Silva and Secretary, Department of Employment and Workplace Relations

[2007] AATA 1304

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1304

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V 200600571

GENERAL  ADMINISTRATIVE   DIVISION      )

Re             DEBORAH JOY SILVA

Applicant

And          SECRETARY,

DEPARTMENT OF EMPLOYMENT

AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal       Regina Perton, Member

Date7 May 2007

PlaceMelbourne

Decision      The Tribunal affirms the decision under review.

(sgd) Regina Perton

Member

SOCIAL SECURITY - disability support pension - whether backdating to date of sickness allowance possible - decision affirmed

Social Security Act 1991 ss 94, 100(1), 100(2), 106, 107, 108,

Social Security (Administration) Act 1999 ss 12, 12(1), 15(1), 15(2), 15 (4A)

REASONS FOR DECISION

7 May 2007   Regina Perton, Member

1.        Centrelink, which delivers services for the Department of Employment and Workplace Relations, granted Miss Deborah Silva disability support pension from 25 January 2005.  Miss Silva claims that the starting date should be backdated to 24 November 1997, the date she lodged a claim for sickness allowance; or to other dates when she claimed Newstart allowance.

ISSUE

2.        The issue before the Tribunal is whether Miss Silva was eligible for disability support pension on any of the dates she claimed social security benefits: 24 November 1997 (sickness allowance), 28 January 1999 (Newstart allowance), 17 June 2002 (Newstart allowance) or any other date.

WAS MISS SILVA ELIGIBLE FOR DISABILITY SUPPORT PENSION ON 24 NOVEMBER 1997?

3.        Miss Silva told the Tribunal that she has suffered from a range of conditions including agoraphobia, panic attacks, depression and obsessive compulsive disorder.  She said that her first panic attack occurred in 1996 and that she has been receiving medical treatment since November 1997.  Miss Silva explained that in 1997, Centrelink advised her that sickness allowance was the only benefit appropriate for mental illness, so she did not lodge an application for disability support pension at the time.  She said that this is why she indicated on her claim for sickness allowance that she was not also claiming disability support pension.  She agreed that medical certificates lodged with her claim listed her conditions as temporary, but maintained that these were incorrect because her agoraphobia prevented her from returning to full-time work or study within the following two years.

4.        In a treating doctor’s report dated 2 December 1997, Dr G C White, consultant psychiatrist, diagnosed the conditions of depression and agoraphobia with panic attacks, which he described as temporary and stable.  He stated that Miss Silva would be able to return to part-time work within 6-12 months and any kind of full-time work within 12-24 months.   

5.        In a letter to Centrelink dated 29 November 2006, Dr White stated that Miss Silva presented arguments from research studies about agoraphobia conducted before 1997.  Dr White stated that at the time of his initial diagnosis, he held the view that temporary was a pure act of optimism and for treatment purposes, but that severe symptomology and co-morbid depression should have been taken as indicative of a poor treatment outcome.  He said that, after considering these and notes from his own file, he concluded that in 1997 he was incorrect to have considered her agoraphobia as temporary.  It should have been considered fully diagnosed, treated, stabilised and permanent because future treatment would have only minimal impact on depression and no effect on the panic disorder.

6. As at 24 November 1997, s 94 of the Social Security Act 1991 (the Act) provided that a person was qualified for disability support pension if, among other things, the person had a physical, intellectual or psychiatric impairment of 20% or more under the Tables For The Assessment Of Work-Related Impairment For Disability Support Pension in Schedule 1B of the Act (the Impairment Tables); and had a continuing inability to work as a result of the impairment. Section 106 stated that a person must lodge a proper claim for payment and ss 107 and 108 referred to the form of the claim and its lodgement. Section 100 (1) specified that the day on which the person lodged the claim was the commencement date for the payment of the pension. However, s 100(2) provided that if a person makes a claim for a benefit and on the day of the claim the person is qualified for disability support pension and later makes a claim for disability support pension, then if the Secretary is satisfied that it is reasonable, the person’s provisional commencement date is the day on which the initial claim is made.

7. The impact of s 100(2) is that Miss Silva must show that the claim for sickness allowance on 24 November 1997 was incorrect or inappropriate, and that she qualified for disability support pension on that date.

8.        The Tribunal takes into account that Miss Silva suffered panic attacks from August 1996 and in November 1997 was referred to Dr White for psychiatric treatment.  Although Dr White’s letter of 29 November 2006 states that his 1997 opinion was incorrect, the Tribunal prefers the contents of his 1997 report, which was written at the time.  He stated that Miss Silva had been a patient since 14 November 1997, agoraphobia and panic attacks were temporary, and that she was likely to be able to return to full-time work within 12-24 months.  This is consistent with the information on Miss Silva’s claim form; that she became ill or injured on 14 November 1997 and that her agoraphobia had built up gradually over a number of months.

9.        For these reasons the Tribunal finds that her conditions were not fully diagnosed, treated, stabilised and permanent and could not be assigned an impairment rating.  Therefore, as at 24 November 1997, Miss Silva was not qualified for disability support pension.  Consequently, her pension could not be backdated to 24 November 1997.

WAS MISS SILVA ELIGIBLE FOR DISABILITY SUPPORT PENSION ON 28 JANUARY 1999?

10.      Miss Silva told the Tribunal that she attempted to return to the workforce and obtained part-time/casual employment with the Amalgamated Casket Co. on 28 September 1998 as a process worker.  She explained that she was absent on many days because of anxiety and stress, and in January 1999 was unable to continue in her employment.  Miss Silva said that on 1 February 1999, she lodged a claim for Newstart allowance but was not informed by Centrelink that she could apply for disability support pension.  She agreed that she signed a declaration that she was unemployed and willing to work.  Miss Silva said that she was qualified for disability support pension at the date of her claim.

11.      Miss Silva returned to full-time work on 15 February 2000.  As there was no new medical information provided to Centrelink at the time of her claim for Newstart allowance and she declared herself willing to work, the Tribunal finds that her conditions were generally unchanged from the date of her claim for sickness allowance in 1997.  For these reasons, the Tribunal finds that conditions were not fully diagnosed, treated and stabilised and permanent, and could not be assigned an impairment rating in January 1999.  As at 28 January 1999, Miss Silva was not qualified for disability support pension.  Therefore, her pension could not be backdated to 28 January 1999.

WAS MISS SILVA ELIGIBLE FOR DISABILITY SUPPORT PENSION ON 17 JUNE 2002 OR ANY OTHER DATE BEFORE 24 JANUARY 2005?

12.      Miss Silva told the Tribunal that she made a further attempt to return to the workforce in February 2000.  She obtained part-time/casual employment with Holden Ltd, where she worked in engine operations.  She explained that she was absent on many days because of anxiety, and suffered a back injury on 3 October 2000.  She was made redundant on 11 October 2000 and received compensation payments for 20 months, which she considers were payments instead of disability support pension.  She said that she lodged a claim for Newstart allowance on 21 June 2002 and received payments from 17 June 2002.  Miss Silva stated that she was qualified for disability support pension from this date.

13.      In the alternative, Miss Silva stated that she continued to receive medical certificates referring to her conditions and her inability to work.  In completing a Newstart allowance review form in December 2003, Miss Silva referred to agoraphobia and a bulging disc, and noted that she had worked 38 hours per week at Holden.  She also stated on the form that she was taking anti-depressants and that she was awaiting an appointment with a psychiatrist.  In evidence to the Social Security Appeals Tribunal (SSAT), Miss Silva noted that in 2004 she consulted Dr Ibrahim, a psychiatrist, for six months, but she and Dr F Bergman, her general practitioner, were not happy with him because he played around with her medication.  She said that she then began to attend Dr J Lloyd, consultant psychiatrist.  In a letter dated 1 November 2006 Dr Lloyd stated that it is obvious from the psychiatric literature and the ongoing severity and chronicity of the agoraphobia, panic disorder and depression suffered by Miss Silva that her condition has been permanent and resistant to management since 1996 or 1997 despite attempts at therapy by other psychiatrists.     

14.      In medical certificates dated 17 December 2003 and 1 March 2004, Dr Bergman diagnosed Miss Silva’s conditions as panic attacks (temporary) and agoraphobia (permanent), and stated that the prognosis for each condition was uncertain.  On 29 April 2004 Dr Bergman described each condition as temporary.  In a treating doctor’s report dated 17 January 2005 Dr Bergman stated that Miss Silva’s agoraphobia was ongoing for over two years; was expected to affect her ability to function for more than 24 months; and was expected to remain unchanged within the next two years.

15. On 20 March 2000, s 100(2) of the Act was replaced by s 15 of the Social Security (Administration) Act 1999 (the Administration Act). Section 12 of the Administration Act also introduced a provision enabling transfer between payments without the need for a claim if a person in receipt of a payment becomes qualified for another while the person is receiving the first payment; and the Secretary is able to determine, apart from the section, that the person should be transferred to the second payment.

16.      In this case, the evidence before the Tribunal, despite the letter from Dr Lloyd written several years later, is consistent with the view that, while Miss Silva was in receipt of Newstart allowance before she was granted disability support pension on 25 January 2005, the medical reports described her panic attacks as temporary.  The evidence from Miss Silva and the material contained in the claim form supports her evidence to the SSAT that her conditions were seen as temporary in 2003; and that in 2004 she tried counselling and different medications.

17. For these reasons, the Tribunal finds that Miss Silva’s conditions were not fully diagnosed, treated, stabilised and permanent until January 2005, when Dr Bergman changed the prognosis and stated that her condition would remain unchanged for more than two years. Therefore, the Tribunal finds that Miss Silva did not become qualified for disability support pension between 17 June 2002 and 24 January 2005, while she was receiving newstart allowance. Therefore, under s 12(1) of the Administration Act, her claim for disability support pension cannot be backdated to a date earlier than her claim.

18. Sections 15(1), (2) and (4A) of the Administration Act provide that where a person makes a claim for a payment for which he or she was not qualified (an incorrect claim) and later makes a claim for which the person is qualified, and the Secretary considers it appropriate to apply the subsection, the person is deemed to have made a claim for the payment on the day the claim for the incorrect payment was made. Miss Silva was qualified for Newstart allowance when she claimed that payment, so this was not an incorrect payment. Therefore, she does not satisfy s 15 (1) or (2). In view of the Tribunal‘s finding that she did not qualify for disability support pension before 25 January 2005, she does not satisfy s 15 (4A) because she did not qualify for disability support pension on the day that she applied for newstart allowance.

DECISION

19.      The Tribunal affirms the decision under review.

I certify that the nineteen [19] preceding paragraphs are a true copy of the reasons for the decision of:

Regina Perton, Member

(sgd):        Ursula Noyé

Clerk

Date of hearing:  18 December 2006

Date of decision:  7 May 2007

Advocate for applicant:                Self-represented

Advocate for respondent:            Ms K. Paul, Centrelink Legal Services