Weinrichova and Secretary, Department of Social Services (Social services second review) - [2018] AATA 4254

Weinrichova and Secretary, Department of Social Services (Social services second review) [2018] AATA 4254 (13 November 2018)
Division:GENERAL DIVISION
File Number: 2017/6720
Re:Zdenka Weinrichova
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member D K Grigg
Date:13 November 2018
Place:Brisbane

The Tribunal refuses Ms Weinrichova’s application for reinstatement.
.............................[sgd].....................................
Member D K Grigg
CATCHWORDS
PRACTICE AND PROCEDURE – dismissed for non-appearance – application for reinstatement – where no corroborated reason for non-appearance – consideration of the merits – application for reinstatement refused
LEGISLATION
Acts Interpretation Act 1901 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)
Evidence Act 1995 (Cth)
Social Security Act 1991
Social Security (Administration) Act 1999
Social Security (International Agreements) Act 1999 (Cth)
CASES
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
Healy v Deputy Commissioner of Taxation (2015) 320 ALR 371
Oates and Secretary, Department of Social Security [1994] AATA 252
Scope Data Systems Pty Ltd v Gomanas Representative of Partnership BDO Nelson Parkhill (2007) 70 NSWLR 176
REASONS FOR DECISION
Member D K Grigg
13 November 2018
INTRODUCTION

Ms Weinrichova is a New Zealand citizen and the holder of a subclass 444 visa.[1] Ms Weinrichova has resided in Australia since 5 December 2015.[2]
[1] T Documents, T14, page 136, Ms Weinrichova’s Claim for DSP dated 5 December 2016.
[2] T Documents, T16, page 165, Ms Weinrichova’s Visa History.
On 5 December 2016, Ms Weinrichova lodged a claim for the Disability Support Pension (“DSP”).[3] On 8 March 2017, the Department of Human Services (“Centrelink”) rejected Ms Weinrichova’s claim for the DSP on the ground that she did not qualify as “severely disabled” pursuant to the Social Security (International Agreements) Act 1999 (Cth) (“IAA”).[4]
[3]T Documents, T7, pages 95 – 124, Ms Weinrichova’s Claim for DSP dated 5 December 2016.
[4] T Documents, T9, pages 133 – 135, Rejection of claim for DSP dated 8 March 2017.
Ms Weinrichova sought a review of that decision by an Authorised Review Officer at Centrelink, and then by the Social Services and Child Support Division (“SSCSD”) of this Tribunal,[5] but was unsuccessful. Ultimately, Ms Weinrichova filed an appeal in the General Division of this Tribunal. For the purpose of her application, Ms Weinrichova appointed Mr Robert Holub to be her representative.
[5] T Documents, T14, page 156, AAT notification of application dated 26 June 2017.
The hearing of Ms Weinrichova’s application was listed to be heard on 17 September 2018.
On 16 July 2018 the Tribunal sent a listing notice for the hearing by post to Ms Weinrichova’s nominated representative, Mr Holub. The listing notice was addressed to the postal address nominated by Mr Holub.
On 14 September 2018, an associate of the Tribunal attempted to conduct a pre-hearing check by telephone with Mr Holub on his nominated mobile number. The purpose of the pre-hearing check is to confirm that he and Ms Weinrichova were ready to proceed with the hearing. A woman answered the telephone but did not identify herself. The associate asked her to pass on a message to Mr Holub to have him contact the Tribunal. Mr Holub did not contact the Tribunal.
On the morning of the hearing, on 17 September 2018, an associate of the Tribunal attempted to contact Mr Holub by telephone again. There was no answer. A message was left by the associate on his message bank service reminding him that the hearing would commence at 10:00am.
The hearing of Ms Weinrichova’s application commenced at 10:00am as per the listing notice.
When Ms Weinrichova and Mr Holub failed to appear at the hearing, the hearing was adjourned for 5 to 10 minutes. An attempt was made by the Tribunal to telephone Ms Weinrichova and Mr Holub to no avail.
Ms Weinrichova’s application was then dismissed pursuant to section 42A(2)(a) of the Administrative Appeals Tribunal Act 1975 (“AAT Act”) which provides:
(2) If a party to a proceeding before the Tribunal in respect of an application for the review of a decision (not being the person who made the decision) fails either to appear in person or to appear by a representative at a directions hearing, or an alternative dispute resolution process under Division 3, held in relation to the application, or at the hearing of the proceeding, the Tribunal may:
(a) if the person who failed to appear is the applicant--dismiss the application without proceeding to review the decision;
On 17 September 2018 the AAT posted a notice to Mr Holub advising him that Ms Weinrichova’s application had been dismissed.
On 26 September 2018, Mr Holub emailed the Tribunal and requested that Ms Weinrichova’s application be reinstated.[6]
[6] See sections 42A(8A) and 42A(8B) of the AAT Act.
SECTION 42A(9) - REINSTATEMENT APPLICATIONS
The Tribunal has the power to reinstate an application under section 42A(9) of the AAT Act if it considers it to be appropriate to do so.
The following matters are relevant to whether the Tribunal should reinstate a matter:-[7]
(a)Whether there is any prejudice to the Respondent;
(b)The reason why Ms Weinrichova failed to appear;
(c)The merits of the substantive application; and
(d)Whether it is appropriate, given the public interest, to reinstate the matter in all the circumstances.
[7] For example, see Re Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344, Overton and Secretary, Department of Social Services [2015] AATA 318; Oates and Secretary, Department of Social Security [1994] AATA 252; Tighe and Secretary, Department of Social Services [2017] AATA 408.
Prejudice to the Respondent
The Respondent conceded that there is no legal prejudice to it if the matter were to be reinstated.
Reason Given for Non-Appearance
At the re-instatement hearing, Mr Holub told the Tribunal:
(a)he never received the listing notice which had been sent by the Tribunal on 16 July 2018;
(b)it was his wife who answered the telephone call from the AAT associate on 14 September 2018;
(c)he shares a mobile phone with his wife;
(d)his wife never passed on the message that he was to phone the AAT on 14 September 2018; and
(e)he never received any phone calls or messages from the Tribunal on 17 September 2018.
Pursuant to section 29(1) of the Acts Interpretation Act 1901 (Cth) (“AIA”):
service [by post] shall be deemed to be effected by properly addressing, prepaying and posting the document as a letter and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.
The Evidence Act 1995 (Cth) provides in section 160 that it:
“is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) that a postal article sent by prepaid post addressed to a person at a specified address in Australia…was received at that address on the fourth working day after having been posted”.[8]
[8] Section 160 of the Evidence Act applies in this case - see ss 5 and 182(4A) of the Evidence Act.
Unless evidence sufficient to raise doubt about the presumption is adduced, the listing notice is deemed to have been effectively served and can be presumed to have been received on 20 July 2018.
In Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 (“Fancourt”) the appellants swore that they did not receive notices sent to their residential address. It was not contended by the appellants, contrary to Mr Holub, that as they had not received the notices they had not been served. Mason, Murphy, Wilson, Deane and Dawson JJ observed (at 95) that to submit that they had not been served with the notices “would have been difficult having regard to the fact that there [was] nothing to show that the notices were not delivered as addressed”. Their Honours also noted that:
(at 19)…the notices were not returned undelivered and there was no other circumstance which suggested that they did not reach their destination. Hence under s. 39(1)(b) service is deemed to
have been effected at the time when the notices would have been delivered in the ordinary course of the post.
(at 21)…delivery may be different from receipt by the intended recipient and, provided that delivery is not disproved, the fact of non-receipt does not displace the result that delivery is deemed to have been effected at the time at which it would have taken place in the ordinary course of the post.
As in Fancourt, there is no evidence here that the listing notice was not delivered to Mr Holub’s address. Service of the listing notice can therefore be “deemed to have taken to have taken place in the due course of the post”.[9]
[9] (1983) 154 CLR 87, at 95.
In Scope Data Systems Pty Ltd v Gomanas Representative of Partnership BDO Nelson Parkhill (2007) 70 NSWLR 176 (Scope Data Systems):
[49] The plaintiff also argued that there was a difference between receipt of a postal article to which s 160 refers and delivery of a postal article to which s 29 refers. Clearly, there is a difference between the delivery of a postal article to a place and its receipt by a person. It is this distinction to which the High Court refers in Fancourt v Mercantile Credits Ltd. However, there is no distinction between delivery of an article to a specified address, that is, to a place, and its receipt at that address.
In Scope Data Systems there was evidence that a notice sent to the Applicant had not been received and that it had in fact not been delivered. That evidence does not exist here.
In Healy v Deputy Commissioner of Taxation (2015) 320 ALR 371 the appellants’ evidence was that they had not received a penalty notice sent by post. Buss JA (at 88) said:
The appellant’s affidavit evidence that he did not receive the letter containing the penalty notice in the mail is not of any significance. His evidence is merely probative of non-receipt by him of the letter. It is not probative of the non-delivery… The appellant did not adduce any evidence to the effect that the letter containing the penalty notice was not or may not have been delivered to 82 Limetree Circuit, Mindarie within 3 business days or at all
Newnes JA said (emphasis added):
[133] Counsel for the appellant argued that evidence of non-receipt was nevertheless relevant to establishing non-delivery and was sufficient in this case to establish an arguable case of non-delivery. I do not accept that. While evidence that a document was not received by a person may be relevant to establishing non-delivery to a particular place and, taken together with evidence of other relevant circumstances, may permit a proper inference of non-delivery to be drawn, the difficulty for the appellant is that the evidence in this case did not go beyond evidence that the DPN was not received by the appellant. There was no evidence capable of proving that it was not delivered to his address. There was, for instance, no evidence as to who was occupying the premises at the address at the relevant time or as to what happened to mail after it was delivered to the address, including whether there was any system or routine for collecting the mail and who had access to it.
[135] In the circumstances, the evidence of non-receipt of the DPN by the appellant was incapable of establishing an arguable case that the DPN was not delivered to the appellant’s address.
Given that Ms Weinrichova has requested reinstatement of her application, Mr Holub clearly received the dismissal notice sent to him by the Tribunal on 17 September 2018. The dismissal notice was sent to the same address as the listing notice on 16 July 2018.
There was some confusion at the reinstatement hearing by Mr Holub as to whether the dismissal notice had been sent by mail or email. The Tribunal records show that it was sent by post to his residential address only. There is no other way Mr Holub could have been aware that Ms Weinrichova’s application had been dismissed unless he received that letter in the post.
It can be seen from the cases referred to above that where there is no evidence of actual delivery, section 29 of the AIA and section 160 of the Evidence Act apply to deem delivery to have been effected in the ordinary course, unless sufficient evidence is adduced that the post was not delivered in the ordinary course.
In the Tribunal’s opinion, it is more likely than not the listing notice sent by the Tribunal on 16 July 2018 to Mr Holub’s address was delivered in the ordinary course of post, within 4 business days after posting.
The Tribunal is not convinced that Mr Holub was not aware of the date of the hearing. The notice was sent to the usual address and was not returned to the Tribunal.
In addition to his claim of not receiving the listing notice in the mail, Mr Holub requires the Tribunal to believe he did not receive any messages or notifications of missed telephone calls from the Tribunal. The Tribunal finds it curious that Mr Holub knew his wife answered his mobile phone when he says he was not aware that the AAT had telephoned at all. Mrs Holub did not give evidence.
There is no corroborating evidence to support Mr Holub’s assertion that he did not receive the listing notice or the telephone messages reminding him of the date and time of the hearing. The Tribunal is not satisfied with the explanation given by Mr Holub of the reasons for his lack of appearance.
Merits of the Substantive Application
The issues which would require determination if the matter were reinstated are not without complexity. Because Ms Weingrichova is a citizen of New Zealand, the Tribunal would need to determine:
(a)whether Ms Weinrichova is entitled to claim DSP in Australia;
(b)the criteria by which Ms Weinrichova is to be assessed in order to qualify for DSP;
(c)the application and interaction of the Social Security Act 1991 (‘ the Act’) and the Agreement on Social Security between the Government of Australia and the Government of New Zealand contained in Schedule 3 of the IAA (which came into force on 1 July 2002) (“2002 NZA”) needs to be determined; and
(d)the relevant date of assessing Ms Weinrichova’s medical conditions.
One issue which the Respondent agrees is a necessary component for Ms Weinrichova to be eligible for the DSP as a result of the interaction of the Act and the 2002 NZA is that she is “severely disabled”.
The definition of “severely disabled” in the 2002 NZA clarifies that the impairment being considered must, without taking any other factor into account, make the person totally unable:
(a)to work for at least the next 2 years; and
(b)to benefit within the next 2 years from participation in a program of assistance or a rehabilitation program.
The primary contention by the Respondent is that Ms Weinrichova has poor prospects of success with obtaining the DSP because she is potentially able to benefit within the next 2 years from participation in a program of assistance or a rehabilitation program.
Requirements for Severe Disability
There are 3 requirements to be met under the definition of “severely disabled” in Article 1(l)(i) of the 2002 NZA.
The first requirement is that Ms Weinrichova has a physical impairment, a psychiatric impairment or an intellectual impairment. The second requirement is that Ms Weinrichova’s impairment/s makes her, without taking into account any other factor, totally unable to work for at least the next 2 years. The third requirement is that Ms Weinrichova’s impairment/s makes her, without taking into account any other factor, totally unable to benefit within the next 2 years from participation in a program of assistance or a rehabilitation program.
Does Ms Weinrichova have an impairment?
“Impairment” has the same meaning in Article 2(2) of the 2002 NZA as it does in section 94(1)(a) of the Act.[10] The Determination defines “Impairment” to mean “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition” and “condition” as “a medical condition”.[11]
[10] 2002 NZA, Article 3; and IAA, section 3(1).
[11] Determination, s 3.
Osteoarthritis in knee and back
In July 2012 Dr Keith Colvine, Rheumatologist, reported that Ms Weinrichova had features of inflammatory arthropathy in the left knee and that Spondyloarthropathy was the most likely possibility. Dr Colvine prescribed hydroxychloroquine.[12]
[12] Report of Dr Colvine dated 12 July 2012.
In October 2012 Dr Colvine reported that, in relation to Ms Weinrichova’s back pain, he was not convinced that it was inflammatory in nature and that her features were more indicative of mechanical lower back pain. He noted that Ms Weinrichova was reticent to start the Hydroxychloroquine because of a rare side-effect of alopecia. He reported there may be some benefit in her changing anti-inflammatories and gave her an alternate script, and that if progress remained stable in six months’ time he would discharge her from the clinic at that time.[13]
[13] Report of Dr Colvine dated 3 October 2012.
In May 2013 Dr Colvine reported that, following an assessment of Ms Weinrichova after a flare up of her inflammatory arthritis with mostly left knee pain and swelling, he talked to her about having an injection in her knee but she was hesitant to do so. In the interim, Dr Colvine prescribed Prednisone.[14]
[14] Report of Dr Colvine dated 8 May 2013.
In December 2013, Dr Colvine reported that Ms Weinrichova’s inflammatory arthritis had been problematic with persistent particular knee pain, discomfort and swelling of the right knee and a number of the small joints of the hands. Dr Colvine prescribed a dose of Hydroxychloroquine at 400 mg once per day.[15]
[15] Report of Dr Colvine 18 December 2013.
In September 2017 Dr Raju reported that Ms Weinrichova had osteoarthritis in her knee and back which began in 2010 and caused her to have pain and decreased movement. Dr Raju stated that Ms Weinrichova took medication for the condition at that time.[16]
[16] T Documents, T15, page 160, Medical certificate of Dr Raju dated 20 September 2017.
In December 2017 Dr Armi Salonga-Reyes, advanced trainee, and Dr Jacob Idjo, Director of Rheumatology at the Gold Coast University Hospital assessed Ms Weinrichova and reported that:[17]
(a)there was no evidence of inflammatory arthritis;
(b)she did have central pain sensitisation syndrome and/or fibromyalgia;
(c)untreated obstructive sleep apnoea might be contributing to her generalised pain;
(d)previous left knee swelling is likely secondary to an osteoarthritis which is exacerbated by her body habitusj
(e)they had arranged for weight bearing x-rays of the knees to be undertaken and requested blood tests;
(f)she should be referred for a sleep study so that she could be treated accordingly for obstructive sleep apnoea;
(g)the symptoms are consistent with fibromyalgia which has been long-standing; and
(h)recommended in-depth medication, and prove sleep at night, avoidance of daytime naps, daily minute mild exercise and weight loss.
[17] Report of Drs Salonga-Reyes and Ijdo dated 7 December 2017.
In January 2018 Dr Joseph Williams, General Practitioner, reported that Ms Weinrichova had been a patient of his for a few months and that from his clinical impression, confirmed by the rheumatologist specialist, she has a significant functional impairment due to her fibromyalgia and osteoarthritis.[18]
[18] Report of Dr Williams dated 3 January 2018.
In May 2018 Dr Williams reported that:[19]
(a)Ms Weinrichova has limitations due to pain and that walking any distance is difficult for her; and
(b)every day her pain is severe and her functionality is decreased as a result.
[19] Response to questions for Dr completed by Dr Williams on 17 May 2018.

In May 2018 Dr Troy Cartwright, General Practitioner, reported that:[20]
(a)Ms Weinrichova is able to walk around a supermarket without assistance;
(b)is unable to walk from the car park to the shopping centre or supermarket due to generalised fibromyalgia pain;
(c)she has never tried to use public transport and feels she could not manage it because of the pain and getting lost easily;
(d)she has no problems with performing light day-to-day household activities;
(e)her sitting tolerance is limited to 50/60 minutes due to generalised pain; and
(f)his opinion was based on Ms Weinrichova’s self-report.
[20] Response to questions for Dr completed by Dr Cartwright on 18 May 2018.
Depression/Anxiety
In September 2017 Dr Raju reported that Ms Weinrichova had depression/anxiety which began in 2015 and caused her to have a depressed and anxious mood. Dr Raju says Ms Weinrichova took medication for the condition and was having psychological and psychiatric treatment.[21]
[21] T Documents, T15, page 160, Medical certificate of Dr Raju dated 20 September 2017.
In December 2017 Ms Ruth Macalpine, Clinical Psychologist, reported that she had been seeing Ms Weinrichova over the past two months. Ms Macalpine reported that a psychometric assessment along with diagnostic clinical interview indicated that she had met the Diagnostic and Statistical Manual – fifth edition (‘DSM-V’) criteria for panic disorder, generalised anxiety disorder, agoraphobia, and major depressive disorder, moderate. Ms Macalpine stated that Ms Weinrichova reported that she had attended psychological treatment in New Zealand in the past but that was unsuccessful and that her symptoms have been present for the past eight years. Treatment was being conducted with acceptance and commitment therapy which she had not responded to date although she was engaging. In Ms Macalpine’s opinion, “due to the chronicity and severity and her presentation, it is expected that she would not have sufficient improvement functioning to work 8 – 14 hours per week in any job within the next two years.” Ms Macalpine reported that:[22]
·Ms Weinrichova had not worked in 12 years due to physical and psychological conditions
·she lives with her daughter and her husband who perform the daily living tasks she does not have the capacity to perform such as cleaning
·she is severely restricted in her ability to take public transport
·she has reported a propensity to become lost easily, having a poor sense of direction and needed assistance to travel beyond familiar bounds without getting lost, making it necessary for her to rely on others for navigation and travel; something that she has struggled with from childhood through to adulthood;
·she relies upon family for translation assistance and for performing tasks such as submitting paperwork, organisation and decision-making, due to her impairments, problem-solving and her inability to concentrate due to the psychological and physical conditions; and
·she has no social support network outside of her family.
[22] Report of Ms Macalpine dated 12 December 2017.
Based on the available medical evidence, it is clear, and not contentious, that Ms Weinrichova has an arthritis/fibromyalgia and mental health impairment.[23] There are other medical conditions referred to in the material but it is not necessary to consider them for the purpose of deciding this reinstatement application.
Does Ms Weinrichova’s Arthritis/Fibromyalgia and Mental Health Impairment make her, without taking into account any other factor, totally unable to work for at least the next 2 years or unable to benefit within the next 2 years from participation in a program of assistance or a rehabilitation program?
[23] Secretary's Statement of Facts and Contentions dated 4 July 2018, para 71.
The definition of “severely disabled” does not specify that the person concerned must be totally unable to work in any specific role. There is no limitation placed on the meaning of work.
The Respondent submits that Ms Weinrichova’s application for review has little merit and relies on:
(a)Dr Salonga-Reyes’ (December 2017) report that there was a rehabilitation plan in place for Ms Weinrichova’s fibromyalgia; and
(b)Ruth Macalpine’s report that Ms Weinrichova was undertaking further treatment.
The Respondent contends it is reasonable to infer from these medical reports that there is some likelihood that Ms Weinrichova would improve and obtain some benefit from treatment.
Osteoarthritis Impairment
The medical evidence available indicates that Ms Weinrichova:
(a)has not had an injection in her knee as recommended by Dr Colvine in 2013;
(b)was not reviewed by a rheumatologist between December 2013 and December 2017;
(c)has pain that may be caused in part by sleep apnoea which had not been diagnosed or treated; and
(d)has not completed the treatment recommended by Dr Salonga-Reyes and Dr Idjo in December 2017.
Dr Salonga-Reyes’ recommendation was that Ms Weinrichova take Endep medication, improve her sleep at night, avoid daytime naps, engage in daily minute mild exercise and lose weight. In Dr Reyes’ opinion, Ms Weinrichova’s untreated obstructive sleep apnoea may be contributing to her pain. Dr Salonga-Reyes also recommended that further x-rays be undertaken to confirm the osteoarthritis diagnosis. It is not clear to what extent Ms Weinrichova was expected to benefit but it is reasonable to assume there would be some benefit.
There is no indication in the available medical evidence that Ms Weinrichova had engaged in the treatment recommended by Dr Salonga-Reyes previously.
Dr Williams reported in January 2018 that Ms Weinrichova has a significant functional impairment due to her fibromyalgia and osteoarthritis[24] but did not indicate whether she had commenced treating her sleep apnoea or had engaged in any of the other treatments recommended by Dr Reyes.
[24] Report of Dr Williams dated 3 January 2018.
There is no evidence before the Tribunal to indicate that Ms Weinrichova would be unable to benefit from a program of assistance or a rehabilitation program if she had had the treatment recommended to her.
Mental Health Impairment
The medical evidence available indicates that Ms Weinrichova:
(a)has had some psychological treatment but there is limited information;
(b)may be able to work up to 8 hours per week within the next two years; and
(c)with treatment, may be able to benefit within the next two years from participation in a rehabilitation program.
Ms Macalpine had only been assessing Ms Weinrichova for 2 months when she provided her report. It is highly unlikely that she would be treating Ms Weinrichova if she did not believe it would have some benefit. While Ms Weinrichova reported that she had previously consulted with psychologists in New Zealand and at the pain clinic, there is no evidence from any psychologist confirming that Ms Weinrichova had engaged in sufficient and appropriate psychological treatment previously and no report to say that this treatment would have no benefit to Ms Weinrichova.
While the doctors do not specifically say that Ms Weinrichova will benefit from treatment, it is a reasonable presumption to make, particular given that there is no direct evidence that this treatment would not provide some degree of benefit.
As a result, the Tribunal finds that Ms Weinrichova has poor prospects of being found to be “severely disabled”.
Public Interest
There is no reason to consider that people in a similar position to Ms Weinrichova would be prejudiced or affected by refusing Ms Weinrichova’s application for reinstatement.[25]
[25] Oates and Secretary, Department of Social Security [1994] AATA 252, at [49].
DECISION
Based on the findings above, the Tribunal refuses Ms Weinrichova’s application for reinstatement.

I certify that the preceding 65 (sixty - five) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg

...............................[sgd]..................................
Associate
Dated: 13 November 2018

Date of hearing: 9 October 2018

Advocate for the Applicant: Robert Holub, By Phone

Advocate for the Respondent: Nick Warren, Senior Lawyer

Solicitors for the Respondent: Department of Human Services

Date of hearing:	9 October 2018
Advocate for the Applicant:	Robert Holub, By Phone
Advocate for the Respondent:	Nick Warren, Senior Lawyer
Solicitors for the Respondent:	Department of Human Services