Mumo and Secretary, Department of Social Services (Social services second review)

[2018] AATA 3505

Mumo and Secretary, Department of Social Services (Social services second review) [2018] AATA 3505 (13 September 2018)

Division:GENERAL DIVISION

File Number(s):      2017/7331, 2017/7738

Re:Richard Mumo

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Mark Hyman, Member

Date:13 September 2018

Place:Canberra

The decision under review is affirmed.

.................................[sgd].......................................

Mark Hyman, Member

Catchwords

SOCIAL SECURITY – disability support pension – portability –whether the applicant was entitled to unlimited portability - whether portability should be extended for an acute family crisis – whether portability should be extended because events occurred to prevent his return - whether pension should be cancelled – mental health condition - whether the applicant’s condition is fully diagnosed, treated and stabilised – whether new claim should be rejected - decision affirmed

Legislation

Administrative Appeals Tribunal Act 1975, s 37

Social Security Act 1991, ss 94, 1212, 1212A, 1215, 1217, 1218AAA, 1218C

Social Security (Administration) Act 1999, ss 37, 42, 63, 80, Schedule 2

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

Cases

Drakev Minister for Immigration and Ethnic Affairs(No 2) (1979) 24 ALR 577

Mentink v Secretary, Department of Social Services [2016] FCAFC 39

Secondary Materials

Guide to Social Security Law

REASONS FOR DECISION

Mark Hyman, Member

13 September 2018

1. This decision is about whether the disability support pension (DSP) paid to the applicant, Mr Richard Mumo, should be cancelled and how his new claim for DSP should be decided. Mr Mumo claimed and was granted DSP in 2012. In June 2016 Mr Mumo travelled overseas to attend his mother’s funeral. The Department of Human Services (the Department) cancelled his DSP in September 2016, after he had been absent for an extended period. Mr Mumo lodged a new claim for DSP in November 2016, and the Department rejected that claim in March 2017. The cancellation and rejection decisions were affirmed twice on review, most recently by the Social Security and Child Support Division of this tribunal. Mr Mumo has now applied to the tribunal for a second review of the decisions.

2. The tribunal held a hearing on 20 July 2018. Mr Mumo attended and gave evidence. Ms Claire Campbell, a departmental advocate, represented the Secretary, Department of Social Services, the respondent in this matter. The evidence before the tribunal included:

   ·the documents supplied under section 37 of the Administrative Appeals Tribunal Act 1975 (the “T-documents”);

   ·two collections of medical certificates and other documentation related to medical treatment provided by Mr Mumo (exhibits A1 and A2); and

   ·an extract from the Department’s Operational Blueprint (a guide for the use of departmental staff administering the provisions of the Social Security Act 1991 (the Act) and related legislation) (exhibit R1) and an extract of information regarding Mr Mumo’s medical consultations and medication for the period 2013-2017 (exhibit R2).

3. This decision reviews a single decision of the Social Security and Child Support Division of this tribunal, which in turn reviewed both the cancellation decision and the rejection decision. Mr Mumo applied twice to this tribunal for further review, presumably because there were two decisions – cancellation and rejection – which he wished to challenge. The two applications are identical. The existence of the two applications explains why two file numbers appear at the beginning of this decision.

   ISSUES

4. The issues before the tribunal are:

   ·whether Mr Mumo was entitled to extended portability of his DSP in 2016;

   ·whether his DSP should be restored, suspended or cancelled at any stage of his overseas travel during 2016; and

   ·if his DSP is cancelled, whether his new application for DSP in November 2016 should be granted.

   LEGISLATION

5. The relevant provisions are set out in the Act and in the Social Security (Administration) Act 1999 (the Administration Act).

6. Portability of DSP and other benefits is governed by Chapter 4 of the Act. Section 1217 includes a table that for each kind of benefit and for various circumstances prescribes how long a payment may be made while a person is overseas (that period is defined by sections 1217 and 1215 together as the “maximum portability period”). Under general circumstances a person may receive DSP for 28 days in any 12 month period; an additional four weeks is allowed where (relevantly) a person is overseas because of an acute family crisis. An absence to attend an “acute family crisis” is defined in section 1212A of the Act to include an absence for a purpose relating to the death of a family member.

7. These general provisions are subject to specific exceptions set out in later sections. Section 1218AAA and 1218C are the presently relevant exceptions. Subsection 1218AAA(1) reads as follows:

   (1)  The Secretary may make a written determination that a particular person’s maximum portability period for disability support pension is an unlimited period, if all of the following circumstances (the qualifying circumstances) exist:

   (a)  the person is receiving disability support pension;

   (b) the Secretary is satisfied that the person’s impairment is a severe impairment (within the meaning of subsection 94(3B));

   (c)  the Secretary is satisfied that the person will have that severe impairment for at least the next 5 years;

   (d)  the Secretary is satisfied that, if the person were in Australia, the severe impairment would prevent the person from performing any work independently of a program of support (within the meaning of subsection 94(4)) within the next 5 years.

   (2)  The Secretary must not make a determination under subsection (1) in relation to a person who is outside Australia unless the Secretary is satisfied that:

   (a)  the person is unable to return to Australia because of either of the following events:

   (i)  a serious accident involving the person;

   (ii)  the hospitalisation of the person; and

   (b)  the person’s portability period for disability support pension had not ended at the time the event occurred.

8. Section 1218C provides that the Secretary may extend a person’s portability period if one of a number of specified events occurs while a person is overseas, and the person is consequently unable to return to Australia. The specified events include hospitalisation and a serious illness.

9. A number of other sections also provide for extensions of a person’s portability period, but none is relevant in present circumstances.

10. The grant of DSP is governed by section 94 of the Act. Section 94 reads in part as follows:

    94(1)  A person is qualified for disability support pension if:
    (a)      the person has a physical, intellectual or psychiatric impairment; and
    (b)      the person's impairment is of 20 points or more under the Impairment Tables; and
    (c)      one of the following applies:

    (i)  the person has a continuing inability to work;

    …

11. The conjunctive drafting of the above provision means that a person must meet all of paragraphs 94(1)(a), (b) and (c) in order to qualify for DSP.

12. Subsection 94(3B) defines “severe impairment” as an impairment that is rated at 20 points under a single table in the Impairment Tables, a reference to the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011, a legislative instrument made under the Act.

13. The Impairment Tables set out tests of permanence and severity of impairment. In order to rate a person’s impairment under the Impairment Tables a decision-maker must first determine that the impairment in question is permanent. Section 6 of the Rules for Applying the Impairment Tables (the Rules) provides that an impairment is permanent if it has been fully diagnosed, fully treated and fully stabilised, and is likely to persist for more than two years. Further subsections elaborate in particular on the meaning of ‘fully treated’ and ‘fully stabilised’.    

14. Each of the specific Impairment Tables that follow the Rules relates to an area of impairment (e.g., Table 4 – Spinal Function or Table 10 – Digestive and Reproductive Function) and each Table is preceded by additional Rules governing how the Table is to be used. The tables themselves rate impairments not according to diagnosis of a particular condition, but according to functional impact, that is, according to the degree to which the impairment being assessed affects the kinds of things a person might be expected to do in the workplace.

15. Assessing whether a particular person qualifies for DSP therefore requires first, establishing that each impairment is fully diagnosed, fully treated and fully stabilised. Once the person satisfies that test, each permanent impairment can be rated for severity under the Impairment Tables.

16. Subsection 37(1), section 42 and clauses 3 and 4 of Schedule 2 to the Social Security (Administration) Act 1999 (the Administration Act) together require the decision-maker to determine an applicant’s qualification for DSP at the time of the claim or in the 13 weeks that follow. That means that if his new claim is to be determined Mr Mumo must have been qualified in the period from 1 November 2016 to 31 January 2017. For the purposes of determining cancellation, the relevant consideration is Mr Mumo’s condition at the date of cancellation.

17. Section 80 of the Administration Act states that if the Secretary is satisfied that a social security payment is being paid to a person who is not qualified for it, or to whom it is not payable, the payment is to be cancelled or suspended.

    THE FACTS

    Mr Mumo’s travel and benefit record

18. The facts of this matter are not themselves generally in dispute. Mr Mumo travelled overseas in the second half of 2015, leaving on 22 July and returning on 10 October (all overseas travel information is documented at T57, folios 321-6). As this period exceeded the 28 days of overseas absence allowable under section 1217 of the Act, the Department suspended Mr Mumo’s DSP on 19 August 2015, and it was restored on his return to Australia (T57, folio 323). Mr Mumo sought an extension of his portability period (T25) but the Department rejected his application, as none of the criteria allowing an extension appeared to apply to him (T26) (the handwritten letter seeking the extension reads as if it were written while Mr Mumo was overseas, but the Department has registered its receipt on 19 November 2015, well after Mr Mumo’s return; the Department’s rejection is dated 2 December 2015).

19. Mr Mumo left Australia for Kenya on 12 June 2016 (T57). The Department suspended his DSP that same day (T29), as his permitted 28 days portability in a 12-month period had already been exhausted in late 2015. After his departure, however, Mr Mumo advised the Department that he had travelled to Kenya for his mother’s funeral, and his portability was extended first to 25 June (T31) and subsequently to 10 July (the second extension (at T43) was granted on 25 November 2016). This gave Mr Mumo the full additional four weeks available to him under the table at section 1217 of the Act (entry 2AA).

20. The Department cancelled Mr Mumo’s DSP on 26 September 2016 (T33) and he returned to Australia on 20 October 2016 (T57). With the extension of portability granted in November, the date of cancellation can be reckoned as 15 days later, i.e. on 11 October, nine days before his return. Mr Mumo registered his intention to claim DSP once again on 31 October (T35) and lodged a claim on 1 November (the claim form at T37 is dated 31 October but the Department received it on 1 November – see folio 233).

    Mr Mumo and DSP

21. Mr Mumo was granted DSP from 22 May 2012 on the basis of a mental health condition, namely depression and anxiety (T57, folio 323). Mr Mumo’s qualification at that time is not at issue in this matter. A body of evidence in 2011 established to the satisfaction of departmental decision-makers that Mr Mumo was qualified on the basis of a psychiatric condition that was fully diagnosed, fully treated and fully stabilised and was rated at a severity that justified the grant of DSP.

22. Ms Campbell adduced evidence (exhibit R2, which lists Mr Mumo’s medical consultations and prescriptions of medication) that calls into question the degree to which Mr Mumo has continued treatment for his psychiatric condition. In turn, that calls into question whether the condition can continue to be regarded as fully treated and fully stabilised. I return to this point below.

23. After travelling to Kenya for his mother’s funeral, Mr Mumo went to see a psychiatrist in Nairobi, Dr Catherine Syengo Mutisya, a consultant psychiatrist (T32, T34). Mr Mumo reported seeing her for seven sessions (T45, folio 293). Dr Mutisya reported that Mr Mumo had suffered a major depression episode while in Kenya.

    CONSIDERATION

24. It is necessary to consider the application of the portability provisions in Mr Mumo’s circumstances, as well as the appropriate action (suspension, cancellation) and whether he remained qualified for DSP.

    What was the portability of Mr Mumo’s DSP during his absence in 2016?

25. There are several provisions in Part 4 of the Act that might apply to Mr Mumo in his particular circumstances. In the first place, the table of standard provisions setting maximum portability periods in section 1217 has four entries relating to DSP: entry 2 establishes the basic entitlement to 28 days in any 12-month period; entry 2AA establishes the additional four weeks for special purposes, including attending an acute family crisis; entry 2A provides for unlimited portability for a person who is severely impaired (as set out in section 1218AAA); and entry 3 establishes unlimited portability for a disability support pensioner who is terminally ill.

26. Applying these provisions, it is clear that Mr Mumo exhausted his rolling 28 days of portability in travelling in 2015, as he was absent for 80 days, starting on 22 July 2015. He received an additional four weeks in 2016 (under entry 2AA), as the purpose of the 2016 travel was to attend his mother’s funeral. This falls under the definition of “acute family crisis” in section 1212A, and the basis is well documented: the evidence includes a notification of death of Ms Bernadette Kamene (T27) sent to the Central Statistical Organization and Ministry of Public Health in Qatar by Hamad Medical Corporation on 4 June 2016; an open letter requested by Australian authorities regarding the repatriation of her remains to Kenya, signed by the Pro Consul of the British Embassy in Doha, Qatar (T28), dated 6 June 2016; an air waybill (T28) consigning her remains to an address in Nairobi, dated 7 June 2016; and a death certificate for Ms Muli Bernadette Kamene (T28) issued by the Qatar Public Health Department and dated 5 June 2016. I do not appear to have direct evidence that Ms Kamene is Mr Mumo’s mother, but that conclusion is supported by a good deal of other evidence, including remarks to that effect by doctors in Kenya and Australia (T32, T34, T39 folio 275, T40), in a condolence letter from the Australian Department of Foreign Affairs and Trade quoted on departmental records (T58 folio 333) and in departmental records more generally (T58 folio 334, folio 337, folio 340, folio 341). I am satisfied that Mr Mumo was entitled to an additional four weeks’ portability to attend an acute family crisis.

27. A departmental decision-maker evidently decided that Mr Mumo had a severe impairment when granting him DSP in 2012, as he has only one medical condition (his mental health condition), and he was rated at 20 points on that condition, i.e. it was considered to be severe. It might be thought, then, that he was entitled to indefinite portability under section 1218AAA and entry 2A of the table in section 1217. But section 1218AAA demands more than a severe impairment: in concert with the definition in section 1212 (of “severely impaired disability support pensioner”) and the entry in the table in section 1217 it confers unlimited portability on a person only where the Secretary has made a determination that (relevantly) the person has a severe impairment, will have that impairment for at least the next five years, and the Secretary is satisfied that the person would be prevented by the impairment from doing any work independently of a program of support within the next five years. No such determination had been made regarding Mr Mumo before his departure, and subsection 1218AAA(2) states that the Secretary must not make a determination under the section about a person who is outside Australia at the time unless the person has had a serious accident or has been hospitalised before the end of the person’s portability period. No evidence has come forward suggesting that Mr Mumo met that criterion. Further, as considered below, it is very much in question whether Mr Mumo met the requirements for a severe impairment under subsection 94(3) of the Act at the time of the cancellation of his DSP. Mr Mumo is not entitled to the benefit of the unlimited portability provision in section 1218AAA.

28. Section 1218C allows a person’s portability to be extended if certain events occur that prevent a person’s return within the allowed portability period. This includes where a person suffers a serious illness, or the death of a family member; subsection 1218C(2) requires that the extension not be granted unless the event in question occurred or began during the period of absence. In Mr Mumo’s case the death of his mother cannot be an event that allows extension of his portability period, as it occurred on 4 June, before Mr Mumo’s departure. And while he may have experienced an exacerbation of his depression while in Kenya, I am not persuaded that this was the advent of a “serious illness” of the kind set out in the section; he was already suffering from depression before his departure. In her letter of 27 July 2016 (T32) Dr Mutisya stated that Mr Mumo was unable to travel back to Australia because of his major depressive episode; but she also in the same letter states that he was unable to raise the money to buy a ticket home, having arrived in Kenya on a one-way ticket. Mr Mumo has himself never suggested that he was unable to return because he was depressed, but rather because he did not have the money for a ticket, and because he was unaware of the 13-week deadline for cancellation. I think if Mr Mumo was genuinely unable to travel because of the severity of his depression he would have said so.

29. There is no suggestion that Mr Mumo is terminally ill or that any of the other exceptions provisions in Part 4 of the Act applies to him.

30. Mr Mumo exhausted his portability entitlements on 10 July 2016; on his return to Australia on 20 October 2016 he had spent a further 100 days outside the country.

    Should Mr Mumo’s DSP be suspended or cancelled?

31. Section 80 of the Administration Act demands that a person’s payment be suspended or cancelled if the decision-maker is satisfied that the person is not qualified for the payment, or the payment is not payable. The drafting leaves open to the decision-maker whether to suspend or cancel the payment. The difference in the effect of the two actions is important: a suspended payment can be restored once a person is again qualified or the benefit is once again payable, but a cancelled benefit must be claimed again, and the person’s entitlement to it freshly established.

32. Section 80 does not offer any guidance on how the discretion is to be exercised, but in Mentink v Secretary, Department of Social Services [2016] FCAFC 39 the full Federal Court noted that although no guidance is offered on whether in a given context a decision-maker should suspend or cancel a benefit, “…sensibly read, the intention was that a payment would be cancelled where the person was not qualified for the payment, and suspended where the person was qualified but the payment was nonetheless not payable in the circumstances”. That view might in fact be read as obiter in that particular case, but it remains that cancellation is a more severe step than suspension, and at the very least the basis for choosing one over the other should be guided by whether the circumstances of the person affected warrant a more or a less severe decision. And the more severe decision - to cancel a benefit - should be carefully taken in the light of the person’s circumstances.

1. In circumstances where a person leaves Australia it is the Department’s practice to suspend the payment once the applicable portability period is exhausted, and then restore the payment on the person’s return; but if the person stays out of Australia for a further 13 weeks after portability comes to an end, the payment is cancelled. The suspension action is reasonably transparent, in the sense that it flows directly from the portability provisions in the Act and is set out clearly in the Guide to Social Security Law (the Guide) (see “General Portability for DSP – 4 weeks in a 12-month period” at 7.1.2.20). But there is no transparency regarding the cancellation after a further 13 weeks – it is not mentioned in the Guide and nothing in the legislation identifies 13 weeks as a deadline by which a cancellation decision is mandated or implied. Indeed the figure is apparently arbitrary.

2. Ms Campbell tendered an extract from the Department’s Operational Blueprint, a document used by departmental staff but not publicly available. That extract (exhibit R2) notes the practice of cancelling DSP (and other payments) if it is not restored after a 13 week period of suspension (for whatever reason). Ms Campbell suggested that the Operational Blueprint is departmental policy, and that I should be guided by it (the tribunal will normally apply or be guided by formal policy unless the particular case demands a departure from it, or if the policy is inconsistent with the Act: Drakev Minister for Immigration and Ethnic Affairs(No 2) (1979) 24 ALR 577). It is clear that administratively a rule is needed to deal with protracted absences and other behaviour suggesting a person is no longer connected with the social security system. In the case of overseas travel, at some stage the likelihood of the return to Australia of the person receiving the benefit must come into question, and 13 weeks is not an unreasonable figure to choose as one that would prompt a decision. But the rule, given its arbitrary nature and the severity of the outcome, should surely be exercised carefully, taking into account the particular circumstances of the person affected (where those can be determined). In that context, I doubt whether the Operational Blueprint can be considered a formal policy when it is not publicly available, and given the arbitrary nature of the 13-week period before cancellation, I doubt whether it is an interpretation consistent with the Act to apply that deadline without considering the circumstances of the person affected.

3. In this instance, Mr Mumo’s DSP was cancelled when his return was only 10 days beyond the 13 week deadline, and he had travelled for a genuine family issue, not for any recreational purpose. This was at the centre of Mr Mumo’s application for review. He pressed at the hearing the argument that he had not been informed of the 13-week cancellation rule; he had not been given an opportunity to explain his protracted absence; and that if he had known of cancellation at 13 weeks after the end of portability, he would have been sure to have arrived back in time. In his view, the failure of the Department to make the 13-week rule public was unfair and he should not have to bear the consequences. He therefore argued that his pension ought to be restored from 20 October 2016, the date of his return to Australia. Ms Campbell pointed out that he had not advised of his travel plans before leaving Australia, and said that if he had done so the Department would have advised him of the 13-week limit. Mr Mumo said that he was distraught at his mother’s death and left urgently so as to be able to attend her funeral, as his culture required; he rang the Department from Kenya when his payment was suspended, and no-one told him about the 13 weeks.

4. If there were no question about Mr Mumo’s continued qualification for DSP, I would be sympathetic to his argument; but the Department has raised strong arguments that Mr Mumo was no longer qualified for DSP at the time of the cancellation. Section 80 of the Administration Act confers a discretion on the decision-maker, and it would be plainly wrong to exercise the discretion so as to restore a person’s payment if notional payability had been restored (by a return to Australia) but there were good grounds for believing that the person was nevertheless not qualified. I turn then to the question of Mr Mumo’s continued qualification for DSP at 20 October 2016 and in the period immediately afterwards.

   Is Mr Mumo qualified for DSP?

5. Mr Mumo suffers from a single medical condition, namely a mental health condition identified in a report dated 19 April 2012 (T17) by a clinical psychologist, Dr John Brown, as social phobia and depression, with a history of PTSD. Other diagnoses, mostly by general practitioners, refer consistently to depression and anxiety, with references also to social phobia and agoraphobia (T7, T18, T39). In the introduction to Table 5 – Mental Health Function in the Impairment Tables, it is stipulated that the diagnosis of a mental health condition must be made by a psychiatrist or with input from a clinical psychologist. That requirement is met here. The diagnosis is now from some years ago but all the medical evidence confirms a continuing issue with anxiety, depression and related symptoms.

6. It is something of a different story whether the condition is fully treated and fully stabilised. Mr Mumo gave an account of his mental health history to a Job Capacity Assessment in 2008 (T5). He said he had suffered from depression for more than ten years at that time; that he took antidepressant medication for about two years, but stopped in 2007 because of side effects; and that he had counselling for a few years, stopping in about 2005. He appears to have been prescribed various antidepressant medication at different times, e.g. in December 2011 he was taking sertraline (T11), in May 2012 he was on Avanza and Zoloft (T18). Medical certificates signed by his general practitioner Dr Ammar Dhaimat state that Mr Mumo was suffering from depression and anxiety and was being treated with antidepressants and counselling (T7, 25 March 2011; T8, 7 July 2011; T10, 12 October 2011; T12, 12 January 2012; T15, 5 June 2012). In a treating doctor’s report dated 10 May 2012 another general practitioner, Dr Maged Khalil, reported that Mr Mumo was on Avanza/Zoloft. Notes from the clinic he attended (T39)  mention sertraline in February, March, August and December 2011 and in January 2012; there is mention of a trial of Avanza in February 2012, with apparent success (“Symptoms under control with Avanza”, April 2012); Mr Mumo is listed as being on Avanza/Zoloft in May 2012.

7. There are records of Mr Mumo receiving counselling from psychologists. He saw Dr John Brown, a clinical psychologist, for six sessions (evidently under a mental health care plan) in 2012. In a report of 19 April 2012 (T17). Dr Brown said that he believed that Mr Mumo would benefit from further treatment, and sought Dr Dhaimat’s agreement to further sessions. Dr Dhaimat drew up a review of the earlier mental health care plan, dated 24 May 2012, and recommended a further six sessions (T19). The evidence does not disclose whether Mr Mumo attended the further sessions. The clinical notes of the practice attended by Mr Mumo (T39) include references to drafting a mental health care plan in December 2012; referral to Dr Brown in February 2012; the mental health care review of May 2012; that he was awaiting psychologist review at 28 June 2012; and a new mental health care plan drawn up in July 2013 by a new general practitioner, Dr Jan Bobba.

8. After the contacts set out above, Mr Mumo seems to have had no further treatment of any kind from his doctors in Australia from the middle of 2013 until the middle of 2016. Records from the Karen Hospital in Nairobi (T24) show Mr Mumo receiving some form of treatment on 24 and 25 September 2015 (when on his 2015 visit), but the receipts do not identify the purpose of the treatment. In his letter seeking an extension to portability Mr Mumo suggests that he was hospitalised “several times” with “malaria, extreme stress, depression and anxiety”, but there is no corroboration that he received treatment for mental illness during the visit, or that he was hospitalised (the hospital records include charges for two successive days but do not reveal whether any inpatient care was provided). On the 2016 visit to Kenya, however, it appears that Mr Mumo did receive treatment, as two letters (T32, T34) from Dr Mutisya, dated 27 July and 7 October 2016, report him as having suffered a major depressive episode, for which he was treated with antidepressant medication and psychotherapy. In his DSP application (T37) made on 1 November 2016 Mr Mumo said that he was receiving counselling while in Kenya and was on medication for depression, comprising Prozac, cipralex, Zoloft and Avanza. He nominated Ms Faith, a “counselling psychologist”, as his treating professional in Australia. Later documents show a referral to City Mental Health (T40) on 8 November 2016.

9. It seems that the pattern established by the evidence set out above is that in 2012 Mr Mumo was diagnosed with depression, anxiety and other symptoms of mental illness. He received treatment, in the form of counselling and antidepressant medication, until some time in 2013, and then ceased to have contact with his doctors. He only resumed contact with the medical profession in 2016, when he was overseas in Kenya, and he maintained that contact, at least to some extent, on his return. But there does appear to be a three-year period in which he received no treatment or next to no treatment.

10. The Secretary provided at the hearing a Medicare Report (exhibit R1) that purports to be a complete record of Mr Mumo’s attendance upon doctors over the period 1 April 2013 to 27 February 2018. According to the report, Mr Mumo received a total of 39 medical services paid for by Medicare over the three years. Most were general practitioner consultations (22), eight were for pathology tests and a further four were to a radiologist; one was for a nurse consultation. Only one service related to mental health, and that was the review of the mental health plan by Dr Bobba in July 2013. But the record is of doubtful accuracy, in that it shows a succession of services that purport to have been provided during the period Mr Mumo was in Kenya (in particular radiology and pathology services, but also some general consultations). I note that a number of the listed practitioners provided services in the Blacktown area in Sydney; if those and other practitioners working other than in Canberra are omitted, the picture is of Mr Mumo visiting the doctor on only five occasions in the three years of interest from mid-2013 to the end of 2016: on 11 and 23 July 2013, on 31 May 2016 and on 8 and 15 November 2016. But the data is sufficiently uncertain that I am reluctant to rely on it.

11. The Secretary also supplied a list of the medications purportedly obtained by Mr Mumo over the same period. Once again the data is of doubtful utility as it includes scripts issued during Mr Mumo’s time in Kenya, and scripts issued and filled in Blacktown, NSW. There are 17 scripts, of which only one is for a medication that could be described as an antidepressant, a script for diazepam, prescribed on 3 February 2016 and filled on 1 April 2016 (50 tablets or capsules, zero repeats).

12. As noted, the data is itself of doubtful validity. But more revealing was Mr Mumo’s reaction at the hearing. When confronted by this evidence, he suggested that because he was prescribed a large quantity of his medication and a number of repeats, he was supplied with antidepressants over an extended period and did not need to return to the prescribing doctor. There is no evidence to support that claim, and it is not credible that he secured a three-year supply of antidepressants and then medicated himself from that supply.

13. It seems very much as if Mr Mumo was not treated for his mental illness between about July 2013 and when he saw Dr Mutisya in Kenya in July 2016. He did not receive any counselling or psychotherapy over the period, so far as the evidence shows, nor were any antidepressants or other relevant medication prescribed. That then raises the question whether his condition can be regarded as fully treated and fully stabilised. Clearly a decision-maker decided in 2012, when DSP was first granted, that he met the tests for the grant, including the criteria of permanence. If he was fully treated then, in what sense was he not fully treated four years later?

14. There are some medical conditions which, once treated, may need no further treatment – a fully treated person might be regarded as still fully treated at some later time even in the absence of further treatment, if the condition has not changed. But psychological conditions are not typically of that kind, as usually continued treatment is needed to maintain any reasonable level of functionality, including, in severe cases, in activities of daily living. Section 63 of the Administration Act empowers the Secretary to require a DSP recipient to undergo a medical examination. It is a clear implication that the ability of such a person to function is always open to examination. And in Mr Mumo’s case those professionals who did treat him all reported that they believed he required continuing treatment: Dr Brown said in April 2012 that he needed further treatment following the six sessions already provided; Dr Bobba drew up a new mental health plan in July 2013; Dr Mutisya stated that Mr Mumo “will benefit greatly from mental health support” on his return (T34) and would need to continue psychotherapy and antidepressants. Clearly the medical profession saw continued treatment as highly advisable. And there is no suggestion in the documentation that this is one of those cases where non-engagement with treatment is one of the symptoms of the illness.

15. I find Mr Mumo’s mental health condition to be fully diagnosed, but at the time of cancellation it was not fully treated and fully stabilised. Mr Mumo did not at that time meet paragraph 94(1)(b) of the Act and was not qualified for DSP; the cancellation of his pension is therefore appropriately affirmed. As he does not meet paragraph 94(1)(b) I do not need to examine whether he meets paragraph 94(1)(c) regarding a continuing inability to work.

16. As for Mr Mumo’s subsequent claim, the outcome of an assessment of that claim is inevitably the same. Mr Mumo did re-engage to some degree with the available medical services. At the hearing he submitted additional material (exhibit A2) in support of his case, comprising medical certificates from late 2016 and into 2017, and other documentation relating to treatment of his condition after the qualification period. None of the material assists Mr Mumo; the medical certificates establish that he had visited a general practitioner during the qualification period, but not that he had undertaken any dedicated treatment for his mental illness. Mr Mumo was referred to City Mental Health in November 2016 (T39, T40), but there is no record of whether he persisted with treatment, and a letter to him dated  20 July 2017 (T50) advises that, having not been able to contact him by telephone, letter or home visits, the Woden Mental Health Team were closing his file. I can see no basis for a conclusion that by 1 January 2017, the end of the qualification period, Mr Mumo’s mental illness was fully treated and fully stabilised. He was not qualified for DSP.

17. Mr Mumo clearly has a mental illness that has an effect on his ability to work. But a person who has been granted DSP remains obliged to continue treatment if that has any prospect of restoring functionality. Of course, after he has undertaken further treatment, Mr Mumo can apply for DSP once again.

18. The decision under review is affirmed.

51.     I certify that the preceding 50 (fifty) paragraphs are a true copy of the reasons for the decision herein of  Member Mark Hyman

52.      

..........................[sgd]..............................................

Associate

Dated: 13 September 2018

Date(s) of hearing:	20 July 2018
Solicitor for the Applicant:	Self-represented
Solicitors for the Respondent:	Department of Human Services