Zirilli and Secretary, Department of Social Services

[2017] AATA 1027

Zirilli and Secretary, Department of Social Services [2017] AATA 1027 (23 June 2017)

Division:GENERAL DIVISION

File Number:           2017/1411

Re:Sammy Zirilli

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member Britten-Jones

Date:23 June 2017

Date of written reasons:        5 July 2017

Place:Adelaide

For the reasons given orally at the conclusion of the hearing, the application for an extension of time is refused.

.......................[Sgd]............................................

Senior Member Britten-Jones

CATCHWORDS

PRACTICE AND PROCEDURE – extension of time – application out of time - disability support pension - report of psychiatrist says treatment options available - conditions not fully treated and stabilised - no prospects of success in the substantive matter – extension of time refused.

LEGISLATION

Social Security Act 1991

Administrative Appeals Tribunal Act 1975

REASONS FOR DECISION

Senior Member Britten-Jones

5 July 2017

1. At the conclusion of the hearing of the above matter, the terms of the decision intended to be made and the reasons therefore were stated orally. After the giving of the oral reasons, the applicant, pursuant to subsection 43(2A) of the Administrative Appeals Tribunal Act 1975, requested the Tribunal to furnish him with a statement in writing of the reasons of the Tribunal for its decision.

2. The oral reasons for decision have been transcribed by DTI Corporation Australia Pty Ltd.  Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reason for the said decision.

3. The said transcript is annexed hereunto and furnished to the applicant and to the respondent as it is the reason for the Tribunal’s decision.

I certify that the following  paragraphs are a true copy of the reasons for the decision herein of Senior Member Britten-Jones

..............................[Sgd]..........................................

Administrative Assistant

Dated: 5 July 2017

Date(s) of hearing:	23 June 2017
Applicant:	In person
Advocate for the Respondent:	Ms N Donaghy
Solicitors for the Respondent:	Dept of Human Services

EXTRACT OF TRANSCRIPT OF PROCEEDINGS

ORAL DECISION OF SENIOR MEMBER  [2.53 pm]

SENIOR MEMBER: Mr Zirilli, I am not prepared to grant you an extension of time, and in terms of an application for an extension of time under section 29(7) of the Administrative Appeals Tribunal Act the Tribunal needs to be satisfied that it is reasonable in all of the circumstances to grant an extension of time.  You were some two weeks late in making your application for a review.  That was in circumstances where you were very familiar with the procedures with respect to the Administrative Appeals Tribunal, because it was actually your second application for DSP (Disability Support Pension).  Your first application was in May 2015, and you took that on appeal all the way through to a hearing of the Tribunal by Manetta SM, and in effect you wish now to do the same thing with respect to your second application for DSP, which was brought in May of 2016. 

If it was only the question of the explanation for delay I would probably be prepared to accept your explanation that it was your condition that prevented you from responding within the relevant period, but in terms of assessing reasonableness I need also to consider the strength of your case, and when considering the strength of your case I am concerned that you are not intending to put any further material before the Tribunal with respect to your DSP application of May 2016, and you have no further current material from the psychiatrist.  The further material that you do have, from the clinical psychologist, Tindaro Fallo, does provide a statement that your condition is fully diagnosed, fully treated and unlikely to change, and that you have exhausted reasonable treatment options, but that is, in fact, not consistent with the more contemporaneous report from the psychiatrist, Dr Rohan Dhillon. 

Rohan Dhillon, in his report of 2 August 2016, which falls within the relevant period that I must consider in terms of whether or not you are able to obtain Disability Support Pension, he says that he explained to you that there were treatment options which need to be considered.  He concluded that it was too premature to reach a conclusion that you have a permanent disability which was unremitting and unlikely to change with interventions.  That was his opinion expressed in his report of 2 August 2016.  Dr Dhillon went on to say that Mr Zirilli should reconsider the option of taking a certain anti-depressant at a maximum dose, together with a drug by the name of Amitriptyline that helped your insomnia and nightmares as at August 2016.

The psychiatrist, Rohan Dhillon, also said that you would be well advised to be referred for cognitive behavioural therapy for your Post-Traumatic Stress Disorder, although even he admitted that you were not prepared to pursue that.  The reluctance to pursue further treatment on behalf of Mr Zirilli is also referred to in the report from Tindaro Fallo of 6 January 2017 when he says that:

Mr Zirilli does not trust the effects medication will have on him and has difficulty forming a therapeutic relationship with anyone he does not already know. 

The difficulty for Mr Zirilli is that, on the one hand, he says that it is his illness that prevents him from obtaining any further reports from doctors that might assist him with his application, but on the other hand, without those reports, the Tribunal is not in a position to reach the necessary conclusion that there is some merit in the application.  On the material that is placed before the Tribunal, and on the basis of Mr Zirilli’s oral testimony that there are no further reports that he can rely upon in particular from Dr Dhillon, the Tribunal is of the view that there is no reasonable prospect of Mr Zirilli succeeding with respect to the current application, and if there are no prospects of succeeding, coupled with the failure to provide a complete explanation, subject to what I said before, with respect to the lateness of the application, the Tribunal reaches the view that it is in fact, in all of the circumstances, not reasonable to extend the time. 

That does not mean to say that Mr Zirilli should be dissuaded from making a further application for DSP, with the supporting medical evidence necessary to satisfy a Tribunal.  The difficulty for Mr Zirilli in this case is that it is necessary to look back to the period in 2016, which is the relevant period, and the most relevant and contemporaneous evidence is from Dr Dhillon with respect to that period, and although it may be apparent there was a diagnosis as at that time, it is very clear from that material in his report, and in other material, that Mr Zirilli’s condition was not in fact fully treated as at the relevant period, and in those circumstances there is no point in proceeding to a further hearing, and it is not reasonable to extend the time for the application for a second review. 

END OF ORAL DECISION  [3.04 pm]