1. The statutory provisions relevant to this review are contained in the Social Security Act 1991 (the Act) and the Social Security (Administration) Act 1999 (the Administration Act).
2. The issues which arise in this case are:
   • Was DSP payable to Miss Orlok in the period [Day 1] May 2018 to 3 October 2018?
   • If so, what is the date of effect of any favourable decision?

1. Section 94 of the Act sets out the qualification criteria for DSP. It is not in dispute that at all relevant times Miss Orlok satisfied the qualification requirements for DSP.
2. At the time that Miss Orlok's DSP was suspended, section 1158 of the Act provided as follows:

1158 Some social security payments not payable during period in gaol or in psychiatric confinement following criminal charge

An instalment of a social security pension, a social security benefit, a parenting payment, a carer allowance, a mobility allowance or a pensioner education supplement is not payable to a person in respect of a day on which the person is:

(b) undergoing psychiatric confinement because the person has been charged with an offence.

Note 2: For psychiatric confinement see subsections 23(8) and (9).

1. DSP is a social security pension: section 23 of the Act.
2. Subsection 23(5) of the Act provides that a person is in gaol if the person:

(a) 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.

1. Subsection 23(8) of the Act provides that a person is in psychiatric confinement if the person is confined in a psychiatric section of a hospital or any other place where persons with psychiatric disabilities are from time to time confirmed. However, a person who is in a psychiatric institution undertaking a course of rehabilitation is not taken to be in psychiatric confinement: subsection 23(9) of the Act.

Issue 1: Was Miss Orlok in gaol or in psychiatric confinement in the period [Day 1] May 2018 to 3 October 2018, such that DSP was not payable to her?

1. Miss Orlok was admitted to the [Hospital] under an involuntary treatment order after being charged with various offences. The ARO found that Miss Orlok was in psychiatric confinement after being charged with 5 offences, however did not engage in any analysis of whether or not Miss Orlok was undergoing a course of rehabilitation during her admission to the [Hospital].
2. Mr Davidson's submissions included a copy of a Treatment Authority Review from the Queensland Mental Health Review Tribunal following a hearing on 10 July 2018. That document noted that a treatment authority was made on 25 May 2018 with Miss Orlok being a "classified patient" (meaning that she was involuntarily confined for treatment). That document further notes that:
   • Miss Orlok was brought to the [Hospital] on 25 May 2018 on an Examination Order for psychiatric assessment after reportedly committing [offence]. She had charges pending for [offence], attempted [offence], trespass and assault of a police officer.
   • Miss Orlok was commenced on a Treatment Authority on the same date and admitted to the High Dependency Unit of the Adult Acute Psychiatric Unit.
   • Miss Orlok lacked capacity to consent to treatment for her mental illness and displayed limited insight into the need to receive treatment. She required ongoing psychiatric admission as she could not be safely treated in the community or in a correctional facility.
   • Miss Orlok was commenced on medication and remained compliant with her medications. She had been reviewed on a daily basis by the treating team. She showed signs of improvement but was not back to her baseline mental state and continued to report psychotic symptoms.
3. Mr Davidson submitted that Miss Orlok instructed that it took some time for her dosage of Clozapine to be titrated up to the appropriate level to stabilise her psychotic symptoms. Once she was stabilised, she began to undertake further treatment including talk therapy, art therapy and sessions with a psychologist. Mr Davidson submitted that Miss Orlok was undertaking a course of rehabilitation throughout her admission at the [Hospital], as was normal for persons under involuntary treatment orders.
4. Miss Orlok confirmed to the Tribunal that while admitted to the [Hospital], she engaged in one-on-one and group therapy sessions including art therapy and talking with psychiatrists about her mental state and coping abilities.
5. The Social Security Guide at 3.1.4.05, as published as at May 2018, provided the following guidance on the meaning of a course of rehabilitation (emphasis added):

For the purposes of SSAct subsection 23(9), a person is regarded as undertaking a course of rehabilitation when they are undertaking a planned series of activities that may include medical and other treatments/activities directed towards improving the person's physical, mental and/or social functioning.

If the person is merely undertaking ad hoc rehabilitation activities, or their treatments/activities cannot be said to be directed towards improving their physical, mental and/or social functioning, then SSAct subsection 23(9) does not apply and the bar on receipt of social security payments remains.

Refer to the Full Federal Court decision of Franks V Secretary of FaCS (2002) FCAFC 486 (20 December 2002).

However, in practice it will be unlikely for people placed in psychiatric institutions under legal mental health orders to be merely undertaking ad-hoc activities or treatments that are not designed to help their physical, mental or social rehabilitation. This is because as a rule (rather than an exception) people are being confined in psychiatric institutions for treatment and rehabilitation purposes and treatment plans are a norm in such institutions.

A person placed in a psychiatric institution may be undertaking any one of a number of treatments and activities that could form part of a planned series of activities.

Generally, any activity recommended by appropriate personnel in psychiatric institutions as part of an overall rehabilitation plan is a legitimate activity for the purpose of SSAct subsection 23(9) as long as it forms part of a planned series of activities.

Explanation: People placed in psychiatric institutions are cared for by a range of professionals who are qualified and trained in designing treatments and activities to improve a person's physical, mental and/or social functioning. These professionals include health professionals, such as medical practitioners (e.g. psychiatrists, other medical specialists, general practitioners), allied health professionals (e.g. psychologists, occupational therapists, exercise physiologists, physiotherapists, podiatrists, pharmacists, rehabilitation counsellors) and other relevant professionals (e.g. social workers).

Acceptable treatments and activities may involve but not be limited to a number of different approaches including medical therapies, physiotherapy, exercise programs, gardening, various awareness programs (e.g. drug and alcohol awareness) or life skills programs. All these activities are legitimate activities as long as they are prescribed by an appropriate treating professional and form part of a planned series of activities. Such activities are not regarded as ad-hoc activities.

Example: A person participating for one hour every second day in a cooking class as part of a rehabilitation plan with a view to developing their social skills through team work and learning about healthy eating habits is participating in a legitimate activity. This is not an ad-hoc activity.

It is recognised that treatment/rehabilitation plans need to be flexible and may need to be changed depending on a person's circumstances, including the nature and severity of their condition, response to treatment and capacity to undertake specific activities at a certain point in time. Therefore, for a series of activities to be regarded as a course of rehabilitation, it is not necessary for them to be part of a strict plan containing clearly defined durations and milestones for specific activities and treatments. A person may be participating in activities sequentially or in combination.

Explanation: Depending on the severity of a person's medical condition, it may take some time for them to progress to another activity or stage of treatment, e.g. for some people it may take a long time for the effective medication to be identified and during that time they may only be able to undergo medical treatment.

1. Centrelink's documents contain a "Customer in Psychiatric Confinement" form completed by [Dr B], Psychiatry Registrar, on 2 October 2018. In that form, in response to the question "Is the customer undertaking a course of rehabilitation as defined below?", [Dr B] has ticked "No." [Dr B], however, also noted that Miss Orlok had a court ordered emergency examination order put in place after being remanded in custody on [Day 1] May.
2. I do not consider that [Dr B]'s response is determinative of the issue of whether or not Miss Orlok was undertaking a course of rehabilitation. Given the passage of time, [Dr B] was not available to provide any evidence or explanation of his response. Noting that this form was completed the day before Miss Orlok was discharged from [Hospital] on 3 October 2018, it may be that [Dr B]'s response simply reflected that Miss Orlok had completed her planned course of treatment at that time. I accept Miss Orlok's evidence that she was undertaking various activities while admitted to the [Hospital] and that her treatment changed over time once her acute stage of psychosis had been adequately stabilised with medication. I accept Mr Davidson's submission and find that the course of treatment and activities engaged in by Miss Orlok while under an involuntary treatment order while confined in a psychiatric facility was sufficient to amount to a course of rehabilitation.
3. This means that section 1158 of the Act does not apply in Miss Orlok's situation and DSP remained payable to her in the period [Day 1] May 2018 to 3 October 2018.

Issue 2: What is the date of effect of the favourable decision?

1. Section 109 of the Administration Act operates to limit the date of effect of any favourable determination. Where a person requests review within 13 weeks of being given notice of a decision, or no effective notice of a decision has been given, the decision has effect from the date on which the original decision took effect: subsections 109(1) and 109(3). However, if a person requests review of a decision more than 13 weeks after being notified of the decision, any favourable decision made on review only takes effect from the date on which the person requested review: subsection 109(2).
2. Miss Orlok was given effective notice of the decision to suspend her DSP by letter issued to her nominee (the Public Trustee) dated 15 June 2018.
3. Sections 160 and 163 of the Evidence Act 1995 provide that a letter from a Commonwealth agency is presumed to have been sent by prepaid post on the 5th business day after the date on which the letter purports to have been dated, and for post to have been received on the 4th business day after it was posted. Therefore, Centrelink's letter dated 15 June 2018 is deemed to have been received by the Public Trustee not before 28 June 2018.
4. The Public Trustee's letter of 25 October 2018 requesting urgent reinstatement of Miss Orlok's DSP is sufficient to amount to a request for review of the decision to suspend her DSP. However, this request was made more than 13 weeks after the Public Trustee is presumed to have received Centrelink's notification of the suspension decision.
5. However, [Ms A] had earlier contacted Centrelink on 25 September 2018 requesting that the decision to suspend Miss Orlok's DSP be reviewed as Miss Orlok was in psychiatric confinement. [Ms A] sought assistance from her local MP, [Mr C], who forwarded a letter from [Ms A] to Centrelink seeking assistance. This letter appears to have been received by Centrelink on 25 September 2018 but was not uploaded until 28 September 2018.
6. Centrelink's document dated 28 September 2018 notes that [Mr C]'s office had been advised that they were "investigating" the matter. However, Centrelink's documents indicate that no review was completed on the basis that it was the Public Trustee, and not [Ms A], who was Miss Orlok's nominee and therefore [Ms A]'s request could not be treated as a request for review.
7. Mr Davidson submitted that the contact by [Ms A] and [Mr C] MP on 25 September 2018, which is within 13 weeks of the date on which the notice of suspension could be presumed to have been received by Miss Orlok's nominee, ought be accepted as a request for review. Mr Davidson drew the Tribunal's attention to Centrelink's current Operational Blueprint (at 104-04060020), which envisages situations in which authority may be implied to enquire or act on a customer's behalf, as follows:

Services Australia may presume there is implied authority of the customer when contacted by third parties who are members of 'helping' professions, and:

• the contact is clearly related to the type of service or assistance those professions would provide to the customer
• Services Australia is satisfied the professional is assisting the customer in relation to the customer's business with Services Australia, and
• it is reasonably certain the customer would provide express authority if they were able to, or if Services Australia required it

A helping professional must generally be a 'professional' in the sense that they are subject to professional and ethical obligations as a registered member of a professional organisation or body (for example, Australian Medical Association, State or Territory law society).

• Community legal centre lawyers and social workers
• Guardians
• Administrators
• Public Trustees
• Doctors
• Emergency personnel (for example, Ambulance, Police)
• Social workers*
• Members of Parliament and their staff
• Lawyers
• Financial counsellors
• Accountants and Tax Agents

1. Although the Public Trustee was Miss Orlok's financial guardian and nominee for Centrelink purposes, it is often the case that - given the excessive demands placed on the resources of the Public Trustee - it may not promptly follow up on issues regarding client's Centrelink payments.
2. However in this case, Centrelink had been specifically advised by [Ms A] that Miss Orlok was confined to a psychiatric institution suffering a severe mental illness, and that she was without funds. Miss Orlok, had she not lacked capacity to do so, could certainly be presumed to have wished to have her DSP reinstated. In these circumstances and particularly given Miss Orlok's acute vulnerability at the time, the enquiries by [Ms A] and Miss Orlok's local MP on her behalf ought to have been sufficient to prompt Centrelink to conduct a review of the suspension decision.
3. I find that the requests made on Miss Orlok's behalf on 25 September 2018 were sufficient to amount to a request for review of the decision to suspend her DSP. These requests were made within 13 weeks of notice of that decision being provided to her nominee. Miss Orlok is therefore entitled to be paid arrears of DSP for the period [Day 1] May 2018 to 3 October 2018.

The Tribunal sets aside the decision under review and remits the matter for reconsideration in accordance with the order that:

• Miss Orlok was in psychiatric confinement undergoing a course of rehabilitation in the period [Day 1] May 2018 to 3 October 2018; and
• Miss Orlok requested review of the decision to suspend her DSP within 13 weeks of being notified of that decision and is therefore entitled to payment of arrears of DSP for the period [Day 1] May 2018 to 3 October 2018.