Gerantonis and Secretary, Department of Family and Community Serv Ices
[2003] AATA 1086
•30 October 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 1086
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2003/351
GENERAL ADMINISTRATIVE DIVISION ) Re MINAS GERANTONIS Applicant
And
SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Mr. S. Webb, Member Date30 October 2003
PlaceSydney
Decision The decision under review is set aside and, in substitution therefor, the Tribunal decides the Applicant is entitled to be paid a Disability Support Pension from 17 March 1999.
[Sgd] Mr S. Webb, Member
CATCHWORDS
SOCIAL SECURITY - disability support pension – 1991 gun shot injury – left upper and lower limb impairments and organic personality disorder – claim for disability support pension lodged on 17 March 1999 - disability support pension granted from 1 March 2002 – whether Applicant qualified for disability support pension prior to the date of grant – whether start day is correct – decision under review set aside.
LEGISLATION
Social Security Act 1991,section 94, 100, 106, Schedule 1B
Social Security (Administration) Act 1999, sections 42, 43, 109, Schedule 2
REASONS FOR DECISION
30 October 2003 Mr. S. Webb, Member 1. This application by Mr Minas Gerantonis (“the Applicant”) is for review of the decision of the Social Security Appeals Tribunal (“the SSAT”), dated 13 February 2003 (T2), to affirm the decision of an authorised review officer (“ARO”), dated 20 November 2002 (T19, f48), to grant a Disability Support Pension (“DSP”) from 1 March 2002. The ARO set aside the decision of a delegate of the Secretary, Department of Family and Community Services (“the Respondent”), dated 29 April 2002 (T18), to reject the Applicant’s claim for DSP. On 12 July 1999, the delegate affirmed a primary decision to reject the Applicant’s claim for DSP (T7).
2. The matter was heard in Sydney on 11 September 2003. At the hearing the Applicant represented himself and the Respondent was represented by Ms J. Green, an advocate from Centrelink’s Service Recovery team. The following materials were taken into evidence and labelled.
exhibit description
T1 – T64Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975.
A1Statement by Ms M. Augoustinos dated 5 September 2003.
A2Statement by the Applicant’s cousin Maria dated 25 August 2003.
A3Centrelink ‘Preparing for Work Agreement’ dated 19 January 2001.
A4Statement by Mr Nicholas Karefylakis dated 10 September 2003.
A5Report by Dr E. Marel, Orthopaedic Surgeon, dated 18 August 2003.
A6Applicant’s bundle of medical documents.
A7Applicant’s bundle of documents.
A8Letter by Ms Claire Vernon dated 7 June 2002.
R1Centrelink Historical Document List report dated 12 August 2003.
factual background
3. The following information is provided for background and is not in dispute between the parties.
4. The Applicant was born on 5 April 1970.
5. On 3 May 1991 he sustained a gunshot injury to his neck and underwent right carotid artery repair (T22).
6. On 5 June 1992 the Applicant commenced receiving Sickness Allowance. On 9 July 1992, this allowance was temporarily cancelled because the Applicant was overseas from 9 July 1992 until 22 August 1992. However, it was reinstated on review.
7. The Applicant received Sickness and Job Start Allowances from 31 August 1992 until 15 June 2000. He engaged in temporary employment performing the duties of a courier and a kitchen hand for short periods in 1996.
8. On 17 March 1999 the Applicant lodged a claim for DSP (T3) that was rejected on 12 July 1999 (T7). On 7 July 1999, Dr M. Murphy, a Health Services Australia (“HSA”) medical adviser, reported that the Applicant was fit for employment in certain occupations and that his impairments warranted a total of 5 Impairment Points under Table 3 of the Tables for the Assessment of Work-related Impairment for Disability Support Pension (“the Impairment Tables”) at Schedule 1B of the Social Security Act 1991 (“the SS Act”) (T40).
9. On 20 July 1999 the Applicant requested a review of the decision to reject his claim for DSP (T8).
10. On 17 April 2000 Dr H. Fitzgerald, an HSA medical adviser, assessed the Applicant’s impairments at 15 Impairment Points under the Impairment Tables, noting that the Applicant required assessment by a neuropsychologist (T43).
11. On 26 May 2000 Ms N. Rose, an HSA Clinical Psychologist, reported (T44, f162):
“There is no evidence of cognitive dysfunction or mood disturbance based on his history, presentation or reported symptomatology as the result of his injury sustained in 1991.”
12. On 20 June 2000 the Applicant was granted a Carer Allowance (T9) while he was caring for his mother. This Allowance was cancelled on 1 January 2001 and Newstart Allowance was granted on 4 January 2001.
13. On 1 August 2001 Dr N. Rose reported (T46, f180):
“On the presentation today, this customer is physically capable of work such as sales assistant, office work, factory work, ticket/toll collector and driver etc. He should be in work where he is able to adjust his postures and stretch, and where there is no heavy lifting and carrying. His main hindrance to work is probably his attitude. He may need assistance in the form of vocational training and rehabilitation, and understanding to find work, and hopefully he can adopt a more optimistic attitude. A question had been raised by a previous orthopaedic specialist in 1999 about a possible psychiatric impairment, after finding that he was physically fit for work. There was no evidence of this, and previous psychiatrist assessment according to the client have been normal.”
14. On 1 March 2002 the Applicant requested a review of the decision to reject his claim for DSP (Exhibit R1).
15. On 22 March 2002 Dr B. Forssman, an HSA senior medical adviser, reviewed the Applicant’s file and reported (T50, f186):
“He has now provided a new [Treating Doctor’s Report] completed by Dr Mitchell and dated 27th February 2002 and a letter from Dr Mitchell… The TDR has the same information contained within it as on previous reports, and HSA medical advisers have previously assessed all these conditions. This, therefore, does not add any new information that could justify any change to the previous recommendations.
Dr Mitchell’s letter reiterates this man’s medical conditions, and states, “If his latest application is rejected I would like to know on what grounds. I feel he is being unfairly treated and this treatment is causing a deterioration in his mental state.” However, she does not provide any objective evidence as to the deterioration in his mental state (such as a report from his treating psychiatrist), therefore this letter, also, does not give any justification to changing the original recommendation.”
16. On 29 April 2002 the Respondent informed the Applicant that the decision to reject his claim for DSP was affirmed (T18).
17. On 2 August 2002 Dr P. Chew, an HSA medical adviser, conducted a file review of the Applicant’s case in relation to Newstart Allowance and reported (T57, f196):
“As there has been a clear divergence of opinion with regards to his mental health and his fitness for work, an independent psychiatric review may well be prudent.”
18. On 18 September 2002 Dr G. George, Consultant Psychiatrist, reported (T59, f204):
“From a psychiatric point of view, he was tested on a mini-mental state examination and did not show any particular deficits. From a personality point of view, he seems to express a degree of general paranoia, which would tend to affect relationships and his general level of functioning. This may well be secondary to organic brain damage. In view of the subtle nature of the expression of symptoms, I believe that it would be valuable to gain a psychometric assessment of his present cognitive state. It is possible that an organic deficit could cause damage to his emotional state and personality.
Certainly, on a psychiatric examination I believe that he is probably, at least, capable of part-time work but his ability to engage in this would have to be confirmed through the results of psychometric evaluation.”
19. On 12 November 2002 Ms J. W. Kain, Clinical Psychologist, reported (T62, f211):
“Based on the current psychological evaluation, [the Applicant] is cognitively fit for full-time work in open employment. His mild neuropsychological impairment of problem-solving ability and concentration may cause intermittent work difficulties but there is no evidence for a significant brain injury impeding his ability to work.”
20. On 14 November 2002 Dr P. Kamenyitzky, Senior Medical Adviser, HSA, reported (T63, f225):
“This case was finalized (sic) after the customer underwent the requested assessment by an independent psychiatrist and psychologist.
…[T]he psychiatrist has noted that he has a paranoid personality disorder secondary to a significant injury in 1991. He has frequent mood swings and poor control of anger. I also note from a recent report by the treating psychiatrist that he is being treated with Zyprexa, an anti-psychotic drug.
…
He has a total impairment rating of 25 and is medically unfit for any full-time open employment in the foreseeable future.”
21. On 20 November 2002 an ARO decided to set aside the decision to reject the Applicant’s claim for DSP, granting pension from 1 March 2002 (T19, f48):
“After carefully looking at the matters presented in your case, as well as relevant parts of Social Security Law and policy guidelines, I have decided to change the decision to reject claim for Disability Support Pension. This is because after further medical appointments you have been found eligible to receive Disability Support Pension. This means that Disability Support Pension will be paid from 1 March 2002, being the date that you requested a review of the decision to reject your claim for Disability Support Pension. I do not consider that you were eligible to receive Disability Support Pension prior to that date as previous medical reviews found your impairment rating was less than 20 points and you were found to be fit for full time work. I have also noted that during the period June 2000 to January 2001 you were caring for your disabled mother. As you were able to care for a disabled adult, on a full time basis, I consider you would have been fit for full time work.”
22. By application of the Applicant the SSAT affirmed the decision under review on 13 February 2003 (T2), whereupon the Applicant made application to this Tribunal for review (T1).
legislation
23. The relevant legislation in this matter is the Social Security Act 1991, especially sections 94[1], 100[2], 106[3] and Schedule 1B, and the Social Security (Administration) Act 1999 (“the SSA Act”), especially sections 42, 43, 109[4] and Schedule 2[5].
[1] Appendix A, para iii
[2] Appendix A, para ii
[3] Appendix A, para i
[4] Appendix A, para v
[5] Appendix A, para iv
evidence of the applicant
24. The Applicant told the Tribunal his left arm, left hand, left leg and left foot are spastic because of the gun shot injury he suffered in 1991. He explained his coordination is affected and he cannot work with both hands. His evidence was that he has experienced agitation, poor concentration and sleep disturbance since the injury in 1991.
25. His evidence was that he wanted to work and would if he could. He stated that he had attempted to work as a Cuisine Courier and a kitchen hand in 1996 but had not been able to cope with the work. His evidence was that he cared for his Mother for six months when she was disabled, but had experienced difficulties with household chores, such as hanging out the washing. This, he explained, was because he could not use both arms and hands and had difficulty standing in one place for more than a few minutes. The Applicant gave evidence that he has difficulty concentrating and coping with stress. He said he found caring for his Mother very stressful.
26. The Applicant told the Tribunal he can drive a car but must be accompanied because of his spasticity and poor concentration. He told the Tribunal that the right side of his neck gets very hot and uncomfortable and he experiences intense headaches. His evidence was that his health deteriorated significantly between 1999 and 2002 and he experienced more headaches than he had previously and became more depressed. He told the Tribunal his right foot was cramped and clawed because of his injury, resulting in the fifth toe of the right foot being amputated on 28 July 2003.
27. The Applicant complained about difficulties dealing with Centrelink and being treated unfairly. He stated that he had requested a review of his case by an ARO repeatedly from 1999 without success until November 2002. He did not know the reason for this, he said, and it caused him great stress, which contributed to him becoming more depressed. He informed the Tribunal that he had spoken to a senior officer in the complaints section of Centrelink, but had not received a response to his complaint. He relayed that he meet with the Centrelink manager at Lakemba, but that the meeting had been hostile and nothing was resolved.
28. In a letter received by the SSAT on 13 February 2003 seeking review, the Applicant stated (T20, f53):
“The Centrelink decisions over the years have had a major impact on my well being…
Each time I expressed my concern at having my case examined by an Authorised Review Officer I was advised by Centrelink to continue providing them with additional medical documentation until the appropriate officers ‘looked into the case’.. The problem is that there never was any ‘appropriate officers’ looking into my case rather it was handed down from one inappropriate person to another.
I was frequently misled about the information I requested and was continuously delayed in receiving responses and correspondences from Centrelink.”
29. The Applicant stated that he became very frustrated and depressed because of the way he had been treated by Centrelink. He told the Tribunal that Dr Roberts diagnosed irreversible organic brain syndrome in 1992 and treated him for several months. Thereafter, the Applicant stated, he treated himself with natural and herbal therapies and did not receive any other treatment for the syndrome until he came under the care of Dr Takas in 2002.
submissions, consideration of the issues and findings
30. In order to qualify for the grant of a DSP the claimant must lodge a claim pursuant to section 11 of the SSA Act, or previous section 106[6] of the SS Act that was in force on 17 March 1999.
[6] Appendix A, para i
31. The Tribunal finds the Applicant lodged a claim for DSP on 17 March 1999. There is no evidence to support his contentions that he lodged other claims for DSP at other times prior to and after that date.
32. For the Applicant’s claim to succeed, he must be found to satisfy the qualifying criteria for DSP that are set out at section 94[7] of the SS Act. However, it is not sufficient to satisfy the qualifying criteria at any time following the lodgement of a claim for DSP. A person must qualify for a DSP either on the date of lodgement of the claim or within a thirteen week period thereafter (Schedule 2[8], SSA Act). In the Applicant’s case, as the SSA Act had not commenced when he lodged his claim for DSP, he must qualify for DSP within a period of three months after the date on which he lodged his claim (section 100[9], SS Act). The qualifying period in the Applicant’s case is from 17 March 1999 to 18 June 1999.
[7] Appendix A, para iii
[8] Appendix A, para iv
[9] Appendix A, para ii
impairments
33. In order to qualify for a DSP a person must have a physical, intellectual or psychiatric impairment (section 94(1)(a) [10] of the SS Act).
[10] Appendix A, para iii
34. The Tribunal is satisfied that the Applicant suffered from right-sided organic brain damage as a result of injury to the carotid artery causing an interruption to the blood supply to his brain in 1991. The Tribunal finds that the Applicant suffered and continues to experience consequential physical impairments in the form of spasticity in his left arm, left leg and left foot and an intellectual or psychiatric impairment, in the form of an irreversible organic brain disorder.
35. On 23 April 1992 Dr Roberts, Consultant Psychiatrist, reported (T28, f101):
“In terms of diagnostics [the Applicant] must be deemed to be suffering from an irreversible organic brain syndrome.
This has produced both physical effects namely that involving the left hand side of his body, it would be a factor in producing psychological effects.”
36. The Respondent did not dispute the existence of these impairments in the Applicant and the Tribunal finds he satisfies the requirements of section 94(1)(a) [11] of the SS Act.
[11] Appendix A, para iii
impairment ratings
37. It is necessary to rate each of the Applicant’s impairments under the Impairment Tables. A combined impairment rating of 20 points is required in order to qualify for DSP. Only impairments that are permanent can be rated.
38. The Tribunal is satisfied that the Applicant’s impairments are permanent, having been fully diagnosed, stabilised and treated. There is a question however, of whether the Applicant’s psychiatric impairment has deteriorated since 1999. Dr Roberts diagnosed an irreversible brain disorder in 1992 and the Tribunal is satisfied that condition persisted during all relevant periods. The Tribunal accepts the Applicant’s evidence that he has suffered from depression, mood swings and headaches, and has had difficulty sleeping, managing his emotions and coping with stress, since the injury in 1991.
39. Medical evidence concerning the effect of the Applicant’s intellectual and psychiatric impairment on the Applicant’s functioning and ability to work from 1992 to 2000 is scant. The Applicant did not seek medical treatment for the disorder or related psychiatric symptoms until he consulted Dr Takas, a Consultant Psychiatrist, on 29 April 2002 (T51), although there is evidence he consulted his treating general practitioners, Drs Mitchell and Papantoniou prior to that date (T47). He was not examined by an HSA psychologist for the purpose of DSP assessment until 26 May 2000 (T44).
40. What must be determined is the appropriate impairment rating for each claimed impairment during the qualifying period.
physical impairments – left arm and left leg
41. The relevant Impairment Tables for the assessment of the Applicant’s physical impairments are Table 3 concerning upper limb function and Table 4 concerning lower limb function.
42. On 7 July 1999 Dr Murphy concluded the Applicant’s left arm impairments warranted a 5-point rating under Impairment Table 3 and his left leg impairments warranted a NIL rating under Impairment Table 4 (T40, f138). Dr Murphy did not assess the Applicant’s intellectual or psychiatric impairment.
43. The Applicant’s impairments were not assessed by other medical practitioners during the qualifying period. However, subsequent assessments were conducted by Drs Fitzgerald (T43), Rose (T46), Papantoniou (T48) and Kamenyitzky (T63), who agree that the Applicant’s left arm impairment warranted a rating of 5 points under Impairment Table 3. The Tribunal is persuaded by this consistent evidence and so finds.
44. Drs Fitzgerald, Rose and Kamenyitzky concluded that the Applicant’s left leg impairment warranted a 10 point rating under Impairment Table 4. Dr Papantoniou considered a 20 percent rating appropriate. The evidence does not compel a conclusion that the Applicant’s left leg impairment became more severe after Dr Murphy’s rating of NIL points in 1999. The Tribunal accepts that it did not and is persuaded by the weight of the subsequent medical evidence that the Applicant’s left leg impairment warranted a 10 point rating under Impairment Table 4. Such a rating is consistent with the Applicant’s reported difficulties walking, squatting and with balance, strength and coordination.
intellectual or psychiatric impairment rating
45. There is no evidence before the Tribunal that the Applicant’s intellectual or psychiatric impairments were assessed during the qualifying period despite Dr Roberts’ 1992 diagnosis of irreversible organic brain disorder in his report dated 23 April 1992 (T28). At the time the Applicant was not receiving psychiatric treatment and, apparently, had not been assessed by a psychiatrist since consulting Dr Roberts in 1992.
46. Nonetheless, the Tribunal accepts the Applicant’s account of his symptoms during the period since his injury and the deterioration in his psychiatric condition since 1999. The Applicant’s reported symptomatology in relation to his intellectual impairment is consistent with that reported by Dr Roberts (T24 and T28). It is also consistent with the diagnosis reported by Dr George on 18 September 2002 (T59). Both Dr Roberts and Dr George recommended psychometric evaluation for the purpose of quantifying functional impairment.
47. Ms Jenny Wong Kain, Clinical Psychologist conducted a psychometric evaluation and reported on 12 November 2002 (T62, f210):
“His general cognitive ability is in the Low Average range of intellectual functioning and exceeds approximately 14% of adults his age. His verbal and nonverbal abilities are comparable and fall within the Low Average range. His premorbid level of intelligence is estimated to be within the Average range. His actual obtained IQ score is about 1 standard deviation, or about 15 points below the expected IQ score, suggesting that his cognitive and problem-solving abilities have been impaired…
[The Applicant] has a mild impairment of general problem-solving ability and concentration compared with premorbid abilities (Work-related impairment table 8). Reasonable judgement is usually made in daily activities and he remains independent with respect to adaptive functioning. He has no significant behavioural problems…”
48. Ms Wong’s evaluation is preferred over that of Ms Noelene Rose (T44). Ms Rose did not report using tests such as those used by Ms Wong when conducting the evaluation.
49. The Tribunal is satisfied that the Applicant’s intellectual impairment as measured by neurological function has been reasonably constant and stable since 1992. It is puzzling and of concern that this impairment in the Applicant was not subject to appropriate testing and evaluation for the purpose of rating his impairment during the qualifying period. Nonetheless, nothing that has been put in submissions compels a finding that the Applicant’s intellectual impairment has changed in any significant measure since 1999.
50. Accepting the evidence of Ms Wong and Dr Kamenyitzky in preference to that of Drs Fitzgerald, Rose and Papantoniou, the Tribunal finds the Applicant’s intellectual impairment warrants a rating of 10 points under Impairment Table 8. Drs Fitzgerald and Rose relied on Ms Noelene Rose’s psychometric testing of the Applicant whereas Dr Kamenyitzky relied on Ms Wong’s psychometric testing, which is preferred for reasons already stated. While Dr Papantoniou was the Applicant’s treating general practitioner, his assessment of intellectual impairment was not informed by any psychometric testing.
51. There remains the matter of rating the Applicant’s psychiatric impairment. The Tribunal is satisfied, on the balance of probabilities, that the Applicant’s psychiatric impairment did not warrant a rating greater than NIL under Impairment Table 6 during the qualifying period. On the Applicant’s own evidence his psychiatric condition caused mild but regular symptoms resulting in subjective distress causing minimal interference with function in everyday situations. His evidence that his psychiatric condition has deteriorated in the period since 1999 is supported by the fact that he commenced psychiatric treatment on 29 April 2002 in the care of Dr G. Takas (T51), more than three years after lodging his claim for DSP.
52. This being the case the Tribunal is satisfied that the Applicant’s physical, intellectual and psychiatric impairments warranted a combined rating of 25 points on 17 March 1999 and so finds. It follows that he satisfies section 94(1)(b) [12] of the SS Act.
[12] Appendix A, para iii
continuing ability to work
53. Dr Maniam examined the Applicant and reported on 19 August 1999 (T41, f140):
“The physical disability alone will not hinder this man from undergoing a retraining program, however, if in fact there is a profound psychiatric disorder, stemming from the injury which was life threatening then the whole picture will change, and instead of redeployment, this man will need to regularly undergo psychiatric counselling.”
54. Considering the psychiatric and psychometric evidence the Tribunal is satisfied that the Applicant’s impairments prevent him from working 30 or more hours per week or from participating in educational or vocational training. The Tribunal is persuaded in that regard by the evidence of the Applicant’s treating general practitioners, Drs Mitchell and Papantoniou (T45), his treating psychiatrist, Dr Takas (T53), and Dr Kamenyitzky, HSA Senior Medical Adviser, who found him “medically unfit for any full-time open employment in the foreseeable future” on 14 November 2002 (T63, f225).
55. This being the case the Tribunal finds the Applicant satisfied the requirements of subsections 94(1)(c) [13] of the SS Act. The Respondent conceded that the Applicant satisfies all other requirements of section 94 of the SS Act and the Tribunal so finds. It follows his claim for DSP must succeed.
[13] Appendix A, para iii
commencement day
56. It is necessary, therefore, to determine the commencement day for payment of DSP. The commencement day is to be worked out under Schedule 2[14] of the SSA Act.
[14].Appendix A, para iv
57. In cases where a claimant lodges an application for review of a decision and a favourable determination is made, section 109[15] of the SSA Act applies when calculating the date of the determination. The effect of the section is that in such circumstances a determination favourable to the claimant “takes effect on the day on which the determination embodying the original decision took effect”.
[15] Appendix A, para v
58. The Tribunal finds the Applicant was notified of the decision to reject his claim on 12 July 1999 and that the Applicant requested a review of that decision on 20 July 1999 (T8). It follows, therefore, that a determination favourable to the Applicant in response to his request for review must commence on the day the original determination took effect, that is on 17 March 1999.
59. The Tribunal finds the Applicant qualifies for DSP and that pension is to commence on 17 March 1999.
60. The Respondent failed to persuade the Tribunal there was any sound or reasonable basis in law to grant the Applicant DSP commencing on 1 March 2002. In the Respondent’s submission, it was contended that the Applicant requested a review of the decision on 1 March 2002, more than 13 weeks after the date on which he was notified of that decision. On the evidence it is clear that the Applicant did in fact request a review of the primary decision on 1 March 2002. However, it is also clear that this latter request was subsequent to the Applicant’s earlier request on 20 July 1999, which had not been finalised or progressed by the Respondent, and may be characterised as a reiteration of that request. The need to ‘back date’ the claim, if successful, was noted by an officer of the Respondent on 1 March 2002 (T15) but was not subsequently acted upon. It follows that the decision under review cannot stand, as there is no reasonable basis for determining 1 March 2002 as the start day for payment of DSP in the circumstances.
conclusion
61. Considering all the evidence, the submissions of the parties and the relevant legislation, the Tribunal is satisfied that the Applicant qualified for DSP on 17 March 1999 and DSP is payable from that date. The decision under review must be set aside.
62. Finally, the Tribunal notes the Applicant’s difficulty dealing with the Respondent in relation to his request for review of the primary decision at issue in this case. The Applicant noted in his application to the SSAT for review of the ARO decision (T20, f53):
“I received the Authorised Review Officers’ decision on 20 November 2002. I had on previous occasions requested for an ARO from both the Bankstown and Lakemba Centrelink offices to be appointed to independently review my case but that did not eventuate.
…
Each time I expressed my concern at having my case examined by an Authorised Review Officer I was advised by Centrelink to continue providing them with additional medical documentation until the appropriate officers ‘looked into the case’.. The problem is that there never was any ‘appropriate officers’ looking into my case rather it was handed down from one inappropriate person to another.
I was frequently misled about the information I requested and was continuously delayed in receiving responses and correspondences from Centrelink. Without the constant intervention of the Customer Relations Unit and my social worker, it would have been impossible to see any action taken by the Lakemba Centrelink office. I had approached The Welfare Rights Centre, the Commonwealth Ombudsman and the Legal Aid Commission for assistance but all advised me that I should wait for the Authorised Review Officers’ decision. This occurred prior to March 2002.”
63. The Tribunal does not find the reasons for the delay put forward by the Respondent to be compelling or consistent with the standards that can reasonably be expected from agencies of government when dealing with persons such as the Applicant in this case. That it took almost 3 years to finalise the Applicant’s request for a review in this case is troubling. Such a delay may be prejudicial to both parties, but especially to the Applicant, and may have contributed to the deterioration of the Applicant’s condition, as reported by Dr Mitchell (T45 and T49).
64. It is reasonable for a person in the Applicant’s circumstances to expect a request for the review of an administrative decision to be dealt with in a timely and transparent manner, being informed of progress and assisted to place all relevant information before the decision-maker. This is especially so in cases such as this, in which the decision under review has a direct effect upon the Applicant’s social security payments, which comprise his sole income. It is recommended that the Respondent take such action as is necessary to ensure that appropriate standards of performance are maintained when dealing with vulnerable claimants and to prevent the evident failures in this case from occurring in the future.
decision
65. The decision to grant the Applicant DSP from 1 March 2002 is set aside and, in substitution therefor, the Tribunal decides the Applicant is entitled to be paid DSP from 17 March 1999.
APPENDIX A
i. Section 106 of the SS Act states:
“106 Need for a claim
106(1)A person who wants to be granted a disability support pension must make a proper claim for that pension.
106(2) For the purposes of subsection (1), where:
(a)a claim for disability support pension is made by or on behalf of a person; and
(b)at the time the claim is made, the claim cannot be granted because the person is not qualified for that pension;
the claim is, subject to subsection 100(3), to be taken not to have been made.”
ii. Section 100 of the SS Act relevantly provides:
“100 Commencement day for disability support pension
General rule
100(1)Subject to this section, a person's provisional commencement day is the day on which the person claims the disability support pension.
…
Early claim
100(3) If:
(a) a person lodges a claim for a disability support pension; and
(b)the person is not, on the day on which the claim is lodged, qualified for a disability support pension; and
(c)the person becomes qualified for a disability support pension sometime during the period of 3 months that starts immediately after the day on which the claim is lodged;
the person's provisional commencement day is the first day on which the person is qualified for the pension and is an Australian resident and in Australia.
…”
iii. Section 94 of the SS Act sets out the qualification criteria for DSP.
“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;
(ii)the Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system; 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 has a qualifying residence exemption for a disability support pension; 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.
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 within the next 2 years; and
(b) either:
(i)the impairment is of itself sufficient to prevent the person from undertaking educational or vocational training or on-the-job training during the next 2 years; or
(ii)if the impairment does not prevent the person from undertaking educational or vocational training or on-the-job training--such training is unlikely (because of the impairment) to enable the person to do any work within the next 2 years.
94(3)In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:
(a)the availability to the person of educational or vocational training or on-the-job training; or
(b)if subsection (4) does not apply to the person--the availability to the person of work in the person's locally accessible labour market.
94(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 enable the person to do work, have regard to the likely availability to the person of work in the person's locally accessible labour market.
94(5) In this section:
educational or vocational training does not include a program designed specifically for people with physical, intellectual or psychiatric impairments.
on-the-job 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.
…”
iv. Under section 41 of the SSA Act the commencement day is the start day specified under section 42 of the SSA Act, which requires the start day to be worked out in accordance with Schedule 2 of that Act. Schedule 2 relevantly provides:
“Schedule 2—Rules for working out start day
PART 1
INTRODUCTORY
1 DEFINITIONS
In this Schedule, unless the contrary intention appears:
benefit means a social security benefit.
pension means a social security pension.
…
PART 2
GENERAL RULES
3 Start day—general rule
(1) If:
(a) a person makes a claim for a social security payment; and
(b)the person is qualified for the payment on the day on which the claim is made;
the person's start day in relation to the payment is the day on which the claim is made.
…
4 Start day—early claim
(1)
(a)a person (other than a detained person) makes a claim for a relevant social security payment; and
(b)the person is not, on the day on which the claim is made, qualified for the payment; and
(c)assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and
(d)the person becomes so qualified within that period;
the claim is taken to be made on the first day on which the person is qualified for the social security payment.
…”
v. “109 Date of effect of favourable determination resulting from review
109(1) If:
(a)a decision (the original decision) is made in relation to a person's social security payment; and
(b)a notice is given to the person informing the person of the original decision; and
(c)within 13 weeks after the notice is given, the person applies to the Secretary, under section 129, for review of the original decision; and
(d)the favourable determination is made as a result of the application for review;
the favourable determination takes effect on the day on which the determination embodying the original decision took effect.
(2) If:
(a)a decision (the original decision) is made in relation to a person's social security payment; and
(b)a notice is given to the person informing the person of the original decision; and
(c)more than 13 weeks after the notice is given, the person applies to the Secretary, under section 129, for review of the original decision; and
(d)the favourable determination is made as a result of the application for review;
the favourable determination takes effect on the day on which the application for review was made.”
I certify that the 65 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member
Signed: A. Krilis
AssociateDate of Hearing 11 September 2003
Date of Decision 30 October 2003
Representative for the Applicant Self RepresentedAdvocate for the Respondent Ms Jane Green
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