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Administrative Appeals Tribunal of Australia |
Last Updated: 9 October 2003
ADMINISTRATIVE APPEALS TRIBUNAL )
VETERANS' APPEALS DIVISION |
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Re |
Albert George Henderson |
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And |
Repatriation Commission |
Tribunal |
Mr M J Sassella, Senior Member |
Decision
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The tribunal affirms the decision under review. |
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VETERANS' APPEALS - Disability Pension - general rate - Extreme Disablement Adjustment - lifestyle rating - lifestyle effects - Table 22 of the GARP (Guide to the Assessment of Rates of Veterans' Pensions).
Veterans' Entitlements Act 1986 - s22
Whiteley and Repatriation Commission, Re [1993] 29 ALD 575
4 February 2003 |
Mr M J Sassella, Senior Member |
APPLICATION |
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1. The applicant, Albert George Henderson, seeks review of a decision made by a delegate of the Repatriation Commission ("the respondent") on 24 August 2001, subsequently affirmed by a decision of the Veterans' Review Board ("VRB") on 4 February 2002, whereby the applicant's Disability Pension was continued at 100 percent of the general rate.
2. The decision under review was in response to an application made by Mr Henderson, received on 6 July 2001 (T7), for an increase in pension payable in respect of the following war-caused and/or war-related conditions:
* solar keratoses
* L3/4 disc degeneration
* osteoarthosis of the right great toe
* osteoarthrosis both knees
* osteoarthrosis of the acromio-clavicular joint right shoulder
* bilateral rotator cuff syndrome of the shoulders
* post traumatic stress disorder
* peptic ulcer disease
3. The only issue is whether the applicant's disabilities are of such a nature as to warrant him being granted the Extreme Disablement Adjustment to the disability pension as provided for in s22 of the Veterans' Entitlements Act 1986 ("the Act")[1].
4. If the appeal succeeds, the earliest date that may be set by the tribunal would be 6 July 2001, being the date of application for increase.
5. The respondent concedes that Mr Henderson satisfies the requirements of s22(4)(a)(i), (b) and (d) of the Act, but does not concede that s22(4)(c) is met. In assessing whether Mr Henderson satisfies the requirements of s22(4)(c), the respondent concedes that the applicant has an impairment rating of at least 70 points. Therefore, in order for the applicant to qualify for the Extreme Disablement Adjustment rate, the issue before the tribunal is whether the applicant has a lifestyle rating of 6 points in accordance with the approved Guide to the Assessment of Rates of Veterans' Pensions ("the GARP")[2].
HEARING
6. The tribunal convened a hearing in this matter in Newcastle on 29 November 2002. Ms J Buss of the Legal Aid Commission of NSW Veterans' Advocacy Service represented Mr Henderson. Mr S Modder of the Department of Veterans' Affairs Advocacy Service represented the respondent. The tribunal heard oral evidence from the applicant. The tribunal took into evidence and marked as exhibits the following documents:
Exhibit TD1 - Section 37 Statement and associated documents (exhibits T1 - T15) provided by the respondent.
Exhibit A1 - Applicant's statement of facts and contentions, 21 November 2002.
Exhibit A2 - Report by Ms C Tingate, social worker, 26 June 2002.
Exhibit A3 - Report by Professor Y A E Ghabrial, orthopaedic and spinal surgeon, 7 September 2001.
Exhibit R1 - Respondent's statement of facts and contentions, 25 November 2002.
Exhibit R2 - Report by Ms H Bell, occupational therapist, 6 September 2002.
Exhibit R3 - Transcript of the VRB hearing, 2 February 2002.
LAW
7. Section 22 of the Act contains the following provisions of relevance:
22 General rate of pension and extreme disablement adjustment
(1) This section applies to a veteran who is being paid, or is eligible to be paid, a pension under this Part, other than a veteran to whom section 23, 24 or 25 applies.
(2) Subject to this Division, the rate at which pension is payable to a veteran to whom this section applies in respect of the incapacity of the veteran from war-caused injury or war-caused disease, or both, is the rate per fortnight that constitutes the same percentage of the general rate as the percentage determined by the Commission in accordance with section 21A to be the degree of incapacity of the veteran from that war-caused injury or war-caused disease, or both, as the case may be.
(3) For the purposes of this section, the maximum rate per fortnight is $216.90 per fortnight.
(4) Where:
(a) either:
(i) the degree of incapacity of a veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be 100% or has been so determined by a determination that is in force; or
(ii) a veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the maximum rate per fortnight specified in subsection (3);
(b) the veteran has attained the age of 65;
(c) the veteran has an impairment rating of at least 70 points and a lifestyle rating of at least 6 points, each determined in accordance with the approved Guide to the Assessment of Rates of Veterans' Pensions; and
(d) the veteran is not receiving a pension at a rate provided for by section 23, 24 or 25;
the rate at which pension is payable to the veteran is increased by 50% of the maximum rate set out in subsection (3).
...
EVIDENCE
8. Mr Henderson was sworn and gave evidence about the impact of his condition on his lifestyle. He lives with his wife and has two children and one grandchild. At the time of the hearing, Mr Henderson was 85 years old.
9. Mr Henderson gets on well with all of his family members and his neighbours on all sides. He told the tribunal that he avoids family fights, although he admitted he had a "short fuse".
10. Mr Henderson referred to the report of the social worker [ex A2] and stated that he agreed with its contents. The report identified that Mr Henderson has, at times, strained moments with his wife. The report reflected the evidence Mr Henderson gave before the tribunal that he has occasional tense moments with his wife, but generally hides his degree of suffering and level of distress.
11. Mr Henderson recounted the significant amount of community and charity work that he had performed in the past. His contribution to a variety of community organisations is now limited because of the pain he feels in his feet, legs, arms and back. He stated that any community and charity involvement that he now undertakes is restricted to an advisory role. He is still able to attend meetings, but is usually transported to and from them.
12. Mr Henderson addressed the findings stated in the occupational therapist's report [ex R2], believing that some of the findings were not representative of his actual physical capacity. Mr Henderson stated that he is able to walk for short distances but requires the assistance of a walking stick and needs to have multiple rests. He is able to catch a bus into the Newcastle town centre and the local seawater pool on his own. He attends regular exercise sessions at the pool to assist with pain relief. Mr Henderson also stated that his driver's licence had been renewed in May 2002, but he has done little driving since then. His driving is restricted to assisting with deliveries for Meals on Wheels.
13. Mr Henderson did not contribute greatly to domestic activities in the past, leaving most household chores to his wife. He reported that he is no longer able to do the handiwork and gardening that he was capable of doing. Hired help now undertakes many household tasks.
FINDINGS
14. The only consideration for the tribunal is whether the applicant receives an overall lifestyle rating of 6 or above in accordance with the GARP. To determine the lifestyle rating for Mr Henderson, it is necessary to refer to each of the relevant Tables in Chapter 22 of the GARP. The tribunal notes that an average score of 5.5 for lifestyle effects across the relevant Tables in Chapter 22 is rounded up to the nearest integer, being a rating of 6.
Personal Relationships
15. While Mr Henderson's relationship with his family may be occasionally strained, it would seem that his war-related conditions only cause mild effects. The tribunal certainly recognises that Mr Henderson's social activities are reduced and that he is no longer able to participate to the same extent in the significant charity and community work that he has been involved with in the past. Mr Henderson is still able to offer advice to various charity organisations and volunteers in various charity collections. He is also able to accept assistance from bus drivers. It would appear that communication with acquaintances is sometimes difficult due to Mr Henderson's diminished hearing capacity, however, the Tribunal observed that he is still able to relate to others. It could not be said that Mr Henderson is unable to relate to casual acquaintances or that his personal and social relationships are confined to those closest to him. A rating of 2 points on Table 22.1 appears appropriate.
Mobility
16. The effect of Mr Henderson's conditions on his mobility is considerable. Mr Henderson cannot walk great distances and requires the assistance of a walking stick for those walks that he does attempt. He is generally restricted to walks of not more than two blocks and often requires a lift back to his home.
17. The tribunal notes that Mr Henderson maintains an exercise regimen that includes walking for short distances and occasional hydrotherapy at his local seawater pool. He is able to attend at the pool by use of a local bus service.
18. Mr Henderson has a driver's licence but only drives on rare occasions such as being an emergency replacement for Meals on Wheels. His wife normally drives.
19. While Mr Henderson's conditions restrict his mobility, he is still able to use public transport to attend various places. The tribunal notes that Mr Henderson's bus stop is directly outside his home and that the buses he catches drop him "door-to-door".. However, he is still able to access the bus service on his own, requiring occasional assistance from the bus driver. It would appear that any distance that Mr Henderson travels is short and would not require the need for a break.
20. On consideration of all factors, the tribunal considers that a rating of 4 on Table 22.2 would be appropriate.
Recreational and Community Activities
21. In the past, Mr Henderson was involved in a large number of community and charity activities. His contribution to various organisations over many years was significant and cannot go unrecognised. His involvement in most of these activities has largely diminished. Mr Henderson's withdrawal from public activities can largely be attributed to the cumulative effect his various conditions are having on his ability to cope with crowds, busy places and conversations, in addition to his deteriorated mobility. The charity work he does partake in is restricted to Mr Henderson acting in an advisory role and being an emergency driver for Meals on Wheels.
22. Mr Henderson does not have any hobbies and appears to fill his days with watching television and reading, with the occasional outing. The restrictions on the activities that Mr Henderson can engage in largely result in him taking a passive role, although he is still able to participate in some activities without assistance.
23. The tribunal considers 5 a minimum rating and Mr Henderson would probably qualify for a rating of 6 under Table 22.3. Consistent with the tribunal's finding in Re Whiteley and Repatriation Commission [1993] 29 ALD 575, in cases of uncertainty, the higher of any two possible ratings is to be given. Therefore, the tribunal sees that a rating of 6 is appropriate.
Domestic Activities
24. Mr Henderson cannot do many household activities. His wife does most domestic duties that are not covered by paid help. He is unable to fully dress without some assistance from his wife. He can no longer garden or perform any handiwork, and is restricted in household activities that he could assist his wife with. The tribunal sees that Mr Henderson satisfies a rating of 6 on Table 22.4.
CONCLUSION
25. Collectively, the tribunal's assessment of the effects of Mr Henderson's war-caused or war-related conditions on his lifestyle across the relevant GARP Tables are: 2 + 4 + 6 + 6 = 18. Therefore, the overall lifestyle rating for Mr Henderson, rounded to the nearest integer, is 5. This does not satisfy the requirement in s22(4)(c) of a lifestyle rating of 6 and, therefore, Mr Henderson's pension is not payable at the Extreme Disablement Adjustment rate.
DECISION
26. The tribunal affirms the decision under review.
I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior Member.
Signed: .......................................................................................
Associate
Date of Hearing 29 November 2002
Date of Decision 4 February 2003
Counsel for the Applicant Ms J Buss
Solicitor for the Applicant Legal Aid Commission NSW
Counsel for the Respondent Mr S Modder
Solicitor for the Respondent Veterans' Affairs Advocacy Service
[1] http://www.austlii.edu.au/au/legis/cth/consol_act/vea1986261/.
[2] http://www.dva.gov.au/pensions/policy/garp/garp.htm.
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