Foster; Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and
[2008] AATA 2
•3 January 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 2
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2006/1528
GENERAL ADMINISTRATIVE DIVISION ) Re SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS Applicant
And
IAN FOSTER
Respondent
DECISION
Tribunal Ms G Ettinger, Senior Member Date3 January 2008
PlaceSydney
Decision The Tribunal sets aside the decision of the Social Security Appeals Tribunal dated 13 December 2005, and in substitution finds that the start date for Mr Foster’s Disability Support Pension is 6 October 2004. ..............................................
Ms G Ettinger
Senior Member
Catchwords
Disability Support Pension – remittal from Federal Court on the basis the Tribunal had not considered section 12 of the Social Security (Administration) Act 1999 - pursuant to section 12 the claim may be backdated – application of section 15(4A) of the Social Security (Administration) Act 1999 - whether Respondent was qualified for DSP at an earlier date – section 94(1) of the Social Security Act 1991 and clauses 2 - 4 of Schedule 2 of the Administration Act - decision of SSAT awarding DSP from the start date 20 November 2003 set aside – Respondent was not qualified for DSP at an earlier date - Centrelink decision awarding DSP from 6 October 2004 reinstated.
Social Security Act 1991 ss 94(1) & 94(2)
Social Security (Administration) Act 1999 ss 12, 15(4)(A), Clause 2 - 4 of Schedule 2
Impairment Tables for the Assessment of Work-Related Impairment for Disability Support Pension Schedule 1B of the Social Security Act 1991
Table 5.2 Thoraco - Lumbar-sacral spine
Table 6 Psychiatric Impairment
Re Drake and Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634
Burgess v Secretary, Department of Family and Community Services [2004] FCA 134
SDSS v Cooper (1990) 26 FCR 13
Halime v Secretary, Department of Employment and Workplace Relations [2007] AATA 1345REASONS FOR DECISION
3 January 2008
Ms G Ettinger - Senior Member
1. The facts in this matter are generally agreed by the parties. Mr Foster is a 41 year old man who lives with his parents, and has been receiving Disability Support Pension (DSP), since 6 October 2004.
2. Mr Foster attended school until the age of 15, and completed Year 9. He has had difficulties with further education and training. Mr Foster worked mainly as a storeperson, first at Coles, then in an industrial laundry complex, and in several other establishments in a similar capacity. Mr Foster’s pattern of employment appears to have been to remain in a job for approximately two years, and for the appointment to terminate when he became angry at, or argued with his supervisor. His last paid employment commenced in 1998, and terminated at the end of 1999. Mr Foster commenced on the then relevant unemployment benefit in 1999. He told me that he had been the recipient of such benefits from time to time when he was between jobs. Mr Foster said that he liked working, and would take the opportunity of doing so whenever he could. He said that he also participated in a horticulture course which was voluntary, and has worked for his local Council.
3. To qualify for DSP, a person must, pursuant to section 94(1) of the Social Security Act 1991, (the Act), have a physical, intellectual or psychiatric impairment of 20 points or more under the Impairment Tables for the Assessment of Work-Related Impairment for Disability Support Pension produced pursuant to Schedule 1B of the Social Security Act 1991 (the Impairment Tables), and have a continuing inability to work. Before being able to rate any impairment points, a condition a person suffers and claims for, must have been fully documented and diagnosed, and the condition must have been investigated, treated and stabilised.
4. The usual way to obtain a benefit is to make an application (sections 41, 42 and clauses 2 - 4 of Schedule 2 of the Social Security Administration Act 1999 (the Administration Act), and the general rule is that a payment of benefit will be made from the date of application if the person is appropriately qualified. There are however exceptions, and these are discussed later on in these Reasons for Decision.
5. There was no question that Mr Foster lodged a claim for DSP on 29 September 2004, and that he was found to be qualified for DSP, which was awarded from 6 October 2004. This was on the basis of being awarded 10 points pursuant to Table 5.2 for his spinal disorder, and 10 points for personality disorder pursuant to Table 6 of the Impairment Tables (T31).
6. However Mr Foster’s case is rather more complicated because he has been suffering enuresis since childhood, and also has erectile problems. He said that this has caused him social problems, and there is evidence in the documents before me (Exhibit R2) that he has had treatment for those conditions, which he says have now worsened. Notwithstanding, he held down paid employment from 1981 to 1999. He also has hearing problems but is not claiming for those.
7. Mr Foster’s evidence is that he has suffered back problems since his teenage years, and that his back was further injured in a bicycle/motor vehicle accident in 1995. There is evidence in the documents that Mr Foster attended doctors and clinics for his back problems over the years and that he has been awarded 10 impairment points for his back conditions. He was also diagnosed with personality disorder, for which he was awarded 10 impairment points, and DSP awarded on that basis. However in a more recent report, that of Associate Professor S Hayes, of the Centre for Behavioural Sciences, Department of Medicine, University of Sydney, dated 3 April 2007 (Exhibit R3), Mr Foster was diagnosed as, not having a personality disorder, but suffering severe depression.
8. Mr Foster has been in receipt of income support since leaving paid employment in 1999, and has attended occupational psychologists and rehabilitation specialists at Centrelink’s request. Unfortunately, notwithstanding efforts by the Welfare Rights Centre which represented Mr Foster at the hearing before me, including Freedom of Information requests, none of the psychologists’ reports could be located, and the rehabilitation reports were only obtained through direct contact with the CRS. This has caused continuing difficulties for Mr Foster in his claims for DSP.
9. I noted that on 26 February 2002, Centrelink sent Mr Foster a DSP claim pack, inviting him to claim DSP. He did not return the pack as he said that he wanted to work. Of significance in this matter is the file note made by Centrelink on that day:
“… crs report to be files away and custoerm (sic) going to be asked to apply for dsp. No further medical information may be required as sufficient information present from occ psy report, csp report and crs report to manifest dsp…” (page 42 of The Computer Records)
10. I asked the parties to inform me what was intended by “manifest”. Ms Anagnos, solicitor, of the Welfare Rights Centre who represented Mr Foster, referred me to certain parts of the Guides to Social Security Law. I noted that at The Guide 3.6.10 Qualification for DSP, 3.6.2.40 Manifest Grants & Rejections for DSP - 1.1.M.30 Manifest (DSP), the definition was:
“For the purposes of DSP, manifest means that the person is clearly and obviously medically qualified for DSP, based on the presenting medical evidence (1.1.M.100) No additional medical assessment (1.1.M.70) is required for the decision-maker to form an opinion regarding medical qualification for DSP.
…
3.6.2..40
Some DSP customers are considered to be manifestly (1.1.M.30) qualified, because they clearly and obviously meet ALL the qualification criteria in section 94 of the Social Security Act. These claims can be granted WITHOUT further medical examination (1.1.M.110).”
11. What this meant was that on 26 February 2002, Centrelink recorded that it had an occupational psychologist’s report, and rehabilitation reports which satisfied it that Mr Foster was eligible for DSP without seeking further medical evidence. However, Mr Foster did not return the pack as he decided, perhaps unrealistically, that he wanted to work.
12. When Mr Foster first applied for DSP on 3 December 2003, (T14), he referred to his back problems, but also stated that: “become agitated, (in relation to interaction with others), have other thoughts (in relation to concentration), in bad state when arrive (at work or other appointments)”. Dr Clifford’s report in support of the application (T15), did not mention any psychiatric problems, and made the diagnosis of “Acute L3-4 Intervertebral Disc Lesion”. She also indicated in reply to the question: “The current impact of this condition on the patient’s ability to function is expected to persist for” by ticking the 3 – 24 months box, and indicated that within the next two years she expected the effects of the condition to fluctuate. Dr Clifford advised hydrotherapy and physiotherapy, and stated that perhaps she would refer Mr Foster to a spinal specialist. Dr Clifford did not mention L5 or spondylolythesis which Mr Foster also suffers and was diagnosed in 2004 by Dr Barnsley. This indicated to Centrelink that the condition had not yet been fully treated and stabilised, and Mr Foster’s application was rejected on that basis (T16). That decision was affirmed by an Authorised Review Officer. Mr Foster did not appeal to the SSAT.
13. However during 2004, Mr Foster was assessed by HSA, and on 25 September he was invited to lodge another DSP application. When Centrelink granted him grant him DSP from 6 October 2004, Mr Foster appealed the decision of Centrelink because he thought he should have been eligible for DSP from an earlier date, at least from 14 May 2003, which was the date CRS stated that it declined to offer him a rehabilitation program. His application was refused, and Mr Foster eventually exercised his right to appeal to the Social Security Appeals Tribunal (the SSAT).
14. On 10 February 2006, the SSAT found that 20 November 2003 should be the start date for Mr Foster’s grant of DSP, on the basis of the application of section 15(4A) of the Administration Act, and the substitution of one claim for another.
15. The Secretary appealed the decision of the SSAT to the AAT which set aside the decision of the SSAT, and held that sections 109 and 152 of the Administration Act prevented arrears of DSP being paid to Mr Foster. The Tribunal also held that section 15(4A) of the Administration Act did not apply in Mr Foster’s case. On 12 July 2006, the Tribunal restored the start date which Centrelink had found applied, being 6 October 2004.
16. Mr Foster appealed to the Federal Court which allowed the appeal by consent of the parties, noting that “the Respondent accepts that there has been an error of law in the Administrative Appeals Tribunal decision in that the Tribunal failed to consider whether s12 of the Social Security (Administration) Act 1999 applied to the applicant’s circumstances.” The Federal Court remitted the matter which I have now reheard.
17. I had to decide whether Mr Foster’s start date for DSP could be backdated, in particular whether the start date should be 26 February 2002, or 19 November 2003 or some other date. I had to decide what the correct start date was for Mr Foster to commence receiving DSP.
18. Based on all the evidence and the case law, I have been unable to be satisfied that Mr Foster’s DSP should be commenced at a date earlier than 6 October 2004, as the medical evidence did not satisfy me that the conditions he suffers had been fully diagnosed, treated, and stabilised before that date.
19. The Secretary who was the Applicant at the Tribunal hearing before me, was represented by Ms L Combes, solicitor of the Australian Government Solicitor, and Ms H Schuster, advocate of the Secretary. Mr Foster, the Respondent in these proceedings was represented by Ms D Anagnos, solicitor of the Welfare Rights Centre. Both parties prepared extensive documentation for the hearing for which I am indebted.
ISSUES BEFORE THE TRIBUNAL
20. The issue before the Tribunal was whether Mr Foster’s commencement date for DSP can be held to be before the grant, which was dated 6 October 2004.
DID MR FOSTER QUALIFY FOR DSP BEFORE 6 OCTOBER 2004
21. Mr Foster appealed the decision to start his DSP from 6 October 2004, granted on the basis of an assessment dated 8 September 2004 by HSA, which assigned him 10 points for his back condition and 10 points for a personality disorder (T26). I noted that Mr Foster has been receiving income support benefit since he left paid employment in 1999, and was exempted from all types of activities on the basis of his health from 25 November 2003 to the date of the grant of DSP in October 2004. Mr Foster relied on that to maintain that he was not able to work during that time.
22. Mr Foster believes he has been qualified for DSP either from 26 February 2002, or from May 2003, or at least from 19 November 2003.
23. The SSAT found that Mr Foster was qualified for DSP on 20 November 2003, on the same grounds as he was qualified on 6 October 2004 when his DSP commenced. The SSAT applied the tests in section 15(4A) of the Administration Act to transfer the benefit Mr Foster was receiving to DSP, with the start date of 20 November 2003.
24. As I have already stated, to qualify for DSP, a person must, pursuant to section 94(1) of the Act, have a physical, intellectual or psychiatric impairment of 20 points or more under the Impairment Tables, and have a continuing inability to work. Before being able to rate any impairment points, a condition a person suffers and claims for, must have been fully documented and diagnosed, and the condition must have been investigated, treated and stabilised. As relevant, section 94(1) of the Act follows.
“94 Qualification for Disability Support Pension
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;
…”
Making a Claim
25. The usual way to obtain a benefit is to make an application (sections 41, 42 and clauses 2 - 4 of Schedule 2 of the Administration Act, and the general rule is that a payment of benefit will be made from the date of application if the person is appropriately qualified. There are however exceptions which can be applied pursuant to section 15(4A) of the Administration Act as the SSAT did, and section 12, and in situations where the application for one benefit can be deemed to be a claim for another more suitable benefit.
26. Section 15(4A) of the Administration Act follows:
“ (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.”
27. It is undisputed, and I have noted that Mr Foster did not appeal the initial Centrelink decision not to backdate his DSP until more than 13 weeks after it was made. Neither did he appeal to the SSAT until more than 13 weeks after the decision of the Authorised Review Officer. Sections 109 and 152 of the Administration Act may restrict the application of sections 12 and 15(4A) of the Administration Act. The Secretary argued that even if Mr Foster had been qualified for DSP at an earlier date, the final paragraph of section 15(4A) provides that only if the Secretary, (or in this case the Tribunal standing in the shoes of the Secretary), is satisfied that it is reasonable, that the section be applied, it may do so. The Applicant argued that even if Mr Foster were qualified, his applications were outside the 13 week prescribed period, and accordingly it would not be reasonable to apply section 15(4A) of the Administration Act.
28. That may be so, but what is more important is that in order to be able to substitute one claim for another, or for Mr Foster to be eligible for DSP at an earlier date, I have to be satisfied that he was or became qualified on the date at which he claims he was qualified for DSP.
29. Section 12 of the Administration Act provides for transfers between certain payments under specific circumstances. As relevant the section follows:
"12 Certain transfers between payments
(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.
(2) Subject to subsection (3), if:
(a) a person who has been receiving an income support payment ceases to receive the payment; and
(b) immediately after ceasing to receive that 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.
(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.”
30. Both Burgess v Secretary, Department of Family and Community Services [2004] FCA 134 and SDSS v Cooper (1990) 26 FCR 13 dealt with situations where one benefit was substituted for another.
31. I noted however, that Cooper was decided under different legislation, and a different set of circumstances where Ms Cooper who was receiving handicapped child’s allowance was about to turn 16, and could not have continued on the benefit she was receiving due to the age limit on that benefit. The Court in Cooper was concerned with the similarities between invalid pension (the predecessor to DSP), and the handicapped child’s allowance, a completely different set of circumstances from the present.
32. The Secretary submitted that the Guide to Social Security Law at 8.2.1. discusses the application of section 12 when transferring a person to DSP. The Secretary noted that the Guide emphasised that the section should only be applied in exceptional circumstances as there is a requirement that a separate claim be made, and that because specific qualification requirements must be met, a period of provisional grant to another benefit may be made while the claim is investigated. The Secretary submitted that the policy statement in the Guide is consistent with the statute, and the policy should be followed. The Secretary submitted that section 12 should not be applied in Mr Foster’s case because the medical and other evidence was equivocal at the relevant time.
33. I noted the discussion by the Tribunal in Halime v Secretary, Department of Employment and Workplace Relations [2007] AATA 1345 regarding the EM that introduced section 12. The Tribunal stated:
“We further note that social security legislation is beneficial legislation. Such legislation generally is read so as to favour the recipient of the benefit where there is doubt about the meaning of a provision. In support of a generous construction, we note that the Explanatory Memorandum (EM) that introduced section 12 gave as one of its aims that the Administration Act “more effectively meets its objectives of … customer service”. Further objectives described were consistency across payment types and facilitating movement between payment types. The amendments also aimed to “providing enhanced flexibility in how claims may be made”. Again, the EM said the amendments were generic and gave as an example “commencement provisions being events based rather then payment type based …”. We take all these expressions as supportive of the intention of the legislators to ease rather than restrict entitlements.”
34. I have noted the Secretary’s submissions, but make the point that Guidelines are not binding on me, mindful however, that unless they are inconsistent with legislation, or unless their application would produce an unjust decision in the circumstances of the particular case, they should be applied. (Re Drake and Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634.
35. However in order to decide whether section 12 or section 15(4A) should be applied in Mr Foster’s case to backdate his DSP to a date earlier than the grant on 6 October 2004, I must consider his medical situation, and any inability to work pursuant to section 94(1) of the Act. Unless Mr Foster met the tests for section 94(1) of the Act, and became qualified for DSP at a date earlier than 6 October 2004, his DSP cannot be backdated. There was no question Mr Foster qualified for DSP and satisfied the tests in section 94(1) of the Act on 6 October 2004. At that time, he was assessed as having ten points for his back and ten for his personality disorder and the relevant inability to work. In coming to a decision, I have to also further consider the report of Associate Professor Hayes (Exhibit R3).
The Situation Regarding 26 February 2002
36. The situation regarding 26 February 2002, is that Centrelink sent Mr Foster a DSP claim pack, inviting him to claim DSP. He did not return the pack as he said that he wanted to work, and he had trouble filling out the forms. That indicates that he considered he had the ability to work, although he had not worked since 1999, and had been on benefits since then.
37. Of significance in this matter is the file note made by Centrelink on that day:
“… crs report to be files away and custoerm (sic) going to be asked to apply for dsp. No further medical information may be required as sufficient information present from occ psy report, csp report and crs report to manifest dsp…” (page 42 of The Computer Records)
38. What this meant was that on 26 February 2002, Centrelink recorded that it had an occupational psychologist’s report, and rehabilitation reports which satisfied it that Mr Foster was eligible for “manifest” DSP. As I have discussed in the paragraphs above, this meant that Mr Foster would have to undergo no further medical examinations before a grant of DSP would be made. However because the psychologist’s reports are no longer available, I am unable to be satisfied whether Mr Foster suffered personality disorder, severe depression or some other condition at that time, and how such diagnosis may have impacted on his qualification for DSP.
39. Ms Anagnos stated at paragraph 61 of the Respondent’s Amended Statement of Facts and Contentions that “The respondent acknowledges that there is now little medical information extant from the period leading up to the 26 February 2002 recommendation that Mr Foster be paid DSP.” She did however submit that Associate Professor Hayes indicated Mr Foster suffers conditions which are of a long standing nature. She submitted that these have affected his life and been stabilised over a long period.
40. I noted however that Associate Professor Hayes did not opine whether Mr Foster’s depression was documented, investigated, and fully treated, or whether it had stabilised, neither whether an impairment rating could be given prior to 6 October 2004.Without indicating a date, Associate Professor Hayes did however opine: “The condition of depression has minor effects on the ability to work and the impairment of itself would not prevent full-time work.”
41. I have considered all the medical evidence of which there was little available to make a decision about whether Mr Foster was qualified for DSP on 26 February 2002. I noted Mr Foster’s evidence was that he has suffered back pain since his teenage years, and that he had a bicycle/motor vehicle accident in 1995 which affected his back.
42. Unfortunately any material which may have supported his psychological claim (including the report of occupational psychologists and a psychiatrist whom Mr Foster saw monthly for a year in 2001), have been lost, although Mr Foster was able to obtain the CRS reports directly. Mr Foster said that he had been prescribed Zoloft, an anti-depressant, but had stopped taking it because he felt that he was not in control of himself when he took it. The CRS reports are dated 2003 and do not impact upon the 2002 period, and as I have noted below, the CRS officer recommended Mr Foster seek medical treatment to stabilise his injuries or participate in a pain management program to cope with pain before being accepted on to a program. This indicated that his conditions had not yet been fully treated or stabilised, and thus that he could not have qualified for DSP at that time.
43. I have noted the SSAT in paragraph 18 of its decision, stated: “It (the SSAT) has also noted why all the relevant information might not have been made available to Centrelink at the time of Mr Foster’s first claim for disability support pension. It has also noted that the nature of Mr Foster’s disabilities has most probably accounted for his failure to lodge various requests for review in a timely manner or at all.” I concur entirely that Mr Foster has experienced difficulties, noting however that his first claim for DSP was made on 3 December 2003.
44. I am not satisfied from the material before me that Mr Foster was qualified for DSP in 2002, and cannot therefore backdate his DSP to that period by the application of either section 15(4A) or section 12.
45. Accordingly I moved to consider whether Mr Foster was qualified for DSP in May 2003, 19 November 2003 or at any other time.
The Situation Regarding 13 May 2003 and 19 November 2003
46. The report at Exhibit R2, dated 13 May 2003 indicates amongst other things, that Mr Foster was seeing a psychiatrist monthly for a year in 2001, but that he felt it did not assist him. There is nothing further in the way of psychiatric material at that time, except the CRS officer’s record of Mr Foster telling her that he was susceptible to depression, and he did not believe he had behavioural or psychological issues, but that other people had told him he behaved aggressively. Mr Foster also complained about back and stomach pain.
47. The conclusion drawn by the CRS officer was a recommendation Mr Foster seek medical treatment to stabilise his injuries or participate in a pain management program to cope with pain before being accepted on to a program. She also recorded that he would benefit from anger management training.
48. I find on the basis of the CRS report that Mr Foster’s conditions had not been fully diagnosed, treated or stabilised by the time of the CRS reports in May 2003. Accordingly he did not meet the tests for DSP in section 94(1) of the Act in May 2003. I cannot therefore find that I can backdate his DSP to that period by the application of either section 15(4A) or section 12.
49. I then moved to consider whether Mr Foster qualified for DSP on 19 November 2003, noting that he first applied for DSP on 3 December 2003 (T14). Ms Anagnos submitted that Mr Foster relied on substantially the same conditions for his first DSP application as for his second in 2004.
50. I noted that in his December 2003 application, Mr Foster referred to his back problems. He told me that he continued to tick the box in the Centrelink forms which indicated he was unfit for work in July 2003 and for the months following because he was waking up every morning feeling as though he had been bashed up, “like hit in the ribs with a lump of wood all night.” Mr Foster also stated in the application that: “become agitated, (in relation to interaction with others), have other thoughts (in relation to concentration), in bad state when arrive (at work or other appointments)”. Unfortunately Dr Clifford’s report in support of the 2003 application (T15), did not mention any psychiatric problems.
51. Ms Anagnos submitted that Centrelink implicitly accepted the fact that Mr Foster suffered from a psychiatric condition since his claim for Newstart Allowance (in 1999), as he was referred to Centrelink’s psychologists, rehabilitation assessors and disability-specific services providers while in receipt of Newstart Allowance. Ms Anagnos submitted that that as his condition has clearly been of a long-standing and permanent nature, it can also be said to have attracted an impairment rating of at least 10 points in November 2003. I noted the submissions but was mindful that the medical evidence did not satisfy me that Mr Foster attracted an impairment rating of at least 10 points for psychiatric or psychological conditions in November 2003.
52. I noted the evidence on Mr Foster’s DSP claim forms in 2003 and 2004 that his back condition was serious from at least 1995, following a bicycle/motor vehicle accident. He may well have had back problems for many years, but unfortunately, he does not possess any medical evidence concerning his back condition prior to 2003, and there was no medical evidence before me to satisfy me that any such condition had been fully diagnosed, treated and stabilised by 2003.
53. Dr Clifford who supported Mr Foster’s 2003 application made the diagnosis of “Acute L3-4 Intervertebral Disc Lesion”. She did not mention L5 or spondylolythesis which was later diagnosed by Professor Barnsley to whom she had referred Mr Foster. She also indicated in reply to the question: “The current impact of this condition on the patient’s ability to function is expected to persist for” by ticking the 3 – 24 months box, and indicated that within the next two years she expected the effects of the condition to fluctuate, advised hydrotherapy and physiotherapy, and that perhaps she would refer Mr Foster to a spinal specialist. This indicated that her opinion was the condition had not yet been fully treated and stabilised. Dr Clifford also stated that Mr Foster’s onset of “Acute L3-4 Intervertebral Disc Lesion” occurred in October 2003 and that it prevented Mr Foster from working any more than 8 hours per week and was likely to be temporary (my emphasis)(T13).
54. Mr Foster’s application for DSP was rejected on the basis of those reports (T16).
55. Dr Collis reported on 26 November 2003 indicating observations of a contemporaneous X-ray and scan of the lumbar spine. The report concluded “Left L5 spondylosis defect with contralateral stress reaction in the pedicle/lamina. Right sided L3/4 postero-lateral disc bulging resulting in right sided nerve root compression at this level”. (T12)
56. On 1 December 2003, a Centrelink record (Exhibit R1/6) indicated Mr Foster’s medical condition was “Musculo-skeletal Disorder – Permanent”. There was discussion at the hearing of whether the word “permanent” had been added later. I have no basis for making further comment about that.
57. Other reports which are however not directly applicable to the 2003 claim because they were not prepared until 2004 and later, were those of Associate Professor Barnsley dated 23 April 2004, detailing Mr Foster’s back pain since the age of 14, his numerous back injuries, lower back, neck and leg pain, bladder problems and injuries in the following parts of his back: L3/4 nerve root impingement; L4/5 disc bulge; L5 disc bulge and L5 spondylolysthesis defect. (Exhibit R3). There was a letter of Dr Damodaran dated 16 December 2004, and sent to Dr Clifford, which confirmed that Mr Foster was still experiencing low and mid back pain. (Exhibit R3)
58. I was mindful that Centrelink continuously exempted Mr Foster from all types of activities on the basis of his health from 25 November 2003 to the date he was eventually granted DSP in October 2004. Ms Anagnos submitted this was an acceptance of Mr Foster’s inability to work.
59. I am satisfied from the Centrelink records that Mr Foster suffered back pain pre-dating his 2003 claim, and may have suffered the psychiatric conditions of either personality disorder or depression, but I cannot be satisfied from the medical reports as discussed above, that any conditions Mr Foster suffered before 2004, had been diagnosed, treated and stabilised in order to meet the tests in section 94(1) of the Act.
60. Associate Professor Hayes noted that Mr Foster’s diagnosis of personality disorder does not appear to have been made by a psychiatrist or other medical doctor. She opined that “there was no specific personality disorder defined for Mr Foster” and considered that he does not suffer personality disorder. She did find however that Mr Foster suffers severe depression which affects his everyday activities and his motivation. She also held that he exhibits features of obsessive-compulsive disorder. Professor Hayes did not nominate a Table under which she would rate Mr Foster at 10 impairment points for his psychiatric condition, and did not nominate a date of onset.
61. I have noted that Associate Professor Hayes commented on Mr Foster’s low Verbal IQ scores and his low Adaptive Behaviour scores. Mr Foster’s combined IQ score of 85 is marginally higher than the minimum combined IQ score of 79, so that he could be attributed with points under the Impairment Table used for Intellectual Disabilities. Dr Hayes confirmed the IQ result Mr Foster told her he had received when tested by a psychologist in Chatswood which was in the low average range of ability.
62. Professor Hayes has not indicated the onset of Mr Foster’s depression, although she referred to him being prescribed Zoloft (for depression which he ceased taking due to the side effects), prior to 2000. She opined that he should be given 10 impairment points for his depression but did not specify under which Table. I was mindful Mr Foster has in any case been allocated 10 points for his psychiatric disorder (albeit for a different diagnosis), in relation to the grant of DSP in October 2004. Professor Hayes’ report did not assist to identify a different date.
63. I have also noted the evidence regarding the enuresis which has been treated over a period of time from 1997 (Drs Wines and El Gamal), and which appears to have been a life long condition. It has no doubt has caused Mr Foster problems, but did not prevent Mr Foster from working in paid employment until 1999. No doctor has so far given him an impairment rating for that condition. I have noted that Mr Foster has not made claims in regard to hearing problems in relation to the DSP.
64. Having reviewed the medical and other evidence, I am not satisfied that any conditions Mr Foster suffers were diagnosed, treated and stabilised by the time of his first application for DSP in 2003. If they were, I could apply sections 15(4A) or 12 of the Administration Act in order to transfer the benefit he was then receiving, and backdate Mr Foster’s DSP.
Application of sections 15(4A) and 12 of the Administration Act
65. In order to fully consider sections 15(4A) and 12 of the Administration Act to decide whether Mr Foster’s DSP can be backdated, I have already noted above that he did not appeal the initial Centrelink decision not to backdate his DSP until more than 13 weeks after it was made. Neither did he appeal to the SSAT until more than 13 weeks after the decision of the Authorised Review Officer. Sections 109 and 152 of the Administration Act may restrict the application of sections 12 and 15(4A) of the Administration Act. The final paragraph of section 15(4A) provides that only if the Secretary, or in this case the Tribunal standing in the shoes of the Secretary, is satisfied that it is reasonable, that the section be applied, it may do so.
66. In relation to section 15(4A), if Mr Foster made a claim for an income support payment (the initial claim), and on the day on which the initial claim was made, he was qualified for another income support payment (the other income support payment), and subsequently made a claim for the other income support payment, (the later claim), and the Secretary (or in this case, the Tribunal), was satisfied that it is reasonable that this subsection be applied, then Mr Foster would be taken to have made the later claim on the day on which the initial claim was made. In summary it means that if on the day on which Mr Foster’s initial claim was made, he was qualified for DSP, then provided I was satisfied that it would be reasonable to do so, I could deem his DSP claim to have been made as the initial claim, that is the DSP could be backdated. However, as I was not satisfied that Mr Foster either became, or was qualified for DSP at any time prior to making his claim on 29 September 2004, I cannot apply section 15(4A) to backdate his claim.
67. Section 12 of the Administration Act provides for transfers between certain payments under specific circumstances. It provides that if Mr Foster is receiving an income support payment and while receiving the payment, becomes qualified for another income support payment (the other payment) and the Secretary, or in this case the Tribunal determines that he is to be transferred to the other payment, he is taken, for the purposes of the social security law, to have made a claim for the other payment on the day on which he became qualified for the other payment (the DSP in this case). The crucial point is of course that the income support recipient, Mr Foster must have become qualified for DSP at some point before 6 October 2004. As I have found he did not, I cannot apply section 12 to transfer him from the payment he was receiving to DSP at any time before 6 October 2004.
DECISION
68. The Tribunal sets aside the decision of the Social Security Appeals Tribunal dated 13 December 2005, and in substitution finds that the start date for Mr Foster’s Disability Support Pension is 6 October 2004.
I certify that the 68 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member.
Signed: .............[sgd]...................................................................
Associate
Date of Hearing 22 November 2007
Date of Decision 3 January 2008
Solicitor for the Applicant Ms L Combes, Australian Government Solicitor
Solicitor for the Respondent Ms D Anagnos, Welfare Rights Centre
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