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Social Security Reporter |
Disability support pension: whether payable; meaning of course of rehabilitation
(2013/95)
Decided: 22nd February 2013 by R.M. Creyke
Sammut was in receipt of a disability support pension (DSP) from 25 August 1994. He was charged with an offence and detained on 30 May 2011. His DSP was suspended on 31 May 2011. He was released from custody on 13 October 2011 and his DSP was restored. On 17 October 2011, Sammut requested that his DSP be restored from 20 July 2011 the date when he said he was ordered to be released from custody to a mental health facility. On 16 November 2011 the original decision maker decided that the decision not to restore his DSP until 13 October 2011 was correct. This decision was upheld by an authorised review officer on 20 December 2011 and affirmed by the Social Security Appeals Tribunal (SSAT) on 27 February 2012. On 22 March 2012, Sammut lodged an application for review with the Tribunal.
The issue was whether Sammut’s DSP should have been payable from 20 July 2011 or from another date prior to 13 October 2011. This issue turned on whether during the period Sammut was in psychiatric confinement, he was also undergoing a course of rehabilitation.
The relevant legislation is found in ss.23 and 1158 of the Social Security Act 1991 (Cth) (the Act).
Section 1158 of the Act provides that DSP is not payable to someone if on the day that the instalment would normally be paid, the person is:
(a) in gaol; or
(b) undergoing psychiatric confinement because the person has been charged with an offence.
Subsection 23(5) of the Act provides that a person is ‘in gaol’ if:
(a) the person is being lawfully detained(in prison or elsewhere) while under sentence for conviction of an offence and not on release on parole or licence; or
(b) the person is undergoing a period of custody pending trial or sentencing for an offence.
Subsection 23(8) of the Act provides that subject to subsection (9): ‘psychiatric confinement’ includes confinement in:
(a) a psychiatric section of a hospital;
(b) or any other place where persons with psychiatric disabilities are, from time to time, confined.
Subsection 23(9) states:
The confinement of a person in a psychiatric institution during a period when the person is undertaking a course of rehabilitation is not to be taken to be psychiatric confinement.
The Tribunal had access to documents from the NSW Department of Corrective Services which contained relevant information concerning Sammut’s detention and the orders made from time to time.
On 2 June 2011 the matter was adjourned until 20 July 2011 so that a Justice Health Report could be provided. This report dated 15 July 2011 contained a diagnosis of depressive disorder with psychotic features and a delusional disorder with comorbid affective illness, alongside the possibility of personality pathology and a recommendation that Sammut not be released into the community but be transferred to a mental health facility ‘to continue his assessment and psychiatric treatment’.
On 23 September 2011, a magistrate made an order under the Mental Health (Forensic Provisions) Act 2007 (NSW) that Sammut was a ‘mentally ill person’, that proceedings relating to his charge should be adjourned, and that he should be taken to the ‘Statewide Forensic Mental Health Unit at Long [Bay] Hospital’ to be detained for assessment and treatment under the Crimes Act 1914 (Cth) section 20BQ(1)(d). He was held there from 14 September 2011 until 12 October 2011 as a psychiatric patient.
On 12 October 2011 the charges against him were dismissed and he was released to the Kiloh Centre of the Prince of Wales Hospital.
Between 30 May 2011 to 12 October 2011, Sammut was housed in five different corrective institutions: Junee Correctional Centre, 30 May 2011 to 29 June 2011; Bathurst Correctional Centre, 29 June 2011 to 30 June 2011; Metropolitan Remand and Reception Centre, 30 June 2011 to 9 July 2011; Parramatta Correctional Centre, 9 July 2011 to 17 August 2011; Metropolitan Remand and Reception Centre, 17 August 2011 to 14 September 2011; and Long Bay Hospital, 14 September 2011 to 12 October 2011.
The respondent contended that between 30 May 2011 and 12 October 2011, Sammut was not entitled to DSP because he ‘was in gaol awaiting trial and later undergoing psychiatric confinement because he was charged with an offence’. The Tribunal noted that Sammut had been held on remand for the entire period.
The Tribunal found that Sammut was ‘in custody pending trial’ until 14 September 2011 when a decision was made that he be released to a mental health facility. The Tribunal concluded that he was ‘in gaol’ in the terms of s.23(5)(b) of the Act until 13 September 2011 and so under s.1158(a) of the Act he was not entitled to receive DSP between 30 May 2011 and 13 September 2011.
On 14 September 2011, Sammut was found to be ‘suffering from a mental illness’, and was transferred to a mental health institution. The Tribunal found that the terms of the formal order made on 23 September 2011 confirmed that from this date he was in ‘psychiatric confinement’ as someone charged with, but not convicted, of an offence.
The final issue was whether Sammut was ‘undertaking a course of rehabilitation’ as this would bring him within the exception set out in s.23(9) and he would be deemed not to be in psychiatric confinement for the purpose of the Act. This would mean that DSP would be payable.
The Tribunal referred to the decision in Franks v Secretary, Department of Family and Community Services [2002] FCAFC 436 at [50] where the court considered the meaning of the phrase a ‘course of rehabilitation’ and found that it required that the person has been involved in:
... rehabilitation activities that are not merely engaged in by him on an ad hoc basis, but which form part of what can be said to be a planned series of activities that may include medical and other treatments directed towards improving the person’s physical, mental and/or social functioning.
The Tribunal then outlined the conclusions that could be drawn from the written material before them about the treatment Sammut had received whilst in detention. The Tribunal concluded that from 29 July 2011 ‘a Plan’ was developed for Sammut’s treatment, and then considered whether there was sufficient evidence that the Plan constituted a ‘course of rehabilitation’.
The Tribunal was prepared to infer that the Plan was developed in response to the recommendations in the report of 15 July 2011 to develop a program which would enable Sammut to return to the community and found that this recommendation was ‘rehabilitative in intention’.
The Tribunal noted that Sammut’s total period of confinement was only 4.5 months and with each change of institution there was a need for re-assessment and for a decision about appropriate treatment. There were limits to the services available and in light of the short time he spent in each place.
The Tribunal considered that his treatment while in psychiatric confinement was standard treatment for someone in his position and with his conditions. He was on medication which was regularly monitored, he saw a number of psychiatrists, a psychologist, and several mental health nurses. He had also received counselling. These steps and programs were designed to restore his mental health and to assist him to return to the community.
The Tribunal found that in the period 14 September to 12 October 2011 Sammut was undertaking a ‘course of rehabilitation’ in terms of s.23(9) of the Act. As a consequence, he was not in ‘psychiatric confinement’ and hence was entitled to DSP for that period.
The decision was varied and the Tribunal found that from 14 September 2011 Sammut was undertaking a course of rehabilitation. He was therefore not in psychiatric confinement and DSP was payable.
[C.E.]
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URL: http://www.austlii.edu.au/au/journals/SocSecRpr/2013/16.html