Abbas and Secretary, Department of Social Services (Social services second review)

[2017] AATA 501

Abbas and Secretary, Department of Social Services (Social services second review) [2017] AATA 501 (12 April 2017)

Division:GENERAL DIVISION

File Number(s):      2016/3775

Re:Hayder Abbas

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Dr I Alexander, Member

Date:12 April 2017

Place:Sydney

The decision under review is affirmed.

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Dr I Alexander, Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – whether applicant’s impairments are fully diagnosed, treated and stabilised – severe impairment – continuing inability to work – Impairment tables – cerebral palsy – asthma – vision – Table 2 – Table 3 – Table 8 – decision affirmed

LEGISLATION

Social Security Act 1991

Social Security (Administration Act) 1999

SECONDARY MATERIALS

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

Social Security (Active Participation for Disability Support Pension) Determination 2014

REASONS FOR DECISION

Dr I Alexander, Member

12 April 2017

1. Mr Abbas, who is now 27 years old, arrived in Australia on 21 June 2015.

2. On 1 September 2015 Mr Abbas lodged a claim (the claim) for Disability Support Pension (DSP) under the Social Security Act 1991.

3. The claim was rejected by Centrelink, both initially and on internal review, on the basis that he did not satisfy the requirements of s 94 of the Social Security Act 1991 (the Act). In particular, he did not satisfy s 94(1)(b) of the Act as his impairment was not 20 points or more under the Impairment Tables.

4. In a decision dated 17 June 2016, the Social Services & Child Support Division (SSCSD) of the Administrative Appeals Tribunal found that Mr Abbas suffered a permanent medical condition, namely cerebral palsy, which was having a significant impact on his ability to function.

5. The SSCSD assigned a total rating of 20 points under the Impairment Tables with 10 points under Table 2 (upper limb function), 5 points under Table 3 (lower limb function) and 5 points under Table 8 (communication function), thus, satisfying section 94(1)(b) of the Act.

6. However, the SSCSD found that Mr Abbas did not satisfy section 94(1)(c) of the Act on the basis that he did not have “a continuing inability to work” as defined in the Act because  he did not suffer a “severe impairment” as defined in the Act and had not “actively participated in a program of support” as set out in the Social Security (Active Participation for Disability Support Pension) Determination 2014 (the POS Determination).

7. In this proceeding Mr Abbas seeks review of the decision of the SSCSD.

8. At the hearing, Mr Abbas was self-represented, supported by a family member and assisted by an Arabic language interpreter.

   ISSUES

9. In order to qualify for DSP Mr Abbas must satisfy the requirements of s 94 of the Act as at the date of the claim or within 13 weeks of lodging the claim, in accordance with subclause 4(1) of Schedule 2 to the Social Security (Administration) Act1999, that is, between 1 September 2015 and 1 December 2015 (the claim period).

10. Section 94(1) of the Act provides that a person is qualified for DSP 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)the person has a continuing inability to work as defined by the Act.

11. The Respondent concedes, and the Tribunal accepts, that Mr Abbas suffers medical conditions that cause impairment and, therefore, satisfied s 94(1)(a) of the Act at the time of his claim for DSP.

12. The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Determination) requires that an impairment rating can only be assigned to an impairment if the condition causing that impairment is “permanent” (paragraph 6(3)(a)).

13. For the purposes of Para 6(3)(a), a condition is permanent if it is:

    ·fully diagnosed by an appropriately qualified medical practitioner (Para 6(4)(a)); and

    ·fully treated (Para 6(4)(b)); and

    ·fully stabilised (Para 6(4)(c)); and

    ·the condition is more likely than not, in light of available evidence, to persist for more than 2 years (Para 6(4)(d)).

14. The Introduction to each relevant Table requires that “self-report of symptoms alone is insufficient” and “there must be corroborating evidence of the person’s impairment”.

15. Furthermore, the Introduction to Table 5 of the Determination, which is to be used where a person has a permanent condition resulting in functional impairment due to a mental health condition, states that the diagnosis of the condition “must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist)”.

16. It is not disputed that, during the claim period, the relevant medical conditions are cerebral palsy, asthma and visual impairment.

17. Currently, Mr Abbas also suffers a mental health condition which was not reported until after the claim period and has not been diagnosed by a clinical psychologist or psychiatrist. This means that it cannot be assessed for the purposes of the current claim before the Tribunal.

18. At the hearing the Solicitor for the Respondent amended the original Statement of Facts and Contentions. The Respondent now contends that during the claim period, as a result of the medical condition of cerebral palsy, Mr Abbas did have a rating of at least 20 points under the Impairment Tables as set out by the SSCSD and can satisfy s 94(1)(b) of the Act.

19. However, the Respondent contends that, during the claim period, Mr Abbas could not satisfy section 94(1)(c) of the Act as he did not have a “continuing inability to work” because he had not actively participated in a program of support (POS) as required by section 94(2)(aa) of the Act . Therefore, he could not qualify for DSP.

20. Section 94(2)(aa) of the Act provides that a person has a continuing inability to work because of an impairment if the Secretary is satisfied that “in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B)… the person has actively participated in a POS within the meaning of subsection (3C)”. 

21. Subsection 3B provides that a person’s impairment is a severe impairment if the person’s impairment is 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.

    22.Section 7 of the POS Determination provides, inter alia, that a person has actively participated in a POS if they have participated in the program of support for a period of at least 18 months during the 36 months prior to the date of claim.

22. It is agreed that Mr Abbas had not actively participated in a POS prior to the date of claim or during the claim period.

23. It follows that Mr Abbas’ claim cannot succeed unless he suffered a severe impairment during the claim period. This means that the determinative issue in this matter is whether, during the claim period Mr Abbas had a rating of 20 points or more under a single Impairment Table.

    Cerebral Palsy

24. In a Centrelink Medical Report dated 30 July 2015, Dr Rahman, general practitioner (GP), notes a diagnosis of “mental development delay” as the medical condition with most impact.

25. Dr Rahman provides no details to support the diagnosis and no useful evaluation of impact on ability to function. This report is unhelpful.

26. In a letter dated 4 August Dr Ell, neurologist, concludes that Mr Abbas suffers “relatively mild cerebral palsy with a spastic diplegia pattern” but provides no detailed assessment of functional impairment.

27. On physical examination Dr Ell noted inter alia the following:

    “scissor gait …bilateral equinovarus …spasticity in the lower limbs …bilateral upper motor neurone type facial weakness…power was normal in the limbs ….  generally pathologically hyper-reflexic”

28. In a Medical Certificate dated 17 August 2015 Dr Haddad, GP, notes a diagnosis of “cerebral palsy with spastic diplegia pattern” and describes symptoms as “generalised muscular weakness imbalance, facial palsy” but provides no other details.

29. In a Centrelink Program of Support Medical Review dated 18 August 2015, author unknown, a diagnosis of “cerebral palsy with spastic diplegia” is listed as a medical condition with most impact. Impact on ability to function is described as “unable to communicate freely, unsteady walking reduced vision & speech cannot follow order clearly”.

30. In a letter dated 19 October 2015 Dr Haddad confirms that Mr Abbas suffers from “cerebral palsy since birth” and asserts that “this condition can affect multiple systems in his body including his brain development and cognitive behaviour in addition to Muscular weakness involving Mouth hands and feet”.

31. Dr Haddad states that Mr Abbas “is unable to feed himself …. needs help on a daily basis to go to the toilet …needs help with showering …is unable to shave himself”.

32. In a Job Capacity Assessment (JCA) Report submitted on 7 October 2015, the assessor noted inter alia the following:

    The client reported ….. assistance in self-care tasks and activities of daily living …walking as ‘hard’, requires rest periods…does not require a waling aid …mother typically completes forms, he ‘sometimes’ manages his finances … . difficulties holding a glass to drink and does not prepare meals …difficulties with speech expression at times 

    Consideration

33. On the available evidence, I am satisfied that Mr Abbas’ cerebral palsy does have a significant impact on his ability to function. However, the severity of the functional impairment is, in my view, unclear.

34. The corroborative medical evidence can best be described as incomplete. The evidence is superficial, inconsistent and appears to rely primarily on self-report of symptoms with no reliable independent assessment.

35. The available evidence does not allow for a meaningful assessment as to whether his rating under the relevant Impairment Tables is mild or moderate.

36. For present purposes, however, I am satisfied that a total rating of 20 points under Impairment Tables 2, 3 and 8, as decided by the SSCSD, is appropriate.

37. However, in my view, there is no corroborative evidence to support a conclusion that, during the claim period, Mr Abbas suffered a severe impairment as defined in the Act that is, a rating of 20 points or more under a single Impairment Table.

    Asthma

38. In a letter dated 12 July 2016, Dr Johnson, Respiratory and Sleep Physician noted that Mr Abbas has suffered from asthma from early childhood and concluded that he currently suffers from “moderate asthma and still has symptoms despite optimal treatment”.

39. Dr Johnson noted that Mr Abbas’ treatment consists of Seretide and Ventolin but observed that “his technique with the MDI was not good” and recommended the use of a spacer with the puffer.

40. A CT scan of the chest dated July 2016 reported various lung abnormalities of uncertain cause.

41. On the limited evidence available, I am satisfied that Mr Abbas’ lung condition was not fully diagnosed, treated and stabilised during the claim period so that a rating under the Impairment Tables cannot be assigned.

    Vision

42. In a letter dated 20 November 2015 Dr Nanda, Opthalmologist, stated that Mr Abbas had “significant myopic and astigmatic error in both eyes’’ and advised him to see an optometrist for refraction and prescription of glasses to correct the underlying refractive error.

43. As there is no corroborative evidence before the Tribunal with respect to Mr Abbas visual acuity with appropriate corrective glasses during the claim period a rating under Impairment Table 12 cannot be assigned.

    DECISION

44. For reasons set out above, the Tribunal is satisfied that, during the claim period, Mr Abbas did not have a severe impairment as defined in the Act and as he had not actively participated in a POS he did not have a continuing inability to work and, therefore, did not satisfy section 94(1)(c) of the Act and did not qualify for DSP.

45. The decision under review is affirmed.

I certify that the preceding 46 (forty-six) paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander, Member

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Associate

Dated: 12 April 2017

Date(s) of hearing:	27 March 2017
Advocate for the Applicant:	F Hasson
Solicitors for the Respondent:	Biljana Salaji