Shepherd and Repatriation Commission

[2007] AATA 1900

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1900

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/0611

VETERANS' APPEALS  DIVISION		)
Re		JOHN WILLIAM SHEPHERD

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Associate Professor B W Davis AM (Part-Time Member)

Date30 October 2007

PlaceHobart

Decision The decision under review is affirmed.

[Sgd B W Davis]

Part-Time Member

CATCHWORDS

VETERANS' AFFAIRS - veteran resident in New Zealand - medical treatment in Australia - basal carcinoma of ear - dental treatment - accommodation expenses - claim refused - AAT review on papers

Veterans' Entitlements Act 1986, sections 90, 110

Veterans' Entitlements Regulations 1986, especially sections 9(1) and 9(2)

Bushell v Repatriation commission (1992) 105 ALR 30, 125 CLR 408

Byrnes and Repatriation Commission (1993) 116 ALR 210

Repatriation Commission v Deledio (1998) 83 FCR 82

REASONS FOR DECISION

30 October 2007 Associate Professor B W Davis AM (Part-Time Member)   

Decision under Review

1.      The decision under review is that part of a decision made by a Delegate of the Repatriation Commission on 19 October 2006, subsequently affirmed by a Senior Delegate of the Repatriation Commission on 13 December 2006, which rejected the applicant's claim for accommodation expenses incurred in attending medical treatment in Australia.  He resides in Auckland, New Zealand, but visits Australia periodically.

2.      The parties have agreed that the AAT should conduct its de-novo review of the case on the papers.

Issue

3.      The issue before the Tribunal is whether the applicant is entitled to reimbursement of all or part of accommodation expenses incurred, during medical and dental treatment in Sydney, between 26 July and 24 August 2006.  The applicant has received some reimbursement of taxi expenses.

Legislation

4.      The relevant legislation is the Veterans' Entitlements Act 1986, especially sections 90 and 110 and the associated Veterans' Entitlements Regulations 1986.

Standard of Proof

5.      The standard of proof is on the balance of probabilities and to the general satisfaction of the Tribunal.

Background

6.      The applicant John William Shepherd is a Vietnam veteran with the accepted disabilities of Depressive Disorder, Post Traumatic Stress Disorder, Irritable Bowel Syndrome and Sensorineural Hearing Loss.  He holds a Gold Card issued by the Department of Veterans' Affairs which entitles him to medical treatment within Australia for any medical condition.

7.      In April 2006, while residing in New Zealand he was advised of a left ear tumour which should be removed as soon as feasible.  There was a 6 month waiting list in New Zealand and he decided to seek treatment in Australia.  He arrived in Sydney on 19 July 2006 and following surgery and aftercare by Dr Kippen, as well as some dental treatment by a Dr Brandson, returned to New Zealand on or about 2 September 2006.  He lodged a claim with the Department of Veterans' Affairs on 31 August 2006, with a follow-up claim on 4 October 2006, seeking reimbursement of accommodation expenses during the period in Sydney, together with some taxi fares to and from treatment.  The claim amounted to 31 nights commercial accommodation allowance (Manly Backpackers) and 14 nights private accommodation allowance.

8. A delegate of the Repatriation Commission decided on 19 October 2006 the applicant was not entitled to reimbursement of the accommodation expenses under sections 9(1) and 9(2) of the Veterans' Entitlements Regulations.  Mr Shepherd sought a review of the decision and a Senior Delegate decided on 13 December 2006 to affirm the decision not to reimburse the accommodation claim.  The applicant then lodged an application for review by the Administrative Appeals Tribunal on 5 March 2007.

Analysis

9.      The Tribunal is required to conduct a de-novo review of the case, considering all available evidence, statutory and policy provisions and any relevant case precedents.

10. Section 90 of the Veterans' Entitlements Act 1986 ('the Act') authorises the Repatriation Commission to issue Treatment Principles which define the circumstances in which treatment may be provided under the Act. Paragraph 2.2 of the Treatment Principles identifies the circumstances under which financial responsibility for treatment expenses may be accepted in the case of entitled persons residing overseas.

11.     The applicant, John William Shepherd, has a number of accepted war-caused disabilities, but as a Gold Card holder is entitled to treatment of non-accepted disabilities if resident in Australia. 

12. Section 110 of the Act allows for travelling expenses to be paid if a veteran has to travel for the purposes of obtaining treatment for restoration of health or to be fitted with surgical aids or appliances or artificial replacements. The Veterans' Entitlements Regulations 1986 detail the circumstances and amount of travel assistance which can be paid. Sub-regulation 9(1) defines:

§residence, in relation to a person at a time, to mean the temporary place of residence of that person at the time;  and

§travel, in relation to an entitled person means travel from his or her place to their destination and return

Sub-regulation 9(2) makes it clear that travelling expenses involve reimbursement in whole of part of expenditure on transport, accommodation and meals. 

13.     Mr Shepherd has claimed reimbursement of accommodation expenses during the period 19 July 2006 to 2 September 2006, on the basis he was in Sydney for medical and dental treatment, staying 31 nights at the Manly Backpackers accommodation and 14 nights private accommodation with friends.  The Repatriation Commission refused this claim, arguing that the veteran had sought treatment in Australia, away from his normal residence in Auckland, New Zealand, and that the Manly Backpackers hostel had become his temporary place of residence for several weeks.  He was entitled to reimbursement of taxi fares between his place of residence and place of medical or dental treatment, but not reimbursement of accommodation costs.

14.     The Tribunal has examined de-novo all available evidence in Mr Shepherd's case and especially the provisions of subsections 9(1) and 9(2) of the Veterans' Entitlements Regulations.  It is clear Mr Shepherd did not have to travel long distances or stay overnight outside Sydney in order to receive his medical treatment, thus he is not entitled to receive reimbursement of accommodation costs.  He is entitled and has received reimbursement of travel costs between his place of residence and treatment centres.  His appeal therefore fails and the decision under review is affirmed.

I certify that the 14 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor B W Davis AM (Part-time Member)

Signed:  R Hunt (Administrative Assistant)

Date/s of Hearing  Decision on the papers
Date of Decision  30 October 2007