Jason Overton and Secretary, Department of Social Services
[2015] AATA 318
•15 April 2015
[2015] AATA 318
Division GENERAL ADMINISTRATIVE DIVISION File Number
2014/5237
Re
Jason Overton
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Senior Member Bernard J McCabe
Date 15 April 2015 Date of written reasons 13 May 2015 Place Brisbane The application for reinstatement is refused.
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Senior Member Bernard J McCabe
CATCHWORDS
PRACTICE AND PROCEDURE – application for reinstatement – power to reinstate – relevant considerations – explanation for non-appearance – merits of the case – substantive claim for disability support pension – no evidence applicant satisfies ‘medical criteria’ – no evidence diagnosed condition was fully treated and fully stabilised – substantive application for review unlikely to succeed – application for reinstatement refused.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 42A
Social Security Act 1991 (Cth) s 94
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) Pt 3
REASONS FOR DECISION
Senior Member Bernard J McCabe
13 May 2015
Introduction
A decision was made in this matter and oral reasons were given on 24 April 2015.
The applicant subsequently requested written reasons for the decision. These reasons have been prepared based on the hearing transcript.
This is an application for reinstatement under section 42A of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”). The application relates to proceedings that were dismissed pursuant to section 42A(2) of the AAT Act on 9 March 2015.
The proceedings related to Mr Overton’s claim for Disability Support Pension (DSP). He had been unsuccessful before coming to the Tribunal. He was advised in a conciliation conference to obtain some further evidence ready for the hearing on 9 March 2015.
He did not appear at the hearing on 9 March 2015 and the matter was dismissed.
Legislation
The power to apply for the reinstatement of an application under subsections 42A(8)
and 42A(9) of the AAT Act is available where an application has been dismissed for
non-appearance under s 42A(2). The Tribunal may reinstate the application under subsection 42A(9) of the AAT Act if it considers it appropriate to do so in all the circumstances of the case.
Relevant considerations
When making a decision about whether to reinstate an application pursuant to subsection 42A(9) of the AAT Act, the Tribunal looks at all the circumstances to work out whether it is just and appropriate to make an order for reinstatement. One of the things to consider is the reason why the applicant failed to appear in the first place. It might be harsh if, for example, an applicant were prevented from coming to the Tribunal by something beyond his or her own control.
Here the applicant has given two reasons for his non-appearance. Mr Overton said,
in particular, that he was unable to obtain copies of two reports that he had been advised to obtain. He said mental health authorities were remiss in not providing them to him in a timely manner despite his requests. Mr Overton also said he did not appear at the hearing at the appointed time (although he said he did arrive at a later time, after the hearing had concluded) because he “had a big weekend” and because he had not slept well.The second of those reasons is not very good. Parties to a proceeding are expected to appear at the appointed time and to have made, in advance, the necessary arrangements to ensure they are prepared to present their case before the Tribunal.
I have more sympathy for the fact the applicant says he did not have access to the documents and that he experienced delays in obtaining copies of reports from relevant mental health authorities. I accept that is the case.
However, even then, Mr Overton should have come to the hearing and, at a minimum, explained the problem so that it could be dealt with appropriately. It is possible that, had that occurred, the Tribunal or the respondent could have made an inquiry of mental health authorities and obtained the documents for the applicant. It follows Mr Overton does not have a very compelling reason for his failure to attend the hearing with a view to at least explaining the situation.
But that is not necessarily the end of the matter: just because an applicant does not have a good excuse does not automatically mean he or she is not entitled to reinstatement.
The Tribunal must consider other factors as well. Ms Forsyth, on behalf of Centrelink, said there would be no particular prejudice to the respondent if the matter were to proceed. Files had not been destroyed; witnesses had not been lost. Ms Forsyth did point out, however, that if the application were not reinstated, Mr Overton would still be able to apply again for DSP. There is nothing to stop him from making a fresh application.
It may well be the case that Mr Overton would be in a better position to receive DSP now than he was when he made the application that gave rise to these proceedings.I emphasise the Tribunal’s task is to assess the applicant’s entitlement to DSP at the time the claim was made. The Tribunal can only consider how the applicant was from the date the claim was made on 15 January 2013, and in the thirteen weeks that followed.
That is a difficult exercise, because the Tribunal must assess how Mr Overton was two years ago. I cannot use the benefit of hindsight.The application for reinstatement really turns on the merit of the case. That requires a discussion about the rules that apply to the award of DSP – in particular, what they call the ‘medical criteria’ set out in section 94 of the Social Security Act 1991.
The rules establish a number of conditions that one must satisfy before being eligible for DSP. It is not enough to simply say that one is sick and cannot work, and should therefore receive DSP. In order to qualify for DSP, the rules say Mr Overton must satisfy a number of specific medical criteria.
Firstly, the decision-maker must be satisfied Mr Overton has a medical condition or conditions. I understand there is no dispute about that. It is accepted Mr Overton has a psychiatric issue. He may have a back issue as well, but there is certainly, at least,
a psychiatric issue.The next requirement is that Mr Overton’s condition must attract at least 20 points on the ‘Impairment Tables’. These are found in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011. There is an impairment table for every conceivable part of the body. Whether it is an upper limb condition, a lower limb condition, a back condition or a psychiatric condition, there are different tables which try and assess how debilitated a person is as a result of his or her medical condition.
Before the impairment tables can be applied, there are preliminary things that have to be addressed. In particular, the decision-maker must be satisfied the applicant has a condition that has been appropriately diagnosed by a properly qualified medical practitioner – that is, one with psychiatric training, or a clinical psychologist. I do not need to reach a concluded view about it: there appears to be some evidence that
Mr Overton was, in fact, diagnosed, so the reports he has provided have been helpful to that extent.It is also necessary that the Tribunal be satisfied the conditions were fully treated and fully stabilised, because DSP is only available to individuals who are going to be ill on an ongoing basis, despite the best efforts to make them better. The difficulty in this case is that in the first quarter of 2013, even though it is accepted there was a diagnosis, there is little evidence of the diagnosed condition having been fully treated, much less fully stabilised. Indeed, Mr Overton has said he did not go and see doctors until he saw
Dr Young (who completed a report dated 23 January 2013 for the purposes of
Mr Overton’s DSP claim).Mr Overton has argued further medical evidence is unnecessary as he is treating himself and that, in any event, information about his condition and its impact has to come from him. However, the rules specifically state that self-reporting is not enough. The Tribunal needs some corroboration. If the applicant were to go and see an appropriately-qualified medical practitioner, it is certainly possible that would lead to the creation of the corroborating documentation necessary to support a future application for DSP.
But at the time Mr Overton’s application for DSP was made, and in the thirteen weeks thereafter, it is not clear what the situation was. That means the documentation does not show Mr Overton’s condition was fully treated (or fully stabilised). As a consequence, even if the application were to be reinstated, the Tribunal could not give Mr Overton a rating under the impairment tables. That means Mr Overton’s application would ultimately be unsuccessful.Mr Overton said not every illness has to be treated, and that sometimes it is appropriate to do nothing. It may be true there are some conditions that will not improve despite medical treatment. It is also true individuals can generally refuse treatment they do not want. But the rules governing the administration of the DSP require that applicants for DSP provide evidence that they have at least sought – and complied with – reasonable treatment options from an appropriately qualified medical practitioner. Evidence might include a statement from a doctor saying there is no reasonable treatment for a particular condition, or that any further treatment will be futile. The decision-maker can consider that evidence from the doctor. Without such evidence, Mr Overton’s application for DSP cannot succeed.
I have emphasised that Mr Overton can still make a fresh application now for DSP, with the benefit of appropriate medical reports which document the opinions of his treating doctors and the treatment plan(s) in place, as well as the outcome of those treatments. It is possible that, if he were to obtain appropriate medical evidence of his treatment, a future application made by Mr Overton would be successful. But if the present application were reinstated, the Tribunal would not have enough information to make a decision about what was occurring at the beginning of 2013, when Mr Overton made his application for DSP.
Conclusion
Even if the Tribunal accepts the excuse provided by Mr Overton for his failure to attend the hearing on 9 March 2015, reinstating the application would encourage the applicant to pursue a case that has no prospect of success. Mr Overton will be much better served if he makes a fresh application for DSP with appropriate medical documentation of his condition and treatment.
In the circumstances, I am satisfied it is not appropriate to order the reinstatement.
I certify that the preceding 21 (twenty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe. ........................................................................
Associate
Dated 13 May 2015
Date of hearing 15 April 2015 Applicant In person Advocate for the Respondent Department of Human Services
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