ANTONIO BERTUCCI and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2009] AATA 698

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 698

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No: 2008/5912

GENERAL ADMINISTRATIVE DIVISION		)
Re		ANTONIO BERTUCCI

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal M J Carstairs, Senior Member

Date1 September 2009

PlaceBrisbane (Heard in Cairns)  

Decision	The Tribunal sets aside the decision under review and remits the matter to the respondent with the direction to obtain a medical report from a specialist physician addressing the question of whether the effect of Anthony Bertucci’s medical conditions was such as to entitle him to payment of disability support pension from the date of his claim on 28 November 2007.
……………[sgd]……………. Senior Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – pension granted – commencement date – whether applicant is entitled to pension from date of claim – decision under review set aside with recommendation  

Social Security (Administration) Act 1999 (Cth), ss 8, 12

Administrative Appeals Tribunal Act 1975 (Cth), s 43

Burgess v Secretary Department of Family and Community Services [2004] FCA 136

REASONS FOR DECISION

1 September 2009 M J Carstairs, Senior Member

1.      Antonio Bertucci has made an application to this Tribunal for review of a decision refusing his claim for disability support pension; a claim that he had made towards the end of 2007, which was rejected.  Centrelink granted Mr Bertucci’s disability support pension with effect from 5 December 2008, so in that respect, the question before me is confined to whether he is entitled to payment from an earlier time, that is, to a date related to the claim he made on 28 November 2007.

2.      The matter was listed for hearing in Cairns on 1 September 2009.  Mr Bertucci did not attend the hearing.  Normally, the respondent would be entitled to ask that such an application be dismissed.  However, in view of Mr Bertucci’s particular vulnerabilities, that course would not be appropriate.

3. I have concluded under s 43 of the Administrative Appeals Tribunal Act 1975 that Centrelink’s decision rejecting the claim[1] ought to be set aside, and the matter should be remitted to the respondent, with a direction that the respondent obtain a report from a specialist physician to assess whether Mr Bertucci’s medical conditions were such as to qualify him for pension, at or about November 2007. 

[1]        Decision dated 11 December 2007: T8.

BACKGROUND

4.      Mr Bertucci claimed disability support pension in 2007 shortly after he was released from gaol, where he had been confined since 2001.  He was 57 years of age when he claimed pension.  He stated in his claim that he was suffering with emphysema, and had been hospitalised for this while he was in prison[2].  Mr Bertucci also said he was suffering “anxiety attacks”.  He described himself as being able to do most things without a problem, except walk, sleep, and breathe, and he said he often had problems concentrating, interacting with others, and attending work appointments.  He nominated his prison file as a source of information about his disabilities.

[2]        T6, p40.

5.      Mr Bertucci went to a doctor to obtain a medical report.  Dr F Benson[3] made quite plain that he was not the treating doctor and had only seen Mr Bertucci that week.  Dr Benson also emphasised that he did not have any access to prison medical materials that might show relevant investigations of the conditions.  He diagnosed Mr Bertucci with emphysema, noting that he would not manage of a flight of stairs without gasping.

[3]        T4.

6.      Centrelink’s job capacity assessor however identified following conditions:

§  emphysema

§  psychiatric disorder (other): he appears to have no insight; evidence of irrational thinking and paranoia…he admitted to previous history of mental illness…

§  drug dependence.

7.      The assessor rated Mr Bertucci’s emphysema as NIL, stating that “able to complete most everyday tasks without difficulty – never been hospitalised for the condition”.However, I note that did not appear to accord with Mr Bertucci’s claim form.  The other two conditions were not rated.  I assume on the grounds that they did not meet the requirements of “permanency”.  Overall, the assessor thought that Mr Bertucci would have difficulty finding work as a result of a combination of factors, including his criminal history, his primary school level of education, a “suspected psychiatric condition” and the fact that he had not worked since 1980.  It was also thought that he would need to find permanent accommodation as he was living then at Ozcare.   

8.      Mr Bertucci persisted with his claim despite its rejection and saw another doctor, Dr H Trimble at Mareeba Hospital.  She too had only seen Mr Bertucci on that one occasion and diagnosed chronic obstructive pulmonary disease and depression (both permanent).   Mr Bertucci next saw (on one occasion only), Dr A Shearer at the Cairns Base Hospital, and he diagnosed Mr Bertucci with chronic myeloid leukaemia, but expected he would improve greatly with treatment.  Dr Shearer left blank any other conditions.  Mr Bertucci was being assisted then by the oncology social worker at Cairns Base Hospital, Ms C McIntyre, who continued to press the claim.

9.      There is no need to detail here all the medical reports, and job capacity assessments that were carried out on this file.  Suffice to say that until Mr Bertucci started to see Dr R Kudikyala, general practitioner, he was not obtaining medical reports from doctors familiar with his case, or involved with his ongoing treatment.  Dr Kudikyala stated[4] that Mr Bertucci was suffering from a cough, fatigue, lethargy, tiredness, joint pains, weight loss and difficulty breathing as a result of leukaemia and emphysema.

[4]        T18.

10.     I would also note that even a cursory reading of the several job capacity assessments reveal this to be a very difficult case[5].  It appears to have become clear to Centrelink officers by about December 2008 that Mr Bertucci may have been manifestly entitled to disability support pension.  It was noted that:

Customer is ill both emotionally and medically and I want to explore possible manifest dsp as customer appears to be really unwell[6].

[5]        T12, T22.

[6]        T25, at p160.

11.     The records also note that he would require help to complete a claim form as the Centrelink officer perceived him as lacking capacity to complete a claim by himself.

DISCUSSION

12.     There were a number of indications in the file materials that Mr Bertucci may have difficulty dealing with his affairs.  It appears he becomes stressed with telephone calls, and more than one Centrelink officer noted “he became agitated and terminated the call”.  Another job capacity assessor noted that he had “fluctuating rate and volume of speech, variations in mood, persecutory thought processes, is somewhat tangential, blunt and avoidant”[7]. 

[7]        T22, at p122.

13.     I was mindful that if the relevant medical reports were relied upon at face value, there was insufficient evidence to grant Mr Bertucci’s claim.  However, there is so much evidence in this matter that suggests that Mr Bertucci has, and had, intractable health problems that one should treat with caution the medical reports upon which the decision to reject this claim were based.  I have referred already to these being reports from doctors who had not seen Mr Bertucci before the day that he attended to request a report.   

14. I was mindful also that s 8 of the Social Security (Administration) Act 1999 (“the Administration Act”) provides that, in administering social security law, the respondent, (amongst other things), is to have regard to the special needs of disadvantaged groups in the community. Mr Bertucci seems to fall into that category of person, particularly at the time that he claimed, being newly released from prison, seemingly homeless for much of the time, and showing real impediments with communication. He indicated in his claim that his medical records were available from the prison; it might have been helpful to access these on his behalf.

15. The Centrelink job capacity assessors were clearly alive to the possibility that Mr Bertucci had a psychiatric problem, or some trouble with cognition. Taking into account the injunction in s 8 of the Administration Act and recommendations set out in the Tables for the Assessment of Work-Related Impairment for Disability Support Pension that:

arrangements should be made for investigation of poorly defined conditions before considering assigning an impairment rating.  In particular where the nature or severity of a psychiatric (or intellectual) disorder is unclear appropriate investigation should be arranged.

It seems to me that better medical evidence ought to have been sought in this case before rejecting the claim.

16. I asked Mr R Hamilton, who appeared for the respondent at the hearing whether any consideration had been given to whether Mr Bertucci’s request for arrears might be dealt with under the provisions of s 12 of the Administration Act, which allows transfer from one kind of payment to another. Such a course was discussed by the Federal Court in Burgess v Secretary Department of Family and Community Services [2004] FCA 136. Mr Hamilton said that this had not occurred, but Mr Bertucci would still have to qualify for disability support pension at the earlier date, for transfer to be possible under that provision.

17.     Mr Hamilton agreed that the best course in these circumstances was to set aside the decision under review and remit the matter to the respondent, to allow a closer scrutiny of that question, aided by a medical report.  I have suggested that this report be obtained from a specialist physician, who would be able to address the question of whether Mr Bertucci had an impairment rating of 20 points or more at the time of his claim (or within three months thereof).   That report might be conducted as a file review if the respondent thought that was sufficient.  That I would leave to the respondent to decide.

DECISION

18.     Accordingly, and as stated orally on the day of the hearing, the Tribunal sets aside the decision under review and remits the matter to the respondent with the direction that the respondent obtains a report from a specialist physician, addressing whether Mr Bertucci’s medical conditions entitled him to payment of disability support pension at the time of his claim.

I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M J Carstairs.

Signed:...............................[sgd]...........................................

Emily Clarke, Associate

Date of Hearing   1 September 2009
Date of Oral Decision                1 September 2009
Date of Written Reasons          11 September 2009      
The Applicant did not attend the hearing   
Advocate for the Respondent   Mr R Hamilton