Kershaw v Repatriation Commission [2000] FCA 1802

FEDERAL COURT OF AUSTRALIA

Kershaw v Repatriation Commission [2000] FCA 1802

VETERANS – pension assessment – lifestyle rating – whether SUB-criteria in Guide merely illustrative Veterans Entitlement Act 1986 (Cth) ss 23(4)(c), 29(1)(a)7 Table 22.2 Guide the tax Assessment of Rates of Veterans' Pension Collins v Repatriation Commission (1994) 33 ALD 557 applied FRANCIS HENRY KERSHAW v REPATRIATION COMMISSION NO. T 20 OF 2000 HEEREY J 12 DECEMBER 2000 MELBOURNE (HEARD IN HOBART)

IN THE FEDERAL COURT OF AUSTRALIA

TASMANIA DISTRICT REGISTRY T 20 OF 2000

BETWEEN: FRANCIS HENRY KERSHAW

APPLICANT

AND: REPATRIATION COMMISSION

RESPONDENT

JUDGE: HEEREY J

DATE OF ORDER: 12 DECEMBER 2000

WHERE MADE: MELBOURNE (HEARD IN HOBART)

THE COURT ORDERS THAT: 1. The application is dismissed. 2. The applicant pay the respondent's costs including reserved costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

TASMANIA DISTRICT REGISTRY T 20 OF 2000

BETWEEN: FRANCIS HENRY KERSHAW

APPLICANT

AND: REPATRIATION COMMISSION

RESPONDENT

JUDGE: HEEREY J

DATE: 12 DECEMBER 2000

PLACE: MELBOURNE (HEARD IN HOBART)

REASONS FOR JUDGMENT 1 The applicant appeals against a decision of the Administrative Appeals Tribunal which affirmed decisions of the Veterans' Review Board and the Repatriation Commission rejecting the applicant's application for an increase in his pension by fifty per cent pursuant to s 23(4) of the Veterans Entitlement Act 1986 (Cth) ("the Act"). 2 The only condition prescribed by s 23(4) in issue was that contained in s 23(4)(c) viz: "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 ['the Guide']." 3 The 5th edition of the Guide, which commenced on 18 April 1998, sets out the criteria by reference to which the extent of the incapacity of a veteran resulting from war-caused injury or disease shall be assessed – see s 29(1)(a). 4 The Guide is part of the law authorised by the Act, and has effect according to its terms: Collins v Repatriation Commission (1994) 33 ALD 557 at 566. The Guide provides the rules whereby incapacity is to be assessed. The task of the Commission (and on review the Tribunal) is to apply the facts of the particular case to the rules so expressed: Collins at 567. 5 The Guide provides for two elements of assessment of degree of incapacity – medical impairment and lifestyle effects. The later is dealt with in Chapter 22 of the Guide, which provides that a lifestyle effect is a disadvantage resulting from an accepted condition that limits or prevents the fulfilment of a role that is normal for a veteran of the same age without the accepted condition (p 263). 6 Under the heading "How are lifestyle effects assessed?" the Guide states (p 264) "The effects of impairment on lifestyle are specific to a veteran and are determined by reference to four components of that veteran's life: · personal relationships, · mobility, · recreational and community activities, and · employment and domestic activities." 7 The rating that best accommodates the veteran's circumstances is to be selected from the descriptions in Tables 22.1 to 22.5. A rating is given to each of these components and the average, rounded to the nearest integer, is the final lifestyle rating (p 265). 8 On the review the Tribunal's assessment was · for personal relationships 5. This was higher than the rating proposed by the Commission. · for each of recreational and communal activities and employment and domestic activities, 6. These ratings were common ground · for mobility, 3. · As a consequence the applicant failed the s 24(4)(c) test because his total of 20 (5+6+6+3) divided by 4 was less than the required lifestyle rating of 6. 9 As to the critical issue of mobility, the Tribunal said: "13. In relation to this category the Tribunal cannot accept that the evidence presented justifies a higher rating than 4, and concludes that 3 is a more appropriate rating on the evidence presented. 14. There was no suggestion that the applicant is dependent upon others or mechanical devices such as a wheelchair. His evidence in relation to the use of public transport was that he chooses not to because of his fear of falling and there was no medical evidence linking his falls to an accepted disability. 15. The evidence in relation to his ability to drive was that he prefers not to because of safety reasons caused by a lack of feeling in his hands, a restriction with neck movements as well as his nervous condition. The Tribunal admires his judgment in this regard. 16. However in the Tribunal's view he does not satisfy the indicators for a rating of 5 which requires more than a mere difficulty with his driving a motor vehicle. 17. Even for a rating of 4 there is no evidence that the applicant needs assistance to cope with public or private transport. The Tribunal accepts that he has difficulty in travelling from his home to his destinations and chooses to travel by taxi because he is not keen to drive. The Tribunal determines that a rating of 3 is appropriate for the applicant's restrictions resulting from his accepted disabilities. The evidence was that he can independently leave his home and reach his destination, but experiences some difficulty."