Ms Azra Ljubovic and Secretary, Department of Social Services
[2015] AATA 1025
•24 December 2015
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2014/5888
General Division )Re: Azra Ljubovic
Applicant
And: Secretary, Department of Social Services
RespondentDIRECTION
TRIBUNAL: Egon Fice, Senior Member
DATE: 7 January 2016
PLACE: Melbourne
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:
- Add the words on the first day of hearing after the words Ms L Martin, who appeared on behalf of Ms Ljubovic at paragraph 13 of the decision.
- Delete the words Ms Martin also pointed at paragraph 27 of the decision and replace them with Mr H McLachlan, who appeared on behalf of Ms Ljubovic on the second day of hearing, pointed.
- Delete the words Ms L Martin on the last page of the decision and replace them with Ms L Martin and Mr H McLachlan.
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Egon Fice, Senior Member
Ljubovic and Secretary, Department of Social Services (Social services second review) [2015] AATA 1025 (24 December 2015)
Division
General Division
File Number
2014/5888
Re
Ms Azra Ljubovic
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
Decision
Tribunal Egon Fice, Senior Member
Date 24 December 2015 Place Melbourne The decision under review made by the former SSAT on 22 October 2014 is set aside and in substitution it is determined that the Applicant met the qualifying criteria for payment of the Disability Support Pension from the date of claim, 24 January 2014.
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Egon Fice, Senior Member
Catchwords
DISABILITY SUPPORT PENSION – qualification – requirement that applicant be an Australian resident at time of developing a continuing inability to work – post-traumatic stress disorder (PTSD) – domestic violence and marriage breakdown – PTSD arose after applicant acquired permanent residency – decision under review set aside and substituted
Legislation
Social Security Act 1991 (Cth) ss 7, 94
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) table 5
Cases
Secretary, Department of Family and Community Services v Michael (2001) 116 FCR 500
Secondary Materials
Department of Social Services, Guides to Social Policy Law < FOR DECISION
Egon Fice, Senior Member
24 December 2015
Ms Ljubovic lodged an application for the Disability Support Pension (DSP) with Centrelink on 24 January 2014. She had lodged two previous unsuccessful claims in 2012.
A medical report completed by Dr Kucuk, a General Practitioner, in support of
Ms Ljubovic’s DSP application described Ms Ljubovic as having post-traumatic stress disorder (PTSD) – related to domestic violence since about 2010 but with an onset related to when she left her ex-husband. Dr Kucuk also described her as having lower back problems and high cholesterol.
On 18 February 2014 Centrelink advised Ms Ljubovic that her DSP claim was rejected because she did not meet the Australian residence requirements for payment of that pension. Ms Ljubovic sought review of that decision by an Authorised Review Officer (ARO). The ARO handed down her decision on 18 June 2014, affirming the original decision.
Ms Ljubovic lodged an application seeking review of the ARO decision by the Social Security Appeals Tribunal (SSAT) (now the Social Security and Child Support Division (SSCSD) of the AAT). The SSAT handed down its decision on 22 October 2014, affirming the decision made by the ARO. On 12 November 2014 Ms Ljubovic lodged an application seeking review (second review) by the General Division of the AAT.
There was no issue about the fact that Ms Ljubovic satisfied the qualifying criteria for payment of the DSP in that she satisfied s. 94(1)(a), (b) and (c) of the Social Security Act 1991 (the Act). All previous reviewers of this decision agreed that she should be assigned 20 points under Table 5 of the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables) for her psychiatric conditions. The only issue in this case which I am required to determine is whether Ms Ljubovic satisfies the residency requirements found in s. 94(1)(e) of the Act.
Residency requirements
Relevantly, s. 94(1)(e) of the Act provides:
(e) the person either:
(i) is an Australian resident at the time when the person first satisfies paragraph (c); or
(ii) has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or…
Section 94(1)(c) provides:
(c) one of the following applies:
(i) the person has a continuing inability to work;
(ii) the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system; and…
In this case, the question which arises is whether Ms Ljubovic had a continuing inability to work before she became an Australian resident. A literal reading of s. 94(1)(c)(i) makes it clear that if Ms Ljubovic had a continuing inability to work as that expression is defined in the Act prior to becoming an Australian resident, she does not qualify for the DSP.
The construction of s. 94(1)(e)(i) was comprehensively dealt with by the Full Court of the Federal Court of Australia (Drummond, Kiefel and Dowsett JJ) in Secretary, Department of Family and Community Services v Michael (2001) 116 FCR 500. Dowsett J said,
at 501:
Section 94(1)(e)(i) should therefore be read as requiring the pension applicant to be an Australian resident when the person first suffers the particular impairment which is found, as at the date of determination of the pension claim, to be sufficient to prevent the person from doing any work within the two years immediately following that date.
The plurality said this about its construction at 508:
We favour the construction of s. 94(1)(e)(i) which requires the decision-maker to determine when the actual impairment identified for the purposes of s. 94(1)(a), (b) and (c) was first such as to prevent the claimant from doing any work within the two year period identified for the purposes of s. 94(1)(c).
The expression continuing inability to work is defined in s. 94(2) as follows (emphasis in original):
94(2) A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa)in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B) or the person is a reviewed 2008-2011 DSP starter who has had an opportunity to participate in a program of support – the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and
(a)in all cases – the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b)in all cases – either:
(i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii) if the impairment does not prevent the person from undertaking a training activity – such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
Work is defined in the Act as work that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and that exists in Australia, even if not within the person’s locally assessable labour market (s. 94(5)).
Ms L Martin, who appeared on behalf of Ms Ljubovic, submitted that in deciding whether Ms Ljubovic was an Australian resident when her continuing inability to work arose, the relevant time is not the time of clinical onset of a medical condition, but rather the time when the level of functional impairment caused by a medical condition or conditions reached the required threshold defined by the Act. According to Ms Martin, this occurred after Ms Ljubovic became an Australian resident. The expression Australian resident is defined in the Act as follows (emphasis in original):
7(2) An Australian resident is a person who:
(a)resides in Australia; and
(b)is one of the following:
(i) an Australian citizen;
(ii) the holder of a permanent visa;
(iii) a special category visa holder who is a protected SCV holder.
Ms Ljubovic was granted a permanent visa on 13 January 2012. There was no issue about the fact that on that date, she resided in Australia.
Ms J Zhou, a Government Lawyer, who appeared on behalf of the Secretary, submitted that Ms Ljubovic had a continuing inability to work shortly after she arrived in Australia. Ms Ljubovic was said to be suffering from significant mental health impairment from as early as November 2010. She had undergone reasonable treatment for her condition since late 2010 with Dr Bosanac which resulted in no significant or lasting functional improvement. For the entire period between 24 November 2010 and 13 January 2012
Ms Ljubovic was considered to be unfit for work by her treating doctor and the Job Capacity Assessor (JCA).
Continuing inability to work
The key to resolving this issue lies in determining the date from which Ms Ljubovic ceased to have a continuing ability to work. I should make it clear that the date on which her medical condition was said to arise will not necessarily coincide with the date on which she first ceased to have a continuing ability to work. It is possible for a person with a medical condition who continues to have a capacity to work, even at a reduced level, to subsequently deteriorate to a point where that person no longer has a capacity to work. If that deterioration results in the person being eligible to receive 20 points on the Impairment Tables and it prevents the person from doing any work (15 hours per week) independently of a program of support within the next two years, that person has reached the threshold level required by the Act. That is the time to which s. 94(1)(e)(i) refers.
The Secretary relied on a number of documents which, he claimed, evidenced
Ms Ljubovic’s continuing inability to work arising before she was granted a permanent visa.Medical certificates provided by Dr Bosanac
I had in evidence three medical certificates from Dr Bosanac dated 24 November 2010,
8 February 2011 and 29 March 2011. In the first two certificates Dr Bosanac described Ms Ljubovic’s medical condition as significant depression. He added that this arose in the context of a difficult marriage (her second marriage) where her husband subjected her to what Dr Bosanac described as mental domestic violence. The third certificate described her condition as major depressive disorder. The first two certificates indicated that
Ms Ljubovic was likely to show considerable improvement within two years. The third certificate is equivocal; while Dr Bosanac indicated that Ms Ljubovic was likely to show considerable improvement within two years in relation to her major depression, he also marked the box in the section dealing with what was intended to be a second diagnosis and described by Dr Bosanac as marriage difficulties, indicating that her marriage difficulties were likely to deteriorate within the next two years. The three certificates indicate that Ms Ljubovic was unfit for work effectively between 29 November 2010 and
29 June 2011. On those certificates, Dr Bosanac made no mention of PTSD.JCA report of 27 April 2011
The JCA is a registered psychologist. She made an assessment in the course of a face to face consultation with Ms Ljubovic. An accredited Serbian interpreter was present. The JCA described Ms Ljubovic’s medical condition as depression and its type as temporary. Apparently Ms Ljubovic told the JCA that her condition was based on a loss associated with the death of her son in Bosnia some six years previously. The JCA reported that
Ms Ljubovic told her she attended counselling every 20 days since February 2011 and that she had counselling or psychiatric intervention after the death of her second son in Bosnia. She then said the condition was assessed as requiring further treatment. The JCA assessed her baseline work capacity to be 30+ hours per week. Her capacity for work within two years without intervention was said to be 30+ hours per week. Significantly, the JCA noted that she attended accompanied by her husband who remained outside during the interview. She told the JCA that she had worked as a medical technician in Bosnia but was unable to use her qualifications in Australia and that also gave rise to her concerns.Health professional advisory unit confidential review
This review was conducted by Dr Hampson, a clinical psychologist. It was said to have been prepared specifically for the purposes of the hearing in this matter and a number of questions were put to Dr Hampson for her to answer. Dr Hampson is employed by the Department of Human Services and for the past 12 years, has worked in several roles at Centrelink.
Because the Secretary wished to put Dr Hampson’s report into evidence, Ms Ljubovic’s legal representatives said they wished to cross-examine her and gave notice to the Secretary’s legal representatives in June 2015 to that effect. Despite that, Dr Hampson was overseas and not available on the day set down for hearing but the Secretary’s legal representative did not inform Ms Ljubovic’s representatives of that fact. At the request of Ms Ljubovic’s legal representatives, I adjourned the hearing of this matter so that
Ms Ljubovic’s representatives would have the opportunity to cross-examine Dr Hampson. That occurred on 29 October 2015. In any event, for the reasons stated below, I need not deal further with Dr Hampson’s report.Although the Secretary referred to this report as evidence, it should be plain to any lawyer that it is not. It is the opinion of an employee of Centrelink following a summary of the medical reports in evidence and the reports made by various JCAs. The Tribunal has developed a Guideline about persons giving expert and opinion evidence. The Guideline applies to written reports and oral evidence. It applies to evidence which consists of factual information only as well as evidence which consists of factual information and the expression of an opinion. Clause 3 of the Guideline deals with the duty of such persons to the Tribunal. It provides:
3.1 A person giving evidence based on his or her special knowledge or experience in an area:
(a)has an overriding duty to provide impartial assistance to the AAT on matters relevant to the person’s area of knowledge or experience;
(b)is not an advocate for a party to a proceeding.
There can be no doubt that Dr Hampson is not independent for the purposes of this proceeding.
The document prepared by Dr Hampson may be useful for the purposes of briefing the Secretary’s legal representatives who may wish to follow her opinion by making submissions in accordance with it. While the Tribunal is not bound by the rules of evidence, an opinion provided by a non-independent person, however qualified, is not likely to assist in a proper and full analysis of the evidence. For my part, I find it a much safer course to examine the relevant evidence given in its context together with statements made by the applicant in the course of hearing this matter.
Dr Bosanac’s reports
The first thing that I should say about Dr Bosanac is that it is unclear as to whether he provided reports in his capacity as a general practitioner or, as he described himself, a doctor with a specialty in psychiatry. I had no evidence that he was in in fact a psychiatrist and he appears to have been regarded as a general practitioner. An Internet search (Human Services Directory) reveals Dr Bosanac practices as a general practitioner. The services he is said to supply are simply general practice/GP. There is no suggestion that he has any expertise in psychiatry.
That being the case, if I were to attempt to apply the Impairment Tables on the basis of his diagnosis, that would probably be incorrect. In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner, it must have been diagnosed by a medical practitioner whose qualifications and practice are relevant to diagnosing a particular condition. There was no evidence before me that Dr Bosanac satisfied that criterion. Furthermore, as the introduction to Table 5 states, the diagnosis of a mental health function condition must be made by an appropriately qualified medical practitioner (which includes a psychiatrist) with evidence from a clinical psychologist if the diagnosis has not been made by a psychiatrist. It follows that I should not rely on
Dr Bosanac for a valid diagnosis of Ms Ljubovic’s mental condition.In closing submissions, Ms Martin also pointed to other problems which presented if I were to rely on Dr Bosanac’s reports. The first was that Ms Ljubovic’s appointments with Dr Bosanac were very short and that her former husband sometimes attended those appointments. In her evidence in chief Ms Ljubovic said her ex-husband did not want her to work. At some appointments with Dr Bosanac, her ex-husband would speak with
Dr Bosanac in English and she did not understand what they were saying. Her
ex-husband would also speak to Dr Bosanac in private before and after consultations.
Ms Ljubovic said that she told Dr Bosanac that she wanted to work but it appeared her husband simply wanted her to stay at home. When asked if Dr Bosanac prescribed medication for her, she responded that he did but that she didn’t take it because she wasn’t ill. She said Dr Bosanac told her she would sleep better if she took her medication. She also mentioned that she wanted her husband to see Dr Bosanac because she wanted to find out why he wanted her to be at home all of the time.Plainly, Ms Ljubovic’s evidence regarding consultations with Dr Bosanac casts a different light on the medical reports he provided. That, coupled with the fact that the medical certificates which he has stamped and completed on behalf of Ms Ljubovic described him as Dr. Vladimir Bosanac MD, Specialist in Internal Medicine, Medical Practitioner, Psychiatry, Cognitive Behaviour Therapy, suggest to me that caution should be exercised in relying upon Dr Bosanac’s medical certificates and reports.
While the early reports provided by Dr Bosanac state a diagnosis of significant depression in the context of a difficult marriage including domestic violence followed by major depressive disorder, the first mention of PTSD (as a secondary related condition) appears to be that in the medical certificate he issued on 28 March 2012. On that medical certificate, Dr Bosanac, when dealing with prognosis, noted that the symptoms regarding major depression would affect Ms Ljubovic’s capacity to work or study for 13 to 24 months and regarding PTSD, more than 24 months. He also noted that the PTSD had an onset which he described as years ago. For unexplained reasons, despite a diagnosis of PTSD having said to have commenced years ago, Dr Bosanac made no mention of that in any prior report.
In fact the only event of significance which appears to have taken place between the previous reports made by Dr Bosanac and that which he made on 28 March 2012 was the breakdown of her marriage which occurred on 4 February 2012. Ms Ljubovic described that as an extremely traumatic event. She said she was told by her ex-husband to get out of the house and that he literally threw her out at the front of the house and kicked her. It was late at night, she did not speak English well, and she had nowhere to go.
The next document which was completed for Ms Ljubovic by Dr Bosanac was in relation to her claim for the DSP in December 2012. In describing her disabilities, illness or injuries, Dr Bosanac wrote, on behalf of Ms Ljubovic: Severe depression in the context of marriage break-up due to severe case of domestic violence. There does not appear to be any reference to PTSD.
A Job Capacity Assessment Report which is stated to have been submitted on
25 January 2013 with an assessment date of 18 January 2013 relies partially on discussions with Dr Bosanac. The JCA described Dr Bosanac as Ms Ljubovic’s treating psychiatrist. On that basis, Ms Ljubovic was assessed as having a psychological/psychiatric disorder which was permanent and which was fully diagnosed, fully treated and fully stabilised. The JCA said in her report that she spoke with
Dr Bosanac on 21 January 2013 and that Dr Bosanac confirmed he was Ms Ljubovic’s treating psychiatrist. That statement appears to be plainly incorrect and has misled the JCA in her analysis. Although the JCA only refers to a report dated 21 December 2012 by another medical practitioner, Dr D Skodric-Hadzimahmutovic, she described Dr Bosanac confirming a diagnosis of major depressive disorder, adjustment disorder and post-dramatic stress disorder associated with domestic violence and past trauma in country of origin as permanent conditions, with an uncertain prognosis. According to the JCA
Dr Bosanac also told her that although further improvement in functioning and work capacity was anticipated, the process was likely to be protracted and Ms Ljubovic’s work capacity likely to be minimal for at least two years.I did not have any further reports from Dr Bosanac in evidence. As I have already said, the reports prepared by Dr Bosanac do have obvious inconsistencies and I do not place great weight on them. The only notable fact which arises from those reports is that
Ms Ljubovic’s mental condition deteriorated significantly after she was made homeless by her ex-husband in February 2012. Logically, that deterioration would have caused a significant reduction in her capacity to work.Dr Udovicic’s reports
The first report prepared by Dr Udovicic appears to be that dated 13 July 2013 in support of Ms Ljubovic’s request for portability in relation to her DSP claim lodged in 2012. She described Ms Ljubovic’s condition as: Severe Chronic PTSD – (secondary to chronic D.V. since 2010). Secondary Severe Depression & Paranoid Reaction. She also recorded the date of onset as 2010. Dr Udovicic described Ms Ljubovic’s prognosis as very poor given the entrenched nature of her symptoms, the severity of her illness and poor response to date as well as sensitivity to side effects (presumably of medication). As to her current symptoms, Dr Udovicic said:
She is paranoid & unable to settle despite antipsychotic medication & reassurance. Tearful. “Lost”. Dependent on services to cope with any psychosocial functionality and decision-making. She is severely traumatised, irrational, unstable and totally fearful after years of gross physical and sexual abuse in marriage.
Dr Udovicic also indicated that the current impact of Ms Ljubovic’s condition was expected to persist for more than five years.
In her next report dated 21 January 2014 Dr Udovicic said this about her diagnosis:
Post-traumatic Stress Disorder – related to domestic violence since 2010 but PTSD onset when she left ex-husband.
In that report, Dr Udovicic recorded the date of onset as 4 February 2012. Dr Udovicic then gave an explanation for Ms Ljubovic’s symptoms and previous diagnoses. She said, in part:
Recurrent intrusive memories of DV [domestic violence] and threats of violence, with flashbacks and nightmares of her second marriage. Her clinical picture has changed and stabilised in past 4 months as her depression has responded somewhat to treatment while she was hospitalised in October. Her traumatic memories previously were incorporated into depressive delusions. Now the depression is contained, the post-traumatic phenomena are more distinct and can be identified as a separate condition, where since 2010 she attended Dr Bosanac who diagnosed correctly the severe psychotic depression. This depression remained treatment-resistant until Mrs Ljubovic was admitted to the Alfred Hospital and current regimen established, which I subsequently adjusted post-discharge to achieve adequate risk-containment. Although Mrs Ljubovic has suffered other traumatic events in her sad life, it is clear she did not develop PTSD previously and she managed to work and function until coming to Australia in 2010. The previous events, and the severe depression which obviously had its onset in the early part of the marriage were predisposing factors to the evolution of the PTSD, which by definition, developed after the traumatic event/threat passed.…
In that report, Dr Udovicic stated that within the next two years, Ms Ljubovic’s ability to function was expected to remain unchanged.
Dr Udovicic also assisted Ms Ljubovic with completing a Work Capacity form dated
21 January 2014 in which Dr Udovicic recorded that Ms Ljubovic was hospitalised because of her disabilities on 20 September 2013 at the Alfred hospital. She was in hospital between 20 September 2013 and 24 October 2013 and the reason for admission was cited as suicidal/psychotic depression.
In her assessment of Ms Ljubovic’s ability to function as a consequence of her illness,
Dr Udovicic recorded on the questionnaire for all activities listed (eg concentrate, lift etc) that Ms Ljubovic had difficulty doing that activity often or all the time, save for control of the use of her language. Dr Udovicic also stated that Ms Ljubovic was not capable of doing rehabilitation or a training program in the future because her mental state caused impairment and disability which was severe and she was suffering from the side effects of medication. In answer to the question whether Ms Ljubovic would be able to start
part-time or full-time work or study, Dr Udovicic responded never.
Relying on Dr Udovicic’s report of 24 January 2014, a JCA in a report dated
17 February 2014 considered that Ms Ljubovic had an impairment rating that attracted 20 points on Table 5 dealing with Mental Health Function.
Dr Udovicic provided a detailed report to the Tribunal dated 31 August 2014 which was taken into evidence. In explaining her initial assessment of Ms Ljubovic, Dr Udovicic said:
The circumstances of her assessment were such that information and sources were limited, as she attended alone, and was in a severely disturbed, psychotic state at that initial attendance. Hence, it was her presentation, self-report, and information from her referring GP, Dr. Rijad Kucuk that I based my initial assessment on. In the course of her subsequent treatment and recovery, and the emergence of details of her attendance at Dr. Bosanac’s Pinea Clinic, I subsequently modified my judgement regarding the evolution of her mental illnesses, which appear to be two distinct entities arising at different times, though initially the clinical picture suggested otherwise.…
· There is no history to suggest the presence of significant mental illness prior to her arrival to Australia, based on her occupational functioning, and also the apparent appeal she had to her husband, who was keen to set her to work in Australia. It was only after arrival here, and the realization that her new marriage was doomed to be conflicted and unhappy, (allegedly, due to gambling and her not being up to meet the demands of her husband to earn money for his purposes)
· I learned from Dr. Kucuk, who had spoken with Mrs. Ljubovic’s son who denied his mother had ever suffered a major mental illness requiring treatment, and had worked until departing for Australia.…
· Hence, while the Depressive illness developed shortly after arrival here to Australia, and was diagnosed on 27 October 2010, the second diagnosis of PTSD emerged only following the traumatic circumstances of the marital split on 04/02/2013 [sic – 2012], due to the devastating impact in a lady with several vulnerability factors present.
· When she first presented clinically to my rooms on 13/07/2013, the clinical picture was ambiguous, and the true course of emergence of events and the development of the illness only became apparent after the stabilization of her mental state.…
· re: PTSD: these symptoms emerged independently after stabilization of her Depressive condition, and included typical symptoms of panic attacks, insomnia, recurrent intrusive memories, nightmares and flashbacks of various abusive events in her recent marriage; a sense of constantly being scared her former husband would track her down, as he had threatened to, and harm her; a constant state of distress and feeling disempowered, intense somatic symptoms of anxiety – ie: palpitations, dyspnoea, choking sensations, chronic pain, muscle cramps, tremor, dry mouth..; avoidant phobias of places, people, resources that were connected to her former spouse; a sense of impending doom; sense of disassociation from her emotions at times. These symptoms continue to intrude on her daily life, and fluctuate to some degree depending on whether she feels safe or vulnerable in any particular setting. The PTSD symptoms can be triggered by a vast range of environmental cues, on a daily basis.…
It is my opinion that Mrs. Ljubovic is not able to undergo training, but if she were able, then her impairment would still prevent work as of the pension qualification period or within two years of that period.
My notes have shown that Mrs. Ljubovic suffers two significant mental conditions, and that while the Depression has responded to some degree to treatment, PTSD remains the major cause of pervasive impairment, and was triggered by the traumatic and devastating psychological impact of her marital split on 04/02/2012.
When did Ms Ljubovic first have a continuing inability to work as a result of her mental state
According to the Secretary, the evidence disclosed that Ms Ljubovic was suffering from a significant mental health impairment from as early as November 2010 which was chronic and entrenched prior to her becoming a permanent resident. Essentially, the Secretary relied on the medical certificates provided by Dr Bosanac in the period between November 2010 and January 2012. The Secretary also referred to the Guide to Social Security Law and in particular clause 3.6.3.05. That clause states that an assessment of work capacity is to take into account whether a person will be capable of reliably performing work on a sustainable basis for a period of 26 weeks without excessive sick leave or work absences exceeding one month in total. With respect, the Guide is simply that. It is not the law. The Tribunal is not bound by the guide. That is particularly so in this case where the provisions in the Social Security Act define the expression continuing inability to work. It is not for the Secretary or Centrelink to put a gloss on the definition.
Despite what is stated in Dr Bosanac’s report, which I consider to be unreliable for the reasons I have already explained, the JCA who conducted the assessment on
27 April 2011 regarded Ms Ljubovic as having the capacity to work 30+ hours per week within two years with intervention. She also assessed Ms Ljubovic as having the same work capacity without intervention. The JCA also reported that her medical condition temporarily prevented Ms Ljubovic from undertaking any suitable activity between
27 April 2011 and 27 July 2011. The JCA’s report also listed as a personal factor having a high impact on Ms Ljubovic’s ability to work the fact that she last worked in 1999. It is not clear where this information came from.I had in evidence a Work Card issued to Ms Ljubovic while she was in Bosnia. I had no reason to doubt the authenticity of that card because although the card was issued in her former name (presumably her former married name), the date of birth on the card is recorded as 31 August 1951. That is the birthdate of Ms Ljubovic recorded on all of the medical reports. The last entry on that card is dated 28 August 2009. The reasonable inference to be drawn from that evidence is that Ms Ljubovic worked up until that date. That evidence is also consistent with Ms Ljubovic’s oral evidence in this matter, though contradicts the JCA report of 27 April 2011.
Ms Ljubovic’s evidence in chief was that shortly after her arrival in Australia on
2 August 2010, because she wanted to find work, she attended English language classes commencing in about October 2010. However that ceased when her then husband refused to pay for her train ticket to attend those classes. That appeared to be the commencement of the realisation that her husband at that time required her to remain at home and not to work. That was despite the fact she was a qualified laboratory technician in Bosnia and expressed a strong desire to continue working on arrival in Australia. According to Ms Ljubovic, on arrival in Australia her then husband said he did not marry her to work but rather married her to cook, clean and look after his children.There was also uncontroverted evidence that in 2011 Ms Ljubovic travelled to Croatia alone to attend her son’s wedding. She was involved in preparing and cooking meals for guests and visitors. She also gave evidence that the oldest step-daughter’s home was being built and she assisted with cleaning up after the builders and also cooking meals for them. Ms Ljubovic also visited Bosnia on 5 August 2012, returning to Australia on
2 November 2012.Centrelink’s computer records also disclose that Ms Ljubovic voluntarily participated in job search activities in 2010 and 2011. She had exemptions between 24 November 2010 and 28 June 2011; between 4 August 2011 and 28 October 2011; and between
24 January 2012 and 1 April 2012.The second job capacity assessment was done on 27 January 2012, immediately prior to her separation from her then husband. At that time she had already been in contact with an organisation known as stay inTouch, a multicultural centre against family violence. In a letter dated 7 December 2012 a support/advocacy community worker with that organisation wrote a letter about the difficulties Ms Ljubovic was experiencing.
Ms Ljubovic had reported to that organisation on 18 November 2010 that her husband had been abusing her emotionally, verbally, physically and financially. He had made threats to deport her back to Bosnia and to kill her. The option of referring Ms Ljubovic to a women’s refuge was discussed but Ms Ljubovic wasn’t sure what to do and was very afraid to make any changes at that stage. The support/advocacy community worker said that Ms Ljubovic contacted her again on 3 February 2012 disclosing that the violence had been escalating and that she didn’t feel safe at home. She left the home 4 February 2012 and had been going from friend to friend for an occasional sleepover and had been placed in a motel for a few nights assisted by an organisation referred to as Homeground. The letter then states that the fear of becoming homeless was causing Ms Ljubovic to feel extremely depressed and her emotional state was also affecting her physical health to the point that she was taken to hospital with heart attack like symptoms.The second job capacity assessment report which was made on 27 January 2012 reflects the escalating problems Ms Ljubovic was experiencing by that time. The remarks by the JCA state that her treating psychiatrist (although a reference to Dr Bosanac) reported the impact of Ms Ljubovic’s depression as likely to persist for the next 3 – 24 months. The JCA recommended an impairment rating of 5 points for hypertension. This appears to be based on a report from Dr Dana Skodric-Hadzimahmutovic who was then described as her treating doctor. Apparently, she reported that Ms Ljubovic’s condition currently caused minimal impairment to her ability to engage in certain tasks. The JCA recorded Ms Ljubovic’s temporary work capacity as 8-14 hours per week ending on
6 February 2013. However, she also recorded that Ms Ljubovic had capacity for work within two years with intervention, being able to work 23-29 hours per week. That report makes it plain that despite the escalating mental problems, immediately prior to being forcefully removed from the home by her ex-husband it could not be said that she had a continuing inability to work. Her impairment at that time did not prevent her from doing any work independently of a program of support within the next two years. Work of course is defined as 15 hours per week. The JCA also reported:Mrs Ljubovic has completed her secondary education and degree in pharmacy (Bosnia). Mrs Ljubovic reported having worked as a laboratory technician over a thirty year period. No other positions were reported and Mrs Ljubovic has been unemployed since moving to Australia in 2010.…
It is anticipated that the following interventions would improve Mrs Ljubovic’s work readiness and ultimately provide successful transition back into the workforce.…
… Due to the combined impact of Mrs Ljubovic’s conditions, she temporarily has a reduced capacity to engage in employment. With compliance to psychological interventions, Mrs Ljubovic could potentially increase her hours of employment within the next twelve months.
The next JCA report which was made on 18 January 2013 finds the JCA assigning 20 points to Ms Ljubovic’s mental condition. Her capacity for work, with intervention within two years was said to be 8-14 hours per week. That is, of course, less than the 15 hours per week which is defined as work the purposes of the Act.
The historical account of Ms Ljubovic’s declining mental state clearly discloses a significant decline after her being kicked out of the home of her former husband. As
Dr Udovicic said, her being removed from the house without a sense of security was a vital catastrophic event. It is only after this event takes place that Ms Ljubovic is unable to demonstrate a continuing inability to work as that expression is defined in the Act. That is the point in time which is relevant for the purposes of s. 94(1)(e)(i). Although there were periods of temporary incapacity which preceded that time, that has no bearing on being able to meet the definition of continuing inability to work in s. 94(2) of the Act. Therefore, I find Ms Ljubovic had a continuing inability to work after 4 February 2012. That is the first time she satisfied section 94(1)(c)(i).
Conclusion
Ms Ljubovic became an Australian resident for the purposes of the Social Security Act when she became the holder of a permanent visa. That occurred on 13 January 2012. For the purposes of s. 94 of the Social Security Act, Ms Ljubovic had a psychiatric impairment which arose shortly after her arrival in Australia in 2010. However, prior to
4 February 2012, that impairment did not result in Ms Ljubovic having a continuing inability to work. That is despite the evidence provided by Dr Bosanac, whose evidence I find unreliable and which I have given little weight. It certainly appears that he held himself out to be a psychiatrist when he was not. He is a general practitioner. Therefore, I have relied more heavily on the evidence of Dr Udovicic, a psychiatrist, and the various Job Capacity Assessment Reports in evidence over the relevant period of time.The best evidence before me in this matter results in my finding that Ms Ljubovic first satisfied s. 94(1)(c) after 4 February 2012. At that time, she was an Australian resident for the purposes of the Act and therefore I have found that she also satisfies s. 94(1)(e)(i). Accordingly, I find that Ms Ljubovic meets the qualifying criteria for payment of the DSP at the time she lodged her claim with Centrelink on 24 January 2014.
I set aside the decision made by the former SSAT on 22 October 2014 and in substitution decide that Ms Ljubicic met the qualifying criteria for payment of the DSP from 24 January 2014. Because she has been allocated 20 impairment points for her mental condition, she is not required to participate in a program of support within the meaning of s. 94(3C) of the Act.
I certify that the preceding 55 (fifty -five) paragraphs are a true copy of the reasons for the decision herein of Egon Fice, Senior Member .................................[sgd].......................................
Associate
Dated 24 December 2015
Dates of hearing 7 October 2015 and 29 October 2015 Counsel for the Applicant Ms L Martin Solicitors for the Applicant Victoria Legal Aid Advocate for the Respondent Ms J Zhou Solicitors for the Respondent Department of Human Services
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