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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Tiplady and Repatriation Commission

Details

AGLC: Tiplady and Repatriation Commission [2001] AATA 884
Case: [2001] AATA 884
Decision Date: 24 October 2001

CaseChat Overview and Summary

In the matter of Tiplady and the Repatriation Commission, the Federal Court of Australia was tasked with determining Mr Tiplady's entitlement to a Recreation Transport Allowance (RTA) under the Veterans' Entitlements Act 1986. Mr Tiplady, a veteran, applied for the RTA on the grounds of incapacity similar in effect or severity to the extent of incapacity associated with the prescribed disability of a person with both arms amputated at or above the wrists. The primary legal issue before the Court was whether Mr Tiplady's incapacity, due to chronic anxiety disorder and other related conditions, met the statutory criteria for entitlement to the RTA.

The Court meticulously reviewed the evidence presented, including Mr Tiplady's testimony and the medical reports from Dr R Patel, a General Practitioner, and Professor PN Sambrook, a Rheumatologist. Mr Tiplady's evidence highlighted his limited mobility and preference for not using public transport due to his chronic anxiety and physical discomfort. Dr Patel's reports detailed Mr Tiplady's severe mobility restrictions and chronic anxiety disorder, which significantly impaired his ability to engage in recreational activities outside his home. Professor Sambrook's evidence focused on the degenerative changes in Mr Tiplady's joints and spine, further corroborating the severe impact of his conditions on his daily life. The Court found that Mr Tiplady's incapacity was indeed comparable to the prescribed level of disability, thus satisfying the statutory requirements for the RTA.

Based on the comprehensive evidence and analysis, the Court determined that Mr Tiplady was entitled to the Recreation Transport Allowance. The Court's decision acknowledged the debilitating effects of Mr Tiplady's chronic anxiety disorder and related physical conditions, which substantially limited his recreational participation and necessitated the allowance for transport to engage in such activities. The Court's ruling affirmed the importance of recognising the profound impact of mental health conditions on an individual's capacity to participate in recreational activities.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 evidenceDr 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

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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