The Applicant and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2013] AATA 158
[2013] AATA 158
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/1770
Re
The Applicant
APPLICANT
And
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT
DECISION
Tribunal Ms G Ettinger, Senior Member
Date 22 March 2013 Place Sydney The Tribunal affirms the decision under review.
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Ms G Ettinger, Senior Member
CATCHWORDS
SOCIAL SECURITY - Disability Support Pension – the Applicant suffers serious psychiatric illness originating some 15 years ago – she has received various income support payments including Newstart allowance, and student allowances – her application before this Tribunal was to backdate her Disability Support Pension – application of the legislation does not permit that – decision of the SSAT affirmed.
LEGISLATION
Social Security Act 1991 s 94
Social Security (Administration) Act 1999 ss 11, 12, 16, 36, 37(1), 42
Administrative Appeals Tribunal Act 1975 ss 35, 15
CASES
Coates and Secretary Department of Employment and Workplace Relations [2006] AATA 938
SECONDARY MATERIALS
Guide to Social Security Law
REASONS FOR DECISION
Ms G Ettinger, Senior Member
22 March 2013
SUMMARY
The Applicant is in her late forties, and has suffered a serious psychiatric illness for approximately 15 years. She has been in receipt of various income support payments such as Newstart allowance (NSA) and student allowances. She has been in receipt of Disability Support Pension (DSP) since 2011. She would like to backdate her DSP on the basis that she qualified for the DSP much earlier.
The Applicant was represented by her mother, Mrs A. Her brother, Mr M, also attended, and all three persons gave evidence. Mrs A prepared extensive written documents which were before the Tribunal as Exhibits A1 and A2 and A3. Ms Sharma, who appeared for the Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (the Department), provided a comprehensive Statement of Facts and Contentions which has also been of assistance.
The Applicant and her family are upset because they feel that they have been unfairly treated by Centrelink and that, had the Applicant’s psychiatric illness been recognised earlier, she could have had earlier intervention. Although there is no medical evidence to support this, the Applicant and her mother believe she would not have a permanent disability if the contact with Centrelink had been more satisfactory. The Applicant and her family feel that the Job Capacity Assessments were carried out by staff who were acting outside their field of expertise, who ignored the medical reports and medical certificates provided to them, and who continued to urge the Applicant into job seeking rather than towards psychiatric assistance.
My task is to consider the relevant legislation, being the Social Security Act 1991 (the SSA) and the Social Security (Administration) Act 1999 (the Administration Act), and to make the correct or preferable decision regarding whether the Applicant’s DSP, which has been held by the Social Security Appeals Tribunal (SSAT) to commence on 25 February 2011, can be backdated further.
Unfortunately whilst I feel sympathy for the Applicant, and understand her argument, I am unable to accede to her request. My decision is to affirm the decision of the SSAT. My reasons follow.
I note for the sake of completeness that Mrs A made an application on behalf of the Applicant for the matter to be heard in private. As I found it to be desirable in this case, I have made an order pursuant to section 35 of the Administrative Appeals Tribunal Act 1975 in that regard, and also restricted publication of details which could identify the Applicant.
I note also that the Applicant and her family made an application for a grant of Compensation for Detriment caused by Deficient Administration. This was refused by the Department on the basis that it does not have a duty to provide intensive psychological support to the Applicant, or that any action by the Department foreseeably caused an exacerbation or deterioration of the Applicant’s mental health.
ISSUE BEFORE THE TRIBUNAL
I must decide whether the Applicant’s DSP can be backdated further than 25 February 2011.
EVIDENCE AND SUBMISSIONS OF THE APPLICANT AND HER FAMILY
The Applicant, Mr M, and Mrs A all gave evidence. Mrs A and Mr M spoke openly about their worries for the Applicant and the way they feel that Centrelink had abnegated its responsibility in not identifying earlier that she was psychiatrically ill.
The Applicant told me that she felt intimidated and hurt by the way her case was handled, emphasising that the seriousness of her case was overlooked.
The family submitted that the Ombudsman, in his report on job capacity assessments, commented on the qualifications of the assessors, the lack of consistency of decision making by assessors and administrative problems.
Further evidence and submissions of the family were:
·that the Job Capacity Assessment Reports were prepared by persons who acted outside their training and abilities, who over-rode medical reports which indicated the Applicant suffered grave psychiatric illness;
·that notwithstanding her condition, the Applicant was required to apply for jobs;
·the episodic nature of the Applicant’s illness was not taken into account by Centrelink – it flares up when least expected;
·that early intervention may have prevented the extent of the Applicant’s present illness which was exacerbated by Centrelink’s lack of action in that regard;
·that information was withheld from the Applicant and her family;
·that the Applicant’s condition when Mrs A submitted medical certificates to Centrelink on 23 June 2010 confirmed she was eligible for DSP by that date; that notwithstanding the situation, neither the Applicant nor Mrs A were advised that she should apply for DSP, and she thus remained on NSA;
·that the Applicant and her case were not referred to the Health Professional Advisory Unit; and
·that the Applicant was told she had to participate in market research when it was aimed at persons aged 35 and under (the Applicant is over 40 years old).
FACTS BEFORE THE TRIBUNAL
Documents before me indicate that the Applicant was first granted NSA in April 2007, and that between that date and July 2009, she received either NSA or Austudy. Following that period, the Applicant was again on NSA.
In May 2010 Dr T, the Applicant’s general practitioner, provided a medical certificate with a diagnosis of depression indicating the condition was temporary, and likely to show considerable improvement within 2 years (T6/30).
Also in May 2010, a Job Capacity Assessment was conducted. The assessor reported that the Applicant suffered depression, and that she presented with significant psychological symptoms during the assessment with minimal history of intervention (T20-107). The assessor noted that the Applicant’s condition impacted on various areas of functioning such as mood and thought, and that the unpredictability of symptoms would cause instability and reduced work performance and attendance at work. It was noted that no permanent medical condition had been identified, and that the Applicant’s work capacity with or without intervention was assessed at 30 hours a week or more within the next 24 months. It was noted that the Applicant had a referral to a psychiatrist for assessment and treatment, and that her condition was not fully diagnosed, treated and stabilised.
On 21 June 2010, Dr T provided a medical certificate noting that the Applicant was undergoing treatment for an acute paranoid psychotic disorder and would not be fit for gainful employment for the next two years (T20/114).
The Applicant then consulted Dr H, a psychiatrist who provided a diagnosis of psychosis on 23 June 2010. He certified her unfit for work from 23 June 2010 to 23 September 2010 (T20/115). His further report dated 24 May 2011, which was in support of the application for the DSP, indicated that the impact of the Applicant’s condition on her ability to function would persist more than 24 months, and that the impact upon the Applicant’s ability to function within the next two years, was uncertain, and depended on her adherence with treatment (T13/46).
Further medical certificates of Dr T covered the period September 2010 to June 2011, noting the diagnosis of paranoid psychosis, and noting that the onset of the Applicant’s condition was September 1998 (T20/117/ T20/118, T20/119, T20/120). The medical certificates indicated as follows:
·In the medical certificate covering the period 15 September 2010 to 15 December 2010, Dr T indicated the condition was likely to persist.
·In the following certificate which covered the period 1 October 2010 to 1 January 2011, Dr T indicated that the Applicant could not do her work or study or any other work for eight or more hours a week. He also indicated that she was likely to show considerable improvement within two years.
·In the certificate covering the period 15 December 2010 to 15 March 2011, Dr T indicated that the diagnosis and symptoms were likely to persist, and that the Applicant could not do her study or work eight hours or more a week.
·In the certificate covering the period 15 March 2011 to 15 June 2011, Dr T indicated that diagnosis and symptoms were likely to persist and that the Applicant could not do her study or work eight hours or more a week.
Mr G, a clinical psychologist provided a report in May 2011 stating that he had first seen the Applicant in July 2010 and that, whilst she suffered psychosis, she had made significant gains in her ability to function. He indicated that the Applicant was under the treatment of Dr H and had made significant gains in her ability to function, but that her psychosis remains. He noted that she was engaged in an effort to improve her quality of life and remained unfit for work. He did not indicate what time frame applied to the Applicant in relation to a return to fitness for work.
The Applicant made a claim for DSP on 27 May 2011, and on 10 June 2011 attended a Job Capacity Assessment in person. The assessor found that she had a permanent medical condition (schizophrenia), and decided that she qualified for DSP. In June 2011 the Applicant was notified of the grant, effective 27 May 2011.
Dr H wrote to Centrelink on 14 August 2011 in support of the Applicant’s request for review of the date of grant to be backdated to 22 June 2010 when he first saw her. He stated that he had completed a medical certificate indicating the Applicant would have a disability for greater than two years and noting that she was opposed to receiving DSP (T20/130).
As the request to backdate her DSP was refused by Centrelink, the Applicant applied for review to the SSAT, which backdated her DSP for a period of 13 weeks to commence on 25 February 2011. The SSAT decided to treat the Applicant as a transferee from one payment to another pursuant to section 12(2) of the Administration Act.The Applicant was not satisfied because she is convinced that she has been suffering psychiatric illness for approximately 15 years, and has accordingly exercised her rights to apply to this Tribunal.
I noted that recently Dr T wrote again on 24 January 2013, emphasising that the Applicant is on DSP for a major health problem, being paranoid psychosis, which is permanent and prevents her from undertaking employment. Dr H wrote on 7 February 2013 stating that the Applicant suffers paranoid schizophrenia, that the condition is permanent and that it prevents her from undertaking paid employment.
RESPONDENT’S SUBMISSIONS
Ms Sharma relied on the Respondent’s Statement of Facts and Contentions in making her submissions. She submitted that the Respondent relied on section 12(2) of the Administration Act, which limits the day a person can be taken to have made the claim for DSP in accordance with section 12(1) of the Administration Act to a maximum of 13 weeks prior to the determination. She told me that the Respondent agreed with the findings of the SSAT and sought to have them affirmed.
Ms Sharma also addressed Mrs A’s concerns that Centrelink should have assisted the Applicant more in regard to her psychiatric illness. In doing so, she referred to the medical certificates the Applicant provided, for example that of Dr T of 7 May 2010 in which he stated that the Applicant’s condition was temporary and that she was likely to show considerable improvement within two years (T6/30). Ms Sharma also referred to the report of Mr G who stated on 12 May 2011 that whilst the psychosis remained, the Applicant had made significant gains in her ability to function (T12/45).
Ms Sharma noted that it was only in 2011 that the Applicant’s condition became permanent and could be assessed pursuant to section 94 of the SSA. She referred to the case of Coates and Secretary Department of Employment and Workplace Relations [2006] AATA 938 in which the Tribunal discussed the concept of permanence as follows at [21]-[22]:
...That judgment is to be made on the basis of the material capable of throwing light on the issue of whether the conditions were, at the relevant time, fully documented and diagnosed conditions which had been investigated, treated and stabilised. It is not to the point that they may have answered that description at a later time. Nor is it to the point, for present purposes, that the point at which the conditions could have been investigated, treated and stabilised at an earlier time had Centrelink acted in a different manner. The Parliament has determined that disability support pensions are to be paid when certain qualifying criteria are satisfied. The evident legislative intent is that disability support pensions be paid only when the disabling condition has reached the stage where it can be regarded as being permanent and having a permanent impact upon normal function as it relates to work performance…
Ms Sharma submitted that the Secretary accepts that it is likely that the Applicant’s psychiatric condition predated the February 2011 claim. She submitted however, that there was no evidence that the Applicant’s psychiatric condition could have been considered to be permanent (i.e. fully diagnosed, treated and stabilised) prior to February 2011. Further, there was no evidence available to the Secretary that this condition would have warranted an impairment rating or an increase in rating prior to that time. Ms Sharma referred the Tribunal and the Applicant to the following introductory text to Impairment Table 6:
It is important to record a detailed psychiatric history, a mental state examination, and to distinguish between temporary and permanent psychiatric disorders. People with established psychiatric disorders (eg. Bipolar Disorder) may be highly variable in their clinical presentation and this factor must be taken into account in the assessment. The assessment of psychiatric impairment may benefit from investigating; reports from mental health case managers, compliance with and the effects of medication, support systems that people have in place, the degree of insight present and the presence of psychotic illness. Where a person has a short term problem, for example an adjustment disorder with depression following an illness or marital breakdown, initially this should usually be considered to be of a temporary nature. Table 6 is used for permanent psychiatric disorders only. If there is insufficient clinical information available, a current or recent specialist report should be obtained (emphasis added).
CONCLUSIONS
I am mindful that in coming to a decision regarding whether the Applicant’s DSP can be backdated to a date prior to 25 February 2011, I have to take into account all the evidence, medical reports and the legislation, noting in particular when the Applicant’s condition became permanent and when she made her application for the benefit. In doing so I am mindful of the feelings the Applicant and her family have described regarding what they perceive as the lack of proper attention Centrelink afforded her. Unfortunately, although I can empathise on a personal level, I am not able to take those feelings, as expressed to me, into account in making this decision.
The Applicant claims she has been psychiatrically ill for some 15 years, and Dr T has noted that the onset of her psychosis was variously in 1996 (T20/115) or 1998 (T20/117,119, 120). That has not been challenged.
I am however mindful that the grant of DSP can only be made to a person who satisfies the indicia in section 94 of the SSA. The person’s impairment must be 20 points or more under the Impairment Tables. Then, in order to qualify, the condition must have been fully documented and diagnosed and been investigated, treated and stabilised. It is only then that it can be considered permanent if pursuant to the available evidence, it is more likely than not that it will persist for the foreseeable future, being more than two years.
There is no dispute that the Applicant satisfies sections 94(1) of the SSA in that she has a psychiatric impairment (section 94(1)(a)), that she is impaired, in satisfaction of section 94(1)(b), and that she has a continuing inability to work (sections 94(1)(c) and 94(2)). That has likely been the case since the end of 2010.
However, as I have noted above, Dr T provided medical certificates during 2010 and 2011 in which he did not indicate that the Applicant’s condition was permanent, which meant that at the time of those certificates, she would not have been eligible for DSP. Dr H certified the Applicant unfit for work from 23 June 2010 to 23 September 2010 (T20/115). That meant she was unfit for work on a temporary basis. His further report dated 24 May 2011, which was in support of the application for the DSP, indicated that the impact of the Applicant’s condition on her ability to function would persist more than 24 months and that the impact upon the Applicant’s ability to function within the next two years was uncertain and depended on her adherence with treatment (T13/46).
It was only in the certificate covering the period 15 December 2010 to 15 March 2011 that Dr T indicated that the Applicant’s diagnosis and symptoms were likely to persist and that she could not do her study or work eight hours or more a week. He repeated that in the certificate covering the period 15 March 2010 to 15 June 2011.
Further, pursuant to sections 11 and 16 of the Administration Act, the Applicant, in seeking DSP, must make an application in writing, usually on an approved form. The evidence before me is that she did not do that until 27 May 2011.
Following the application the Secretary had then, pursuant to section 36 of the Administration Act, to determine the claim by granting it or rejecting it. The grant is subject to section 37(1) of the Administration Act, and the social security payment, in this case, the DSP, becomes payable to the person on the start date. Section 42 of the Administration Act indicates that the start date for a social security payment is worked out in accordance with Schedule 2. The Applicant’s DSP was granted from 27 May 2011, the date of the Applicant’s application. That is the usual way.
However, Schedule 2 provides for an earlier start date in limited circumstances. Section 12 of the Administration Act may also assist in unusual circumstances, such as where the Secretary, and the Tribunal standing in his shoes, may decide that a person became qualified for a new payment while receiving another income support payment. Section 12 of the Administration Act is applicable to the Applicant, in that she became eligible for DSP while receiving NSA. Accordingly, pursuant to section 12(1) of the Administration Act, the Applicant’s DSP was able to be backdated a maximum of 13 weeks, which takes her eligibility back to 25 February 2011 even though she may, based on the medical reports, have been qualified earlier.
The Respondent has made lengthy submissions, in its Statement of Facts and Contentions, regarding the application of section 15 of the Administration Act, which provides for a departure from the general scheme in certain circumstances involving incorrect claims. Ms Sharma did not address orally on the issue, but the argument given in writing was that section 15 did not apply to assist the Applicant.
I note that section 15 could apply if the Applicant had made a claim for which she was not qualified. I have no evidence to satisfy me that she did that. The claims she made for NSA and Austudy in 2007 and 2009 were granted, and the DSP claim was granted, initially from 27 May 2011, and backdated to 25 February 2011, with arrears paid to the Applicant. As the Applicant did not make an application for DSP until 27 May 2011, it could not be backdated beyond the statutory 13 weeks, being to 25 February 2011.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 39 (thirty nine) paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member.
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Associate
Dated 22 March 2013
Date of hearing 7 March 2013 Applicant In person Advocates for the Applicant Mrs A, Mr M Solicitor for the Respondent Ms P Sharma, Centrelink Program Litigation and Review Branch
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