Whittaker and Secretary, Department of Employment and Workplace Relations

[2006] AATA 449

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 449

ADMINISTRATIVE APPEALS TRIBUNAL          № V2005/409

GENERAL ADMINISTRATIVE DIVISION

Re:           PAUL CRAIG WHITTAKER

Applicant

And:           SECRETARY,

DEPARTMENT OF EMPLOYMENT

AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal:       Miss E.A. Shanahan, Member

Date:24 May 2006

Place:Melbourne

Decision:The Tribunal sets aside the decision under review and in substitution therefor decides:

1.the applicant satisfies all the criteria for a disability support pension (DSP) (s 94(1) or alternatively state subs 94(1)(a), (b), (c) of the Social Security Act 1991) as conceded by the respondent; and

2.that the DSP is payable from 5 October 2005.

(sgd) E.A. Shanahan

Member

SOCIAL SECURITY – disability support pension (DSP) – concession by respondent – question of date of effect payment of DSP

Social Security Act 1991 s 94(1)

REASONS FOR DECISION

24 May 2006  Miss E.A. Shanahan, Member

1.      Mr Paul Craig Whittaker (the applicant) applied for a disability support pension (DSP) on 16 November 2004 based primarily on the condition of spinal canal stenosis extending from L2‑3 to L4‑5.  Mr Whittaker also advised that he was suffering from a bipolar disorder which had been diagnosed in 2001; and for which he was taking appropriate medication as prescribed by a psychiatrist.  On 9 December 2004 Mr Whittaker's claim was rejected by a delegate of the Secretary to the Department of Employment and Workplace Relations (the respondent) because his impairment rating was less than 20 points under the Tables for the Assessment of Work‑Related Impairment for Disability Support (the Tables) in Schedule 1B of Social Security Act 1991 (the Act).  This impairment rating was based on an assessment of his back complaint at TEN points and his psychiatric condition as being well‑controlled and attracting NIL points.  The primary decision was affirmed by an authorised review officer (ARO) on 2 March 2005.  On 9 March 2005 Mr Whittaker lodged an application for review to the Social Security Appeals Tribunal (SSAT).  On 6 April 2005 the SSAT affirmed the decision of the respondent finding that neither the back condition nor the psychiatric disorder had been fully investigated, treated and stabilised.  Therefore, Mr Whittaker attracted NIL points for these conditions.

2.      On 31 March 2006 a further medical assessment was undertaken by Health Services Australia by Dr T. Bisas in the light of new medical reports.  Dr Bisas assessed Mr Whittaker's spinal condition as attracting 10 points and his psychiatric condition of severe depression also attracting 10 points.  Mr George Tsironis (psychologist) diagnosed the applicant as suffering from severe chronic depression. That opinion was provided to the respondent in a report dated 22 September 2005.

3. Mr Whittaker was self‑represented and Ms Kayren Paul, a Centrelink advocate, appeared for the respondent. At the commencement of the hearing Ms Paul informed the Tribunal and Mr Whittaker that in a decision dated 31 March 2006, the respondent had determined that Mr Whittaker met all the requirements of s 94(1) of the Act and that a DSP would be payable from 3 April 2006. Regrettably, neither the Tribunal nor Mr Whittaker had been informed of this latest decision prior to the hearing.

RELEVANT EVIDENCE BEFORE THE TRIBUNAL

Mr Paul Whittaker

4.      Mr Whittaker informed the Tribunal of his current status with respect to his back pain and sciatica, and the impact that this condition plus his loss of employment had had on his psychological status.  He argued that the interaction between the two conditions had been deleterious for both conditions.  Mr Whittaker submitted that his DSP should be back‑dated to December 2004; that being the date of his original application.  He was critical of Centrelink's performance with respect to his claim for DSP and its failure to wait for the reports of his doctors.  Mr Whittaker advised the Tribunal that he was still considering whether or not to undergo surgical treatment for his back condition and that he was certainly going to pursue further psychological treatment, and in particular, pain management. 

5.      Ms Paul, having conceded that Mr Whittaker was eligible for DSP, identified the only remaining question to be the date of qualification: that is whether the respondent's decision to pay the DSP from 3 April 2006 should be backdated to an earlier date. 

DOCUMENTARY EVIDENCE BEFORE THE TRIBUNAL

6.      The only relevant documentary evidence is the report of Mr Tsironis dated 22 September 2005 and received by the Centrelink’s Advocacy and Administrative Law Team on 5 October 2005.   Mr Tsironis had first seen Mr Whittaker on 28 July 2005 and was continuing to see him for further counselling.  Mr Tsironis diagnosed a major depressive disorder and his diagnosis was supported by the results of a Beck Depression Inventory.  Mr Tsironis found the applicant's chronic adjustment disorder with depression amounted to a major depressive disorder separate from the previously diagnosed bipolar disorder, which has been treated since approximately 2001.

TRIBUNAL'S DELIBERATIONS

7. As the respondent has conceded that Mr Whittaker satisfies s 94(1) of the Act in all respects and that he qualifies for the DSP, the Tribunal is only required to consider the date at which the DSP eligibility should be attracted.

8.      As the respondent's concession has been based on Mr Tsironis' report, the Tribunal decides that Mr Whittaker should be paid DSP from the date that this report was received by the respondent, namely 5 October 2005.

I certify that the eight [8] preceding paragraphs are a true copy of the reasons for the decision of:  

Miss E.A. Shanahan, Member

(sgd)       Catherine Thomas

Clerk

Date of Hearing:  26 April 2006

Date of Decision:  24 May 2006
Advocate for the applicant:          Self-represented
Advocate for the respondent:       Ms K. Paul, Legal Services Branch, Centrelink