Thomas and Repatriation Commission

[2004] AATA 5

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 5

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V2003/341

VETERANS'      APPEALS        DIVISION		)
Re		IVY MARION THOMAS

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member John Handley

Date8 January 2004

PlaceMelbourne

Decision The Tribunal affirms the decision under review.

(Sgd)  J Handley

Senior Member

VETERANS’ ENTITLEMENTS – application for Attendant Allowance – qualifying provisions of s.98 not met – claim upon respondent for Extreme Disablement Adjustment was rejected – appeal not lodged with VRB – decision affirmed

Veterans’ Entitlements Act 1986 s.98

REASONS FOR DECISION

8 January 2004 Senior Member John Handley     

1.      Mrs Thomas applies to review a decision made by the Veterans’ Review Board (“the VRB”) on 18 March 2003.  The VRB then affirmed a decision previously made by the Repatriation Commission (“the Commission”) on 5 December 2002 to refuse a claim for Attendant Allowance.  The circumstances may be briefly described as follows.

2.      Mrs Thomas presently receives pension at 100% of the general rate for the accepted conditions of synovitis of her right knee and fracture of the neck of the left femur (total hip replacement).  She has the conditions of Eaton Lambert syndrome, osteoporosis, osteoarthrosis of her left and right wrists and both thumbs rejected.

THE RELEVANT LEGISLATION

3.      Mrs Thomas seeks to recover Attendant Allowance by this appeal.  Qualification for Attendant Allowance is to be found at s.98 of the Veterans’ Entitlements’ Act 1986 (“the Act”) which is reproduced as follows:

98 Attendant allowance

(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 deafness

168.60

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 amputated at the hip and the other leg amputated in the upper third

84.30

(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)Where a veteran is cared for, at public expense, in a hospital or other institution, attendant allowance is not payable to the veteran in respect of the period commencing on the day of the first pension period occurring after the veteran commences to be so cared for and ending on the day on which the veteran ceases to be so cared for.

(4B). . .

(5).. . .

4.      This application was listed for hearing in Bendigo on 1 December 2003.  However, Mrs Thomas was then unable to attend the hearing and arrangements were made to have the application heard by telephone from Melbourne on 15 December 2003.  Mrs Thomas was then unrepresented.  Mr Douglass appeared on behalf of the respondent.

5.      It was learnt during the currency of the hearing that Mrs Thomas has another appeal presently before the Commission.  I will return to this later.

6.      In so far as the present appeal is concerned, Mrs Thomas indicated that her quest for Attendant Allowance is not to seek compensation to pay for the cost of an attendant but rather, to recover pension in a greater sum than that which is presently being received.

7.      Attempts to discuss with Mrs Thomas the issue of qualification under s.98 of the Act were unsatisfactory because she was upset to learn that the other application presently before the Commission is not a matter which can presently be dealt with by this Tribunal.

8.      The other application concerns a claim which she has made for Extreme Disablement Adjustment (“EDA”).  It appears that claim is being made by reason of Mrs Thomas asserting that her right knee and left hip injury has deteriorated.  Both of these conditions are presently accepted as service related.  It appears that the Commission made a decision on 2 December 2003 to reject the claim for EDA.  Mrs Thomas insisted that an appeal against that rejection be heard at the time that the appeal for Attendant Allowance was heard.  She was upset to learn that this was not possible.  When it was recommended that she should lodge an appeal with the VRB in the event she wished to pursue her claim for EDA she became most distressed.

9.      Hopefully, with quiet reflection, Mrs Thomas will acknowledge that this decision can only concern her application for Attendant Allowance.  Should she wish to pursue EDA she must lodge an appeal with the VRB.

10.     In so far as entitlement to Attendant Allowance is concerned, as may be seen from the above, the qualification is governed by the provisions of s.98 of the Act.  Having regard to the accepted conditions of right knee and left hip injuries Mrs Thomas clearly does not qualify under sub-section 98(1) of the Act.

11.     In so far as sub-section 98(2) of the Act is concerned she again is unable to qualify because the right knee and left hip injuries cannot be regarded as a “war-caused injury or disease affecting the cerebro-spinal system; or causing a condition similar in effect or severity to an injury or disease affecting the cerebro-spinal system”.

12.     In so far as sub-section 98(3) of the Act is concerned it was learnt from Mrs Thomas that she is severely restricted in her mobility, but, with the aid of a four leg walking frame she is able to move around her house.  In those circumstances it cannot be said that the right knee and left hip injuries have been “rendered permanently and wholly useless” to permit those injuries as “being treated as having been amputated” for the purposes of s.98(3) of the Act.

13.     In so far as sub-section 98(4) of the Act is concerned, Mrs Thomas lives with her husband at home.  She is therefore not being cared for at public expense in a hospital or other institution.

14.     In all of the circumstances the decision under review must be affirmed.  I recognise that this decision will cause Mrs Thomas some distress because it will not deal with her claim for EDA.  She has had previous appeals with the Commission and the VRB and understandably the process of lodging appeals is exhausting.  Nonetheless I am bound to apply the legislation which prohibits consideration by this Tribunal of her outstanding appeal for EDA until such time as an appeal is lodged with the VRB and then only if the VRB rejects her application.

15.     The decision of the VRB under review by these proceedings is affirmed.

I certify that the 15 preceding paragraphs are a true copy of the reasons for the decision herein of

Senior Member John Handley

Signed:         Grace Carney
  Personal Assistant

Date of Hearing  15 December 2003
Date of Decision  8 January 2004
Solicitor for the Applicant          Self Represented
Departmental Advocate            Mr R Douglass