Franks; Department of Family and Community Services

[2001] AATA 738

DECISION AND REASONS FOR DECISION [2001] AATA 738

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2001/340

GENERAL ADMINISTRATIVE  DIVISION       )          
           Re      SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES        
  Applicant
           And    CYRIL FRANKS    
  Respondent

DECISION

Tribunal       Mr K L Beddoe (Senior Member)

Date24 August 2001 

PlaceBrisbane

Decision      The Tribunal affirms the decision under review.         
  (Sgd) K L Beddoe
  Senior Member

Decision No: 738/2001
CATCHWORDS
SOCIAL SECURITY – Disability Support Pension – psychiatric confinement – whether  undergoing a course of rehabilitation
Social Security Act 1991 s 23, 1158
Mental Health Act 1974 (Qld) s 34
Department of Family and Community Services and Fairbrother (1999) 30 AAR 93
Pardo and Department of Family and Community Services (2000) 32 AAR 381
Bulsey and Department of Social Security (1993) 31 ALD 621
Blunn v Bulsey (1993) 53 FCR 572

REASONS FOR DECISION

24 August 2001                 Mr K L Beddoe (Senior Member)            

1. The applicant suspended payment of Disability Support Pension to the respondent.  In a decision dated 28 March 2001 the Social Security Appeals Tribunal set aside the decision and substituted a decision to the effect that the respondent was entitled to continued payment of the pension.  The applicant appeals that decision.

2. Section 1158(1) of the Social Security Act 1991 ("the Act") provides that a social security pension is not payable if the person (otherwise entitled to payment) is:

1. in gaol; or

(ii)  undergoing psychiatric confinement because the person has been charged with committing an offence.

1. By virtue of section 23(5) of the Act a person is in gaol if the person is in one of the circumstances set out in the sub-section.

2. More relevant to the present case is section 23(8) of the Act which provides that "psychiatric confinement" in relation to a person includes confinement in:

   (a)      a psychiatric section of a hospital; and

   (b)any other place where persons with psychiatric disabilities are, from time to time, confined.

3. Sub-section 23(8) is subject to subsection 23(9) which reads as follows:

   "The confinement of a person in a psychiatric institution during a period when the person is undertaking a course of rehabilitation is not to be taken to be "psychiatric confinement".

1. At the hearing Mr Kanowski represented the applicant and Ms Heyworth-Smith appeared for the respondent. The documents lodged in the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were before the Tribunal as the T documents.  Oral evidence was given by Ms Kearney, a Social Worker at the Baillie Henderson Hospital.

2. The facts of this case are generally not in dispute and may be summarised as follows.  The respondent had been in receipt of a Disability Support Pension for some time before he was charged with an indictable offence.

3. The respondent was apparently remanded in custody at the Arthur Gorrie Correctional Centre until 12 April 2000 when the Mental Health Tribunal found that the respondent was suffering unsoundness of mind and was not fit to plead at his trial.

4. The respondent was then transferred to the Baillie Henderson Hospital as a restricted patient and he remains so.  It seems that the criminal proceedings in relation to the respondent have been deferred indefinitely and will remain so while the respondent remains unfit to stand trial.

5. I understand the Baillie Henderson Hospital to be a psychiatric hospital but it is not a place declared to be a prison under the Corrective Services (Establishment of Prisons) Regulations 1992.

6. The respondent has been diagnosed with a degree of Korsakoff's Syndrome.  He is reported as being of below average intelligence with limited education and has literacy and numeracy deficits.The respondent has been diagnosed with a degree of Korsakoff's Syndrome.  He is reported as being of below average intelligence with limited education and has literacy and numeracy deficits.

7. He is at the Baillie Henderson hospital formally for the purpose of psychiatric assessment but he has also participated in a rehabilitation program.  The program includes a wide range of rehabilitation activities suited to the respondent and designed to assist his long term prospects.  Improvements have been noted in short and long term memory function and organisational ability (T18).  There is also a diagnosis of alcohol abuse and low grade chronic Major Depression outside the alcohol abuse (T18).

8. Ms Kearney said in her evidence that the respondent is confined to his ward because of the order under the Mental Health Act.  He does have restricted leave conditions following review by the Patient Review Tribunal.  From March 2001 he has been allowed escorted town leave.  He is also allowed some attendance at sporting facilities and can also attend rehabilitation activities (art classes) on the hospital campus escorted by a nurse.  He conducts gardening activity leading to him selling the produce and also produces ginger beer for sale.  These activities are essentially rehabilitative in character and are designed to give him access to money he has earned.

9. The period of detention at the hospital is uncertain.  The respondent's progress is monitored each three months by the Patient Review Tribunal and it will be a matter for that Tribunal as to when he is ready to be released from the hospital.  It follows that the rehabilitation activities are being provided for an uncertain period because they will continue while the respondent remains at the hospital pursuant to the order of the Mental Health Tribunal.
   The Applicant's Submissions

10. The pension is not payable to the respondent because he is a person undergoing psychiatric confinement being a person charged with committing an offence (s 1158(1)).

11. The issue is whether section 23(9) of the Act operates to deem the respondent not to be in psychiatric confinement. That depends upon a finding that the respondent is undertaking a course of rehabilitation. The applicant submits that the respondent was not undertaking a course of rehabilitation and section 23(9) does not operate in this case.

12. The undisputed fact of rehabilitation being a component of the respondent's treatment at the hospital is not determinative of whether the respondent was undertaking a course of rehabilitation.  See Re Fairbrother(1999) 30 AAR 93, contra Re Pardo(2000) 32 AAR 381.
    The Respondent's Submissions

13. The respondent was undertaking a course of rehabilitation within the terms of section 23(9). In this regard the decision in Re Pardois to be preferred to the decision in Re Fairbrother.  The decision in Re Pardo accords with the beneficial intent of the legislation and accords with the decisions in Re Bulsey and DSS (1993) 31 ALD 621 and (on appeal) Blunn v Bulsay(1993) 53 FCR 572.

14. To follow the decision in Re Fairbrother would result in unfairness to the respondent.  If he had remained in custody of Queensland Correctional Services he would have received remuneration for work or received benefits if on remand.  If his disabilities were physical rather than mental he would be entitled to benefits.

15. Section 34 of the Mental Health Act 1974 (Qld) contemplates a course of rehabilitation with regular reviews by the Patient Review Tribunal with an initial determination at the end of 12 months as to the likelihood of the person being fit for trial within a reasonable time. Further reviews are provided for after the first 12 months. Ms Kearney's evidence establishes that these processes represent a course of rehabilitation undertaken by the respondent.
    Consideration

16. Section 23(9) clearly differentiates between confinement in a psychiatric institution per se and confinement in a psychiatric institution to undertake a course of rehabilitation. The sub-section will only operate in the latter circumstance.

17. Section 34 of the Mental Health Act 1974 (Qld) sets out the procedure upon a finding that a person is unfit for trial. The person is detained as a restricted patient in hospital with a clear inference that the person is to receive appropriate treatment and rehabilitation with a view to the Patient's Review Tribunal and the Mental Health Tribunal eventually determining fitness for trial after treatment and rehabilitation. That is, in my view, a clear intention of the legislation to be drawn from a fair reading of section 34.

18. The difficulty with this case is not to determine whether the respondent was undergoing rehabilitation while detained under section 34. Clearly he was – that is made clear by the evidence of Ms Kearney, the Social Worker.

19. The question is whether there is a distinction to be drawn between a course of rehabilitation of indefinite duration as contemplated by section 34 and a course of rehabilitation of a finite duration eg 12 months.

20. In Re DFCS and Fairbrother (1999) 30 AAR 93 the Tribunal decided that section 23(9) referred to a course of rehabilitation of finite duration. At page 97 the Tribunal (Deputy President Blow) said "I think the use of the word 'period' in conjunction with the use of the term 'course of rehabilitation' makes it clear that Parliament had in mind a formal course of rehabilitation with a finite duration, a structure, a beginning and an end".

21. The applicant adopted the Deputy President's dicta in submissions to the Tribunal (Senior Member J Handley) in Re Pardoand DFCS (2000) 32 AAR 381 at 393-4. The submission was rejected on the basis that the words "a period" is used in section 23(9) should be interpreted as meaning the duration within which a person undertakes a course of rehabilitation. It may be flexible and may be reviewed from time to time.

22. I am in basic agreement with Senior Member Handley.  In my view the words "during a period" are to be construed so as to require a temporal connection from time to time between the confinement in a psychiatric institution and the undertaking of a course of rehabilitation.

23. Provided the confinement and the undertaking of the course of rehabilitation are contemporaneous the sub-section will operate to exclude the person from the operation of sub-section 23(8) unless it can be said that rehabilitation which is determined on a flexible basis such as day to day or week to week is not a course of rehabilitation. I so not think that is an appropriate interpretation of the words. Rehabilitation of persons with psychiatric disabilities could not, in my view, be laid out as a week by week program as might be appropriate for a person with physical disabilities. It cannot be the intention of beneficial legislation to provide for the exclusion from the operation of section 1158 on a basis that would have little regard to the real life circumstances likely to occur from day to day. As Senior Member Handley said in Re Pardo (at 394) the restoration of a person's potential will vary from person to person. It must be added that this is even more so in relation to psychiatric illness.

24. I am satisfied that the respondent was not undergoing psychiatric confinement, as defined, during the relevant time, so that section 1158(1) of the Act does not operate to deny payment of the pension.

25. For these reasons the decision of the Social Security Appeals Tribunal was correct and will be affirmed.

    I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of Mr K L Beddoe (Senior Member)

    Signed:         .....................................................................................
      Associate

    Date/s of Hearing  29 May 2001
    Date of Decision  24 August 2001
    For the Applicant  Mr Kanowski , Departmental Advocate
    For the Respondent                 Ms Heyworth-Smith, Counsel