Sleep v Repatriation Commission [2007] FCA 859 (6 June 2007)

Last Updated: 8 June 2007

FEDERAL COURT OF AUSTRALIA

Sleep v Repatriation Commission [2007] FCA 859

ADMINISTRATIVE LAW – appeal from decision of Administrative Appeals Tribunal – where applicant receiving service pension – where applicant owned motor vehicle and trailer – whether vehicle and trailer personal property which should be disregarded under s 52(1) of the Veterans’ Entitlements Act 1986 (Cth) – where vehicle and trailer not designed or modified specifically for use by a disabled person – whether payment of recreation transport allowance inconsistent with motor vehicle and trailer being included in assets test.

Held: vehicle and trailer do not fall within the terms of s 52(1)(k) and (l) of the Veterans’ Entitlements Act 1986 (Cth) – assets not designed or modified for use by disabled person do not fall within exception in s 52(1) of Veterans’ Entitlements Act 1986 (Cth) merely as a result of the intention of owner or disabled person – payment of recreation transport allowance not inconsistent with motor vehicle and trailer being included in assets test – application dismissed.







Administrative Appeals Tribunal Act 1975 (Cth) s 44
Veterans’ Entitlements Act 1986 (Cth) ss 5L, 52(1), 80, 103

Perrone; Re v Secretary, Department of Family and Community Services [2004] AATA 775 referred to












KENNETH JOHN SLEEP v REPATRIATION COMMISSION
SAD 50 OF 2007

BESANKO J
6 JUNE 2007
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 50 OF 2007

BETWEEN:	KENNETH JOHN SLEEP Applicant
AND:	REPATRIATION COMMISSION Respondent

JUDGE:	BESANKO J
DATE OF ORDER:	6 JUNE 2007
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1. The appeal be dismissed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 50 OF 2007

BETWEEN:	KENNETH JOHN SLEEP Applicant
AND:	REPATRIATION COMMISSION Respondent

JUDGE:	BESANKO J
DATE:	6 JUNE 2007
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1 This is an appeal by Mr Kenneth Sleep against a decision of the Administrative Appeals Tribunal ("the Tribunal") made on 28 February 2007. The Tribunal affirmed two decisions made by delegates of the respondent. The appeal to this Court is brought under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) and is limited to an appeal on a question of law.

2 At the commencement of the hearing, the applicant sought to tender two affidavits which he had sworn. The first affidavit was sworn on 23 May 2007 and the second affidavit was sworn on 1 June 2007. I rejected the tender of the affidavit sworn on 23 May 2007 because the matters raised in the affidavit are irrelevant to the issues on the appeal. I received the affidavit sworn on 1 June 2007, subject to arguments as to relevance. For reasons I will give, I do not think that any of the matters raised in that affidavit are relevant to the issues on the appeal.

The facts

3 The applicant is a Vietnam veteran who has a number of accepted disabilities. Those disabilities include an "anxiety state" and a blood disorder, "neutropaenia and lymphopaenia with CD4 suppression". The applicant receives a service pension, the rate of which is calculated by reference to, among other things, the assets he owns.

4 The applicant owns a Toyota Prado motor vehicle and a camper trailer. The question before the Tribunal was whether those items of property were assets which should be taken into account for the purposes of calculating the rate of his pension within the provisions of the Veterans’ Entitlements Act 1986 (Cth) ("VE Act").

Relevant statutory provisions

5 Section 5L of the VE Act contains what are called "assets test definitions". The word "asset" is defined as follows:

"property or money (including property or money outside Australia)."

6 Section 52 of the VE Act lists a number of assets which are to be disregarded in calculating the value of a person’s assets. Relevantly, it provides:

"(1) In calculating the value of a person’s assets for the purposes of this Act (other than sections 52G, 52H, 52JA, 52JB, 52JC, 52JD, 52ZA and 52ZCA), disregard the following:

...

(k) if:

(i) personal property of the person is designed for use by a disabled person; and

(ii) the person, the person’s partner or a child who is dependent on the person or the person’s partner is disabled;

the value of the property;

(l) if:

(i) personal property of the person is modified so that it can be used by a disabled person; and

(ii) the person, the person’s partner or a child who is dependent on the person or the person’s partner who is disabled;

the part of the value of the property that is attributable to the modifications;"

The Tribunal’s reasons

7 The Tribunal found that the applicant suffered from a number of significant war-caused disabilities that included anxiety and a rare blood disorder that left him susceptible to infection. It found that he avoided public places and public transport and that he found that his anxiety, in particular, was helped by regular trips into the Australian outback, where he felt more relaxed and normal within himself. The Tribunal found that the applicant purchased the motor vehicle and the camper trailer for the specific purpose of having annual trips to the outback. The Tribunal found that the motor vehicle was not specifically designed for use by a disabled person. It was a standard motor vehicle and it had not been modified in any way that related to the applicant’s particular disabilities. The Tribunal found that the camper trailer was a standard item owned by many members of the community and it was not specifically designed for use by a disabled person. It found that it was not modified in any way to accommodate the applicant’s specific disabilities. The Tribunal referred to the only decision of which it was aware that might have been relevant to the issue before it (Re Perrone v Secretary, Department of Family and Community Services [2004] AATA 775).

8 The Tribunal held that s 52(1)(k) and (l) of the VE Act refers to specific aids for the disabled and did not refer to standard items that have the additional feature that they give some comfort or relief to a disabled person. The Tribunal said that the submission advanced by the applicant, namely, that an asset not normally seen as being designed for a disabled person can be "reinterpreted" to be designed for a disabled person with a particular disability if that item has the effect of alleviating their disability, went well beyond a beneficial interpretation of the legislation. The Tribunal said that the relevant legislative provisions were straightforward and unambiguous. It said that the motor vehicle and camper trailer were not specifically designed or modified for a disabled person and that they were standard items owned by many members of the community. Both came within the definition of "assets", as contained in the VE Act, and had been properly brought to account as assets of the applicant and his wife.

9 The Tribunal affirmed the decisions under review.

Issues on the appeal

10 There can be no doubt that the motor vehicle and camper trailer are "assets" within the definition of that word in s 5L of the VE Act.

11 I think the Tribunal’s interpretation of s 52(1)(k) and (l) is the correct one. Personal property falls within the terms of s 52(1)(k) if there is a feature or features of the design that indicates that it was designed for use by a disabled person. Assets designed for use by persons who are not disabled, such as the motor vehicle or camper trailer in this case, do not become assets designed for use by a disabled person because of the intention of the owner or disabled person or the particular way in which it is used by a person. If there is any doubt about the proper interpretation of s 52(1)(k) (and I do think that there is), it is removed by the provisions of s 52(1)(l), which deal with modifications made so that personal property can be used by a disabled person. In those circumstances, only that part of the value of the personal property that is attributable to the modifications is to be disregarded under s 52(1). As I understood the applicant’s submission, it was that Parliament intended to exclude from the assets taken into account for the purposes of determining the rate of pension assets which a disabled person needed because of his or her disability and what was needed was a question of fact to be determined in each case. That is not the test laid down by the clear words in s 52(1)(k) and (l). Those paragraphs focus attention on the purpose for which personal property was designed or the reason it was modified.

12 The applicant sought to raise a number of matters on the appeal that appear not to have been raised before the Tribunal. First, he submits that he is receiving a recreation transport allowance and that it is inconsistent for the respondent to pay such an allowance and, at the same time, fail to disregard as assets the motor vehicle and the camper trailer. He submits that the Tribunal overlooked or, at least placed no weight on, the fact that he was receiving a recreation transport allowance. This submission must be rejected. In its reasons, the Tribunal referred to the fact that the applicant asserted that he received a recreation transport allowance as it had been previously accepted that his ability to move from one place to another was affected by his illness. In any event, the receipt of the recreation transport allowance under s 104 of the VE Act is not inconsistent with the decisions that the motor vehicle and camper trailer should not be disregarded in calculating the value of the applicant’s assets. As counsel for the respondent submitted, the Act provides for a range of pensions and the recreation transport allowance is, relevantly, a different allowance from the service pension. Secondly, the applicant refers to the fact that in s 80, which appears in Part V of the VE Act, there is a definition of treatment which includes the provision of social or domestic "transport". In my opinion, the provisions of s 80 cannot affect the proper interpretation of s 52(1)(k) and (l). Thirdly, the applicant submits that the Tribunal may have misunderstood whether or not his service pension was taxable. He refers to a record of the respondent which appears in the appeal book and which suggests, in his submission, that his pension was taxable when, in fact, his pension was not taxable. In my opinion, the respondent’s submission to the effect that whether or not the service pension is taxable is irrelevant should be accepted.

Conclusion

13 In my opinion, the Tribunal did not err and the appeal should be dismissed. I will hear the parties as to costs.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.

Associate:

Dated: 6 June 2007

The Applicant appeared in person
Counsel for the Respondent:	Mr C Bleby
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	1 June 2007
Date of Judgment:	6 June 2007