Jozwiak and Secretary, Department of Family and Community Services
[2004] AATA 610
•16 June 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 610
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2003/868
GENERAL ADMINISTRATIVE DIVISION ) Re PETER ALAN JOZWIAK Applicant
And
SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES
Respondent
DECISION
Tribunal Deputy President Don Muller Date16 June 2004
PlaceBrisbane
Decision The Tribunal affirms the decision to reject the claim for Disability Support Pension, pursuant to the provisions of the Social Security Act 1991, made by Peter Alan Jozwiak on 22 April 2003. ................SIGNED..............................
D.W. MULLER
DEPUTY PRESIDENT
CATCHWORDS
SOCIAL SECURITY – disability support pension – applicant refused pension on basis applicant in gaol - psychiatric confinement whilst serving a prison sentence – lawfully detained in connection with conviction for an offence – decision affirmed
Social Security Act 1991: s23(1), (5), (8), (9), 1158
Mental Health Act 2000 (Queensland): ss.58, 65(1), 70
Corrective Services (Establishment of Prisons) Regulations 1992 (Qld)
Blunn v Bulsey (1994) 53 FCR 572
Garden v Secretary, Department of Family & Community Services (2001) 111 FCR 312
Franks v Secretary, Department of Family & Community Services (2002) 125 FCR 212
REASONS FOR DECISION
Deputy President Don Muller 1.Peter Alan Jozwiak, the Applicant, was in psychiatric confinement whilst serving a prison sentence when he applied for Disability Support Pension (DSP), pursuant to the provisions of the Social Security Act 1991. His application was rejected on the basis that he was not entitled to DSP while he was in gaol. He seeks a review of that decision on the ground that he was not in gaol at the time he made his application for DSP.
2.Section 1158 of the Act prohibits the payment of some social security pensions during a period that the person is in gaol (or in psychiatric confinement following a criminal charge). The section reads:
“1158 An instalment of a social security pension, a social security benefit, a parenting payment, a mobility allowance or a pensioner education supplement is not payable to a person in respect of a day on which the person is:
(a) in gaol; or
(b)undergoing psychiatric confinement because the person has been charged with an offence.”
3.The following sections are also relevant to this review:
“23(1) “social security pension” means:
…
(b) a disability support pension;
…
23(5) [Person in gaol] For the purposes of this Act, a person is in gaol if the person:
(a)is imprisoned in connection with the person’s conviction for an offence; or
(b)is being lawfully detained in a place other than a prison, in connection with the person’s conviction for an offence; or
(c)is undergoing a period of custody pending trial or sentencing for an offence.”
4.Other subsections mentioned during the course of the hearing were:
“23(8) Psychiatric confinement. Subject to subsection (9), “psychiatric confinement” in relation to a person includes confinement in:
(a) a psychiatric section of a hospital; and
(b)any other place where persons with psychiatric disabilities are, from time to time, confined.
23(9) [Course of rehabilitation] The confinement of a person in a psychiatric institution during a period when the person is undertaking a course of rehabilitation is not to be taken to be psychiatric confinement.”
5.The following facts are not in dispute and the Tribunal finds as follows:
(a)Mr. Jozwiak was born on 31 May 1982 and is currently 22 years of age.
(b)In August 2002 Mr. Jozwiak was convicted of property offences and sentenced in the Toowoomba Magistrates Court to serve a term of imprisonment of one year and nine months with an earliest release date of 13 November 2003.
(c)On 4 October 2002 Mr. Jozwiak escaped lawful custody from Westbrook Corrections Facility.
(d)It is alleged that in the time between his escape on 4 October 2002 and his recapture by the Toowoomba police on 7 October 2002, he committed three further property offences.
(e)On 15 October 2002 Mr. Jozwiak appeared before the Toowoomba Magistrates Court and was charged with escaping lawful custody and also with various property offences while he was “on the run”.
(f)On 17 December 2002 Mr. Jozwiak was scheduled to appear before the Toowoomba Magistrates Court in connection with escaping from lawful custody and the further property charges, but was excused.
(g)On 15 April 2003 the General Medical Officer at the Toowoomba watch house recommended that Mr. Jozwiak should have a psychiatric assessment.
(h)On 16 April 2003 Ms. Tynan, Magistrate, ordered that Mr. Jozwiak undergo a psychiatric assessment pursuant to section 58 of the Mental Health Act 2000 (Qld).
(i)Instead of having the psychiatric assessment carried out, Mr. Jozwiak was returned to Wolston Correctional Centre. On 18 April 2003 a second referral for a psychiatric assessment was requested by the mental health personnel from the prison authorities, when they became aware that the Magistrate’s Order had not been complied with.
(j)On 18 April 2003, Mr. Jozwiak was removed from Wolston Correctional Centre and placed in Toowoomba Base Hospital Mental Health Unit.
(k)On 19 April 2003, Mr. Jozwiak was examined by Dr. Phillipson, Consultant Psychiatrist, who reported:
“This person has a mental illness characterised by delusional beliefs and formal thought disorder. He requires immediate and ongoing treatment which is available at the Toowoomba Mental Health Service. He is likely to suffer serious harm if untreated and lacks the capacity to consent to treatment.”
(l)On 22 April 2003 Mr. Jozwiak applied for a Disability Support Pension.
(m)On 23 April 2003, Mr. Jozwiak was removed to Baillie Henderson Hospital and was detained there as a classified patient pursuant to section 70 of the Mental Health Act (Qld) 2000. He was placed in the Ridley Unit “due to high risk of absconding, classified status and ongoing detention purposes”.
(n)Baillie Henderson Hospital is a psychiatric hospital but it is not a place which is declared to be a prison under the Corrective Services (Establishment of Prisons) Regulations 1992 (Qld).
(o)On 6 May 2003 Dr. Phillipson provided a report to the Director of Mental Health stating that Mr. Jozwiak was at that time unfit to stand trial, although he was likely to have been of sound mind at the time of committing the alleged offences.
(p)On 13 May 2003 an officer of Centrelink refused Mr. Jozwiak’s application for DSP.
(q)The decision to refuse DSP was affirmed by an authorised review officer on 19 June 2003 and by the SSAT on 10 September 2003.
(r)On 23 September 2003 the Mental Health Review Tribunal decided to continue Mr. Jozwiak’s Involuntary Treatment Order.
(s)On 13 November 2003 Mr. Jozwiak’s original sentence was discharged. The time spent in Baillie Henderson Hospital counted towards the completion of his sentence.
(t)Mr. Jozwiak was subsequently granted DSP with effect from 15 November 2003.
(u)As at the date of this hearing, 24 March 2004, Mr. Jozwiak continued to be held at Baillie Henderson Hospital as an involuntary patient pursuant to s.71 of the Queensland Mental Health Act.
6.The material placed before the Tribunal does not indicate that Mr. Jozwiak was undertaking any specific course of rehabilitation at the time he made his application for DSP. However, the Tribunal accepts that any hospitalisation would involve a degree of rehabilitation. Indeed, a social worker at Baillie Henderson reported as follows on 3 September 2003.
“The question of Rehabilitation : Extended Inpatient Service – Ridley Medium Secure Unit.
The assessment & treatment work of the multi-disciplinary team commences from day one. The notion of rehabilitation sits within a mental health framework, thus it is this notion which directs the complex work and significant achievements needed in stabilising the overall mental health of the client in a medium secure setting, seeking gradual re-integration into the community, with suitable health-care and social supports.
I refer to the form submitted to Toowoomba Centrelink to assist Peter’s income claim, namely “Additional Information for Disability Support Pension”. This outlines for our client in suitable terms we hope, the focus and method for managing and assessing initial rehabilitation, medical condition, and Assessment/treatment.
Dated May to July 2003, this form provides an account of the initial approach toward the rehabilitation process in which we seek to engage the client. Despite the serious and persistent nature of Peter’s impairment in the first 2-3 months of this, Peter’s first acute admission into an adult psychiatric service, the process of re-integration of the self and management of the medical condition is prioritised. The rehabilitation process moves forward, once any setbacks or relapse in the client’s condition settles.”
7.It was common ground between the parties that Mr. Jozwiak was not undergoing psychiatric confinement because he had been charged with an offence. Subsection 1158(b) is not relevant to this review.
8.The issue to be determined by the Tribunal is whether, at the time he made his application for DSP and during the relevant period following the application, Mr. Jozwiak was “in gaol” within the meaning of that term in sub section 1158(a) of the Act.
9.Subsection 23(5) sets out three alternative criteria for determining whether a person is “in gaol” for the purposes of the Act. In the case of Mr. Jozwiak the relevant criterion is contained in subsection 23(5)(b). That is, was Mr. Jozwiak being lawfully detained in a place other than a prison, in connection with his conviction for an offence?
10.It was submitted by Counsel for Mr. Jozwiak that his detention in Baillie Henderson Hospital was because he was suffering from a mental illness, not in connection with the original property convictions that had placed him in prison. Therefore, it was submitted, Mr. Jozwiak was not “in gaol” for the purposes of the Act and he was entitled to receive the DSP from 22 April 2003.
11.It was submitted on behalf of the Respondent that in April 2003, Mr. Jozwiak was being lawfully detained in connection with his convictions for property offences. That is, he was in “gaol” within the meaning of that term in subsection 23(5)(b) of the Act and not entitled to receive DSP.
12.The Tribunal was referred to three Federal Court cases in which the relationship between sections 1158, 23(5), 23(8) and 23(9), or their predecessors, was examined. They were Blunn v Bulsey (1994) 53 FCR 572, Garden v Secretary, Department of Family and Community Services (2001) 111 FCR 312, and Franks v Secretary, Department of Family and Community Services (2002) 125 FCR 212.
13.In Blunn v Bulsey, Einfield J came to the following conclusion:
“24. Mr Bulsey is serving a term of imprisonment following a conviction for murder. He was removed from prison to hospital for treatment for mental illness, unconnected with the conviction, pursuant to section 43 of the Queensland Act. As he has a life sentence, it is most likely that if he is ever released from the hospital, it will be under section 43(6) and he will be returned to prison. The fact that he was serving a prison sentence at the time of his removal means that he was admitted to and will be released from hospital under a different legislative provision to members of the general public with similar mental illnesses. However, like all other patients detained in the hospital, he is there because of conclusions drawn about his mental state and need for treatment. He will stay there until it is determined under section 43(6) that he no longer needs to remain, a decision that will be solely based on his mental condition, irrespective of his status as a convict. If he still has time to serve, he will be returned to prison. Otherwise he will be released. The fact that his sentence comes to an end does not of itself affect the period he will spend in the hospital. In fact his present mandatory life sentence underscores that his detention in the hospital, however long it lasts, is completely separate to his prison sentence.”
14.In Garden’s case, Gray J did not follow the reasoning of Einfield J in Bulsey. Gray J. concluded as follows:
“24. The legislative assumption is that a sentence will be served either in a prison or in some other place of detention. In either case, the removal of the right to social security benefits by the Social Security Act is intended to follow. If the legislation be viewed in this way, it matters not that a person might be transferred back and forth between a prison and a hospital, depending upon variations in his or her mental condition. Throughout the time of detention, the person will be either imprisoned or detained in a place other than a prison while serving the sentence imposed by the court following conviction for an offence.
25. It is therefore incorrect to say, as Einfield J did in Blunn v Bulsey, that there must be more than just a temporal coincidence between the detention and the conviction. In my view, the temporal coincidence between the detention and the continuation of a sentence of imprisonment imposed following a conviction is of primary importance. To be lawful, detention in a place other than a prison must result from the exercise of a power to detain. In the case of a prisoner transferred to a place other than a prison because of his or her mental condition, the detention will usually only be lawful because the person continues to serve a sentence of imprisonment.
26. It is also necessary to have regard to the second limb of s 1158(a). That provision deprives a person of a right to receive social security if that person is undergoing psychiatric confinement because he or she has been charged with committing an offence. It is designed to deal with those who have been charged with offences, but not with those who have been convicted of offences. It operates in relation to those who have been remanded in custody while awaiting trial, those who have been found unfit to be tried because of their mental condition, and those who have been acquitted on the ground of their mental condition. It follows that those patients in Thomas Embling Hospital, and similar establishments, who are in these categories, are deprived of their rights to social security unless undertaking courses of rehabilitation. In such cases, successful rehabilitation will lead to a right to be released on bail, a trial with the possibility of acquittal, or to release, as the case may require. In the case of someone in the applicant’s position, successful rehabilitation would lead to a return to prison, until the rest of the sentence is served. To treat someone in the applicant’s position as being ‘in gaol’ for the purposes of the Social Security Act is not therefore irrational, but accords with the legislative purpose.
27. Counsel for the applicant suggested that the legislative intention was that anyone undergoing a course of rehabilitation in respect of a mental illness should not be disentitled from claiming a pension by reason of serving a sentence of imprisonment. This intention is express in relation to those covered by s 1158(a)(ii), by reason of s 23(9) of the Social Security Act. The argument seemed to be that the intention was revealed in relation to those covered by s 1158(a)(i) by the use of the words ‘in connection with the person’s conviction for an offence’ in s 23(5)(a) and (b). As I have said, in my view, those words perform a different function altogether. They make it clear that the intention is to exclude the normal entitlement to social security pensions in respect of all convicted offenders, for so long as they continue, in effect, to serve sentences of imprisonment, whether in prisons or by means of detention in other places. If the legislature had intended to preserve an entitlement to social security pensions for all those undergoing courses of rehabilitation for mental illness while serving sentences of imprisonment, it could have made express provision to this effect. It did so in plain terms in s 23(9) for those who would otherwise have been excluded from any entitlement by reason of undergoing psychiatric confinement because of having been charged with committing offences.”
15.In Franks’ case the Full Court, Spender, Drummond and Marshall JJ were concerned with deciding whether the AAT made an error of law in concluding that Mr. Franks was not undergoing “psychiatric confinement” within s.1158(b) because he was undertaking a “course of rehabilitation” within s.23(9). The crucial discussion was about what constituted a course of rehabilitation. The Court discussed the cases of Blunn v Bulsey and Garden v Secretary, Department of Family and Community Services, mentioned above, and noted the differences in the judgments of Einfield J and Gray J, but did not need to choose between them for the purposes of deciding Franks’ case. The Court did, however, specifically approve of Gray J’s identification of the relationship between s.23(9) and the then section 1158(1)(a)(ii) (now s.1158(b)). That is, s.23(9), relating to a person undertaking a course of rehabilitation, only removes the bar to the receipt of a social security pension for those who are undergoing psychiatric confinement because of having been charged with committing offences, but not convicted. It is therefore not relevant in Mr. Jozwiak’s case whether or not he was undergoing a course of rehabilitation whilst he was in Baillie Henderson Hospital.
16.A person who is sentenced to a term of prison in connection with their conviction for an offence will usually spend their time of incarceration in a prison unless some occurrence makes it necessary or desirable that they spend their time in detention at some place other than a prison. A prisoner may be taken to a hospital for medical treatment such as fixing a broken bone, having an appendix removed, having skin cancers removed, or having psychiatric treatment. A group of prisoners may be taken to a camp outside the prison to help with flood relief, bush fire fighting or other community work. The reasons for placing of prisoners in places other than prisons will rarely have any connection with their convictions. If the view expressed by Einfield J in Bulsey’s case is correct, most prisoners who spend time outside the prison walls whilst serving their sentences would not be in gaol within the meaning of that term in the Act, whilst outside the prison, because the reason for their removal from prison would not be “in connection with” their convictions. Such an interpretation would render s.23(5)(b) pointless.
17.Consequently, with respect, I prefer the approach of Gray J in Garden’s case.
18.At the relevant time Mr. Jozwiak was being lawfully detained in connection with his convictions for offences, and he was being detained at a place other than a prison. He was in gaol within the meaning of that term in s.23(5)(b) of the Act.
19.Mr. Jozwiak was not entitled to the Disability Support Pension whilst he was being detained in connection with his convictions, that is, until 13 November 2003.
20.The decision under review is affirmed.
I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Don Muller
Signed: .....................................................................................
C. O’Donovan, AssociateDate/s of Hearing 24 March 2004
Date of Decision 16 June 2004
Counsel for the Applicant Ms. K. Heyworth-Smith
Solicitor for the Applicant Welfare Rights Centre
Counsel for the Respondent Mr. T. Ffrench, departmental advocate
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