Sleep and Repatriation Commission - [2002] AATA 292

DECISION AND REASONS FOR DECISION [2002] AATA 292

ADMINISTRATIVE APPEALS TRIBUNAL )

) No S2001/98

VETERANS' APPEALS DIVISION       )
           Re      KENNETH JOHN SLEEP
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Senior Member WJF Purcell

Date30 April 2002
PlaceAdelaide

Decision      The Tribunal affirms the decision under review.
  (Signed)
  WJF PURCELL
  (Senior Member)
CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements – Attendant Allowance – whether need for services of an attendant to assist – whether applicant meets criteria under section 98 of the Act – reasonable satisfaction
Veterans' Entitlements Act 1986 sections 98, 120
Re Ryan and Repatriation Commission (1986) 11 ALD 209
Re McClintock and Repatriation Commission (1987) 6 AAR 549

REASONS FOR DECISION

30 April 2002 Senior Member WJF Purcell

This is an application for review of a decision of the Repatriation Commission (the Commission) dated 29 May 2000 which rejected the applicant's claim for an Attendant Allowance, pursuant to section 98 of the Veterans' Entitlements Act 1986 (the Act). The decision was affirmed by the Veterans' Review Board (VRB) on 19 February 2001.
The evidence before the Tribunal comprised the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T Documents) together with exhibits tendered by the applicant, who appeared on his own behalf and gave oral evidence. Mr Doube, Departmental advocate, represented the Commission.
The applicant, who was born on 26 August 1947, is 54 years of age and has been in receipt of Disability Pension at the Special Rate since 3 June 1992, for incapacity from the following conditions: prickly heat, tinea, ischio rectal abscess, anxiety state and agranulocytosis with chronic neutropaenia and lymphopaenia with CD4 suppression (HIV negative). He and his wife are in receipt also of Service Pension.
On 31 March 2000 the applicant lodged a claim for Attendant Allowance under section 98 of the Act, which was rejected by a delegate on 29 May 2000, on the basis that the allowance is granted to eligible veterans who need assistance with feeding, bathing, dressing and attending to natural functions on a daily basis; and the applicant's treating General Practitioner had indicated that the applicant was independent in relation to such matters. The applicant applied to the VRB, which affirmed the delegate's determination on 19 February 2001. The applicant has applied to this Tribunal for review of the delegate's decision.
The standard of proof applicable is that of reasonable satisfaction in accordance with section 120(4) of the Act which provides:
"(4)Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
Note: This subsection is affected by section 120B."
Section 98 of the Act, as far as is relevant for the purposes of this review, provides:
(1)Where a veteran is being paid a pension under Part II in respect of incapacity from a war-caused injury or a war-caused disease of a kind described in column 1 of the following table, the Commission may grant to the veteran an allowance, called attendant allowance, at the rate specified in column 2 of that table opposite to the description of that kind of incapacity in column 1, for or towards the cost of the services of an attendant to assist the veteran:
Column 1  Column 2
          Kinds of incapacity  Rate per fortnight
   $
1.    Blinded in both eyes      84.30
2.Blinded in both eyes together with                    168.60
total loss of speech or total deafness
3.    Both arms amputated      168.60
4.    Both legs amputated and one arm amputated     84.30
5.Both legs amputated at the hip or one leg          84.30
amputated at the hip and the other leg
amputated in the upper third
(2)       Where:
          (a)       a veteran is being paid a pension under Part II in respect of incapacity:
(i)from a war-caused injury or a war-caused disease affecting the cerebro-spinal system; or
(ii)from a war-caused injury or a war-caused disease that has caused a condition similar in effect or severity to an injury or disease affecting the cerebro-spinal system; and
(b)the Commission is of the opinion that the veteran has a need for the services of an attendant to assist the veteran;
the Commission may grant to the veteran an allowance, called attendant allowance, at the rate of an amount per fortnight equal to the amount specified in item 1 (in column 2) of the table in subsection (1), for or towards the cost of the services of an attendant to assist the veteran.
(3)For the purposes of the application of the table in subsection (1) to and in relation to a veteran, a leg, foot, hand or arm that has been rendered permanently and wholly useless shall be treated as having been amputated.
(4)…
(4A)     * * * * *
(4B)Attendant allowance is not payable to a veteran if carer payment under Part 2.5 of the Social Security Act:
(a)       is payable to a person because the person is caring for the veteran; or
(b)would be payable to a person because the person is caring for the veteran, apart from action taken in relation to that pension:
(i)under section 231 or 231A (cancellation or suspension) of that Act because the person has contravened a provision of that Act (other than section 233, 1304 or 1305); or
(ii)under section 1231 or 1234A (deductions to recover debts and overpayments) of that Act.
…."
The applicant maintains that his accepted disabilities of agranulocytosis with chronic neutropaenia and lymphopaenia with CD4 suppression (HIV negative) (the blood disorder) are similar in severity or effect to disabilities affecting the cerebro-spinal system, and he has need of an assistant therefore.
"Agranulocytosis" is defined in Blakiston's Gould Medical Dictionary (4th edition) as:
"…1. A decrease in the number of granulocytic leukocytes in the peripheral blood. 2. An acute febrile syndrome accompanied by fever, mucous membrane ulcers, and a decrease in granulocytes in the peripheral blood, often related to drug administration."

"Neutropaenia" is defined as:

"… A decrease below normal in the number of neutrophils per unit volume of peripheral blood."

"Lymphopaenia" is defined as:

"… 1. LYMPHOCYTOPENIA. 2. A reduction in the amount of lymph."

The applicant submits that as a result of these conditions, he is severely disabled, because of his low CD4 count, and consequent risk of potentially life threatening infection from bacteria or viruses. He needs the services of an attendant to act as a barrier between himself and other people. As such, his wife performs most or all of the daily activities that he is unable to undertake. As a consequence, what most people would regard as normal activities involve him in life threatening risks not faced by a person without his accepted disabilities. He does not maintain that the blood disorder satisfies section 98(1) of the Act, but that it has caused a condition similar in effect to an injury to the cerebro-spinal system and satisfies section 98(2) of the Act.
The applicant submits also that there is no statutory authority for limiting the payment of the allowance to veterans who require the assistance of an attendant to perform basic functions; he relies on ReRyan and Repatriation Commission (1986) 11 ALD 209; and submits that the decision under review did not take into account his treating General Practitioner's explanatory comments as to his need for the applicant's wife to assist him with normal requirements of living. He submits finally, that when he joined the Army he had a legitimate belief that he would be looked after; but things have changed. He entered a contract in good faith, and served to the best of his ability, and it is not right that conditions of service should be changed later on, when it is "time to pay the piper".
The applicant provided lengthy written and verbal submissions. I have not attempted to summarise each and every submission, but I have taken them into account in my deliberations.
The Commission argues that none of the applicant's conditions satisfy section 98 of the Act. As to section 98(2) of the Act, the applicant does not suffer from either a war-caused injury or disease affecting the cerebro-spinal system, or from a war-caused injury or disease that has caused a condition similar in effect or severity to an injury or disease affecting the cerebro-spinal system. In addition to the injuries spelt out in section 98(2) of the Act, the applicant must have a need for an attendant to assist him, and case law has defined this "need" test as being measured against the necessity for assistance with the normal requirements of daily living, such as eating, dressing, bathing and attending to normal functions. The applicant does not require assistance with these activities of daily life.
The applicant gave evidence that his wife regularly applies the "wet-pack" treatment to the whole of his body. She frequently applies Celestone ointment and Sorbolene cream to his back. When he wakes up, he is tired and without energy. When his bathing is completed, he is tired again, and needs a rest. His wife motivates him, gets him doing something, and is careful of meal preparation and his diet requirements. She mows the lawn, does the gardening and the shopping, because of his necessity to avoid any contact with viruses or bacteria. He says that he is in effect entirely dependent on her, and that this has put great stress upon their relationship. The applicant's treating General Practitioner, Dr Smith, reported on 25 May 2000 in part [T5/23]:
"Mr Sleep is at constant risk of severe infection and in this event his dependency could change dramatically. In order to prevent excessive exposure to the risk of infection Mr Sleep's wife protects him in a number of ways, eg carrys [sic] out shopping, gardening, washing, cleaning, bill paying. She does clothing shopping for him to reduce exposure to infection in shopping malls etc. She also assists him with visits to parents and family. Mrs Sleep also helps with frequent application of skin treatments to the whole of his body."
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 incapacity satisfies section 98(2)(a) of the Act. In the matter of Re Ryan, it was not in dispute that the veteran satisfied section 98(2)(a) of the Act. The sole question for the Tribunal was whether his incapacity was severe enough to warrant the services of an assistant and thus satisfy section 98(2)(b) of the Act. In this matter however, I must be reasonably satisfied firstly that the applicant's war-caused blood disorder has caused a condition similar in effect or severity to an injury or disease affecting the cerebro-spinal system and satisfies section 98(2)(a)(ii) of the Act, before turning to consideration of section 98(2)(b) of the Act.
In the matter of Re McClintock and Repatriation Commission (1987) 6 AAR 549 the applicant's relevant war-caused disability was his anxiety state. The Tribunal examined the meaning of "cerebro-spinal system" and stated:
"13. Specific submissions were given as to the meaning of "cerebro-spinal system" in paras. 98(2)(a) and (b). The word "cerebro-spinal is defined in Blakiston's Gould Medical Dictionary (4th edn) at p.251 as "Pertaining to the brain and the spinal chord". The word "brain" is similarly defined at p.190 of Gould's Medical Dictionary (Supra) as "That part of the central nervous system contained in the cranial cavity, consisting of the cerebrum, cerebellum, pons, and medulla oblongata". These definitions are also reflected in ordinary usage of the phrase as contained in The Macquarie Dictionary (supra) and also the Shorter Oxford Dictionary Vol. 1.
14.… We prefer the evidence of Dr Auricht and consider that in paras. (a) and (b) of sub-s.98(2) that the words "cerebro-spinal system" are connected with organic injury or disease to the cerebro-spinal system as distinct from psychological or psychiatric conditions which would not ordinarily be regarded as affecting the cerebro-spinal system (with the exception of some psychiatric conditions which may, in part, be based on organic injury or disease affecting that system).
15.In this case, therefore, in considering the condition of anxiety state, we do not regard that condition as being an injury or disease affecting the cerebro-spinal system. However, depending on the gravity of the condition, it may be a condition similar in effect or severity to an injury or disease affecting the cerebro-spinal system."
The Tribunal in Re McClintock was not reasonably satisfied that the degree of severity of the condition from which the applicant then suffered was due to the anxiety state, but considered that it was more likely to be attributable to his increasing dementia, which was not a war-caused disability. The Tribunal was not reasonably satisfied therefore, that the war-caused condition of anxiety state with depression had given rise to the need for the applicant to have an attendant to assist with his living requirements.
In the present matter, the applicant's blood disorder is a permanent disability and a potentially dangerous condition because of the risk of infection. It requires daily care and attention, but on the whole of the evidence, I do not consider that the blood disorder is of such severity that it has caused a condition similar in effect or severity to an injury or disease affecting the cerebro-spinal system. I am not reasonably satisfied on the evidence that the applicant's war-caused disability is similar in effect or severity to an injury or disease affecting the cerebro-spinal system; and in my view, section 98(2)(a)(ii) of the Act has not been satisfied. As the condition does not satisfy section 98(2)(a)(ii) of the Act, it is not necessary for me to turn to consider whether section 98(2)(b), of the Act is satisfied.
I am not reasonably satisfied on the whole of the evidence that the applicant's war-caused disabilities satisfy section 98 of the Veterans' Entitlements Act 1986.
For these reasons the Tribunal affirms the decision under review.
I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member WJF Purcell
Signed:         .....................................................................................
  Associate
Date/s of Hearing  21 September 2001
Date of Decision  30 April 2002
Counsel for the Applicant        In person
Solicitor for the Applicant         -
Counsel for the Respondent    Mr G Doube
Solicitor for the Respondent    DVA