Ward and Repatriation Commission

[2003] AATA 561

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 561

ADMINISTRATIVE APPEALS TRIBUNAL      )

)     No  W2002/350

VETERANS’ AFFAIRS DIVISION )

Re gordon ward

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Ms G Ettinger, Member

Date9 May 2003

PlacePerth

ADMINISTRATIVE APPEALS TRIBUNAL        )          No W2002/350

)

VETERANS’ AFFAIRS DIVISION  )

Re:     GORDON WARD

Applicant

And:     REPATRIATION COMMISSION

Respondent

DECISION

Tribunal              Mrs G Ettinger, Member

Date  9 May 2003

Place                   Perth

DecisionFOR the reasons given orally at the conclusion of the hearing in this matter, the decision under review is affirmed

.....(sgd G Ettinger)…..
   Senior Member

CATCHWORDS

VETERANS’ AFFAIRS – whether special rate – whether EDA – date of effect disputed – decision affirmed

REASONS FOR DECISION

1. At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. After service upon the Respondent of a copy of the decision that was in fact made, the Respondent pursuant to Sub‑section 43(2A) of the Administrative Appeals Tribunal Act 1975 requested the Tribunal to furnish to the Respondent a statement in writing of the reasons of the Tribunal for its decision.

2.      The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service.  Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.

3.        The said transcript is annexed hereunto and furnished to the Respondent and to the Applicant as it is the reasons for the Tribunal's decision.

I certify that this and the preceding page are a true copy of the decision and reasons for decision herein of:

Signed:              (sgd) Rita Morgan
          ....................................................................................……………………………….

Associate

Date of Hearing  

Date of Decision  

Solicitor for Applicant                   

Advocate for Respondent           

O/N WT0262
ORAL REASONS FOR DECISION
ADMINISTRATIVE APPEALS TRIBUNAL
By MS G. ETTINGER, Senior Member
No WS2002/350
WARD and REPATRIATION COMMISSION
PERTH, 9 MAY 2003
  [4.11pm]
MS ETTINGER:   This is a decision in the matter of Ward and the Repatriation Commission. 

The matter before the Administrative Appeals Tribunal was the application of Mr Gordon Melville Ward.  The Applicant in these proceedings has claimed for pension to be paid at a rate higher than that on which he had been found eligible, which was 100 percent of the general rate.  This meant a consideration of the special rate pursuant to section 24 of the Veterans Entitlements Act 1986, (“the Act”), or the extreme disablement allowance, (“EDA”), pursuant to section 22 of the Act. 

Mr Ward's application which appeared at T2, page 6, was dated 13 September 2002, and was in response to a decision of the delegate of the Repatriation Commission dated 5 January 2001 which was affirmed by a decision of the Veterans Review Board dated 21 August 2002.

The Repatriation Commission had granted disability pension at 100 per cent of the general rate with effect from 14 May 2000 and had accepted Mr Ward's claim for bilateral sensory neural hearing loss and bilateral tinnitus.  He had various other conditions accepted as war caused which were not further challenged at the hearing.  They were malaria BT, right orbital neuralgia, right photophobia, depressive disorder, psycho-active substance abuse or dependence and hepatic cirrhosis.  Mr Ward has been through several hearings and made many attempts to have his eye injury recognised as war- caused.  I accepted that he suffered a great deal of anxiety and pain in his eye, and continues to have eye problems.

At the hearing Mr Ward was self-represented, and the respondent Repatriation Commission was represented by its advocate, Mr Carl Ponnuthurai. 

At the commencement of the hearing Member, Brigadier Lloyd, who was sitting with the Presiding Member, Senior Member Ettinger, was mindful that he had been a Member of the Veterans Review Board and on a Tribunal for a previous hearing of a claim lodged by Mr Ward.  On the previous occasion he had disclosed his earlier involvement to the parties who had not objected to his participation.  At this hearing, Mr Ward made a strong submission that Brigadier Lloyd stand aside due to bias.

Brigadier Lloyd and Senior Member Ettinger discussed this after hearing submissions from both the parties, and noting that Mr Ponnuthurai saw no reason why Brigadier Lloyd should not continue.  Brigadier Lloyd then decided that although he was in no way biased and with no admissions in that regard, that because Mr Ward was agitated and did not fully comprehend the situation regarding his claim before the Tribunal, Brigadier Lloyd would not sit on this matter.  He informed the parties accordingly. 

The Tribunal was reconstituted, and Senior Member Ettinger then conducted the hearing sitting alone. 

ISSUES BEFORE THE TRIBUNAL

Now, as to the issues before the Tribunal, these were very clear.

Mr Ward had appealed the decision of the Repatriation Commission dated 5 January 2001 which had been affirmed by the Veterans Review Board decision of 21 August 2002.  Mr Ward appealed because he wanted to be paid pension at a higher rate than the 100 per cent of the general rate for which he has been found eligible. 

Accordingly, the question before the Tribunal was:

·whether pension was payable at the extreme disablement adjustment rate pursuant to section 22 of the Veterans Entitlements Act 1986; or

·whether Mr Ward would be eligible for the special rate pursuant to section 24 of the Act. 

Mr Ward disputed the date of effect which was, at a previous hearing, found to be 14 August 1991. I make comment on that later on in these reasons for decision. 

LEGISLATIVE FRAMEWORK

But meanwhile I move to state the legislative framework relevant to this matter.  The relevant legislation is the Veterans Entitlements Act 1986, while the eligibility for extreme disablement adjustment is conditional upon meeting the requirements of section 22 of the Act, and eligibility for special rate is subject to section 24 of the Act. 

The standard of proof with regards to assessment of Mr Ward's pension was to the reasonable satisfaction of the Tribunal, applying section 120(4) of the Act.  The Tribunal noted that the earliest date of effect in regard to eligibility for pension was 14 August 1991, as previously decided by the AAT.

I noted that Mr Ward was very unhappy about the date of effect.  He told me that the claim was the same claim which he had made in 1986.  He explained that he was then below the age of 65 and would have been eligible for a different and better pension.  Mr Ward explained what he understood was the effect of sections 14 and 15 of the Veterans Entitlements Act, and became quite angry that I could not accept this explanation.  I, in turn, explained to him that I am bound by the legislation and that jurisdictional issues bind me to consider his application dated 13 September 2002 which appealed the decisions of the Respondent dated 5 January 2001 and 21 August 2002.

I told Mr Ward I could not change the date of effect, and Mr Ponnuthurai made extensive submissions confirming that.  I noted the explanation of the respondent at T15, pages 103 and 104, which I accepted.  I noted also at T15, page 97, of the T-documents, that Mr Margot Harness of the RSL, who wrote to the Department of Veterans Affairs on Mr Ward's behalf in a letter dated 9 May 2001, acknowledged that the conclusion to come to 14 August 1991 as the date of effect was perfectly legal.  She did add that she felt considerations of fairness and justice could be taken into account in arriving at perhaps a more favourable date in Mr Ward's case, but accepted that the that date was the legal one.

THE EVIDENCE

I then moved to consider the evidence before the Tribunal, including the evidence which Mr Ward gave, noting there were no other witnesses.

The Tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975. We call those the T-documents. They were exhibit R1. The other exhibits were the Statement of Facts and Contentions of the Respondent as Exhibit R2, and the Statement of Facts and Contentions of the Applicant, and a bundle of attachments as Exhibit A1.

I then moved to consider the evidence of the Applicant.  Mr Ward whose date of birth is 7 December 1926, gave oral evidence.

I questioned him about his lifestyle as that was the matter I had to decide.  In considering the assessment of service pension for Mr Ward, I was mindful that in this regard the standard of proof was for the Tribunal to be convinced to its reasonable satisfaction, applying section 120(4) of the Act. 

CONSIDERATION AND FINDINGS

Chapter 22 of GARP,  the Lifestyle Effects was used to assess Mr Ward's pension entitlements.  In doing so, I had to take into account Mr Ward's evidence, the legislation and the relevant case law.  

I was mindful that Mr Ward had served his country on operational service during the 2nd World War, and that his accepted disabilities had been listed earlier on in these reasons for decision.

I was mindful that Mr Ward was very upset with regard to the diagnosis of his eye injury for which he said he had claimed as far back as 1948, 1961, and also in 1986.  He said that the injury had been misdiagnosed and that there had been endless discussion of bilateral optic atrophy which had been attributed to malnutrition due to alcoholism, and that the real injury, later accepted as right orbital neuralgia, had therefore not been recognised as war-caused.  I noted also Mr Ward's evidence that he drank alcohol to assist with pain relief because his eyes caused him such pain.

I noted that his eye injury had been recognised as war-caused by the Tribunal in 1994, although the application had originally been lodged on 14 November 1991, and I was sympathetic to the problems he had encountered as to diagnosis of his eye injury. 

I then moved to consider whether Mr Ward was eligible for pension at the special rate, noting that he applied after he was 65 years of age, and that, therefore, section 24(2)A applied.  The undisputed evidence was also that the Applicant ceased work before he reached the age of 65, and given the other tests in section 24 of the Act, he does not, therefore, qualify for an earnings related rate of pension.

As Mr Ward was not eligible for a pension at the special rate pursuant to section 24 of the Act, I next moved to consider his situation with regard to the extreme disablement pension pursuant to section 22 of the Act.  I was mindful that an impairment rating of 70 points in a lifestyle rating of 6 is necessary for the veteran to be eligible for EDA, and accepted he had attained this necessary 70 points. 

LIFESTYLE

Now, lifestyle.  I noted Mr Ward's evidence before applying the tests in chapter 22 in GARP, the Guide to the Assessment of Rates of Veterans Pensions.  I noted that his eligibility is determined by reference to (1) personal relationships, (2) mobility, (3) recreational and community activities, and (4) employment and domestic activities.

I considered these in connection with Mr Ward's conditions which had been accepted as war-caused and are listed earlier in these reasons for decision. 

Table 22.1:  Personal Relationships..  In considering Mr Ward's personal relationships, I noted that he is single, his wife having committed suicide in 1979.  Mr Ward told me he has three children.  One is living in Mandurah with a family.  He does not see them much because he does not travel.  He said he sees his daughter in Perth about once a week, and she prepares buns or rolls for his meals at home.  He told me he did not interact much with the family as they played with their computers and he simply sat there.

The Respondent accepted the rating given by the Veterans Review Board, which was 5.  This meant that the Respondent agreed that Mr Ward had severely affected relationships and was able to relate only to particular or a few people, that is, his children.  Further, that these remaining relationships were strained and of no quality. 

I took into account all the evidence, noting that Mr Ward did not have any social life at all.  He interacts with his family on a very perfunctory level.  He occasionally watches sport on television. He told me he spends his days at the offices of Mr Brown, a politician, where he occasionally does mail duties and makes tea.  Mr Ward told me he spent the time sorting papers and preparing for hearings which preoccupied him greatly, and took up a large amount of his time. 

I rated Mr Ward at 5 in Table 22.1 of GARP. 

Table 22.2:  Mobility.  I then moved to consider Mr Ward's mobility in relation to the ratings in Table 22.2 of GARP.  The Respondent submitted that the correct rating in Table 22.2 was 4, as found by the Veterans Review Board.  I noted from the evidence that Mr Ward could drive a car, although he did not seem to drive for more than 15 minutes or so at a time,  that is, to his daughter's place, to Mr Brown's offices, and to his doctor.  He can walk and move around freely, although in the written documents he stated that he needed a walking stick.

Mr Ward said he does not often catch buses, and said that he had nowhere to go, so he does not take trains. 

I found that Mr Ward should be rated at 3 for mobility in Table 22.2 of GARP as he can drive a car and walk certain distances.  I find that he has moderately reduced mobility and satisfies the other criteria in paragraph 3 of Table 22.2. Paragraph 3 says:

-     mobility curtailed or diminished because of frailty, lack of confidence; or moderate agoraphobia;

-      travel as a passenger in private and public transport possible in most circumstances, without undue difficulty (‘undue difficulty’), not being the need for a break in travel or for special seating arrangements). 

-     dependent on a walking stick or similar device.  Independent on leaving home and reaching destination but has some difficulty.

Even though the Respondent found that 4 was the correct categorisation, that would have meant that Mr Ward had:

Markedly reduced mobility:

-     assistanceis needed  to cope with public or private transport;

-    there is considerable difficulty in travelling from home to destination;

-  restricted in the use of at least two forms of public transport. 

I did not agree with that rating and awarded a rating of 3 in table 22.2. 

Table 22.3:  Recreational and Community Activities.  The Respondent agreed with the Veterans Review Board which had rated Mr Ward at 6 pursuant to Table 22.3.  Mr Ponnuthurai accepted that attending at Mr Brown's offices was not a recreational activity for Mr Ward.

I agree.  I found that the appropriate rating in this category was 6 for Mr Ward.  I accepted he has no recreational or social activities which he enjoys other than watching a little bit of television, and that he suffers pain.  He is able to engage in only very few satisfying activities and restricted to a few passive activities such as watching TV. 

Table 22.4 Domestic Activities.  In considering Table 22.4 I considered Mr Ward's evidence and the submissions of the Respondent.  Mr Ponnuthurai submitted that Mr Ward be rated at 4 for domestic activities, as he was not able to do very much.  The Respondent noted Mr Ward's evidence that he could not cook because he had so many papers it would have been a fire risk.

I accepted that Mr Ward is only able to carry out very limited domestic duties such as some weeding in the garden.  He does not cook or wash dishes or change his bed.  He uses a knife to cut rolls and butter them, and eats a very limited diet.  I rated him at 5 in relation to Table 22.4 of GARP.  This means he is:
 limited to household activity to a small range of light tasks, for example, watering the garden, but has difficulty in weeding or pruning.  He told me did a tiny bit of weeding.  The rating of five refers to the ability to do some light household activities and difficulty bending to make beds or putting out the rubbish bin, and refers to requiring assistance with grocery shopping. Well, Mr Ward neither does shopping nor light household activities.  In fact, he does very little at all, and should be rated at 5 in relation to Table 22.4.

Table 22.5:  Employment Activities.  It was clear from the evidence and his age that Mr Ward was not in employment and because he would be unable to do paid work due to his disabilities.  The rating is 5. 

THE TRIBUNAL

So, as to lifestyle effects, the Tribunal rated Mr Ward as follows: 
Table 22.1 - 5. 
Table 22.2 - 3. 
Table 22.3 - 6. 
Table 22.4 - 5 and 5 for the table for employment. 

This totalled 19 which meant the lifestyle rating is 19. To arrive at the correct rating, the figure of 19 is divided by four. Mr Ward therefore did not reach the figure of six required for eligibility for pension at the EDA rate.
In the Tribunal's view, Mr Ward's lifestyle rating, when calculated according to GARP and rounded up, was 4. 

He was, therefore, not eligible for pension at the EDA rate. 

For the sake of completion, I have also noted that the Veteran is not eligible for pension at the special rate, and that the VRB refused Mr Evans' EDA on the basis he did not have a lifestyle rating of at least 6 points. 

Accordingly, the decision of the Repatriation Commission and the Veterans Review Board must be affirmed, and Mr Ward's application before the Tribunal is unsuccessful.

DECISION

The decision is, then, the Administrative Appeals Tribunal affirms the decision of the Veterans Review Board that pension be assessed at 100 per cent of the general rate to operate on and from 14 May 2000 as decided by the Repatriation Commission.
Accordingly, pension is not payable at the extreme disablement adjustment rate pursuant to the Veterans Entitlements Act 1986. 

Thank you.

Ms G Ettinger

Senior Member