Foran and Secretary, Department of Social Services (Social services second review)
[2015] AATA 912
•27 November 2015
Foran and Secretary, Department of Social Services (Social services second review) [2015] AATA 912 (27 November 2015)
Division
GENERAL DIVISION
File Number(s)
2015/3365
Re
William Foran
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Member Taglieri
Date 27 November 2015 Place Hobart The decision under review is affirmed.
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Ms S Taglieri, Member
CATCHWORDS
SOCIAL SECURITY - Refusal of Disability Support Pension; psychotic illness; Order confining applicant to secure psychiatric facility; participation in rehabilitation and condition in remission; medical condition accepted to be permanent but impairment not severe at time of claim; conceded impairment prior to written claim made; requirement for claim in writing and jurisdiction of Tribunal
LEGISLATION
Social Security Act 1991
Social Security (Administration) Act 1999
Administrative Appeals Tribunal Act 1975
CASES
Formoza v Department of Social Security [1988] FCA 291
SECONDARY MATERIALS
Social Security (Tables for Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Member Taglieri
INTRODUCTION
This application relates to a decision by the Respondent to reject a claim made on 20 August 2014 for Disability Support Pension (DSP).
The facts relevant to the claim are not contentious and agreed as follows:
·The Applicant had been admitted to a secure psychiatric facility in Hobart in late February 2012.
·On 23 March 2013, he was found “not guilty” on the grounds of insanity for a very serious crime by the Supreme Court of Tasmania.
·When he applied for DSP he remained confined in the secure psychiatric facility pursuant to a Restriction Order of the Supreme Court of Tasmania[1].
·Dr Jordon provided a medical report dated 9 January 2015, in which he stated that the Applicant had suffered a psychotic illness in the past and it was in remission.
[1] T Documents, page 39
The Respondent conceded that the Applicant suffered a permanent medical condition, but argued that within the relevant period[2], the impairment resulting from the condition was no more than 5 points pursuant to Table 5 of the Social Security (Tables for Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“2011 Determination”)[3]. Accordingly, it argued he was not eligible for DSP because he did not satisfy the requirement of section 94(1)(b) of the Social Security Act 1991, (“SS Act”) that he have 20 impairment points.
[2] Within 13 weeks of claim for DSP, section 11 of Social Security (Administration) Act 1999
[3] Which apply by virtue of section 27 of the Social Security Act 1991
The Respondent conceded that the Applicant was undertaking a course of rehabilitation in the secure facility at the relevant time, and for that reason, because of section 23(9) of the SS Act, section 1158 of the SS Act did not operate to deprive him of DSP payment, if he was otherwise eligible.
Further, the Respondent contended that if the Applicant’s permanent medical condition did satisfy the requirement for 20 impairment points, he was ineligible for DSP because he did not satisfy the requirement of continuing inability to work.[4]
[4] Section 94(2) of the SS Act.
The Respondent argued that the impairment suffered by the Applicant prior to his written application of 20 August 2014 was irrelevant. That being so because section 159 of the Social Security (Administration) Act 1999 (SSA Act) required a written application.
This was argued to be a mandatory requirement, there being no ability to determine eligibility for DSP without such application.[5] Further, the Respondent contended that there was no statutory or common law discretion to consider payment of a statutory entitlement under the SS Act, without a written application.
[5] Formoza v Department of Social Security [1988] FCA 291 at paragraph 37
The Applicant did not take issue with any of the evidence contained in the T documents or the Contentions of the Respondent. He specifically agreed that it was a mandatory requirement that he make a written application for the payment of DSP and that there was no discretion in any statutory provision or otherwise, for the Tribunal to treat the one he made as having been made earlier.
Despite the concessions in paragraph 8, the Applicant said that because he was suffering a very severe psychotic illness at the time of his admission to the secure facility, he did not have capacity to make application for DSP at that time.
He did not offer any argument or reasoning about why the lack of capacity to make a claim in the past was relevant to his eligibility for a DSP, in respect of the actual claim he made on 20 August 2014.
ISSUES TO BE DETERMINED
The fundamental issues to be determined are whether within 13 weeks of his written claim for DSP, the Applicant had psychiatric impairment and secondly, if “yes”, whether it resulted in at least 20 points impairment[6].
[6] Requirements to be satisfied by section 94(1)(a) and 94(1)(b) of the SS Act for payment of DSP
If the Tribunal is not satisfied of the matters in paragraph 11, this application must fail and it will be unnecessary to consider any of the other pre-conditions to eligibility for DSP.
EVALUATION AND DETERMINATION OF ISSUES
The Applicant identified that the reason for his failure to make a claim in writing before 20 August 2014, was that he had very severe mental incapacity when first admitted to the secure facility. This was not disputed by the Respondent.
However, the Applicant agreed that there was no discretion to treat the written claim he did make as having been made earlier than it was when he was severely incapacitated.
The only medical evidence before the Tribunal (that of Dr Jordon) establishes that it is likely that by the time the Applicant applied in writing for DSP his prior psychotic illness had gone into remission.[7]
[7] Page 55 of Exhibit T1, paragraph 6
It is likely that by the time the Applicant applied in writing for DSP the impairment resulting from his psychotic illness was minimal or limited.[8]
[8] Page 55 of Exhibit T1, paragraph 7
The Applicant’s evidence to the Tribunal was to the effect that by the time he made written application for DSP, his psychiatric condition had improved and that it was as described by Dr Jordon.
The views of Dr Jordon and the evidence of the Applicant do not permit a finding that the permanent impairment resulting from the Applicant’s psychotic or psychiatric condition was such that 20 impairment points were satisfied pursuant to the 2011 Determination at the relevant time. The degree of impairment of function experienced by the Applicant as established by the evidence, is not equivalent to the descriptors contained in Table 5 for 20 points.
The Tribunal has evaluated the issue of whether the Applicant’s mental incapacity at an earlier time is relevant to the issue to be determined upon this application.
Central to the jurisdiction of the Tribunal is the existence of a “decision” which is amenable to review under section 25 of the Administrative Appeals Tribunal Act 1975 (AAT Act).
The Applicant made one claim for DSP and there is only one “decision” in respect of it. This being the case, the only “decision” which the Tribunal has power to review is that made on 12 January 2015 and the subsequent affirmation of it by the Social Security Appeals Tribunal on 10 June 2015.
The Tribunal cannot uphold an argument that might be interpreted as contending that the Applicant lacked capacity to make an earlier written claim when his illness was severe. There is no decision for the purposes of section 25 of the AAT Act about whether the Applicant was entitled to DSP at an earlier time.
The Tribunal is bound to follow the principles established by the decision of the Full Court of the Federal Court of Australia in Formosa.
The Applicant did not identify any basis upon which the Tribunal should not follow the principles established by Formosa and he conceded there was no statutory or other discretion to treat his written claim as having been made earlier.
It may at first blush seem unfair that a person who is mentally incapable of submitting a written claim for social security entitlement, cannot be treated as having made the claim at an earlier time because of the mental incapacity.
However, the Tribunal is of the view that there is no unfairness. It accepts that the requirements for a written claim and the reasons for the same are essential to an efficient, accountable and fair system of government funded social security benefits. It respectfully adopts the sentiments of the Full Court at paragraph 35 of Formosa. “It would be to attend the administration of the legislation with the greatest uncertainty both for alleged claimants and for those charged with administration of the legislation”, if written applications could be treated as being made at a time other than when they were in fact made.
It would have potential to make identification of eligibility ambiguous and uncertain, something which is highly undesirable in the context of existing statutory criteria for eligibility.
Further, as Counsel for the Respondent submitted, the Tribunal accepts that it would be unusual for a person to be left without out means of financial support, merely because they lacked mental capacity to make a written claim for a social security benefit. At both State and Commonwealth levels, there are mechanisms by which assistance is offered and provided to those who lack mental capacity to apply to the Respondent for social security entitlements.
Accordingly, as the requirement of section 94(1)(b) of the SS Act was not satisfied at the relevant time, the Applicant was not eligible for DSP and the decision under review is affirmed.
30.
31. I certify that the preceding 29 (twenty nine) paragraphs are a true copy of the reasons for the decision herein of Ms S Taglieri (Member)
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Administrative Assistant
Dated 27 November 2015
Date of hearing 24 November 2015 Applicant Mr William Foran (self-represented) Solicitor for the Respondent Mr Brian Sparkes, Department of Social Services
Key Legal Topics
Areas of Law
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Social Security Law
Legal Concepts
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Standing
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Limitation Periods
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Disability Support Pension
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