Chhit and Secretary, Department of Family and Community Services

[2004] AATA 744

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 744

ADMINISTRATIVE APPEALS TRIBUNAL      )

)           No V02/517

GENERAL  ADMINISTRATIVE  DIVISION		)
Re		SIEV VUCH CHHIT

Applicant

And SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES

Respondent

DECISION

Tribunal Mr J Handley,   Senior Member
Mr G D Friedman,                Member
Miss E A Shanahan,           Member

Date16 July 2004

PlaceMelbourne

Decision The decision of the Social Security Appeals Tribunal made on 3 April 2002 is set aside and in substitution IT IS DECIDED that at the date of his claim and subsequently Mr Chhit qualified for and was entitled to Disability Support Pension.

(Sgd)  J Handley

Senior Member

SOCIAL SECURITY – applicant schizophrenic – committed to Thomas Embling Hospital for a nominal period of 20 years – not fit to be tried – whether undertaking a course of rehabilitation – discussion of “course”, “undertaking” and “rehabilitation” – whether “course” interrupted whilst in “treatment” – distinction between “the condition” and whether the condition “treated”, “diagnosed”, “stabilised” and  “permanent” – decision set aside.

Social Security Act 1991 (C’th) s23, s23(8) and (9) s94 s1158
Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s26
Mental Health Act 1974 (Qld) s15

Franks v Secretary, Department of Family and Community Services [2002] FCAFC 436

Re De Alwis-Edrisinha and Department of Family and Community Services [2001] AATA 760

Re Pardo and Secretary, Department of Family and Community Services [2000] AATA 1105

Re Secretary, Department of Family and Community Services and Eaves [2002] AATA 235

REASONS FOR DECISION

16 July 2004 Mr J Handley,   Senior Member
Mr G D Friedman,                Member
Miss E A Shanahan,           Member

1.       The applicant applies to review a decision made by the Social Security Appeals Tribunal (“SSAT”) on 3 April 2002.  The SSAT then decided to affirm a decision previously made by an Authorised Review Officer (“ARO”) to reject his claim for Disability Support Pension (“DSP”).

2.       The applicant was represented by Mr Lachlan Carter of counsel and the respondent was represented by Ms Katherine Navarro, a Centrelink advocate. The applicant called Dr Sidney Poulter to give evidence.  The Tribunal had before it Exhibits A to E tendered by the applicant, and Exhibit 1, being the Section 37 Statement (T-documents) tendered by the respondent. 

3.       The circumstances giving rise to the application may be summarised as follows.

4.       The applicant was charged with a criminal offence in Victoria and was remanded to appear before the County Court in Bendigo on 19 October 2001.  On that date the Court made an Order, pursuant to s26 of the Victorian Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, that Mr Chhit be committed to custody in an approved place, being the Thomas Embling Hospital (“TEH”) for a nominal term of 20 years.

5.       The applicant claimed DSP in a claim form dated 14 November 2001 (T3) which was lodged with Centrelink on 26 November 2001 at its Darebin office.

6.       The claim for DSP was rejected on 14 December 2001 (T6) because the applicant was not “undertaking a course of rehabilitation where the following conditions are met – it is likely that the person is to be integrated into society in the near future (within 24 months); and the course has a definite start and end date and the aim of the course is to prepare the person for integration back into society after the end date”.

7.       It appears that a social worker on behalf of Mr Chhit made representations to Centrelink following the decision made on 14 December 2001.  On 24 January 2002 the Centrelink officer who made the decision on 14 December 2001 wrote a letter (T8) recording the same reasons for the rejection of the claim for DSP.  Additionally the letter recorded “as there are no changes to your current circumstances I will not be changing my decision to reject your claim for Disability Support Pension”.

8.       Mr Chhit, or a person on his behalf, subsequently sought review by an ARO.  On 4 February 2002 the ARO (T11) made a decision affirming the decision previously made, but for different reasons, namely that the applicant was “convicted” at the County Court in Bendigo and, whilst it was acknowledged that Mr Chhit was not detained in a gaol, he had been imprisoned and was detained as a prisoner in the custody of the TEH for a period of 20 years. As a consequence it was decided that DSP was not payable pursuant to s23 and s1158 of the Social Security Act 1991 (“the Act”).

9.       The decision made by the ARO was factually incorrect.  Mr Chhit was not convicted at Bendigo and he was not ordered to be detained as a prisoner.  The order made by the County Court was to commit him to the custody of the TEH.

10. It was conceded by the respondent at the hearing that the applicant had not been convicted nor had he been imprisoned. Accordingly s23(5) of the Act is not applicable.

11. The prohibition on payment of Social Security payments (for the purposes of the present application) is to be found at s1158 of the Act. It provides that an instalment of a Social Security pension is not payable to a person if on the day that the instalment would normally be paid, the person is “undergoing psychiatric confinement”.

12. Section 23(8) of the Act provides that subject to sub-section (9), psychiatric confinement “includes confinement in “(a) a psychiatric section of a hospital; or (b) any other place where persons with psychiatric disabilities are from time to time confined”.

13. Section 23(9) of the Act provides that “the consignment of a person in a psychiatric institution during a period when the person is undertaking a course of rehabilitation is not to be taken to be psychiatric confinement”.

14.     It therefore follows that if during the relevant periods the applicant was undertaking a course of rehabilitation, he is not taken to have been in psychiatric confinement and there is no prohibition upon him receiving DSP.  This was the case advanced by the representatives of Mr Chhit.

15.     The respondent relied (paragraph 5 of Statement of Facts and Contentions) on the reasons of the SSAT which found that the applicant had been “unable to meaningfully engage in the “course” of rehabilitation designed to meet his individual rehabilitative goals” (paragraph 23).  In reaching that conclusion the SSAT decided (paragraph 14):

The second issue is whether Mr Chhit is undergoing psychiatric confinement because he has been charged with an offence, or whether he should not be so regarded because he is undertaking a course of rehabilitation.  The Tribunal accepts that a program of rehabilitation has been designed for Mr Chhit but considered that due to the acute symptoms from which he is currently suffering, and the difficulties he has been experiencing since his claim for disability support pension, his ability to meaningfully engage in that program has been significantly compromised.  The Tribunal was of the view that a distinction needed to be made between patients undergoing treatment during an acute phase of their illness, and those undergoing rehabilitation toward longer term goals, namely restoring patients to their optimum level of functioning so that they can return to community life.

16.At paragraph 15 of the reasons of the SSAT it was also decided;

The evidence before the Tribunal suggested that Mr Chhit has significant psychiatric symptomatology, his medication is still being titrated to gain maximum benefit and control of those symptoms, and he requires intensive monitoring because of this symptomatology and the adverse side effects of the medication.  The Tribunal considered that until his mental state has stabilised and he is able to meaningfully engage in the rehabilitation program designed to improve his chances of returning to work and community life, he could not be said to be undergoing a “course of rehabilitation”, rather he is engaging in specific isolated activities only when and if he is well enough to do so, something which needs to be assessed on a continual basis.  It is not possible at this point in time to establish when he may be able to fully participate in the program of rehabilitation designed for his benefit.  Nor is it possible to establish any realistic guidelines for transition to the next stage of the program.

17. Additionally, the respondent recorded in its Statement of Facts and Contentions that the applicant could not satisfy s94 of the Act at the date of his claim or within 13 weeks of that date (refer later) because he did not then have a physical, intellectual or psychiatric impairment which had been fully documented and diagnosed and which had been treated, investigated and stabilised.

SIDNEY JAMES POULTER

18.     Dr Poulter is a social worker at TEH, where he has worked for the past eight years.  He has a PhD in Social Work, a Master of Social Work, a Diploma of Social Studies and a Diploma of Criminology.

19.     He explained that TEH “has a multi disciplinary rehabilitation team which includes social work, occupational therapy, psychology, a medical officer, psychiatrists and nurses”. He said that his role involves “discharge planning and those issues of transition to the community of patients”.  He said he has “daily contact with all patients in their units” and provides daily counselling and case management consultancy to other staff members.

20.     In relation to Mr Chhit, Dr Poulter said he was involved in the formulation of his individual service plan (“ISP”) by way of being “involved in the cyclical clinical review processes and also with Mr Chhit’s leave applications”.

21.     Dr Poulter described the sequence of events prior to Mr Chhit’s placement at TEH on 19 October 2001.

“At the time of offence on 17 March, Mr Chhit was sent to the acute assessment unit of Melbourne Assessment Prison, and then from there, when the Court required an assessment he was transferred to Argyle Unit on 10 April 2001. The assessment was then conducted over the next 12 weeks, and he was discharged to Port Phillip Prison on 5 July because of a lack of bed space, and he was brought back after the Court decision on 19 October. Dr Justin Barry Walsh, who is the Deputy Clinical Director and authorised psychiatrist, did the assessment and he submitted his assessment report to the court on 14 August”.

22.     Dr Poulter said that in the initial assessment period,

The person is put on psychotropic medication and is interviewed extensively by the consultant psychiatrist and observed closely on a 24 hour basis in the time that they are there, and a lot of information is collected that will serve as the basis for the rehabilitation plan, in the almost near certainty that this is the sort of person who will come back to us under a custodial supervision order.

Dr Poulter agreed that at this stage Mr Chhit’s ISP was not formulated but said that the information gathered was valuable data for its compilation.

23.     It was asked of Dr Poulter, in examination in chief, whether he would agree with the proposition (that was advanced by the respondent) that Mr Chhit was not undertaking a course of rehabilitation during the period he was experiencing “acute” symptoms and was placed in isolation.  Dr Poulter replied:

Absolutely not correct.  Our efforts are even more intensive in those times to ensure that the rehabilitation program is put into effect.  As I said before, these are times that we focus very much on one on one, we developed very clear management plans, and with Mr Chhit we had a very clear management plan as to how staff were to engage with him, relate to him, the way in which the issues were addressed with him on an individual basis. . . .

In these periods we can constantly monitor not only their mental state but the implications it has for their socialisation within the hospital and the ward and their involvement in their rehabilitation plan.

24.     Dr Poulter was also of the opinion that

The mere fact that someone is placed in a Unit that may be called an acute Unit, for whatever reason, doesn’t undermine your professional opinion that that person is, depending on the circumstances, still participating in a course of rehabilitation. . . .

The trajectory of each patient through the rehabilitative process is highly individualised and cannot be conceptualised in the terms of clearly separables primary, secondary or tertiary stages.

25.     Dr Poulter was also taken to a letter of Carolynne Holdsworth (Mr Chhit’s occupational therapist at TEH) that stated:

Whilst the focus of care in the acute unit is the assessment and treatment of mental illness, rehabilitation may begin as soon as the acute and florid symptoms stabilise.

26.     Dr Poulter expressed his disagreement to this statement and explained:

What has coloured Ms Holdsworth’s narrative is the fact that as an occupational therapist her focus is more at the end of psycho-socio rehabilitation of ensuring people are learning skills and are addressing things, and so she is looking at rehabilitation within that conceptual framework of primary, secondary, tertiary and her view is coloured by that professional nomenclature . . . rehabilitation concerns all those things, not just the professional focus of each individual.

27.     Dr Poulter said Mr Chhit’s course of rehabilitation commenced immediately upon his transfer to TEH on 19 October 2001 and said that an ISP is usually formulated as soon as the patient arrives.  He said that being placed on psychotropic medication was part of the applicant’s course of rehabilitation (transcript p16).  When it was put to Dr Poulter that the respondent would submit that Mr Chhit was receiving psychiatric treatment and not being rehabilitated, he stated:

The two are not divisible, it is a false dichotomy.  That our mandate is rehabilitative, and that occurs, and psychiatric treatment does not occur independent of rehabilitative treatment.

28.     Dr Poulter said that persons who do not receive social security benefits are disadvantaged in the process of rehabilitation because:

. . . it severely disadvantages and retards their rehabilitation process and almost makes it a self-fulfulling prophesy.  For instance, people who do not have an income cannot apply for public housing, so it is very difficult to start that process.  Also as people achieve more unrestrictive leave, our process is that we wean people off from internal programs and we have people plugging into community external programs of work, leisure, education, we have a TAFE campus in the hospital, but when people get to that later level we get them to take that up, and, of course, they have to pay the costs of that, we can’t do that, and it stops people and, in fact, we have people being retained in the system because of the difficulties we have had in fighting these issues, that are transition plans, the trajectory of people have been slowed by the fact that we have had trouble getting them on the pension.

29.     Despite his evidence in chief (refer paragraph 19) Dr Poulter conceded in cross-examination that his immediate involvement with Mr Chhit was “quite limited and was secondary”.  He said he was “consulted by other staff about some issues” and only had direct involvement with Mr Chhit when he was “transferred to the Canning Unit in October last year”.  Dr Poulter said he did not work with Mr Chhit “on a one on one basis” during the acute episodes, but rather it was Mr Bonnici, another social worker.  Dr Poulter observed that:

The impression that I had (regarding Mr Chhit’s) mental state was fluctuating and (he) was finding it difficult to have that stability and predicability of mental state, but he was nonetheless strongly engaged and really motivated towards his rehabilitation plan during that period.  It was not as if the rehabilitation stopped while his mental state was fluctuating.  He was still strongly engaged, and in his most current episode he remained strongly engaged with the treating team.

30.     Dr Poulter said he was “not exactly aware of when it (the acute episodes) did stabilise”.  He was then asked to comment on the differences he perceived between receiving treatment for an acute episode and rehabilitation.  He said:

Within our organisation any treatment that is received within the context of rehabilitation, and our ultimate aim, and it is part of a matrix of processes and functions that aim at getting the person out there, that the treatment isn’t in isolation.  And the fact that we have weekly multi disciplinary discussions on the whole clinical picture, and each profession contributes that and has a part of that plan, shows that the psychiatric treatment is contextualised always within the rehabilitation plan.

31.     Specific to Mr Chhit’s treatment, Dr Poulter confirmed that Mr Chhit, at the date of hearing, was actively involved in a TAFE computer and literacy course. He is escorted to those programs due to a feeling of vulnerability.  Dr Poulter explained the escort is provided “so that he felt safe in continuing to participate, rather than withdrawing him from the program”. 

32.     In re-examination by Mr Carter, Dr Poulter agreed that experiencing episodic and fluctuating symptoms were common features of patients with psychiatric illnesses.  He agreed that it is especially the case with persons who have been diagnosed with schizophrenia.  He added:

To ask people to participate in certain types of programs whilst they are having symptoms can be entirely counter productive to their rehabilitation, and for those reasons we make sure that we modify the program according to the person’s individual needs at that point in time and what is best for their overall rehabilitation plan.

33.     During questioning by the Tribunal, Dr  Poulter was asked to pinpoint the moment when a course of rehabilitation commences.  He replied:

What happens to make the course commence is that the person comes in the front door and is inducted to a Unit.  Prior to them coming, of course, we know they are coming, and usually by the time a person comes in the front door they have a case coordinator appointed, a person who can be the key person within whom they relate from then on, and they have a primary nurse allocated, so they have two key people on a daily basis to relate to.

34.     Dr Poulter added that whilst:

not all people engage readily from day one and that in all cases there are constant issues . . . it is a matter of building trust and confidence in a treating team and encouraging participation of the people in making decisions about their life, and coming to a mutual respect of where the rehabilitation plan is heading.

He was satisfied that Mr Chhit did “engage” from the date of his admission to TEH.

35.     Dr Poulter was of the belief that an ISP is the “course of rehabilitation”, but added that the staff undertake “intensive full scale clinical reviews of every aspect every six months, and that is a sort of a new process that has come into being”.  Dr Poulter acknowledged that a “course of rehabilitation” would start after it had been devised.  He said that an ISP is presented in each case “No later than four weeks after admission, but is usually within a couple of weeks and the DSP application would not have been submitted until the initial ISP had been completed”.  

36.     The Tribunal enquired about Mr Chhit’s skills in the English language, and whether any lack of these skills has been an impediment to his participation in the ISP program.  Dr Poulter replied:

On a day to day basis we can communicate quite well with him, but if there is a significant clinical issue we want to address, our usual practice is that with people like that, . . . we will bring in an interpreter to discuss more complex issues.

37.     Dr Poulter agreed that difficulties with the English language can be a complicating factor in creating a rehabilitation plan, however he noted that a number of patients at TEH, including Australian born patients sometimes have literacy and communication problems.  Mr Chhit was therefore able, in his view, to participate on an equal footing with other patients.

38.     Dr Poulter said that undertaking a course of rehabilitation did not necessarily mean successfully undertaking the course.  He said in the case of Mr Chhit the rehabilitation program had been progressive and added:

He is one of the people who is fortunate in that he has formed a trusting relationship with a clinical team and is committed to his rehabilitation, but nonetheless from time to time he’s overtaken with fears and anxieties that require us to work very closely with him on a one to one basis and to move forward, to take these as opportunities to move forward.

39.     Dr Poulter was asked to comment on the SSAT decision that found that although a rehabilitation program had been designed for Mr Chhit, he was unable to meaningfully engage in that program due to acute symptoms that he was suffering.  He responded:

Certain aspects of the program had to be delayed whilst other aspects of the program were focussed on, and I don’t believe compromised is an appropriate word, because it sort of implies a sort of steady straight line progression.  And often we find that when people . . . (say) they have gone backward, in fact, they are often opportunities for intervention that we get greater insights and able to work with the person.  So it is a change of focus rather than a compromise to their rehabilitation plan.

40.     Dr Poulter was then asked whether those periods, in his view, affected the continuity of a course of rehabilitation.  He again answered in the negative.   By way of illustration Dr Poulter said:

Many of the patients come to us because they have committed very serious offences, which they have then been found not guilty, often the homicide of a family member.  As their mental state begins to recover and they are struck with the enormity of what they have done, it can in a sense drive them backwards and increase their symptomatology, but then that is often a time to work with people at a time of crisis  . . .  in my own clinical experience . . . a set back is often then accompanied by a period of rapid consolidation . . . in the past it used to happen that people were left just . . . with some medication, or what not, and what happens is that the person institutionalises some of the psychotic symptoms as part of their ongoing adjustment.  Whereas if we work with them in those stages of crises, they have the opportunity of resolving their grief and most issues, that they are their own instrument of them.  And so we found that there really are important times and opportunities for change with the people when a traditional or past . . . ways of thinking would have seen . . . the person has gone backwards.

Clinical notes

41.     The clinical notes relating to Mr Chhit at TEH were received by the Tribunal after the hearing concluded. A summons to produce these records was issued in an attempt to locate an ISP at or around the time of Mr Chhit’s claim for DSP. No such ISP was found, however in its absence, the clinical notes prove to be informative about the treatment and movements of Mr Chhit during the relevant period.   The information contained in paragraphs 42 to 61 as follows was obtained from the applicant’s clinical files, to which the parties’ representatives had access before their written submissions were lodged.

After admission

42.     On 19 October 2001, being the date of Mr Chhit’s admission to TEH, Mr Chhit spoke openly to the treating staff. For example, on the topic of his assault of his parents he explained “‘something in the back of my mind said that if I hurt them I would not be hurt”. He said that he was “sorry for his actions and because he hurt them he is in jail”. He said that he “has occasional but short lived persecutory thoughts”, feels “stiff in my mind”, “sometimes confused” and “anxious when speaking to others”.  On the same day an entry entitled “Nursing Admission entry” records that his “ISP commenced”.

43.     In an entry dated 21 October 2001 it is recorded that Mr Chhit “attended YMCA”. On 22 October 2001 it is similarly recorded he attended YMCA and participated in volleyball. Apparently he also attended the ‘relaxation group’ after “minimal prompting” and participated in a football activity. In Exhibit E (the report of Carolynne Holdsworth), the relaxation session is explained as involving a “practical session focussing on identifying causes of stress, stress management and relaxation techniques”.

44.     The next day he participated in the “Clear the Air” group to which he “contributed to group discussion”. (Exhibit E explained that this group involves a “discussion group to address personal issues related to living in hospital, mental illness and offending”.) On 23 October 2001 Mr Chhit met with the occupational therapist and “stated that he would like to continue his computing course”. The occupational therapist concluded by recording “Information re stress, social and leisure included in ISP”. 

45.     A more extensive entry is made on 24 October 2001 which records Mr Chhit reporting his anxiety during sporting activities as he “wants to win”. He also discussed the incident of assaulting his parents, his reasons for doing it, admitting that he thought he might have killed them if he had not been restrained and expressed remorse and his hope to re-establish contact with them when they are ready.

46.     An entry on 26 October 2001 records Mr Chhit attended ‘Time Flies’ and assisted the instructor cleaning up after the class. Time Flies, according to Exhibit E, is an “activity-based group that aims to expose patients to a range of active leisure pursuits to develop adaptive time use patterns”.

47.     On 29 October he attended ‘Life and Living’ in which he “interacted with staff and co-patients”. Life and Living is explained in Exhibit E as involving a “structured activity / discussion group aimed at maintaining or developing essential living skills”. On 31 October 2001 Mr Chhit attended ‘Health for Life’.

48.     On 31 October 2001 under the heading “CLINICAL REVIEW” it is recorded “Presented ISP”. 

49.     On 8 November it was noted that Mr Chhit “participated with some useful ideas in the community meeting”  and in another entry recorded on the same day, he attended Time Flies “of his own volition”. The entry further records that Mr Chhit “commented that he felt more relaxed when he was doing something as it helped him to focus on something other than his thoughts”.

50.     On 9 November 2001 a medical entry is recorded which states “psychosis in remission”. A later “nursing” entry that day records Mr Chhit “attended cross campus dance and participated enthusiastically”.

51.     On 13 November it is recorded Mr Chhit was “taken to trust this morning”. A clinical review meeting is also recorded as occurring on that day and it is documented that there was a “team decision for Siev to have unescorted campus leave for recreational purpose (walk, program, kiosk ect)”.  This suggests some improvement in the applicant’s condition and it is noted in an entry made on 14 November 2001, the author of which is unclear, that “When discussing move to Bass [a unit at TEH] he sees that the benefit as being able to have leave for (a) few days per week, but unable to identify issues of rehabilitation”.

52.     On 15 November it is reported that Mr Chhit attended YMCA and participated in circuit training. On 16 November 2001 it is recorded he had “involve(ed) himself in ward program”.

53.     Mr Chhit’s demeanour throughout this time was consistently described in the entries as quiet, pleasant and friendly. 

assault by another patient

54.     On 15 November 2001 it is recorded that Mr Chhit was assaulted by another patient and was “quite shaken by the incident”. For the rest of the day and the few days following he isolated himself in his room but came out for his meals. He expressed anxiety and fear about the patient who assaulted him. It is recorded that he “respond(ed) to reassurance”. On 19 November a member of the nursing staff records that he or she spoke to Mr Chhit regarding the incident and after this concluded Mr Chhit “remains nervous and frightful (sic), but is slowly starting to come out of his room”. He had within these days declined to attend activities at the Bass unit, and it is recorded he was waiting until swelling to his face (caused by the assault) subsided.

55.     On 19 November 2001 Mr Chhit spent “longer periods in the ward” and it was also recorded there was “no overt deterioration to mental state”. He also attended “Bass for cooking” however upon his return he appeared anxious and stated he noticed another patient had been staring at him. He was given reassurance. The entry concludes that he “continues to present as polite and engagable”.

56.     Different observations are recorded on 20 November 2001. The “clinical review entry” states Mr Chhit had “remained fearful and isolating himself in bedroom since being assaulted.. (and) venturing out for meals only”. The “nursing pm” entry states he had a “slightly higher profile around the ward” and was “observed to interact warmly with” the patient he had earlier believed was “staring” at him. It also notes Mr Chhit is “practicing deep breathing techniques for relaxation” and “again attended for a meal without incident, appeared relaxed”.

57.     On 21 November 2001 Mr Chhit attended Time Flies “of his own volition” and “Initiated tasks with minimal verbal instruction”. A later entry on that day records he also attended “YMCA for indoor cricket”.

assaults by Mr Chhit

58.     On 25 November 2001 an entry reports that Mr Chhit assaulted two nurses, after he reported he had experienced hallucinations for the previous three days and hearing voices telling him to “hit other people”.  It is further recorded in this entry he is “acutely psychotic” and an increase of his medication seems to have been described.  On 25 November 2001 Mr Chhit was held in seclusion where he “lightly punched (a nurse) on the right arm”.  He also apparently assaulted a nurse in the seclusion room.  He reported to staff he had thoughts of wanting to release his frustration by hitting others. There were several incidents of actual and attempted assault by Mr Chhit of staff around this time.

59.     On 27 November 2001 he made admissions to staff about experiencing “spirits (telling) him to punch people”.  In an entry on 30 November 2001 Mr Chhit reported to a nurse that he is “concerned that he will not get well”.  In a “seclusion review” it is recorded “patient’s attitude to review” is “cooperative”.

60.     The demeanour of Mr Chhit throughout his time is described as either being friendly and pleasant but more often appearing disturbed and occasionally aggressive. 

61.     A period of seclusion imposed upon Mr Chhit was phased out from 11 December 2001, for the remainder of December. Mr Chhit’s condition was recorded during this time as appearing preoccupied, anxious, often remaining in his room and still experiencing hallucinations interspersed with cheerfulness and appearing relaxed.  He also reported feeling “much better in the head”.

conclusion and reasons for decision

62.     Mr Chhit will have an entitlement to DSP if he can demonstrate that he was “undertaking a course of rehabilitation”.

63.     A Full Federal Court comprising Spender, Drummond and Marshall JJ heard an appeal with respect to a similar application involving an applicant for DSP detained under the Mental Health Act 1974 (Qld) in Franks v Secretary, Department of Family and Community Services [2002] FCAFC 436 (“Franks”).  At paragraphs 46 to 48 the Court decided:

46 The expression "course of rehabilitation" is not defined in the Social Security Act 1991. The expression "rehabilitation program" is given by s 23(1) a special meaning in the Social Security Act 1991: it means "a rehabilitation program under Part III of the Disability Services Act 1986". By s 20 of that Act, the Secretary is empowered to approve the provision of a rehabilitation program for a person "in the target group", ie, a person in the 14 to 65 year age bracket with a disability attributable to an intellectual, psychiatric, sensory or physical impairment which results in the person having a substantially reduced capacity to engage in paid employment or to live independently. An approved "rehabilitation program" must be directed to substantially increasing the capacity of the person to engage in paid employment or to live independently. The expression "course of rehabilitation" in s 23(9), in its application to s 1158, is unlikely to be confined to an activity directed to increasing a person's capacity to engage in paid employment or to live independently. The concept of a "rehabilitation program" as defined in s 23(1) is of limited assistance in construing the phrase "course of rehabilitation" in s 23(9).

47 It was not suggested that the phrase "course of rehabilitation" in the context of s 23(9) as applied to s 1158(b), has a particular technical meaning or that experts involved in psychiatric care have a particular understanding of what is involved in something they describe as a course of rehabilitation. The phrase "course of rehabilitation" in s 23(9) must have its ordinary English meaning, though that meaning will be coloured by the context in which the phrase appears. Of the many meanings the word "course" is capable of conveying set out in the Macquarie Dictionary, 3rd ed, that of particular relevance in the context of s 23(9) and s 1158(b) is: "a systematised or prescribed series: a course of studies, lectures, medical treatments, etc". The Dictionary gives the following as one of the meanings capable of being conveyed by the word "rehabilitation": "Medicine the use of medical, social, educational or vocational measures or a combination of these to train or retrain someone who has a disability as a result of illness or injury".

48 There is nothing in the ordinary meaning of the phrase or in the context in which it appears in the Social Security Act 1991 to suggest that this expression is used in the Act to mean a rehabilitation program with a duration precisely, though provisionally, defined. Nor is there anything to suggest that the phrase in the Act is only satisfied by rehabilitation activities structured by reference to identified milestones towards achieving a precise goal. The boundaries of the activities capable in the circumstances of the particular case of constituting a "course of rehabilitation" within s 23(9) as applied to s 1158(b) are thus wide.

64.     In a decision of the Tribunal of Re De Alwis-Edrisinha and Department of Family and Community Services [2001] AATA 760 (“De Alwis-Edrisinha”) the Tribunal decided at paragraph 31:

In respect to all patients, the overriding objective is to facilitate reintegration into the community and because of the complexities of mental illness, individual programmes are tailored to suit each patient.

65.     At paragraph 35 it was decided:

. . . in my view if one accepts that rehabilitation is a holistic process and multi-faceted, then a course of rehabilitation commences at the point when structured and varied programmes are implemented.

66.     The concept “rehabilitation” was also discussed in Re Secretary, Department of Family and Community Services and Eaves [2002] AATA 235 (“Re Eaves”) and Re Pardo and Secretary, Department of Family and Community Services [2000] AATA 1105 (“Re Pardo”).

67.     In his evidence in the current proceedings Dr Poulter (transcript page 11) said that TEH:

has a multi disciplinary rehabilitation team which includes social work, occupational therapy, psychology, a medical officer, psychiatrists and nurses and it is my role to provide the particular input of social work which is more focussed on family issues, brokerage issues and injustice issues with the outside community.

68.     Dr Poulter discussed the implementation of an individual service plan (“ISP”) which is managed and if necessary modified by the health care professionals at TEH.  In a letter written by him on 28 May 2003 (Exhibit A) he described Mr Chhit as being:

Subject to an individual plan that documents his assessed personal needs, maps out his overall rehabilitation program and attaches provisional timelines to the various tasks and goals in the plan.  As a matter of course this plan involves ongoing medical monitoring, psychotropic medication, individual counselling and psychotherapy, group work, education, training and case management by a key worker, in order to address issues of mental state, personal health, risk behaviour, insight into illness, daily living skills and socialisation.

69.     The remainder of the letter provides specific details of the “group work” in which Mr Chhit was involved and other programs.  References are made in the ISP of Mr Chhit to his involvement in a number of discussion groups, membership of programs with a therapeutic and creative purpose (art, music and cooking) and the intention for him to attend literacy, numeracy and computer skills courses at a local TAFE institution and participation in exercise programs.  The ISPs are described as being “structured” with the intention of Mr Chhit achieving “unlimited unescorted on ground leave at the time of his transfer to the Canning Unit” and eventual “escorted off ground leave to visit his family”.

70.     Having heard Dr Poulter in evidence, having read the documents generated by him and being mindful particularly of the decision in Franks we are satisfied that Mr Chhit was engaged in rehabilitation and that rehabilitation was provided to him by the staff of TEH.

71.     There was some uncertainty during the hearing as to whether and if so when an ISP with respect to Mr Chhit was devised and implemented.  The medical file was not available at the hearing and was not then in the possession of Dr Poulter.  The District Registrar of the Tribunal subsequently received the file and it has been duplicated.  In a letter of 10 July 2003 Mr Doulton, the corporate lawyer for TEH advised that it does not “keep a separate file for each patient which contains the patient’s ISP”.  However he attached model guidelines with respect to the development of ISPs being an extract from the TEH Administration and Guidelines Manual.  He advised that the policy indicates that ISPs “should be commenced following a patient’s admission”.  We note that Mr Chhit was admitted to TEH on 19 October 2001.  On that date, at 2000 hours, one of the notes completed by nursing staff records “ISP commenced and patient information and rights given and explained to SIEV”.  On 23 October 2001 the nursing notes record that “SIEV participated in “clear the air” group this morning”.  Later the notes record “information re stress social and leisure included in ISP”.  On 24 October 2001 the nursing notes record – apparently at the conclusion of a “clinical review” that it was intended to “present ISP next week at clinical review”.

72.     These notes indicate to us that an ISP was devised on the day of the applicant’s admission to TEH.  The particulars of the ISP are not now known but consistent with the evidence of Dr Poulter, a service program was devised for Mr Chhit consistent with the intention of TEH to rehabilitate him.  Even in the absence of an ISP we would find that a course of rehabilitation was being undertaken by reason of the activities, services and treatments offered to Mr Chhit and he in turn undertaking those activities, service and treatments.  A “course of rehabilitation” does not have a technical or legal meaning but is to be found as a fact from all the surrounding circumstances.  “The boundaries of the activities capable in the circumstances of the particular case of constituting a course of rehabilitation within s23(9) as applied to s1158(b) are thus wide” (refer Franks at paragraph 48).

73.     Further to the above, we are satisfied that Mr Chhit was engaged in a “course” of rehabilitation and that he was “undertaking” it.

74.     In Franks the Full Court decided at paragraph 52:

52 So long as the AAT recognised, as it did, that merely to engage in rehabilitation activities did not mean that Mr Franks was undertaking a "course of rehabilitation" and, so long as it was entitled to find that the rehabilitation activities he engaged in could be said to be "a rehabilitation program ... suited to the respondent and designed to assist his long-term prospects", it cannot be said that the AAT made any error of law in concluding that Mr Franks was not undergoing "psychiatric confinement" within s 1158(b) because he was undertaking a "course of rehabilitation" within s 23(9).

75.     In De Alwis-Edrisinha the Tribunal at paragraph 33 decided as follows:

33. The term "course" is defined in the dictionary extracts tendered as: "advance in a particular direction: onward movement, the path, route or channel along which anything moves", " the continuous passage or progress through time or a succession of stages." Having heard from Mr Dunstan, and having perused the documentation he has provided in respect to the respondent, I am satisfied that the activities which he undertakes are structured, that he is moving through the various components of the course, and as he does so, he gains skills required for successful community reintegration. In my view, the structured nature of the respondent's activities, rather than being activities with a general concept of rehabilitation, are sufficient for them to constitute a course of rehabilitation.

76.     The genesis of the “course” of rehabilitation in the present case is the ISP devised for and on behalf of Mr Chhit.  On the other hand “course” of rehabilitation is the progress or journey through that program towards achieving the goals set by the ISP.  Despite some temporary interruptions in the initial stages of the program (refer later) the evidence of Dr Poulter was that Mr Chhit did engage in programs as devised for and on his behalf and was a willing and enthusiastic participant.  Within a matter of weeks he was engaged in a number of programs and soon thereafter was attending classes at a TAFE College.  Within a matter of months he was granted escorted leave and shortly thereafter was permitted unescorted leave.  This indicates to us a degree of progress and satisfaction by TEH authorities that progress was being achieved in the “course of rehabilitation”.  We are satisfied that the rehabilitation program for Mr Chhit as devised was “suited” to him and “designed to assist his long term progress” (refer Franks).  That he achieved a number of goals, as devised by the ISP, satisfies us that Mr Chhit was successfully “undertaking”, the “course” (refer also paragraphs 33 and 35 earlier).

77.     There was a suggestion raised during these proceedings that during the periods of time that Mr Chhit was either withdrawn or in confinement or suffering the effects of being assaulted or suffering the effects of medication that he could not, during those occasions, be found to have been undertaking a course of rehabilitation.  Some limited support for this proposition is to be found in Re De Alwis-Edrisinha (paragraph 36) where the Tribunal decided that if during a period of rehabilitation a person was hospitalised “and only taking medication” that he would not be eligible for pension.  Some support also for this proposition can be found at paragraphs 66 and 67 of the Tribunal decision in Re Eaves where specifically at paragraph 67 it was decided “. . . the training contemplated by rehabilitation does not incorporate treatment of the person’s condition”.

78.     With respect to our colleagues who respectfully decided Re De Alwis-Edrisinha and Re Eaves we note that the Full Court in Franks was of a different view which for the purposes of these proceedings we adopt.

79.     At paragraph 50 of the decision of Franks the Court decided:

50 Provided it is open to the decision-maker on the evidence to conclude that the person in question is undertaking rehabilitation activities that are not merely engaged in by him on an ad hoc basis, but which form part of what can be said to be a planned series of activities that may include medical and other treatments directed towards improving the person's physical, mental and/or social functioning, then, depending on the circumstances of the particular case, it is open to the decision-maker to hold that such activities do constitute "a course of rehabilitation" for the purposes of s 23(9).

80.     At the outset we would say – for the reasons given earlier – that under no circumstances could it be said that the activities undertaken by Mr Chhit were on a “ad-hoc basis” nor could it be said that he engaged in those activities on an “ad-hoc basis”.

81.     In the present case there were periods of time where Mr Chhit was undergoing particular drug therapies which caused certain reactions.

82.     The following is an extract of the examination in chief of Dr Poulter (pages 15 and 16 of transcript):

Okay.  Now, in terms of that earlier period, what do you say to the submission that, or the proposition that he was not, in fact, engaged in rehabilitation because he was unable to meaningfully participate in programs while his illness was stabilised?---I think it tends to simplify what actually goes on, and that people do meaningfully participate in rehabilitation, but the focus when people have acute episodes, and this can vary from day to day from week to week, the focus swings back to very closely to one to one processes, and we try to use the circumstances that arise as points of intervention for the future, and ways of socialising and educating the patients into an openness of communication with the clinical staff.  And these points of acute illness are often very instrumental in us being able to make rehabilitative gains with the people, and that is why in a sense I, under the – in the last paragraph of my letter under structure of rehabilitation course, a program, I tried to be at pains to talk about the medical monitoring of psychotropic medication, individual counselling and psychotherapy, group work, education, training and case management as all part, integral parts of the rehabilitative process.

Well, let me just interrupt you there and put a few specific matters.  Do you say that being, looking at the matters in your report, that being placed on psychotropic medication in itself was part of Mr Chhit’s course of rehabilitation?---Absolutely.  It gives us better opportunities to be able to relate to him and to understand – for him to be able to be more articulate about the internal stimuli that he is experiencing.  People in the rehabilitation process don’t necessarily have their symptoms wiped away.  Some people remain symptomatic either in terms of positive or negative symptoms all their life, and it is a matter of the openness of communication that we can establish with those people about their symptomatology that gives us the hope of ultimate transition to the community.  It is not keeping people symptom free, but them being able to share their symptoms and the illness being accessible and manageable.

83.     Similar propositions were put to Dr Poulter (transcript p17) where he was asked to comment on a suggestion that a deterioration in the applicant’s mental state and an inability to attend some activities amounted to him not undertaking a course of rehabilitation, on those occasions.  Dr Poulter was emphatic that such a proposition was incorrect.  He said “Our efforts are even more intensive in those times to ensure that the rehabilitation program is put into effect”.

84.     In the context also of a person such as Mr Chhit who from time to time – because of the nature of his illness – suffers “acute episodes” Dr Poulter was asked in cross-examination whether Mr Chhit could be undertaking a course of rehabilitation (whilst in an acute episode).  Dr Poulter replied (transcript p26, line 20):

. . . Well, somebody out in the community may experience some symptomatology, go to their treating doctor and receive some treatment, and it is irrelevant, they are already out in the community.  But within our organisation any treatment that is received is within the context of rehabilitation, and our ultimate aim, and it is part of a matrix of processes and functions that aim at getting the person out there, that the treatment isn’t in isolation.  And the fact that we have weekly multi disciplinary discussions on the whole clinical picture, and each profession contributes that and has a part of that plan, shows that the psychiatric treatment is contextualised always within the rehabilitation plan.

85.     Another issue that emerged concerning the “undertaking” of a “course of rehabilitation” was the inability of Mr Chhit to engage in rehabilitation activities because of the impairment itself.  Dr Poulter said that on those occasions Mr Chhit did remain “meaningfully engaged”.  He said (transcript p43):

Even though we might from time to time suspend or delay involvement in a particular program, it is for a particular objective, and sometimes we need to work more closely on interpersonal issues with somebody, you know, and I still believe that it was a meaningful participation in a structured rehabilitation program, despite the problems of ongoing symptoms and changes in medication.

86.     We are satisfied, having heard from Dr Poulter and by reason of the Full Court decision in Franks that undertaking a course of rehabilitation includes planned activities, no less including medical and other treatment designed to improve a person’s physical, mental and or social functioning.  We are satisfied that during those periods where the applicant was undertaking treatment that he remained a person undertaking a course of rehabilitation (refer also paragraphs 27, 39 and 40 earlier).  We are reassured in this view by the evidence of Dr Poulter who gave us a number of examples of patients successfully undertaking rehabilitation whilst being “treated” because they reached an understanding of the enormity of their previous behaviour and temporarily feeling shame and self disgust.  Thereafter those persons progressed through the rehabilitation program.  Additionally, whilst we acknowledge that Mr Chhit did not have English as his first language he did have a grasp of the rehabilitative activities, that he did communicate effectively with staff and other patients and he did undertake a course of rehabilitation.

87.     It follows, having made this finding that the applicant was, not undergoing “psychiatric confinement” (refer paragraph 11 earlier).

does the applicant qualify for disability support pension?

88. During the hearing, it was learnt that the applicant had not been assessed as qualifying for DSP pursuant to s98 of the Act (refer paragraph 17 earlier). This usually occurs by provision of medical evidence and, on occasions, evidence of persons with vocational qualifications.

89. Section 94 of the Act is reproduced as follows:

94(1) A person is qualified for disability support pension if:

(a)the person has a physical, intellectual or psychiatric impairment; and

(b)the person's impairment is of 20 points or more under the Impairment Tables; and

(c)one of the following applies:

(i)the person has a continuing inability to work;

(ii)the Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system; and

(d)the person has turned 16; and

(e)the person either:

(i)is an Australian resident at the time when the person first satisfies paragraph (c); or

(ii)has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or

(iii)is born outside Australia and, at the time when the person first satisfies paragraph (c) the person:

(A) is not an Australian resident; and

(B) is a dependent child of an Australian resident;

and the person becomes an Australian resident while a dependent child of an Australian resident.

Note 1: For Australian resident, qualifying Australian residence and qualifying residence exemption see section 7.

Note 2: for Impairment Tables see section 23(1) and Schedule 1B.

94(2) A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:

(a)the impairment is of itself sufficient to prevent the person from doing any work within the next 2 years; and

(b)either:

(i)the impairment is of itself sufficient to prevent the person from undertaking educational or vocational training or on-the-job training during the next 2 years; or

(ii)if the impairment does not prevent the person from undertaking educational or vocational training or on-the-job training—such training is unlikely (because of the impairment) to enable the person to do any work within the next 2 years.

Note: For work see subsection (5).

94(3) In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:

(a)the availability to the person of educational or vocational training or on-the-job training; or

(b)if subsection (4) does not apply to the person—the availability to the person of work in the person's locally accessible labour market.

94(4) For the purposes of subparagraph (2)(b)(ii), if a person has turned 55, the Secretary may, in considering whether educational or vocational training is likely to enable the person to do work, have regard to the likely availability to the person of work in the person's locally accessible labour market. Only ss(a), (b) and (c) are relevant.

90.     We are satisfied that the applicant has been correctly diagnosed as a “schizophrenic”.  It follows that he “has . . . a psychiatric impairment” within the meaning of s94(a) of the Act.

91. An assessment of impairment under s94(b) is conducted by application of the Impairment Tables at Table 6 of Schedule 1B of the Act. The criteria against an assessment of 10 and 20 points respectively is as follows:

TENModerate and regular symptoms and generally functioning with some difficulty.  (eg. Noticeable reduction in social contacts or recreational activities, or the beginnings of some interference with interprersonal or workplace relationships).  May have received psychiatric treatment which has stabilised the condition.  Minor effects on work attendance and/or ability to work but the impairment would not prevent full-time work.  (eg. Short periods of absence from work).

TWENTYPsychiatric illness or disorder with either serious symptomatology OR impairment in functioning that requires treatment by a psychiatrist (eg. Frequent suicidal ideation, severe obsessional rituals, frequent severe anxiety attacks, serious anti-social behaviour, diagnosed psychotic illness with continuing symptoms).  There is significant interference with interpersonal or workplace relationships with serious disruption of work attendance or ability to work.

92.     We have little doubt, upon perusal of the hospital file and on the basis of the evidence heard in this review that the applicant attracts a rating of 20 impairment points.

93.     We are satisfied that the extent of his illness, as demonstrated by the recorded symptoms and his behaviour, as observed by TEH staff clearly is more consistent with this criteria.

94. The introductory notes to the Tables at Schedule 1B at paragraphs 5 and 6 provide as follows:

5. The condition must be considered to be permanent. Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future. This will be taken as lasting for more than two years. A condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next 2 years.

6. In order to assess whether a condition is fully diagnosed, treated and stabilised, one must consider:

what treatment or rehabilitation has occurred;

whether treatment is still continuing or is planned in the near future;

whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next 2 years.

In this context, reasonable treatment is taken to be:

treatment that is feasible and accessible ie, available locally at a reasonable cost;

where a substantial improvement can reliably be expected and where the treatment or procedure is of a type regularly undertaken or performed, with a high success rate and low risk to the patient.

It is assumed that a person will generally wish to pursue any reasonable treatment that will improve or alleviate an impairment, unless that treatment has associated risks or side effects which are unacceptable to the person. In those cases where significant functional improvement is not expected or where there is a medical or other compelling reason for a person not undertaking further treatment, it may be reasonable to consider the condition stabilised.

In exceptional circumstances, where a condition was considered not stabilised and a permanent impairment rating not assigned because reasonable treatment for a specific condition has not been undertaken, the medical officer should:

evaluate and document the probable outcome of treatment and the main risks and or side effects of the treatment; and

indicate why this treatment is reasonable; and

note the reasons why the person has chosen not to have treatment.

95.     The respondent, in its written submissions, lodged at the conclusion of the hearing alleged that the applicant’s condition at the date of claim (refer later) was then fluctuating, was accordingly, not yet “stabilised” and could not, then, be assessed as “permanent”.  We reject this submission.  With respect we suggest that there is a failure to distinguish the condition from its symptoms.  In our view, the notes at paragraphs 5 and 6 are inappropriate for the condition of schizophrenia, which is a permanent condition.  In our view, the stability of the condition can only be assessed by the absence or presence of symptoms (and if present, the severity).

96.     Dr Cidoni, in a report to Centrelink (Exhibit D) of 21 October 2001, reported that the applicant suffered schizophrenia, the clinical features being “Persecutory delusions, passivity phenomena, auditory hallucinations, anxiety (approx) 1991”.   He recorded (in a questionnaire) that the “condition” was “stable”.  This description was chosen in preference to the other alternative descriptions of “improving”; “fluctuating”; “deteriorating.”  Despite our reservations concerning the use and application of the Introductory notes to the Impairment Tables, the descriptions of Dr Cidoni are consistent with the language of paragraphs 5 and 6 above which deems a “condition” to be permanent, if, inter alia, it is stabilised.  It does not refer to stabilisation of “symptoms”.  The fluctuation of symptoms, in our view, is a characteristic of this condition.  It follows that the applicant does have a condition which has been “diagnosed”, it has been (and continues to be) “treated” and it is “stabilised”.  The condition, in our view, was stabilised at the date of claim.  The condition may therefore be regarded as “permanent” within the meaning of paragraphs 5 and 6.  The period of two years, as an adjunct to the concept of permanence, is obviously satisfied.  The applicant was diagnosed, for the purposes of this appeal, on 21 October 2001.  He remains a resident of TEH and his symptoms continue to be treated.

97. The remaining qualifying criteria of s94 of the Act is ss(c)(i). A “continuing inability to work” is defined by s94(2) and (3) of the Act and the definition of “work” is defined at (5) which are reproduced as follows:

94(2) A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:

(a)the impairment is of itself sufficient to prevent the person from doing any work within the next 2 years; and

(b)either:

(i)the impairment is of itself sufficient to prevent the person from undertaking educational or vocational training or on-the-job training during the next 2 years; or

(ii)if the impairment does not prevent the person from undertaking educational or vocational training or on-the-job training—such training is unlikely (because of the impairment) to enable the person to do any work within the next 2 years.

Note: For work see subsection (5).

94(3) In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:

(a)the availability to the person of educational or vocational training or on-the-job training; or

(b)if subsection (4) does not apply to the person—the availability to the person of work in the person's locally accessible labour market.

94(5) In this section:

work means work:

(a)that is for at least 30 hours per week at award wages or above; and

(b)that exists in Australia, even if not within the person's locally accessible labour market.

98.     We are of no doubt that since the date of claim the applicant has had a “continuing inability to work” as defined.  The extent of his treatment and his continuing rehabilitation (as a resident of TEH) as we have found earlier, satisfies us that the applicant has not had a capacity to undertake work of at least 30 hours per week existing in Australia for two years.  Additionally the applicant has had no capacity to undertake vocational, educational or on the job training.

99. The focus on qualification at the date of claim arises by reason of the respondent’s written submission that the applicant did not qualify for DSP within 13 weeks of that date (refer Schedule 2 of the Social Security (Administration) Act 1999).  We do not need to consider this submission because we have decided that there was qualification at the date of claim.

100.   At the hearing it was learnt that Mr Chhit did qualify for and has been paid DSP since February 2003.  The effect of this decision therefore is to continue qualification and entitlement from the date of the claim on 26 November 2001 until February 2003.

101.   For the above reasons we are satisfied that the decision of the SSAT should be set aside and in substitution it is decided the applicant was entitled to DSP at the date of his claim and subsequently.

I certify that the 101 preceding paragraphs are a true copy of the reasons for the decision herein of ‑
Mr J Handley, Senior Member
Mr G D Friedman, Member

Miss E A Shanahan, Member

Signed:          Holly Weston
  Associate

Date of Hearing  11 June 2003
Date of Decision  16 July 2004
Counsel for the Applicant          Mr L Carter
Departmental Advocate             Ms K Navarro