Giza and Secretary, Department of Social Services (Social services second review)

[2018] AATA 38

Giza and Secretary, Department of Social Services (Social services second review) [2018] AATA 38 (18 January 2018)

Division:GENERAL DIVISION

File Number(s):      2017/2499

Re:Richard Giza

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member D. J. Morris

Date:18 January 2018

Place:Melbourne

The Tribunal sets aside the decision, and in substitution decides that the Applicant was qualified for disability support pension from 8 October 2014.

[sgd]........................................................................

D. J. Morris, Senior Member

SOCIAL SERVICES – Disability Support Pension (DSP) – whether qualified – whether impairments fully diagnosed, fully treated and fully stabilised – several medical conditions – severe functional impairment – Newstart Allowance paid while DSP claim being assessed – backdating of DSP start day – vulnerable person - backdated to commencement of Newstart Allowance – no discretion for earlier start day – decision set aside and substituted

Legislation

Acts Interpretation Act 1901 (Cth), s 36
Social Security Act 1991 (Cth), ss 94(1), (2), (3), (3B), (3C)
Social Security Administration Act 1999 (Cth), ss 8, 13, 15, Sch 2

Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (Cth)

Cases

Re Nada Despot and Secretary, Department of Employment and Workplace Relations [2007] AATA 1874

Secondary materials

Administrative Appeals Tribunal Guideline – Persons Giving Expert and Opinion Evidence; issued by the President of the Tribunal on 30 June 2015

REASONS FOR DECISION

Senior Member D. J. Morris

18 January 2018

INTRODUCTION

1. The Applicant, Mr Richard Giza, is a recipient of Disability Support Pension (DSP), granted to him by a decision of the Department of Human Services (‘the Department’) on 12 March 2015 with a start date of 5 December 2014, a decision affirmed by an Authorised Review Officer (‘ARO’) of the Department, an independent officer not involved in the original decision, on 9 August 2016.

2. Mr Giza was dissatisfied with the decision regarding the starting date for his DSP so he sought a review of the ARO’s decision by the Social Services and Child Support Division of this Tribunal (‘AAT1’).  On 31 March 2017, having conducted a hearing into the matter, AAT1 affirmed the decision.

3. The Applicant has availed himself of his statutory entitlement to have a second-tier review of the original decision by the General Division of the Tribunal.

4. On 18 July 2017 at a directions hearing, Deputy President Forgie made an Order that the scope of the review of the decision is limited to the Applicant’s entitlement to DSP so that the facts, evidence and issues considered by the Tribunal will be limited to those relevant to the qualifications for DSP set out in section 94 of the Act in relation to the relevant period. The hearing proceeded on that basis.

5. The Tribunal considered two issues. The first is the question of whether Mr Giza was qualified for DSP at the time of the decision. To be qualified for DSP, a person must satisfy the requirements set out in section 94 of the Social Security Act 1991 (‘the Act’). If the Tribunal finds that the Applicant is qualified for DSP, the next issue to consider is what is the correct start-day for his DSP, pursuant to clause 11, Schedule 2, and sections 13 and 15 of the Social Security (Administration) Act 1999 (‘the Administration Act’).

6. The hearing was held on 21 September 2017.  Mr Giza was represented by a personal advocate, Ms Stanislawa Bahonko.  Mr Giza gave evidence and was cross-examined by Mr Nam Nguyen, representing the Respondent.  Ms Bahonko also gave a sworn statement from the witness box at the hearing about her knowledge of the Applicant’s health circumstances and was questioned on this by the Tribunal.  Mr Ian Douglas, a psychologist employed by the Department, gave evidence by telephone and was cross-examined.

7. The Tribunal had before it documents provided under section 37 of the AdministrativeAppeals Tribunal Act 1975 (T-documents) and other submissions from the parties.

   Qualification for DSP under the Act

8. In order to qualify for DSP, a person’s claim must be assessed under section 94(1) of the Social Security Act 1991 (the Act) and the qualification criteria for DSP must be satisfied.  It must be established that:

   (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 Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system; and

   (d)…

9. Mr Giza contacted the Department on 25 March 2014 about his intention to claim DSP.  He was asked by Centrelink to lodge his claim by 8 April 2014.  In a letter dated 14 November 2014, Mr Giza was again provided with a DSP claim form and advised that his claim for DSP could not be assessed without having lodged a completed form with the Department.  On 5 December 2014 Mr Giza completed a DSP claim form. 

10. Mr Giza listed a number of medical conditions applicable to him: cervical spine left nerve root compression; hypertension; large left ventricular enlargement; short bowel syndrome (post cancer of colon resection); anorexia; reactive depression; anxiety;  PTSD; short term memory loss; post starvation (hunger strike) syndrome; insomnia; and chronic fatigue.  Mr Giza advised that he intended to have medical procedures in the future, including a colonoscopy, gastroscopy, stress test and heart ECHO.

11. On 5 December 2014 Mr Giza was granted Newstart Allowance with a start date of 8 October 2014, while his application for DSP was being assessed.

12. The Impairment Tables under which his claim must be assessed are the Impairment Tables which came into force on 1 January 2012. These are set out in Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination).

13. Mr Giza is required to establish a ‘continuing inability to work’. Relevantly, section 94(2) of the Act provides that:

    (2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:

    (aa)in a case where the person's impairment is not a severe impairment within the meaning of subsection (3B) … the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and

    (a)in all cases--the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and

    (b)in all cases--either:

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

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

    Section 94(3B) of the Act provides that:

    A person's impairment is a severe impairment if the person's impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.

14. The consequence of this is that if Mr Giza is assigned 20 points under the Impairment Tables but does not have a ‘severe impairment’ for the purposes of section 94(3B) of the Act, then the Secretary must be satisfied that the Applicant has met the requirements of having ‘actively participated in a program of support’ as provided in the Social Security (Active Participation for Disability Support Pension) Determination 2014. If Mr Giza does have a ‘severe impairment’, he is required to satisfy sections 94(2)(a) and 94(2)(b) of the Act to be qualified for DSP.

    What is the relevant period for considering the claim?

15. The Social Security (Administration) Act 1999 (the Administration Act) provides, at clause 4(1) of Schedule 2, as follows:

    If:

    (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.

16. Section 36(1) of the Acts Interpretation Act 1901 (the Interpretation Act) sets out in a table how a period of time is to be calculated in legislation where there is no express contrary meaning. Item 5 in the table in section 36(1) of the Interpretation Act states that if the period of time is expressed to begin from a specified day, it does not include that day.

17. The Tribunal must consider whether Mr Giza was qualified for DSP on the date he lodged his claim, being 5 December 2014. If not, the Tribunal must then consider whether, applying the provisions of clause 4(1) of Schedule 2 of the Administration Act and the Interpretation Act, the Applicant became qualified on a day within the 13 week period from 6 December 2014 to 6 March 2015 (the claim period).

    The Respondent’s submissions on qualification for DSP

18. Mr Nguyen submitted that the Secretary contended that Mr Giza satisfied section 94(1)(a) of the Act in the claim period because he suffered from impairments arising from a neck disorder, bowel cancer/tumour, hypertension and a mental health condition.

19. The Respondent further submitted that the Secretary accepts that Mr Giza’s medical conditions attracted a total of 25 impairment points under the Determination in the claim period, and that 20 impairment points should be assigned for a severe functional impact on activities involving mental health function under Table 5 – Mental Health Function of the Determination. In the Respondent’s submissions, Mr Giza’s claim satisfied sections 94(1)(b) and 94(3B) of the Act in that he had a ‘severe impairment’. The Secretary further submitted that, if this assignment of 20 impairment points under a single impairment table is accepted by the Tribunal, Mr Giza is not required to satisfy the program of support requirements within the meaning of section 94(3C) of the Act prior to his claim for DSP.

    The Applicant’s submissions on qualification for DSP

20. Mr Giza, and Ms Bahonko on his behalf, contested a number of the submissions the Respondent had made in relation to the assessment of some of his medical conditions.  The Applicant submitted that he was qualified for DSP in the claim period, but that it should also be found that he qualified for this benefit in October 2012 when he initially made contact with Centrelink.

    The Applicant’s submissions on the start day

21. The Applicant and his representative submitted that ‘about 4 October 2012’ Mr Giza contacted Centrelink asking for assistance.  He argued that he had been denied procedural fairness from the time of this initial contact because the officer who originally handled his initial request for assistance:

    …failed to ask the relevant questions and give a proper advise [sic] as to which claim form Mr Giza ought to fill in and failed to inquire if Mr Giza was able to fill in the form and failed to make an appointment for Mr Giza to come to the Centrelink to be assisted in filling in the correct form that is for a Disability Support Pension.

22. The Applicant argued that he was ‘sent home’ with the wrong form.  Further, Mrs Bahonko submitted that the Respondent:

    Failed to grant a Disability Support Pension to Mr Richard Giza when seeing [sic] manifestly disabled in a public place on the steps of Victorian Parliament House for a period of three months between 26/12/2013 till 22/03/2014.

    The nub of the Applicant’s submissions was that the Tribunal should find that Mr Giza was eligible for DSP and that his eligibility should start from 4 October 2012.

    The Respondent’s submissions on the start day

23. The Respondent submitted that Mr Giza initially contacted Centrelink in relation to his present claim for DSP on 5 November 2014, and the form was lodged on 5 December 2014.  The Respondent further submitted:

    The Secretary is satisfied that the Applicant suffered from a mental health condition between 5 November 2014 to 5 December 2014 that had a “significant adverse effect” on the Applicant’s ability to lodge his claim on an earlier date than 5 November 2014.  The psychological report dated 18 February 2015 [which was before the Tribunal at T20] stated that the Applicant had a “severe depressive disorder” with “variable insight and some psychotic features (eg delusional beliefs)”.  Further, the contact note on 5 December 2014 (PT31, p 296) recorded that the Applicant contacted Centrelink “continuously” since 5 November 2014 and could not “get to an office due to medical conditions as well as homelessness.”

    The Secretary therefore accepts that the date of the claim should be deemed to be 5 November 2014 pursuant to s 13 of the Administration Act.

24. The Secretary further stated:

    On 5 December 2014 (PT31, p 296) the Applicant was granted NSA from 8 October 2014, that is, 4 weeks prior to the Applicant’s initial contact date of 5 November 2014 or, if the Tribunal accepts the Secretary’s above contention in relation to s 13 of the Administration Act, the deemed claimed date of 5 November 2014. The earlier start-day for NSA was made pursuant to sub-clause 11(2), Schedule 2 of the Administration Act, on the basis that the Applicant was incapacitated for work as a result of his mental health condition, that the condition continued until the Applicant made his claim, and was the principal cause of the Applicant’s failure to lodge the claim within 5 weeks of the day on which his capacity began. As the Applicant’s grant of NSA was made pending the outcome of the DSP claim and his eventual grant of DSP essentially replaced his NSA, the Secretary accepts that the start-day of the Applicant’s DSP should also be back-dated to 8 October 2014, pursuant to sub-clause 11(2), Schedule 2 of the Administration Act. The Secretary contends however, that clause 11, Schedule 2 of the Administration Act does not operate to allow the start-day to be any earlier than 8 October 2014.

    Consideration

25. There were four medical conditions that were agreed by both parties that Mr Giza suffered from at the time he lodged his claim in December 2014. It is not necessary for the Tribunal to examine the other medical conditions that Mr Giza cited in his DSP claim as to whether they should also have been taken into account, because there was no dispute between the parties about the satisfaction of section 94(1)(b) of the Act at the time of claim, and the Tribunal made that point at the hearing. The Respondent submitted that the Applicant’s neck disorder was ‘permanent’ within the requirements of the Determination and should be assigned 5 impairment points under the relevant impairment table, which is Table 2 – Upper Limb Function.  The Respondent submitted that Mr Giza’s cancer of the bowel could not be classified as permanent as it was not fully diagnosed, fully treated and fully stabilised at that time.  The Respondent submitted that the Applicant’s hypertension should either be regarded as not fully diagnosed, fully treated or fully stabilised at the time or, if the Tribunal were to accept that this condition was permanent, it should be assigned zero impairment points because this condition did not of itself have a functional impact on Mr Giza’s ability to function. 

26. It is important that the Tribunal makes the point that the word ‘permanent’ in the Determination is not used in the way that word is generally used, but has a specific meaning as stipulated in the Introduction to the Determination. The Respondent submitted that the predominant condition affecting Mr Giza is his mental health condition and that 20 points should be assigned under Table 5; that this condition has a severe functional impact.

27. After considering the medical evidence before the Tribunal relating to Mr Giza’s neck condition, the Tribunal finds that this was a condition that was permanent in terms of the Determination. Mr Giza had been diagnosed with cervical nerve root compression with a date of onset of 2009 which is confirmed by a CT scan. Mr Giza told a job capacity assessor (JCA) in March 2015 that he experiences pain up and down his neck and across the shoulders, radiating down both arms. He said he often experiences numbness in both hands and was not able to work above his head. He told the JCA that he was able to use a computer keyboard for only short periods and became easily fatigued. The JCA accepted that Mr Giza had past physiotherapy but this had been stopped in 2010 because no further improvement was expected, and that he had a regimen of pain management medication.

28. The Tribunal noted a history of medical certificates relating to Mr Giza’s left cervical nerve root compression and the medical opinion of Dr Philip Carter, the Applicant’s treating general practitioner, giving 2009 as the date of onset.

29. It would seem to the Tribunal that there is a mild functional impact on the Applicant from this condition and that, accordingly, 5 points should be assigned under Table 2 – Upper Limb Function.  Applying the Descriptors in Table 2, there was insufficient evidence before the Tribunal for a higher assignment of points.

30. In terms of the cancer of the bowel condition, the JCA considered a translated report from Poland which stated that there had been a mechanical obstruction of the small intestine with a tumour in the area of the caecum.  Mr Giza said that he had a history of colon cancer and underwent surgery in Poland to remove 30 centimetres of his bowel and subsequently spent a month in hospital being treated with radiotherapy, before he returned to Australia in 2010.  He said that one of the continuing functional impacts upon him is that he must visit the lavatory often and with limited warning.

31. It would seem to me that this condition may be regarded as permanent in terms of the Determination. I accept on the documents before me that there has been surgical intervention. While I accept Mr Giza’s evidence, there is a dearth of corroborative detail about the functional impact of this particular condition on Mr Giza in the claim period, and such evidence is necessary under section 8(1) of the Determination, so the Tribunal does not assign impairment points for it.

32. In terms of Mr Giza’s hypertension, this is recorded by Dr Carter as having a date of diagnosis of 2009.  In his medical report of 11 November 2014, Dr Carter said Mr Giza had ‘nil’ current symptoms from this condition and that he had taken blood pressure medication in the past.  Dr Carter further stated that this condition had ‘nil’ impact on the Applicant’s ability to function.

33. Mr Giza stated in his DSP claim form that he was awaiting treatment in the future, but there was no further detailed information before the Tribunal about whether this had occurred.

34. The Tribunal concludes that this particular condition is not stabilised, because of Mr Giza’s own evidence about pending further treatment. Even if this condition were to be accepted as permanent in terms of the Determination, it would attract zero points because it did not (by itself) in Dr Carter’s written medical opinion, have a functional impact.

35. In terms of Mr Giza’s mental health conditions, the Tribunal had before it a confidential psychological report dated 18 February 2015 written after a face to face assessment conducted on 23 December 2014.  The author reviewed earlier medical documents and had a discussion with Dr Carter about the Applicant’s mental state.

1. The report concluded that Mr Giza had a diagnosis of significant depression and anxiety and that this opinion was supported by ‘Dr Ian Smith of the Department’s Health Professionals Advisory Unit.’  When taking this report into account, the JCA also considered the Applicant’s engagement with counselling and that his Mental Health Counsellor, Dr Adepoju (who had seen Mr Giza for ten sessions up to December 2014) was of the view that his symptoms included “lack of insight, possibly suicidal, delusional”.  Dr Adepoju concluded that Mr Giza could be regarded as ‘vulnerable’.  Dr Adepoju is a counsellor with a doctorate in social work, he is not a clinical psychologist or a psychiatrist, but the Tribunal does take into account his professional experience and his engagement with the Applicant as valuable and relevant information.

2. The JCA therefore recommended, in the light of this aggregate of information and that there is unlikely to be significant improvement over the next two years, that this condition should be considered to be fully diagnosed, fully treated and fully stabilised in terms of the Determination.

3. The Tribunal also had before it the clinical records of Dr Suham Jadaw, who was Mr Giza’s treating general practitioner in 2013.  Dr Jadaw was of the view at that time that her patient had full mental capacity and no depression, and she refused a referral to a psychiatrist.  Mr Giza took issue with this record in Dr Jadaw’s contemporary clinical notes.  He submitted that she wrote this to ‘protect’ him because he had a fear of psychiatrists.  The Tribunal did not have the opportunity to question Dr Jadaw but nothing significant turns on this point because, for whatever reason at that time, the fact is that there was no psychiatric referral.  On 12 September 2017 the Applicant contacted Dr Carter and requested that a medical certificate “and other notes be amended to state he did not have full mental capacity” in 2013.  Retrospective alteration of clinical notes, even if the medical practitioner consented (and he did not in this case) carries little weight with the Tribunal properly assessing a person’s medical circumstances at a particular point in time.

4. The Tribunal heard evidence from Mr Ian Douglas, who although it was not disclosed in the confidential psychological report dated 18 February 2015, confirmed that he was the author of that report.  Mr Douglas said he maintained the opinions he expressed in the report.  He said he considered Mr Giza had “entrenched depression”.  When pressed about what he meant by the use of the word “entrenched”, Mr Douglas said he meant a condition “that would be hard to move”.  Mr Douglas could not give a timeframe and he had come to this conclusion after reviewing the medical reports and talking to Drs Carter and Adepoju.  Mr Douglas agreed that Mr Giza might have had depression in 2012 but said he could not “crystal ball gaze into the past” because he had no engagement with Mr Giza at that time.

5. Mr Douglas was aware that Mr Giza had mounted a hunger strike and said that the Applicant told him that he had been, at times, suicidal. He said the Applicant told him about the loss of his business and that he had been under significant stress. Mr Douglas told the Tribunal it was his considered view that there was a severe functional impact on the Applicant of his mental health conditions and they merited the allotment of 20 points under the Determination.

6. Ms Bahonko submitted to the Tribunal that if Mr Douglas had undertaken an assessment earlier, the Applicant would have been found eligible for DSP.  She said Mr Douglas’s use of the word “entrenched” and Mr Douglas’s concession that the condition could have been in place for a few years means that it was a long-established condition.  Ms Bahonko said that Mr Giza was for a period barred from attending Centrelink offices and this should be taken into account because it affected the information that was able to be conveyed to him on what benefits might be applicable to him.  She said that Mr Giza did not seek help when he should have, precisely because “a lack of insight”, as corroborated by other medical assessors, was a feature of his mental health condition.

7. The Tribunal notes that, although reference is made in the confidential psychological report prepared by Mr Douglas to ‘Dr Ian Smith’, the person referred to is Mr Ian Smith, who is a psychologist whom the Australian Health Practitioner Regulation Agency records has an endorsement to practise in the area of clinical psychology. The Introduction to Table 5 of the Determination relevantly states, in relation to the assessment of a mental health condition:

   The diagnosis of the condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis had not been made by a psychiatrist).

8. The Department has a policy in circumstances where a person may lack insight into his or her mental health condition (which is a feature applicable to the condition of Mr Giza), or where the person lives in a remote community with little or no access to health services that “a DHS psychologist may make a provisional diagnosis of a mental health condition” and, in such a case, the psychologist must discuss the provisional diagnosis with the Health Professionals Advisory Unit.  That is what happened here.  Mr Douglas, a registered psychologist, made the provisional diagnosis.  He then referred it to Mr Smith, a clinical psychologist, who supported his conclusions.  Taking into account that there was a diagnosis by Dr Carter, the Tribunal finds that the mandatory requirements in the Introduction to Table 5 were fulfilled in this case: there was a diagnosis by a properly qualified medical practitioner, corroborated by a clinical psychologist.

9. The Tribunal is further satisfied, on the basis of the significant weight of medical evidence before it, and applying the Descriptors in Table 5, that there was a severe functional impact of this condition on Mr Giza in the claim period, warranting the assignment of 20 impairment points under Table 5.

10. As the Tribunal has assigned Mr Giza 20 points under a single table, the Tribunal finds that he has a continuing inability work and satisfied the requirements for DSP from 5 December 2014.

11. The Respondent has conceded that, as Mr Giza had been granted Newstart Allowance pending the outcome of his DSP claim and he then moved directly from DSP to Newstart Allowance, the Secretary accepts that the start-day of Mr Giza’s DSP should be backdated to 8 October 2014, as allowed for by subclause 11(2) of Schedule 2 of the Administration Act.

    Can DSP be payable earlier?

12. It would appear from submissions (although it is not clear) that the Applicant’s contention is that his DSP should be backdated to 4 October 2012 because that is when he initially contacted the Department in relation to a claim for Newstart Allowance.

13. Section 15(4A) of the Administration Act relevantly states:

    For the purposes of 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.

14. Considering this section, there was an initial claim for Newstart Allowance on 4 October 2012, but it was rejected. But what is fatal to Mr Giza’s argument about backdating his DSP to 2012 is the requirement in section 15(4A)(b).

15. The Tribunal dealt with a similar contention in Re Nada Despot and Secretary, Department of Employment and Workplace Relations [2007] AATA 1874. In that decision, Members Campbell and Horton said, at [54]:

    It remains for us to consider whether the commencement date for the DSP should be 4 March 2005 or deemed to commence at an earlier date under the provisions of section 15(4A) of the Social Security (Administration) Act 1999. To back date the claim for DSP to the date when the initial claim was made for Newstart allowance (4 September 2003) would, in our view, require that the conditions relevant to the criteria in section 94 of the Act be present at that time. Whilst it is accepted that Mrs Despot had psychological problems on arrival in Australia resulting from the circumstances in her life in Croatia and Serbia, the extent and severity of those problems cannot be determined.

16. On the day of the initial claim for Newstart Allowance back in October 2012, the person must be qualified for another income support payment, in this case the DSP.  Mr Giza was not.  It may be that Mr Giza was suffering, then, from a mental health condition, but this is speculative and, frankly, does not advance the argument because it is ineluctable that there was no diagnosis at that time as stipulated in the Introduction to Table 5 – Mental Health Function of the Determination. On the contrary, Dr Jadaw’s clinical opinion in 2013 militates against any such conclusion, as does a medical certificate of Dr Carter in the same year which notes that Mr Giza had full mental capacity. That was their opinion at the relevant time and the Tribunal finds it is relevant. There is insufficient evidence to satisfy me that any other medical condition of Mr Giza would have attracted 20 or more points under one impairment Table at that time, which would be necessary given he had otherwise not participated in a program of support.

17. In terms of the large amount of material that Ms Bahonko provided to the Tribunal, and her sworn statement, I want to make the point that I do not doubt her sincerity and accept that she is motivated in helping Mr Giza pursue his DSP claim because of genuine concern for his welfare.  However, in her own witness statement dated 25 January 2017, she states that she first met him on 28 December 2013.  Ms Bahonko reiterated this in her affidavit of 11 August 2017; she has no direct knowledge of his circumstances before that meeting at the end of December in 2013. 

18. Contentions were made at the hearing that Ms Bahonko should be treated as an Expert Witness on the basis of her status as a retired nurse.  The President issued Guidelines on 30 June 2015 to inform parties, their representatives and persons giving evidence about the Tribunal’s expectations in regard to expert opinion evidence.  The Tribunal takes account of these Guidelines and notes that a person giving evidence based on his or her special knowledge or experience may not be an advocate for a party to a proceeding.  Putting to one side whether or not Ms Bahonko’s background training may be relevant, the Tribunal made clear that she could not be regarded as an expert witness in the hearing because, apart from the fact that, because she was present as an advocate for Mr Giza there was no compliance with part 4 of the Guideline, Ms Bahonko’s own written evidence and sworn statement at the hearing clearly gives her a conflict of interest in terms of part 5.  So, even if the Tribunal were to accept she was in the category of an expert witness (which it did not), her assessment of Mr Giza’s health conditions cannot be treated in that vein.

19. Both parties alluded to whether or not Mr Giza may have been the subject of defective administration by the Department, partly on the basis that the Applicant had been excluded from direct contact with Centrelink for a period in the past and partly because, in the Applicant’s contention, he was “given the wrong form”. I have considered the principles of administration as set out in section 8 of the Administration Act, which set out the principles that the Secretary is to have regard to, but I do not consider, on the information before me, that the conduct of the Department was deficient. It could not be reasonably concluded, on the basis of his contact, that Mr Giza was qualified for DSP when he initially claimed Newstart Allowance (the first of several claims rejected because he did not provide required documentation). Even if had he been given DSP claim forms at that time, that fact would not give Mr Giza any relief, because on the facts he was not qualified in terms of section 94 of the Act earlier than October 2014.

20. In summary, the Tribunal concludes that the fact that Mr Giza has a condition which makes him vulnerable was taken into account in the original decision. The Tribunal considers that the Respondent’s concession that the Tribunal should back-date the start of Mr Giza’s qualification to 8 October 2014 is appropriate and rightly made in this particular case, and consistent with the purport of Schedule 2 of the Administration Act. There is no discretion available to the Tribunal to apply any earlier date.

    DECISION

21. The Tribunal sets aside the decision, and decides in substitution that the Applicant was qualified for disability support pension from 8 October 2014.

57.     I certify that the preceding 56 (fifty-six) paragraphs are a true copy of the reasons for the decision herein of Mr D. J. Morris, Senior Member

[sgd]........................................................................

Associate

Dated: 18 January 2018

Date of hearing:	21 September 2017
Advocate for the Applicant:	Ms Stanislawa Bahonko
Solicitors for the Respondent:	Mr Nam Nguyen, Sparke Helmore