EMILE HALIME and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES & INDIGENOUS AFFAIRS

[2009] AATA 123

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 123

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2005/1332

GENERAL ADMINISTRATIVE DIVISION		)
Re		EMILE HALIME

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES & INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Ms Robin Hunt, Senior Member
Dr Maxwell Thorpe, Member

Date25 February 2009

PlaceSydney

Decision The decision under review is varied, and substituted is the decision that Mr Halime qualifies for arrears of disability support pension but does not qualify before the date conceded by the Secretary, being 3 May 2000.

...................[Sgd]...................

Ms Robin Hunt
  Senior Member

CATCHWORDS

SOCIAL SECURITY – income support payment – receipt of newstart allowance – applicant’s incorrect claim for newstart allowance – subsequent transfer to disability support pension – entitlement to disability support pension established – favourable decision made – consideration of appropriate date for backdating payments – payments backdated to 3 May 2000 after concession by respondent – applicant does not meet all the requirements for disability support pension before 3 May 2000 – decision under review varied.

Social Security Act 1991 ss 94

Social Security (Administration) Act 1999 ss 12(1), 12(3), 15(1), 15(4A)

Morales v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 374

Re Joseph and Secretary, Department of Social Security [1997] AATA 162

Secretary, Department of Social Security v Pusnjak (1999) 56 ALD 444

REASONS FOR DECISION

25 February 2009 Ms Robin Hunt, Senior Member
Dr Maxwell Thorpe, Member        

introduction

1.      On 16 November 2007, the Federal Court made orders by consent that:

…

2.  The whole decision of the Administrative Appeals Tribunal made on 22 May 2007 (as amended by corrigenda) be set aside.

3. The whole matter be remitted to the Administrative Appeals Tribunal to hear further evidence and submissions and to decide the matter according to law.

…

background

2.      On 22 May 2007, the tribunal set aside the decision of the Social Security Appeals Tribunal (‘the SSAT’) that Mr Halime was not entitled to payments before 23 October 2002 and remitted the matter for determination of the earliest date on which Mr Halime made an initial claim for the purpose of section 15 of the Social Security (Administration) Act 1999 (‘the Administration Act’). The Secretary appealed to the Federal Court and the Federal Court remitted the matter by consent for reconsideration by the tribunal of the whole of the matters at issue including the decision made.

3.      The Court further directed that the tribunal take further evidence: cf Morales v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 374. For the hearing on 4 December 2008, the Secretary provided more records including some materials dating back as far as 1991 as well as documents referred to in medical reports before us, correspondence and review forms and claims lodged by Mr Halime before and during 1995. In addition, these supplementary tribunal documents produced in 2008 include reviews conducted in 1996 and a record of decision made in 1997.

4.      Emile Halime applied to this tribunal for review of a decision made by the SSAT on 7 October 2005. The decision of the SSAT affirmed a decision of a Centrelink authorised review officer (‘ARO’) made on 30 August 2005, to pay Mr Halime disability support pension (‘DSP’) from 23 October 2002 and not from 1998. The Secretary’s records indicate that the decision of the ARO had upheld a Centrelink determination made on 7 July 2005. No copy of the original decision made on 7 July 2005 is before the tribunal, but a note created on 25 July 2005 gives brief particulars of a decision made on 7 July 2005 not to backdate payment to Mr Halime to 1998.

5.      A copy of Mr Halime’s application for review of a decision dated 6 July 2005 is on file. His application form is also dated 6 July 2005 but bears no date of receipt by Centrelink. In this application, Mr Halime refers to his application made in 2002 for DSP payments and requests review of the decision not to backdate payments to commence in 1998.

6.      Since 20 April 2004, Mr Halime has been receiving DSP payments which were backdated to 23 October 2002. He sought further arrears which were refused. However, the Secretary conceded, after the making of the reviewable decision rejecting Mr Halime’s further claim, that he should be paid arrears from 3 May 2000.  On the basis of a report of Dr Paul Teychenné dated 3 May 2000, the Secretary on 7 February 2008 paid Mr Halime arrears for the period between 3 May 2000 and 22 October 2002. Mr Halime continues to argue that his entitlement to DSP goes back further and that he should be paid arrears from 1998.

issue

7.      We must decide if Mr Halime is entitled to receive arrears of disability support pension for a period before 3 May 2000.

consideration and findings

8.      Mr Halime claims that he should receive disability support pension payments dating back to 1998 or 1992. In order to qualify for this pension at any particular time, Mr Halime must meet criteria set out in the Social Security Act 1991 (‘the Act’). Section 94 of the Act provides that, in order to qualify for DSP, a person must meet specific tests which, broadly speaking, involve impairment to work ability due to medical causes. Once he has established that he meets these criteria, Mr Halime argues that his entitlement should be backdated by virtue of other legislative provisions which permit some retrospective operation or backdating of entitlements.

9. Section 15 of the Administration Act sets out circumstances in which a claim for one category of social security payment can be deemed as a claim for another social security payment. The section also provides that a person may qualify for the other type of payment involved on the day that the initial claim was made. Mr Halime argues that he has made a number of applications for social security payments in the past that were incorrect because he did not understand that he was entitled to the pension now sought.

10.     Subsections 15(1) and (4A) are relevant to his claims and read:

15(1)    For the purposes of the social security law, if:

(a)  a person makes an incorrect claim; and

(b)  the person subsequently makes a claim for a social security payment for which the person is qualified; and

(c)  the Secretary is satisfied that it is reasonable that this subsection be applied;

the person is taken to have made a claim for that social security payment on the day on which he or she made the incorrect claim.

......

15(4A)  For the purposes of the social security law, if:

(a)  a person makes a claim for an income support payment (the initial claim); and

(b)  on the day on which the initial claim is made, the person is qualified for another income support payment (the other income support payment); and

(c)  the person subsequently makes a claim for the other income support payment (the later claim); and

(d)  the Secretary is satisfied that it is reasonable that this subsection be applied;

the person is taken to have made the later claim on the day on which the initial claim was made.

11. Section 12 of the Administration Act also enables some adjustment to the type of entitlement where a person qualifies for payment of a kind other than the type he or she is receiving. The section contains a provision that allows transfer to another payment if the recipient becomes qualified for a different kind of payment while already on some kind of income support payment. This section reads, in part:

12(1)  Subject to subsection (3), if:

(a)  a person is receiving an income support payment; and

(b) while receiving the payment, the person becomes qualified for another income support payment (the other payment); and

(c) the Secretary determines that the person is to be transferred to the other payment;

the person is taken, for the purposes of the social security law, to have made a claim for the other payment on the day on which the person became qualified for the other payment.

…

12(3)  The Secretary may only make a determination under subsection (1) or (2) if the transfer is one that the Secretary could have determined should occur apart from this section.

12. Mr Halime argues that he is entitled to transfer to DSP from 1992 or 1998 pursuant to section 12, or by virtue of section 15, of the Administration Act because he made an incorrect claim in 1998. He claims that he was already suffering in 1992 or 1998 from the conditions which now give rise to his entitlement to receive disability support pension. Failing this, Mr Halime says he is entitled to payments from the date of commencement of the Administration Act in 2000.

jurisdiction

13.     The records before the tribunal show that, when Mr Halime sought review of the decision of the SSAT, he indicated that he was claiming entitlement from 1998. The record of the original decision made on or about 6 or 7 July 2005 also refers to consideration of a claim to payments from 1998, which the decision-maker rejected. The ARO and the SSAT both confined their review of the original decision to consideration of Mr Halime’s claim on the basis that he sought payments backdated to 1998. The SSAT and previous decision-makers have not considered any claim based on an earlier period. As the decision under review by this tribunal was made in accordance with Mr Halime’s claim that payment should commence in 1998, the tribunal would be exceeding its jurisdiction by considering any earlier date.

14. In addition, the question of backdating beyond the date conceded by the Secretary will not arise unless we find that Mr Halime was suffering from a disabling condition and unable to work in accordance with the provisions of section 94 before 3 May 2000.

basis of entitlement to disability support pension

15. The requirements that must be fulfilled for receipt of disability support pension are set out in the Act. For Mr Halime to qualify for DSP, he must satisfy section 94 of the Act. Section 94 provides that, in order to qualify for DSP, a person must meet specific tests, including those under subparagraphs (1)(a), (b) and (c)(i), 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; …

16. Subsection 94(2) of the Act expands on what is meant by “continuing ability to work”, and at the time of application read:

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 independently of a program of support within the next 2 years; and

(b)  either:

(i)  the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or

(ii)  if the impairment does not prevent the person from undertaking a training activity--such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.

17. Section 94 has been amended from time to time but, in order to qualify, a person has always needed to establish medical grounds, now ‘physical, intellectual or psychiatric impairment’, and inability to work. The section was amended in 1995 with effect from 29 September 1995 so as to “clarify the meaning of work” [explanatory memorandum] and to require 20% or more impairment. The 1995 amendments were not expressed as having retrospective operation and have been held not to apply to claims or applications for review before 29 September 1995: see Re Joseph and Secretary, Department of Social Security [1997] AATA 162. The same amending Act changed subparagraph 94(1)(c) and substituted new subsections 94(2) and (3) purported to clarify what is meant by “work”. The provision under subparagraph 94(1)(b) was also amended. This paragraph was again amended in 1997 with effect from 1 April 1998. Further amendments occurred in 1999 with effect from 20 March 2000, including the requirement to qualify for DSP at the date of claim or within the following 13 weeks.

18.     Any claims made before the commencement of the Social Security (Disability and Sickness Support) Amendment Act 1991, which introduced DSP on 12 November 1991, would have to be assessed for invalid pension as DSP did not exist previously. Mr Halime says that he lodged a claim for job search allowance on 8 June 1992, which could be a basis for DSP. We have already decided that we would be exceeding our jurisdiction if we considered any claim before 1998.

19.     Mr Halime in his written statement of 23 April 2008 said that in about 1991 he worked in his brother’s hairdressing shop and during 1992 was engaged in various activities until he was involved in an incident on a plane in which he was travelling on 28 May 1992. After the plane incident, Mr Halime says he was sick and had to stop work until he joined Amway as a distributor in 1994. He thought he trained with Amway for about 6 months. The next event he mentions is his participation in the NEIS (New Enterprise Incentive Scheme) in 1996, which he said he did for almost one year. In 1998, Mr Halime says he worked three hours a day for three days a week.

20.     From September 1995, reference to ‘usual work’ changed to ‘any work’. In Secretary, Department of Social Security v Pusnjak (1999) 56 ALD 444, the Federal Court pointed out that it was still necessary to consider the range of activities for which a person was suited. However, apart from medical opinions that Mr Halime could work with some limitations or was temporarily unable to work, we have little evidence about Mr Halime’s capacity or range of activities to which he was suited during the period up to 3 May 2000.

21.     Mr Halime told us he participated in the NEIS in 1996 for almost one year and in 1998, worked three hours a day for three days a week. During 1999 and 2000, Mr Halime recounted some experiences he had with Austrade and an internet provider. He was trying to develop a project of his own but had little success. Then he was injured in a car accident in March 2000. From this material we conclude that Mr Halime had limited work capacity. He may have been unable to work for more than short periods, although from his own account he was busy trying to pursue a project which he called the “Ozway Cleaning Cabinet project”.

22. We have before us no comprehensive assessment of Mr Halime’s work capabilities framed in terms of subsection 94(2) and several opinions that he has been able to work with some restrictions prior to 3 May 2000, the date conceded by the Secretary for entitlement to payment of DSP. Without more information, we are unable to find, on balance, that he was unable to work in any capacity for which he was skilled in the period up to 13 March 2000, when he had a car accident. After the accident, Dr Teychenné reported that Mr Halime had some physical limitations which restricted his work capacity. It was not until shortly afterwards, on 3 May 2000, that the Secretary conceded Mr Halime qualified for the DSP. Eligibility for DSP depends not only on incapacity for work but also physical, intellectual or psychiatric impairment of 20 points or more under the Impairment Tables.

23.     From the bundle of documents and correspondence which the respondent provided to the tribunal and the applicant on 21 May 2008, we can see that Mr Halime completed and lodged with Centrelink’s predecessor a sickness aIlowance review action sheet on 27 September 1993. He again lodged a similar sheet on 28 March 1995. He claimed various other allowances over the years and during 1995 and 1996 lodged further undated sickness aIlowance review forms. Mr Halime has argued that at least some of these applications or review forms amount to initial claims that would be sufficient basis for backdated DSP. Although we have rejected any claim to entitlement before 1998, these earlier records may assist our assessment of the position in 1998.

24.     Copies of reports and correspondence between medical practitioners are on the Secretary’s file. Among these, Dr James Gatenby in 1991 found Mr Halime was fit for employment. Dr Barbara Ellis in 1992 considered Mr Halime suffered 30% impairment when conducting a sickness allowance review, but she did not make reference to Dr Gatenby’s opinion. Dr Anthony Dinnen, consultant psychiatrist, who gave oral evidence to the tribunal, saw Mr Halime in 1992 and at that time thought that he could perform some low stress work for up to 30 hours per week.

25.     Further records show that Dr Dinnen also gave his written opinion to a referring general practitioner on 1 October 1992 that Mr Halime could do low stress sedentary/administrative work at least part-time up to 30 hours per week. On 17 March 1993, Dr Dinnen informed the same GP that he had advised Mr Halime there was no need for further attention. Dr Dinnen also recorded that Mr Halime told him he was much better.

26.     After seeing Dr Dinnen in 1992, Mr Halime was treated by Dr Osman Ali, also a consultant psychiatrist, in 1993. Dr Ali diagnosed ‘specific social phobia of flying’ with panic disorder. Dr Ali did not comment on ability to work. A number of other doctors saw Mr Halime. Among reports held by the respondent, is one furnished by Dr Levitt who formed the view, after seeing Mr Halime in July 1993, that Mr Halime was currently unfit for work but that this was temporary. Dr KarlengTan, Mr Halime’s GP, also thought the unfitness for work temporary in September 1993 and that he could perhaps do 10 hours manual work per week at that time. Dr Teh assessed 10% impairment on 19 August 1994. Dr James Maguire, consultant psychiatrist, on 16 December 1994, assessed Mr Halime and concluded that he did not suffer any psychiatric disorder that prevented him form undertaking full time employment.

27.     Dr Teychenné, a neurologist, saw Mr Halime in 1994 for treatment of pain experienced since a car accident in 1978 but gave no opinion at that time about his degree of impairment or work capacity.  Dr Teychenne reported to Dr Tan from time to time and later to Dr P Coorey after seeing Mr Halime for pain diagnosis and treatment.  Dr Tan completed a sickness allowance review form on 21 February 1995, in which he diagnosed depression and anxiety along with back pain and leg pain. He thought Mr Halime could perform light duties for 8 to 10 hours per week. Dr Ali, on 7 March 1995, stated that he started caring for Mr Halime in 1993, had seen him on a regular basis since and was continuing to treat him for panic disorder.

28.     According to further records, Mr Halime was first granted newstart allowance on 26 February 1996. Dr Coorey, on 22 December 1998, supplied a treating doctor’s report listing major depression with acute anxiety episodes and noting he was still under Dr Ali’s care. Dr Iris Weingarten, HSA medical adviser, on 5 February 1999 noted Mr Halime was not taking medication and not seeing a psychiatrist but was well controlled and assessed him 0 points under table 6 of the impairment tables. Dr Coorey completed another treating doctor’s report on 7 January 2000 in which he listed Mr Halime’s anxiety and depression since 1992 and medications. Dr H E Brown, HSA medical adviser, described Mr Halime’s symptoms as mild and assigned 0 points under table 6 of the impairment tables.

29.     Dr Teychenné on 3 May 2000 wrote to Dr Coorey stating Mr Halime suffered post traumatic stress disorder and was being treated with xanax 0.5mg ½ tablet 3 times per day. Dr V Ghannoum on 3 July 2002 furnished a treating doctor’s report noting onset of depression in 1992 and medication. Dr Monir B Younan, consultant psychiatrist, wrote to Dr Ghannoum on 5 August 2002 noting among other things that Mr Halime intended to apply for DSP.

30.     On the basis of these reports, we agree with the findings of the SSAT that between 1998 and 2002, Mr Halime suffered a physical, intellectual or psychiatric impairment. The SSAT was not satisfied that Mr Halime’s condition, however, was sufficiently serious to require ongoing psychiatric intervention or precluded him from working. We agree on balance with this conclusion up to the date of the opinion of Dr Teychenné, furnished to Dr Coorey, on 3 May 2000.

31.     Dr Teychenné provided a series of reports and opinions after 3 May 2000 which dealt with Mr Halime’s physical symptoms and possible need for further investigation of these. On 26 July 2001, Dr Teychenné again refers to the review he conducted in May 2000 and Mr Halime’s diagnosis of post traumatic stress disorder and taking xanax 0.5mg ½ tablet 3 times per day. Dr Teychenné further noted that he had suspected cervical disc prolapse in Mr Halime as a result of his accident on 13 March 2000 and a CT scan on 10 January 2000, 2 months prior to the accident, did not indicate this. Dr Teychenné said the patient required a further CT scan or MRI scan to look for evidence of disc prolapse. In the meantime, Dr Teychenné thought Mr Halime suffered physical impairments of the neck, spine, left arm and both legs. The report goes on to detail various investigations and conclusions. Dr Teychenné wrote again in the penultimate paragraph of this report that he recommended Mr Halime have further scans and that at the time of his assessment in 2000 Mr Halime was not suited for activity which required heavy lifting.  From these reports, we conclude that Dr Teychenné had not reached an opinion before 3 May 2000 that Mr Halime’s physical and psychiatric impairments were so severe and permanent as to meet the criteria for DSP. He had not, for example, concluded that Mr Halime was incapable of work but was unsuited to activity which required him to sit or stand in a constant position for prolonged periods. He did not state that Mr Halime had a continuing inability to work. We note on the other hand that Mr Halime’s medication described on 3 May 2000 indicates ongoing psychiatric illness which continued to be the reason for Mr Halime’s payment of DSP from that date.

32.     Payment of DSP from 3 May 2000 is not in contention and we are required to consider possible entitlement at an earlier date. The main evidence in support of earlier entitlement is based on the opinion of Dr Dinnen. Dr Dinnen, who had seen Mr Halime in 1992, furnished a further report on 1 March 2004 and another on 7 March 2006. These later reports were prepared in relation to proceedings before the tribunal. Dr Dinnen wrote in the 2004 and 2006 reports that Mr Halime had been in his care since 1992. We note that there was a considerable gap between the time Dr Dinnen saw Mr Halime in 1992 before the next consultation in February 2004.

33.     Mr Halime was treated by Dr Ali from 1993 onwards, according to Mr Halime’s oral evidence. Dr Ali also wrote on 7 March 1995 that he had been seeing Mr Halime on a regular basis since 8 June 1993. Mr Halime told us that when he saw Dr Dinnen in 1992, Dr Dinnen suggested he should look for a job. Mr Halime said he was unhappy with this advice as he was not capable of work and wanted help. Ultimately, he changed psychiatrists because of his dissatisfaction with Dr Dinnen. Dr Dinnen reported to Mr Halime’s GP that he had suggested Mr Halime look for a job. Dr Dinnen agreed that he had recommended to Mr Halime in 1992 that he should look for work. Dr Dinnen said that he thought it might help Mr Halime if he tried to work. Dr Dinnen thought his letter was not evidence that he thought Mr Halime could work. He had been trying to motivate Mr Halime or assist him to have a different view of his capabilities. He pointed out that, at the end of his letter to the GP, Dr Dinnen said he was happy to continue to treat Mr Halime to try to assist him towards being a better part of society.

34.     In his 2004 and 2006 reports, Dr Dinnen made comprehensive summaries and analysis of various medical reports about Mr Halime’s condition, going back as far as 1988 and 1991. He included reference to several psychiatric reports with differing diagnoses of Mr Halime’s mental condition and resultant problems, the degree of impairment and any reduced ability to work.

35.     Dr Dinnen wrote in 2004 that the diagnosis he gave years ago of dysthymia and anxiety state were as good a working diagnosis as could be made of Mr Halime’s condition and that the most important matter was his rate of impairment. Dr Dinnen assessed his impairment as permanent as at 2003 and “before that”. He considered Mr Halime had an impairment rating of 20 points and was unable to work. At one point, Dr Dinnen observed in his 2004 report that Mr Halime then seemed more stressed than previously but in oral evidence said that this did not mean Mr Halime had deteriorated when he saw him in 2004. When asked about his diagnosis in 2004, Dr Dinnen gave oral evidence to the effect that Mr Halime’s condition was very complex and he still thought his working diagnosis was valid in the circumstances. Dr Dinnen confirmed that it was now his opinion that Mr Halime was suffering the same mental impairments and degree of inability to work in 1992 as in 2004 and 2006 although this had not been his opinion when he saw Mr Halime in 1992. He said he now had the benefit of hindsight.

36.     In his 2006 report, Dr Dinnen wrote that with hindsight, he thought a Commonwealth medical officer, Dr Ellis, on 26 March 1992 correctly assessed Mr Halime’s impairment at 30%.  In relation to this opinion, we note that on 3 April 1992, there is a record that Dr Ellis did not have access to the opinions of Dr Gatenby, and Dr Bentivoglio, orthopaedic surgeon. Dr Gatenby on 24 September 1991 had thought that Mr Halime’s symptoms were under control. Then, on 29 December 1994, Dr Ellis, who was by then the Deputy Director of the Australian Government Health Service, thought Mr Halime’s impairment rating was ‘10% only’.

37. Although Dr Dinnen did not see Mr Halime for long periods in between his reports, he gave evidence that it was correct to say he had been treating Mr Halime since 1992. Dr Dinnen said he had not seen Mr Halime more frequently because he was incurable. He told the tribunal that Mr Halime had always been the same since 1992. Between the consultations with Dr Dinnen, other psychiatrists examined or treated Mr Halime and Dr Ali, in particular, did not have the same opinion of Mr Halime’s condition although he treated Mr Halime from 1993 to 1995. Taking Dr Dinnen’s opinion into account, we are not persuaded to change our finding that Mr Halime’s current severe mental illness was not established sufficiently before 3 May 2000 for the purposes of meeting section 94 criteria.

38. On the medical material before us, we are not satisfied that Mr Halime met the requirements of section 94 before May 2000. His claim for backdated payments prior to 3 May 2000 therefore fails.

retrospectivity

39.     While we still hold the view that it may be appropriate to backdate some applications to the date of an initial application or deemed application, we also found previously that Mr Halime must still meet the further requirements for disability support pension. As Mr Halime has not demonstrated that he would have qualified before the date conceded by the Secretary, it follows that we have not reconsidered the question of further retrospectivity before the date conceded, 3 May 2000.

decision

40.     The decision under review is varied and substituted is the decision that Mr Halime qualifies for arrears of disability support pension but does not qualify before the date conceded by the Secretary, being 3 May 2000.

I certify that the 40 preceding paragraphs are a true copy of the reasons for the decision herein of Ms Robin Hunt, Senior Member and Dr Maxwell Thorpe, Member

Signed: .........................[Sgd]...........................
  Jennifer Wong, Associate

Date/s of Hearing  4 December 2008
Date of Decision  25 February 2009
Counsel for the Applicant         Mr C Colborne
Solicitor for the Applicant          Legal Aid Commission NSW
Counsel for the Respondent     Mr G Johnson
Solicitor for the Respondent     Australian Government Solicitor