   [The Respondent] inform[ed] me to get a statement from the doctor specialist that I had medical problems[,] as I told [the Respondent] why I waited until my medical chest problem was healed and do the claims on one Form.”

   [5]Exhibit 1, Section 37 T-documents, T7, page 28.

3. On 2 August 2019 Dr Mark Armstrong and Dr Robert Norton provided a letter, stating[6]:

   “I saw [the Applicant] in the Microbiology Clinic today (30/07/2019) and can confirm that he has had extensive medical illnesses requiring hospital admission including in January 2019, as well as ongoing outpatient follow-up by multiple medical teams and will get ongoing follow-up.  This has required significant transport requirements and the need for ongoing support to [the Applicant] .”

   [6]Exhibit 1, Section 37 T-documents, T8, page 29.

4. In an un-dated letter, Dr Hong Wong, on behalf of Dr Juanita Ling, stated[7]:

   “This letter is to support [the Applicant] in his medical claims with the [Respondent].
   [The Applicant] is known to the Townsville Plastics Clinics since 2018, where our plastics surgeon Dr Ling was working in conjunction with the Cardiothoracics team on a series of operations on [the Applicant’s] chest.

   [The Applicant] has two coronary artery bypass grafts in 2017 and was unfortunate enough to have a chronic sternotomy wound infection and osteomyelitis.  Dr Ling created a pectoral flap on 03/09/18, and he had further debridements in September 2018 and January 2019.

   He has had quite a protracted and difficult time, with at least five large surgeries since 2017, and it is understandable that some of his claims may have been delayed.”

   [7]Exhibit 1, Section 37 T-documents, T6, page 27.

1. By a letter to the Applicant dated 9 September 2019, the Respondent issued a reviewable decision which stated[8]:  

   [8]Exhibit 1, Section 37 T-documents, T9, page 30.

   “Thank you for your letter received by the Department on 3 June 2019 and supporting documentation received on 12 August 2019 regarding the reconsideration for rejected travelling expenses claims QLD 2019-013686 that are over 12 months.  I have reviewed the original decision under sub section 9AI of the Veterans’ Entitlements Regulations 1986 (VER).

   Legislation

   Under section 112 of the Veterans’ Entitlements Act 1986 (VEA) some claims received after the statutory twelve month time limit could be considered for payment, where the commission agrees three [sic] are ‘Exceptional Circumstances’

   To be considered under this rule, the ‘Exceptional Circumstances’ provided by the eligible person has to be found by the delegate of the Commission to be beyond the eligible person’s control.

   The reasons for the delay that would be accepted by the commission are:

   ·     The claimant was incapacitated due to a clinical condition or medically unfit to submit a claim during the claim period (e.g. extended hospitalisation)

   ·     The claimant died within three months of the date of treatment

   ·     A claim was received late due to a third party losing or misplacing the claim form, or

   ·     The claimant was undergoing a course of treatment extending for more than three months e.g. radiotherapy and had delayed lodging their claim until the completion of the course of treatment.

   Having reviewed your claim and eligibility under the Repatriation Transport Scheme I am not satisfied that your claim meets the requirements of the ‘Exceptional Circumstances’ rule.

   Reason for decision
   While I acknowledge that you are appealing the original decision of your claims for travel dating back from 29 June 2017 through to the 09 April 2018.  Lodgement for these claims were received out of the 12 month claiming period. This does not meet the requirements of the ‘Exceptional Circumstances’ rule.  When lodging claims using the D800 for under the section Claim Period it states:  To receive payment for travel, you must lodge the form within 12 months after completion of travel.  I must uphold the original decision on the 29 March 2019.”

2. By an Application for Review of Decision form submitted on 25 October 2019, the Applicant applied to the Tribunal to review the decision dated 9 September 2019, stating[9]:

   “[B]ecause of my medical problems [I] was unable to get the forms in on time[.]  I explained why and was told to get a statement from the heart and plastic surgeons      supporting my claim[.  I] obtain[ed] the statements [which were] sent to [the Respondent] and was rejected.” 

   [9]Exhibit 1, Section 37 T-documents, T2, page 6.

   LEGISLATION

3. Section 110 of the Veterans Entitlements Act 1986 (Cth) (“the Act”) states[10]:

   [10]The current compilation of the Act is compilation 162, which includes amendments up to Act No. 38, 2020.  Endnote 4 to the Act states that the last amendment to s 110 was Act No. 108, 2017. 

   “Travelling expenses

   (1)     Where a veteran, or a dependant of a deceased veteran, travels, with the    approval of the Commission, for the purpose of:

   (a)obtaining treatment;

   (b)restoration of his or her health; or

   (c)being fitted with surgical aids or appliances or artificial replacements;

   the veteran, or the dependant, as the case may be, is, subject to this section          and to such conditions as are prescribed, entitled to be paid such travelling      expenses, in connection with that travel, as are prescribed.

   …

   (2A)    An approval under subsection (1) or an authorisation under paragraph (2)(b)           may be given before or after the travel is completed. … ”     

4. Section 112 of the Act states[11]:

   [11]The current compilation of the Act is compilation 162, which includes amendments up to Act No. 38, 2020.  Endnote 4 to the Act states that the last amendment to s 112 was Act No. 99, 2013. 

   “Time for applying for certain benefits …

   (3)     An application for travelling expenses in connection with travel referred to in           subsection 110(1), (1A) or (2) must be made within:

   (a)12 months after the completion of that travel; or

   (b)         if the Commission thinks that there are exceptional circumstances   that justify extending that period—such further period as the   Commission allows.

   (4)An application made to the Commission for the grant of:

   (aa)bereavement payment under section 98AA; or

   (b)loss of earnings allowance; or

   (c)travelling expenses;

   after the expiration of the period applicable to the application by virtue of                 subsection (1A), (2) or (3), as the case requires, is of no force or effect.”

   CONSIDERATION

5. The Respondent submits that the decision dated 9 September 2019 be varied, so that three additional travel claims are accepted[12]:  26 March 2018 to the Mater Hospital; 5 April 2018 to the Amputee Clinic; and 9 April 2018 to the Mater Hospital.  The Respondent submits otherwise that there are not ‘exceptional circumstances’ such as to justify the exercise of the discretion in section 112 of the Act, relevant to the extension of the statutory time period[13]. 

   [12]Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions dated 31 March 2020, paragraph 40.

   [13]Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions dated 31 March 2020.

6. The Applicant gave oral evidence at the hearing on 16 June 2020. 

7. The Applicant stated that from 29 May 2017 until 22 March 2019 he was living at the suburb Douglas in Townsville[14]. 

   [14]Transcript, P-6, lines 15-17.

8. The Applicant stated as to the timing of his travel claims, that he was “ … too tired and buggered and the fact was I was … getting … depressions from my PTSD at certain things and sometimes I just switch off for a while and switch on and I spoke to my … psychiatrist … ”[15].  The Applicant stated that “ … during the time I was … so incapacitated. I kept going back for operations and going back for dressings and … blood checks and … you can see the frequency of times I was in and out going to the hospital … ”[16].  The Applicant stated he was “worried”[17] as the chest wound that he had was not healing[18].  The Applicant stated that he had a VAC machine, which he described as a tube going into his chest wound that draws out blood, with the Applicant carrying around that machine[19].  That VAC machine was connected to the Applicant “all the time”[20], including when sleeping and showering[21].  The Applicant stated that there were times when the VAC machine came off, but the doctors would put it back on again[22].  The Applicant described taking about 20 medication tablets a day in the period before 22 March 2019[23].  The Applicant stated that he was “virtually confined to bed most of the time”, unless he went for a medical appointment’[24].  As to the claim form for travelling expenses, the Applicant stated that it would be more convenient to just wait until he was ready to put something in, in that he “did not know whether [he] was coming or going with the drugs and medication, and … was still fighting the prostate cancer as well”[25].

   [15]Transcript, P-10, lines 21-26.

   [16]Transcript, P-11, lines 6-14.

   [17]Transcript, P-11, line 42.

   [18]Transcript, P-12, lines 1-5 and line 37.

   [19]Transcript, P-12, lines 36-45.

   [20]Transcript, P-13, line 14.

   [21]Transcript, P-13, line 24.

   [22]Transcript, P-14, line 21.

   [23]Transcript, P-15, lines 40-45 and P-16, lines 1-5.

   [24]Transcript, P-17, lines 1-5.

   [25]Transcript, P-22, lines 9-14.

9. In Turner and Repatriation Commission (Veterans' entitlements) [2019] AATA 2961 at [39]-[43] it was stated per Senior Member Alexander and Member Evans:

   “39. The VE Act does not define what constitutes exceptional circumstances.

   40.  For present purposes there appear to be two ways of establishing exceptional circumstances. The first is whether, during the claim periods, exceptional circumstances, within the ordinary English meaning of the words, existed which justified extending the claim period.

   41. The second way is that Mr Turner could rely on one of the accepted reasons as set out in Fact Sheet HSV02.

   42.  In Baker v The Queen Callinan J referred with approval to what Lord Bingham of Cornhill had said in R v Kelly (Edward) namely:

   We must construe “exceptional” as an ordinary, familiar English adjective, and        not as a term of art.  It describes a circumstance which is such as to form an      exception, which is out of the ordinary course, or unusual, or special or      uncommon.  To be exceptional a circumstance need not be unique or    unprecedented, or very rare; but it cannot be one that is regularly, or routinely,      or normally encountered.

   43.  In Ho v Professional Services Review Committee, No. 295 Rares J, in considering the meaning of exceptional circumstances, stated that:

   [26]  Exceptional circumstances within the meaning of s10KA(2) can include                    a single exceptional matter, a combination of exceptional factors or a   combination of ordinary factors which, although of no particular significance,                 when taken together are seen as exceptional...

   [27]  It is not correct to construe exceptional circumstances as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstance s” as it were only a singular occurrence, even though it can be a one off situation.  The he ordinary and natural meaning of exceptional circumstances in s 106K (2) includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon ... ”   

10. As referred to above, the Respondent submits that the claims on 26 March 2018, 5 April 2018 and 9 April 2018 should be accepted[26].   The circumstances of the Applicant were, on the evidence, unusual, special or uncommon, in that the Applicant had very significant health issues in the period beyond the 12 months, up to the claim on 25 March 2019, after the period 29 May 2017 to 21 March 2018.  The evidence, as referred to above, was that the Applicant’s very significant health issues had a mental and practical impact on the Applicant as to the timing of his claim for travelling expenses.  It is therefore found, on the evidence, that there were exceptional circumstances that justify extending the period of 12 months as to the travelling expenses claim for the period 29 May 2017 to 21 March 2018. 

    [26]Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions dated 31 March 2020, paragraph 40.

    DECISION

11. The decision under review is set aside and the matter is remitted for reconsideration in accordance with the direction[27] that there were exceptional circumstances pursuant to section 112(3)(b) of the Veterans’ Entitlements Act 1986 (Cth) that justify extending the period of 12 months as to the travelling expenses claim for the period 29 May 2017 to 21 March 2018.

    [27]Section 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975 (Cth).

I certify that the preceding 17 (seventeen) paragraphs are a true copy of the reasons for the decision herein of Senior Member Katter

........................[SGD].....................................

Associate

Dated: 17 July 2020

Date of hearing:	16 June 2020
Date final submissions received:	3 July 2020
Applicant:	By telephone
Advocate for the Respondent:	Mr P. Mentor