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

[2019] AATA 5541

Abdelmalek and Secretary, Department of Social Services (Social services second review) [2019] AATA 5541 (24 December 2019)

Division:GENERAL DIVISION

File Number(s):      2018/5453

Re:Kamal Abdelmalek

APPLICANT

AndSecretary, Department of Social Services       

RESPONDENT

DECISION

Tribunal:Mr S Evans, Member

Date:24 December 2019

Place:Sydney

The decision under review is affirmed.

..................[sgd]......................................................

Mr S Evans, Member 

CATCHWORDS

SOCIAL SECURITY – disability support pension – eligibility – physical & psychological impairments – applicant unable to satisfy qualification criteria under s 94 of Social Security Act 1991 – whether impairments fully diagnosed, treated or stabilised – whether impairments attract 20 or more points – impairment tables – decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth) s 94

SECONDARY MATERIALS

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

REASONS FOR DECISION

Mr S Evans, Member

INTRODUCTION

1. Kamal Abdelmalek (“the Applicant”) has applied to the Tribunal for a review of a decision of the Social Services and Child Support Division of the Tribunal, which affirmed a decision of an Authorised Review Officer (“ARO”) of the Department of Human Services (“the Department”, also known as “Centrelink”) to reject Mr Abdelmalek’s claim for Disability Support Pension (“DSP”), which was lodged on 3 October 2017. 

   BACKGROUND TO THE PROCEEDINGS

2. Mr Abdelmalek is currently 59 years old.  He immigrated to Australia from Egypt in 1992 and is married with three children. 

3. Up until 2008 he worked as a motor mechanic.  He was involved in a workplace accident in early 2008 and whilst he continued working initially, he ceased working later that year and was in receipt of workers compensation. 

4. Mr Abdelmalek has made a number of applications for DSP since November 2015.  Most recently he made another application in April 2019 which he told the Tribunal has been rejected.  These proceedings relate to the DSP application he lodged in October 2017.

5. The Applicant attended the hearing in person and was represented by counsel.  He provided evidence with the assistance of an interpreter.  Unless otherwise stated the findings of fact are based on the evidence of the Applicant. 

6. For the reasons which follow, the decision refusing Mr Abdelmalek’s application for DSP will be affirmed.  

   CRITERIA TO BE APPLIED

   Qualification for disability support pension

7. DSP is an income support payment for people with a disability that prevents them from working at least 15 hours per week. Section 94 of the Social Security Act 1991 (Cth) (“the Act”) sets out the criteria for qualification for payment of disability support pension: 

   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;…

8. Simply put, in order to qualify for the DSP, it must first be established that Mr Abdelmalek had one or more physical, intellectual or psychiatric impairments. Second, these impairments must warrant a rating of 20 points or more under the Impairment Tables contained in the Social Security(Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (“the Impairment Tables”). Third, he must have a ‘continuing inability to work’.

9. Noting that the complexity of the eligibility criteria means that any summary risks a degree of oversimplification, in essence to be eligible for DSP, at the time of qualification (being the date of application or within 13 weeks after) an applicant must: 

   (i)Have had conditions which are “permanent”. Permanent in this context means the conditions were fully diagnosed by an appropriate medical practitioner, fully treated, fully stabilised and likely to persist for more than two years. 

   (ii)For a condition to be “fully stabilised”, generally the applicant must have undertaken reasonable treatment for the condition and significant improvement to a level enabling the person to undertake work in the next 2 years is not expected.  

   (iii)If a condition meets these requirements, (meaning it is deemed permanent as it has been diagnosed, treated and stabilised), the medical conditions can be assigned a rating against the Impairment Tables which determine the level of functional impact of an impairment.

   (iv)If an applicant is assigned an impairment rating of 20 points or more against the relevant Impairment Tables, they may qualify for the DSP.

   (v)If the impairment rating includes at least 20 points under a single Impairment Table, the applicant has a “severe” impairment. 

   (vi)If the impairment rating is of 20 points or more but from more than one Impairment Table, the applicant may also be required to have completed a program of support (“POS”) or have actively participated in such a program for at least 18 months in order to qualify for the DSP. 

   ISSUES FOR THE TRIBUNAL

10. The Tribunal must determine whether Mr Abdelmalek is eligible for DSP.  When making this assessment, the Tribunal must determine: 

    (a)What is the qualification period for Mr Abdelmalek’s claim for DSP? 

    (b)Did Mr Abdelmalek have a physical, intellectual or psychiatric impairment(s) as defined under the Act during the relevant period?

    (c)If so, were his impairment(s) capable of being assigned 20 points or more under the Impairment Tables during the relevant period?

    (d)If Mr Abdelmalek’s impairment(s) is/are of 20 points or more under the Impairment Tables, are 20 points assigned under a single Impairment Table (in which case he has a “severe” impairment)?

    (e)If Mr Abdelmalek did not have a severe impairment during the relevant period, but his impairment(s) attract a rating of 20 points or more, does he have a continuing inability to work or has he participated in a POS?

    The qualification period

11. Mr Abdelmalek lodged his claim for DSP on 3 October 2017 and that triggers the assessment process to determine the eligibility of the Applicant.  Mr Abdelmalek must qualify for DSP on the date of the claim or within 13 weeks thereafter (i.e. to 2 January 2018).  I will refer to this as the “qualification period”.

12. The practical implications for this matter are that the Tribunal can only consider Mr Abdelmalek’s conditions and qualification for DSP during the qualification period.  

13. Following this, the Tribunal notes that medical reports that come into being after the relevant period are only pertinent to the extent that they refer to the Applicant’s condition during the qualification period.

    Mr Abdelmalek’s Medical Conditions

14. Mr Abdelmalek applied for DSP eon the basis of his spinal condition, neck condition, shoulder condition, lower limb condition, low vision, and adjustment disorder.  In his submission to the Tribunal, Mr Abdelmalek contended that he was ‘entitled to 20 points each under [impairment] tables 1, 3 and 5’.

15. At the start of the hearing Mr Abdelmalek was of the view that he had successfully completed the POS requirements.  During the course of proceedings it became clear to Mr Abdelmalek’s representative that he had not met the POS requirements during the qualification period. Not having completed the POS requirement meant that Mr Abdelmalek’s application could only succeed if it was determined that he had a severe impairment.  Consequently, the Mr Abdelmalek chose to focus most of his evidence on his mental health condition. 

    Mental health condition (depression / adjustment disorder)

16. In the Applicant’s submission to the Tribunal it is written that his ‘depressive disorder’ affects his ‘self care/independent living, social/recreational activities, travel, interpersonal relationships, concentration/task completion, behaviour/planning/decision making and work/training capacity’[1]. 

    [1] Exhibit A1 p. 2

17. Mr Abdelmalek told the hearing that his wife does everything for him and that she takes care of his children.  She also takes him to his medical appointments, takes their children to school and she also attends any meetings at their childrens’ school.    Mr Abdelmalek testified that he is dependent on his wife and if she is sick, he calls his brother for assistance.  He does not complete household chores because he cannot help with anything due to his injuries.  He angers easily and his primary form of social interaction is with his sister and brother who both live locally.  He says he does not make any decisions at home and that his wife makes all household decisions without consulting him.  Because he has no idea what is going on outside of the house or how things work he just instructs his wife to do what is right.  He is always tired, unhappy and he does not feel that anything good will happen.

18. Before the Tribunal is a report from general practitioner Dr Assad Malek[2] dated 10 February 2019.  Dr Malek has been seeing Mr Abdelmalek since May 2008.  He states ‘He [Mr Abdelmalek] always shows signs of unsettled, anxiety and depression [sic]’. 

    [2] Exhibit A2 p. 2

19. The Applicant also provided a report dated 6 March 2019 from consultant psychiatrist Dr Mukesh Kumar[3].  Dr Kumar confirmed that he had been seeing Mr Abdelmalek since 2016.  Dr Kumar confirms a diagnosis of major depressive disorder and that Mr Abdelmalek is currently taking Sertraline 200 mg.  He reports that Mr Abdelmalek told him ‘there is no change in his mood symptoms, however later added that there is “a bit of improvement”.  ‘Overall’, Dr Kumar writes, ‘it appears that there is only a minor variation in his [Mr Abdelmalek’s] depressive symptoms’. 

    [3] Exhibit A5

20. Also before the Tribunal is an earlier letter from Dr Kumar from June 2016[4] in which he reported that Mr Abdelmalek ‘presents with depressive symptoms in context of workplace injury leading to a loss of employment and the subsequent financial and physical discomfort’.  Dr Kumar does not diagnose depression or any other mental disorder at that time, noting only the Applicant’s self-reported symptoms of being upset, depressed and poor sleep.

    [4] T-documents p. 170-71

21. Dr Kumar’s March 2019 diagnosis of major depressive disorder was significantly outside the qualification period and as such, the Tribunal cannot reasonably be satisfied that the Applicant’s condition was diagnosed, fully treated and stabilised during the qualification period on the basis of this report.

22. In May 2016, psychologist Dr Medhat Metry[5] diagnosed Mr Abdelmalek with adjustment disorder with anxiety and depressed mood.  Mr Abdelmalek’s course of treatment included 10 sessions of treatment including an element of Cognitive Behaviour Therapy and counselling.  It was reported that Mr Abdelmalek still had ongoing symptoms of depression and anxiety with no significant change in his psychological condition following completion of this treatment.

    [5] T-documents p. 168

23. Based on the evidence, I accept that Mr Abdelmalek suffered from depression during the qualification period.  However, there is very limited evidence of the impairment impact of this condition or the treatment that was being undertaken during the qualification period.  Consequently, I am unable to confirm that Mr Abdelmalek’s mental health condition was fully treated and stabilised during this period.

    Spinal condition 

24. Mr Abdelmalek has provided medical evidence dating back to 2008 which relates to his spinal condition.  Evidence includes a report from Dr Grahame Mahony[6] from April 2009 which provides a brief overview of the origins of Mr Abdelmalek’s spinal impairment.  Dr Mahony writes: 

    On the 5^th March 2008 as he [Mr Abdelmalek] was carrying out the heavy duty work as a motor mechanic, there was a grease gun on the floor and he pushed the gun with his right foot and as he did say he noticed pain in his low back and slight pain in his right thigh.  He reported the development of his symptoms and continued working. 

    [6] T-documents, p. 108

25. Dr Mahony states that at the time he wrote the report Mr Abdelmalek had low back pain radiating to his right thigh and his right foot, pain in his right knee, pain in his right shoulder and pain in his neck. 

26. A medical report from Dr Malek from September 2017[7] details Mr Abdelmalek’s condition stating that a cervical spine examination determined ‘cervical spine tenderness and reduced movements in abduction extension and internal rotation’.  A lumbar spine examination revealed tenderness, reduced movement, reduced sensation and reduced muscle power.  The report confirms disc desiccation at T 11/12 and minor posterior bulging of the disc and disc annulus. 

    [7] T-documents, p. 210-14

27. Neurosurgeon Dr Simon McKechnie’s letter[8] to Dr Malek follows a consultation with Mr Abdelmalek in June 2016. In that letter Dr McKechnie writes: 

    ‘the MRI demonstrates a small C5/6 disc protrusion.  In my opinion there is no significant thecal sack or nerve root impingement.  I would disagree with the radiology report.  I have discussed the MRI findings and treatment options but would not recommend any surgical intervention.  I have referred him for a course of cervical physiotherapy.  I have given him a prescription to try Voltaren 50 mg daily.

    [8] T-documents, p. 169

28. In the ARO’s report[9] of September 2017 the officer writes “[Mr Abdelmalek] reported pain radiating from neck to both arms with numbness.  Client [Mr Abdelmalek] observed to bend neck downward to sign client consent form and straighten upward with nil issues”.

    [9] T-documents, p. 256-60

29. The Applicant’s submission states that his pain restricts his movement and that if he sits in a stationary period ‘for a few hours’ he ‘experiences lumbar pain’[10].  

    [10] Exhibit A1

30. Based on the evidence before me, I accept that this condition is fully diagnosed, treated and stabilised and can appropriately be assigned five points under Table 4 (Spinal Function). 

    Shoulder condition

31. Dr Malek’s report of September 2017[11] notes tenderness was elicited on palpitation of both shoulders, movement was curtailed in abduction extension and medial rotation on both shoulders and he diagnosed an injury of the rotator cuff on both sides.  He notes that MRI scans and ultrasounds have been performed on the Applicant’s shoulders and repeat cortisone injection of both shoulders was performed in November 2011. 

    [11] T-documents, p. 210-14

32. There is a scarcity of details or evidence of the functional impairment caused by Mr Abdelmalek’s shoulder condition before the Tribunal.   I am reliant on the evidence contained in the documentation before the Tribunal which I have considered carefully.  I can only consider the evidence of functional impact which is before the Tribunal, and in relation to his shoulder condition that evidence as it relates to the qualification period is minimal.  It is reported in the Job Capacity Assessment[12] that Mr Abdelmalek reported he is ‘able to reach up and wash his hair and lift a 2 litre bottle of milk.  Client was observed to grasp pen and sign client consent form’.

    [12] T-documents, p. 253

33. On the basis of this evidence, I find that Mr Abdelmalek’s shoulder attracts an impairment rating of zero points.

    Low vision

34. Mr Abdelmalek suffers from left eye blindness and he reports blurred vision with his right eye in the absence of glasses.  With glasses the applicant is able to perform most day-to-day activities requiring vision.  A job capacity assessor[13] states ‘there is a mild functional impact on activities involving visual function’. The Applicant’s submission[14] provides no further insight into this condition. 

    [13] T-documents, p. 257

    [14] Exhibit A1

35. However, given the nature of the impairment, being that Mr Abdelmalek has functional vision in only one eye, I accept that the Job Capacity Assessment report was correct to conclude that an impairment rating of 5 points under Table 12 (Visual Function) is appropriate.  This rating was not contested by the Applicant. 

    Lower limb condition

36. Once again there is a dearth of evidence before the Tribunal regarding the specific functional impact of Mr Abdelmalek’s lower limb conditions.  The diagnosed conditions include, according to Dr Malek’s report[15], right ankle pain and tenderness in the right knee with ‘limited flexion movement to 80% of normal’.  An ultrasound of the left knee was performed in November 2016 and an MRI of the left knee was performed in December 2016. Dr Malek diagnosed right bilateral knee injury with meniscal tear right side, chondromalacia and a right ankle soft tissue injury.

    [15] Exhibit A2

37. The Applicant’s submission contends that he is ‘entitled’ to be allocated 20 points under Table 3 (Lower Limb Function).  I accept that Mr Abdelmalek has fully diagnosed, treated and stabilised conditions which impact lower limb function, but based on the very limited evidence of the impairment impact these conditions have on the Applicant, it is appropriate that zero points are assigned to this impairment.  

    CONCLUSION

38. The Secretary accepts, and based on the evidence before it the Tribunal agrees that, Mr Abdelmalek had a physical, intellectual or psychiatric impairment during the qualification period such that he satisfies section 94(1)(a) of the Act.

39. Whilst I find that Mr Abdelmalek had a physical impairment as defined under the Act during the relevant period, Mr Abdelmalek does not meet the threshold requirement of 20 points under the impairment tables. Consequently, it is not necessary for me to consider if he had a continuing inability to work during the relevant period. It follows that his claim for DSP cannot succeed.

    DECISION

40. For the reasons above, I am satisfied that the Applicant does not qualify for DSP under section 94(1) of the Act.

41. I affirm the decision under review. 

I certify that the preceding 41 (forty-one) paragraphs are a true copy of the reasons for the decision herein of Mr S Evans, Member.

.........................[sgd]...............................................

Associate

Dated: 24 December 2019

Date(s) of hearing:	21 October 2019
Solicitors for the Applicant:	Ms K Ziayee, Supreme Justice Lawyers
Solicitors for the Respondent:	Mr A Downie, Department of Human Services