Kroushev and Secretary to the Department of Family and Community Services
[2003] AATA 996
•3 October 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 996
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2003/801
GENERAL ADMINISTRATIVE DIVISION
Re: VICTOR SEVDALINOV KROUSHEV
Applicant
And:SECRETARY TO THE DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal: M.J. Carstairs, Member
Date: 3 October 2003
Place: Melbourne
Decision: The Tribunal affirms the decision under review.
(sgd) M.J. Carstairs
Member
SOCIAL SECURITY ‑ disability support pension ‑ requested cancellation by applicant ‑ request for review more than 13 weeks after notice of decision ‑ payment of arrears
Social Security (Administration) Act 1999 s85, 109, 137
Social Security Act 1991 s94
Re Bergen and Secretary Department of Social Security (1994) 36 ALD 717
Re Frost and Secretary, Department of Social Security (AAT 10360, 17 August 1995)
Re Secretary, Department of Social Security and Marsh (1996) 42 ALD 639
McDonald v Director‑General of Social Security (1984) 6 ALD 6
REASONS FOR DECISION
3 October 2003 M.J. Carstairs, Member
1. This is an application by Victor Sevdalinov Kroushev (the applicant) for review of a decision made by the Social Security Appeals Tribunal (SSAT) on 28 June 2003. The SSAT set aside a decision of a Centrelink delegate of the Secretary to the Department of Family and Community Services (the respondent) to cancel the applicant’s disability support pension.
2. At the hearing the applicant represented himself and Mr D. Perdon, a Centrelink advocate, represented the respondent.
3. The Tribunal had before it the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 as well as exhibits marked A1 and A2 for the applicant and R1 for the respondent.
BACKGROUND
4. The applicant was born in Bulgaria on 19 March 1953. He came to Australia as a permanent resident on 28 January 1989 and has qualifications as a physicist. He claimed disability support pension on 18 May 2001. Centrelink granted disability support pension on the basis of psychiatric impairment, relying on an assessment by his treating doctor, Dr Y. Greenberg. On 19 July 2001 the applicant requested that his disability support pension be cancelled. He then lodged a claim for newstart allowance on 1 August 2001. The applicant received newstart allowance until October 2001, when he requested that his newstart allowance be cancelled because he had learned that medical professionals had expressed the view that he was not able to work.
5. The applicant attended Centrelink in March 2003. His contact was treated as a request for a review of the decision to cancel disability support pension in 2001. An authorised review officer affirmed the decision to cancel and stated that the applicant needed to lodge a new claim for pension. The SSAT stated that the applicant remained qualified for disability support pension despite its cancellation, and that the pension should be restored to him from the time of the interview at Centrelink in March 2003. The applicant sought review with this Tribunal on 28 July 2003.
EVIDENCE
6. Several medical reports were tendered in evidence regarding the applicant’s initial claim for disability support pension. In an undated Treating Doctor’s Report (T3) Dr Greenberg, psychiatrist, stated that the applicant suffered from major obsessive disorder. In a Treating Doctor’s Report dated 12 June 2001 (T7), Dr Greenberg diagnosed paranoia. In a letter to Centrelink dated 16 August 2001 (T20), Dr Greenberg said that while she had diagnosed the applicant as having severe obsessional illness, the exact psychiatric label was unclear. In a letter dated 23 August 2000 (T1 p23) Dr D. Kochar, consultant psychiatrist, stated that in 1999 the applicant had presented as a distressed, upset and anxious person who spoke of being unjustly admitted to a psychiatric hospital in 1992. Dr Kochar diagnosed permanent mental disability and personality problems in the form of severe Anxiety Neurosis and Anxiety Reaction. In a letter dated 29 May 2002 (T43), Dr Kochar stated that the applicant could not function occupationally at all because of his disturbed mental state and condition. In relation to diagnosis he said it would have been reasonable for a consultant Psychiatrist to make the diagnosis of Paranoia about that time.
7. In a letter dated 8 October 2002 (T37) to the Manager of the Fitzroy Centrelink office, the applicant stated:
As it is well known to you, Dr Y Greenberg has provided Centrelink with two reports. In them she certifies that I am "unable to work for at least I5 hours per week”, that if employed I "would be absent or several hours late for work for four or more days per month”, and most importantly that my “behaviour would pose a serious risk to my safety and/or to those around me”.
Recently, I learnt that another psychiatrist has suddenly changed his opinion of me and supports Dr Greenberg’s diagnosis of paranoia. He has provided to the Medical Board of Victoria a report stating that I "could not function occupationally at all".
I believe that the diagnosis of paranoia is totally groundless and believe that l am able to work successfully on a professional or para-professional level. However, now that two highly qualified professionals as well as the Medical Assessment Team of Centrelink are convinced of the opposite, and after I was labelled as insane and dangerous person who must not be allowed to work, I think it is senseless and naive on my part to continue to persist applying for jobs.
On this ground I believe that I am ineligible and cannot claim further NSA (newstart allowance). This is why I request that my NSA be duly stopped from today.
8. A computer entry dated 16 October 2002 (T39) recorded that the applicant was contacted by a Centrelink officer after his letter requesting cancellation of newstart allowance. The entry records that he was asked if he wished to make an application for another payment, or for a payment for people with health problems and the applicant answered that he did not want to apply. The applicant attended a Centrelink interview on 12 March 2003. The computer record of the interview (T41) noted that the applicant refused to see a doctor and refused to complete a new claim form. On 13 March 2003, a further computer entry (T42) noted that the applicant attended Centrelink again and stated that he wished to resume disability support pension but would not complete a claim form. The officer noted that the applicant refused an offer to appeal the 2001 cancellation of pension. The applicant stated that his psychiatric condition meant that his request for cancellation should not have been accepted.
9. In a letter dated 28 July 2003 (T1 p1) the applicant stated that he would accept the disability support pension only if it was granted on the basis of Dr Greenberg’s initial diagnosis of paranoia. He said Dr Greenberg’s diagnosis should be accepted as correct and was supported by Dr Kochar’s agreement that Dr Greenberg’s diagnosis of paranoia was reasonable.
10. In a letter dated 2 September 2003 (Exhibit A2) the applicant stated:
On 12.3.03 verbally, and on 21.3.03 in writing, I requested the restoration of my DSP as initially approved on grounds of Paranoia. At that time, as well as in my successive appeals dated 25.4.03 and 10.5.03, I did not ask any back-payment of the pension and did not seek the establishment of any wrongdoing of Centrelink in relation to the unfortunate cancellation of this pension. Instead, I took the blame on myself. At this point in time, if Centrelink agreed to restore my pension I would have been glad to accept it without any back-payment. Unfortunately, this did not eventuate.
On 1..7.03, not requested by me, SSAT ruled that my DSP is to be restored on grounds of Anxiety Neurosis. By thus ruling, SSAT overstepped its authority and I was compelled to appeal it. I believe SSAT has the authority to only uphold or dismiss what I requested ‑ restoration of my DSP on grounds of Paranoia. It cannot change my request and award a 'restoration' of a de jure new DSP based on Neurosis.
…by honouring my earlier request for cancellation of this pension, Centrelink acted most ethically and in good faith. However, having at that time the information (which was hidden from me then) that I was 'severely disabled', suffering from Paranoia, 'probably psychotic' and with behaviour which 'would pose a serious risk to the person's safety and/or to those around them', Centrelink should have cancelled my pension only after seeking and obtaining a recommendation from another doctor that such cancellation would have been in my best interest. This was not done and on this basis the cancellation of my DSP was unlawful.
I failed to appeal against this unlawful cancellation within 13 weeks because I trusted that the report provided to the European Court of Human Rights was honest and accurate. In it my second psychiatrist, Dr Kochar, did not even hint that I 'could not function occupationally at all' and the diagnosis was Anxiety Neurosis and not Paranoia. Much later, when I discovered that he changed his opinion respectively, following an enquiry from the Medical Practitioners Board whether I could work, I realised that I should not have asked for the pension's cancellation. So, the back‑payment deadline should be waived as I was misinformed about the seriousness of my illness.
On the above grounds I appealed against the decision of the SSAT and am currently asking a restoration of my DSP based on Paranoia with back‑payment from the day of its cancellation (of course reduced by the amount paid as NSA for some of the time)…
As the decision of SSAT is challenged, I find it improper to accept in advance the just paid pension. Besides, apart from the fact that the pension is not backdated there is not any explanation on what grounds it is being restored ‑ Neurosis or Paranoia. Pending the resolution of the appeal, please, find enclosed the Pension Concession Card and a check for the amount of $5315.11 sent to my account. I cannot accept partial restoration of even not specified type of pension. After all, this problem arose after I naively and trustingly signed, and thus gave uninformed consent, to go on pension without knowing on what grounds.
CONSIDERATION OF THE ISSUES
11. The applicant said that his detailed application to the Tribunal set out his submission comprehensively. He stated as follows:
SSAT appears to have ruled in my favour by setting aside the decision of Centrelink and substituting it with a new one that I am "qualified for a disability support pension". However, after careful consideration of the decision … I concluded that this was not exactly the case. I would be very happy to accept the pension provided it is re‑instated as the pension initially approved by Centrelink (as I requested) i.e. the pension approved on the grounds of Dr Greenberg's diagnosis of Paranoia.
Instead, SSAT appears to have assumed that by enclosing a report and a letter from Dr Kochar I have lodged an application for a new pension based on Dr Kochar's diagnosis of Anxiety Neurosis. They appear to have assumed the role of a Centrelink disability assessment team and have established that "'Mr Kroushev suffers from extreme restriction of function". Thus, they have re‑assessed and "restored" my pension from grounds of Paranoia to new grounds of "Incapacitating Anxiety Neurosis".
I welcome the judgement of the SSAT that I am entitled to the restoration of my pension but I disagree with the rest of their decision on the following grounds:
Firstly, I supplied to SSAT Dr Kochar's report and letter only to demonstrate the change of his opinion about me and that this change led to my request for the restoration of my pension. In his initial report to the court Dr Kochar did not state that I was unable to work. However, in his subsequent letter to the Medical Practitioners' Board he stated that "I could not function occupationally at all" and that the diagnosis of Paranoia was reasonable.. This shift of opinion helped me realise that until the opposite was established by a court, there was no doubt that I suffered from Paranoia as diagnosed by Dr Greenberg and as accepted by Centrelink.
Secondly, I have never authorised Centrelink or SSAT to obtain medical information from Dr Kochar for the purpose of deciding my qualification for a pension. Hence, any "restoration" of my pension on the basis of Dr Kochar's diagnosis is improper.
Thirdly, a restoration of the initially approved pension from grounds of Paranoia to new grounds of Anxiety Neurosis would constitute de jure a grant of a new pension, something I explicitly stated I did not want.
…
The SSAT decision was not entirely in my favour. Therefore, in my present appeal, I would like to change my position regarding the date from which I believe my pension should be restored. I still fully accept that Centrelink has acted in good faith when agreeing to cancel my pension. But good faith and good intentions do not always lead to good results… Once Centrelink had established that I suffered from Paranoia, they should not have stopped my pension purely on my request. As far as I am aware the regulations are that a request by a mentally ill patient to cancel his/her pension is met only if approved by the treating doctor or an independent one. The latter is necessary if the doctor/patient relationship is not good and trusting as in my case. I was not sent to an independent doctor to assess whether it was in my interest to cancel the pension.
…I realised that the cancellation of my pension was not in my best interest after all. So, I now accept that the cancellation of my pension was a profound mistake of mine, but believe that mentally ill should not be held liable and penalised for their mistakes.
I do not seek recognition of any specific wrongdoing on the part of Centrelink because in my opinion they were misled. However, I believe they could and should now compensate me for the period when I was deprived of my pension despite being indisputably entitled to it. It would be most humane to restore my pension from the date of its cancellation (19/7/01). However, as an admission of my previous inconsistency, I would be also satisfied if my pension is back‑dated and paid back just from 8/10/02.
I was not in a position to establish that I was entitled to this pension until after I learnt that Dr Kochar had "blessed" me with Paranoia as well. This explains why I failed to appeal against the decision to cancel my pension within 13 weeks (as the law requires in order to be eligible for a back-payment)…
12. The applicant submitted that for the SSAT to grant disability support pension on the grounds of anxiety neurosis amounted to the grant of a new pension. He submitted that the SSAT had no authority to grant disability support pension on the basis of anxiety neurosis. He also submitted that the time limit of 13 weeks should be extended because at the relevant time he was refused access to medical details held by Centrelink. Access was later granted under the Freedom of Information Act 1982.
13. Mr Perdon submitted that the decision of the SSAT was correct and should be affirmed. He said that the applicant made three requests to have his disability support pension cancelled (T9, T10, T13) and he was given written notice of the cancellation. On 8 October 2002 the applicant requested that his newstart allowance be cancelled and Centrelink carried out that request, and notified the applicant of that decision. Mr Perdon submitted that the applicant has acknowledged that he did not request review prior to March 2003.
14. Mr Perdon submitted that after the cancellation, s85 and s109 of the Social Security (Administration) Act1999 (the Act) determined the date of effect of resumed payment. He said that because the applicant had received a notice of the decision and did not apply for review until 12 March 2003, the date of effect was 12 March 2003. In regard to the claim by the applicant that the SSAT erred in granting the pension on the basis of anxiety neurosis rather than paranoia, Mr Perdon referred to Re Bergen and Secretary, Department of Social Security (1994) 36 ALD 717 and submitted that the Tribunal has nothing further to decide because the SSAT had granted disability support pension. He said that the requirements of s94 of the Social Security Act 1991 (the Social Security Act) are that a person has a medical or psychiatric condition and there is no necessity for a particular condition to be named.
15. The Tribunal reached a decision taking into account the documentary material and oral and written submissions. Section 85 of the Act deals with the powers of the respondent and of the Tribunal in regard to the date that can be set for a pension, previously cancelled, to be reinstated. The section provides:
85(1) [Reconsideration of Secretary's decision] If:
(a)a social security payment ceases to be payable to a person under section 93 or the Secretary cancels or suspends a person’s social security payment under section 80, 81 or 82; and
(b) the Secretary reconsiders the decision; and
(c)as a result of the reconsideration, the Secretary is satisfied that, because of the decision:
(i)the person did not receive a social security payment that was payable to the person; or
(ii)the person is not receiving a social security payment that is payable to the person;
the Secretary is to determine that the social security payment was or is payable to the person, as the case requires.
85(2) [Methods of reconsideration] The reconsideration referred to in paragraph (1)(b) may be a reconsideration on an application under section 129 or a reconsideration on the Secretary’s own initiative.
16. Section 109(2) of the Act provides:
109(2) [Effective date ‑ favourable decision (after 13 weeks)] If:
(a)a decision (the original decision) is made in relation to a person’s social security payment; and
(b)a notice is given to the person informing the person of the original decision; and
(c)more than 13 weeks after the notice is given, the person applies to the Secretary, under section 129, for review of the original decision; and
(d)the favourable determination is made as a result of the application for review;
the favourable determination takes effect on the day on which the application for review was made.
17. The Tribunal finds that the applicant’s disability support pension was correctly discontinued at his request in July 2001 (s85(1)), although the decision was more accurately a suspension, rather than a cancellation, of the pension. This was not a decision made on the respondent's initiative, which would have required that the respondent be satisfied that the medical grounds were present to support the cancellation: McDonald v Director‑General of Social Security (1984) 6 ALD 6. There was no requirement under the Act that the applicant be referred to a medical practitioner, before a decision was made, in accordance with his request, to have his pension stopped. A recipient may elect at any time not to continue to receive a payment. Under the Act a decision is required to put that election into effect. That decision was taken on 19 July 2001 and the applicant notified on the same day (T15).
18. The decision to cancel has now been reconsidered by the SSAT, exercising the powers of the respondent (s85(1)(b) and (c) of the Act). The applicant having been given notice on 19 July 2001 of the decision to cancel his pension and having failed to seek review of the decision within 13 weeks, the Tribunal is satisfied that the date set by the SSAT for payment to commence, namely 12 March 2003, was the only date that could be set in accordance with s109(2) of the Act. The Act makes no distinction between suspension and cancellation decisions when setting a date of effect, when either decision is reconsidered on review.
19. The Tribunal considered whether there was an earlier request for review made by the applicant, as he was seeking access to medical documents under the Freedom of Information Act 1982, and had also requested that his newstart allowance be cancelled on the basis that medical reports indicated that he could not work, which is a requirement for qualification for disability support pension. His actions on both matters indicated to Centrelink that the issue of his Centrelink payments was concerning him. In Re Secretary, Department of Social Security and Marsh (1996) 42 ALD 639, the Tribunal considered whether a telephone call to Department’s general inquiries number to inquire about the rate of investment income maintained by the Department could be taken as an application for review of a decision. The Tribunal said at page 643:
14. …In the Tribunal’s view, the department has a mandate to deal with a wide cross section of the public, many of whom are socially and/or emotionally, intellectually or physically handicapped in some way. When a customer telephones the department and expresses concern about specific matters relating to the calculation of pension entitlements, the Tribunal is prepared to apply a very broad definition of the term “application for review”…It is up to the department, in those circumstances, to go forward to assist the enquirer both to formulate the inquiry in words and also to take a basic simple first step of checking to see whether the concern might possibly be justified. That should have alerted the officer, if any reasonable system was in place, to have referred the matter immediately to the SPP section or at least alerted him/her to give appropriate advice to Ms Marsh on what she should do to follow up and formalise her application for review.
…
In Re Marsh and in Re Frost and Secretary, Department of Social Security (AAT 10360, 17 August 1995) the Tribunal pointed to the importance of flexibility in addressing the requirements of an application for review.
20. In this case the respondent has taken all reasonable steps to follow up the question of review with the applicant. A Centrelink officer telephoned the applicant on 16 October 2002 after receiving the letter requesting cancellation of newstart allowance. The applicant was asked whether he might consider an alternative payment for people with health problems and he declined. He refused an offer to talk further with a Centrelink officer. In March 2003 (T42) when a Centrelink officer asked him if he wished to appeal the decision to cancel disability support pension he again declined. The Tribunal is satisfied that the applicant declined a request for review that was being offered to him.
21. In respect of restoring the original disability support pension grant ss137(1) and (5) of the Act provide:
137(1) [Application to review second determination (after 13 weeks of second notice being given)} This section has effect if:
(a) the Secretary makes a determination (the first determination) that:
(i) a social security payment is granted or is payable to a person; or
(ii)a social security payment is payable to a person at a particular rate; and
(b) the Secretary makes a determination (the second determination):
(i) cancelling the social security payment; or
(ii) reducing the rate at which the social security payment is payable; and
(c) notice of the second determination is given to the person; and
(d)the person applies under section 129 for review of the second determination; and
(e)the application is made more than 13 weeks after notice of the second determination was given; and
(f)a decision (the review decision) is made by the Secretary, an authorised review officer, the Social Security Appeals Tribunal or the Administrative Appeals Tribunal; and
(g) the review decision, or the effect of the review decision, is:
(i) to set aside the second determination; or
(ii) to affirm a decision setting aside the second determination.
…
137(5) [Conditions of second determination reviews] If this section has effect:
(a)the second determination does not become void from the time when it was made; and
(b)the mere setting aside of the second determination does not of itself revive the first determination.
22. It is clear from s137 of the Act that restoring the original grant of disability support pension cannot occur, except as provided under s109, when review is sought within prescribed time limits.
23. In regard to the applicant’s request to have the disability support pension granted on the basis of a diagnosis of paranoia, not anxiety neurosis, the Tribunal accepts the respondent's submission that s94(1)(a) of the Social Security Act requires only that a person have a psychiatric impairment, not a specified condition. The SSAT decision refers only to the applicant being qualified for disability support pension and the date of effect of the decision. Both the conditions of paranoia and anxiety neurosis satisfy the requirements of s94(1)(a). It is apparent from the variations in diagnosis that medical practitioners expressed divergent views as to the nature of the applicant's psychiatric impairment.. Despite this divergence, there is sufficient agreement amongst the medical practitioners for a decision‑maker to be satisfied that the applicant suffers from a psychiatric impairment within the meaning of s94(1)(a). All other parts of s94 of the Social Security Act being met, the applicant was qualified for disability support pension.
DECISION
24. The Tribunal affirms the decision under review.
I certify that the twenty‑four [24] preceding paragraphs are a true copy of the reasons for the decision of:
M.J. Carstairs, Member
(sgd) Olympia Sarrinikolaou
Clerk
Dates of hearing: 25 September 2003
Date of decision: 3 October 2003
Advocate for applicant: Self-represented
Advocate for respondent: Mr D. Perdon, Centrelink
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