Carlos v Secretary, Department of Social Services
[2019] FCA 21
•18 January 2019
FEDERAL COURT OF AUSTRALIA
Carlos v Secretary, Department of Social Services [2019] FCA 21
Appeal from: PTWB v Secretary, Department of Social Services [2017] AATA 1453 File number: SAD 275 of 2017 Judge: CHARLESWORTH J Date of judgment: 18 January 2019 Catchwords: ADMINISTRATIVE LAW – appeal from decision of Administrative Appeals Tribunal on an asserted question of law – decision to cancel social security payment – whether Tribunal failed to take into account opinion evidence – no error of law established Legislation: Administrative Appeals Tribunal Act 1975 (Cth) s 44
Social Security (Administration) Act 1999 (Cth) s 80
Social Security Act 1991 (Cth) ss 26, 27, 94
Cases cited: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Tickner v Chapman (1995) 57 FCR 451
Date of hearing: 24 July, 17 September 2018 Registry: South Australia Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 63 Counsel for the Applicant: The Applicant appeared in person Counsel for the Respondent: Mr B Dube Solicitor for the Respondent: Sparke Helmore Lawyers ORDERS
SAD 275 of 2017 BETWEEN: FERNANDO CARLOS
Applicant
AND: SECRETARY, DEPARTMENT OF SOCIAL SERVICES
Respondent
JUDGE:
CHARLESWORTH J
DATE OF ORDER:
18 JANUARY 2019
THE COURT ORDERS THAT:
1.The name of the applicant be amended to read “Fernando Carlos”.
2.The application is dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
CHARLESWORTH J:
The applicant, Mr Carlos, received a Disability Support Pension (DSP) from 17 February 2009. His DSP was cancelled by a delegate of the Secretary for Social Services on 12 August 2015 (cancellation decision). The original decision-maker concluded that Mr Carlos did not meet an essential criterion for the DSP under s 94 of the Social Security Act 1991 (Cth) (SS Act).
The cancellation decision was affirmed internally by an Authorised Review Officer on 7 October 2015 and again affirmed on review by the Social Services and Child Support Division of the Administrative Appeals Tribunal. A Deputy President of the General Division of the Tribunal affirmed that decision on 16 August 2017. This is an appeal from the decision of the General Division of the Tribunal.
An appeal lies from a decision of the Tribunal on a question of law: Administrative Appeals Tribunal Act 1975 (Cth), s 44.
Mr Carlos appeared self-represented on this appeal, although he did have legal representation at the hearing before the Tribunal. He contends that the Tribunal erred in law by failing to take into consideration a report prepared by his treating psychologist, Mr Zeitz, dated June 2016. The report, he contends, is to the effect that he suffers from a psychiatric impairment and that his conditions will not improve with further treatment. Accordingly, he submits, the Tribunal should have found that he fulfilled the relevant criterion for the payment of his DSP.
For the reasons that follow, the Tribunal did not err in law in the manner alleged by Mr Carlos.
THE TRIBUNAL’S DECISION
The Secretary of the Department of Social Services may cancel or suspend a social security payment (including the DSP) if satisfied that such a payment is being made to a person who is not or was not qualified to receive it: Social Security (Administration) Act 1999 (Cth), s 80. The eligibility of Mr Carlos for the DSP was to be assessed as at the date that the Secretary gave Mr Carlos an assessment notice upon review of his entitlement to the DSP, namely 12 August 2015: SS Act, s 27(3). In the performance of its task on review, the Tribunal was also required to assess Mr Carlos’ entitlement to the DSP as at 12 August 2015: SS Act, s 27(4).
A person is qualified for the DSP if, among other things, the person has a physical, intellectual or psychiatric impairment which is “of 20 points or more under the Impairment Tables”: SS Act s 94(1) and (b). The Impairment Tables are contained in an instrument made pursuant to s 26(1) of the SS Act. The relevant instrument in Mr Carlos’ case is the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011. The Impairment Tables are to be applied in accordance with rules made pursuant to s 26(3) of the SS Act.
The Tribunal found (and it is not disputed) that Mr Carlos, as at August 2015, suffered from conditions which alone or together amounted to a psychiatric impairment, namely major depression, anxiety and alcohol dependence. The Tribunal nonetheless found that an impairment rating could not be applied to the impairment by reason of Pt 6 of the Determination. It relevantly provides:
6 Applying the Tables
…
Impairment ratings
(3) An impairment rating can only be assigned to an impairment if:
(a) the person’s condition causing that impairment is permanent; and
Note: For permanent see subsection 6(4).
(b)the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.
Example: A condition may last for more than 2 years, but the impairment resulting from that condition may be assessed as likely to improve or cease within 2 years – if this is the case, an impairment rating under the Tables cannot be assigned to the impairment.
Permanency of conditions
(4) For the purposes of paragraph 6(3)(a) a condition is permanent if:
(a)the condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(b)the condition has been fully treated; and
Note: For fully diagnosed and fully treated see subsection 6(5).
(c)the condition has been fully stabilised; and
Note: For fully stabilised see subsection 6(6).
(d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
Fully diagnosed and fully treated
(5)In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:
(a)whether there is corroborating evidence of the condition; and
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next 2 years.
Fully stabilised
(6)For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:
(a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(b)the person has not undertaken reasonable treatment for the condition and:
(i)significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or
(ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.
Note: For reasonable treatment see subsection 6(7).
Reasonable treatment
(7) For the purposes of subsection 6(6), reasonable treatment is treatment that:
(a)is available at a location reasonably accessible to the person; and
(b)is at a reasonable cost; and
(c)can reliably be expected to result in a substantial improvement in functional capacity; and
(d)is regularly undertaken or performed; and
(e)has a high success rate; and
(f)carries a low risk to the person.
…
As can be seen, all four criteria in paras 6(4)(a), (b), (c) and (d) must be satisfied.
The Tribunal found that Mr Carlos’ conditions were neither “fully treated” nor “fully stabilised” as at August 2015. In relation to the question of stabilisation, there were, the Tribunal held, treatment options that could be undertaken by Mr Carlos that offered a real prospect of significant improvement in his conditions.
The Tribunal’s written reasons contain a summary of the oral evidence given by Mr Carlos at the Tribunal’s hearing, together with the available evidence of Mr Carlos’ medical history. In respect of the period leading up to 2009, the Tribunal said (at [18]):
It is clear from the medical evidence before me and there is no dispute that in the period 2006-2009, the applicant’s psychiatric condition/s were diagnosed and treated. He consulted Dr Hilton between April 2006 and February 2007. He also consulted a clinical psychologist, Ms Joy Althorpe, between September 2008 and May 2009.
(Footnotes omitted)
The Tribunal went on to say (at [22]):
Surprisingly, despite the apparently significant level of his symptoms in April 2009, there are no contemporaneous medical records or reports relating to treatment received by the applicant for his psychiatric conditions between mid-2009 and mid-2015.
The Tribunal went on to refer to later medical reports prepared in 2014 and 2015 which referred to various psychiatric conditions with dates of onset in 2003. The Tribunal went on to observe (at [27]):
In a report of June 2016, Mr Zeitz also reported that he had assessed the applicant in June 2016 and ‘[t]he assessment determined that his level of Depression, Anxiety and physical stress were consistent with the extremely severe range’.
(Footnote omitted)
The Tribunal then referred to a series of reports and correspondence post-dating the cancellation of Mr Carlos’ DSP. They included a report prepared by a psychiatrist, Dr Ewer, to the ultimate effect that Mr Carlos’ medical conditions were “not fully diagnosed, fully treated or fully stabilised as at 12 August 2015” and a report authored by Mr Carlos’ then-treating psychiatrist Dr Loukas. Dr Loukas expressed the contrary view that it was unlikely that Mr Carlos would further improve with ongoing psychiatric treatment and that “his conditions have been fully treated and stabilised”.
The Tribunal then referred to oral evidence given concurrently by Dr Ewer and Dr Loukas. The two psychiatrists were substantially in agreement that Mr Carlos suffered from a major depressive disorder, accompanied by anxiety disorder. Both psychiatrists agreed that as at August 2015, it was not apparent that all of the steps available for the treatment of major depression had been followed in Mr Carlos’ case. They each said that it was not clear that Mr Carlos had received any formal cognitive behavioural therapy or acceptance commitment therapy or that he had tried certain combinations of antidepressant and antipsychotic medications. The Tribunal said that, when pressed, Dr Loukas had “accepted that some treatment options had not been explored and these offered the possibility of improvement”. The Tribunal went on to consider differing opinions expressed by the two psychiatrists as to the likelihood that Mr Carlos’ conditions would improve to such a degree that he would be ready to work within two years from August 2015.
The Tribunal repeated its concerns as to the paucity of evidence about the treatment Mr Carlos had received between 2009 (when the DSP was first paid) and 2015, when the DSP was cancelled. In that regard, the Tribunal said:
46.One of the main issues in this case is what flows from the fact that according to the available records, the applicant had very little medical treatment for any of his psychiatric conditions between 2009 and 2015. He was not reviewed by a psychiatrist and the Medicare records show only one consultation with a general practitioner, Dr Schultz, for ‘attendance for GP mental health treatment’ on 30 December 2010.
47.Whilst the applicant gave evidence of taking various medications, there is limited evidence before me as to the precise dates on which he took each medication, what the dosages were, or what medical advice he was given between 2009 and 2015 about what medications to take, why, how these were tolerated, the medical reasons for changing medications, etc.
48.The evidence from both Dr Loukas and Dr Ewer was to the effect that treatment for major depression would generally involve regular reviews by a psychiatrist and/or general practitioner. This would involve monitoring the effects of medication, adjusting medications and dosages as required and also considering the use of the range of treatments outlined by Dr Ewer.
49.On the evidence before me, most of the recommended treatments for major depression had not been trialled by the applicant as at August 2015, or had been trialled only to a limited degree. It appears that he had some limited exposure to cognitive behavioural therapy techniques whilst he was consulting Ms Althorpe and he has clearly tried a number of medications, although Dr Loukas acknowledged that in some cases these may not have been trialled for long enough.
The Tribunal noted oral evidence given by Dr Loukas to the effect that it was the cancellation of Mr Carlos’ DSP that had provided the impetus for him to seek and obtain appropriate treatment. The Tribunal said it was “striking that as at August 2015, [Mr Carlos] had had no treatment from a mental health professional for any of his psychiatric conditions since 2009.” The Tribunal also said that there was no evidence to suggest that Mr Carlos’ severe alcohol dependence had been effectively monitored and addressed, “notwithstanding that this was likely to be negatively impacting on his other psychiatric conditions, and compromising the treatment of those conditions”.
The Tribunal concluded:
60.For essentially the same reasons, I have also concluded that as at August 2015, not only were they not fully treated, but none of the applicant’s then psychiatric conditions were fully stabilised. In the case of each condition, namely major depression, anxiety and alcohol dependence, I consider that there were reasonable treatment options available which had not been trialled, or had not been trialled sufficiently and, disregarding the applicant’s actual response to treatment he has had since then, it could not be said in August 2015 that if such treatment was undertaken, it would not be expected to result in a significant functional improvement such as to allow him to undertake work for at least 15 hours per week within two years. In my view, treatment of the kind the applicant has subsequently undertaken, that is regular reviews by a psychiatrist together with more frequent sessions with a psychologist, was indicated in August 2015. Further if that treatment had been intended to embrace psychotherapy, adjustments to his medication, and reduction or elimination of his alcohol intake and/or benzodiazepine use, together with consideration of the range of other treatment options canvassed by Dr Ewer and Dr Loukas, it offered the prospect of a significant functional improvement sufficient to potentially enable the applicant to work 15 hours per week within two years.
61.As I am satisfied that none of the applicant’s psychiatric conditions were fully treated or stabilised as at 12 August 2015, it follows that none of them attracted an impairment rating under the Tables. Accordingly, as the applicant was not suffering at that time from an impairment which attracted an impairment rating of at least 20 points under the Impairment Tables, he was not qualified for DSP on that date and, in my view, his DSP was correctly cancelled. I have therefore decided to affirm the decision under review.
ISSUES ARISING ON THE APPEAL
Mr Carlos’ notice of appeal asserts an error of law in the following terms:
Questions of law
The [Deputy President] erred not taking into consideration HOMER ZEITZ Psychological Report, he says I am not going to improve with further treatment. Therefore my condition was fully treated & stabilised as at the cancellation date.
In another part of the notice of appeal Mr Carlos complains of an additional error concerning his dependence on alcohol as at August 2015. Whether an error of law in respect of that issue has been properly asserted will be considered later in these reasons.
It is necessary to identify the particular report of Mr Zeitz to which the asserted error of law refers.
A report of Mr Zeitz (a psychologist) dated June 2016 was in evidence before the Tribunal and is before this Court on appeal. It is brief, comprising three spaciously typed pages. The report contains opinions of Mr Zeitz given by way of short responses to questions. The opinions are stated by Mr Zeitz to be expressed “from a psychological perspective”. Reasons for the stated opinions are not given. Fairly construed, the opinions of Mr Zeitz are to be understood as founded upon his qualifications and experience as a psychologist as distinct from a psychiatrist. The contents of the report may otherwise be summarised as follows:
(1)The report had been prepared at the request of Mr Carlos’ advocate for the purposes of assisting with a determination of Mr Carlos’ eligibility for the DSP.
(2)Mr Carlos had been assessed by Mr Zeitz on 3 June 2016 utilising the “Depression, Anxiety and Stress Scale”.
(3)The assessment determined that Mr Carlos’ level of depression, anxiety and physical stress “were consistent with the extremely severe range”. According to Mr Zeitz, treatment had focused on symptom management, involving psycho-education, cognitive behaviour therapy, and relaxation training.
(4)Mr Carlos’ conditions were fully diagnosed.
(5)The treatment Mr Carlos was currently receiving, or treatments reasonably available to him, were not likely to make a big difference to his condition to the point that he could work for 15 hours a week or more over the next two years. It was anticipated that Mr Carlos would “stay the same” in the next two years. Participation in a program of support was not likely to improve Mr Carlos’ capacity to find, get or stay in work.
(6)The report concludes with a statement to the effect that it had been assumed that “all information provided by [Mr Carlos] is accurate”. The information provided by Mr Carlos is not specified.
Mr Carlos also sought to rely upon a letter authored by Mr Zeitz dated 16 June 2017 addressed to “Centrelink”. The status of the letter in the proceedings before the Tribunal is contentious. It is not listed as an evidentiary “exhibit” relied upon by either party in the index of materials before the Tribunal. It appears to be common ground that the letter was emailed to the Registry of the Tribunal prior to the Tribunal’s hearing, and I will proceed on that assumption.
Mr Carlos submitted that the Tribunal was legally obliged to consider the content of the letter and that its failure to do so constitutes an error of law.
In my view, no such error is articulated on the notice of appeal. The error of law asserted in the notice of appeal is one confined to a “report” of Mr Zeitz. Indeed in oral submissions Mr Carlos said that the “report” referred to in the notice of appeal is the report of Mr Zeitz dated June 2016. I would not receive the June 2017 letter in evidence on this appeal for that reason alone.
If I am wrong in conceiving Mr Carlos’ notice of appeal and submissions in that way, I would in any event reject the contention that any failure by the Tribunal to have regard to the letter would constitute an error of law, for two reasons.
First, Mr Carlos has not established that the letter was relied upon at the hearing before the Deputy President. I am not satisfied that it is a document that was before the Tribunal.
Second (and now assuming I am wrong in concluding that the letter was not before the Tribunal), it has not been shown that the letter was sufficiently material to the outcome of the Tribunal’s review such that a failure to have regard to it would constitute an error of law. As has been emphasised, the Tribunal’s focus was on whether Mr Carlos’ conditions were fully treated and fully stabilised as at 12 August 2015, not at some later time. The letter from Mr Zeitz to Centrelink dated 16 June 2017 does not bear on that issue. Rather, the letter confirms that Mr Carlos had been under the care of Mr Zeitz since 29 January 2016 (after the cancellation date) and goes on to summarise the sessions completed by Mr Carlos and the psychological treatments then being undertaken by him for the purpose of stabilising his symptoms. The letter makes no reference to the treatments (whether psychological or psychiatric) previously undertaken by Mr Carlos. It does not contain any opinion bearing on the issues ultimately determined by the Tribunal on the basis of the evidence given by the two psychiatrists or indeed by Mr Carlos himself.
Insofar as the letter constitutes “fresh evidence”, Mr Carlos’ application to adduce it upon this appeal should be refused. Insofar as the letter is in truth material that was before the Tribunal, it does not affect the outcome of this appeal in any event.
Mr Carlos also contended that the Tribunal had erred in law by failing to consider a “submission” of his solicitor which, he asserted, was before the Tribunal at the time of its hearing. The submission takes the form of a letter dated 4 October 2016, some 10 months prior to the Tribunal’s hearing. It is addressed to the General Division of the Tribunal and drawn to the attention of a person other than the Deputy President.
No reference is made to this document on the notice of appeal.
Furthermore, it has not been shown that the Deputy President was invited to read the letter independently of and in addition to oral submissions or other written material which may have been relied upon by Mr Carlos at the Tribunal’s hearing. Nor has it been demonstrated that any failure by the Deputy President to read the letter would have materially altered the outcome and so constitute an error of law in any event. Insofar as the letter constitutes “fresh evidence” I would not grant leave to Mr Carlos to admit the letter as evidence on this appeal.
Mr Carlos particularly emphasised those portions of the submissions in which his solicitor summarised the content of Mr Zeitz’s report of June 2016 and in which the solicitor advanced contentions as to the weight the Tribunal should ascribe to that report in the context of other medical evidence. I will proceed on the basis that it is Mr Carlos’ submission that the Tribunal should have reasoned in accordance with his solicitor’s letter of 4 October 2016 and drawn a conclusion consistent with Mr Zeitz’s opinion. That submission may be taken into account for the purposes of resolving the two questions arising on the notice of appeal, namely:
(1)whether the Tribunal failed to consider the 2016 report of Mr Zeitz and, if so,
(2)whether the failure constitutes an error of law.
ARGUMENTS
In argument, Mr Carlos appeared to retreat from the proposition that the Tribunal had not had regard to the 2016 report of Mr Zeitz at all. He instead asserted that the Tribunal had erred by failing to give any or adequate weight to the report and, more specifically, that it had failed to give adequate weight to a “fact” of great importance and that it had so made an error of law. For the latter proposition, he relied on Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41 (Mason J).
Mr Carlos further submitted that the Tribunal had made only a cursory reference to, and “glossed over” the report and so had failed in its obligation to give “proper, genuine and realistic consideration” to the merits of his case: Tickner v Chapman (1995) 57 FCR 451.
He also argued that the failure to have proper regard to the report amounted to a denial of procedural fairness and that the Tribunal’s decision was affected by unreasonableness in the sense identified in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.
Mr Carlos also asserted that the Tribunal had misconstrued the Determination. However, when pressed, that submission amounted to nothing more than an expression of disagreement with the facts upon which the Tribunal’s conclusion was based.
CONSIDERATION
Mr Carlos was correct to retreat from the proposition that the Tribunal had not considered the 2016 report of Mr Zeitz at all. The Tribunal made express reference to the report and the assessment undertaken by Mr Zeitz at [27] of its reasons. The report, marked as an evidentiary exhibit, is referred to in a footnote to that paragraph. Cleary, the Tribunal was aware of its existence. The Tribunal also made reference to Mr Carlos’ evidence that he had been receiving treatment from Mr Zeitz since 2016.
It is true that the reasons of the Tribunal make only scant reference to the report. The opinions expressed by Mr Zeitz are not summarised by the Tribunal. The Tribunal does not expressly state why the opinions expressed by Mr Zeitz should not be accepted. Nor does the Tribunal make express findings as to the materiality of the report to the issues to be determined, nor any findings as to the qualifications of Mr Zeitz to express an opinion in relation to those issues.
In my view, none of that is surprising, having regard to the reasons of the Tribunal read fairly as a whole. For the reasons given below, the Tribunal should be understood as implicitly affording greater weight to the evidence of Dr Ewer and Dr Loukas and as otherwise deciding the issues before it by reference to issues in respect of which Mr Zeitz had expressed no view.
Mr Carlos did not call Mr Zeitz to give oral evidence before the Tribunal. Instead, he called his psychiatrist, Dr Loukas. As has been mentioned, Dr Loukas gave oral evidence concurrently with Dr Ewer. In critical respects, the oral evidence of Dr Loukas was consistent with that given by Dr Ewer.
According to the Tribunal, Dr Ewer referred to the guidelines generally followed by psychiatrists with respect to the treatment of major depression. The steps indicated in the guidelines included matters relating to the tapering of certain medications, the trial of antidepressants and potentially combining antidepressants with other medication. The guidelines also referred to the implementation of a sleep hygiene program and the use of exercise. The views of Dr Loukas in relation to the guidelines were summarised by the Tribunal as follows (at [36]):
However, whilst acknowledging that these guidelines were relevant, Dr Loukas indicated that it was not the case that all options necessarily needed to be trialled in every case. His view that the treatments undertaken, including antidepressants and some cognitive behavioural therapy was ‘fairly sufficient’ and ‘fairly reasonable’, even though not everything had been done. Having said that, he acknowledged that when he first saw the applicant, his antidepressant dosage was low and given the fact the applicant was relatively young and was suffering considerable disability he said that the applicant needed to be treated aggressively. When pressed, he accepted that some treatment options had not been explored and these offered the possibility of improvement.
These are issues in respect of which Mr Zeitz had expressed no opinion. As a psychologist, Mr Zeitz made no reference in his report to the guidelines used by psychiatrists for the treatment of major depression. He expressed no view as to whether the range of treatment options referred to in those guidelines had been explored and no view as to whether the options referred to in the guidelines offered prospects of improvement. As has been said, Mr Zeitz’s opinions were expressed from the perspective of a psychologist and he appears to have taken care to qualify his opinions in that way. He is not a psychiatrist.
Mr Zeitz made no reference to the medication prescribed or trialled by Mr Carlos. The treatments to which Mr Zeitz referred were behavioural in nature and so were not a complete statement of the treatments to which Dr Loukas and indeed Mr Carlos himself had referred in their evidence.
Moreover, the report of Mr Zeitz did not have as its focus the state of Mr Carlos’ mental health as at August 2015 when the DSP was cancelled. While reference is made to treatments tried by Mr Carlos, no distinction is drawn between those treatments tried before August 2015 and those tried afterward.
Viewed in its context, the evidence of Mr Zeitz formed a part of a larger body of written evidence authored by a number of treating practitioners over time, the overall effect of which was fairly summarised by the Tribunal. The Tribunal was not obliged to give a recitation in its written reasons as to whether every written opinion expressed by every practitioner ought to be accepted and, if not, why not. It was entitled to place particular emphasis, as it did, on the evidence of Dr Ewer and Dr Loukas, being the practitioners called by the parties to give evidence in support of their respective positions.
Finally on this topic, it is to be recalled that the criterion that a psychiatric impairment be “fully treated” is a discrete and essential criterion for Mr Carlos’ qualification for the DSP. In respect of that criterion, the Tribunal held that Mr Carlos had received very little medical treatment for any of his medical conditions between 2009 and 2015. He had not, the Tribunal held, been reviewed by a psychiatrist and Mr Carlos’ Medicare records showed that there had been only one consultation with a general practitioner in December 2010. These too, are issues in respect of which Mr Zeitz had expressed no opinion. The Tribunal’s conclusion that the impairment had not been fully treated is an independent basis for the decision. It is unaffected by the question of whether the Tribunal had regard to, or gave sufficient weight to, the report of Mr Zeitz.
It follows that even if the Tribunal failed to give genuine and proper consideration to the opinion expressed by Mr Zeitz, the failure could not have materially affected the outcome of the review. Relief on the appeal should be denied to the extent necessary, on that alternative basis.
ALCOHOL DEPENDENCE
The remainder of Mr Carlos’ notice of appeal relevantly states (without alteration):
Findings of fact that the Court is asked to make
THAT THE ALCOHOL ABUSE CONDITION WAS FULLY TREATED & STABILISED AS AT THE CANCELLATION DATE THE DECISION PROCEDED UPON WRONG FACTUAL BASIS. THEREFORE NOT A DECISION AT ALL. THE DOCTRINE OF FUNCTUS OFFICIO IS NOT INVOKED.
Orders sought
FOR THE APPEAL TO BE REMITTED BACK TO THE AAT FOR FURTHER CONSIDERATION & TO BE HEARD AND DECIDED AGAIN. THE ALCOHOL ABUSE CONDITION PROCEEDED UPON WRONG FACTUAL BASIS. THEREFORE NOT A DECISION AT ALL. THE DOCTRINE OF FUNCTUS OFFICIO is not invoked.
Grounds relied on
The AAT had a legal obligation to take into consideration Homer Zeitz report & That the alcohol abuse condition proceeded upon a wrong factual basis, therefore not a decision at all. The doctrine of functus officio is not invoked.
For present purposes it may be accepted that the Tribunal’s findings in respect of Mr Carlos’ dependency on alcohol at critical times were material to the outcome.
The report of Mr Zeitz contains no reference to Mr Carlos’ dependence on alcohol. Mr Zeitz does not indicate whether his opinion is based upon the existence of alcohol dependency as at August 2015 or not. It is unclear how the complaints in relation to the Tribunal’s findings concerning Mr Carlos’ alcohol abuse relate to the single question of law identified on the notice of appeal (extracted at [19] above).
In short, it is Mr Carlos’ case that he was not dependent on alcohol at the time that his DSP was cancelled, rather that he became dependent upon alcohol subsequent to, and because of, the cancellation of his social security payments. In support of that proposition, Mr Carlos sought to adduce further evidence on the appeal so as to establish that the Tribunal proceeded on an incorrect factual basis.
The difficulty for Mr Carlos is that there was evidence before the Tribunal upon which it was open to it to find that Mr Carlos suffered from alcohol dependency prior to August 2015. That evidence included Mr Carlos’ own oral testimony. Mr Carlos sought to demonstrate before this Court that his oral evidence before the Tribunal was mistaken. He sought to rely on his own deposition to the effect that the mistake in his evidence was due to a lack of restorative sleep. He did not seek to adduce evidence of a kind that would be capable of demonstrating that he was in fact incapacitated from giving evidence at the time of the Tribunal’s hearing, whether because of sleep deprivation or otherwise.
Mr Carlos also applied to adduce an “Employment Services Assessment Report” in which it is recorded that Mr Carlos had, at time of the cancellation of his DSP, denied any problems with alcohol or drug abuse.
Mr Carlos made no application to amend his notice of appeal so as to articulate an error of law related to the topic of his dependence on alcohol. Instead he submitted that the Tribunal would commit an error of law if it reasoned from an incorrect factual premise.
That submission should be rejected. In my view, Mr Carlos’ submissions in respect of this issue rose no higher than an assertion that the Tribunal made an error in the nature of an error of fact. The error of fact is sought to be demonstrated by reference to material that was not before the Tribunal.
In the absence of a properly articulated error of law, Mr Carlos’ application to adduce new evidence bearing on this topic should be refused. Even if an error of law were properly articulated, the proposed new evidence does not demonstrate that Mr Carlos was unable to give evidence at the time of the Tribunal’s hearing (bearing in mind he was represented by a solicitor at that time), nor has it otherwise been shown that the assessor’s report could not have been adduced and submissions made in respect of it at the time of the Tribunal’s hearing. The application to adduce the new evidence on the topic of alcohol dependency is refused.
OTHER EVIDENCE AND SUBMISSIONS
Mr Carlos also sought to adduce in evidence a report of a work capacity assessment undertaken in August 2015 prior to the cancellation of his DSP. He sought to demonstrate that the opinions expressed by the assessor were wrong. That material will not be received in evidence on the appeal. It has not been shown that the Tribunal placed any weight on the report and it is not contended by Mr Carlos that it should have. In my view, the report of the assessor does not bear on any legal or factual issue arising before this Court on the appeal. It will not be received in evidence.
Mr Carlos also made submissions in relation to the Tribunals findings concerning the potential for changes in his medication regime to improve his functioning. He sought to demonstrate that certain medications had in fact been tried by him but ceased because of their side effects. These are matters in respect of which it was open to Mr Carlos to call evidence before the Tribunal. Mr Carlos’ submissions did not demonstrate error of law (as opposed to error of fact) in connection with the Tribunal’s findings concerning his medication regime. He has not applied to amend the notice of appeal to articulate a question of the kind that this Court has the jurisdiction to determine in relation to his past medication.
In the course of the hearing of this appeal, Mr Carlos was reminded that he had raised a single question of law concerning the Tribunal’s failure to consider the June 2016 report of Mr Zeitz. Mr Carlos was informed that if he sought to rely upon an error of law other than that specified on the notice of appeal, he should make an application to amend the notice. No application was made. To the extent that Mr Carlos’ oral and written submissions go beyond the issues arising on the notice of appeal, or on his applications to adduce new evidence, these reasons for judgment do not engage with all of them.
NAME OF APPLICANT
At the commencement of these proceedings, Mr Carlos was named John Kallas. He is referred to by his former name in the Tribunal’s records and in the evidentiary materials and in the records of this Court.
Mr Kallas changed his name to Ferdinand Carlos effective 11 January 2019. Upon delivery of judgment, an order will be made changing the name of the applicant in the proceedings accordingly.
Mr Carlos filed an application explaining his reasons for changing his name. The reasons asserted in the affidavit have no bearing on the outcome of the appeal and I make no findings about them.
I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Charlesworth. Associate:
Dated: 18 January 2019
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