Sleep v Repatriation Commission

[2005] FCA 1872

FEDERAL COURT OF AUSTRALIA

Sleep v Repatriation Commission [2005] FCA 1872

VETERANS’ ENTITLEMENTS – appeal from decision of the Administrative Appeals Tribunal that the applicant was entitled to a recreation transport allowance at the lesser rate – whether the appeal raises any question of law – appeal dismissed.

Veterans’ Entitlement Act 1986 (Cth) ss 5, 104(1)
Administrative Appeals Tribunal Act 1975 (Cth) ss 43(2B), 44

KENNETH JOHN SLEEP v REPATRIATION COMMISSION

SAD 793 of 2003

LANDER J
21 DECEMBER 2005
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 793 OF 2003

BETWEEN:	KENNETH JOHN SLEEP APPLICANT
AND:	REPATRIATION COMMISSION RESPONDENT
JUDGE:	LANDER J
DATE OF ORDER:	21 DECEMBER 2005
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 793 OF 2003

BETWEEN:	KENNETH JOHN SLEEP APPLICANT
AND:	REPATRIATION COMMISSION RESPONDENT

JUDGE:	LANDER J
DATE:	21 DECEMBER 2005
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. This is an appeal against a decision of the Administrative Appeals Tribunal (‘the AAT’) constituted by Senior Member Purcell given on 4 September 2004.  Before identifying the decision complained of, it is necessary to say something of the history.

   BACKGROUND FACTS

2. The applicant was born on 26 August 1947.  He was conscripted into National Service and served in Vietnam.  He has a number of diseases and injuries which have been accepted as war-caused under the Veterans’ Entitlement Act 1986 (Cth) (the Act).  The applicant is a veteran: s 5C.

3. The Act empowers the respondent to grant a recreation transport allowance (RTA) to a veteran who satisfies the criteria in s 104 of the Act.

4. Section 104(1) of the Act provides:

   ‘Recreation transport allowance

   (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 capable of moving, with the aid of crutches or walking sticks, for short distances only.	44.80
3.     Handicapped with regard to locomotion to a degree that, in the opinion of the Commission, is similar to the degree of handicap with regard to locomotion associated with a disability described in item 1 or 2	44.80
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 below the knee	22.40
7.     One leg amputated above or below the knee and one arm amputated below the elbow	22.40
8.     Blinded in both eyes	22.40
9.     Incapacitated to an extent that, in the opinion of the Commission, is similar in effect or severity to the extent of incapacity associated with a disability described in item 4, 5, 6, 7 or 8	22.40
10.   Handicapped with regard to locomotion to a degree that, in the opinion of the Commission, is similar in degree to the handicap with regard to locomotion associated with a disability described in item 5, 6, 7 or 8	22.40

(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.

(4) …

(5) …’

1. It can be seen that s 104(1) provides for two different rates.  A veteran who brings himself or herself within items 1, 2 or 3 is entitled to an allowance of $44.80 (the higher rate).  A veteran who falls within items 4 to 10 is entitled to an allowance of $22.40 (the lesser rate).

2. On 20 March 1998 the applicant lodged an application for RTA with the Department of Veterans’ Affairs (‘the Department’). That claim was declined by a delegate of the Repatriation Commission on 29 April 1998. The applicant appealed against that decision. The primary decision was affirmed by a delegate of the Repatriation Commission (‘the Commission’) on 21 July 1998. The applicant appealed against that decision to the AAT.

3. On 10 November 1999 the AAT, constituted by Senior Member Kiosoglous set aside the decision of the delegate of the Commission, and determined that the applicant was entitled to the RTA at the rate determined in accordance with item 9 in s 104(1) of the Act (the lesser rate). Consequently, the applicant was entitled to RTA at a rate of $22.40 per fortnight.

4. On 28 June 2001 the applicant lodged a claim for RTA at the higher rate. On 26 November 2001 a delegate of the Commission refused this application. He found that the applicant was not incapacitated ‘in degree, severity or effect to any item in s 104’.  In addition, the delegate cancelled the applicant’s then existing entitlement to the lesser rate.  That decision was affirmed by a review officer.

5. The applicant appealed against that decision to the AAT.

6. On 4 September 2003 the AAT, constituted by Senior Member Purcell, set aside the decision of the delegate dated 26 November 2001 and substituted a decision that the applicant was entitled to payment of the RTA at the lesser rate determined in accordance with item 9 of s 104(1) of the Act.  In other words, the applicant was restored to the position he had held prior to 28 June 2001.

7. The applicant, however, remains dissatisfied with that decision which did not result in RTA at the higher rate.

8. Before the AAT, the applicant claimed that his accepted condition of agranulocytosis (a blood disorder) and his resultant psychological conditions severely impeded his mobility, and brought him within item 3 of section 104(1) of the Act. The Commission argued that the applicant’s general behaviour or emotional impairment did not meet the requirements of s 104 of the Act.

9. Both the applicant and his wife gave evidence.  His case was that he was prone to infections which were life threatening.  As a result, he was constantly tired and fatigued and was dependent upon his wife to care for him.  He said his susceptibility to infection meant that he could not use public transport.  Mr Sleep’s wife corroborated his evidence.  The Senior Member accepted both the applicant and his wife as witnesses of truth and, I think, accepted their evidence in its entirety.

10. Senior Member Purcell found that it was not disputed that the applicant’s blood disorder was war-caused and that it affected his lifestyle dramatically.

11. The Senior Member said, accepting as she did the applicant’s evidence and the effect upon his lifestyle, ‘the question remains as to whether the level of incapacity satisfies s 104 of the Act’.

12. I think it is clear enough that the Senior Member asked herself the correct question.  The matter for her determination was first, whether the applicant could bring himself within s 104 of the Act and, if so, secondly, whether he was entitled to RTA at the higher or lesser rate.  He would be entitled to RTA at the higher rate if he could bring himself within items 1, 2 or 3.  Clearly enough, he could not bring himself within item 1.  His legs had not been amputated.  He did not claim to walk with crutches or walking sticks, so he could not bring himself within item 2.  If he was entitled to RTA at the higher rate it would only have been if he could have brought himself within item 3.

13. If, on the other hand, his level of incapacity was such as to bring himself within items 9 or 10, he would be entitled to RTA at the lesser rate.

14. Senior Member Purcell considered the evidence of the applicant and the applicant’s wife, and found, as I have said, that their evidence could be accepted.

15. In reaching her conclusion that the applicant was entitled to RTA at the rate determined in accordance with item 9 of s 104(1), Senior Member Purcell relied upon the reasons of the previous AAT, constituted by Senior Member Kiosoglous.  She said at [14]- [16]: 

    ‘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."

    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.

    ...” ’

    She then said:

    ‘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.’

16. It is from that decision that the applicant appeals.

17. Section 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) provides that a party to a proceeding before the AAT may appeal to this Court on a question of law from any decision of the Tribunal in that proceeding. The applicant must, therefore, if he is to succeed on this appeal, identify a question of law for consideration of this Court and, of course, persuade this Court that, on that question of law, the AAT fell into error. In his Notice of Appeal, the applicant set out the following grounds of appeal:

    ‘5Inadequate reasons given for decision not to grant me the higher rate. (see AATA 865 of 4 September 2003 at paragraph 16 lines 6 – 8).

    6The difference between ... cardiovascular complaint, a respiratory disorder, a bowel or stomach disorder.” (see paragraph 31 of Re Clifford v Repatriation Commission (1988) 14 ALD 721).’

18. In his written submissions, the applicant claimed that his war-caused disabilities affect ‘his power of locomotion and thus infringe on my personal liberty to go where I would wish’. He argued that ‘the limitations imposed on the types of places he can move to’ is a handicap on his ‘ability to move from one place to another for recreational purposes, and is therefore a handicap with regard to locomotion for recreational purposes to a similar degree (or greater) when compared to Item 1 or 2’.   The applicant argued that his inability to move from one place to another could be compared to the description of incapacity contained in items 1 and 2 of s 104(1) ‘because of the risk to [his] health if [he] were to use public transport’. In this regard, the applicant contended:

    ‘my inability to move from one place to another for recreational purposes because of risk of infection at the recreational venue and risk of infection on public transport to get there means I have a higher handicap with regard to locomotion and a higher cost of transport because it is commonsense for me not to use public transport and usually I must go longer distances to places, like the family shack, where there are not many people.’

19. The applicant also argued that his costs of transport for recreational purposes were greater than the amount corresponding with items 1 and 2 of s 104(1) because he could not use ‘free bus, tram or train travel entitlements’.

20. The applicant claimed that he wished to visit his daughter in the Northern Territory and that because of his war-caused disabilities he is reliant on driving or being driven by his wife. In this respect, he argued that ‘item 1 and 2 could avail themselves of subsidised rail travel as well as receiving RTA at the higher rate to further defray the cost of that transport’.

21. The respondent argued that the appeal was incompetent, claiming that the applicant failed to raise any question of law for determination pursuant to s 44 of the AAT Act.

22. The respondent contended that the applicant’s complaints appeared ‘in substance to be a quibble with findings of fact made by the Tribunal’. The respondent argued that the findings of fact made by the AAT were open to it and that it did not commit an error of law in its approach to the issues of whether the applicant fell within item 1, 2 or 3 of s 104(1). In relation to the AAT’s approach to the issue of whether the applicant fell within item 3 of s 104(1), the respondent submitted that:

    ‘the Tribunal was correct in adopting the approach advocated in Re Clifford regarding item 3 in section 104. Item 3 does not describe a specific injury or disability. The Tribunal correctly noted that item 3 requires that a comparison be made between the locomotive ability of the claimant and the locomotive ability of a double leg amputee or a person who has negligible use of legs and can only move short distances with crutches or walking sticks.’

23. In my opinion, none of the above matters raise any question of law.  The issue before the Senior Member was whether, on the evidence before her, the applicant’s incapacity entitled him to come within s 104 of the Act and, if so, which item.  The matters to which the applicant has referred in his Notice of Appeal and in his submissions in support of the appeal are simply matters of fact.  No doubt they are most important to the applicant but they do not entitle him to appeal to this Court from the decision of the Senior Member on a question of law.

24. In his written submissions, the applicant also argued that:

    ‘[t]he Tribunal’s reasons for not granting me RTA at the higher rate were inadequate and did not refer to the evidence upon which that decision was made.’

25. The last matter raised by the applicant could amount to a question of law. Section 43(2) of the AAT Act provides, relevantly, that the AAT should give reasons either orally or in writing for its decision. Section 43(2B) provides:

    ‘Where the Tribunal gives in writing the reasons for its decision, those reasons shall include its findings on material questions of fact and a reference to the evidence or other material in which those findings were based.’

26. The applicant submitted that the AAT had fallen into error by simply adopting the previous Tribunal’s reasoning and thereby concluding that the applicant was entitled to RTA at the lesser rate.

27. It can be seen in [16] of the AAT’s reasons that the Senior Member adopted the previous Tribunal’s reasoning.  I think, however, she has not thereby fallen into error.  I think in saying she was adopting the Tribunal’s reasoning she meant that she was adopting the manner in which the AAT must approach consideration of a claim by an applicant to determine whether he or she comes within item 3 of s 104.  I do not think that the Senior Member meant in adopting the previous Tribunal’s reasoning an adoption of the previous Tribunal’s findings of fact.

28. I think that follows from the next sentence in [16] of the AAT’s reasons.  The Senior Member there accepted again the evidence of the applicant and his wife that the applicant’s condition had not improved and, in fact, had worsened in some respects since he was before the previous Tribunal.  However, the Senior Member has concluded that, even accepting that evidence, the applicant did not bring himself within item 3 of s 104.

1. It may have been better if the Senior Member had expressly stated that which I think might be inferred from her reasons. However, as counsel for the respondent argued, an error of law will not be demonstrated because the reasons could be better stated. The obligation under s 43(2B) is to give reasons which include the appropriate findings and the evidence or other material on which those findings are based and sufficiently indicate the reasons why the AAT has come to the conclusion it has announced.

2. In the end, I am persuaded that the reasons are adequate to support the conclusion reached.

3. In my opinion, no error of law has been demonstrated.  The appeal must be dismissed.

I certify that the preceding thirty five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.

Associate:

Dated:            21 December 2005

Counsel for the Applicant:	Mr K Sleep appeared in person
Counsel for the Respondent:	Ms S Maharaj
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	5 December 2005
Date of Judgment:	21 December 2005