VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
ADMINisTRATIVE DIVISION
REVIEW AND REGULATION LIST	
vcat reference No. Z274/2021	
CATCHWORDS	
Review of decision of Victims of Crime Assistance Tribunal decision, primary victim of act of violence by former partner, final order made, application for variation in relation to assistance dog, sections 8(3), 50 and 60 of the Victims of Crime Assistance Act 1996 (Vic). 	

APPLICANT	MNK	
RESPONDENT	Victims of Crime Assistance Tribunal 	
WHERE HELD	Videoconference	
BEFORE	N Campbell, Member	
HEARING TYPE	Hearing	
DATE OF HEARING	7 March 2022	
DATE OF OPEN COURTS ORDER	7 March 2022	
DATE OF ORDER	12 April 2022	
DATE OF WRITTEN REASONS	12 April 2022	
CITATION	MNK v Victims of Crime Assistance Tribunal  (Review and Regulation) [2022] VCAT 394	

Order
The Tribunal orders that:
1	The decision of the respondent made on 19 March 2021 is set aside and a new decision substituted that the award made by the Victims of Crime Assistance Tribunal on 18 January 2018 is varied to provide that the respondent reimburse the applicant the costs of surgery in the amount of $5,483.15.
ORDERS UNDER THE OPEN COURTS ACT 2013
The Tribunal having:
1	had regard to the presumption in favour of disclosure contained in s.4 of the Open Courts Act 2013, and
2	evidence before it concerning alleged criminal conduct highly private to the applicant, 
is satisfied that a proceeding suppression order ought to be made on the ground that it is in the interests of justice.
The purpose of the Tribunal’s order is to protect the privacy of the applicant, relating to this review proceeding.
The duration of the order has been determined on the basis the Tribunal is satisfied it is necessary in the interests of justice for the applicant’s identity to be protected permanently.
The Tribunal orders under s.17 of the Open Court Act 2013 that:
1	The applicant shall be referred to in these proceedings as MNK.
2	Any report of the whole or part of these proceedings or information derived from this proceeding that might enable MNK to be identified must not be published or otherwise disclosed.
3	This order applies throughout Australia on the basis that the Tribunal’s reasons for decision for final orders are published on AustLII and that website may be accessed throughout Australia. The privacy of MNK would be breached if persons living outside Victoria know or come to know MNK’s identity.
4	This order operates until the death of the applicant.

N Campbell
Member			

APPEARANCES:		
For Applicant	In person	
For Respondent:	Mr R Kornhauser of Counsel, instructed by Ms S d’Rozario, solicitor of the Victorian Government Solicitor	

Reasons
The proceeding
1	This is a review of a decision made by the Victims of Crime Assistance Tribunal (VOCAT) on 19 March 2021, refusing to vary an award under the Victims of Crime Assistance Act 1996 (the VOCA Act) to provide for the reimbursement of surgical costs for the applicant’s assistance dog.
Background
2	On 5 April 2016, the applicant applied to VOCAT as a primary victim of acts of violence committed against the applicant by a former partner. 
3	On 18 January 2018, VOCAT made an award of assistance and special assistance in respect of the acts of violence. 
4	On 31 October 2018, the applicant applied to vary the award to include financial assistance to have her dog trained as an assistance dog. 
5	On 8 January 2019, VOCAT granted the variation to the award to make provision for funding of training of the dog as an assistance dog and its registration as such, once the training was complete.
6	On 15 February 2021, the applicant applied to VOCAT for a variation of the award to provide for reimbursement of veterinary surgical services for the assistance dog. 
7	By decision dated 12 March 2021, VOCAT refused to vary the award for reimbursement of veterinary expenses (the VOCAT decision). On 17 May 2021, VOCAT provided written reasons for the decision. In summary, VOCAT found that the expenses did not meet the requirements of subsection 8(3) of the VOCA Act, as the expenses were not incurred to assist the applicant with her recovery from the acts of violence.  
8	On 8 April 2021, the applicant lodged with VCAT an application for review of the VOCAT decision pursuant to section 59 of the VOCA Act.  
9	On 24 May 2021, VOCAT filed its section 49 statement with VCAT. 
10	The matter came on for hearing before me on 7 March 2022. At the commencement of the hearing, I made orders pursuant to the Open Courts Act 2013 as set out above for reasons including that the applicant was a victim of family violence.
11	Prior to the hearing, the parties had filed a joint Tribunal Book. The applicant gave sworn evidence at the hearing. VOCAT did not take a position on the disposition of the review, but made submissions as to the law and relevant circumstances for the assistance of this Tribunal. Various documents from the Tribunal book, were relied upon by the parties. 
12	At the end of the hearing, I reserved my decision. 
13	On 8 March 2022, VCAT received two further medical reports from VOCA, which had only partly been filed with the section 49 statement and the Tribunal Book.
Background Facts 
14	The applicant was the primary victim of acts of violence which led VOCAT to making an award of assistance and special assistance as well as later variations to that award. 
15	The variation granted by VOCAT on 8 January 2019, provided for funding for the training of the applicant’s dog as an assistance dog and its registration as such. Counsel for VOCAT submitted that implicit in that decision was that there were, at that time, exceptional circumstances and that the expenses relating to the training and registration of the dog as an assistance dog were reasonably likely to be incurred by the applicant to assist in her recovery from the acts of violence.
16	The dog has since been trained and registered as an assistance dog and has been undertaking that role with the applicant. Prior to being an assistance dog, the dog was the applicant’s pet.
17	In about August or September 2020, the dog suffered an injury to its left back leg causing acute weight-bearing lameness. The veterinary specialist diagnosed that the anterior cruciate ligament was completely torn. On 15 September 2020, surgery was undertaken to repair the tear. The costs of the surgery as per the invoices provided to the Tribunal was $5,483.15.
The relevant law
18	Subsection 50(1) of the VOCA Act relevantly provides that:
The Tribunal may award assistance to an applicant if satisfied:
(a)	That an act of violence has occurred;
(b)	That the applicant is a primary victim, …
(c)	That the applicant is eligible to receive the assistance.
19	Subsection 8(3) of the VOCA Act provides as follows:
In exceptional circumstances, there may also be included in the amount awarded to a primary victim within the limits set by subsection (1) an amount for other expenses actually and reasonably incurred, or reasonably likely to be incurred, by the primary victim to assist his or her recovery from the act of violence.
20	Section 60 of the VOCA Act provides that VOCAT may vary an award in any manner it thinks fit. I must have regard to any fresh evidence that has become available, any change in circumstances since the award was made or last varied and anything else that I think is relevant. VOCAT and this Tribunal must exercise power under section 60 in accordance with the other provisions of the VOCA Act.
21	Section 59 of the VOCA Act provides for VCAT to review, amongst other things, a VOCAT decision to refuse to vary an award under section 60.
Issues to be determined 
22	As an award had previously been made by VOCAT, and to make such an order VOCAT must have been satisfied of the matters in subsections 50(1)(a) and (b) of the VOCA Act, I do not need to consider these matters. I am required to consider the matters under subsections 8(3) and 50(1)(c) of the VOCA Act.
23	The issues for me to determine in this matter are whether:
a.	There are exceptional circumstances under section 8(3) of the VOCA Act, which support the making of an order to vary the award made on 18 January 2018;
b.	The expenses were reasonably incurred to assist the applicant to recover from the acts of violence;
c.	The variation should be made.
Issue 1 – Are there exceptional circumstances which support the making of an order to vary the award under section 8(3) of the VOCA Act
24	I must first consider whether there are exceptional circumstances under section 8(3) of the VOCA Act. 
25	Counsel for VOCAT directed the Tribunal’s attention to the VCAT decision of QMX v Victims of Crime Assistance Tribunal [2018] VCAT 614 (QMX), which adopts at [144] the following passage from Kent v Wilson [2000] VSC 98 at [22]:
Exception is defined, contextually, in the Oxford English Dictionary (2nd Edition Volume V), the greatest dictionary, as meaning ‘unusual, special, out of the ordinary course’. This does mean any variation from the norm.
… Courts have been both slow and cautious about essaying definitions of phrases of this kind, leaving the content of the meaning to be filled by the ad hoc examination of the individual case. Each case must be judged on its own merits, and it would be wrong and undesirable to attempt to define in the abstract the relevant factors.
26	The reasons in QMX refer to a number of decisions in which this Tribunal found that exceptional circumstances existed. It appears that it in each of these matters, the exceptional circumstances were found in the acts of violence or the consequences suffered by the applicant from those acts. 
27	Counsel for VOCAT conceded that there was no reason why the exceptional circumstances needed to fall into either of those categories. 
28	I find that the expression ‘exceptional circumstances’ must be interpreted in the context of the relevant legislation, in this case the VOCA Act.
29	The applicant referred me to her ongoing problematic housing situation since the acts of violence occurred some six years ago. She stated that she had moved 13 times in that period and still does not have secure housing. The applicant stated that some of her housing in that period has included a storage shed, house sharing with a drug dealer and living in a rooming house with the 13 other residents, all men. At the time of the acts of violence, the applicant left her home with only the clothes she was wearing. 
30	The applicant has been diagnosed with post-traumatic stress disorder and depression arising from the acts of violence. These conditions have caused her to often be unable to leave her home, attend appointments or undertake shopping. She has not been employed since the acts of violence. The applicant had a good career prior to the acts of violence. These matters are not in dispute.
31	The applicant has undergone a range of treatment for her medical conditions arising from the acts of violence. She has been treated with medication, acupuncture, naturopathy and herbal supplements as well as counselling. The dog has been recognised by medical practitioners and support worker as her most important support in her recovery. 
32	The training of the dog to be a registered assistance dog took approximately two years. The applicant indicated that if she were to train a second dog, a shorter period would be likely, as this was the first dog she had trained. I note that the written training program for the dog assumed a training period of six months. The applicant’s housing difficulties and medical conditions likely caused this period to be extended. It might be expected that training a new dog would also take more than six months. There would also be a period of selection and raising the dog before the training could begin. 
33	The applicant gave evidence that she had difficulty leaving the house before the dog was trained as an assistance dog. Once trained, she used the dog to be able to attend appointments, go shopping and otherwise engage in society. I accept that the above evidence is correct.
34	As discussed above, Counsel for VOCAT conceded that it was implicit in the variation decision to fund the training and registration of the dog as an assistance dog, that exceptional circumstances existed at that time. 
35	I am satisfied in this case there are currently exceptional circumstances pursuant to section 8(3) of the VOCA Act, which include the medical consequences suffered by the applicant from the acts of violence, as described in the medical reports, as well as the homelessness and displacement of the applicant and the role of the dog in assisting the applicant to attend appointments, with shopping and potentially in the future employment. I also considered the time and funds needed to replace the present assistance dog with a new trained assistance dog.
Issue 2 – Were the expenses reasonably incurred to assist the applicant to recover from the act of violence
36	Counsel for VOCAT submitted that there were three matters which must be considered in deciding whether an expense is reasonably incurred to assist a primary victim to recover from an act of violence. Firstly, the Tribunal must objectively assess whether the expense will assist with recovery. It was submitted that what would usually be required was expert evidence from a psychologist or counsellor to the effect that the expense would bring a therapeutic benefit and would assist recovery. Secondly, the Tribunal must be satisfied that the expense was actually incurred for the purpose of promoting recovery. Thirdly, the Tribunal must be satisfied that the expense is incurred reasonably, taking into account the degree of benefit conferred by the expenditure and the proportionality to the needs of the applicant.
Whether the expense will assist with recovery from the act of violence
37	The applicant’s variation application to VOCAT for the funding of the training and registration of the dog as an assistance dog, stated as follows:
I have depression and anxiety every time I leave the house without [the dog]. Having [the dog] certified … I will be able to take her to all my appointments and reduce by anxiety, as I do not have stable housing I want [the dog] close to me.
38	Prior to the variation order being made, a support worker at a victim’s assistance program stated in a letter dated 10 September 2018, that the dog provides companionship and therapeutic support throughout the trauma the applicant has suffered, the dog is a crucial part of her recovery. 
39	A counsellor stated in a letter dated 19 October 2018, that it would be helpful for the applicant to be able to take her dog to the places and appointments in order to help her feel more secure.
40	Counsel for VOCAT conceded that implicit in the VOCAT decision to fund the training and registration of the dog as an assistance dog was that these expenses were reasonably likely to be incurred by the applicant to assist in her recovery from acts of violence.
41	A question in this case is whether the veterinary surgery costs are expenses that will assist in the applicant’s recovery from the acts of violence. I am satisfied, as the Magistrate was at the time of the variation to fund the training and registration, that the provision of the dog as an assistance dog would assist in the recovery of the applicant. As it was put by Counsel for VOCAT, a key issue in the present matter is the relationship between the expense and the benefit received. Counsel for VOCAT submitted that the expense of the training had a clear and direct relationship to the applicant’s recovery. The expense of the training provided the applicant with an assistance dog to assist the applicant in recovery. 
42	Counsel for VOCAT submitted that the costs of veterinary surgery are more in the nature of general upkeep costs of a pet. There is not the same type of relationship as exists with the training and registration for the purpose of being an assistance dog. In that context, it is noted that the dog was the applicant’s pet before being trained as an assistance dog.
43	The applicant gave evidence that without the surgery, the dog would have no longer been able to work as an assistance dog. The dog was walking on three legs. It could not perform the duties of the assistance dog on three legs.  The veterinary report states that the dog suffered acute weight-bearing lameness and was diagnosed with a completely torn anterior cruciate ligament.
44	The issue of the level of directness between the expenses and assistance with recovery is a difficult one. No caselaw was brought to my attend to assist me in this matter. 
45	I am satisfied that if the surgery was undertaken the dog would have been able to continue its work as an assistance dog, which had enabled the applicant to attend appointments, leave the house without become more stressed and to sleep better. If the surgery had not been undertaken, the dog would not have been able to discharge these duties. In that sense the expenses of the surgery would assist the applicant in her recovery. The surgery for the dog is the equivalent of essential repairs to keep a piece of equipment used for recovery from acts of violence.
46	On all the material before me in this case, on balance, I am satisfied that there is sufficient correlation between the expense and the benefit to the applicant in her recovery from the acts of violence to meet the requirement in section 8(3) of the VOCA Act.
Was the expense actually incurred for the purpose of the applicant’s recovery
47	The applicant gave evidence that the dog accompanied her everywhere. She has anxiety when the dog is not with her. The presence of the dog gives the applicant the confidence to go out into the community. The dog calms the applicant. The applicant stated that before the dog was trained, she would often not go out and had difficulty attending appointments. The applicant stated that she needed a job where the dog could accompany her. 
48	The veterinary report for the surgery indicated that the dog was a working companion dog.
49	Part of a public housing application form completed by the applicant’s GP on 4 March 2019, stated that the support dog is pivotal in therapy and recovery from mental illness.
50	I am satisfied that the purpose of the expenditure was the restoration of the dog to its role as an assistance dog to assist the applicant’s recovery from the acts of violence.
Was the expense incurred reasonably?
51	Counsel for VOCAT submitted that a significant expense might not be reasonably incurred if it would be disproportionate to any objective benefit conferred on the applicant, particularly if the benefit could be achieved by alternative, less expensive means.
52	The costs of the veterinary surgery are a significant expense. The material from the applicant’s medical practitioners and counsellors indicate that the applicant receives a significant benefit from the provision of the assistance dog. Prior to having the dog trained as an assistance dog, the applicant had difficulty attending appointments, shopping and engaging in the community. The provision of the assistance dog has assisted the applicant to engage in these activities. The provision of the assistance dog has also helped the applicant to sleep better. 
53	The alternative to the surgery, which would return the dog to its duties, would have been for the applicant to source a new dog, raise it to the age when it was ready to be trained and train the dog with the relevant costs and time involved. I noted earlier in these reasons that the training would likely take more than six months. There was no evidence as to the cost of a replacement dog. I am not satisfied that there was any option for the applicant to replace the assistance dog, which could have been achieved by less expensive means in a reasonable period. 
54	The time required to source and train the replacement dog would have likely negatively affected the applicant’s recovery. 
55	I am satisfied that the veterinary expenses were reasonably incurred.
Conclusion
56	I find that there are exceptional circumstances in this case. I find that the veterinary costs of the applicant for the dog were expenses reasonably incurred to assist the applicant to recover from the acts of violence. I have therefore decided to set aside the decision under review and substitute a new decision that the award made on 18 January 2018 be varied to provide that VOCAT reimburse the applicant the veterinary costs.

N Campbell
Member