Sleep v Repatriation Commission
[2002] FMCA 244
•25 October 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SLEEP v REPATRIATION COMMISSION | [2002] FMCA 244 |
| VETERANS AFFAIRS – Veterans’ entitlements – attendant allowance pension. ADMINISTRATIVE LAW – Appeal from decision of Administrative Appeals Tribunal – whether Tribunal correctly stated the law and adequately set out its reasons – no failure of procedural fairness in Tribunal not causing independent assessment of applicant’s condition to be made – duty of applicant to prove his case – decision upheld. |
Veterans Entitlements Act 1986 (Cth) s.98
Administrative Appeals Tribunal Act 1975 (Cth) s.44
Re Ryan and Repatriation Commission (1986) 11 ALD 209
Re McClintock and Repatriation Commission (1987) 6 AAR 549
Associated Provincial Houses Limited v Wednesbury Corporation (1948) 1 KB 223
Repatriation Commission v Thompson (1988) 82 ALR 352
| Applicant: | KENNETH JOHN SLEEP |
| Respondent: | REPATRIATION COMMISSION |
| File No: | AZ 181 of 2002 |
| Delivered on: | 25 October 2002 |
| Delivered at: | Adelaide |
| Hearing Date: | 11 October 2002 |
| Judgment of: | Raphael FM |
REPRESENTATION
| For the Applicant: | Applicant in person |
| Counsel for the Respondent: | Ms S Maharaj |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
Appeal dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
AZ 181 of 2002
| KENNETH JOHN SLEEP |
Applicant
And
| REPATRIATION COMMISSION |
Respondent
REASONS FOR JUDGMENT
The applicant in these proceedings, Mr Kenneth John Sleep, is a Vietnam Veteran on a full TPI pension. He is 55 years of age.
The conditions for which Mr Sleep is receiving the disability pension at the special rate since 3 June 1992 are lymphopaenia with CD4 supression (HIV negative), agranulocytosis with chronic neutropaenia, anxiety state, prickly heat, tinea, ischio rectal abscess.
These conditions were not all originally accepted as being war related. However, in 1995 after an appeal to his former commanding officer, then the Governor of Western Australia, the Department issued a determination dated 13 June 1996 reviewing his pension to the special rate with effect from the first pension payday after 3 June 1992.
In 1992 the most serious of Mr Sleep’s conditions, lymphopaenia with CD4 supression (HIV negative) manifested itself, causing him to spend approximately twelve weeks in hospital with, initially, little hope of recovery. Prior to that time Mr Sleep was an independent businessman manufacturing and selling table tennis tables. He had been a champion table tennis player and had represented Australia in the world championships in the 1960s. The onset of his disabilities prevented him from working again.
Mr Sleep’s disabilities have the following major effects. The lymphopaenia with CD4 suppression has reduced his immune system to such an extent that he is a target for opportunistic infection. This leads to marked symptoms of fatigue malaise and severely restricts his ability to socialise. His skin disorders are uncomfortable, unsightly and require frequent attention and medication. Overlayed upon these difficulties is an anxiety state.
On or about 30 March 2000 Mr Sleep completed an application for an attendant allowance to which he attached certain documents, all of which are found at pages 15 to 23 of the Appeal Book. The medical report from Dr Pauline Smith was in the following terms:
“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 e.g. [query 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 the frequent application of skin treatments to the whole of his body.”
An attendant allowance is an additional pension over and above any other pension or allowance being received by an applicant. The allowance is provided for in s 98 of the Veterans Entitlements Act 1986 (Cth). That section is in the following terms:
(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
total loss of speech or total deafness168.60
3. Both arms amputated
168.60
4. Both legs amputated and one arm
amputated84.30
5. Both legs amputated at the hip or
one leg amputated at the hip and the
other leg amputated in the upper third84.30
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) ….
(5)…”
It is accepted by Mr Sleep and the Department that Mr Sleep’s claim lay under s.98(2)(a)(ii) i.e. he was a person incapacitated by a war caused injury or disease that had caused a condition similar in effect or severity to an injury or disease affecting the cerebro-spinal system.
During the course of the hearing before me Mr Sleep made the point that tests had been carried out on his bone marrow to ascertain his T cell count, he indicated that this suggested that his agranulocytosis with chronic neutropaenia and lymphopaenia with CD4 suppression might be a disease affecting the cerebro-spinal system. This point was not made to the Tribunal and was not the subject of medical opinion. The Tribunal did not rule upon it. It is therefore not a matter which I can take into account when deciding the issues in this case. It is obviously a matter of importance to Mr Sleep because if it was found that his disease was one which affected the cerebro-spinal system it would fall within sub-section (2)(a)(i) of s 98 and he would not have to seek a finding of the type which is currently under appeal.
The Tribunal’s decision is of some eight pages. It commences by setting out a short history of the applicant’s disabilities and the application, it then sets out s 98 and then deals with the applicant’s claims. The Tribunal with the assistance of Blakiston’s Gould Medical Dictionary (4th edn) defines agranulocytosis, neutropaenia and lymphopaenia (but not chronic neutropaenia). The Tribunal then discusses the applicant’s claim that his condition is one which is “similar in effect or severity to an injury or disease affecting the cerebro-spinal system.” The decision includes a consideration of the some of the medical reports provided by the applicant and discussion of two cases upon which the applicant relied re Ryan and Repatriation Commission (1986) 11 ALD 209 and re McClintock and Repatriation Commission (1987) 6 AAR 549.
The Ryan case was one in which the two part criteria of s.98(2) was noted. The Tribunal has first to decide whether the war caused injury or war caused disease has caused a condition similar in effect or severity to an injury or disease affecting the cerebro-spinal system and only if that finding is made does the decision maker consider under 98(2)(b) whether or not the veteran has a need for the services of an attendant to assist him or her. In Ryan the severity of the injuries or disease was conceded by the Commission and the case turned upon a consideration of need.
The McClintock case is also of little assistance. The gravamen of the decision is found at [33]:
“Like the medical practitioners, we also found it very difficult to divide the symptoms which may be attributable to the applicant’s anxiety/depressive state from those due to his dementia state. However, it is not necessary, in our view, to engage in a detailed and somewhat impossible task of assessing which symptoms, including their degree of severity, are attributable to each condition. We are of the view that whilst the totality of the applicant’s symptoms would merit an attendant allowance, anything less than total would not merit an attendance allowance. …We do not consider it necessary to go behind the Repatriation Commission finding, but merely indicate that it reinforces our view that the applicant has not satisfied us of the pre-requisites of s 98 of the Act.”
What can be extracted from these two cases is the acceptance by the Tribunal that the severity test is not restricted conditions of a cerebro-spinal injury or similar symptoms. The appropriate test is to look at the severity of the disabilities with which the veteran presents and then compare that severity with the severity of a veteran who would present with the symptoms of a cerebro-spinal condition. I accept the respondent’s submission that the degree of severity required before an attendant allowance can be considered can be judged against the table which appears in s.98(1). But McClintock makes it clear that a severe condition can take many forms. The decision in McClintock is supported by the explanatory memorandum to the Veterans Entitlement Act which states that:
“Attendant allowance is to be payable to eligible veterans who need an attendant to assist with normal requirements of living.”
Concern was expressed by the applicant that the Tribunal had tested the severity of his condition by reference to what is known as the “GARP” criteria. GARP is the guide to assessment of rates of veteran pensions (5th edn) issued by the Department of Veteran Affairs which has as its purpose:
“This guide is to be applied to assess the extent of incapacity from war caused or defence caused injury or disease. Its provisions are binding on the Repatriation Commission, the Veterans Review Board, and the Administrative Appeals Tribunal.”
In Chapter 16 the GARP lists activities of daily living (ADL). These are:
·Movement in bed
·Transfers
·Locomotion
·Dressing
·Personal Hygiene
·Feeding
and states that:
“Effects on ADLS is to be used to assess conditions for which criteria do not exist in the system’s specific tables of Chapter 1 to 12, or are inadequate or for which the application of the tables in Chapter 14 (malignant conditions) or Chapter 15 (intermittent impairment) is inappropriate.”
The applicant contended that as his assessment for TPI was based upon a malignant condition the use of the ADL to assess his requirement for attendant allowance was an error of law on the part of the Tribunal.
I cannot accept this contention. The Tribunal was required to make a decision as to the severity of a condition. It was entitled to adopt the ADL which addresses the affects of such matters, provided it acknowledges that the ADL is not a rigid template into which all conditions must fit. For reasons given later, I accept that the Tribunal did not do this.
The applicant also complained that there was insufficient medical input into the AAT decision. He felt that it would have been appropriate for the Tribunal member to have been a doctor, but his complaints went further than that. He argued that more evidence should have been sought by the Tribunal or by Veterans Affairs about his condition. He submitted that if such evidence had been obtained it would have revealed the severity of his condition.
The applicant also made a submission based upon the Parliamentary debate upon the amendments to the Australian Soldiers Repatriation Act 1920 when the attendant’s allowance was first introduced. The Minister for Repatriation Mr Maher after several exchanges with Mr Harrison and Mr Hughes stated :
“… As the clause stands at present the Commission will provide an attendant for men who are suffering from severe ailments or disabilities. For some time past it has been recognised that ex-soldiers suffering from diseases other than those affecting the cerebro-spinal system require an attendant and it was for the purpose of making this provision that the amendment to the second schedule was made in this clause.”
The applicant’s point was that he had joined the service at a time when these sentiments were reflected in the relevant Act. The Act had since changed and he felt he was disadvantaged. However, in the explanatory memorandum to the VE Bill it was stated that:
“Attendant allowances to be payable to eligible veterans who need an assistant to assist with normal requirements of living. This clause will maintain the provisions of schedules 2 and 5 of the Repatriation Act 1920.”
I am unable to see how there has been a detrimental change in the wording of the Act and accept the respondent’s submission that in any event any accrued rights could only have accrued at the time that the application was made, which was after the current Act came into force.
An appeal to this court from a decision of the AAT under s.44 of the Administrative Appeals Tribunal Act 1975 (Cth) is defined to a question of law. A wrong finding of fact does not constitute such an error. Even if there was evidence before the Tribunal that could have supported a different conclusion from that to which the Tribunal came it is not within the court’s power to upset those findings of fact unless the finding was unreasonable in the sense expounded in Associated Provincial Houses Limited v Wednesbury Corporation (1948) 1 KB 223.
However, if the reasoning of the Tribunal disclosed that it had approached the issue on a wrong footing by posing the wrong question or otherwise made a legal error which vitiated the finding, the court could intervene (Repatriation Commission v Thompson (1988) 82 ALR 352).
In this case the question of fact to be decided by the Tribunal was whether or not the applicant’s condition was severe enough to be comparable to an injury or disease affecting the cerebro-spinal system. If the Tribunal had taken the view that the way to answer that question was to see if Mr Sleep’s disabilities fitted within the template of disabilities that might be suffered by persons who had the kinds of incapacity set out in s.98(1) then it would have asked itself the wrong question and that would have been an error of law.
My reading of the decision of the Tribunal is that it did not so restrict itself. The Tribunal quoted from McClintock the finding in [15] of that decision:
“[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 therefore had in mind that purely mental conditions could qualify in terms of severity. Although there must be some doubt that the Tribunal in McClintock really applied a two stage test there is no doubt that the Tribunal in the instant case did. At [17] the Tribunal said:
“[17] 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, s 98(2)(a)(ii) of the Act has not been satisfied.”
Although it is clear from the transcript that the Tribunal in its assessment of the applicant’s abilities and disabilities appeared to emphasise his capacity to attend to daily needs on the basis of the GARP criteria, I am satisfied that the Tribunal recognised that this was not the sole criteria and considered other matters. At [10] of the decision the Tribunal noted the applicant’s submission that payment of the allowance should not be limited to veterans who require the assistance of an attendant to perform basic functions. If the Tribunal had disagreed with that submission she would have said so. Nothing in the decision itself would indicate that she believed that such limitations applied.
Mr Sleep suggests that the failure to have his claim properly investigated denied him procedural fairness. Perusal of the documents in the appeal book indicates that the medical reports upon which the parties and the Tribunal relied were of some age. However, Mr Sleep did give evidence about his current condition and its effect upon him. A party making a claim before the Veterans’ Review Board or seeking review of such a decision before the AAT is in the same position as any other applicant. He is obliged to prove his own case. There is no special provision in the Veterans’ Entitlements Act which requires either of these Tribunals to obtain independent medical evidence upon which the parties can rely. Certainly a medical report was obtained from his local medical officer when the application was first made, but by the time Mr Sleep came to the Veterans’ Review Board he already knew that his application had been turned down. He knew why it had been turned down and if he believed that further medical evidence might improve his position then it was his responsibility to obtain it.
I am satisfied that there was no lack of procedural fairness in the way in which these matters were dealt with by the AAT.
I note that Mr Sleep withdrew his submission relating to s.51(xxxi) of the Constitution.
I am unable to hold that the Tribunal made any error of law in the manner in which it came to its conclusions in the appeal before it. It follows that I must dismiss the appeal before me. At the conclusion of the case the respondent made no request for costs. Whilst I might be minded to assume that as a model litigant the respondent took the view that it would be contrary to the principle of the “fair go” to request costs from a man who had served his country in war time and was, as a result of that service, severely disabled and was seeking a benefit to which he genuinely believed he was entitled, this may not be the case. In those circumstances I will allow the parties to approach me on costs through my associate.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date:
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