Bozinovska and Secretary, Department of Education, Employment and Workplace Relations

[2008] AATA 579

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 579

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/0600

GENERAL ADMINISTRATIVE DIVISION        )

Re             LIDIJA BOZINOVSKA

Applicant

AndSECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

TribunalMr Julian Block, Deputy President

Date4 July 2008

PlaceSydney

DecisionThe decision under review is affirmed save only that the Applicant is entitled to receive the additional sickness allowance amount (as defined in these reasons).

……………[sgd]……………...

Mr Julian Block
  Deputy President

CATCHWORDS

SOCIAL SECURITY – cancellation of sickness allowance – claim for arrears – incapacity for work – temporary or permanent incapacity for work –application requirements for benefits – decision under review affirmed.

Social Security (Administration) Act 1999: ss 75, 80, 85, 85A, 108, 109, 245, 247

Social Security Act 1947: s 168

Social Security Act 1991: Schedule 1A clauses 2 and 4

Social Security (Disability and Sickness Support) Amendment Act 1991

Shi v Migration Agents Registration Authority (2007) 158 FCR 525

The Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services (1992) 39 FCR 225

REASONS FOR DECISION

4 July 2008 Mr Julian Block, Deputy President

PART A - preliminary

1.      By an application to the Tribunal dated 5 March 2007, the Applicant sought the review of a decision by the Social Security Appeals Tribunal (“SSAT”) made on 12 February 2007, and in terms of which the SSAT affirmed a decision by an Authorised Review Officer (“ARO”) made on 20 September 2006 that the Applicant was not entitled to arrears of sickness allowance payable during the period 15 August 1990 to 17 May 1992 (“the Gap Period”). (It is convenient at this point, and if only for the sake of completeness, that mention be made of the fact that the documentation before the Tribunal refers to slightly differing dates in respect of the Gap Period. The dates referred to previously in this paragraph 1 are those set out in the SSAT decision and they are probably correct. However there are references in the submissions by the parties as to the commencing date being either 14 August 1990 or 15 August 1990 and similarly there are references to the end date as being 8 May 1992 or 18 May 1992, although these latter dates are clearly erroneous. Nothing turns on these discrepancies).

2.      The Applicant was represented by Dr K. Sant of counsel, instructed by the Illawarra Legal Centre Inc, while the Respondent was represented by Mr G. Kennett of counsel, instructed by the Australian Government Solicitor.

3. The Tribunal had before it the T documents and also the supplementary T documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975; the T documents and the supplementary T documents are distinguished, as the context requires, by a reference to either “T” or “ST” followed by the relevant page number.  The T documents and the supplementary T documents together run to some 270 pages.  The Tribunal also admitted into evidence as Exhibit A1 a document, which was referred to during the hearing as “the cancellation decision”.

4.      This matter was heard on three days, being 10 March 2008, 28 April 2008 and 7 May 2008, and notwithstanding that the factual issues are not complex, generated quite an astonishingly large volume of paper.  In addition to the documents referred to above, the Tribunal received:

(a)The Applicant’s Statement of Facts and Contentions dated 18 June 2007;

(b)The Applicant’s amended Statement of Facts and Contentions dated 22 June 2007;

(c)The Respondent’s document entitled “Statement of Facts and Contentions of the Applicant” dated 16 July 2007, which was filed by the Respondent and so that the reference in the heading of that document to the “Applicant” should presumably have referred to the Respondent;

(d)The Applicant’s supplementary Statement of Facts and Contentions dated 7 March 2008;

(e)The Respondent’s submissions dated 10 March 2008;

(f)The Applicant’s supplementary outline of submissions dated 24 April 2008;

(g)The Respondent’s summary of issues and positions dated 13 June 2008 including an amended chronology of relevant events; and

(h)The Applicant’s summary of legislation and positions dated 19 June 2008.

5.      It may be noted that after the final hearing date and having regard to the quite extraordinarily complex statutory references, it was agreed that the parties would respectively submit the documents referred to in paragraphs 4(g) and 4(h) above and including to the extent possible, any agreement reached by them as to any relevant matters.  Some at least of the complexity derives from changes in the relevant social security legislation which applied prior to the Gap Period and thereafter.  The Respondent also furnished the Tribunal with a large bound volume containing extracts from the social security legislation as it applied at various relevant times.

6.      It is convenient as a starting point, to include the amended chronology referred to in paragraph 4(g) as follows:

…

AMENDED CHRONOLOGY

No.	Date	Event	Reference
1	22.01.66	Applicant’s date of birth.	T3, f9
2	15.01.90	Applicant lodges claim for Sickness Benefit.	T3
3	24.04.90	Applicant and Dr D’Souza complete Sickness Benefit Review.	ST7
4	06.07.90	Dr D’Souza provides treating doctor’s report - States that the applicant will remain until for work “indefinitely”.	ST8, f163
5	07.08.90	Applicant participates in field officer's sickness benefit review.	ST12, 170
6	09.08.90	Dr Cusack, Commonwealth Medical Officer, provides report on sickness benefit review - States that the applicant’s medical condition “minimally” affects the applicant’s ability to perform their usual or another job.	ST14, f191
7	22.08.90	Cancellation of Sickness Benefit by a delegate of the respondent.	ST15, f193
8	30.08.90	The Department writes letter to the applicant advising her that she is no longer entitled to sickness benefit. Letter states: "You will receive one further payment of Sickness Benefit on 14/9/90".	T5, f15
9	30.08.90	The Department writes letter to the applicant inviting her to call the office to discuss her sickness benefit. Letter states:  “Failure to attend this interview will result in suspension of your Sickness Benefit”.	T6, f17
10	14.08.90	Applicant received last payment of Sickness Benefit.	Exhibit A1
11	12.04.91	Applicant lodges claim for Unemployment Benefit.	T7
12	30.04.91	Applicant’s claim for unemployment benefit refused.
13	18.05.92	Applicant lodges claim for Sickness Allowance.	T8
14	21.05.92	Applicant is granted Sickness Allowance.	T8, f25
15	07.09.92	Applicant invited and sent claim form for Disability Support Pension.	T11
16	10.09.92	Applicant lodges claim for Disability Support Pension. Applicant granted Disability Support Pension (continues to received this benefit from this date).	T13; T14; T16, f57
17	11.11.04	Applicant seeks review of decisions of non-payment of benefit between 1990 and 1992.	ST29, f268
18	07.12.04	Applicant requests back payment of Disability Support Pension to August 1990.	ST29, f268
19	11.04.05	Original Decision Maker affirms decision of 10 September 1992 to cancel Disability Support Pension and not to pay benefit between 1990 and 1992.	Doc lodged with Trib 29.08.07; ST29, f262
20	29.06.06	Letter from Dr Chandra to ARO.	T19
21	20.09.06	Authorised Review Officer ("ARO") affirms decision that applicant not entitled to arrears of Sickness Allowance.	T20
22	25.09.06	Application for review by Social Security Appeals Tribunal ("SSAT").	T38
23	12.02.07	Applicant attends hearing before SSAT.	T2, f3
24	21.02.07	SSAT affirms decision of ARO.	T2
25	05.03.07	Application for review by AAT.	T1

7.      If only as a matter of balance, I include clause 5 of the document referred to in paragraph 4(h) above as follows:

…

(5)The following table shows when various decisions and claims were made in the context of changes in the legislative provisions: (footnote omitted)

Date	Event
15 Jan 1990	Sickness benefit claim
15 Aug 1990	Last payment of sickness benefit made
30 Aug 1990	Cancellation of sickness benefit
12 Apr 1991	Unemployment benefit claim
30 Apr 1991	Unemployment benefit refused
1 July 1991	1991 Act commenced
12 Nov 1991	Social Security (Disability and Sickness Support) Amendment Act 1991 commenced
19 May 1992	Sickness allowance claim
21 May 1992	Decision to grant sickness allowance
10 Sept 1992	Disability support pension claim
2 Nov 1992	Decision to grant DSP.  Paid from date of claim.
20 Mar 2000	Administration Act commenced
11 Nov 2004	Applicant seeks payment of benefit between 1990 and 1992
22 July 2005	Original decision maker decides not to pay benefit between 1990 and 1992.

…

8.      It is of some relevance to note that this matter originally came before me in order to resolve a question of jurisdiction.  However, agreement was reached between the parties as to this aspect and the hearing then proceeded on its merits.  I note in this context that I did not accordingly, and of my own accord, investigate the jurisdictional questions involved.

9.      I have quite deliberately set out (in paragraph 4 above) all of the various statements and submissions that were furnished during the hearing, although and on reflection, I have some doubt as to the relevance of some of them, or in some cases, parts of some of them.  I deal with these aspects in more detail later in these reasons.

10.     The only oral evidence before the Tribunal was given by Ms Rozita Bozinovska (“Rose”) who is a sister of the Applicant.  (It may be noted that in some of the documents the name of the Applicant is spelled as “Lidija” while in others she is referred to as “Lydia”; I have assumed that the former spelling is the correct name for the purposes of these reasons).

11.     Rose was born in Australia after the Applicant and her parents came to Australia from Macedonia.  Her evidence was brief and bearing in mind that she was not cross-examined, can be accepted.  It might be summarised in the following terms:

(a)The Applicant's parents behaved irresponsibly towards their two daughters.  Their expenditure of money available to them was such that food, even of necessaries, was at times in short supply;

(b)During the years which followed the expiry of the Gap Period, the Applicant would from time to time complain as to the fact that during the Gap Period she did not receive any social security payments of any kind; Rose suggested to the Applicant that if she felt aggrieved she should make a claim, as set out in the amended chronology (quoted at paragraph 6 above) and in November and December 2004, some 12 years after the expiry of the Gap Period, the Applicant took the action described in the amended chronology under items numbered 17 and 18.

12.     The Applicant received social security benefits both prior to and after the expiry of the Gap Period; she is currently in receipt of social security benefits and it is in the highest degree likely that benefits will be payable to her indefinitely.

13.     It is convenient at this point to note that as the legislation has altered, there have been changes in nomenclature.  Thus the terms “invalid pension” and “disability support pension” (the latter term having been introduced by the Social Security (Disability and Sickness Support) Amendment Act 1991) can be regarded for the purposes of this decision as being interchangeable.

PART B - the cancellation decision and related matters

14.     As appears from the amended chronology, the Applicant in January 1990 claimed the benefit, which was then described as “sickness benefit”, but which subsequently was called “sickness allowance”; (the difference in nomenclature is not important for the purposes of these reasons).

15.     In August 1990, the sickness benefit was cancelled.  The Respondent wrote to the Applicant advising her that she would receive one further payment of sickness benefit on 14 September 1990.  In fact, the final payment was made on 14 August 1990.  Dr Sant contended that this factor had the effect that the cancellation was invalid.  Mr Kennett in turn contended that the only possible effect might be that the Applicant was entitled to one additional payment and which is referred to in these reasons as the “additional sickness benefit amount” which should have been paid on 14 September 1990, but that the cancellation itself was not thereby invalidated.  The Tribunal agrees with Mr Kennett's contention and accordingly, does not accept that the cancellation was thereby rendered wholly ineffective. (There is also in this context one aspect which as a matter of completeness might be noted even though nothing turns on it. The Respondent contended, as set out previously, that the Applicant might be entitled to one additional payment; in fact T 28 indicates that the sickness benefit was paid fortnightly and so as a matter of strict accuracy there might have been two payments due in respect of the period from 14 August 1990 to 14 September 1990. It follows that the term “additional sickness benefit amount” relates to the payment or perhaps two payments which would have been made for the period referred to in the preceding sentence). I note in this context that this aspect does not appear to have been raised or argued before the SSAT but there was at least implicitly a concession by the Respondent that the Applicant might be entitled to it and the decision of the Tribunal in respect of this application includes a provision for the payment of this additional amount.

16.     The sickness benefit was cancelled on the basis that it is payable where the incapacity for work is temporary only and not where the incapacity for work is likely to endure for a period which is indefinite.  The events which have occurred since that date have established, beyond any possible doubt, that the incapacity for work was not temporary.  Dr Sant contended that while this is so, the evidence at the date of cancellation was such that a finding to this effect, at that time, was not correct.  She drew attention in this context to the medical evidence which was available at that time and contended that it was in some respects contradictory.  Dr Sant contended that the Tribunal standing in the shoes of the Respondent is confined to the evidence which was available at the date of the decision and cannot for this purpose have regard to the evidence which became available thereafter.  The SSAT affirmed the Respondent’s decision and this review turns in the first instance on the question of whether the decision of the SSAT was correct.  Although this aspect was argued at some considerable length and must be considered accordingly, the most recent of the documents lodged on behalf of the Applicant might perhaps suggest that this aspect is not as important as was, at least during the hearing, thought to be the case.  Clause 7 of the Applicant’s summary of legislation and positions reads as follows:

…

(7)If, as is likely, the Tribunal decides that the incapacity was permanent, the correct payment at the time of the cancellation was invalid pension.  It was replaced by a pension of the same name when the 1991 Act came into force with the same essential qualification provisions.  The essential qualifications were that a person of the permanently incapacitated for work [fn: s 28(a) of the 1947 Act; s 94(1)(a) of the 1991 Act]; that the degree of incapacity be at least 85% [fn: s 27(a) of the 1947 Act; s 94(1)(b) of the 1991 Act]; and that at least 50% of the incapacity be directly caused by permanent physical or mental impairment [fn: s 27(b) of the 1947 Act; s 94(1)(c) of the 1991 Act].  Additionally, both acts required that the person had turned 16 and satisfied residency requirements that were similar, if not identical [fn: s 28(b) of the 1947 Act; s 94(e) of the 1991 Act].  In other words, invalid pension was maintained in the new act. (Footnotes have been inserted in the body of the passage quoted).

…

17.     The Applicant, in the document referred to in paragraph 4(f) above, dealt at some length with this question in clauses 2 to 14 (inclusive) as follows:

…

The Relevance of Later Facts or Evidence

(2)The Tribunal is not an appellate authority, but exercises the powers and discretions of the original decision maker (s 43(1) AAT Act) and its decisions are deemed to be those of the decision maker (s 43(6) AAT Act): Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577. It stands in the shoes of the decision maker.

(3)The question as to the correct or preferable decision is to be decided on the material before the Tribunal, and is not confined to the material before the decision maker: Drake per Bowen CJ & Deane J at 589. That remains the law.

(4)Nor is the Tribunal necessarily confined to events which had occurred up until the time of its decision.  However, the scope of the principle that it may consider subsequent events is fairly strictly confined. 

(5)First and most importantly, the Tribunal is obliged to address the same question as the primary decision maker.  In Shi v Migration Agents Registration Authority (2007) 158 FCR 525 [fn: Special leave has been granted in this matter and the High Court decision is currently reserved], Bowen CJ said that "the principal in 2 [that is, the capacity to look at material that was not before the decision maker and consider subsequent events] cannot be applied beyond its scope, that is, in circumstances where the question under review does not attract the application of the principle" (at 531).

(6)Moreover, even where the question under review may attract some application of the principle, evidence of later events can only be relevant to the extent to which it throws light on the issue to be decided: Secretary, Department of Family & Community Services v Holmes (2000) 98 FCR 461, 465.

(7)Second, if the primary decision had to be made by reference to a particular point of time, the Tribunal will be limited to deciding the question by reference to that point of time: Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services (1992) 39 FCR 225; Shi citing Comptroller-General of Customs v Akai Pty Ltd (1994) 50 FCR 511 and Hospital Benefit Fund.

(8)The Tribunal must decide whether Ms Bozinovska was qualified for sickness allowance at the time it was cancelled.  Subsidiary questions such as whether her incapacity for work was temporary or permanent must be asked and answered with respect to the date of cancellation in 1990.

(9)What this means in a practical sense is best demonstrated by consideration of the Hospital Benefit Fund case: Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing & Community Services (1992) 39 FCR 225. The fund had notified the Minister of a change in its rules providing for a new (longer) waiting period for IVF of five years. The National Health Act 1953 relevantly empowered the Minister to declare the change shall not be taken to have come into operation if he or she "is of the opinion" that it "imposes an unreasonable or inequitable condition affecting the rights of any contributors".  The Minister made such a declaration more then [sic] two years after the changes had taken effect and taking into account evidence of later events.  One of the questions that arose upon appeal was whether the Tribunal was entitled to take into account developments in IVF.  The Court said the Minister was concerned with the effect of the change at the date when it took effect not, whether, in the light of developments over the ensuring three years until the hearing, the effect of the rule change was to occasion a state of unreasonableness and inequity to contributors.  The Tribunal received and was influenced by a considerable body of evidence concerning IVF developments after the date the change took effect.  The Full Federal Court held that was an error of law requiring the setting aside of the Tribunal's decision (at 234).  It was only entitled to receive evidence as to prospective developments as they existed at the date of the rule change.  That is, it could take into account advances that were predictable at the relevant time.

(10)The authorities were reviewed by Nicholson J in Shi v Migration Agents Registration Authority (2007) 158 FCR 525, 530. Special leave has been granted in that matter and the High Court's decision has been reserved. It does not seem to have been considered by the High Court previously. The transcript can be found at Shi v Migration Agents Registration Authority [2008] HCATrans 146. It is possible the case may decide that evidence of subsequent events or indeed any evidence that did not exist at the time of the decision may be impermissible, even where that evidence relates to earlier events. See the comments of Justice Kirby at 10 of the transcript. However, the applicant accepts that the balance of authority at present is that subsequent evidence may be taken into account and even evidence of subsequent events but only if they shed light on the relevant circumstances as they existed at the time. Moreover, some principles emerge clearly and are not challenged in Shi.  For example, even the appellants in Shi accepted that where the decision is the cancellation of a pension entitlement there is a temporal aspect to that decision (at 19 of the transcript).

(11)In the present matter, there is little subsequent evidence capable of shedding light on events as they stood at the time.  Ms Bozinovska's prognosis at the time was relevant but it is irrelevant that Ms Bozinovska's condition has turned out to be long-term because prognosis is predictive in nature.  There is a clear parallel with the evidence as to IVF in the Hospital Fund Case where advances that were predictable at the time were relevant but evidence as to the actual advances made in the subsequent three years were not.

(12)There is one piece of evidence that does shed light on the circumstances at the time.  The diagnosis that was made at the time was wrong.  Depression was diagnosed at the time of the cancellation and it appears to have been the only diagnosis at that time.  Schizophrenia had not been diagnosed.  It was not diagnosed until 1992.  That diagnosis has stood the test of time and can be accepted as correct.  With the aid of hindsight, it would appear that the diagnosis in 1990 was incorrect and the correct diagnosis was not made until 1992.  That the correct diagnosis had not yet been made at the time of the cancellation is highly relevant to the question of whether the incapacity could be said to be permanent.  The later evidence of diagnosis may be taken into account because it sheds light on a relevant circumstance existing at the time of the decision - whether her psychiatric problem had been correctly and adequately diagnosed.  The condition causing impairment (or at least most of the impairment) at the time was schizophrenia.  The later evidence establishes that the doctors had not yet sorted out Ms Bozinovska's diagnosis in 1990. 

(13)Dr Cusack proceeded upon the basis that Ms Bozinovska had depression and it caused only minor impairment.  He thought the depression was permanent.  If his view were accepted despite its obvious flaws, it would follow that any impairment caused by the condition of depression from which she suffered at the time was permanent.  It would not follow that any impairment caused by schizophrenia was also permanent (or minor).

(14)It cannot be said that a condition, not yet diagnosed, is more likely than not to cause an incapacity that will last indefinitely.  How could a medical judgment be made that an unknown condition will last indefinitely?  How could a medical judgment be made as to the likely permanent impact on work of an unknown condition?  In order to make that judgment the natural history of the condition would have to be known.  Whether it was likely to respond to treatment and to what degree would be crucial.  Plainly, prognosis and treatability depend upon the nature of the condition. (Footnotes have been inserted in the body of the passage quoted).

…

18.     It will be noted that Dr Sant referred to the contentions referred to in the preceding paragraph, inter alia, to Shi v Migration Agents Registration Authority (2007) 158 FCR 525 (“Shi”).  Shi relates, in respect of a different statute, to the question of whether the Tribunal in hearing a cancellation decision is confined to the evidence before the decision-maker at the time of the decision or whether it is entitled to hear evidence as to what transpired thereafter.  In Shi leave to appeal to the High Court was sought and granted; the appeal has been heard and judgment has been reserved.  Although Shi relates to a different statute, it may be that it will throw light on this particular question, but since that High Court judgment might not be handed down for some time yet, the Tribunal does not feel justified in holding this decision until the High Court decision has been handed down.

19.     In The Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services (1992) 39 FCR 225 (“Hospital Benefit Fund”), the Full Federal Court held in relation to developments in IVF techniques that although the Tribunal must address the same question as was before the primary decision-maker, it is entitled to take account of predictable developments.  I refer in this context to the last three complete paragraphs on p234 of Hospital Benefit Fund as follows:

…

We think that this argument is sound.  It is, of course, well established that the Tribunal determines what was the correct or preferable decision having regard to the whole of the evidence placed before it.  It is not confined to the evidence which was before the primary decision-maker.  The Tribunal is, however, obliged to address the same question as was before the primary decision-maker.  This distinction was spelled out by Davies J in Freeman v Secretary, Department of Social Security (1988) 19 FCR 342.

In the present case, the question before the primary decision-maker (the delegate of the Minister) was whether, at the time it took effect, the change imposed an unreasonable or inequitable condition; not whether, in the light of developments over the ensuing three years until the Tribunal hearing, the effect of the rule change was to occasion a state of unreasonableness and inequity to contributors.  Of course, in considering the position as at the date of the rule change, the Tribunal is not confined to the historical position.  It is entitled to receive evidence as to prospective developments in relation to IVF, as they appear at the date of the rule change.  The reason is that, in evaluating the effect of the change as at that date, account may be taken of predictable developments.  But the evidence must be related back to the date of the change.

It is apparent that, in the present case, the Tribunal not only received a considerable body of evidence concerning IVF developments after 1 July 1989, not shown to have then been predictable; it was influenced by that evidence in reaching its ultimate conclusion.  This was a further error of law requiring the setting aside of the Tribunal's decision.

…

20.     Three medical reports in particular were considered by the SSAT; I refer in this context to clauses 14, 15 and 16 of the SSAT decision (which is T 2-6) reading as follows:

…

Discussion of evidence:

(14)The report of Dr D’Souza’s locum of 24 April 1990, given on review of Ms Bozinovska’s sickness benefit, notes a diagnosis of depression, treated by medication, that the condition is improving and Ms Bozinovska will be unfit for work for ‘about 2 months’.  The report of Dr D’Souza given on 6 July 1990 notes a diagnosis of ‘Psychiatric Disorder – Receiving psychiatric treatment for past nine months from psychiatrist Dr R Kaplan, Wollongong’: that the condition is ‘Deteriorating” (sic) – ‘not able to perform gainful work’ in relation to her usual job and ‘not able to perform other jobs’ and will remain unfit for work ‘indefinitely’.

(15)The report of Dr Cusack, Commonwealth Medical Officer, dated 9 August 1990 given for a sickness benefit review states that Ms Bozinovska has depression which is mild and permanent and that affects her ability to work ‘minimally’.

(16)The Tribunal does not accept Ms Melouney’s submission that the report of Dr Cusack of 9 August 1990 contradicts the report of Dr D’Souza in finding the condition permanent.  The test of permanent or temporary has been considered in a number of cases and the decision of the Federal Court in McDonald v Director of Social Security (1984) 6 ALD 6, that a permanent incapacity is one that, in the light of available evidence, will last indefinitely, that is [sic] will persist for the foreseeable future.  The Tribunal therefore accepted that, in the light of the available evidence as at 22 August 1990, Dr D’Souza’s report of 6 July 1990 and Dr Cusack's report of 9 August 1990 Ms Bozinovska’s incapacity was permanent.

…

21.     It is clear enough that Dr Cusack's report differed in significant respects from that of Dr D'Souza; Dr Cusack thought that the Applicant’s condition was “permanent” but that it was a “minor impairment”.  Dr D'Souza, who was the Applicant's treating doctor, took a far more serious view, in that he found that the Applicant was suffering from a psychiatric disorder, that it was deteriorating, and that the Applicant would be unfit for work ”indefinitely”.  The SSAT in holding that there was no contradiction, concentrated on the meanings to be attributed to the words “permanent” and “temporary”.  Dr Cusack, as events proved, was far too optimistic and his report does not indicate that he spent much time with the Applicant.  He did find though that the Applicant's condition was permanent and not temporary.  The treating doctor, Dr D'Souza, referred to psychiatric evidence and came to the conclusion that her inability to work was indefinite (and permanent).

22.     Although there is, in my view, a difference between the reports of Dr Cusack and Dr D'Souza, it is clear that Dr Cusack did regard the Applicant’s condition as permanent.  In my view it was clearly open to the SSAT to give greater weight to the report of Dr D'Souza as the treating doctor and who had access to psychiatric evidence.  The locum report, which pre-dated the other reports by some months, could in the light of the later reports be discounted.  It would appear that the SSAT considered a contention by Ms Melouney who appeared for the Applicant before the SSAT as to the fact that “indefinitely” meant “temporary” and that accordingly, the Applicant’s illness should have been treated as temporary.  That contention by Ms Melouney was clearly erroneous.  While the SSAT decision is not, with respect, as full or as complete as it might have been, it cannot in my view be said that it was incorrect and should be set aside.  Even at that early stage it was clear that the disability (a mental disability) would endure indefinitely and the Hospital Benefit Fund judgment establishes that predictable developments can be taken into account.  The mental disability in the result proved to be so severe that the Applicant will never be able to work.

23.     It follows that the Applicant's sickness benefit was correctly cancelled; however and in accordance with the cancellation notice, the Applicant is entitled to receive the additional sickness benefit amount.

PART C - the consequences if the cancellation decision was incorrect

24.     In this Part C, I assume by way of hypothesis only that the SSAT decision was incorrect, and that I have erred in affirming it in that at the date of the cancellation decision, there was not sufficient evidence as to the Applicant's disability being permanent or indefinite.

25.     Were the Tribunal to decide that the cancellation decision was incorrect, it would be necessary to have regard to the Social Security (Administration) Act 1999 (“the Act”).

26. Section 109(2) of the Act reads as follows:

…

(2)If:

(a)a decision (the original decision) is made in relation to a person's social security payment; and

(b)a notice is given to the person informing the person of the original decision; and

(c)more than 13 weeks after the notice is given, the person applies to the Secretary, under section 129, for review of the original decision; and

(d)the favourable determination is made as a result of the application for review;

the favourable determination takes effect on the day on which the application for review was made.

…

27. I have quoted s 109(2) of the Act because this is a case in which notice was given of the original decision and review was sought more than 13 weeks after (and in fact many years thereafter) the original decision. A decision to the effect that the original decision was incorrect would be a favourable decision. Section 108 of the Act provides that a favourable decision is made under ss 78, 85 or 85A of the Act. In this case the relevant section is s 85, but it is not necessary for me to set out its terms.

28. Section 80 of the Act is the cancellation power, which is current. It corresponds with the cancellation provisions, which were contained in the Social Security Act 1991 (“the 1991 Act”); an instrument made under the provision of the 1991 Act is taken to be made under s 80 of the Act; (see ss 245 and 247 of the Act).

29. The cancellation provisions in the 1991 Act correspond with s 168 of the Social Security Act 1947 (“the 1947 Act”); an instrument under that section is taken to have been made under the 1991 Act; (see Schedule 1A, clauses 2 and 4 to the 1991 Act).

30. Under s 109(2) of the Act, and because the application for review was made more than 13 weeks after the original decision, a favourable decision would take effect on the date when review was sought and thus many years after the expiry of the Gap Period. There is in my view no basis for a contention that s 109(2) can be interpreted in such manner that it has retrospective effect and so that a favourable decision would date back to the original cancellation decision. This being so, a favourable decision would not assist the Applicant.

PART D - the scope of the ssat decision and related aspects

31.     The Applicant’s application for review of the original decision was made on 5 March 2007.  It appears at T1 of the T documents.  In her reasons for application, the Applicant contended at T1-2 that:

The Social Security Appeals Tribunal erred in deciding that I am not entitled to claim arrears of sickness benefit for the period 14 August 1990 to 8 May 1992.

32.     The SSAT understandably enough treated the decision under review as a decision made by a Centrelink ARO on 20 September 2006 not to pay arrears of sickness benefit.  The SSAT on 12 February 2007 decided to affirm the only decision that was before it.

33.     The SSAT decision makes it clear that it dealt with the application before it only and with no other aspects and indeed it did not have power to do otherwise.

34.     As appears from the documents before the Tribunal, it was suggested to the Applicant at the time when the cancellation decision was made that she should apply for unemployment benefits.  She did indeed so apply (albeit some considerable time later and in April 1991) and her application was refused.  The question of whether that application was correctly refused was not raised before the SSAT or this Tribunal and is thus of no relevance to this decision. It should be noted that Dr Sant contended on behalf of the Applicant that the refusal of the application for unemployment benefits was incorrect in that that application should have been treated as if it were an application for disability support pension. (See p 75 of the Transcript for 28 April 2008). That contention cannot possibly be correct.

35.     It was suggested on behalf of the Applicant that when the cancellation decision was made, the Respondent could have invited the Applicant to apply for the disability support pension.  In fact the Respondent did not do so and despite the huge volume of legislation cited to me, I can see no legal basis upon which the Respondent was obliged to do so.

36.     Mr Kennett spent the best part of a day taking the Tribunal through the legislation in its various forms and as it altered during the relevant period.  He contended inter alia that there is no basis upon which the Applicant could now seek a disability support pension in respect of the Gap Period simply because she did not apply for one.  If I understood him correctly he also contended that insofar as it can be suggested that the Tribunal has a discretionary power in certain circumstances under any relevant provision of the legislation (of any kind) and whereby it could exercise that discretion in favour of the Applicant, it should not do so having regard to the period of so many years that has elapsed.

37.     Although I agree with Mr Kennett's contentions as set out in the preceding paragraph, there is another and more cogent basis upon which this Tribunal is in any event prevented from granting relief of the nature sought.  The Tribunal is charged with the duty of reviewing the SSAT decision, which in turn dealt with a claim for sickness benefit for the Gap Period and nothing else.  The Tribunal has found that the SSAT decision should be affirmed and that in any event to hold otherwise would not in practical terms benefit the Applicant.  The Tribunal does not under the social security legislation have any other function.  Insofar as the Applicant considers that she is aggrieved, she must under the legislation first seek review from the SSAT.  In these circumstances, it is not necessary for the Tribunal to deal with the detailed and lengthy analysis of the legislation with which it was presented.

38.     As set out previously, and when the hearings had been completed, the Tribunal invited the parties to furnish final submissions and including wherever possible advice as to areas on which they were agreed.  The parties did so and the Tribunal is grateful to them for the time and effort so undertaken.  But the Tribunal does not, on reflection, think that it need deal with those further submissions or the areas of agreement between the parties, to any greater extent than as set out in these reasons.

PART E - conclusion

39.     Excepting only that the Applicant is entitled to receive and should be paid the additional sickness benefit amount, the decision under review must be affirmed.

I certify that the 39 preceding paragraphs are a true copy of the reasons for the decision herein of Mr Julian Block, Deputy President

Signed: …………[sgd]…………………………………

Keelyann Thomson, Associate

Date/s of Hearing:  10 March, 28 April and 7 May 2008
Date of Decision:  4 July 2008
Solicitor for the Applicant:                  Illawarra Legal Centre, Inc
Counsel for the Applicant:                 Dr K. Sant
Solicitor for the Respondent:             Australian Government Solicitor
Counsel for the Applicant:                 Mr G. Kennett