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

Hutchinson and Secretary, Department of Social Services (Social services second review) [2018] AATA 4673 (21 December 2018)
Division:GENERAL DIVISION
File Number: 2018/3904
Re:Karen Hutchinson
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member C Edwardes
Date:21 December 2018
Place:Perth

The Tribunal affirms the decision of the AAT1.
......................................................................
Member C Edwardes
CATCHWORDS
SOCIAL SECURITY – Disability Support Pension approved – review of approval date
– backdated start days – sole or principal cause of delay in lodging claim – incapacity – work injury – post-traumatic stress disorder – major depression – decision under review affirmed
LEGISLATION
Social Security Act 1999 (Cth) – s 11, s 13, s 13(2), s 13(3A), s 16(1)(a), s 16(2), s 41,
s 42, Sch 2.
Social Security (Administration) Act 1999 (Cth) – s 179
Administrative Appeals Tribunal Act 1975 (Cth) – s 43(1)
CASES
Drake and Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634
SECONDARY MATERIALS
Department of Social Security, Guide to Social Policy Law: Social Security Guide (Department of Social Security, Version 1.250, 5 November 2018)
REASONS FOR DECISION
Member C Edwardes
21 December 2018
THE APPLICATION

The Applicant seeks review of a decision made by the Social Services and Child Support Division of the Tribunal (AAT1) dated 29 June 2018 (T2, 3). The decision of the AAT1 affirmed the decision of an authorised review officer (ARO) of the Department of Human Services (the Department). The AAT1 determined “that there is no discretion in the Administration Act in Ms Hutchinson’s circumstances which allow for the start day of her disability support pension to be backdated prior to 7 November 2017” (T2, 8).
INTRODUCTION
On 7 November 2017, the Department received the Applicant’s claim for Disability Support Pension (DSP) (T30, 121). The claim stated that the Applicant suffered from the following medical conditions: “major depressive disorder, post-traumatic stress disorder, type 2 diabetes and atrial flutter” (T9, 59).
The Applicant’s claim was approved by the Department on 20 February 2018, effective from 7 November 2017 (T21, 91).
The Applicant was sent a letter from the Department dated 12 March 2018, stating that the Applicant had requested review of the decision dated 20 February 2018 (T22, 94). A review of the 20 February 2018 decision was undertaken by an ARO of the Department (T23, 95-101). The ARO affirmed the decision on 13 March 2018 (T23, 95).
The ARO advised the Applicant of the following findings (T23, 96):
·You contacted the department about claiming Disability Support Pension on 7 November 2017.
·On 7 November 2017 you lodged a claim for Disability Support Pension.
·The start date for your Disability Support Pension is 7 November 2017.
The Applicant lodged an application for review to the AAT1 on 15 May 2018 (T2, 4). The AAT1 affirmed the decision of the Department on 29 June 2018.
The AAT1 decision dated 29 June 2018 determined the following (T2, 7):
26.The tribunal finds that Ms Hutchinson made her claim on 7 November 2017, more than five weeks after her incapacity began. The tribunal finds that Ms Hutchison’s reason for incapacity, whether that is the relapse of her post-traumatic stress disorder and major depression or agoraphobia began more than five weeks prior to making her claim for disability support pension. She was qualified when she made her claim for disability support pension and there is nothing to suggest that she was not qualified for disability support pension in the previous four weeks.
27.The issue is whether Ms Hutchinson’s post-traumatic stress disorder, major depression or agoraphobia were the sole or principal cause for the delay of her claim. The exception in subclause 11(2) of the Administration Act requires that not only must the medical condition incapacitate the person from working, but it must also be the sole or principal cause of the person’s failure to make a claim within five weeks of the onset of the condition and must have continued to be until the date of the claim.
28.The tribunal noted medical certificates dated 29 September 2017 and 21 October 2017 were provided. The earlier medical certificate referred to reviewing Ms Hutchison again in one month. The later medical certificate certified her unfitness for work/study from 27 October 2017 to 3 January 2018.
29.The tribunal had regard to the Guide. Given that Ms Hutchinson was able to attend medical appointments in September 2017 and October 2017 the tribunal was not satisfied that she was so incapacitated by her agoraphobia that she was incapable of applying for income support and lodging her application.
The Applicant applied to the General Division of the Administrative Appeals Tribunal (the Tribunal) on 13 July 2018 for a review of the AAT1 decision dated 29 June 2018
(T1, 1-2). The Applicant’s application for review stated:
The Tribunal found that because I was able to attend GP appointments I would have been able to submit a claim for disability support pension. However, the attendance on the GP on 29 September 2017 was for a referral for urgent psychological treatment under the Medicare rebate scheme (As I had no income to be able to pay for sessions with a psychologist myself and I was experiencing heightened suicidal ideation at the time). The medical certificate sought on
27 October 2017 was for the purposes of applying for a disability support pension as can be evidenced by the fact that it was a Centrelink issued medical certificate that was attached to my application for the ‘disability support pension’ that I mailed to the Fremantle Centrelink office on either 31 October 2017 or 1 November 2017. I was advised later by Centrelink my application was (sic) registered as being officially received until 9 November 2017.
I believe this information makes a complete nonsense of the Tribunal’s rational (sic) for not being prepared to back date my disability support pension for 4 weeks prior to 7 November 2017.
The Tribunal has jurisdiction to hear this matter pursuant to s 179 of the Social Security (Administration) Act 1999 (Cth) (the Administration Act).
The matter was listed to be heard in Perth on 18 October 2018. The Applicant failed to appear. The matter was adjourned to another sitting date. On 15 October 2018, the Applicant wrote to the Tribunal requesting that her application be heard on the papers. The Respondent agreed to this request, and the Tribunal proceeded on this basis.
RELEVANT LEGISLATION
The relevant provisions governing this application are contained in the Administration Act.
The policy framework behind this application is contained in the Guide to Social Security Law (the Guide). The Guide provides assistance to those who administer the Act. Whilst not bound to apply policy guidelines, the Tribunal will usually do so unless there are cogent reasons in a particular case not to do so (Refer to Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634).
Section 11 of the Administration Act states:
11General rule
(1)Subject to subsections (2) and (3) and Subdivision B, a person who wants to be granted:
(a)a social security payment; or
(b)a concession card;
must make a claim for the payment or card in accordance with this Division.
Section 13(1) of the Administration Act states:
(1)For the purposes of the social security law, if:
(a)the Department is contacted by or on behalf of a person in relation to a claim for a social security payment; and
(aa)the person is, on the day on which the Department is contacted, included in a class of persons determined in an instrument under section 14A; and
(b)the person is, on the day on which the Department is contacted, qualified for the social security payment; and
(c)the person lodges a claim for the social security payment within 14 days after the Department is contacted;
the person is taken to have made a claim for the social security payment on the day on which the Department was contacted.
Section 13(2) of the Administration Act states:
(2)For the purposes of the social security law, if:
(a)the Department is contacted by or on behalf of a person in relation to a claim for a social security payment, other than crisis payment or special employment advance; and
(aa)the person is, on the day on which the Department is contacted, included in a class of persons determined in an instrument under section 14A; and
(b)the person is, on the day on which the Department is contacted, qualified for the social security payment; and
(d)the person lodges a claim for the payment more than 14 days, but not more than 13 weeks, after the Department is contacted; and
(e)the Secretary is satisfied that:
(i) throughout the period starting on the day on which the Department was contacted and ending on the day on which the person lodged the claim, the person was suffering from a medical condition; and
(ii) that medical condition, or circumstances related to that medical condition, had a significant adverse effect on the person’s ability to lodge the claim earlier;
the person is taken to have made a claim for the social security payment on the day on which the Department was contacted.
Section 13(3A) of the Administration Act states:
(3A)For the purposes of the social security law, if:
(a)the Department is contacted by or on behalf of a person in relation to a claim for a social security payment; and
(aa)the person is, on the day on which the Department is contacted, included in a class of persons determined in an instrument under section 14A; and
(b)the person is, on the day on which the Department is contacted, qualified for the social security payment; and
(d)the person lodges a claim for the social security payment more than 14 days, but not more than 13 weeks, after the Department is contacted; and
(e)the Secretary is satisfied that, in the special circumstances of the case, it was not reasonably practicable for the person to lodge the claim earlier;
the person is taken to have made a claim for the social security payment on the day on which the Department was contacted
Sections 41 and 42 of the Administration Act state:
41Commencement
(1)Unless another provision of the social security law provides otherwise, a social security payment becomes payable to a person on the person’s start day in relation to the social security payment.
(2)Unless another provision of the social security law provides otherwise, a concession card takes effect on the person’s start day in relation to the card.
42Start day
For the purposes of the social security law, a person’s start day in relation to a social security payment or a concession card is the day worked out in accordance with Schedule 2.
Subclause 11(2) of Schedule 2 of the Administration Act states:
(2)If:
(a)a person becomes incapacitated for work as a result of a medical condition; and
(b)the person makes a claim for a benefit or pension more than 5 weeks after the day on which the incapacity begins; and
(c)the Secretary is satisfied that:
(i) the person has continued to suffer the medical condition from the day on which the incapacity began until the claim was made; and
(ii) the medical condition was the sole or principal cause of the person’s failure to make the claim within 5 weeks after the day on which the incapacity began;
the person’s start day in relation to the pension or benefit is the first day on which the person was qualified for the benefit or pension in the period of 4 weeks ending immediately before the day on which the claim was made.
The Guide at Part 8.3.3.10 states:
If a person claims a benefit or pension MORE than 5 weeks after becoming incapacitated for work from a medical condition AND the medical condition was the sole or principal cause of the delay in claiming, the start day is the first day on which the person is qualified for the payment in the 4 weeks ending before the day the claim was made.
…
The date of incapacity is generally shown on the medical certificate as the date of injury or the start date of the illness.
…
Determining the sole or principal cause of delay in claiming
If there is more than one possible cause for the delay, it is necessary to establish the SOLE OR PRINCIPAL cause. In considering whether the medical condition was the sole or principal cause the delegate must consider whether the applicant:
·was prevented from getting to an office by the medical condition, and/or
·had control of their personal affairs and was capable either of making a claim or instructing others to make a claim on their behalf.
It is the applicant’s responsibility to lodge a claim in a timely manner. It is reasonable to expect an applicant to instruct a friend or relative to inquire about possible entitlements or to lodge a claim unless their incapacity prevents them from doing so.
Care should be taken in situations where the illness or incapacity is traumatic. If evidence clearly shows that the applicant’s ability to deal with their everyday affairs is substantially limited by a traumatic illness, it is unreasonable to expect the person to have thought of:
·making their own inquiries about possible social security entitlements, or
·asking others to make inquiries or to lodge a claim on their behalf.
ISSUES
The key issue for the Tribunal to consider is whether the Applicant’s medical conditions were the sole or principal cause in the Applicant’s delay in lodging her claim for DSP, and if so, whether her DSP payment should begin from a date earlier than 7 November 2017.
EVIDENCE
The Tribunal had the following evidence before it:
·Exhibit A1 – Applicant’s submission dated 17 September 2018.
·Exhibit A2 – Applicant’s further submission dated 15 October 2018.
·Exhibit R1 – T-Documents (T1 to T15, including pages1-139) and the Supplementary T-Documents (ST1 to ST4, including pages140-148)
·Exhibit R2 – Respondent’s Statement of Facts, Issues and Contentions dated 7 September 2018.
·Exhibit R3 – Respondent’s Supplementary Statement of Facts, Issues and Contentions dated 10 October 2018.
The Tribunal has reviewed all of the material before it and is satisfied that all relevant evidence was before it, and that both parties were provided with an opportunity to address the evidence in writing. Relevant aspects of the evidence and material before the Tribunal will be analysed and referred to below.
The Applicant contends (A1):
A. Overview
1.1I had been in receipt of compensation for a workplace injury that was deemed to have occurred on 31 January 2011.
1.2Compensation was ceased from 16 August 2017.
1.3On 22 May 2017 I suffered a relapse of ‘major depressive disorder’ and a severe exacerbation of ‘agoraphobic avoidance’ which is most commonly associated with my ‘post- traumatic stress disorder’ subsequent to being abused and threatened by my then GP.
1.4My ‘agoraphobia’ was first diagnosed by Dr. Jonathon Spear, Consultant Psychiatrist in March 2012.
1.5My application for a Disability Support Pension (DSP) was approved from 7 November 2017.
1.6I requested that my DSP be backdated to an earlier start date but the Authorised Review Officer (ARO)…decided not to backdate my pension in a decision dated 13 March 2017.
1.7Subsequently, I took this refusal to the AAT for review.
B. Factual Matters
2.1The AAT affirmed the decision of 13 March 2018 by the Department of Social Security on 29 June 2018, but not for the same reasons the Authorised Review Officer (ARO) denied my request to change the start date. As follows in part;
28.     The tribunal noted medical certificates dated 29 September 2017 and 21 October 2017 were provided. The earlier medical certificate referred to reviewing Ms Hutchison again in one month. The later medical certificate certified her unfitness for work/study from 27 October 2017 to 3 January 2018.
29.The tribunal had regard to the Guide. Given that Ms Hutchinson was able to attend medical appointments in September 2017 and October 2017 the tribunal was not satisfied that she was so incapacitated by her agoraphobia that she was incapable of applying for income support and lodging her application.
30.The tribunal decided that there is no discretion in the Administration Act in Ms Hutchinson’s circumstances which allow for the start day of her disability support pension to be backdated prior to 7 November 2017.’
2.2… [T]he Respondent’s legal representative, not being satisfied with the basis for the denial provided by the Tribunal has elaborated and expanded on the reasons for why the Tribunal should not change its decision on ‘second review’ to find in my favour.
2.4I will be relying on:
(a)the decision dated 29 June 2018 by Tribunal member C. Kannis,
(b)the Respondent’s ‘submission’ dated 7 September 2018, and
(c)my ‘submission’ dated 17 September 2018.
C.        Issues for Determination by the Tribunal
3.1Has the Secretary provided an adequate explanation for why the claim was denied?
3.2To the Tribunal’s satisfaction, what was the ‘sole or principal cause’ for the delay in submitting the claim, if not for medical incapacity?
3.3Should the original decision be set aside and a new start date be determined prior to 7 November 2017?
D.        Submission
The ARO Decision
4.1[The] Authorised Review Officer (ARO) wrote up notes after a phone conversation between us on 13 March 2018 was concluded.
4.2On reading those notes as provided in the T-docs it indicates to me that [the ARO] reconstructed much of what was actually said in a attempt to show himself in a better light and provide justification for the decision he made. This included, changing the advice he gave me over the phone where he specified I was excluded from the backdating provision because I was already suffering from a mental health injury and that a ‘relapse’ was not a new condition thereby rendering my claim invalid.
4.3He also stated I said my ‘agoraphobia’ was a new condition. This is an outright lie, a ‘false and misleading’ statement committed in writing. What I did tell him was nothing more than to further the conversation and his comprehension about my ‘agoraphobic avaoidance’ (sic) when I mentioned that a psychiatrist I had recently seen suggested my ‘agoraphobia’ had arisen as a result of my 2015 diagnosed condition of ‘atrial flutter.’ I said I rejected that suggestion because my ‘agoraphobia’ was first formally diagnosed in 2012.
4.4As noted in part;
‘During our conversation the customer implied that she had a new diagnosis of agoraphobia which was the reason for her failing to lodge her claim for DSP earlier. I advised the customer that the available medical evidence did not support that was the case, as her agoraphobia appears to clearly relate to her mental health conditions relevant to her being granted the DSP. The customer advised that a doctor treating her for an atrial flutter, indicated that her agoraphobia may be the result of that condition. I advised the customer the available evidence does not appear to support that finding. I advised the customer that based on the available evidence I agree with the findings in relation to the start date being 7 November 2017. As such the decision was correct and affirmed.
I also advised the customer that in relation to her being granted NSA from 27 October 2017 that matter was not subject to this review. I had however noted no clear reason why she had been granted NSA from that date. In addition I had noted that a superannuation payment she had been getting had not been coded on from the start date of her NSA so I have asked that her record by (sic) reviewed. I advised the customer this may result in a debt being raised and advised. I advised some of the rules in relation to the possible waiver of debts and when this may apply. Advised the customer that is (sic) she does receive a debt notification at some point in time in the future, she may wish to request a review of the repayment of the debt. The customer threatened to go to the Ombudsman and I advised the customer that is her right to do so, however the Ombudsman has no power to change my decision. I again reminded the customer that if she disagrees with the decision she can contact the AAT to ask them for a review.’
4.5It is unlikely [the ARO] would have anticipated I would have had the opportunity to review and comment on the notes he supposedly made contemporaneously to our phone conversation. This might go some way to explaining the liberties he has taken with the truth and in providing a proper record of the conversation.
4.6At no time did I ‘threaten’ I would go to the Commonwealth Ombudsman (CO) about the potential debt that might be incurred due to an overpayment. I advised [the ARO] I would approach the CO for assistance regarding the unfair decision making process I was being subjected to after he advised me he was denying my claim because he did not accept my reasons for why I could not lodge my claim before 7 November 2017.
4.5(sic) Additional notes created by [the ARO] read as follows;
‘DSP claim submitted on 7 November 2017.
DSP subsequently granted from 7 November 2017.
Customer had been grated NSA effective from 27 October 2017, although appears to have been granted as DSP incapacitated claimant and no NSA claim was submitted. ARO was unable to determine why the start date of 27 October 2017 was used, however that decision is not subject to this review.
ARO notes the customer appears to have been overpaid NSA, due to superannuation the customer advised about not being coded from the 27 October 2017 when her NSA payments commenced from. Have sent a follow-up request to the home office to investigate and update the record accordingly.
Customer clearly has a medical condition which could significantly impact her ability to lodge her DSP claim. Medical evidence suggests however the customer has her brother visit her from time to time, so it would have been reasonable to believe the customer would have had the capacity to ask the brother to lodge any claim for DSP earlier.
Initial CCD was not recorded until 9 November 2017 and it was unclear where the customer obtained the DSP claim to lodge. The customer advised me during our phone conversation she had printed off the claim and mailed it in. She advised she then went to her local office to obtain a copy of the form and was given one to fill out.
Documents on the customer’s records indicates she had [Super] payments which ceased, which according to the customer was from August 2017. It is unclear why there was a gap between those payments ceasing and the application for DSP, although the customer asserted that she had a new medical condition of agoraphobia, which was the main reason she hadn’t lodged her DSP claim earlier.’
4.6This clearly demonstrates how [the ARO] manipulated what I said into a lie so that he could exclude my claim. I told him I had suffered from a severe episode of ‘agoraphobia’ with increased suicidal ideation. I did not even hint that my ‘agoraphobia’ was a new condition, that was entirely [the ARO’s] invention.
‘Letter from the customer’s doctor to Comcare dated 28 June 2017 appears to clearly indicate the customer had agoraphobia over a prolonged period of time, although that letter does note the agoraphobia had worsened over time. As such the agoraphobia appears to have been clearly diagnosed well prior to the customer’s claim and does not appear to be the sole reason for her not submitted (sic) her DSP claim within 5 weeks of her condition being diagnosed, as she was still receiving Comcare payments up until August 2017.’ (emphasis added)
4.7How does this prove ‘agoraphobia’ was not the sole reason for not submitting my claim? Also, [the ARO] does not seem to realise that I submitted the Dellar report with my claim for the DSP and knew specifically what the report contained as I was the person who requested the report and wrote the schedule of questions.
‘The customer’s workplace injury appears to have been in 2011. Comsuper payments up until August 2017 appears to be the reason the customer had not submitted a claim for DSP within 5 weeks of her workplace injury.’
4.8Is [the ARO] trying to make out the reason I did not make my claim within 5 weeks of my injury was because I had another source of income to rely on and that by implication it meant this was the ‘sole or principal reason’ I did not lodge my claim at an earlier time?
‘The customer has suffered her medical condition since 2011, so submitted her claim well over 5 weeks from the date she became incapacitated for work. She appears to have been on compensation payments until August 2017 according to the customer and did not lodge her claim until 7 November 2017. Based on the currently available, ARO does not consider there is sufficient evidence to support the customer’s incapacity was the sole or principal cause of her submitting her DSP claim prior to 7 November 2017. As such there is no basis for being able to backdate her claim under Clause 11 of the SSAA 1999.
4.9Everything I have canvassed here supports why these kinds of conversations should always be recorded to ensure there can be no reconstruction and no resiling from the facts as they have been put on record.
4.10It is also telling that in this particular case it is not possible to illicit the belligerent and passive-aggressive approach that [the ARO] took with me over the phone. It left me feeling that I had been discredited and dismissed by someone who was enjoying using their power over someone who was in a vulnerable position and in fragile health.
4.11[the ARO] suggested I was trying to persuade him to accept my ‘agoraphobia’ as a new condition, revealing his true motivation for stating I did this, especially where he has gone on to state he would not accept that my pre-exiting conditions were the legitimate basis for why I couldn’t lodge my claim earlier this prompting me to say I had a new condition.
4.13Excerpts from [the ARO’s] determination letter dated 13 March 2018 note;
‘The information recorded on your record and indicated during our phone conversation, was that you were under the impression that due to your medical condition the start day of your Disability Support Pension may be earlier than the date of your claim. As advised in some circumstances that is correct, however this does not apply in your case.’
4.14This above statement alone supports my contention that [the ARO] was being deliberately biased and prejudicial and was intending to teach me a lesson for challenging him over the phone for his adverse decision.
‘As noted above and during our phone conversation, if a person suffers from a medical condition and lodges a claim nore than 5 weeks subsequent to the date the incapacity for work began, and if the person has continued to suffer from the medical condition until the claim was made, and the Secretary is satisfied the medical condition was the sole or principal cause of the person’s failure to make a claim within 5 weeks after the day on which the incapacity began, the the (sic) claim may be backdated for 4 weeks.
In your case your incapacity for work appears to have been in 2011, although I did note you had a relapse in your condition on 22 May 2017. A relapse in a condition does not mean you had a new medical condition.’
4.15This is an important juncture in the narrative as once again it points to [the ARO] attempting to misrepresent my claim. The only purpose for the statement; ‘A relapse in a condition does not mean you had a new medical condition’ being made is because [the ARO] was trying to press that I had declared I was suffering from a new medical condition of ‘agoraphobia,’ which was entirely untrue and a wholly artificial construction of [the ARO’s] imagination.
‘I note your advice that you had been paid worker’s (sic) compensation payments up to August 2017. I also confirm your initial advice to me that was the reason you hadn’t submitted a claim for your Disability Support Pension around the time of your medical condition being diagnosed.’
4.16Again, this is entirely miseading. I confirmed I last received a compensation payment from Comcare on 16 August 2017. I did not state the reason I hadn’t submitted a claim was in any way related to the time when a medical condition was being diagnosed.
‘As advised, I do not find there is sufficient evidence to suggest that you failed to submit your claim for Disability Support Pension, solely or principally due to your medical condition/s.
During our phone conversation you advised that you suffered from a new medical condition of agoraphobia, which was the sole or principal reason for you not submitting your claim for Disability Support Pension prior to 7 November 2017.’
4.17The above statement given by [the ARO] is a complete and outright lie. A ‘false and misleading’ statement made in a Commonwealth administrative decision issued and kept for the purposes of a law of the Commonwealth.
4.18It shows that [the ARO] denied my claim based on a ‘false and misleading’ premise that he knowingly perpetuated with the clear intension of denying me the correct entitlements that were available under the Social Security (Admin) Act 1999 (SSAA).
4.19What exactly did [the ARO] think he was doing by taking these quotes from my treating psychologist completely out of context and then including them in the text of his denial decision? Obviously, he was determined to prove that my ‘agoraphobia’ was a pre-existing condition, as the next quote shows quite clearly;
‘Those statements from the doctor indicate your agoraphobia had been present well prior to the date of that letter which was many months prior to your claim relevant to this review and prior to your Comcare payments ending in August 2017. As such it appears evident that was not the sole or principal reason for you submitting your claim prior to 7 November 2017.’
4.20I’m at a total loss to understand why my ‘agoraphobia,’ irrespective of whether it existed from 2012 or a recent development would have been rejected for being the sole or principal cause for me not submitting my claim?
…
4.23For all intents and purposes it appears [the ARO] has deliberately not considered Dr. Dellar’s warning, ‘I continue to have some concerns over suicidality and potential for self- harm given the lack of social support and isolation. Mounting financial stress and persisting high levels of anxiety place Ms Hutchinson at moderate risk of suicide. My ongoing contact with Ms Hutchinson is to continue cognitive therapy whist (sic) monitoring her mental state to gauge risk. I am concerned that if treatment was to abruptly cease then her risk of suicide would significantly increase.’
4.24As has already been established, my compensation claim with Comcare was ceased on and from 16 August 2017, even though I suffered from a relapse or aggravation of my compensable conditions of ‘Major Depressive Disorder’ and ‘Post-Traumatic Stress Disorder’ on and from 22 May 2017.
4.25This reiterates the facts as they were and again posits the question of why I would ever have told [the ARO] I was suffering from ‘a new medical condition of agoraphobia’ when I was explaining the sole and principal reason for me not being able to submit my claim was due to my pre-existing, long-standing but a recently exacerbated episode of severe agoraphobic avoidance (agoraphobic avoidance being a subset of my PTSD symptomology) in concert with being suicidal and unable to get out of bed never mind leave the house to be able to lodge a claim with Centrelink for a DSP?
…
4.30This is a copy of the letter I wrote in complaint to [the ARO’s] phone conversation with me on 13 March 2018;
‘Centrelink Feedback ID: 8031038175
15 March 2018
I submitted another formal complaint to Centrelink on 27 February 2018 asking for the start date to be reviewed.
I received a phone call from a Team Leader in the Escalation section on 8 March 2018.
She was very apologetic for the delay in resolving my issues and assured me that I had provided exactly the information required to review the start date, that she would keep an eye on this matter personally and was going to give it to a review team with a five to ten day resolution time frame.
She also asked if I had anything further to add and I said I would be able to provide further evidence from my treating psychologist regarding the state of my mental health. She very clearly articulated it would not be necessary as they had everything they needed.
Before she concluded the call she asked me, ‘Are you okay? Do you need to access our social workers? Do you have support?’
On 13 March 2018 I spoke to [the ARO] a review officer.
He explained that after his assessment he had discovered that mistakes had been made and (Newstart) payments I had received from Centrelink prior to 9 November 2018 (from 27 October 2017) were not payable and had also not taken my superannuation into account.
[The ARO] said he had put the paperwork through to create the overpayment that I would have to repay to the Department.
I asked him to please explain why he had assessed that my claim should not be backdated?
He told me that it was in accordance with the Social Security Act legislation.
I appealed to him to be reasonable and explained that I was unable to lodge my application for a DSP due to an exacerbation of my psychological illness which occurred in May and caused a complete breakdown with the relationship with my psychologist, who I last saw in June.
From June until late September my agoraphobia became so severe, I was non- functional and suicidal so the possibility of applying for Centrelink benefits was the last thing on my mind.
It wasn’t until my psychologist contacted me in late September, out of concern for my well being (sic), that he arranged for me to see a GP, encouraged me to submit a claim for the DSP and began providing me with urgent psychological treatment.
‘I don't think I'll be changing my decision based on that,’ [the ARO] stated.
When I offered to send him more medical evidence to confirm my claims. ‘No need, I’m not going to change the decision.’
[The ARO] then said, ‘but your brother comes to visit you every couple of days, he would have been able to…’
I replied, ‘No, I have no-one, no family or friends to do anything for me. You must be thinking of someone else.’
‘I couldn’t have even posted an application in.’ [the ARO] challenged me again saying, ‘but you did end up posting the application in.’
‘Of course, but that was only after I had recommenced psychological treatment and had been to see a GP for a medical certificate at the end of September.’
[The ARO] then tried to convince me that because I was already suffering from a mental health injury, an exacerbation or another mental health injury was not going to make any difference to what was acceptable under the Act regarding backdating benefits.
He then reiterated that he would not be changing his decision based on the information I had provided and that I had the opportunity to get his decision reviewed by going to the Administrative Appeals Tribunal.
I said that before I have to resort to that I will return to the Ombudsman to see if I can get any further assistance.
The words were hardly out of my mouth before he jumped in with, ‘Well, that’s entirely your choice but the Ombudsman can’t do anything about changing my decision!’
And with that I said, ‘Thanks for nothing,’ and ended the phone call.
…
The Tribunal Decision
4.31I was denied ‘natural justice’ by the Department of Human Services (DHS) as I was not provided with a copy of the T-docs prior to the AAT hearing taking place although the decision of the Tribunal dated 29 June 2018 stated at 6; ‘On 29 June 2018 the tribunal conducted a hearing and determined the matter on the papers. The tribunal had before it a bundle of documents provided by Centrelink which had been copied to Ms Hutchinson (folios 1 to 125).’
4.32The Tribunal affirmed the decision under review. In its reasoning they ...’had (sic) regard to the Guide. Given that Ms Hutchinson was able to attend medical appointments in September 2017 and October 2017 the tribunal was not satisfied that she was so incapacitated by her agoraphobia that she was incapable of applying for income support and lodging her application.’
4.33This can hardly be considered acceptable reasoning provided in view of the medical evidence that was on hand and available to the Tribunal.
4.34The report of Dr. Brendon Dellar dated 28 June 2017 spoke extensively of my psychological ill health and in particular the significant risks of self harm and suicide that were evident in the period commencing from 20 July 2017 specifically. Those risks were not considered to be reasonably ameliorated until sometime during December 2017.
4.35However, the Tribunal has found it necessary to rely on a variety of spurious and out of context arguments to support their decision to deny my claim, in particular the report of Dr. Dellar as noted below;
‘24. The tribunal finds that Ms Hutchinson suffers from post-traumatic stress disorder and major depression and that following a conflict with her doctor she had a relapse on 22 May 2017. The medical certificates support this finding.
25.Ms Hutchinson seeks to rely on the agoraphobic symptoms referred to in Dr Dellar’s report as the reason for her incapacity.
26.The tribunal finds that Ms Hutchinson made her claim on 7 November 2017, more than five weeks after her incapacity began. The tribunal finds that Ms Hutchison’s reason for incapacity, whether that is the relapse of her post-traumatic stress disorder and major depression or agoraphobia began more than five weeks prior to making her claim for disability support pension. She was qualified when she made her claim for disability support pension and there is nothing to suggest that she was not qualified for disability support pension in the previous four weeks.
27.The issue is whether Ms Hutchinson’s post-traumatic stress disorder, major depression or agoraphobia were the sole or principal cause for the delay of her claim. The exception in subclause 11(2) of the Administration Act requires that not only must the medical condition incapacitate the person from working, but it must also be the sole or principal cause of the person’s failure to make a claim within five weeks of the onset of the condition and must have continued to be until the date of the claim.
28.The tribunal noted medical certificates dated 29 September 2017 and 21 October 2017 (sic) were provided. The earlier medical certificate referred to reviewing Ms Hutchison again in one month. The later medical certificate certified her unfitness for work/study from 27 October 2017 to 3 January 2018.’
4.36The Tribunal were (sic) incorrect to try and differentiate between my ‘agoraphobia’ presentation and my ‘post-traumatic stress disorder’ as

Dr. Dellar himself had specifically pointed to; ‘The current diagnosis is Posttraumatic Stress Disorder (chronic) and Major Depression. Agoraphobia is conceptualised as a part of the avoidance cluster of symptoms in PTSD.’
4.37Dr. Dellar had become concerned for my well being as I had not been able to continue my treatment with him after the incident involving my GP. At his insistence he arranged for me to see a GP and get a referral for a ‘mental health plan’ so he could begin urgent treatment with me. During the consultation with Dr. Stuart Patterson, GP I also asked for a medical certificate which was dated 29 September 2017.
4.38As you will note from the medical certificate dated 27 October 2017, it is a Centrelink specific certificate used for claiming the Disability Support Pension. Dr. Patterson issued this certificate on 27 October 2017 in anticipation of me making a completed application to Centrelink which I was able to do (not without enormous difficulty) over the next few days when I posted my application to the Fremantle office of Centrelink.
The Respondent’s Submission
…
4.45However, the claim I had the ability to organise my personal affairs based on evidence I could take daily medication and was undertaking weekly psychological counselling was information sourced from a document that I only completed on 25 October 2017. My relapse was in May 2017 and due to the breakdown of the relationship with Dr. Dellar at that time I was unable to re-establish the urgent psychological treatment I required until mid October 2017.
…
4.46It was only after I re-commenced treatment with Dr. Dellar that I was able to contemplate leaving the safety of my home and posting my application to Centrelink which I did on or about 30 October 2017.
…
4.47The Respondent has again misrepresented my position to my prejudice here by suggesting I failed to instruct my brother to lodge a claim on my behalf. However, my brother visits me no more often than once every six months as he is often travelling out of the country with work.

The Respondent contends in its Statement of Facts, Issues and Contentions (R1), dated 7 September 2017, that:
21.On 28 June 2017, a report from Dr Brendan Dellar, Clinical Psychologist, confirmed a diagnosis of posttraumatic stress disorder (chronic) and major depression (TS, pp 26) (the conditions). The onset of the Applicant’s conditions is reported to be 31 January 2011 (T10, pp 64).
22.It is reported that, on 22 May 2017, the Applicant suffered a relapse of the conditions (T6, pp 29).
23.The Applicant lodged their claim for the DSP on 7 November 2017. The Secretary contends that, as the Applicant lodged their claim for the DSP more than 5 weeks after the Applicant became incapacitated for work as a result of the conditions, subclause 11(2)(1) of the Administration Act is not capable of being enlivened in the circumstances.
24.The Secretary contends that, for the purposes of subclause 11(2)(2) of the Administration Act, the Applicant’s conditions were not the sole or principal cause of the Applicant’s failure to make her claim prior to 7 November 2017.
25.In the period following the relapse, the Applicant:
•evidenced an ability to organise her personal affairs (noting her reported ability to take daily medication (T9, pp 59));
•undertook weekly psychological counselling (T9, pp 59); and
•attended appointments with doctors on 29 September 2017 (T6, pp 29-30) and again on 27 October 2017 (T10, pp 64).
26.The Secretary contends that the Applicant’s ability to attend doctors’ appointments, undertake weekly psychological counselling and manage her personal affairs in relation to her medication confirms that the Applicant’s conditions were not such that she was prevented from either:
•attending a Centrelink office to lodge a claim; or
•posting a completed claim to Centrelink.
27.The Secretary also contends that the Applicant was capable of instructing others to make a claim on her behalf. In this regard, the Applicant's treating clinical psychologist advised that the Applicant was visited by her brother (T18, pp 77-80). The Secretary contends that the Applicant's failure to instruct her brother to lodge a claim on her behalf further evidences that the Applicant's conditions were not the sole or principal cause of the delay in lodging a claim for DSP.
28.The Secretary therefore contends that the Applicant is not eligible for a payment of DSP at a date that is earlier than 7 November 2017.
The Respondent’s supplementary Statement of Facts, Issues and Contentions, dated 10 October 2018 (R3), stated:
2.On 21 September 2018, the Secretary filed supplementary Tribunal documents pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (the Act).
3.The supplementary Tribunal documents consisted of:
(a)A letter from the Department of Human Services (Department) to the Applicant dated 1 June 2018. The letter enclosed the AAT1 reference documents which were posted to the Applicant;
(b)The Applicant’s Medicare Benefit Statement (MBS) for the period 22 May 2017 to 7 November 2017;
c)The Applicant’s Pharmaceutical Benefits Statement (PBS) for the period 22 May 2017 to 7 November 2017; and
(d)The Applicant’s Centrelink address history screen.
Explanation of the additional material
4.On 17 September 2018, the Applicant filed submissions with the Tribunal.
5.The Applicant submitted that she was not provided with a copy of the Tribunal documents for the AAT1 hearing. The Applicant asserted that this amounted to a denial of ‘natural justice’.
6.The Secretary submits that the Applicant’s postal address as recorded with the Department at 1 June 2018 (the date that the AAT1 documents were posted) was [redacted] (ST4, pp 148).
7.The Secretary submits that the AAT1 documents were posted to this address on 1 June 2018 (ST1, pp 140).
8.The Secretary concedes that the AAT1 documents were not posted to the address identified on the Applicant’s application for a review by the AAT1 (T25, pp 107-112).
9.Whilst the Applicant may not have had the benefit of the AAT1 document prior to the AAT1 hearing, the Applicant expressly requested for the AAT1 hearing to proceed ‘on the papers’ (T28, pp 116). It was open for the Applicant to request the matter to be adjourned, however, the Applicant expressly requested for the matter to proceed on the papers. Therefore, the Secretary submits that the Applicant was afforded natural justice in this matter.
10.At paragraph 4.46 of the Applicant’s submissions, the Applicant submitted that:
It was only after I re-commenced treatment with Dr. Dellar that I was able to contemplate leaving the safety of my home and posting my application to Centre/ink which I did on or about 30 October 2017.
11.The Secretary submits that the Applicant’s PBS record indicates that she was able to attend a pharmacy, or at the very least, instruct a third party to attend a pharmacy on her behalf on 7 occasions between the relapse of her condition and the lodgement of the claim for DSP (ST3, pp 147). The Secretary submits that these scripts were filled prior to recommencing treatment with Dr Dellar on 13 October 2017 (ST2, pp 145).
12.The Secretary submits that the Applicant was also able to attend 7 appointments with medical professionals between the date of the relapse of her condition and the lodgement of the claim for DSP (ST2, pp 145).
13.The Secretary contends that, the Applicant’s ability to attend medical appointments and pharmacies, or at the very least, instruct someone to collect scripts on the Applicant’s behalf, evidences that for the purposes of subclause 11(2)(2) of the Social Security (Administration) Act 1999 (Cth), the Applicant’s conditions were not the sole or principal cause of the Applicant’s failure to make her claim prior to 7 November 2017.
14.The Secretary therefore contends that the Applicant is not eligible for a payment of DSP at a date that is earlier than 7 November 2017.
Further, the Respondent’s supplementary submission (R3), dated 10 October 2018, stated:
Additional material provided by the Respondent
2.On 21 September 2018, the Secretary filed supplementary Tribunal documents pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (the Act).
3.The supplementary Tribunal documents consisted of:
(a)A letter from the Department of Human Services (Department) to the Applicant dated 1 June 2018. The letter enclosed the AAT1 reference documents which were posted to the Applicant;
(b)The Applicant’s Medicare Benefit Statement (MBS) for the period 22 May 2017 to 7 November 2017;
(c)The Applicant’s Pharmaceutical Benefits Statement (PBS) for the period 22 May 2017 to 7 November 2017; and
(d)The Applicant’s Centrelink address history screen.
Explanation of the additional material
4.On 17 September 2018, the Applicant filed submissions with the Tribunal.
5.The Applicant submitted that she was not provided with a copy of the Tribunal documents for the AAT1 hearing. The Applicant asserted that this amounted to a denial of ‘natural justice’.
6.The Secretary submits that the Applicant's postal address as recorded with the Department at 1 June 2018 (the date that the AAT1 documents were posted) was [redacted] (ST4, pp 148).
7.The Secretary submits that the AAT1 documents were posted to this address on 1 June 2018 (ST1, pp 140).
8.The Secretary concedes that the AAT1 documents were not posted to the address identified on the Applicant’s application for a review by the AAT1 (T25, pp 107-112).
9.Whilst the Applicant may not have had the benefit of the AAT1 document prior to the AAT1 hearing, the Applicant expressly requested for the AAT1 hearing to proceed ‘on the papers’ (T28, pp 116). It was open for the Applicant to request the matter to be adjourned, however, the Applicant expressly requested for the matter to proceed on the papers. Therefore, the Secretary submits that the Applicant was afforded natural justice in this matter.
10.At paragraph 4.46 of the Applicant’s submissions, the Applicant submitted that:
It was only after I re-commenced treatment with Dr. Dellar that I was able to contemplate leaving the safety of my home and posting my application to Centrelink which I did on or about 30 October 2017.
11.The Secretary submits that the Applicant’s PBS record indicates that she was able to attend a pharmacy, or at the very least, instruct a third party to attend a pharmacy on her behalf on 7 occasions between the relapse of her condition and the lodgement of the claim for DSP (ST3, pp 147). The Secretary submits that these scripts were filled prior to recommencing treatment with Dr Dellar on 13 October 2017 (ST2, pp 145).
12.The Secretary submits that the Applicant was also able to attend 7 appointments with medical professionals between the date of the relapse of her condition and the lodgement of the claim for DSP (ST2, pp 145).
13.The Secretary contends that, the Applicant’s ability to attend medical appointments and pharmacies, or at the very least, instruct someone to collect scripts on the Applicant’s behalf, evidences that for the purposes of subclause 11(2)(2) of the Social Security (Administration) Act 1999 (Cth), the Applicant’s conditions were not the sole or principal cause of the Applicant’s failure to make her claim prior to 7 November 2017.
The Applicant filed a supplementary submission with the Tribunal on 15 October 2018, which stated (A2):
My Supplementary Outline of Submission in Reply
1.    I rely on this supplementary outline of submission together with my submission filed on 17 September 2018 in reply.
Decision Under Review
2.A decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) dated 29 June 2018, that Ms Karen Hutchinson (Applicant) is to be paid the Disability Support Pension (DSP) from 7 November 2017.
Supplementary Material Provided by the Secretary
3.On 10 October 2018, the Secretary filed supplementary Tribunal documents pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (the Act).
4.The supplementary Tribunal documents consisted of:
(a)A letter from the Department of Human Services (Department) to the Applicant dated 1 June 2018. The letter enclosed the AAT1 reference documents which were posted to the Applicant; (emphasis added)
(b)The Applicant’s Medicare Benefit Statement (MBS) for the period 22 May 2017 to 7 November 2017;
(c)The Applicant’s Pharmaceutical Benefits Statement (PBS) for the period 22 May 2017 to 7 November 2017: (sic) and
(d)The Applicant’s Centrelink address history screen.
…
5.The supplementary documents purporting to be copies of those posted to me on 1 June 2018 are ‘false and misleading’ as all the reports incorporated as being the documents dated 1 June 2017 were not run until 21 September 2018.
Explanation of the Additional Material
6.James Pratt, the Respondent’s seconded lawyer wrote on 10 October 2018;
4.On 17 September 2018, the Applicant filed submissions with the Tribunal.
5.The Applicant submitted that she was not provided with a copy of the Tribunal documents for the AAT1 hearing. The Applicant asserted that this amounted to a denial of ‘natural justice’.
6.The Secretary submits that the Applicant’s postal address as recorded with the Department at 1 June 2018 (the date that the AAT1 documents were posted) was [redacted] (ST4, pp 148).
7.The Secretary submits that the AAT1 documents were posted to this address on 1 June 2018 (ST1, pp 140).
8.The Secretary concedes that the AAT1 documents were not posted to the address identified on the Applicant’s application for a review by the AAT1 (T25, pp 107-112).
9.Whilst the Applicant may not have had the benefit of the AAT1 document prior to the AAT1 hearing, the Applicant expressly requested for the AAT1 hearing to proceed ‘on the papers’ (T28, pp 116). It was open for the Applicant to request the matter to be adjourned, however, the Applicant expressly requested for the matter to proceed on the papers. Therefore, the Secretary submits that the Applicant was afforded natural justice in this matter.
7.I reject entirely the Secretary’s assertion that I was afforded ‘procedural fairness.’
8.Can the Secretary really be convinced that because I didn’t request an adjournment (in circumstances where the Respondent implies that I should have been compelled to do so) it shows that ‘natural justice’ has been observed?
9.On 25 June 2018 I provided the following advice to the AAT Registry;
Dear Registrar,
I wish to advise that I have not received the documents supposedly sent by the Dept. of Human Services.
I also wish to advise that I am not well enough to appear by phone before the Tribunal scheduled on;
Your application for review will be heard on: Date:         Friday, 29 June 2018
Time:       9:00am
I enclose a statement regarding my claim and request that the AAT continue to review the matter ‘on the papers.’
10.  At paragraph 4.46 of the Applicants submissions, the Applicant submitted that:
It was only after I re-commenced treatment with Dr. Dellar that I was able to contemplate leaving the safety of my home and posting my application to Centrelink which I did on or about 30 October 2017.
10.The Respondent has taken the above statement I made out of context to present the information in a more favourable aspect to the Secretary’s position. It is a manipulation of the evidence that again is being promulgated to deny me procedural fairness.
11.The original statement, as it was previously included in my 17 September 2018 submission reads as follows;
4.43The Secretary has confirmed its view that my conditions were not the sole or principal cause for why I was not able to lodge my claim earlier than 7 November 2017, as noted;
23. The Applicant lodged their claim for the DSP on 7 November 2017. The Secretary contends that, as the Applicant lodged their claim for the DSP more than 5 weeks after the Applicant became incapacitated for work as a result of the conditions, subclause 11(2)(1) of the Administration Act is not capable of being enlivened in the circumstances.
24. The Secretary contends that, for the purposes of subclause 11(2)(2) of the Administration Act, the Applicant’s conditions were not the sole or principal cause of the Applicant’s failure to make her claim prior to 7 November 2017.
4.45However, the claim I had the ability to organise my personal affairs based on evidence I could take daily medication and was undertaking weekly psychological counselling was information sourced from a document that I only completed on 25 October 2017. My relapse was in May 2017 and due to the breakdown of the relationship with Dr. Dellar at that time I was unable to re-establish the urgent psychological treatment I required until mid- October 2017.
26. The Secretary contends that the Applicant’s ability to attend doctors’ appointments, undertake weekly psychological counselling and manage her personal affairs in relation to her medication confirms that the Applicant’s conditions were not such that she was prevented from either:
·attending a Centrelink office to lodge a claim; or
·posting a completed claim to Centrelink.
4.46It was only after I re-commenced treatment with Dr. Dellar that I was able to contemplate leaving the safety of my home and posting my application to Centrelink which I did on or about 30 October 2017.
27. The Secretary also contends that the Applicant was capable of instructing others to make a claim on her behalf. In this regard, the Applicant’s treating clinical psychologist advised that the Applicant was visited by her brother (T18, pp 77-80). The Secretary contends that the Applicant’s failure to instruct her brother to lodge a claim on her behalf further evidences that the Applicant’s conditions were not the sole or principal cause of the delay in lodging a claim for DSP.
4.47The Respondent has again misrepresented my position to my prejudice here by suggesting I failed to instruct my brother to lodge a claim on my behalf. However, my brother visits me no more often than once every six months as he is often travelling out of the country with work.
28. The Secretary therefore contends that the Applicant is not eligible for a payment of DSP at a date that is earlier than 7 November 2017.
4.48The argument above, as put by the Respondent’s legal representative James Pratt is misleading and false in material particular and shows that he has knowingly avoided taking the Commonwealth’s ‘model litigant obligations’ into account and is perpetuating the waste of tax payer monies that are being routinely diverted into providing these unnecessary services for Commonwealth departments and agencies alike.’
11. The Secretary submits that the Applicant’s PBS record indicates that she was able to attend a pharmacy, or at the very least, instruct a third party to attend a pharmacy on her behalf on 7 occasions between the relapse of her condition and the lodgement of the claim for DSP (ST3, pp 147). The Secretary submits that these scripts were filled prior to recommencing treatment with Dr Dellar on 13 October 2017 (ST2, p 145).
12.Chemist Warehouse is around the corner from my home. The medications that are noted on the PBS report (Sotalol and Apixaban) are a blood thinner to prevent stroke and to regulate heart beat, associated with my condition of atrial flutter. Without these medications I was likely to suffer either a heart attack or stroke. Although I was experiencing severe agoraphobia and increased suicidal ideation at the time, I was not prepared to risk having a stroke or heart attack which might hinder my ability to end my life on my own terms and in the manner that I chose.
12.The Secretary submits that the Applicant was also able to attend 7 appointments with medical professionals between the date of the relapse of her condition and the lodgement of the claim for DSP (ST2, pp 145).
13.Again, this information has been presented in a manner that is entirely prejudicial to the real circumstances of my claim.
14.The consultation dated 29 September 2017 with Dr. S. Paterson was to get a ‘mental health care plan’ referral to Dr. Dellar so he could commence urgent treatment.
15.I began weekly psychological therapy with Dr. Dellar on 13 October 2017 which progressed on a weekly basis thereafter.
16.Dr. Dellar had to encouraged (sic) me to engage with Centrelink and apply for the DSP because I had no financial means and was paying for everything on credit cards.
17.I had to be convinced to participate in the Centrelink process as I was very reluctant to do so due to my adverse experience with Comcare and I was afraid that the trauma would be replicated in my Centrelink dealings. That fear was realised and the associated trauma escalated incrementally with every contact I have endured with the DHS and its agents since that time reaching its zenith with the Secretary’s current actions being taken against me in the AAT.
18.It is an important detail to note that Dr. Dellar’s rooms are located next door to my residential address… and it is entirely uncontroversial for people suffering from post traumatic stress disorder and major depression to perceive that the only safe environment for them is within their home.
19.I had to attend Dr. Stuart Paterson on 27 October 2018 to be issued with an appropriate Centrelink medical certificate that certified he considered I was likely to be completely incapacitated for at least the next two years so that the medical certificate would be appropriate for DHS’ assessment for the DSP and not other related Centrelink payments.
20.The Tribunal’s decision of 29 June 2018 noted;
‘The tribunal had regard to the Guide. Given that Ms Hutchinson was able to attend medical appointments in September 2017 and October 2017 the tribunal was not satisfied that she was so incapacitated by her agoraphobia that she was incapable of applying for income support and lodging her application.’
21.The fact that it is necessary to apply for income support and lodge an application only after medical evidence is received from a GP or treating psychiatrist (in circumstances where psychological illness is the cause of the disability) means that sensibly, I had to attend the medical appointments cited above before I could lodge my application.
22.It is not sufficient to say that because I was able to attend these medical appointments it shows that my medical conditions were not the ‘sole or principal cause’ for not lodging my application. To maintain this in the face of the evidence presented is prejudicial, biased and discriminatory.
13. The Secretary contends that, the Applicant’s ability to attend medical appointments and pharmacies, or at the very least, instruct someone to collect scripts on the Applicant’s behalf, evidences that for the purposes of subclause 11 (2)(2) of the Social Security (Administration) Act 1999 (Cth), the Applicant’s conditions were not the sole or principal cause of the Applicant’s failure to make her claim prior to 7 November 2017.
23.Again, I’m not sure what the Respondent is implying here? How does my ability to attend medical appointments and a pharmacy show that my ‘conditions’ were not the sole or principal cause for my failure to make a claim prior to 7 November 2017?
24.Seriously, if it was not for my medical ‘conditions,’ what else would have constituted the reason for the delay?
Facts for Consideration
•Dr. Dellar produced a medical report dated 28 June 2017 that was believed would be sufficient to prevent the cessation of my compensation claim,
•Comcare ceased my compensation claim on 20 July 2018 with my last incapacity payment being received on 16 August 2017,
•Dr. Dellar contacted me sometime in September 2018 out of concern for well being. He arranged a GP home visit so I could get ‘mental health care plan’ and he could commence urgent psychological care for me.
•I was not thinking about any of the practical aspects of my circumstances, still believing that a reconsideration request I made to Comcare would be successful as it was based on Dr. Dellar’s report which provided overwhelming evidence that my compensable conditions were continuing and that I was experiencing increased suicidal ideation and was at imminent risk of self harm or suicide,
•The reconsideration request was unsuccessful and the AAT appeal in relation to that decision is pending,
•On 26 September2018 (sic) I received an email from the Tribunal stating in part;
‘I refer to the above matter and the hearing listed on 18 October 2018.
Member Edwardes advises that the issues for determination in this matter can be dealt with in the absence of the parties.
Can you please therefore advise if you consent to the hearing being determined on the papers.’
I confirmed my agreement on the same day and then on 27 September 2018 James Pratt wrote in response to all parties;
‘The Respondent respectfully opposes this particular matter being heard on the papers.
The Respondent considers that there are issues relating to the evidence in this matter that need to be ventilated through a hearing.’
•On 28 September 2018 I received ‘Supplementary “T documents”’ at my home address. They appeared to be a hastily prepared document with no explanatory advice but obviously were supposed to be accepted as the documents that I didn’t receive that related to the original hearing.
As the document you have provided dated 10 October 2018 is ‘false and misleading’ in a material particular and will be kept, retained or issued for the purposes of a law of the Commonwealth; and you have given ample evidence of your intention to cause a loss.
145.5   Giving information derived from false or misleading documents
(1)A person is guilty of an offence if:
(a)the person dishonestly gives information to another person; and
(b)the information was derived, directly or indirectly, from a document that, to the knowledge of the first-mentioned person, is false or misleading in a material particular; and
(c)the document is:
(i)     kept, retained or issued for the purposes of a law of the Commonwealth; or
(ii)     made by a Commonwealth entity or a person in the capacity of a Commonwealth public official; or
(iii)     held by a Commonwealth entity or a person in the capacity of a Commonwealth public official; and
(d)the first-mentioned person does so with the intention of:
(i)     obtaining a gain; or
(ii)     causing a loss. Penalty: Imprisonment for 7 years.
Conclusion
In conclusion, I insist that the Office of Legal Services Coordination (OLSC) is advised of the Respondent’s overt and continuing breaches of the MLOs and that consideration be given to referring the above matter to the Australian Federal Police.
The AAT should consider it as germane to their overarching responsibilities to the administration of justice to see that the above matter is so referred.
CONSIDERATION

The Tribunal notes that in the Applicant’s written submission to AAT1 she stated:
…
15I appealed to him to be reasonable and explained that I was unable to lodge my application for a DSP due to an exacerbation of my psychological illness which occurred in May and caused a complete breakdown with the relationship with my psychologist, who I last saw in June.
From June until late September my agoraphobia became so severe, I was non-functional and suicidal so the possibility of applying for Centrelink benefits was the last thing on my mind.
It wasn’t until my psychologist contacted me in late September, out of concern for my well being (sic), that he arranged for me to see a GP, encouraged me to submit a claim for the DSP and began providing me with urgent psychological treatment.
‘I don’t think I’ll be changing my decision based on that,’ [the ARO] stated.
When I offered to send him more medical evidence to confirm my claims. ‘No need, I'm not going to change the decision.’
[The ARO] then said, ‘but your brother comes to visit you every couple of days, he would have been able to…’ I replied, ‘No, I have no-one, no family or friends to do anything for me. You must be thinking of someone else.’
‘I couldn't have even posted an application in.’ [The ARO] challenged me again saying, 'but you did end up posting the application in.’
‘Of course, but that was only after I had recommenced psychological treatment and had been to see a GP for a medical certificate at the end of September.’
[The ARO] then tried to convince me that because I was already suffering from a mental health injury, an exacerbation or another mental health injury was not going to make any difference to what was acceptable under the Act regarding backdating benefits.
Basically, [the ARO] staunchly refused to accept that I was unable to lodge my application before 9 November 2017.
16.In her written submission Ms Hutchinson referred to the Guide at 8.3.3.10 which discusses Backdated Start Days. In particular Ms Hutchinson sought to rely on her start day being earlier that the day she made her claim due to being an incapacitated applicant.
The Tribunal notes the Applicant was employed as a Claims Manager with Comcare from 1998 to 2014 (T18, 83).
The Tribunal notes the Applicant has been diagnosed with post-traumatic stress disorder (PTSD) and major depressive disorder by Dr Paterson (GP) and Dr Dellar (Clinical Psychologist) (T20, 87). The Tribunal also notes that the medical condition of Agoraphobia was identified as also impacting on the Applicant (T19, page 86).
The Tribunal notes the ARO found that the Applicant’s incapacity for work occurred in 2011 (T23, 97). The ARO also states there was a relapse in the Applicant’s conditions of post-traumatic stress disorder and major depression on 22 May 2017 (T23, 97).
The Tribunal noted the Applicant’s workers compensation payments ceased in August 2017.
The Tribunal notes the ARO concluded that the reason why the Applicant failed to file a DSP claim within five weeks of her workplace injury as required under the legislation was because she was in receipt of workers compensation payments until August 2017 (T23, 100).
The Tribunal notes a claim for the Disability Support Pension was approved from
7 November 2017; the date the claim was reviewed by the Department (T21, 91-93).
The Tribunal has to determine whether the Applicant’s medical conditions were the primary cause for the claim not being lodged within five weeks from the date of incapacity.
Section 11(2) of Schedule 2 of the Administration Act requires the Tribunal to not only give consideration to the Applicant’s medical conditions but requires that these conditions be the sole reason as to why an application was not lodged within the prescribed time.
The Tribunal notes the ARO report which states (T23, 96-97)
As noted above and during our phone conversation, if a person suffers a medical condition and lodges a claim more than 5 weeks subsequent to the date the incapacity for work began, and if the person has continued to suffer from the medical condition until the claim was made, and the Secreatary is satisfied the medical condition was the sole or principal cause of the person’s failure to make the claim within 5 weeks after the day on which the incapacity began, then the claim may be backdated for 4 weeks… I note your advice that you had been paid worker’s (sic) compensation payments up to August 2017. I also confirm your initial advice to me that was the reason you hadn’t submitted a claim for Disability Support Pension around the time of your medical condition being diagnosed.
The Tribunal is not persuaded by the Applicant that her medical conditions were the sole reason for her not lodging her claim earlier than 7 November 2017. The Tribunal finds that there is no evidence to suggest that the Applicant’s medical conditions precluded her from lodging her claim within the prescribed timeframe.
The Tribunal notes the contention of the Respondent that there is evidence, demonstrated through the Applicant’s pharmaceutical records, to show “that she was able to attend a pharmacy, or at the very least instruct a third party to attend a pharmacy” (R3). The Tribunal takes the view that the Applicant’s explanation to this contention of the Respondent failed to adequately address why she was not able to file her claim earlier (A2).
Having considered each of the submissions before it carefully, the Tribunal views the medical conditions for which the Applicant has been diagnosed as longstanding conditions. The Tribunal finds that the Applicant’s failure to lodge her claim for DSP until
7 November 2017 suggests that the reason for her delay was that she was still in receipt of compensation payments until August 2017, not that her medical conditions prevented her from lodging her claim earlier.
The Tribunal, therefore, finds that the Applicant’s failure to lodge her claim for DSP earlier cannot be solely or primarily attributed to her medical conditions.
DECISION
The Tribunal affirms the decision of AAT1.

I certify that the preceding 42 (forty -two) paragraphs are a true copy of the reasons for the decision herein of Member C Edwardes

........................................................................
Associate
Dated: 21 December 2018

Date of hearing: Hearing on the papers

Applicant: Self-represented

Solicitors for the Respondent: Department of Human Services

[2018] AATA 4673

21 December 2018

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Jurisdiction

Procedural Fairness

Standing

Statutory Construction

Natural Justice

Date of hearing:	Hearing on the papers
Applicant:	Self-represented
Solicitors for the Respondent:	Department of Human Services