Zambini and Secretary, Department of Employment and Workplace Relations

[2006] AATA 632

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 632

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S2005/339 & S2005/340

GENERAL ADMINISTRATIVE DIVISION		)
Re		PETER ZAMBINI

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Senior Member L Hastwell

Date17 July 2006

PlaceAdelaide

Decision The Tribunal affirms the decisions under review.

..............................................

L HASTWELL
  (Senior Member)

CATCHWORDS

SOCIAL SECURITY – pensions, benefits and allowances –  Sickness Allowance – Disability Support Pension – medical evidence supported grant of Sickness Allowance and Disability Support Pension at time of grant – duress coercion alleged – applicant seeks decisions adverse to own interests – decisions affirmed

Social Security Act 1991 ss 94(1), 666(1), 699(1), 700, 701(1), 707

REASONS FOR DECISION

17 July 2006   Senior Member L Hastwell   

1.      Mr Zambini (the applicant), at a time when he was suspended from his usual employment as a medical orderly at the Queen Elizabeth Hospital (QEH) made application for Sickness Allowance. 

2.      His sick leave from his employment was due to cease on 10 August 1993.  He lodged a claim for Sickness Allowance on 6 August 1993 with an accompanying medical certificate for the period 12 August 1993 to 12 October 1993.  His claim was granted with effect from 11 August 1993.  His Sickness Allowance was thereafter ongoing until 18 October 1995 when he lodged a claim for Disability Support Pension (DSP) with appropriate accompanying documentation.  DSP was granted from 19 October 1995.

3.      The applicant’s employment with the QEH was terminated on 20 September 1996.  He has not returned to work since that time.

4.      Although successful in both his applications for benefits, the applicant now seeks a review of the decisions to grant him Sickness Allowance and DSP.  He does not accept that he has a medical condition that gives rise to the entitlements, and submits that the benefits should not have been granted to him in the circumstances. 

5.      An Authorised Review Officer reviewed and affirmed both decisions on 3 November 2005 on the basis that in both cases valid claims with appropriate supporting medical information were before the former Department of Social Security (Centrelink) and therefore the decision to pay the benefits was correct. 

6.      The applicant sought a review of that decision to the SSAT who affirmed the decision of the Authorised Review Officer on 15 December 2005.  The applicant seeks a review of the SSAT decision to this Tribunal.

legislation

7. Section 666 of the Social Security Act 1991 (the Act) provides:

“666(1)A person is qualified for sickness allowance in respect of a period if:

(a) the person is incapacitated for work throughout the period because of sickness or an accident; and

(b) the incapacity is caused wholly or virtually wholly by a medical condition arising from the sickness or accident; and

(c)       the incapacity is, or is likely to be, of a temporary nature; and

(d)      either:

(i) the person satisfies the Secretary that the person has suffered, or is likely to suffer, a loss of salary, wages or other income of a similar nature because of the incapacity; or

(ii) the person satisfies the Secretary that, if the person were able to work, the person would have, or would be likely to be, qualified for job search allowance or newstart allowance in respect of the period; or

(iii) the person was receiving, or is likely to be receiving, a social security pension immediately before the beginning of the period; and

(e)      before the period begins the person has turned 16; and

(f) before the period ends the person has not turned, or is not likely to turn, pension age; and

(g) the person is, or is likely to be, an Australian resident throughout the period; and

(h) the person is, or is likely to be, in Australia throughout the period.”

Section 699(1) of the Act provides:

“699(1) A person who wants to be granted a sickness allowance must make a proper claim for that allowance.

Note: for "proper claim" see section 700 (form), section 701 (manner of lodgment) and section 702 (residence / presence in Australia).”

Section 700 of the Act provides:

“700 To be a proper claim, a claim must be made in writing and must be in accordance with a form approved by the Secretary.”

Section 701(1) of the Act provides:

“701(1) To be a proper claim, a claim must be lodged:

(a)       at an office of the Department; or

(b)       at a place approved for the purpose by the Secretary; or

(c)       with a person approved for the purpose by the Secretary.

(2)A place or person approved under subsection (1) must be a place or person in Australia.”

Section 707 of the Act provides:

“707The Secretary is to determine that the claim is to be granted if the Secretary is satisfied that:

(a)       the person is qualified for a sickness allowance; and

(b)       the allowance is payable.”

disability support pension

8. Section 94(1) of the Act provides:

“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;

(ii)the Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system; and

(d)      the person has turned 16; and

(e)      the person either:

(i)is an Australian resident at the time when the person first satisfies paragraph (c); or

(ii)has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or

(iii)is born outside Australia and, at the time when the person first satisfies paragraph (c) the person:

(A)      is not an Australian resident; and

(B)      is a dependent child of an Australian resident;

and the person becomes an Australian resident while a dependent child of an Australian resident.

Note 1:          For Australian resident, qualifying Australian residence and qualifying residence exemption see section 7.

Note 2:          for Impairment Tables see section 23(1) and Schedule 1B.

94(2)   A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:

(a)the impairment is of itself sufficient to prevent the person from doing any work within the next 2 years; and

(b)      either:

(i)the impairment is of itself sufficient to prevent the person from undertaking educational or vocational training or on-the-job training during the next 2 years; or

(ii)if the impairment does not prevent the person from undertaking educational or vocational training or on-the-job training—such training is unlikely (because of the impairment) to enable the person to do any work within the next 2 years.

Note:   For work see subsection (5).”

issues

9.      The issues to be determined in this case are:

·Whether, based on the evidence available to the decision-maker at the time, Sickness Allowance was correctly granted to the applicant on 11 August 1993. 

·In considering this issue the Tribunal must determine:

owas a claim in the required form lodged; and

odid the applicant meet all other qualifications for Sickness Allowance at the time?

·Whether, based on the evidence available to the decision-maker at the time, it was appropriate to grant DSP to the applicant from 19 October 1995. 

·In considering this, the Tribunal must consider:

owas a claim in the required form lodged; and

odid the applicant meet all other qualifications for DSP at the time that the pension was granted?

hearing

10.     The applicant represented himself.  The respondent (the Department) was represented by Ms Pugsley.  The applicant submitted a number of exhibits which where relevant will be referred to.  The T documents were received into evidence.

11.     The applicant gave evidence on his own behalf.  He acknowledged that he had submitted a claim for both Sickness Allowance and DSP at the dates indicated.  He did not dispute the facts surrounding his lodgement of each application.  However, he was adamant that he should not have been granted benefits at the time.  His position appeared to be that he was under duress when lodging those forms and he did not suffer a medical condition that justified payment of the benefits.  At times the Tribunal had some difficulty in understanding the applicant’s argument as to why these two decisions should now be reversed.

12.     The applicant told the Tribunal that Centrelink made what he referred to as “crippling errors” and that they constantly made errors and “the community was paying for it”.  His entitlement to benefits was, in his mind, one of the burdens that the community faced as a result of these “errors” by Centrelink.

13.     The applicant had no dispute with the essential facts that led up to his claim being granted.  He agreed that he did lodge forms with supporting documents.  However, many years later he feels there was duress or coercion involved.  He could not point to any specific incident of duress or coercion.

14.     He recounted that he was working as a medical orderly immediately prior to his application for Sickness Allowance.  A series of what he considered to be unsubstantiated allegations were made against him in the workplace.  As a result of this he was suspended from his employment as a medical orderly at the QEH without pay and he was directed to obtain psychiatric assistance. 

15.     He considered that he was pushed in the direction of Centrelink by the Union and by doctors.  He acknowledged that he produced medical certificates at the time of his application for the original benefit.

16.     The applicant confirmed the documents contained within the T documents that comprised the applications for Sickness Allowance and DSP and the supporting medical certificates.  Nevertheless, he was adamant that in some way he was put under duress to apply for these benefits.

17.     He acknowledged that if he was successful in his application for review he would be required to pay money back to the Department.  He made it clear that he would not do so.  He said that he was prepared to go to gaol rather than repay funds.

18.     It was put to the applicant that at the time his Sickness Allowance was cancelled it was because of a decision by medical advisers that his medical condition was permanent.  He was at that time given the option of receiving either Job Search Allowance or DSP by the Department.  He was referred to T26.  It was noted that at T26 he said that he did not accept the medical diagnosis and believed he was suffering from stress, trauma and fear.  He acknowledged both interviews with the Department referred to at T26.  The applicant declined to take responsibility for making the decision to apply for DSP at the time, and repeatedly said that pressure was put on him by people and by the Union.

discussion of the evidence

19.     The applicant’s evidence and submissions were sometimes confusing and difficult to follow.  The applicant appears not to accept that he suffers from a medical condition, which condition is well documented in the material on the file.  The applicant hinted at some sort of conspiracy within the Department itself to put people on benefits.

20.     The Tribunal had regard to the medical certificates on file which supported the applicant’s original application for Sickness Allowance (T5) and various reports from his treating doctor with a diagnosis of psychological disorder and bi-polar disorder.  The Tribunal had regard to a report from Dr Tony Davis dated 25 June 1998 (T37) in which he referred to a history that the applicant had been troubled by a chronic mood disorder in keeping with the diagnosis of hypomania.  In that report Dr Davis considered that the applicant had “a pathological impairment of insight, which is likely to persist and thereby impair his judgement and capacity to seek appropriate treatment”.

21.     This lack of insight was evident in the applicant’s presentation at the hearing.  It extended to him not really appreciating that the decision that he was seeking from the Tribunal would have significant adverse financial consequences for him and was not in his best interests.  He was concerned at uncovering what he perceives to be a wider systemic problem in the administration of the Centrelink system and he considers that he has an obligation to pursue this issue even to his detriment.

22.     The applicant acknowledged the applications for both allowances were submitted by him and he acknowledged the documentation in support when it was put to him in evidence. 

23.     The computer disc held by the SSAT was retrieved by the Tribunal at the applicant’s request.  The Tribunal noted the contents of that disc, but felt it added nothing further to the evidence and submissions at the hearing.

findings of fact

24.     The Tribunal makes the following findings of fact:

(a)       The applicant was suspended from his employment as a medical orderly at the QEH without pay from 28 July 1993.

(b)       The applicant lodged a claim for Sickness Allowance (T4) with an accompanying medical certificate (T5) on 6 August 1993.  His signature appears on the application for Sickness Allowance at T4/39. 

(c)       The medical certificate from his doctor diagnosed him as having a psychological disorder and asserted that he would be unfit for work from 12 August 1993 until 12 October 1993 inclusive.

(d)       Sickness Allowance was granted effective from 11 August 1993.

(e)       Reviews of his entitlement to Sickness Allowance were carried out on a regular basis by the Department, appropriate medical certificates were produced on each occasion and his Sickness Allowance continued.  The diagnosis became that of bi-polar disorder by the middle of 1994 (T11/51).

(f)        Statements by the applicant on review forms and claim forms contained in the T documents confirm that he did not accept that he had a psychiatric condition, his own belief being that he was suffering from a work-related injury, being stress and trauma arising from the circumstances of the cessation of his employment.

(g)       By mid 1995 the Department determined that his condition had become permanent and that he was no longer eligible for Sickness Allowance after he had been on Sickness Allowance for a period of just over 2 years. 

(h)      An appointment was then made for the applicant to be seen by the Australian Government Health Service.  A medical assessment dated 25 September 1995 (T24/87) found that he had an impairment of 20 percent due to a bi-polar disorder and that he would benefit from vocational rehabilitation assessment if his condition remitted at a future date.  The assessment found that no prediction of remission could be made in the foreseeable future.  His own doctor continued to certify him unfit to work.

(i)        Once the medical assessment was complete, the applicant was called in to Centrelink to have a discussion about what benefit was appropriate for him as a decision was made that his Sickness Allowance was to cease because his condition was considered permanent. 

(j)        At an interview on 17 October 1995 he was advised by Centrelink officers that he could choose between applying for Job Search Allowance or DSP as his Sickness Allowance would cease on 17 October 1995.  He was told how to go about claiming Job Search Allowance if he chose that option.  On that date he submitted a medical certificate from his own treating practitioner, Dr Brown (T25/88) which advised that apart from being able to do a few hours of part-time work he continued to be unfit to work until at least December 1995.

(k)       A letter was sent to the applicant as a follow up to that interview (T28/92) explaining why his Sickness Allowance could not be extended and inviting him to apply for either Job Search Allowance or DSP.

(l)        The applicant lodged a claim for DSP (T30/95) on 18 October 1995.  His treating doctor supported the application in response to a request for a medical report.  This is contained at T31/104.

(m)      DSP was granted based on all the evidence available on 18 October 1995.  The decision-maker determined:

·The applicant’s bi-polar disorder prevents him continuing in his usual work as a hospital medical orderly for 30 hours per week over the next 2 years.

·The applicant has photography skills but is unable to perform any work at 30 hours per week for the foreseeable future.

·No suitable alternative work has been identified.

·The applicant concedes he is under stress but refused to accept any suggested treatment.  He appeared unable to concentrate for lengthy periods or to cope with the stress of any mainstream training.

(n)      DSP was granted with effect from 19 October 1995.

(o)       Subsequent to the grant of DSP, a letter was sent to the applicant (T35/117) offering him rehabilitation if he wanted to do so but explaining that he did not have to take up that option.  The applicant has never taken up the option of any rehabilitation courses.

(p)       Dr Tony Davis’ report was written at the request of the applicant and for the South Australian Superannuation Board.  It related to his eligibility for payment of a benefit from the State Superannuation Benefit Scheme.  It did confirm the diagnosis of mood disorder that significantly impacted on the applicant’s ability to function in the workforce.

application of the law

25.     The evidence in this matter is straight forward save that the applicant differs from his medical advisors as to what condition he suffers from and as to whether he is disabled from work. 

26.     The claims for Sickness Allowance and DSP were both in accordance with the appropriate claim forms and were lodged with supporting evidence, which in both cases justified the decisions to grant the benefits.  The evidence before the primary decision-maker on each occasion was clear and the decisions were in accordance with the request made by the applicant and based on evidence provided by the applicant.  They were the correct and preferable decisions at the time.

27.     The applicant, for reasons that are not at all clear, seeks to set aside decisions that are favourable to him and put in place an adverse decision that would leave him with potentially a very large debt due to the Commonwealth.  He has made it clear he does not intend to pay any debt and will go to gaol rather than do so.  The applicant’s position is not logical, nor does it serve his own best interests.

28.     The applicant’s medical history is set out in Dr Davis’ report (T37) and in numerous medical certificates on file from the time that he applied for Sickness Allowance in 1993 onwards.  He suffers from a medical condition which disables him from employment whether that be hypomania or bi-polar disorder and whether that be stress induced or not.  That condition has disabled him from work for many years and his presentation to the Tribunal satisfied the Tribunal that he continues to suffer from a medical impairment.

29.     There is no basis to alter the decisions in each instance.  The Tribunal does not accept that the payments were claimed under duress.  There is no evidence to that effect other than the applicant’s view that he was under pressure at the time.  He voluntarily produced his own doctor’s medical certificates, he signed applications and in respect to DSP it is very clear that he was told on more than one occasion that he had other choices such as Job Search Allowance if he did not wish to apply for DSP.  He went ahead with the application for DSP and that pension was quite properly granted at the time.

30.     The medical information before Centrelink at all relevant times indicated that the applicant was entitled to each of the benefits granted and there is no evidence that he claimed either benefit under duress.

31.     In the circumstances the Tribunal can see no basis on which the decisions to grant Sickness Allowance and DSP can be set aside and affirms the decision under review.  This means that the application for review is not successful.

I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member L Hastwell

Signed:         .....................................................................................
  Associate

Date of Hearing  22 June 2006
Date of Decision  17 July 2006
Counsel for the Applicant         In person
Solicitor for the Applicant          -
Counsel for the Respondent     Ms A Pugsley
Solicitor for the Respondent     Centrelink Legal Services Branch