Kroushev v Secretary Dfacs (No.2)
[2004] FMCA 455
•23 July 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KROUSHEV v SECRETARY DFACS (No.2) | [2004] FMCA 455 |
| ADMINISTRATIVE LAW – Appeal from Administrative Appeals Tribunal – whether the Social Security Act requires identification and precise nature of the condition which provides the basis upon which a person may have a psychiatric impairment – finding of psychiatric impairment sufficient for the purposes of s.94(1)(a) of the Social Security Act 1991 – no error of law. |
Administrative Decisions (Judicial Review) Act 1977, s.5
Administrative Appeals Tribunal Act 1975, s.44
Social Security Act 1991, s.94(1)(a)
| Applicant: | VICTOR KROUSHEV |
| Respondent: | SECRETARY DEPARTMENT OF FAMILY AND COMMUNITY AFFAIRS |
| File No: | MZ 1338 of 2003 |
| Delivered on: | 23 July 2004 |
| Delivered at: | Melbourne |
| Hearing Date: | 21 June 2004 |
| Judgment of: | McInnis FM |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondent: | Ms A McMahon |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The appeal be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ 1338 of 2003
| VICTOR KROUSHEV |
Applicant
and
| SECRETARY DEPARTMENT OF FAMILY AND COMMUNITY AFFAIRS |
Respondent
REASONS FOR JUDGMENT
In this matter Victor Kroushev (the applicant) by notice of appeal filed in the Federal Court of Australia on 30 October 2003 seeks to appeal from a decision of the Administrative Appeals Tribunal (the AAT) delivered on 3 October 2003.
In the notice of appeal the applicant claims to rely upon "the provision under the Administrative Decisions (Judicial Review) Act and the provision under s.44 of the AAT Act". Hence the Applicant sought to rely upon both the Administrative Appeals Tribunal Act 1975 (the AAT Act) and the Administrative Decisions (Judicial Review) Act 1977 (the ADJR Act).
On 24 November 2003 an order was made in the Federal Court transferring the application to the Federal Magistrates Court.
By way of background, it is noted that on 18 May 2001 the applicant lodged a claim for a disability support pension (DSP). On 25 June 2001 a delegate of the respondent decided the applicant was manifestly qualified for the DSP on the basis that he had a psychiatric impairment. A DSP was granted to the applicant from the date of his claim. On 19 July 2001 the applicant requested that his DSP "be immediately discontinued". That was done and the applicant was advised by letter dated 19 July 2001 that his DSP had been "cancelled at your request". The applicant claimed and was then granted a Newstart allowance.
It is relevant in the present application to understand the main thrust of this appeal to note an extract from correspondence from the applicant to Centrelink on 8 October 2002 where the applicant states:
“I believe the diagnosis of paranoia is totally groundless and believe that I 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 I am ineligible and cannot claim further NSA. This is why I request that my NSA be dully stopped from today.”
The applicant's Newstart allowance was subsequently cancelled.
On 12 March 2003 the applicant contacted Centrelink in relation to a DSP and at an interview on 13 March 2003 requested that the pension be restored. He provided several reports from a psychiatrist, Dr Yvonne Greenberg. On 4 April 2003 a delegate decided that the decision to cancel the pension was correct as “Centrelink has acted on the customer's request and as such has acted in good faith”.
The applicant sought review of the delegate's decision which was referred to an authorised officer who, as indicated earlier, on 1 May 2003 advised the applicant that he had affirmed the original decision. The authorised review officer in his decision statement said:
“I have decided that the decision to cancel your DSP based on your two requests is correct. If you believe the DSP is your correct entitlement please lodge a new claim.”
The applicant then sought review of the decision by an application filed with the Social Security Appeals Tribunal on 13 May 2003. The SSAT by a decision made on 28 June 2003 set aside the delegate’s decision to cancel the Applicant’s DSP. The Applicant then applied to the AAT for review of the SSAT decision. The AAT affirmed the decision under review. Hence in the present case the Court is confronted with a somewhat unusual position of an Applicant who has had the benefit of an AAT decision which affirmed a favourable decision of the SSAT which had in turn set aside what could be described as an unfavourable decision by a delegate.
When the matter came before this court on 20 April 2004 a preliminary issue arose in relation to the question of whether or not the applicant should be permitted to continue the application pursuant to provisions of the ADJR Act. The court delivered a decision in relation to that matter and ruled that the proper course was for the applicant to pursue rights he may have under s.44 of the AAT Act and that the application should not be permitted under the provisions of the ADJR Act (see Kroushev v Secretary, DFACS (2004) FMCA 299).
Upon delivery of that ruling the court further adjourned the matter to give the applicant the opportunity to consider the ruling, hence the matter was adjourned to 21 June 2004. The applicant had indicated an intention to consider filing a notice of discontinuance of the application and was directed to do so on or before 11 June 2004. The applicant did not file a notice of discontinuance, but instead filed a document entitled, "Applicant's Response After the Ruling of McInnis FM" dated 10 June 2004 and filed 11 June 2004. He reasserted his view that he was entitled to pursue the application, both under the ADJR Act and the AAT Act. He noted the ruling of the court and stated the following:
“… I respect and accept this ruling. I noted from the cited previous rulings that, in cases similar to mine, s.44 of the AAT Act could adequately cater for the appellants’ interests. However, I still believe that the chance of my appeal to succeed is reduced by this ruling.
Had I known from the beginning of the proceedings that His Honour was intending to exercise his discretion and disallow me to appeal under the ADJR Act, I would have discontinued the appeal then when the costs were still minimal.
I wish and am prepared to discontinue my appeal, now that the proceedings have advanced, provided that I would not be charged with the incurred costs and if the reason for the discontinuance of my appeal is acknowledged. If I do not receive a consent and/or a determination that the appeal is discontinued on the above conditions I advise that I will appear at the scheduled hearing on 21 June 2004.”
When the matter came before the court on 21 June 2004 the respondent, whilst not objecting to the applicant being granted leave to discontinue the proceedings, sought costs. It was indicated by both parties there had been discussions between the parties prior to the hearing and that the respondent had offered to forego costs if the applicant considered an order dismissing the application. The applicant at the hearing decided to pursue his application and did not seek leave to discontinue, nor was he prepared to consent to the application being dismissed with or without an order for costs.
I indicated to the Applicant that it was not appropriate for an applicant to impose a condition upon which a notice of discontinuance would be filed. He was referred to the rules of the court which provide for leave to be granted to an applicant to discontinue (rule 13.01(2)(b) of the Federal Magistrates Court Rules) and to the fact that upon discontinuance the other party in the proceedings may apply for costs (see rule 13.02(1) of the Federal Magistrates Court Rules). The applicant then decided to pursue the application and sought to rely upon a document entitled, "Applicant's Outline of Submissions Filed 7 April 2004, Applicant's Submissions At the Hearing on 20.04.2004" filed 20 April 2004 and more recently the document to which I previously referred entitled "Applicant's Response After the Ruling of McInnis FM" filed 11 June 2004. The applicant otherwise made further submissions.
The respondent relied upon a document entitled, "Respondent's Outline of Submissions" filed 15 April 2004 and counsel otherwise made submissions.
The appeal notice
In the notice of appeal under the heading "Grounds" it is clear that the applicant takes issue with findings of fact by the tribunal. A key part of the appeal, in my view, having heard the applicant would appear to be a complaint found at page 3 of the notice of appeal where the applicant states the following:
“… It would be irresponsible to declare somebody unfit to work if one is unable to specifically say what condition causes the impairment and I would not accept such practice.”
I otherwise accept the summary of the notice of appeal set out in the respondent's outline of submissions as follows:
“4.1The AAT made a wrong finding of fact - in that it found that the psychiatrists expressed divergent opinions as to the nature of the Applicant's psychiatric impairment.
4.2That the AAT was wrong in finding that s.94(1)(a) of the Social Security Act 1991 (the SS Act) requires that a person have a psychiatric impairment, not a specific condition.
4.3The decision of the AAT is ultra vires because:
(a)it grants a new pension which the Applicant has not authorised, and
(b)it affirmed the decision of the SSAT which is ultra vires.”
The tribunal decision
In its decision the tribunal made a finding that the applicant's pension was correctly discontinued at his request on 8 July 2001. It is relevant to set out the following paragraph of the tribunal's decision:
“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).”
It is further relevant to set out the discussion in the tribunal decision in relation to restoring the original pension and the following paragraphs are relevant:
“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 s 94(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 s 94(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 s 94(1)(a). All other parts of s 94 of the Social Security Act being met, the applicant was qualified for disability support pension.”
Submissions
The applicant's submissions in writing clearly seek to raise a grievance as to a finding of fact and otherwise he expressed concern about the possible diagnosis. There appeared to be a degree of confusion in relation to the applicant's attitude towards a specific diagnosis. On the one hand, he was concerned about the AAT failing to precisely identify the diagnosis and instead making reference to a divergence of opinion amongst medical practitioners. Despite the fact that the AAT decision affirmed an SSAT decision which was favourable to the applicant, he appeared to have what I might regard as a justifiable concern about the lack of precision as to the diagnosis and was not particularly satisfied with the AAT's conclusion that he only required a reference to diverging views to reach a conclusion that that was sufficient for a decision-maker to be satisfied that the applicant suffers from psychiatric impairment within the meaning of s.94(1)(a) of the Social Security Act 1991.
The applicant during the course of submissions claimed that a medical condition of "paranoia" had been referred to in the decision to grant the pension based on a medical condition of paranoia made on 29 June 2001 (appeal book pages 148-150). Reference was also made to the SSAT decision which made a finding that the applicant “suffers from extreme restriction of function due to an incapacitating anxiety neurosis.” (appeal book page 31)
The apparent contradiction in those findings, although perhaps doing no more than supporting the conclusion of the AAT that there is a divergence of psychiatric opinion, was clearly a matter of concern to the applicant who, perhaps understandably, wanted the matter clarified.
Indeed in his own submissions, apart from raising arguments concerning the issue of whether there in fact was a new pension granted or restoration of the old pension, the applicant states:
“I never requested a grant of pension on the basis of paranoia - what I requested was a restoration of the initially granted pension based on paranoia.”
(see paragraph 6 of applicant's outline of submissions filed
7 April 2004).At one stage during the course of the hearing I understood the applicant to indicate that if he were to be unsuccessful in this application, then he would seek to cancel the pension. It was made clear to the applicant that would be a matter for him to consider at the appropriate time, although I should note in passing it would be unfortunate if that were to occur in the circumstances of this case based on the material currently before the court.
The respondent submitted that there has been no error of law in the present case and that the AAT had correctly applied the relevant legislation.
Reasoning
In a matter of this kind where there is no doubt and evidence that an applicant suffers from a psychiatric condition the fact that the applicant is unrepresented makes the task of the court all the more difficult.
Applications by way of an appeal from the AAT, in any event, are often difficult for unrepresented lay persons who more often than not wish to argue that the AAT made a wrong finding of fact. In the present case the application is more perplexing in the sense that the AAT has affirmed an SSAT decision favourable to the applicant, although I can understand the applicant's concern about the lack of precision in identifying a diagnosis which he would find acceptable as a basis upon which he receives the pension. I further appreciate that he has found it difficult to understand the terminology and in seeking to dispute that there is a new grant of a pension and that restoration should follow, he is concerned to ensure that, if restored, the pension should be restored upon a basis acceptable to him.
It is clear to me, however, on a proper reading of the legislation and having regard to the submissions from the respondent which I accept that the requirement in awarding a DSP pursuant to s.94(1)(a) of the SSA is to determine whether or not the applicant suffers from psychiatric impairment of a kind which would attract a pension under the impairment tables. The legislation does not require identification of the precise nature of the disorders, and accordingly, the AAT in making a finding that the applicant suffers a psychiatric impairment, as set out in paragraph 23 of its reasons referred to above, has complied with the legislative requirements.
The AAT decision simply means that the pension is resumed, albeit that payments as a result of the operation of the SSA are only payable from 12 March 2003 which, as indicated in the chronology earlier, is the date upon which the applicant made arrangements to attend an interview whereupon he requested the pension be restored.
Despite the fact that the SSAT made a finding that the applicant suffered from an extreme restriction of function due to an incapacitating anxiety neurosis, and that in 2001 there had been a reference to a decision to grant the pension based on a medical condition of paranoia, I am satisfied that the AAT decision and its specific finding limited to it being satisfied that there was sufficient "agreement amongst medical practitioners for a decision-maker to be satisfied the applicant suffers from a psychiatric impairment within the meaning of s.94(1)(a) of the Social Security Act" was all that was required as a matter of law. There is no finding by the AAT and nor was there any finding required of the SSAT specifically identifying the diagnosis.
In the circumstances I can see no error of law, nor any other basis upon which the application can succeed. I should add that in considering the notice of appeal I have approached my task upon the basis that the court is dealing with a final decision of the AAT which is the subject of application pursuant to s.44 of the AAT Act. I am satisfied that in the circumstances there would be no other benefit which would flow to the applicant even if I were to apply the principles of judicial review pursuant to s.5 of the ADJR Act. I can see no identifiable error in the decision-making process in this matter which would cause the court to uphold the appeal. It follows, therefore, that the appeal should be dismissed.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 23 July 2004
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