Tiplady and Repatriation Commission
[2005] AATA 755
•14 July 2005
Administrative
Appeals
Tribunal
WRITTEN REASONS FOR ORAL DECISION [2005] AATA 755
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2003/1962
VETERANS APPEALS DIVISION ) Re LINDSAY TIPLADY Applicant
And
REPATRIATION COMMISSION
Respondent
WRITTEN REASONS FOR ORAL DECISION
Tribunal Senior Member, Mrs Josephine Kelly Date of Decision 14 July 2005
Date of Written Reasons for Oral Decision 8 August 2005
Place Sydney
Decision The reviewable decision of the delegate of the Repatriation Commission dated 26 May 2003 to refuse Mr Tiplady’s application for Recreational Transport Allowance is affirmed.
[sgd] Senior Member, Mrs Josephine Kelly
CATCHWORDS
VETERANS’ AFFAIRS –Recreational Transport Allowance – application for low rate of allowance – not entitled to allowance – locomotion is not affected, due to war caused injuries, to the extent that is similar in effect or severity to the extent of incapacity associated with the disability of both arms amputated at or above the wrists – decision affirmed.
LEGISLATION
Veterans Entitlements Act 1986 sections 104 and 120CASELAW
Re Clifford v Repatriation Commission (1988) 14 ALD 721
Re Loftus v Repatriation Commission, AAT 8931, 20 August 1993
Re Keefe v Repatriation Commission (1991) 24 ALD 240
Re Doulis v Repatriation Commission (1996) 44 ALD 465
Re Sleep v Repatriation Commission (1999) 30 AAR 179
Re Bennett v Repatriation Commission, [2000] AATA 805
Re Johnson v Repatriation Commission, [2002] AATA 684,
Tracy v Repatriation Commission [1999] FCA 1523
Tracy v Repatriation Commission [2000] FCA 779
Re Tiplady v Repatriation Commission unreported 28 May 1997
Re Tiplady v Repatriation Commission [2001] AATA 884WRITTEN REASONS
1. At the conclusion of the hearing of this matter, the terms of the decision made and the reasons for that decision were stated orally. The Applicant requested the Tribunal to furnish a statement in writing of the reasons for its decision pursuant to sub‑section 43(2A) of the Administrative Appeals Tribunal Act 1975.
2. The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service, and edited only to the extent necessary to ensure clarity of expression, without in any way changing the reasons. The edited transcript comprises the reasons for the Tribunal’s decision and is annexed, and furnished to the Applicant and to the Respondent.
WRITTEN REASONS FOR ORAL DECISION
Senior Member, Mrs Josephine Kelly
Background
1. On 7 May 2003, Mr Tiplady, applied for a Recreation Transport Allowance, (T3), pursuant to section 104 of the Veterans Entitlements Act 1986 ("the Act"). On 26 May 2003, a delegate of the Repatriation Commission, ("the Commission") refused the application, (T4) , and on 1 December 2003, another delegate of the Commission affirmed that decision, (T2). This is an application for a review of those decisions.
2. Mr Tiplady was born on 23 January 1922, and is now 83 years old. He has been receiving a TPI pension since 1994. His war caused injuries and diseases are nervous dyspepsia, otitis externa, blepharitis, haemorrhoids, generalised anxiety disorder and obsessive compulsive disorder.
3. There have been two previous decisions of the Tribunal about applications made by Mr Tiplady for the Recreation Transport Allowance. The first was by Dr Campbell in 1997, and the second by Senior Member Bullock in 2001.
The Issues
4. The issue I have to determine, is whether Mr Tiplady's incapacity from war caused injury or disease is of a kind described in column 1 of the table in subsection 104(1) of the Act. In his oral evidence, Mr Tiplady relied on items number 4 and number 9. He said that he had applied for the lower rate, that is the rate of $22.40, which applies to those items, and not to the higher rate of $44, which applies to items 1 to 3 inclusive. This was a change from his position set out in his application, where he did claim that he was entitled to the allowance under item 3.
5. I emphasise that Mr Tiplady was representing himself. If there were other kinds of incapacity setting out in the table that would assist his case, which he had not relied upon, I would take them into account.
The Law
6. Section 104 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 7. As I indicated, in relation to items 1 to 3, the rate per fortnight was $44.80. In relation to items 4 to 10, it is $22.40. Item 4 is the one Mr Tiplady specifically relies upon.
8. Section 104(3) provides relevantly:
(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.
Standard of Proof
9. In considering all issues in this case, the standard of proof is reasonable satisfaction pursuant to section 120 subsection (4) of the Act.
Evidence
10. I had the benefit of the T documents filed pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, a report by Occupational Therapist, Ms Bell, exhibit R1, and oral evidence from her, oral evidence from Mr Tiplady, and a letter he had written to the Department of Veterans Affairs on 6 May 2004, exhibit A1, and some other documents that he provided in the course of giving evidence, to which I will refer later. The Commission's statement of facts and contentions is marked exhibit R2.
Mr Tiplady’s Evidence
11. Mr Tiplady lives with his wife of 60 years, high upon a hill to the east of Lake Macquarie. He moved there in Christmas 1999, that is, after Dr Campbell heard his case. The house has a steep driveway running down to the road with about 12 steps alongside the driveway. There is a railing beside those steps. A bus stop is located about 2 houses along the street and up a hill. That is, about 100 metres from his home.
12. Mr Tiplady can and does catch the number 311 bus from that bus stop, but the bus does not run on weekends, as shown in the timetable, exhibit A3. He is able to go to and from his general practitioner once a month by catching that bus and travelling to The Junction in Newcastle, which takes about one hour each way. He said in evidence that he can only walk about 100 yards up hill and is then exhausted. In his evidence he said that he also told Ms Bell this.
13. Mr Tiplady has been under the care of a psychiatrist, Dr Butler, for about 12 to 14 years since being referred by the Department of Veterans Affairs. He is on various medications for his anxiety state, and obsessive compulsive disorder, and sees Dr Butler about every six weeks. Mr Tiplady told Dr Butler he cannot get any sleep, and a few months ago, perhaps six months ago, he said Dr Butler put him on to Valium. He takes one at night at about 9.30 or 10.00pm, when he goes to bed. He then sleeps until about 4.00am, although he also said that he only gets four to five, or six hours sleep a night at most.
14. When he gets up he is fatigued, and cannot do much until he has had his breakfast. He lies around or reads. He said reading and watching television are his main sources of enjoyment. He watches television from 4.00pm until 9.30pm or 10.00pm. He no longer goes out at night. He also described how he has had a terrible ache in the abdomen since the war, which various investigations have failed to diagnose. His general practitioner told him that Valium would help with that pain. He tosses and turns when he sleeps, and so has a separate room from his wife, in order not to disturb her.
15. He has a great interest in sailing, which he did when he was young, and now enjoys going to the nearby Belmont 16 Foot Sailing Club, of which he is a member. This is his only recreational activity. A photocopy of his membership card, valid until 31 March 2006, became exhibit A2.
16. His principal concern, relevant to this case, is that the number 311 bus does not run on the weekend and, therefore, he cannot catch that bus back from the sailing club on a Sunday afternoon. The bus route goes within 200 to 300 yards of the Sailing Club, which he said he was able to walk. He likes to go down to watch the 16 footers racing on a Sunday in spring and summer. He used to go down on a Thursday night for a members prize draw, but stopped doing so about 12 months ago because he doesn't go out at night now, as it was too noisy, and he is not interested.
17. He said that he can get his wife to drop him down at the Sailing Club on a Sunday morning, but that she always has the car and he does not want to disrupt her lifestyle and cannot expect her to wait for him. He cannot predict when racing will finish because it is subject to weather conditions. He cannot walk up the hill from the Sailing Club to his home. The distance is 1 kilometre and mostly uphill at a 30 degree angle. He catches a taxi which costs about $6. His licence has no restrictions and if the vehicle were available on the weekend, he could use it.
18. He described how his wife spends time with their 52 year old married schizophrenic son every morning for a couple of hours, and takes him to a doctor for injections regularly. He acknowledged that the doctor's appointments were during the week. She is also in the Church Guild and the Welsh Club. He also acknowledged that the activities of those two organisations occurred during the week, and said that she does not go to Church on Sunday.
19. When he was pressed about his wife's activities of a Sunday, he said that she might be at her son's in the afternoon, which was different to what he had said earlier, or with friends, which he had also not mentioned. He said because he cannot walk up the hill from the sailing club, "The only way I can get home is a taxi, if I don't want to inconvenience my wife, not tying my wife's lifestyle up".
20. He does not go out of the house much at all. A couple of times a week he might drive to the local supermarket to get things he and his wife need, but she does the shopping. He uses the car rarely.
21. He said he would like to go to the home games of the Newcastle Knights but because of the expense of the travel involved, he does not. He has not been to one since they became part of the National Rugby League, which he said was five or six years ago.
22. For a few years he has had a RTA disability sticker, which permits him to park in disabled drivers’ spaces. For the hearing of this matter, he drove from Newcastle to North Sydney, parked his car in a side street near the railway station, and then caught a train from North Sydney to Town Hall Station, from where he walked to the hearing in Market Street. He was returning to Newcastle after the hearing.
23. He had said that Ms Bell, the Occupational Therapist, was with him for three and a half hours, while she carried out her assessment. He had told her he had occasional pain in his left knee, and occasional lower back pain. He said in oral evidence that he had a little bit of arthritis and had generalised aching in both shoulders after an accident three or four weeks ago, when he tore a ligament in his right shoulder, but he emphasised that his main problem was fatigue through lack of sleep.
24. His shoulders, back and knee, he said, do not affect him as far as mobility is concerned but he made the point that Ms Bell had mentioned that he can clean his teeth and shower himself, but he said that is not relevant to his mobility for recreation.
25. The Recreation Transport Allowance is not concerned with what you can do in your home, but concerns your mobility and access to recreation. He said, "Amputated arms don't stop me walking up a steep hill", whereas he is fatigued all the time. That is a reference to item 4 in the table. He said that he realised that someone with both arms off above the wrist had more difficulty than he does as far as general living is concerned but not in relation to mobility. He said he has no mobility aids but said he does not walk very much. He can walk on flat ground but cannot walk great distances or up steep hills. On flat ground he would walk 200 to 300 metres but is not required to do so. For example, if he goes shopping he walks 100 to 150 yards at most, and his wife does the shopping in any event.
26. He also said that when Ms Bell assessed him, he was exhausted when he had to walk up the 12 steps from the road to his house.
Ms Bell’s Evidence
27. Ms Bell assessed Mr Tiplady on 9 March 2004, and her report is dated 19 March 2004. Her report is comprehensive and I found her an impressive witness. Relevantly, she noted that Mr Tiplady complained of having no energy and he feels worn out all the time. She reported that he was on 5mg of Valium nightly to assist his sleep. That contradicts Mr Tiplady's evidence that he had been on that medication for only six months.
28. I quote her report at some length, as it is of great relevance and utility:
Current physical and cognitive status
Posture and Gait
Mr Tiplady walks with normal upright posture and gait. He does not use or require any mobility aids.
Fine Motor co-ordination
…no impairment in regards to fine motor co-ordination tasks.
Gross motor co-ordination and balance
… able to squat independently and safely,…stand on single alternate legs for 10 second periods…He stated he has not experienced any falls in the past.
Sleeping
Mr Tiplady has been reliant on 5mg of valium to assist him to fall asleep at night.
Cognition.
Mr Tiplady stated his short term memory “is no good”, is “spasmodic” and “is sometimes good. He stated he sometimes forgets people’s names, has to write lists when he shops, and believes that this impairment is age related.
Communication
Mr Tiplady did not report any difficulties in day-to-day communication.
Current functional status.
Walking.
Mr Tiplady stated his mobility is limited by feelings of “exhaustion” and he experiences more difficulty negotiating upward, rather than downward, inclines. … He demonstrated his capacity to walk a short distance past this bus stop, at a slow pace over a two minute period… He walked for a total of approximately six and a half minutes over a seven and a half minute period. At this stage he stated he felt unable to walk any further…
When visiting his GP …he will walk approximately half a kilometre up a “slow rise”, using short cuts where possible, between the train station and surgery.
Standing.
Mr Tiplady stated he doesn’t stand for extended periods of time, the longest period being perhaps when he is hosing the patio.
Sitting.
Mr Tiplady does not experience any limitations in his sitting capacity.
Stairs and steps.
Mr Tiplady was observed to safely and independently negotiate the twelve steps to the front of his house, relying on the handrail for support.
Transfers.
He did not require assistance from his upper limbs to transfer on and off the toilet. … Mr Tiplady stated he is able to transfer independently in and out of the vehicle.
Activities of daily living.
29. In summary he has full independence in personal care tasks.
Domestic tasks.
30. In summary Mrs Tiplady will perform most of the household cleaning and food preparation tasks and she performs most of the laundry tasks, but Mr Tiplady can assist in hanging out the washing. Mr Tiplady can no longer mow the lawns but does do some hosing. Mr Tiplady does put the garbage into the large wheel bin, and moves this bin up and down the steep driveway.
Discussion and Conclusion.
31. Ms Bell reports that:
Mr Tiplady's accepted psychiatric disabilities give rise to physical manifestations of exhaustion and general fatigue, which limits his ability to mobilise and participate in physically demanding activities.
32. Ms Bell summarises that Mr Tiplady is limited in his ability to participate in his chosen recreational pursuits. He cannot walk to the Sailing Club as he does not have the capacity to walk up the hill. He can drive independently but does not have access to the vehicle, when he wishes to pursue the recreational activities.
33. There is limited public transport on weekends, when he is to participate in these pursuits, so to access them one must incur the cost of a taxi. She continues:
Reading through the criterion for granting of RTA,(Recreational Transport Allowance) it is evident that the criterion relates to physical disabilities of a severe to very severe nature. The physical disabilities include various combinations of amputations or blindness in both eyes, as a result of war or defence caused incapacities. The criterion provides for the veteran having negligible powers of locomotion, or being handicapped to a similar extent to the above listed incapacities. It is difficult to compare Mr Tiplady's disabilities, arising from his psychiatric conditions, with physical disabilities listed in the criterion for granting RTA.
A person with the physical disabilities outlining the RTA criterion in the absence of prosthetic devices, would be much more significantly restricted than Mr Tiplady in their day-to-day activities and mobility. This includes the disabilities listed at the higher and lower rates of allowance.
It is my opinion Mr Tiplady is not incapacitated to the same extent that is similar in effect or severity to the extent of the incapacity associated with the disabilities (in the absence of prosthetics) outlined in the RTA criterion.
34. In her oral evidence, Ms Bell said that an average person would find it difficult to walk from the Sailing Club to Mr Tiplady's home, and that his physical mobility was quite good for a veteran of 83. He had no walking aids, did not lean against any supports, did not hold on to a rail when getting off the toilet, and could independently transfer himself between pieces of furniture, and did not rely on the rail in the shower recess. When asked what the effect on mobility was, of having both arms amputated at or above the wrists, Ms Bell responded that the hand is a very functional unit, which we rely on except for locomotion. There is difficulty to mobilise, for example, transferring between pieces of furniture, standing, manoeuvring on and off and around a bed. You cannot reach, which makes travelling outside the home difficult. You cannot hold on to things, for example, in buses. She did not know if there was an ability for someone to drive who had no hands. When asked she said that she would not equate Mr Tiplady's accepted disabilities with item 4 in the table.
The Case Law
35. The Commission argued that the Tribunal should follow the same approach in this matter as was taken in Re Clifford v Repatriation Commission (1988) 14 ALD 721, which concerned section 104. In particular, I note paragraph 67, which set out common factors, which the Tribunal considered in relation to this section, and also paragraph 68.
36. I was also referred in some detail to a number of other cases, including Re Loftus v Repatriation Commission, AAT 8931, 20 August 1993: Re Keefe v Repatriation Commission (1991) 24 ALD 240; Re Doulis v Repatriation Commission (1996) 44 ALD 465, and in particular, I note at paragraph 53. I was also referred to Re Sleep v Repatriation Commission [1999] AATA 843 or (1999) 30 AAR 179, particularly paragraph 48 of [1999] AATA 843.
37. Further decisions I was taken to were Re Bennett v Repatriation Commission, [2000] AATA 805, Re Johnson v Repatriation Commission, [2002] AATA 684, and the obiter in decisions in the single judge and the Full Court in Tracey v Repatriation Commission, Lee Js decision [1999] FCA 1523, and in the Full Court, [2000] FCA 779. Finally, I note that the earlier decisions in this Tribunal Re Tiplady v Repatriation Commission unreported 28 May 1997, and [2001] AATA 884.
38. I would observe that Mr Tiplady's incapacity or handicap today seems little different from what it was in 2001. On the evidence, I agree that Mr Tiplady was correct not to rely on item 3 in the table in section 104. His circumstances do not fall within that description. Further I find that Mr Tiplady is not incapacitated to an extent that is similar in effect or severity to the extent of incapacity associated with the disability described in items 4 to 8 and, in particular, to item 4, which he relied upon.
39. His complaint is one of physical fatigue, which he says is caused by his inability to sleep, which is a consequence of his war caused anxiety disorder. He is able to walk, albeit for the limited distances depending on the topography. He can use public transport, drive his car, care for himself, including showering and dressing, hosing the patio and can travel unassisted to Sydney by car and train.
40. While Mr Tiplady has an incapacity, it is not one that is contemplated by section 104. His fatigue is not similar in effect of severity to the extent of incapacity associated with a disability described in item 4, nor items 5, 6, 7 or 8. I also do not consider that Mr Tiplady is relevantly handicapped with regard to locomotion within the meaning of item 5, but if that were wrong, I would find that such handicap was not to a degree that satisfies that criterion.
Decision
41. Accordingly, I affirm the decision of the delegate of the Repatriation Commission dated 26 May 2003 to refuse Mr Tiplady's application.
I certify that the 41 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member, Mrs Josephine Kelly
Signed: Miss Sacha Keady
AssociateDate/s of Hearing 13 July 2005
Date of Decision 14 July 2005
Applicant’s Representative Self Represented
Advocate for the Respondent Mr A. Halonkin
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