Sleep and Repatriation Commission
[2003] AATA 865
•4 September 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 865
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2002/101
VETERANS' APPEALS DIVISION ) Re KENNETH JOHN SLEEP Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member WJF Purcell Date4 September 2003
PlaceAdelaide
Decision The Tribunal sets aside the decision under review, and substitutes a decision that the applicant is entitled to payment of Recreation Transport Allowance at the rate determined in accordance with item 9 of section 140(1) of the Veterans’ Entitlements Act 1986.
(Signed)
WJF PURCELL
(Senior Member)
CATCHWORDS
VETERANS’ APPEALS – veterans’ entitlements – Recreation Transport Allowance – whether handicapped with regard to locomotion to a similar degree as prescribed disabilities – whether incapacitated to an extent similar in effect or severity to prescribed disabilities
Veterans’ Entitlements Act 1986 section 104
Re Clifford and Repatriation Commission (1988) 14 ALD 721
Re Doulis and Repatriation Commission (1996) 44 ALD 465
REASONS FOR DECISION
4 September 2003 Senior Member WJF Purcell 1. This is an application for review of a decision of the Repatriation Commission (the Commission) dated 26 November 2001, which cancelled the applicant’s entitlement to Recreation Transport Allowance. A review officer affirmed the decision on 17 December 2001.
2. The evidence before the Tribunal comprised the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act1975 (the T Documents) together with exhibits tendered by the parties. The applicant, who appeared on his own behalf, and called his wife, Mrs Janine Sleep, as a witness, gave oral evidence. Ms Maharaj of counsel represented the Commission.
3. On 10 November 1999, a Tribunal constituted by Senior Member Kiosoglous and Ms Dahl, Member, set aside a decision of the Commission, and determined that the applicant was entitled to Recreation Transport Allowance at the rate determined in accordance with item 9 in section 104(1) of the Veterans’ Entitlements Act 1986 (the Act). He was paid at the rate of $22.40 per fortnight. On 28 June 2001 the applicant lodged a formal claim for Recreation Transport Allowance at the higher rate of $44.80 per fortnight. This rate is payable in accordance with items 1 to 3 in section 104(1) of the Act. On 26 November 2001 a delegate refused the application, and in addition, cancelled the applicant’s entitlement to Recreation Transport Allowance. This decision was affirmed by a review officer.
4. Recreation Transport Allowance is an allowance given to veterans to assist in meeting the costs of transportation for recreational purposes for those suffering from a severe service-related disability. The legislative basis for the payment of Recreation Transport Allowance is section 104 of the Act, which, as far as is relevant for the purpose of this review, provides:
“(1)Subject to this section, the Commission may grant an allowance, called recreation transport allowance, to a veteran who is suffering an incapacity from a war-caused injury or a war-caused disease of a kind described in column 1 of the following table:
Column 1 Column 2
Description of incapacity Rate per fortnight
$
1. Both legs amputated above the knees 44.80
2. Negligible powers of locomotion so as to be 44.80
capable of moving, with the aid of crutches
or walking sticks, for short distances only
3. Handicapped with regard to locomotion to a degree 44.80
that, in the opinion of the Commission, is similar
to the degree of handicap with regard to locomotionassociated with a disability described in item 1 or 2
4. Both arms amputated at or above the wrists 22.40
5. Both legs amputated below the knees 22.40
6. One leg amputated above the knee and the other 22.40
below the knee
7. One leg amputated above or below the knee 22.40
and one arm amputated below the elbow
8. Blinded in both eyes 22.40
9. Incapacitated to an extent that, in the opinion 22.40
of the Commission, is similar in effect or
severity to the extent of incapacity associatedwith a disability described in item 4, 5, 6, 7 or 8
10. Handicapped with regard to locomotion to a 22.40
degree that, in the opinion of the Commission, is
similar in degree to the handicap with regard to
locomotion associated with a disability describedin item 5, 6, 7 or 8
(2) For the purposes of subsection (1):
(a)a leg that has been rendered permanently and wholly useless above the knee or below the knee shall be treated as if it had been amputated above the knee or below the knee, as the case may be; and
(b)an arm that has been rendered permanently and wholly useless at or above the wrist or below the elbow, shall be treated as if it had been amputated at or above the wrist, or below the elbow, as the case may be.
(3)Recreation transport allowance is payable to a veteran, in respect of the costs incurred by the veteran in travelling for recreational purposes, at the rate specified in column 2 of the table in subsection (1) opposite to the kind of incapacity described in column 1 from which the veteran is suffering.
…”
5. The applicant maintains that in the light of his accepted condition of agranulocytosis, and his resultant psychological conditions, it is appropriate that he be paid Recreation Transport Allowance at the higher rate. He submits that these conditions severely impede his mobility, and he comes within item 3 of section 104(1) of the Act.
6. The Commission submits that only psychological conditions which have a direct effect on the applicant’s locomotion should be considered within the meaning of section 104 of the Act. For example, an applicant may have a psychological condition that may manifest itself in paraplegia of the legs (without any neurological or physical foundation). This condition would have a direct impact on the veteran’s locomotive ability. It relies on Re Doulis and Repatriation Commission (1996) 44 ALD 465, wherein it was argued that the veteran’s post traumatic stress disorder directly affected his mobility due to psychomotor retardation, and that handicaps unrelated to the usual powers of locomotion could come within section 104 of the Act. The Tribunal rejected this submission and stated at p471:
“The tribunal recognises that the applicant is significantly handicapped in his locomotive ability by his war-caused disabilities. However, the applicant faces a fundamental and insurmountable difficulty in succeeding with his claim in that s104 is not written with the applicant’s disabilities in mind. Although items 3, 9 and 10 allow scope for the consideration of conditions other than those specifically described in items 1, 4, 5, 6, 7 and 8, a comparison must be made with the level of incapacity caused by amputation or immobilisation of the legs and arms or blindness. The applicant’s disabilities which inhibit his mobility are a combination of physical and psychological conditions which cannot reasonably be fitted within the description of the items in the table …”
7. The Commission submits that in this matter, it is difficult to see how the applicant’s general behavioural or emotional impairment, or fear of infection, could meet the requirements of section 104 of the Act.
8. I have referred to the parties’ submissions in a brief and general manner, which is by no means a summary of the carefully prepared and reasoned submissions. However, I have taken each and every submission into account in the course of my deliberations.
9. The applicant gave oral evidence, and I consider that he did his best to outline the level of his disabilities without exaggeration. Mrs Sleep gave evidence also, and I found her a credible witness. She is a down to earth, no nonsense lady, who has coped with the various and increasing demands placed upon her by her husband’s disabilities.
10. It is not in dispute that the applicant’s rare war-caused blood disorder has affected his lifestyle, and reduced his enjoyment of life dramatically; but the question remains as to whether the level of incapacity satisfies section 104 of the Act. On 10 November 1999, the earlier Tribunal was satisfied that the applicant was entitled to Recreation Transport Allowance at the rate determined in item 9 of section 104(1) of the Act (the lower rate). The delegate, on 26 November 2001, considered that, not only was the applicant not entitled to payment of Recreation Transport Allowance at the higher rate, he did not satisfy section 104 of the Act, and was not entitled to payment of Recreation Transport Allowance.
11. The applicant said in evidence that because of his blood disorder he is unable to use public transport. He is prone to infections, which would be more serious than they would to the general population, and could potentially be life threatening. He is constantly tired and fatigued, as verified by the evidence his treating immunologist Dr Gillis, gave at the earlier Tribunal Hearing. The applicant said also, that although at the time of another unrelated Hearing before the Tribunal, in September 2001, he could drive to Yorke Peninsular alone, and stay at the family shack, he has over the last 2 years needed Mrs Sleep to travel with him, so that when they stay overnight she can apply the “wet pack” treatment to the whole of his body, and generally look after him.
12. Mrs Sleep gave evidence, which I accept, that the applicant no longer goes to Yorke Peninsula alone. She goes with him to apply the wet packs, feed him and do “everything else”. She packs the car, the applicant generally drives to the shack, goes to sleep while she unpacks and gets everything organised, and then wakes up. She said it is not really a holiday for her, and that recently she took a “respite break”, and travelled to Alice Springs with one of her daughters. She said in evidence “It gets a bit wearing after a while”. During her absence, a nurse came in daily to attend to the applicant.
13. The applicant gave evidence that on 28 June 2001, when he applied for the higher rate, he stated that he could undertake the Anzac Day march, if he took short rests. He said in evidence that he did not attend the march in 2002; and Mrs Sleep gave evidence that after the 2001 Anzac Day march the applicant walked to the Royal Adelaide Hospital to meet her, as she was visiting her sister. Mrs Sleep said that the applicant’s feet were badly cut and bleeding. I accept her evidence.
14. A perusal of the Reasons for Decision of the previous Tribunal discloses that the Tribunal heard evidence from the applicant and Dr Gillis. It summarised Dr Gillis’ evidence in the following lines:
“26. Dr D. Gillis, Clinical Immunologist, has been the applicant’s treating specialist for the past six or seven years. He detailed to the Tribunal the medical problems of the applicant, and significantly, that the applicant is prone to infections and that such infections will be more serious and can be potentially life threatening.
27. He stated that the applicant suffers constant fatigue to the extent that he would have difficulty getting out of bed on most mornings. In respect of public transport he stated that the applicant would suffer tiredness and fatigue and would have no energy to use public transport. He further stated that such transport is a greater risk of infection as with any crowded place from a common sense point of view. He further stated that his risk of infection is severe.
28. He told the Tribunal that walking would require the applicant to have frequent rests, and that the fatigue works in a cumulative way, such that the more he walks, the more rest he needs, such that any significant exertion will require substantial periods of rest.
29. He stated that he has no hesitation in comparing the applicant’s degree of incapacity to an amputee, and that the applicant is severely incapacitated in his assessment.”
15. The Tribunal set out also the criteria enunciated in the decision in Re Clifford and Repatriation Commission (1988) 14 ALD 721, and said in the course of its Reasons for Decision:
“39. What must be compared therefore in respect of item 3, is whether the applicant is handicapped in his ability to move from one place to another to an extent that is similar in degree to either a person with both legs amputated above the knees or with negligible powers of locomotion so as to be capable of moving, with the aid of crutches or walking sticks, for short distances only.
40. Importantly, locomotion in the context of item 3 is considered in Re Clifford to refer to the “ability” to move from one place to another. “Ability” in this context must be given its normal meaning as being the “power or capacity to do or act in any relation” (Macquarie Dictionary 3rd edition).
41. On the evidence before it, the Tribunal accepts that the applicant’s ability to move from one place to another is significantly affected, both as a result of fatigue, and the limitations imposed on the types of places he can move to. Such restrictions, whilst significant, cannot be said as a matter of factual comparison to be as severe in respect of capacity to move from one place to another as the restrictions imposed by the disabilities in items 1 and 2. The Tribunal accepts that the applicant can only walk relatively short distances without needing rest, and notes Dr Gillis’ comment that the problem is cyclical, in that the applicant then needs longer rests after any such exertion. This must be considered as a matter of degree however, and whilst the applicant has significant handicap to locomotion the Tribunal cannot be satisfied as a matter of fact that the severity is comparable to items 1 or 2 of the table and so finds. He does not satisfy item 3 of the table and the Tribunal so finds.
…
48. On the whole of the evidence of the applicant as supported by Dr Gillis, taking into account all of the factors including locomotion, it is clear to the Tribunal that the applicant is very severely incapacitated as a result of his disability. This incapacity can be said to be of an extent that is similar in severity to a person with a disability described in item 4,5,6,7 or 8. Although the Tribunal has given consideration to each of these items individually, it is unnecessary here to compare the applicant to each individually. The Tribunal is satisfied that taking the applicant’s incapacity as a whole into account, his incapacity is comparable in its severity to any one of items 4-8 as a matter of factual assessment and the Tribunal so finds.
…”
16. The Tribunal considered that the applicant was entitled to Recreation Transport Allowance at the lower rate determined in accordance with item 9 of section 140(1) of the Act. With respect, I adopt the Tribunal’s reasoning. I accept the evidence of the applicant and Mrs Sleep that there has been no improvement in the applicant’s condition; and that, in effect, he is less able to perform some of the functions he performed 2 years ago. I do not accept the applicant’s submission that his condition is such that he is entitled to payment of Recreation Transport Allowance at the higher rate determined by item 3 of section 140(1) of the Act. I am satisfied on the evidence and find as a fact, that the applicant is entitled to payment of Recreation Transport Allowance at the rate determined in accordance with item 9 of section 140(1) of the Act.
17. For these reasons, the Tribunal sets aside the decision under review, and substitutes a decision that the applicant is entitled to payment of Recreation Transport Allowance at the rate determined in accordance with item 9 of section 140(1) of the Veterans’ Entitlements Act 1986.
I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member WJF Purcell
Signed: .......................................................................................
AssociateDate of Hearing 15 November 2002
Date of Decision 4 September 2003
Counsel for the Applicant In person
Solicitor for the Applicant -
Counsel for the Respondent Ms S Maharaj
Solicitor for the Respondent AGS
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