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

DECISION AND REASONS FOR DECISION [2001] AATA 760

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2001/587

GENERAL ADMINISTRATIVE DIVISION         )
           Re      SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
  Applicant
           And    CHRISANTHUS DE ALWIS-EDRISINHA
  Respondent

DECISION

Tribunal Ms J Cowdroy, Member

Date5 September 2001
PlaceBrisbane

Decision The Tribunal: 1. Varies the decision under review by deciding that the respondent is not disqualified for disability support pension with effect from 2 January 2001; 2. Otherwise affirms the decision under review.

................Signed..............................
J Cowdroy
Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – whether undertaking a course of rehabilitation

Social Security Act 1991 ss 23, 1158
Mental Health Act 1974 Part IV

Re Secretary, Family and Community Services and Fairbrother (1999) 56 ALD 784
Pardo and Secretary, Department of Family and Community Services (2000) AATA 1105
Secretary, Department of Social Security v Cooper (1990) 97 ALR 364

REASONS FOR DECISION

5 September 2001 Ms J Cowdroy, Member

By decision dated 24 May 2001, the Social Security Appeals Tribunal (the SSAT), set aside a decision of an officer of Centrelink dated 28 February 2001 to refuse a claim for disability support pension.
An application for review of that decision by the Administrative Appeals Tribunal was received on 25 June 2001.
At issue is whether the respondent is undertaking a "course of rehabilitation" whilst he is a patient of John Oxley Memorial Hospital.
The facts which are not in dispute by the parties may be briefly summarised as follows. Mr De Alwis-Edrisinha was charged with murder in respect to which he was placed in the Arthur Gorrie Correction Centre. On 18 October 2000 he was transferred to John Oxley Memorial Hospital for treatment and assessment and was subsequently diagnosed as suffering from schizophrenia. On 13 December 2000 the respondent was made the subject of an Order of the Mental Health Tribunal which found that he was suffering from unsoundness of mind at the time the alleged offence was committed and an order was made that he be detained as a restricted patient under Part IV of the Mental Health Act 1974 in John Oxley Memorial Hospital (T7).
As a result of that order, the criminal proceedings in relation to the charge of murder have been suspended, as the respondent is unfit to stand trial.
Under Section 1158 of the Social Security Act 1991, (the Act) a pension is not payable to a person if the person is in gaol or undergoing psychiatric confinement because the person has been charged with an offence. The parties acknowledged that the respondent, since his detainment at John Oxley Memorial Hospital, has not been in gaol and that his confinement is of a psychiatric nature.
However, Section 23 of the Act provides that a person is not regarded as being in psychiatric confinement during a period when the person is undertaking a course of rehabilitation.
The applicant had determined that pension was not payable to the respondent because he was not undertaking "a course of rehabilitation which eventuates in integration into society within 12 months" (T16). Information provided by the respondent's treating medical team was to the effect that the timing of his release into the community was unknown, and on that basis, the claim was rejected.
Both advocates assisted the Tribunal by providing detailed written and oral submissions. Evidence was given by Mr Liam Dunstan, Social Worker at John Oxley Memorial Hospital, who also provided a written submission (R1) in relation to the rehabilitation objectives and Mr De Alwis-Edrisinha's progress in that regard.

APPLICANT'S CASE

Mr Kanowski submitted that whilst the respondent was involved in rehabilitative type activities, it could not be said that he is undertaking a course of rehabilitation within the meaning of that term in Section 23(9) of the Act. He urged the Tribunal to adopt the reasoning of the Tribunal in Re Secretary, Family & Community Services & Fairbrother (1999) 56 ALD 784, which determined that in interpreting the words "course of rehabilitation" there must be evidence of a formal course of rehabilitation with a finite duration, a structure, a beginning and an end.
In Fairbrother, the Tribunal decided that the patient was not undertaking a course of rehabilitation "as the rehabilitation did not have the temporal or structural characteristics required to constitute a course", despite the fact that the patient's treatment involved planned rehabilitation (A1-11).
In the matter before the Tribunal, the applicant contended that there was uncertainty both as to the commencement and the end date of the programme. It followed that because its duration was unknown, it cannot be structured and it is best described as merely a collection of activities which the respondent undertakes. It was, in the applicant's view, "an ongoing and open ended programme" (A1-22).
Mr Kanowski referred to the matter of Pardo & Secretary, Department of Family & Community Services (2000) AATA 1105 in which the Tribunal held that a rehabilitation programme could be a course even if its duration was uncertain. It was submitted that the Tribunal's view on this issue was not necessary to its decision, in that the programme which Pardo undertook was intended to span, and did run for 12 months, fulfilling the characteristics set out in Fairbrother in any event.
Further, it was submitted that the use of the word "course" indicated that what was intended was a systemized, prescribed series of events. To give the wide meaning to the word "course" attributed to by the respondent would render its presence redundant.

RESPONDENT'S CASE

Mr Williams submitted that the applicant's interpretation of the words "course of rehabilitation" was incorrect because the very nature of psychiatric institutionalization does not lend itself to the imposition of time constraints in relation to the rehabilitative process. The Tribunal was directed to the principles governing the interpretation of remedial and beneficial legislation as expressed in Secretary, Department of Social Security v Cooper (1990) 97 ALR 364, at 370.
In support of the contention that the respondent is undertaking a course of rehabilitation, Mr Liam Dunstan, Social Worker, gave evidence on the rehabilitative processes undertaken at John Oxley Memorial Hospital.
Reference was also made to the detrimental consequences of failure to pay a pension to persons in the respondent's circumstances. Due to lack of financial resources, the respondent would be denied access to fee-paying courses, which it was contended, impedes the rehabilitative process.
The Tribunal was provided with definitions from various dictionaries in respect to the words "period", "course" and "rehabilitation".

LIAM DUNSTAN

Mr Dunstan holds a Bachelor of Social Work from the University of Queensland and up until July of 2001 was the rehabilitative member on the respondent's treating team. He prepared a report dated 3 August 2001 which was received and marked as exhibit R1. Attached to Mr Dunstan's report was a document headed "Rehabilitative Intervention Review'' dated 3 August 2001.
He outlined the respondent's progress from the time of his admission to John Oxley Memorial Hospital. Initially he refused to participate in any programme and the only treatment given was medication. His mental state gradually improved and he commenced "early intervention activities" such as arts/crafts and gym.
As a member of the rehabilitation team, Mr Dunstan assisted in identifying units of rehabilitation appropriate to Mr De Alwis-Edrisinha's needs. The treating team adopted a holistic approach, taking into account the input of nursing and medical staff, a psychologist, an occupational therapist and a social worker. The director of the Rehabilitation Service is a physician.
The hospital has three wards: Urquhart (high security male acute), Whitlock (high security female acute and male sub-acute) and Clark (male and female continuing care). Generally patients move through each ward as their mental state and their overall functioning improves. Initially, the respondent was placed in Urquhart Ward and, on 17 January 2001, he was transferred to Whitlock Ward, where he has since resided.
The aim of the rehabilitative process is to stimulate interest in leisure and social activities, develop time management and stress management skills, increase attention skills and communication skills, recognise and adopt acceptable social behaviour as well as vocational and life skills such as cooking, washing, money management, etc. The Tribunal was provided with a document headed "High Security Rehabilitation Service" (R-4) which sets out a variety of programme options under headings of Psycho-Educational, Further Education, Skill Development, Community Links, Health & Fitness, Quality of Life or Diversional, Vocational and Consumer, Family & Carer.
At T-20(62-65), a document headed "Rehabilitative Intervention (Revision 1)", which is a review of the rehabilitation programme implemented for the respondent on 2 January 2001, sets out the short, medium and long term goals of the rehabilitative programme.
"Rehabilitative Intervention (Revision 2)" dated 3 August 2001, which forms part of R1 sets out the re-evaluation of Mr De Alwis-Edrisinha's rehabilitative goals and documents the outcomes achieved since the introduction of the programme. Mr Dunstan pointed out that there has been progress made in several areas, acknowledging that the intervention described as "book writing" forms a considerable part of the programme, with the first typed version being 90 per cent completed. Once that activity is finalised, there may be greater focus on other components, such as consumer representation.
The respondent holds a Master's Degree in Architecture and was previously employed by the Performing Arts Centre as a set designer. He spends a considerable amount of time in writing a book, which is autobiographical in nature. Mr Dunstan acknowledged that the respondent's rate of progress is not able to be predicted and that ultimately the Patient Review Tribunal makes the decision as to when he should be released into the community.
In respect to the arts/crafts and cooking activities, the items needed are provided by the hospital. However, in relation to literacy, TAFE courses, etc. these must be funded by the patient. In his view, the denial of income in the form of a pension to a patient can affect rehabilitative progress. Additionally, within the hospital, there are tensions created by the income disparities between patients.
Setting a time frame for completion of rehabilitation or for a likely release date is never undertaken, as to do so would be counter-productive. The setting of time-frames, which are not met, can result in degradation of a person's mental health status, due in part to disappointment and stress at non-achievement. A far more effective system is to set goals, without a specific time frame for completion.

CONCLUSION AND REASONS FOR DECISION

The sole issue for the Tribunal is whether the respondent is undertaking a course of rehabilitation. Section 1158 of the Act provides that a social security pension is not payable to a person if the person is in gaol or if the person is undergoing psychiatric confinement because the person has been charged with an offence. The respondent has been charged with an offence, namely murder, as a result of which he is in psychiatric confinement.

However, Section 23(9) of the Act provides:
"the confinement 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".
The applicant submitted that the proper interpretation of the words "during a period when the person is undertaking a course of rehabilitation" is that to be found in Fairbrother, namely a "formal course of rehabilitation with a finite duration, a structure, a beginning and an end" (at 788).
In that matter, Deputy President Blow, found as follows:
"While the treatment undertaken by the respondent in the prison hospital and the prison proper involved rehabilitation, no doubt planned rehabilitation, it did not have any of the temporal or structural characteristics of a course of rehabilitation". (at 788).
The evidence of Mr Dunstan was that rehabilitation is the primary method of treatment at John Oxley Memorial Hospital. In some individuals, their mental state prevents any involvement in rehabilitation whatsoever, or their involvement is minimal, say ½ hr to 1 hour per week, either because they are not receptive or they reach the stage where the optimal degree of progress has been made. 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.
The Tribunal notes that after admission, and for some period, the respondent refused to participate in any structured activities. It has only been since appropriate medication caused a gradual improvement in his mental state, that he has been able to constructively engage in an individualized programme.
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.
As to whether there is a need to confine the concept of rehabilitation to a finite period, with a beginning and an end, much has been said about the open-ended nature of the respondent's "rehabilitation". As to its beginning, there was inconsistency in the evidence as to when Mr De Alwis-Edrisinha commenced his involvement in rehabilitative components. Initially, the administration of psychotropic medication was the only form of treatment given, and Mr Dunstan made the point that there is a philosophy held by some persons that the taking of medication, of itself, constitutes rehabilitation.
However, 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. This is a matter which is able to be determined as a question of fact.
Accordingly, it is not the case that the respondent's confinement at John Oxley Memorial Hospital, of its own, is sufficient for him to meet the criteria in sub-section 23(8). There must be demonstrable ongoing evidence that he is undertaking a course of rehabilitation. If during some period, he is not, as is the case when he was initially hospitalised and only taking medication, then he is ineligible for a pension during that period. In this manner, the applicant's concerns about the open-ended nature of the respondent's rehabilitation are allayed.
In respect to the end of the course of rehabilitation, this is able to determined retrospectively. There is no suggestion that the respondent's course of rehabilitation will last indefinitely. Although the term is commonly used to connote a "specified time" or "a portion of time", there is no requirement that this be done in advance. When a course of rehabilitation comes to an end, again is a question of fact.
In all the circumstances, I am satisfied that Mr De Alwis-Eldrisinha has been undertaking a "course of rehabilitation" at the John Oxley Memorial Hospital so that Section 1158(1) of the Act does not preclude payment of pension.
As to the period when the course of rehabilitation commenced, there is a variety of evidence on this aspect. In the treating doctor's report dated 18 December 2000 (T5), a notation is made that the treatment given to the respondent at that time comprised anti-psychotic medication and supportive psychotherapy. On the same date, a form headed "Additional Information for Disability Support Pension" completed by Mr Peter Farmer (T6), states that the respondent commenced a course of rehabilitation on 18 December 2000. That is the date when the respondent lodged a claim for pension with Centrelink (T4). In respect to the provision of a syllabus or timetable, the following comment is made: "Being developed. It is not practicable to provide this in full at this time".
The matter is further complicated by the fact that Ms S McLaren, in another document headed "Additional Information for Disability Support Pension" signed on 15 May 2001 (T19), it is stated that the course of rehabilitation commenced on 18 October 2000. In respect to the question of whether the course has a syllabus or timetable, the comment is made "See outline following".
At T20, "Rehabilitative Intervention Revision 1", it states that the programme was first implemented on 2 January 2001. On balance, I am reasonably satisfied that from the period commencing on 2 January 2001 the respondent has been undergoing a course of rehabilitation.
It follows that from that date, as long as the respondent is undertaking a course of rehabilitation in John Oxley Memorial Hospital, he is qualified for disability support pension.

I certify that the 42 preceding paragraphs are a true copy of the reasons for the decision herein of Ms J Cowdroy, Member
Signed:         .....................................................................................
           B. Hitchcock, Secretary
Date of Hearing  8 August 2001
Date of Decision  5 September 2001
Counsel for the Applicant        Mr P Kanowski, Departmental Advocate
Counsel for the Respondent    Mr D Williams
Solicitor for the Respondent    Welfare Rights Centre