Tiplady and Repatriation Commission - [2001] AATA 884

DECISION AND REASONS FOR DECISION [2001] AATA 884

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/95

VETERANS' APPEALS DIVISION      )
           Re      Lindsay Northam Tiplady
  Applicant
           And Repatriation Commission  Respondent

DECISION

Tribunal Ms SM Bullock

Date24 October 2001
PlaceSydney

Decision The decision under review is affirmed.

.............................................
  Ms SM Bullock
  Senior Member
CATCHWORDS
VETERANS' AFFAIRS - Recreation Transport Allowance – Entitlement – Whether incapacity similar in effect or severity to the extent of incapacity associated with prescribed disability of person with both arms amputated at or above the wrists.

LEGISLATION
Veterans' Entitlements Act 1986 s104

AUTHORITIES
Re Clifford and Repatriation Commission (1988) 14 ALD 721
Re Doulis and Repatriation Commission (1996) 44 ALD 465
Tracy v Repatriation Commission (1999) 57 ALD 403
Re Loftus and Repatriation Commission (AAT 8931, 20 August 1993)
Re Sleep and Repatriation Commission (1999) 30 AAR 179

REASONS FOR DECISION

24 October 2001 Ms SM Bullock, Senior Member

This Is an application for review to the Administrative Appeals Tribunal (" the Tribunal") by the Applicant, Mr Lindsay Northam Tiplady, of a decision made by the Repatriation Commission ("the Commission") on 14 August 2000 (T4) as affirmed by a Departmental Review Officer on 16 January 2001 (T2) that Mr Tiplady was not qualified to receive a Recreation Transport Allowance.
A hearing was held before the Tribunal in Sydney on 2 October 2001. Mr Tiplady attended the hearing and provided oral evidence. He was self-represented. The Respondent, the Commission, was represented by Ms P. Hook, Departmental Advocate. The Tribunal took into evidence documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 "T documents" (T1 -T21) and the following exhibits:

Exhibit Number             Description Date
Exhibit A1     Statement by Mr Tiplady     26 September 2001
Exhibit A2     Report by Professor PN Sambrook, Rheumatologist    14 September 2001
Exhibit A3     Copy of Newcastle Bus and Ferry Services Saturday/Sunday Timetable for Route 306
Exhibit R1     Report by Dr BW Cook      28 June 1982
Exhibit R2     Report by Dr D Butler, Consultant Psychiatrist 3 June 1992
Exhibit R3     Report by Dr R Patel, General Practitioner        13 January 1996
Exhibit R4     Report by Dr T Rosenthal 12 September 1996
Exhibit R5     Medical Report by Dr R Patel, supporting Mr Tiplady's claim for a Recreation Transport Allowance          9 May 2001
Exhibit R6     Respondent's Statement of Facts and Contentions     26 September 2001

Issues

At hearing, the Respondent accepted that Mr Tiplady would benefit from the opportunity to participate in recreational pursuits, specifically in this case, being a spectator at the 16 Footer sailing races and attending Rugby League games in Newcastle five or six times per year.
Mr Tiplady also confirmed that he is pursuing the lower rate of the Recreation Transport Allowance, specifically relying on Item 4 of subsection 104(1) of the Veterans' Entitlements Act 1986. Specifically, the issue as narrowed at hearing is:
Whether or not Mr Tiplady qualifies for a Recreation Transport Allowance in that his incapacities of generalised anxiety disorder, obsessive compulsive disorder, haemorrhoids, blepharitis, otitis externa and nervous dyspepsia incapacitate him to the extent similar in effect or severity to the extent of incapacity associated with a disability described in Item 4, namely that of a person having had both arms amputated at or above the wrists.

Legislation

A determination in this matter requires consideration of the Veterans' EntitlementsAct 1986 ("the Act") and specifically, section 104 of the Act which states:
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) Recreation transport allowance is not payable to a veteran under subsection (1):
(a) in respect of any period during which the veteran is being cared for, at public expense, in a hospital or other institution; or
(b) if the veteran has participated, or is participating, in the Vehicle Assistance Scheme:
(i) during the period of 2 years commencing on, and including, the date on which the veteran was first provided with a vehicle under that Scheme;
(ii) during the period of 2 years commencing on, and including, the date on which a replacement motor vehicle grant was or is made under that Scheme in respect of the veteran;
(iii) during any period during which there is, under that Scheme, due and payable by the veteran to the Commission the whole or part of an amount equal to the cost to the Commission of providing the veteran with a motor vehicle under that Scheme; or
(iv) during any other period during which the veteran is, under that Scheme, eligible to be paid an allowance as a contributor towards the running and maintenance of a vehicle provided for the veteran under that Scheme.

(5) For the purpose of the application of subsection (4), a vehicle provided for a veteran before 22 May 1986 under the scheme known as the "Gift Car Scheme" shall, after the commencement of this subsection, be deemed to have been provided under the Vehicle Assistance Scheme.

Background

The following information is provided by way of background and the facts contained within are not in dispute.

Mr Tiplady was born on 23 January 1922. He is in receipt of a Disability Pension at the Special Rate. Mr Tiplady has the following war-caused disabilities:
Generalised Anxiety Disorder Obsessive Compulsive Disorder Nervous Dyspepsia Otitis Externa Blepharitis Haemorrhoids.
On 5 September 1995, Mr Tiplady first lodged an application for Recreation Transport Allowance (T14).
On 29 November 1995, the Commission refused Mr Tiplady's application for a Recreation Transport Allowance (T11).
On 7 December 1995, Mr Tiplady lodged an application for review with the Department of Veterans' Affairs ("the Department") in relation to the refusal of the Commission to provide a Recreation Transport Allowance. A further departmental review undertaken on 6 March 1996 affirmed the primary decision.
On 12 March 1996, Mr Tiplady lodged an application for review to the Tribunal (T8).
On 28 May 1997, the Tribunal affirmed the decision not to provide Mr Tiplady a Recreation Transport Allowance (T7). The Tribunal noted:
"In turning to the comparison that has to be made in terms of Item 9 of subs.104(1), it is evident that the disabilities and incapacity that arise from Items 4 through to 8 of subs.104(1) are all of a physical nature; that all are of a severe to very severe nature; that the effect of each, in the absence of a prosthetic device, is to place severe limitations on the affected individual to undertake self care or to move around without significant restriction. In this regard the Tribunal concludes that the Applicant's incapacity is not similar either in effect or severity to the extent of incapacity arising from a disability described in items 4, 5, 6, 7, or 8 of subs. 104(1), as the Applicant enjoys an ability to undertake self care and his limitation on mobility is not to the same effect or severity, as he is able to move freely both within and without the house up to a distance of 200 yards before difficulties are encountered." (T7, p24)
On 10 July 2000, Mr Tiplady applied again for the Recreation Transport Allowance (T6).
On 14 August 2000, the Commission refused Mr Tiplady's application for the Recreation Transport Allowance (T4).
On 12 October 2000, Mr Tiplady sought a review of the primary decision (T3) and on 16 January 2001, the Departmental Review Officer affirmed the primary decision (T2) noting:
"Having taken into account all the evidence concerning the effects of your service-related disabilities, I am satisfied you do not qualify as having "negligible powers of locomotion" as defined in section 104 of the Veterans' Entitlements Act 1986 nor do your restrictions in mobility equate to the handicap suffered by a person having both legs amputated above the knees." (T2, p4).
On 23 January 2001, Mr Tiplady lodged an application for review to the Tribunal (T1).

Evidence of Mr Tiplady

Mr Tiplady wishes to be able to pursue the recreational pursuits of watching the "16 Footer" sailing races at Belmont on Sundays and also, in the winter months, to attend five or six local games of the "Newcastle Knights" Football Club at the Marathon Stadium. Mr Tiplady stated that he is prevented from undertaking these activities because he is unable to walk from his home to the sailing club, a distance of one kilometre, or to the stadium which is some 20 kilometres from his home.
Since the previous application for review to the Tribunal in 1997, Mr Tiplady has moved home. He told the Tribunal that as a result of an accident, Mrs Tiplady received a settlement which was used to purchase their new home at Spinnaker Ridge Way, Belmont. Mr and Mrs Tiplady moved in about October 1999. The new home is only a street or two away from the previous location. Mr Tiplady stated that in 1997, his situation in relation to transport was worse than it is now.
Mr Tiplady stated that the disabilities which specifically impede his mobility are those of generalised anxiety disorder, obsessive compulsive disorder and nervous dyspepsia. His stated that his general anxiety disorder causes him to be anxious, out of breath and having a heavy, bloated feeling as if an 100 pound weight is pressing on his lower stomach. These symptoms cause him to have poor sleep at night, so that he wakes tired and feeling as if his energy has been "sapped". Mr Tiplady explained that his general anxiety disorder causes him to not only become anxious, but his conversation speeds up and he just "chatters". Mr Tiplady's obsessive compulsive disorder causes him to perform activities over and over or to count "1, 2, 3, 4" before undertaking a task. For example, if there is an object on the road, Mr Tiplady is compelled to walk around it on the left side. Mr Tiplady stated that the nervous dyspepsia condition causes him to have the bloated feeling and also great fatigue.
Mr Tiplady informed the Tribunal that he was a keen sailor in the past. He is still a member of the local sailing club, but no longer attends meetings. Mr Tiplady stated that he does not know any of the members and that accordingly, he has not asked whether a member from the club might be able to assist him with transport to and from the sailing on Sunday. In any event, Mr Tiplady stated that he believed that members of the club would not undertake such activity. The difficulty for Mr Tiplady in attending the Sunday sailing as a spectator is that he lives at the top of a hill. While there is a bus stop close to his home, the "306" bus service does not operate on Sundays which is the day on which the sailing or home football games occur.
Mr Tiplady told the Tribunal that he does own a motor vehicle, registered in his name and he has a current Driver's Licence. He drives the car on average, once per week, three kilometres to Belmont shopping centre where he has coffee with his wife. Mrs Tiplady has almost exclusive use of the car. She drives to see their son every day as he suffers from schizophrenia and their son and his wife require daily support. Mrs Tiplady also undertakes daily shopping, using the car for transport. Mr Tiplady stated that his wife has many friends, is very active and social and is a member of the local Welsh Society. All these activities take up a great deal of her time. Mr Tiplady explained that while his wife may be in a position to drive him to the sailing on Sundays, she is not available to collect him. Mr Tiplady has said to his wife that if she were not so busy, she would be more able to assist him with his transport needs. However, Mr Tiplady informed the Tribunal that he feels strongly that he should not restrict Mrs Tiplady's activities because of his disabilities.
In relation to his daily activities, Mr Tiplady stated he does not do much. He gets up at about 9 a.m. having gone to bed at about 10:30 p.m. He sleeps until 2 or 3 a.m., then stays awake until 5 a.m., at which time he doses until he gets up. Mrs Tiplady prepares her husband's meals. Mr Tiplady listens to the radio and watches television throughout the day and into the evening. Mr Tiplady informed the Tribunal that his home is built on a flat slab, so there are no internal stairs. There are some steps outside, above which the Department has attached a railing. There is only one step at the rear of the house. Outside, there is a flat, paved area and then some rockery gardens. Mr Tiplady waters the garden and pulls out the occasional weed. There are small lawns at the front and the rear of the home, but Mr Tiplady pays a gentleman to mow the lawns.
Mr Tiplady is able to dress himself, shower and is generally independent. He attends Dr R Patel, General Practitioner every three or four weeks and catches a public transport bus to Dr Patel's rooms. Sometimes he may drive himself or be driven to see Dr Patel. Mr Tiplady stated that he has few friends. He does not socialise apart from having an occasional telephone conversation with a fellow "TPI" pensioner and another friend. Mr and Mrs Tiplady do not go out at night.
If there were a bus service on Sundays, Mr Tiplady could utilise it, he told the Tribunal. Mr Tiplady prefers however to travel by car because transport by bus causes him to become "shaken up" and he feels very bloated. To attend the Tribunal hearing in Sydney, Mr Tiplady had his wife drive him to the local railway station. He then caught a train to Central Railway Station, then an electric train to the Queen Victoria Building and then walked one and a half blocks to the Tribunal.
In the " Medical Report on Application for Recreation Transport Allowance", Dr Patel noted that Mr Tiplady has chronic anxiety disorder; lack of energy; osteoarthrosis of the left knee; painful right hip and low backache; and, painful feet for which he requires special shoes. Because of his various problems, Mr Tiplady organised for Dr Patel to refer him to Professor P N Sambrook, Rheumatologist.
Mr Tiplady confirmed for the Tribunal that he has been prescribed special shoes by a podiatrist. The shoes are most successful and Mr Tiplady now has little discomfort with his feet. Mr Tiplady told the Tribunal he also has a prostate problem but this is controlled with medication.
Ms Hook asked Mr Tiplady about the condition referred to by Dr Patel as irritable bowel syndrome. Mr Tiplady explained that while Dr Patel had used this term, as far as Mr Tiplady was aware, this condition had originally been called nervous dyspepsia.
In relation to medication, Mr Tiplady stated that he takes calcium every night. He takes the medication "Proscar", once daily, medication for his stomach, cream for his otitis externa, eyedrops and panamax for pain. Mr Tiplady consults Dr Patel every three or four weeks in his rooms which are approximately 20 kilometres away. The bus stops in front of Dr Patel's surgery and then on the return trip, drops him "50 yards" from his home.
Mr Tiplady concluded his evidence by reiterating that if the bus service did run on Sundays, he could utilise it, but he would prefer not to as he is jostled and shaken by bus trips. Further, if Mr Tiplady owned a second car, he could drive himself to watch the sailing or football. Mr Tiplady stated that unfortunately he could not afford a second vehicle. Even if Mrs Tiplady were not so busy and the family car was made more available to Mr Tiplady, he would not be able to participate in any other recreational activities apart from sailing and football, because his poor health would prevent additional recreational activity.
Recent medical evidence
Dr R Patel, General Practitioner
The Tribunal had available to it a number of reports from Dr Patel.
In his early report of 13 January 1996 (Exhibit R3), Dr Patel noted that Mr Tiplady had come under his care in mid 1995, following the retirement of his former General Practitioner, Dr A Hoyle. Dr Patel noted that Mr Tiplady has suffered from generalised anxiety disorder and obsessive compulsive disorder for many years and these conditions were permanent. Dr Patel further noted that these conditions severely restricted Mr Tiplady's mobility as at that time, he could only walk 200 metres on the flat. Mr Tiplady tired easily and could not walk up and down the hill outside his home. Dr Patel described Mr Tiplady's compulsion to walk around things and to perform many routine daily activities on a repetitive basis. This behaviour caused Mr Tiplady further anxiety and distress. Dr Patel reported that Mr Tiplady avoids crowds and public transport, has trouble sleeping and feels exhausted. Mr Tiplady's day was spent watching television, occasional reading but mostly lying down. Mr Tiplady was also reported by Dr Patel to suffer from "nervous dyspepsia", complaining of chronic abdominal bloating.
Dr Patel concluded:
"In summary, Mr Tiplady suffers from psychiatric conditions which has (sic) restricted his mobility to the extent that he is mostly housebound and spends a lot of time lying down. It could be said that his locomotion is restricted to the degree that would be consistent with one leg amputated above or below the knee and one arm amputated below the elbow." (Exhibit R3).
Dr Patel's later report is contained in a "Medical Report on Application for Recreation Transport Allowance" dated 9 May 2001 (Exhibit R5). Dr Patel noted Mr Tiplady's physical and mental disabilities as:
(a) Chronic anxiety disorder which left Mr Tiplady with a lack of energy, unstable on his feet, tiredness and general aches and pains and fatigued.
(b) osteoarthrosis of the left knee, a painful right hip and low backache with painful feet which require special shoes.

Dr Patel reported that without resting, Mr Tiplady can walk less than 100 metres on the flat and less than 50 metres uphill. With frequent rests, Mr Tiplady can walk 500 metres on the flat.
Dr Patel opined that Mr Tiplady is able to use public transport but prefers not to do so because of aches and pains and his chronic anxiety. There was not any likelihood of improvement and Dr Patel concluded that Mr Tiplady would benefit from a Recreation Transport Allowance. Dr Patel further noted that Mr Tiplady has multiple symptoms secondary to chronic anxiety disorder and he was receiving regular psychotherapy from his psychiatrist, Dr D Butler. There was also evidence of degenerative changes to his feet, left knee, right hip and spine.
Professor PN Sambrook, Rheumatologist
Professor Sambrook examined Mr Tiplady on 6 September 2001 and reported on 14 September 2001 (Exhibit A2).
On physical examination, Professor Sambrook noted that although Mr Tiplady was a little overweight he had normal posture. Mr Tiplady had full range of movement in the lower limbs with no swelling of the knees, effusion or crepitus and no ligamentous instability. Professor Sambrook observed Mr Tiplady ascending and descending a set of stairs of approximately 20 steps, which he performed without any problems. Professor Sambrook concluded:
"In summary, I would be happy to affirm that any reduction in mobility is unrelated to his back or knee problems to any significant extent. I am unable to comment to what extent his anxiety disorder/OCD are causing fatigue and abdominal bloating that could limit mobility." (Exhibit A2)

Dr D Butler, Consultant Psychiatrist

Dr Butler provided a report to the Department dated 3 June 1992 (Exhibit R2). Dr Butler opined that Mr Tiplady has been suffering from a severe generalised anxiety disorder since 1943 and he felt that this was due to Mr Tiplady's war service. Dr Butler also noted that Mr Tiplady is suffering from an obsessive compulsive disorder which came on in 1947 and has persisted ever since. Dr Butler reported that the obsessive compulsive disorder was secondary to Mr Tiplady's already severe generalised anxiety disorder and therefore was also a consequence of his war-service. Dr Butler concluded that these conditions were so severe as to require treatment by a psychiatrist as soon as possible.
Dr B W Cook, Psychiatrist
Dr Cook reported to the Department on 28 June 1982. Dr Cook noted that Mr Tiplady is suffering from a "Chronic Tension State" of many years' standing that is associated with an excessive preoccupation with his alimentary activity. Dr Cook opined that with increasing age, Mr Tiplady's symptoms and his preoccupation have tended to intensify to the point of becoming a major issue in his day-to-day functioning, and appeared to preclude his capacity to sustain himself at that time in any gainful work situation (Exhibit R1).
Submissions
Mr Tiplady submitted that his mobility problems were worse than those described in Item 4 of subsection 104(1) of the Act which refers to a person who has had both arms amputated. Mr Tiplady contended that an upper limb amputee could still walk and could get on and off public transport. Further, Mr Tiplady submitted that once a person had an upper limb amputated, there was no further pain, whereas he had pain and discomfort all the time. While Mr Tiplady acknowledged that an upper limb amputee may have some difficulty being able to clean his or her teeth or shower, they would not be prevented by their amputations from walking up and down hills and would not have the difficulty he had with sleeping, exhaustion and bloating.
Mr Tiplady submitted that he could not walk more than 100 metres uphill as noted by Dr Patel and, while he could use public transport, he preferred not to because this mode of transport jostled him around. In any event, Mr Tiplady could not use public transport as there was no bus on Sundays to transport him to his sailing or football. Mr Tiplady was thus deprived of the only recreational activities he enjoyed.
Mr Tiplady submitted that his psychiatric conditions of generalised anxiety disorder, compulsive obsessive disorder and nervous dyspepsia left him feeling fatigued, lethargic and bloated. There was simply no way he was able to walk the one kilometre to the sailing and return by walking up the steep hill, let alone walk to the football stadium many kilometres away.
In his statement dated 26 September 2001 (Exhibit A1), Mr Tiplady further submitted that his mobility problems stem from the fact that he suffers from his psychiatric conditions which he has had since the war. As a result, Mr Tiplady has a continuous ache day and night in the lower abdomen, causing him a severe bloated feeling which then results in a constant loss of energy and loss of sleep. Mr Tiplady noted that his mobility problems have been verified by no less than five psychiatrists and two rehabilitation doctors who are very prominent in their field and whose reports are before the Tribunal.
Mr Tiplady does not wish to prevent his wife from using their car and the only other means of transport available to him to pursue his recreational activities is by taxi, which is expensive.
In all these circumstances, Mr Tiplady concluded that he satisfies the legislative requirements for qualification for a Recreation Transport Allowance.
Ms Hook, for the Respondent, submitted that given Mr Tiplady's submission, the relevant Item for determination is Item 9, which requires that a decision be made as to whether or not Mr Tiplady is incapacitated to an extent that is similar in effect or severity to the extent of incapacity associated with a disability described in Items 4, 5, 6, 7 or 8. Ms Hook noted that Mr Tiplady's contention is that his conditions are similar in effect but more severe than a person who has had the both arms amputated at or above the wrists. Ms Hook noted that Item 9 refers to "incapacity" and not "handicap" in terms of only locomotion.
Ms Hook referred the Tribunal to Re Clifford and Repatriation Commission (1988) 14 ALD 721 in which that Tribunal noted that the term "incapacity" is usually interpreted in the Act:
"…as referring to the effects of an injury or condition, eg, the physical impairment caused by the injury or condition, the effect on the person's ability to work and to perform activities of daily living as well as the effect of the injury or condition on the person's social and recreational activities." (at paragraph 19)
Ms Hook noted that in relation to Item 4, this specifically requires that the comparison with a double upper limb amputee must be done in the absence of the amputee having any aids such as a prosthesis, as was discussed in Re Clifford and Repatriation Commission (supra) at paragraphs 28 and 42. In the context of Item 9, in Re Clifford and Repatriation Commission (supra), that Tribunal noted:
"51…The words "incapacity" or "incapacitated" therefore refer not only to the degree of locomotive handicap but to the nature and extent of physical or mental impairment, the effect of such injury or condition on the capacity to work, perform daily activities, socialise and undertake recreational activity.
52. It is also to be noted that there is no reference in item 9 to the word "locomotion" either in the context of a phrase "powers of locomotion" in item 2 or in the phrase "with regard to locomotion" in items 3 and 10. However, given the general context of item 9 it would be reasonable to regard the item as focussing on the locomotive handicap resulting from an injury or condition although these factors are not the only incapacitating factors to be considered."
In Re Clifford and Repatriation Commission (supra), a list of factors to be considered were provided as a guide and Ms Hook urged the Tribunal to apply these in assessing Mr Tiplady's circumstances. The common factors found by that Tribunal are:
"67.   …
(a)       the injury or condition in all items must be permanent;
(b)the overall degree of handicap or incapacity flowing from the injury or condition must also be permanent although there may be minor fluctuations which occur from time to time;
(c)       the nature of the injury or condition must be severe;
(d)the injury or condition must in particular affect the veteran's ability to move;
(e)item 3 requires a comparison to be made having regard to the use of crutches and walking sticks;
(f)items 9 and 10 require comparison to be made without regard to the use of mechanical aids or prostheses.
68.   In addition to these gleaned features, we also add:
(g)the veteran must either be attending or wish to attend places for recreational purposes; if a veteran is unable or does not wish to attend such places for recreation, the allowance is not payable;
(h)the allowance is only payable if the veteran continues to engage in recreational activities. If those activities cease, then the recreation transport allowance should also cease to be payable;
(i)it is not necessary in order for the allowance to be payable that recreational expenses must already have been incurred, but merely that the veteran wishes to use the allowance for the purpose of enabling such recreational activities to take place and in fact later engages in those activities. Our reason for concluding this is that there may have been financial impediments to an applicant engaging in recreational activities due to cost, which the allowance aims to defray or at least to defray in part."
Ms Hook submitted that in relation to the application of Item 9 and a comparison between Mr Tiplady's conditions and that described in Item 4, the comparison must be made without reference to aids or prostheses. Further, the meaning of the term "incapacity" in Item 9, does not just refer to a veteran's locomotion but to other matters such as general activities including self-care, use of public transport, work and social activities.
Ms Hook further referred the Tribunal to Re Doulis and Repatriation Commission (1996) 44 ALD 465 in which Item 9 was discussed as requiring the consideration of wider parameters than just locomotion and adopted the approach as determined in Re Clifford and Repatriation Commission (supra). In that case, Ms Hook also noted that:
"(53) The tribunal recognises that the applicant is significantly handicapped in his locomotive ability by his war-caused disabilities. However, the applicant faces a fundamental and insurmountable difficulty in succeeding with his claim in that s 104 is not written with the applicant's disabilities in mind. Although items 3, 9 and 10 allow scope for the consideration of conditions other than those specifically described in items 1, 4, 5, 6, 7 and 8, a comparison must be made with the level of incapacity caused by amputation or immobilisation of the legs and arms or blindness. The applicant's disabilities which inhibit his mobility are a combination of physical and psychological conditions which cannot reasonably be fitted within the description of the items in the table. The tribunal agrees with the opinion expressed by the tribunals in Re Clifford and Re Loftus that this section needs to be legislatively reviewed."
Ms Hook noted Mr Tiplady's submission that the main issues preventing him from pursuing his recreational pursuits are his wife's use of the family car to pursue her many activities; the non-availability of public transport by bus on Sundays; and Mr Tiplady's health difficulties which prevent him from walking the distances concerned to attend either the sailing or the football. Ms Hook submitted that the Tribunal must decide on the balance of probabilities whether or not Mr Tiplady's psychiatric conditions, when compared to the severity of a double above limb amputee, are similar in effect and severity.
While the Respondent concedes that Mr Tiplady's incapacity from his psychiatric conditions is severe, when undertaking the task as required by the legislation to compare Mr Tiplady's conditions to that of a double upper limb amputee, as Mr Tiplady has urged the Tribunal to do, the Respondent concludes that Mr Tiplady's incapacity is not as severe as that of an upper limb double amputee. In so submitting, and noting the authorities, Ms Hook contended that it is not just Mr Tiplady's ability in terms of locomotion that must be considered, but wider issues of his ability to care for himself, including showering, dressing and feeding himself, socialising, driving a motor vehicle or catching a bus. In all these activities, Ms Hook submitted that Mr Tiplady is better able to manage than an upper limb double amputee who does not have assistance or the use of aids such as a prosthesis. In addition, Ms Hook submitted that Mr Tiplady is nearly 80 years old and this factor, quite apart from his war-caused disabilities, also impacts on Mr Tiplady's ability to pursue recreational activities.
Ms Hook concluded that under Item 9, Mr Tiplady's psychiatric conditions could not be reasonably fitted into Item 4 of subsection 104(1) of the Act. The decision under review should therefore be affirmed, Ms Hook contended.
Findings
The Tribunal has reached a decision in this matter, taking into account the oral and documentary evidence, the legislation and case law.
At the outset, the Tribunal found Mr Tiplady to be forthright in the provision of his evidence and considers him to be a credible witness.
As the Tribunal understands it, the Recreation Transport Allowance was established to assist veterans who suffer from a war-caused injury or disease from which incapacity has resulted, to provide an allowance or other financial assistance to improve his or her enjoyment of life.
In section 104 of the Act, described incapacities are set out in Items 1 to 9. Item 9 provides for an allowance in circumstances where the veteran is "incapacitated" to the extent similar in severity or effect to the incapacity associated with a disability described in Items 4, 5, 6, 7 or 8. The disability described in Item 4 is the physical condition of amputation of both upper limbs at or above the wrists. Items 5, 6 and 7 describe single or double amputation of the lower limbs and amputation of one arm while Item 8 deals with blindness. Item 10 separately provides for the payment of an allowance where the veteran is "handicapped with regard to locomotion" in a similar degree to the handicap with regard to locomotion associated with the disabilities listed in Items 5, 6, 7 or 8.
The Tribunal notes Tracey v Repatriation Commission (1999) 57 ALD 403 in which Lee J noted at paragraph 19 that:
"…As may be expected such a comparison under item 10 does not arise with regard to the effect of the disability described in item 4. It must be intended, therefore, that item 9 will cover an "incapacity" other than that identified in item 10, for which the payment of an allowance for travel for recreational purposes is appropriate."

Lee J also noted that any incapacity associated with the condition described in Item 4 or item 8, would have only an indirect connection with restriction of movement by use of the lower limbs. In Re Clifford and Repatriation Commission (supra), the Tribunal at paragraph 52 accepted that "the degree of locomotive handicap" was not the only factor to be considered in determining whether a veteran was "incapacitated" to the extent required by Item 9 for qualification for payment of an allowance.

In dealing with Mr Tiplady's application for review and the determination required under section 104 of the Act, the Tribunal adopts the general approach as outlined in Re Clifford and Repatriation Commission (supra) as followed in Re Doulis and Repatriation Commission (supra) and Tracey v Repatriation Commission (supra).
Mr Tiplady contends that because of his psychiatric conditions, his locomotive ability is severely reduced. He is consequently unable to attend his dearly held recreational pursuits of watching the Sunday sailing of the "16 Footers" at Belmont, one kilometre from his home and in the winter season, is also unable to attend Marathon Stadium at Broadmeadow, 20 kilometres away, to watch the five or six home games of the "Newcastle Knights" Rugby League team. Unfortunately, on Sundays, there is no 306 bus service which would take Mr Tiplady to both venues.
In terms of the sailing, it would require that Mr Tiplady walk down a hill one kilometre and then up the same steep incline to return home. Mr Tiplady states he suffers from fatigue, bloating, lethargy and breathlessness as a result of an anxiety induced nervous dyspepsia and also his obsessive compulsive disorder which compels him to repeat actions or rituals in most of his activities. Mr Tiplady contends that his war-caused psychiatric conditions qualify him to receive the Recreation Transport Allowance at the lower rate as described in Item 9, which allows him to most relevantly compare his condition to Item 4 of subsection 104(1) of the Act.
There is no dispute from the Respondent that Mr Tiplady is significantly incapacitated by his war-caused conditions. Dr Patel, Dr Butler and Dr Rosenthal are consistent in their discussion of Mr Tiplady's disabilities and these medical opinions accord with Mr Tiplady's evidence to the Tribunal on such matters. Dr Patel's opinion, accepted by the Tribunal, is that Mr Tiplady can walk less than 100 metres on the flat and uphill, less than 50 metres. The situation in 2001 as compared to that in 1995 is that in 1995 Mr Tiplady could walk 50 to 100 yards depending on the nature of the terrain (T13, p36). The Tribunal notes Mr Tiplady's evidence that the location of his home in terms of getting to his recreational pursuits when he first applied for the Recreation Transport Allowance, was worse than that of his current location.
The Tribunal finds that Mr Tiplady is able to use public transport and does so regularly when attending appointments with his general practitioner every three or four weeks. To attend the Tribunal hearing in Sydney, Mr Tiplady was driven by his wife to Broadmeadow Station. He then caught the train to Central Railway in Sydney from which he travelled by light rail to the Queen Victoria Building, then walked approximately one and a half blocks to the Tribunal.
Mr Tiplady is also able to drive a motor vehicle and on average, he drives three kilometres once per week with his wife to have coffee in Belmont. Mr Tiplady maintains his Driver's Licence and the car is registered in his name. While Mr Tiplady concedes he could drive himself to his chosen recreational pursuits, he does not do so because Mrs Tiplady has almost exclusive use of the car. Mrs Tiplady uses the car to visit their schizophrenic son each day and to provide necessary support to him and their daughter-in-law. Mrs Tiplady also shops every day for which she requires the car. On Sundays which is specifically relevant to Mr Tiplady's claim for Recreation Transport Allowance, while Mrs Tiplady may be in a position to drive Mr Tiplady to the sailing, she cannot collect him after the races have ended because she is using the car to drive to church/attend church meetings which do not finish until after the sailing has concluded. Mr Tiplady does not believe it is fair to impose his wish to pursue his recreational pursuits on Mrs Tiplady and hence restrict her use of the car.
Given all the evidence, the Tribunal finds that Mr Tiplady has a number of permanent war-caused conditions and the impact and incapacity resulting from these conditions are also permanent. Noting Professor Sambrook's opinion of 14 September 2001 (Exhibit A2) and Mr Tiplady's evidence, the Tribunal finds that Mr Tiplady does not suffer any significant reduction in his mobility or locomotion as a result of his non-accepted war-caused conditions of back, feet, hip or knee problems.
There is no dispute and the Tribunal so finds that Mr Tiplady wishes to and does, when able, attend the recreational pursuits of watching sailing and local rugby league games from which he gains some enjoyment and benefit.

Turning to the specific items contained within subsection 104(1) of the Act, Mr Tiplady does not contend that he meets the description of the incapacity for Items 1, 2, or 3. The Tribunal agrees. While the Tribunal finds that on all the evidence, Mr Tiplady's war-caused psychiatric conditions do interfere with his ability to locomote, it is common ground that Mr Tiplady's limited locomotive ability is not sufficient incapacity or handicap for him to fall within Items 1, 2 or 3 of subsection 104 (1) of the Act.
Specifically in relation to Items 4, 5, 6, 7 and 8, it is clear and the Tribunal finds that the incapacity described in those items does not apply to Mr Tiplady.
If Mr Tiplady is to be successful in his claim for the Recreation Transport Allowance, then it is from Items 9 or 10 that the Tribunal's consideration must be focussed. This requires that an incapacity or handicap nominated under Items 9 and 10 must be compared with Items 4, 5, 6, 7 or 8.
The Tribunal takes the view, as enunciated in Re Clifford and Repatriation Commission (supra) and followed in many subsequent Tribunal and Federal Court decisions, that comparisons made under Items 9 or 10 should be done so without reference to the amputee using mechanical aids or prostheses.
Item 9 requires that a comparison be made between an individual's disabilities and incapacities with the extent of the incapacity described in Items 4 through to 8 and which must be similar in severity and effect. As was noted by the previous Tribunal in this matter, the effect of the incapacities described in Items 4 to 8, in the absence of mechanical aids or prostheses, imposes severe limitations on the affected veteran in areas in addition to locomotion difficulties. In this regard, the Tribunal considers it necessary to undertake an assessment of other matters such as the impact of Mr Tiplady's incapacities on his ability to undertake self-care, work, mobility and social and recreational activities. The Tribunal is confirmed in this view as when making a determination under Item 9, which allows a comparison between a claimant's incapacity and that described in Item 4, that this does not involve comparison with amputation of the lower limbs which are of course directly used for locomotion. Consequently, other matters as outlined above need to be assessed in addition to the degree of locomotive handicap.
Considering Item 4, Mr Tiplady contends that he is worse off than a double amputee of the upper limbs, because once the amputation has been performed, then there is no more pain and a prosthesis can be utilised to compensate. By comparison, Mr Tiplady contends he has constant pain, is anxious, feels bloated and is always fatigued, breathless and simply unable to walk the distance required to attend his choice of recreational pursuits. The Tribunal finds however that Mr Tiplady is able to undertake a number of activities including: using public transport; driving his car; caring for himself, including showering and dressing; watering the garden; pulling out a few weeds and travelling unassisted to Sydney. This is not to say that Mr Tiplady does not have significant incapacity. He clearly does. The Tribunal's task however, as required by the legislation, is to undertake a comparison between Mr Tiplady's incapacity and those contained within subsection 104(1) of the Act, specifically Item 4.
The Tribunal determines that Mr Tiplady's incapacity from his permanent psychiatric conditions is not to the same effect or severity of an upper limb double amputee. Mr Tiplady is able to care for himself, move around the house, travel unaided on public transport, drive his car and walk 50 metres uphill before resting and 100 metres on the flat. An upper limb double amputee, without the use of a prosthesis, would have self-care problems, balance difficulties and would have further difficulty driving a car and getting into and out of a bus without assistance. Thus, unlike the disabilities of Mr Sleep in Re Sleep and Repatriation Commission (1999) 30 AAR 179, Mr Tiplady, while incapacitated, is still able to look after himself and undertake, comparatively, a greater range of activities. The Tribunal accordingly determines that Mr Tiplady does not meet the requirements of Item 9 in comparing his incapacity with that described in Item 4 of subsection 104(1) of the Act.
In relation to a comparison between Mr Tiplady's conditions with those of a double amputee of the lower limbs or of an amputee of a lower limb and one arm or being blinded in both eyes as provided in Items 5, 6, 7 or 8, the Tribunal also finds that Mr Tiplady's incapacities are not as severe or similar in their effect as those described within those items. Thus, Mr Tiplady does not satisfy the requirement of Item 10.
In making this decision, it has been extremely difficult to make comparisons between unlike conditions as was required in Mr Tiplady's circumstances of his suffering from predominantly psychiatric conditions. The Tribunal therefore agrees with the findings expressed in Re Clifford and Repatriation Commission (supra), Re Loftus and Repatriation Commission (AAT 8931, 20 August 1993) and Re Doulis and Repatriation Commission (supra) that subsection 104(1) has many anomalies and needs to be legislatively reviewed.
In all the circumstances and for the reasons expressed above, the Tribunal decides pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 that the decision under review is affirmed. Mr Tiplady is accordingly not qualified to receive a Recreation Transport Allowance.
I certify that the 67 preceding paragraphs are a true copy of the reasons for the decision herein of Ms SM Bullock, Senior Member
Signed: .....................................................................................
Associate

Date of Hearing  2 October 2001
Date of Decision  24 October 2001
Representative for the Applicant              Self-Represented
Representative for the Respondent        Ms P Hook, Departmental Advocate