Dimitrakopoulos; Secretary to the Department of Family and Commun Ity Services
[2003] AATA 571
•12 June 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 571
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2000/1362
GENERAL ADMINISTRATIVE DIVISION
Re: SECRETARY TO THE
DEPARTMENT OF FAMILY AND
COMMUNITY SERVICES
Applicant
And: STAVROULA DIMITRAKOPOULOS
Respondent
DECISION
Tribunal: Miss E.A. Shanahan, Member
Date: 12 June 2003
Place: Melbourne
Decision:The Tribunal sets aside the decision under review and substitutes the decision that the disability support pension granted to the respondent in 1994 was based on conditions other than blindness and was subject to an income and assets test. A debt of $42,626.50, being the pension paid for the period 1 July 1994 to 2 February 2000, is owed to the Commonwealth by the respondent.
(sgd) E.A. Shanahan
Member
SOCIAL SECURITY ‑ Social Security Act 1991 – disability support pensions (general and blind) – retrospective diagnosis of blind by Social Security Appeals Tribunal on the balance of probabilities – obligation to advise change in circumstances – income and asset testing – debt owed to the Commonwealth – waiver of debt – administrative error – special circumstances ‑ setting off and notional entitlement – decision set aside
Social Security Act 1991ss.94, 95, 96, 105, 106, 113, 114, 115, 116, 117, 132, 133, 135,
137, 138, 142, 145, 146, 146A, 146D, 146E, 1064, 1065, 1222, 1223, 1224, 1236, 1236A,1237, 1237A, 1237AAD
Re Beadle and Director-General of Social Security (1984) 6 ALD 1
Beadle v Director-General of Social Security (1985) 7 ALD 670
Director-General of Social Services v Hales (1983) 47 ALR 281
Re Lawson and Secretary, Department of Social Security (AAT 11767, 11 April 1997)
Re Secretary, Department of Social Security and Oakey (AAT 9051, 13 October 1993)
Walker v The State of New South Wales (1994) 182 CLR 45
Walker v Department of Social Security (1995) 56 FCR 354
Re Secretary, Department of Family and Community Services and Lyster (2000) 59 ALD 587
Re Huynh and Secretary, Department of Social Security (1994) 34 ALD 694
Re Williams and Secretary, Department of Social Security (AAT 8842, 16 July 1993)
Re Dobbie and Secretary, Department of Social Security (AATA 8661, 23 April 1993)
Re Secretary, Department of Social Security and Ryan (AAT 8381, 17 November 1992)
Re Smith and Secretary, Department of Social Security (AAT 6668, 14 February 1991)
Re Duncan and Secretary to the Department of Social Security (AAT 4257, 6 April 1988)
Re Secretary, Department of Social Security and Bradley (1992) 28 ALD 400
Re Woodward and Secretary, Department of Family and Community Services [2001] AATA 818
Re Secretary, Department of Social Security and Bitunjac (1998) 52 ALD 674
Re Secretary, Department of Family and Community Services and Morgan (1999) 57 ALD 187
Johannsen & Chambers v DPP VR (1996) QCA 11187 A crim R 126
Jago v The District Court of New South Wales and Others (1989) 168 CLR 23
Holmden v Bitar (1987) 75 ALR 522
Heinze v Burnley (1992) 57 SASR 452
R v Stringer (2000) 16 A Crim R 198
Smith v Queensland Community Corrections Board [2000] QSC 396
Roberts v R (1999) 106 A Crim R 67
Williams and Others v Spautz (1992) 174 CLR 509
Re Eisen and Secretary, Department of Social Security (1993) 30 ALD 750
Re Touhane and Director-General of Social Security (1984) 6 ALD 147
REASONS FOR DECISION
12 June 2003 Miss E.A. Shanahan, Member
1. This is an application for a review of the decision of the Social Security Appeals Tribunal (the SSAT) made on 13 October 2000. On this date the SSAT set aside the decision of a delegate of the Secretary to the Department of Family and Community Services (the applicant) to raise and recover a debt of $42,626.50. The SSAT substituted a new decision that the respondent had been qualified for disability support pension (blind) (DSP (Blind)) since February 1994. On the basis of the medical evidence at the time, the respondent’s application for DSP (Blind) had been refused and she had been granted DSP (General) which was subject to income and assets testing. A random review conducted in the year 2000 revealed that the respondent’s husband had been fully employed throughout the period 1994 to early 2000 and that the respondent had not advised the Department of Social Security (subsequently Department of Family and Community Services) his income. A debt of $42,626.50 from the period 1 July 1994 to 2 February 2000 was raised.
2. The matter was heard over a period of three days (10, 11 December 2002 and 17 January 2003). The applicant was represented by Mr R. Huttner, a Centrelink advocate, and the respondent by Ms D. Rasheva, of counsel, instructed by Legal Aid Victoria. The Tribunal had before it the documents (the T documents) lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975. The respondent tendered several documents, namely, a report of Dr W. Gillies, ophthalmologist, dated 4 November 2002 (Exhibit R1); a copy of the respondent’s concession card (Exhibit R2), and letter of request from Mr Steven Dimitrakopoulos (Exhibit R3).
BACKGROUND TO THE APPLICATION
3. The respondent has been totally blind in the left eye since 1989 and has subsequently undergone an enucleatian of the left orbit.
4. On 15 February 1994 the respondent completed a DSS Partner Details form (T4, p15). Her husband, Mr George Dimitrakopoulos, had claimed a disability support pension (DSP). A pension claim form for DSP (Blind) was completed in the respondent’s name and signed by her on 24 February 1994, the Department having provided a notice under s.1304 of the Social Security Act 1991 (the Act) dated 22 February 1994. This notice instructed the respondent to complete a wife’s pension claim and Module O, and advised a SA12 + M.D. had been given to the client. The file note of 5 April 1994 states that on 22 February 1994 the client was asked to provide SA12, MD, ophthalmologist’s report not returned, reject claim. The file note also states Reinput 6/4/94 and Reinput 7/4/94. Dr C. Clifopoulos, the applicant’s treating general practitioner, completed and signed the DSP doctor’s report on 28 February 1994, listing the respondent’s diagnoses as …L[eft] eye traumatic amblyopia – needs enucleation of eye…Anxiety – depressive neurosis RSI – cervical radicular overuse syndrome.
5. On 9 March 1994 the respondent was seen, at Dr Clifopoulos’s request, by Dr C. Tangas, ophthalmologist, who speaks fluent Greek. The Tribunal notes that the respondent had been instructed on 22 February 1994 to obtain an ophthalmologist’s report. Dr Tangas had previously seen the respondent on 8 November 1991 and as the respondent had no private hospital insurance, recommended ongoing care at The Royal Victorian Eye and Ear Hospital (the Eye and Ear Hospital) rather than treatment in private. Having examined the respondent, Dr Tangas concluded she had excellent right eye vision (visual acuity 6/5) and was not a candidate for an invalid pension based on her visual dysfunction.
6. On 6 April 1994 a further DSP "medical and other information" form was completed by a third party on the respondent’s behalf. It is noted that the respondent cannot read or write in the English language. This form was signed by the respondent. This documentation was accompanied by medical reports from Mr S. Bedi, orthopaedic surgeon, who diagnosed overuse syndrome of the right arm; Dr W. Kemp, rheumatologist, who found the respondent’s right arm symptoms to be functional or due to chronic pain syndrome; Dr Clifopoulos, whose diagnosis was chronic pain syndrome (he did not mention any visual defects); Dr M. Piperogolu, psychiatrist, who agreed with the diagnosis of chronic pain syndrome; Dr E. Finkelstein, ophthalmologist, who reported that the respondent’s visual acuity in the right eye was 6/6 on 22 August 1989 and that vision in her left eye had been lost after trauma to the eye earlier that year; Dr G. Hartley, gastroenterologist, who diagnosed a gastric ulcer on 18 April 1990 and Dr J. Cosgrove, ophthalmologist, who reported that the respondent’s right eye vision to be excellent with the visual acuity of 6/5 with no retinal pathology.
7. On 13 April 1994, by notice under s.1034 of the Act, a delegate of the applicant informed the respondent that:
If you wish to claim pension because of blindness you need an ophthalmologist's report stating your visual acuity from the Snellen Scale. You must see an ophthalmologist for this report.
It is noted that the respondent saw Dr Tangas some four days later.
8. On 27 April 1994 the respondent was referred to a Commonwealth Medical Officer for assessment of medical conditions other than her ophthalmological defects. The relevant legislation was detailed in the advisory letter of 27 April 1994 as was the respondent’s failure to provide an ophthalmological report despite two previous requests.
9. Dr P. Loewy, of Australian Government Health Service, on 11 May 1994 assessed the respondent as having 24 per cent impairment based on a chronic pain syndrome, blindness in the left eye and right cataract extraction and lens implant. Based on this report, the respondent’s claim for DSP was granted. The respondent and her husband had declared an income of $5.00 per annum each and thus pension was assessed at the maximum rate with arrears (T17, p.67). The respondent was advised she would receive DSP from 2 June 1994 and was also advised of the s.132 and s.133 requirements in the Act, to advise changes in income and assets etc (T18).
10. The respondent’s DSP was reviewed in May 1996 and led to continuing payments of DSP (General) on medical grounds. Once again the respondent was advised of the continuation of the pension subject to the usual conditions (T23). In 1990, random review led to further assessment after the raising of the debt. Dr Gillies found the respondent’s visual acuity (right eye) to be 6/24, but did not give a percentage of field of vision but implied that it was less than 10 degrees of field. Dr Gillies, having been asked by the Welfare Rights Unit to predict the respondent’s field of vision retrospectively to 1994, concluded that it was at least a 50 per cent probability that it was then less than 10 degrees. Dr Gillies acknowledged that the reports back to 1989 had addressed the respondent’s visual acuity but not visual field.
11. On 10 August 2000 an authorised review officer (ARO) affirmed the decision to raise the debt to the Commonwealth. This decision was appealed to the SSAT and heard on 13 October 2000. The SSAT decided retrospectively that the respondent had been qualified for DSP (Blind) since February 1994 and thus there was no debt owed to the Commonwealth.
EVIDENCE BEFORE THE TRIBUNAL
12. The respondent was unable to recall the events of 1994, the signing of any papers or the receipt of any forms by post. She stated that she had not been advised of the difference between DSP (Blind) and DSP (General) until the year 2000. On direct questioning the respondent was able to recall that she had refused to undergo a certain visual field test by Dr M. Lazarus in late 2001 because she felt unwell.
13. Under cross-examination, the respondent was asked to assess her eyesight at the present in comparison to what it was like in 1994. She answered, From ’94 until now my right eye is in the same condition (trans p.57). Mr Huttner further endeavoured to clarify the events of 1994 with respect to the respondent’s medical history and the process of lodging the DSP claim form but the respondent was unable to recall the events. The respondent acknowledged that she periodically received correspondence from the Department but, as she could not read, nor understand English, she relied on a female friend to read the documents and translate it verbally into Greek. She could not recall any written advice that she had been granted DSP in March or April 1994 but did recall that payment by the Department commenced at that time. From the year 2000, the respondent’s son had assisted her with documentation and dealings with the Department and she no longer relied on her neighbours for such help.
14. Continuing cross-examination regarding the respondent’s knowledge as to whether the DSP granted in 1994 was DSP (Blind) or DSP (General), resulted in conflicting answers. Having earlier stated that she did not know the difference between these two pensions, that she had applied for DSP (Blind), the respondent, in answer to the question once more posed, stated that the DSP she received was Not – not for the blind… (trans p.100). As this answer conflicted with other evidence, the Tribunal asked the respondent what she thought she was receiving the pension for between 1994 and 1999. On this occasion the answer was For the eyes I was getting it at ’94 – since ‘94 (trans p.102).
15. The respondent agreed that in 1994 she had no idea there was any difference between DSP (General) and DSP (Blind) (trans pp.104‑105) and that she had no idea how the system functioned. Mr Huttner questioned the respondent as to her knowledge of the requirement to advise the Department of any change in combined income of herself and her husband. In response to this question, the respondent stated that since 1994 she had been …By myself, I am on my own… (trans p.108) and that the Department was aware of this status.
16. This evidence raised the issue of the respondent’s claim to be separated from, but living under the same roof as, her husband. The parties agreed this issue had been raised but that neither an ARO nor the SSAT had dealt with the issue or made any decision regarding this claim. This Tribunal obviously had no jurisdiction to deal with the alleged separation under the same roof and did not consider it further.
17. During the course of cross-examination, the issue of the conflicting initial claim for DSP forms was raised. The respondent was unable to address this issue. The initial application lodged had been a claim for DSP for the respondent's husband. The respondent, as his wife, was included in his claim. A subsequent claim for DSP (Blind) (T78) was made in the respondent’s name. The Tribunal was informed that the original claim was part of the respondent's husband's departmental file and that certain documents in this file had been destroyed following a routine cull of old documents. In an effort to shed light on the departmental processes in 1994, it was intended to call a customer services officer (CSO) of Centrelink to explain these processes.
18. Ms D. Solima, an Incapacities CSO with 12½ years experience with the Department and Centrelink, was called by the applicant to explain the procedures involved in DSP claims in 1994. Ms Solima explained that in 1994 a person claiming DSP on the basis of blindness would be required to complete the actual claim form (same form for DSP (General) and DSP (Blind)) and would be asked to provide an ophthalmologist’s report. If the ophthalmologist’s report was not forthcoming and there was no other medical condition, the claimant would have been advised of rejection of his or her application. However, if the claimant had other medical conditions, he or she would automatically be assessed for DSP (General). It was normal practise to provide the claimant for DSP (Blind) with the ophthalmologist request form and if it was not returned within 14 days, the Department would make further requests for this report. Ms Solima advised that the claimant would not be formally notified that he or she was now being assessed for DSP (General), but the Department would have instructed the claimant to attend a Health Services Australia (HSA) appointment for medical assessment of other conditions.
19. Ms Solima was asked to explain the nature of the various departmental forms enclosed in the T documents (T1-T8 inclusive). Ms Solima addressed each of the T documents in detail and also the nature of various departmental forms and abbreviations. T3 was identified as the actual claim form for DSP (Blind). T4 is the form completed by the partner of the claimant for pension and this is referred to as Module P. T5 was identified as a new claim action sheet which is for office use only. T6 was a letter addressed, in this case, to both the respondent and her husband notifying what other documents would be required. The other documents required were referred to as Module O, the "O" referring to overseas, and having to be completed by persons born outside of Australia. Module P refers to partner details and Module I as investment and income details. T6 referred to an SA12 and to a MD. Ms Solima identified SA12 as the treating doctor’s report and MD as medical details. The SA12 completed form is document T8. The form SA13 was an ophthalmologist’s report request. Both T document 6 and 11 advised the respondent that she was required to provide an ophthalmologist’s report if she wished to be assessed under blind pension. Failure to provide an ophthalmologist’s report automatically led to consideration of the application under the terms of DSP (General) if other medical conditions were present. It was not normal procedure to advise the claimant that they had been rejected for DSP (Blind) as they would have been told at the time of the original lodgement of the application that without an ophthalmologist’s report they would not be assessed for DSP (Blind).
20. Under cross-examination, Ms Rasheva also dealt with T documents 3 to 11. Ms Solima explained that the respondent and her husband would have been allotted reference numbers for each of them but because they were partners, and both applying for various social security benefits, any notices sent to them might carry either number. Following a question posed by the Tribunal, Ms Solima agreed that where a husband and wife are applying at the same time the Department would treat their files almost as the one (trans p.133). Document T4 and T5 were identified as relating to the claim of the respondent's husband. Document T7 carried the term reinput with two dates. Ms Solima was asked to explain the meaning of the term reinput and advised that it meant that data had to be resubmitted to be assessed and that this may result from computer problems or a user error. Ms Solima was asked to explain the terminology SA12.9304 appearing at the bottom right hand corner of document T8. The notation SA12 had previously been considered and Ms Solima informed the Tribunal that the suffix 9304 referred to the date of printing of the forms, that is, it was printed in 1993 in the fourth month. Ms Solima was only able to identify one request for an ophthalmologist’s report, that being at T11, although the file notes indicate the respondent was asked twice to provide an ophthalmologist’s report. Ms Solima agreed there was no copy of the form for an ophthalmologist’s report in the file and she could only assume that this was because the form was never returned to the Department. An example of this form had been provided and its print date was November 1994. This particular form had been obtained by the respondent’s son at his request. Ms Solima maintained that, while there was no copy of a request form for an ophthalmologist’s report in February 1994 contained in the file, this would have been handed to the respondent at the time of the interview regarding the application.
21. Ms Solima was asked about the issuing of concession cards and advised that these are issued automatically through the system once a claim has been processed. At this point in the proceeding Ms Rasheva produced, and subsequently tendered, the respondent’s concession card (Exhibit R2). The card contained the following information (trans p.142):
Stavroula Dimitrakopoulos, 14 Kelvin Grove, Thornbury, Vic, 3071, CRN305676673S, George Dimitrakopoulos, 305676662C, date of grant 10 March '94, DSP blind.
Ms Solima advised this would have been issued in September 1999 and would have expired in September 2000. This particular card was not the original concession card that would have been issued in 1994. Every year pensioner concession cards are re-issued but the original date of grant will stay at the bottom of each card. As the cards were updated annually the reference to DSP (Blind) would relate to the granting of that pension in the year 2000. Ms Solima indicated that a new card would have been issued once the type of pension changed but would still run for a 12‑month period, from September to September.
22. Ms Rasheva pointed out that the respondent’s application for DSP (Blind) was rejected on 7 April 1994 and that T11, dated 13 April 1994, was a request for more information. Ms Rasheva requested an explanation as to why this advice of 13 April 1994 was sent. Ms Solima explained that once the treating doctor’s report had been lodged on 7 April 1994, the claim would have been restarted, and the respondent would then have been referred to HSA for assessment of her general medical conditions. This same letter also asked if the respondent was still interested in claiming under the blind pension, and, if so, an ophthalmologist’s report would be required. Document T11 explained, at some length, the manner in which the ophthalmologist’s report should be prepared. Ms Solima reiterated that the claim form for DSP (General) and DSP (Blind) was the same form, differences arising in the assessment of these two pensions.
23. In re-examination, Ms Solima agreed that any departmental or Centrelink officer would look at the client’s file in total, not at any single claim form. Document 11 was identified as a new claim which would have related to DSP (General) and that an applicant could contact Centrelink at any time to check the progress of the claim and whether or not it had been approved or rejected. Greek speaking interpreters were available at the office where the respondent attended.
24. After some debate by the parties, it was agreed that it would be helpful to all if the respondent's entire file was made available. Mr Huttner undertook to obtain it even though it was probably in storage.
25. The respondent’s son gave evidence on behalf of the respondent. He informed the Tribunal that he had assisted his mother to complete the original application for the pension and perhaps a couple of other support forms. As of the year 2000, he had been involved with his mother’s application of DSP (blind) and all subsequent correspondence with Centrelink had been dealt with by him. Prior to the year 2000 he had little involvement and had not provided any translation services to the respondent between 1994 and the year 2000. He had accompanied his mother to various medical appointments since 2000. The respondent's son was unable to actually recall completing the 1994 application form for his mother nor did he recall seeing any ophthalmologists' report forms. While he had not been involved with his mother’s correspondence with the Department between 1994 and the year 2000, it had been his understanding that his mother was in receipt of DSP (Blind). Mr Dimitrakopoulos stated he had become the nominee authorised to act on his mother's behalf after receipt of the letter from Centrelink raising the debt owed to the Commonwealth (T32, T39). He subsequently made a freedom of information request for his mother's departmental file and also for a copy of the ophthalmologist's report form used in 1994 (this letter of request was tendered (Exhibit R3)). The witness had been unaware of the difference between DSP (General) and DSP (Blind) until the review of 2000.
26. Under cross‑examination, Mr Dimitrakopoulos agreed he had filled out the original DSP claim form of 1994 as it was his writing, but could not recall the event. He had acted merely as a translator, recording his mother's comments made in Greek in written English. The witness could not recall whether or not his mother had told him any details regarding the Department's acceptance of her claim for DSP. He had assumed she was in receipt of DSP (Blind) and that his father's income …had nothing to do, or would affect her payments (trans, p.177).
27. Dr Lazarus had seen the respondent on two occasions (20 May 1999 and 19 November 2001) and had assessed her visual acuity at 6/9. He had noted there were no mobility problems indicative of a severely impaired field of vision. Dr Lazarus had been unable to explain the respondent's claimed loss of field as on his testing with the Tangent Screen technique, the respondent's field of vision did not alter, as it should have done, by changing where she sat and the size of the objects viewed.
28. Dr Lazarus disagreed with the diagnosis of Dr D. Gale, ophthalmologist, that the respondent suffered from chorodioraemia, as this was a rare sex‑linked genetic condition that he had never seen in a female. If the respondent did have this condition, her son should be blind. He is not.
29. Dr Lazarus did not believe it was possible to reconstruct the respondent's state of vision eight years earlier (trans p.17). The only conditions he considered that could allow such retrospective assessment were optic atrophy and retinitis pigmentosa. Dr Lazarus had seen the respondent on 19 November 2001, after she had been granted DSP (Blind) on 2 February 2002. He stated that, as of 19 November 2001, the respondent did not qualify for DSP (Blind).
30. Under cross‑examination, Dr Lazarus confirmed his later report of 31 July 2002 wherein he found the respondent's visual field on 8 December 2001 to be 20 degrees on Tangent Screen testing. The respondent had refused to undergo a Humphrey test. Dr Lazarus regarded the Humphrey machine test results, performed by Dr Troski, to indicate that the respondent's claimed visual problems were functional rather than organic.
31. The Tribunal asked Dr Lazarus to comment on the Victorian legislative requirements in the fields of transport accidents and WorkCover. Dr Lazarus indicated that he had, in fact, been instrumental in bringing about the changes to the Transport Accident Commission and WorkCover legislation regarding blindness and that the current gold standard of testing was the American Medical Association Nº 5 Criteria.
32. Dr Tangas gave evidence for the applicant. She had provided written reports dated 8 November 1991 and 9 March 1994 (T82, T84 respectively). Unfortunately Dr Tangas did not have her clinical notes with her but was referred to these reports. She had first seen the respondent on referral by her general practitioner and on neither occasion had she conducted a visual field test based on her clinical examination of the respondent. She regarded visual field testing at that time to be irrelevant. In November 1991, the corrected visual acuity, estimated by Dr Tangas, was 6/6, which was considered to be normal. Having reviewed the respondent on 9 March 1994, Dr Tangas had reported:
…
Mrs Dimitrakopoulos has excellent right vision and is really not a candidate for applying for an invalid pension based on her visual function. As she is under the care of the hospital I have not made a further appointment to see her.
Dr Tangas commented that her assessment of the right eye at that time was that it was normal and that there was no indication of any pathology that would lead to a field defect. Given the absence of pathology, normal fields of vision would be expected. Dr Tangas indicated that a field of vision of less than 10 degrees would be associated with severe glaucoma, damage of the optic nerve or diseases such as retinitis pigmentosa or degenerative retinal condition, all of which were absent on her clinical examination.
33. Mr Huttner asked Dr Tangas whether or not the ageing process could result in further degeneration. Dr Tangas nominated the development of cataract but, generally, there are very few conditions that can produce a restriction of arc of 10 degrees or less. Dr Tangas could not recall if she had been asked to assess the respondent for eligibility for a blind pension, as she had not retained her copy of the general practitioner's original referral. Dr Tangas had conducted all interviews with the respondent in the Greek language. Dr Tangas did not think that it was valid to extrapolate back from the year 2000 to 1994 as to what the respondent's visual status was when she applied for DSP (Blind). While in 1991 Dr Tangas had noted an area of retinal atrophy, she could not attribute an aetiology to this change but had noted that the area of atrophy was unchanged in 1994 and in 2001.
34. Mr Huttner questioned Dr Tangas regarding the various tests of visual field available. She commented that the Tangent Screen test was probably the most reliable as the person testing the visual field observed the patient's every response. The Humphrey test is a computerised test, which relies on the patient understanding the test and doing it on his or her own.
35. Under cross‑examination, Dr Tangas reiterated her opinion that the respondent's visual acuity was excellent; that the retinal atrophy noted was unchanged over many years, and that on the basis of her clinical examination visual field testing was not indicated. Dr Tangas was familiar with the applicant’s requirements for an ophthalmological report for DSP (Blind) and also that the respondent's eyesight could have deteriorated between 1994 and the year 2000, although she would be surprised by a deterioration to a field of 10 degrees or less.
36. Dr Tangas, in response to a question by Ms Rasheva, detailed the timing it would take to perform various visual field testing and indicated that the more reliable tests currently are the Tangent Screen test and the Humphrey test. She indicated the Goldman machine is no longer used. She agreed that the Goldman machine testing provided a more accurate indication of whether or not the patient being tested was malingering. She was not surprised that Dr Troski had tested the respondent's field of vision using a Goldman machine, as he was an expert in glaucoma.
37. Dr Gillies gave evidence on behalf of the respondent. He had provided a report dated 4 November 2002 having examined the respondent and this report was tendered at the hearing (Exhibit R1). In examination‑in‑chief, Dr Gillies agreed that it was not always indicated to perform a visual field based on the history or examination findings. As he had recorded an intra‑ocular pressure of 23 in the right eye, he felt that visual field estimation was essential. He indicated he would also perform a visual field estimation, given a finding of an area of retinal atrophy which had been documented in 1991. Dr Gillies was asked to predict retrospectively the respondent's field of vision in 1994. He stated that it would be very difficult to make such an estimate and that it would be beyond his competency to be absolutely sure of what the situation was in 1994 (trans, p.185). He qualified his opinion to the extent that there may well have been substantial field losses at that time. Dr Gillies was questioned regarding the visual field mode of testing (Tangent Screen, Humphrey test, Goldman machine and Estiman test) and indicated that the Humphrey test was the most reliable but it did rely on the co‑operation of the patient and the normal response of the patient. He was of the opinion that the Tangent Screen and the Humphrey test were the most accurate. Dr Gillies had found extensive myopic degenerative change at the back of the eye in his examination of 2002 and that he would agree with the report of Dr Troski which led to the respondent being granted DSP (Blind) in early 2000. As Dr Troski's report had indicated that these changes had been present from childhood, the Tribunal asked Dr Gillies if he agreed or not, to which he replied that it was
…possible, even probably, that she was a great deal more short‑sighted before the operation and that that could have been much the same since certainly very early life. (trans, p.187)
Dr Gillies felt that it was a real possibility that her field of vision could have been 10 per cent or less in 1994.
38. The Tribunal asked Dr Gillies which conditions could be readily diagnosed on clinical examination of the eye, excluding glaucoma and retinitis pigmentosa, and optic atrophy. Dr Gillies indicated that it depended on the type of ophthalmological practice one conducted and that in his experience, which was now confined mainly to glaucoma, that could occur in special cases of very highly myopic patients. He stated, on questioning by Ms Rasheva, that this could be the case with the respondent.
39. Under cross‑examination, Dr Gillies indicated that he had first been asked to see the respondent by Mr J. Symons of the Welfare Rights Unit. He had been aware that the raising of the respondent's debt owed to the Commonwealth had prompted this referral. Mr Huttner asked whether or not the respondent's visual defects might have a functional component and he indicated it was very difficult to determine, but that it was on the 50‑50 scale of probability. Mr Huttner pursued this estimation. Dr Gillies continued to assert that it was of at least a 50 per cent possibility, but not more than 50 per cent. Dr Gillies was asked to comment on Dr Tangas's evidence and in answer to a question posed by the Tribunal, he stated that he would have performed a visual field testing in 1991 and in 1994 as that would be his personal practice. Dr Gillies, in response to Mr Huttner's questioning, stated that he had noted that the respondent had managed reasonably well entering the room, sitting down and performing ordinary tasks, but that this did not preclude a visual field of less than 10 degrees of arc.
40. Dr Gillies was asked on re‑examination by Ms Rasheva to estimate the times taken for the various visual field testings. His answers were similar to those provided by other ophthalmologists. Dr Gillies confirmed that he had conducted the visual field testing with the Humphrey test. The Tribunal notes this is an estimate conducted by an unsupervised patient and relies on his or her co‑operation.
41. The Tribunal asked Dr Gillies the significance of an intra‑ocular pressure reading of 23, which had been recorded on one occasion only. He agreed that no diagnosis could be made on the basis of one record. The Tribunal pointed out that the Eye and Ear Hospital, seeing the patient over 6 years, had not, at any time, recorded a raised intra‑ocular pressure. Dr Gillies agreed that that was his reading of the data. Dr Gillies also agreed, in response to a question by the Tribunal, that the Tangent Screen test was accurate in determining a visual field of less or greater than 10 degrees of arc. Dr Gillies indicated that he did visual field testing and visual acuity in most patients because his field of expertise is glaucoma and …it wouldn't help my reputation if I were to miss one, so if there is any suspicion at all, I would do a visual field (trans, p.201).
42. At the completion of the oral evidence, the respondent's entire Department/Centrelink file was obtained. The Tribunal and both parties examined the file.. It was noted that on the front of the file there was a pencil note stating "awaiting an ophthalmologist report". In addition, the file contained more of the respondent's husband's information. This indicated that the respondent's husband's application for DSP had been rejected but that the respondent's claim was continuing. In general the respondent's social security file did not add anything to the already known evidence. It did, however, explain some of the irregularities in documentation, which arose from the original joint claim by the respondent and her husband.
43. The Tribunal had before it the reports of numerous ophthalmologists forming part of the T documents and also the entire history of her attendance at the Eye and Ear Hospital. The first relevant report was of Dr Finkelstein dated 12 August 1988. Dr Finkelstein wrote to the referring general practitioner, Dr Clifopoulos, to advise that the respondent had first attended in March 1987 with myopic and cataract changes in the right eye. A right cataract extraction and lens implant was carried out on 8 June 1987 with a satisfactory result and corrected visual acuity of 6/9. Dr Tangas's reports dated 8 November 1991 and 9 March 1994 were referred to in oral evidence but in 1991 Dr Tangas recorded the respondent's visual acuity at 6/6 with correction. On 9 March Tangas recorded that the respondent's visual acuity as 6/5 with correction, and that the respondent was not a candidate for invalid pension based on her visual function. On 1 May 1992, Dr Lazarus, at the Eye and Ear Hospital, recorded the respondent's visual acuity on the right as 6/6. He also noted that the respondent did not want to proceed with prosthetic replacement of the blind left eye. On 17 February 1993, Dr Lazarus found the right visual acuity to be 6/9. On 28 May 1993, Dr Cosgrove, at the Eye and Ear Hospital, recorded the respondent's visual acuity in the right eye as being 6/5, and had placed the respondent on the waiting list for a conjunctival flap over the blind left eye.
44. The Eye and Ear Hospital outpatient notes records several other visual acuity estimations as follows:
· 7 April 1993 right visual acuity 6/6 with correction
· 7 May 1993 visual acuity 6/6 with correction
· 28 February 1993 visual acuity 6/6 with correction
· 21 June 1994 visual acuity 6/5 with correction
· 13 January 1995 visual acuity in right eye 6/5
· 15 November 1996 right visual acuity 6/5
45. Subsequent reports were received from Dr Troski dated 27 February 2002 wherein he found the respondent's visual field to be less than 10 degrees of arc (T36, p.122). It was on the basis of this report that the respondent was granted DSP (Blind) on 16 February 2000. Dr Troski was subsequently asked to comment on the probable status of the respondent's right eye in 1994, but declared that he was not able to make such a retrospective assessment.
46. Dr Gillies, in a report dated 28 July 2000, estimated the respondent's visual acuity as 6/24 corrected. While he did not quote visual field arc degrees, he stated that her vision was down to fixation. The Tribunal assumes that by this he means that it was about 10 degrees. Dr Lazarus's report dated 10 December 2001 gave a visual field reading of greater than 20 degrees of arc and he confirmed this finding on 10 February 2002 and on 31 July 2002. Dr Gale assessed the respondent's vision as being 6/24 on 18 December 2001 and attributed the right eye changes to marked choroidal atrophy. He was of the opinion that these changes may well have been present for 8 to 10 years or more. He concluded that the respondent probably had less than 10 degrees of visual field arc for a period of in excess of 10 years.
47. During the course of examination of the respondent's concession card and the meaning of its content, the Tribunal undertook to make further inquiries in order to elucidate these matters. The Tribunal Member telephoned the relevant section of Centrelink that deals with pensioner concession cards. Having outlined the raised question in general terms, the Member was informed that a new concession card is issued whenever there is any change in pension receiver's data. For example, a change in address, a change in a number or type of dependants or a change in the nature of the pension will automatically result in the issue of a new concession card. It would appear that the system is such that there is no need for any employee of Centrelink or the Department to key in this data as the computer is already structured to deal with such change. Concession cards are issued on an annual basis related to the pension receiver's date of birth. The time delay in issuing a new card is of the order of two to three weeks. On the basis of the information received, the Tribunal concludes that when the respondent was granted DSP (Blind) in February 2000 she would have been issued with her current concession card, which was applicable until September 2000. In September 2000 she would have received a new card, having effect for a period of 12 months.
48. While the legal representatives of both parties have eloquently and scholastically addressed the legal issues raised in this matter, for example, set off and notional entitlement against a debt raised under the Act, the Tribunal, being a legislatively empowered merits review tribunal, has limited its considerations to the facts before it.
RELEVANT LEGISLATION
49. The legislation at the relevant time is contained in s.94 and s.95 of the Act, which state:
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% or more under the Impairment Tables; and
(c)the person has a continuing inability to work; 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
(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" and "qualifying Australian residence" see section 7.
Note 2: for Impairment Tables see section 7A.
(2) A person has a continuing inability to work if the Secretary is satisfied that:
(a)the person's impairment is of itself sufficient to prevent the person from doing:
(i)the person's usual work; and
(ii)work for which the person is currently skilled;
for at least 2 years; and
(b)either:
(i)the person's impairment is of itself sufficient to prevent the person from undertaking educational or vocational training during the next 2 years; or
(ii)the person's impairment does not prevent the person from undertaking educational or vocational training but such training is not likely to equip the person, within the next 2 years, to do work for which the person is currently unskilled.
Note: for "work" see subsection (5).
(3) In deciding whether or not a person has a continuing inability to work under subsection (2), the Secretary is not to have regard to:
(a)the availability to the person of work in the person's locally accessible labour market (unless subsection (4) applies to the person); or
(b)the availability to the person of educational or vocational training.
(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 equip the person to do work, have regard to the likely availability to the person of work in the person's locally accessible labour market.
(5) In this section:
"educational or vocational training" does not include a program designed specifically for people with physical, intellectual or psychiatric impairments;
"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.
(6) A person is not qualified for a disability support pension on the basis of a continuing inability to work if the person brought about the inability with a view to obtaining a disability support pension or a sickness allowance.
Note: a person who is receiving a disability support pension may be automatically transferred to the age pension if the person becomes qualified for the age pension (see subsection 48 (3)).
95.(1) A person is qualified for a disability support pension if:
(a)the person is permanently blind; and
(b)the person has turned 16; and
(c)the person either:
(i)is an Australian resident at the time when the person first satisfies paragraph (a); or
(ii)has 10 years qualifying Australian residence; or
(iii)is born outside Australia and, at the time when the person first satisfies paragraph (a), 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: for "Australian resident" and "qualifying residence" see section 7.
(2) A person is not qualified for a disability support pension on the basis of blindness if the person brought about the blindness with a view to obtaining a disability support pension or a sickness allowance.
Note: a person who is receiving a disability support pension may be automatically transferred to the age pension if the person becomes qualified for the age pension (see subsection 48(3)).
50. Permanent blindness is not defined in the Act. The Guide to the Act (3.6.2.40 Assessment for Blindness of DSP) provides that a person is considered to be permanently blind for the purposes of the Act if any of the following criteria are satisfied:
(a)visual acuity on the Snellen Scale after correction by suitable lenses is less than 6/60 in both eyes; or
(b)field of vision is constricted to 10 degrees or less of arc; or
(c)a combination of visual defects result in the same degree of visual impairment as that described above.
51. Both parties referred to other sections of the Act and also to numerous precedents, which are not relevant to this decision which is based on a merit review of the facts.
SUBMISSIONS
The Applicant’s Submissions
52. The applicant contended that the respondent was granted DSP (General) on the basis that she was not permanently blind within the meaning of the Act. Accordingly, the pension granted was subject to a means test taking into account the earnings of her husband. She had been advised of her obligations to advise Centrelink of any changes in their joint income. The respondent did not comply with these obligations and, as a result, a random review in the year 2000 resulted in the raising of a debt owed to the Commonwealth. The applicant contended further that the SSAT decision to retrospectively determine that the respondent was blind within the meaning of the Act in 1994 is incorrect. The SSAT erred in law.
The Respondent's Submissions
53. The respondent's contention is based on the premise that the respondent was not properly assessed for the pension for which she had applied on 25 February 1994. This was an application for DSP (Blind). It was claimed that it was incumbent upon Centrelink to properly assess the respondent for the pension for which she applied. Thus, any debt that may have been raised results from Centrelink's failure to properly assess the respondent at the time. The respondent addressed the conflicting ophthalmological reports and requested that the Tribunal prefer the report of Dr Gillies to those of Dr Tangas and Dr Lazarus. The respondent also contended that there is no evidence that the respondent was ever provided with an ophthalmologist report request form. The respondent implied that it was the duty of Centrelink, or the then Department of Social Security, to notify the respondent that her claim for DSP (Blind) had been rejected and also to pursue more than it had done, an ophthalmologist's report. The respondent has also claimed that Dr Tangas's measurement of an intra‑ocular pressure of 23 in the right eye, reported in her letter dated 9 March 1994, should have alerted her to the need to conduct a field of vision test. This matter was put to Dr Gillies in his oral evidence and he agreed that a solitary reading of 23 would not necessarily lead him to perform visual field test but appropriately to repeat measurement of the intra‑ocular pressure. Raised intra‑ocular pressure is indicative of glaucoma.
THE TRIBUNAL'S DELIBERATIONS
54. There is considerable confusion regarding the date of initial application by the respondent for any form of pension. This has arisen because of her inclusion as the partner of her husband who it would appear applied for social security benefits approximately on 16 February 1994 (T4). While it was suggested that the respondent would have been given the appropriate forms and a request for an ophthalmological report on that date, she did not lodge an application in her own right until 25 February 1994. The respondent's inability to remember the events of 1994 is understandable and she has not been able to assist the Tribunal in the resolution of these date‑of‑claim matters. The respondent's son, in his evidence, stated that he had filled out the forms which his mother had then signed. He also was unable to remember the events of 1994 with any clarity.
55. Counsel for the respondent submitted that there is no evidence that the respondent was ever given an ophthalmology report request form nor was she ever advised that her application for DSP (Blind) had been refused. The respondent, it is submitted further, at all times, believes she was in receipt of DSP (Blind) and therefore not subject to an income and assets test.
56. The Tribunal notes that the respondent's husband's application was lodged on 16 February 1994 and her application in her own right for DSP (Blind) was lodged on 25 February 1994. On 9 March 1994, Dr Tangas saw the respondent at the request of her general practitioner, Dr Clifopoulos. Unfortunately, we do not have Dr Clifopoulos's letter of referral but the Tribunal notes that the respondent was seen within 21 days of lodgement of the claim form on 16 February 1994 and 11 days within the lodgement of her application for DSP (Blind).
57. Dr Tangas had previously seen the respondent on 8 November 1991 when she advised Dr Clifopoulos that the respondent's visual acuity on the right was normal with correction and that the respondent should continue to be seen at the Eye and Ear Hospital as she could not afford to pursue ophthalmological treatment privately.
58. In her letter to Dr Clifopoulos of 9 March 1994, Dr Tangas once more found visual acuity in the right eye to be 6/5 with her present correction, that is glasses, and she advised that the respondent …is really not a candidate for applying for an invalid pension based on her visual function (T84, p.237). The Tribunal has difficulty accepting that the timing of Dr Tangas’s review of the respondent was serendipitous. Dr Tangas’s review was made at the request of the treating general practitioner who, like Dr Tangas, speaks fluent Greek. The Tribunal was forced to assume that Dr Tangas’s reference to qualification for DSP (Blind) was made in answer to a question raised by Dr Clifopoulos. Dr Clifopoulos’s notes and opinion were not before the Tribunal.
59. While Dr Tangas’s report is the most contemporaneous with the lodgement of the respondent’s claim in her own right and that of the claim lodged by her husband, the Eye and Ear Hospital notes record that she had attended regularly at that hospital’s Retinal Diseases Clinic from 1989 until 1996. Throughout this period visual acuity of her right eye was determined on many occasions and never found to meet the legislative requirements of a Snellen reading of 6/60 after her right cataract operation and lens implant in 1988. It would appear that the latter was done at the Eye Clinic, Footscray. At no time is there any indication in the outpatient notes of the Eye and Ear Hospital that there was any indication to perform visual field measurement. The Tribunal assumes this was based on clinical examination of the right eye and the lack of any indications to perform visual field estimates.
60. Based on the contemporaneous ophthalmological evidence, the Tribunal concludes that the respondent did not meet the legislative requirements for legal blindness in the period 1989 to 1996.
61. In February 2000 the respondent was granted DSP (Blind) on the basis of Dr Troski's report dated 9 February 2000 (T36). The Tribunal notes that Dr Troski's findings in February 2000 had been criticised by other ophthalmologists, and, in particular, by Dr Lazarus, who found Dr Troski’s reported findings as being impossible. The report of Dr Gale also found (on 24 April 2002) that the respondent’s field of vision was reduced to approximately 3 degrees and he was prepared to opine that the respondent had probably had a peripheral field less than 10 degrees for in excess of 10 years. In contrast Dr Lazarus on 19 November 2001 assessed the respondent’s right visual field as greater than 20 degrees with an intra‑ocular pressure of 18.
62. Considerable evidence was given regarding the methods of testing visual field defects. These related to the Tangent Screen technique, the Humphrey machine test, the Goldman machine test and use of the Estiman test. The Tribunal notes that most of these tests, with the exception of the Tangent Screen estimations, are performed by the patient without any form of supervision. The evidence from the ophthalmologists was that the accuracy of such testing depended upon the co‑operation of the patient and the experience of the person conducting the test.
There was obvious wide variation in the various ophthalmologists’ preferences for these tests. The majority of ophthalmologists relied on the Humphrey test but noted there were problems relating to the co‑operation of the individual patient. It was the Tribunal’s impression that the Tangent Screen test, given that it was conducted in the presence of the ophthalmologist, was accurate.
63. Dr Gillies, who is a very experienced ophthalmologist, was also asked to retrospectively predict the respondent’s visual status in 1994 and felt there was a 50 per cent probability that it was the same in 1994 as it was in the year 2002. However, Dr Gillies was not prepared to put the probability any higher than 50 per cent. The Tribunal notes that, while he said he always performed visual fields in all patients, he also stated his area of expertise was glaucoma and that visual fields were essential investigations in this area.
64. Based predominantly on the contemporaneous ophthalmological evidence of Dr Tangas and the Eye and Ear Hospital, the Tribunal finds that the respondent was not blind in accordance with the definition relating to the Act and thus was not eligible for DSP (Blind) in 1994. As the respondent in her own evidence stated that her eyesight had not changed since 1994, the Tribunal is unable to come to a conclusion that she may have become legally blind between 1996 and the year 2000. A debt is owing to the Commonwealth in the amount of $42,626.50.
65. Whether or not the respondent has been separated, but living under the same roof as her husband, is a question that can be further pursued by the applicant.
66. The applicant’s contentions regarding set off and notional entitlement are not relevant given the Tribunal’s decision.
67. The Tribunal sets aside the decision of the SSAT dated 13 October 2000 finding that the respondent was not legally blind in February 1994 and on this basis was granted DSP (General) subject to an income and assets test. As the respondent did not notify the applicant at any time of her husband’s income, a debt has arisen. The Tribunal does not find any evidence of an administrative error or special circumstances.
I certify that the sixty‑seven [67] preceding paragraphs are a true copy of the reasons for the decision herein of
Miss E.A. Shanahan, Member
(sgd) Catherine Thomas
Clerk
Date of hearing: 11—12 December 2002
17 January 2003
Date of decision: 12 June 2003
Advocate for the applicant: Mr R. Huttner, Centrelink
Counsel for the respondent: Ms D. Rasheva
Solicitor for the respondent: Legal Aid Victoria
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