Sleep and Repatriation Commission

[2007] AATA 69

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 69

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          Nos S2006/132 & S2006/133

VETERANS' APPEALS DIVISION		)
Re		KENNETH JOHN SLEEP

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member L Hastwell
Mr S J Ellis (Member)

Date28 February 2007

PlaceAdelaide

Decision The Tribunal affirms the decisions under review.

..............................................

L HASTWELL
  (Senior Member)

CATCHWORDS

VETERANS' AFFAIRS – veterans' entitlements – service pension – assets test – can motor vehicle and camper trailer be disregarded as assets pursuant to s 52(1)(k) or (l) of the VE Act – motor vehicle and camper trailer are standard items – not specifically designed for a disabled person – the fact that they relieve symptoms of disability not sufficient to bring those items within the relevant section – decisions affirmed

Veterans’ Entitlements Act 1986 ss 5L, 52(1),

Re Perrone and Secretary, Department of Family and Community Services [2004] AATA 775

REASONS FOR DECISION

28 February 2007   Senior Member L Hastwell
  Mr S J Ellis (Member)     

1.      Mr Kenneth Sleep (the applicant) is a Vietnam veteran who has a number of accepted disabilities and is the recipient of a service pension.  His accepted disabilities include “anxiety state” and a blood disorder “neutropaenia and lymphopaenia with CD4 suppression”.

2.      He seeks review of two decisions of the respondent (the Commission) whereby the value of his Toyota Prado motor vehicle and his camper trailer have been included as assets for the purposes of calculating his service pension entitlement.

3.      The first decision, dated 5 August 2002, relates to the inclusion of his motor vehicle as an “asset” in calculating his pension.  The second decision, dated 28 February 2006, relates to his camper trailer being taken into account as an “asset” when calculating his rate of pension.

4.      The applicant argues that these assets should be exempted as they are designed for use by a disabled person.

legislation

5. Section 5L of the Veterans Entitlements Act 1986 (the VE Act) defines “asset” in the following terms:

“asset means property or money (including property or money outside Australia).”

Sections 52(1)(k) and (l) of the VE Act provide as follows:

“52(1)  In calculating the value of a person’s assets for the purposes of this Act (other than sections 52G, 52H, 52JA, 52JB, 52JC, 52JD, 52ZA and 52ZCA), disregard the following:

…

(k)       if:

(i)personal property of the person is designed for use by a disabled person; and

(ii)the person, the person’s partner or a child who is dependent on the person or the person’s partner is disabled;

the value of the property;

(l)        if:

(i)personal property of the person is modified so that it can be used by a disabled person; and

(ii)the person, the person’s partner or a child who is dependent on the person or the person’s partner is disabled;

the part of the value of the property that is attributable to the modifications;

…”

issues

6.      It is common ground that the applicant is the recipient of a Disability Pension and is a disabled person.  The issues to be determined in this case are:

·whether the applicant's Toyota Prado motor vehicle and camper trailer come within the definition of “asset” in s 5L of the VE Act such that their value should be taken into account when assessing the appropriate rate of pension payable to the applicant; and

·in considering that issue, the Tribunal must determine whether the Toyota Prado and/or the camper trailer can be considered to be “designed for use” by a disabled person or “modified” so that they can be used by a disabled person and therefore capable of being disregarded as assets.

the hearing

7. The applicant represented himself at the hearing. The T documents pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 were received into evidence as Exhibits R1 and R2.

8.      The applicant told the Tribunal that he suffers from a rare war-related blood disorder that leaves him with a depressed immune system.  He takes antibiotics at all times as he is more susceptible to infection than the average person.  He compares himself to a person with HIV.

9.      The applicant receives a Recreation Transport Allowance as it has been previously accepted that his ability to move from one place to another is affected by his illness.  He avoids public transport.  He suffers from significant anxiety and his overall well-being is greatly enhanced by being able to use his vehicle and camper trailer to travel into the outback.  He describes his vehicle as his “only aid to rehabilitation” apart from a mini trampoline (Exhibit R1, T3/39).

10.     Each year the applicant and his wife enjoy a significant trip into the Australian outback.  They have a daughter in Darwin and they enjoy visiting her.  They go away for up to three months at a time.  The applicant told the Tribunal that these trips are essential for his mental and emotional well-being and alleviate some of the symptoms that he continues to suffer because of his war-caused injuries.

11.     The applicant said that he specifically chose and purchased this particular vehicle and camper trailer so that he could enjoy his regular trips into the outback and as far as Darwin on occasions.

submissions

12.     The Tribunal had regard to the applicant's “Statement of Facts and Home Truths” (Exhibit A1) that summarised his contentions.  He contends that his war-caused disabilities are the responsibility of the Commission and that the Tribunal must look at his specific disabilities when considering whether an item comes within the exemptions under the VE Act.

13.     He argues that an item that may not normally be seen as being designed for a disabled person, can be reinterpreted to be designed for a disabled person with a particular disability if that item has the effect of alleviating their disability.

14.     He compares himself to a blind person with a stick.  He described his vehicle and camper trailer as being analogous to the blind man's stick.  They enable him to “feel his way around”.

15.     The Commission's position was that the applicant's service pension has been correctly calculated and the vehicle and the camper trailer should both be treated as assets for the purposes of that calculation.  The Commission referred the Tribunal to the case of Re Perrone and Secretary, Department of Family and Community Services [2004] AATA 775 as supporting the interpretation that the Commission asks the Tribunal to put on ss 52(1)(k) and (l) of the VE Act.

16. The Commission submitted that s 52(1)(k)(i) of the VE Act should be interpreted literally in that the item in question must be “specifically” designed for use by a disabled person, before it could come within the parameters of that section. The Commission submits that there is no evidence that the vehicle or camper trailer have been modified for a disabled person and s 52(1)(l) of the VE Act is not applicable.

findings of fact

17.     The Tribunal makes the following findings of fact:

·The applicant suffers from a number of significant war-caused disabilities that include anxiety and a rare blood disorder that leaves him susceptible to infection.

·The applicant avoids public places and public transport.  He finds that his anxiety in particular is helped by regular trips into the Australian outback where he feels more relaxed and normal within himself.

·The applicant has purchased a Toyota Prado motor vehicle and a camper trailer for the specific purpose of having annual trips to the outback.

·The Toyota Prado is not specifically designed for use by a disabled person.  It is a standard motor vehicle.  It is also not modified in any way that may relate to the applicant’s particular disabilities.  Similarly, the camper trailer is a standard item owned by many members of the community.  It is not specifically designed for use by a disabled person.  It is not modified in any way to accommodate the applicant’s specific disabilities.

consideration

18.     The Tribunal considered the case of Re Perrone (supra), in which Mr Allen (Member) considered the phrase ”designed for use by a disabled person” in the context of the Social Security Act 1991 as follows:

“…Paragraphs (n) and (p) deal with personal property that is ‘designed for use by a disabled person’ or is ‘modified so that it can be used by a disabled person’ respectively.  In the context in which those paragraphs appear I consider that they refer to items of the type referred to by Ms Bradley, namely items such as wheelchairs, motor vehicles, or other type of appliance that are either specifically designed for physical use by a disabled person or are modified so that they can be used by such a person. …”

19. The Tribunal can find no other authority dealing specifically with the same phrase as used in the VE Act. The words contained in ss 52(1)(k) and (l) of the VE Act are unambiguous and the commonsense approach taken by Mr Allen in the case of Re Perrone should be applied to the identical phrases used in the VE Act.  The legislation is referring to specific aids for the disabled and does not refer to standard items that have the additional feature that they give some comfort or relief to a disabled person.

20.      The interpretation contended for by the applicant goes well beyond a beneficial interpretation of the legislation.  The relevant legislative provisions are straightforward and unambiguous.  The Tribunal accepts the Commission’s submissions in this case.  The vehicle and camper trailer in question are not specifically designed or modified for a disabled person.  They are standard items owned by many members of the community.  Both items come within the definition of assets as contained in the VE Act and have been properly brought to account as assets of the applicant and his wife.

21.     In the circumstances the Tribunal affirms both decisions under review.

I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member L Hastwell and Mr S J Ellis (Member)

Signed:         .............J Coulthard............................................
  Associate

Date of Hearing  15 December 2006
Date of Decision  28 February 2007
Advocate for the Applicant       Self represented

Advocate for the Respondent   Mr A Crowe
  DVA