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

[2021] AATA 3434

Ahmad and Secretary, Department of Social Services (Social services second review) [2021] AATA 3434 (24 September 2021)

Division:GENERAL DIVISION

File Number(s):      2021/1116

Re:Souhair Ahmad

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member M Griffin QC

Date:24 September 2021

Place:Sydney

The original decision is affirmed.

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

Senior Member M Griffin QC

CATCHWORDS

SOCIAL SECURITY – claim for disability support pension – qualification period – whether the Applicant was qualified to receive DSP on the date of her claim, whether conditions were permanent as at the qualification period – whether conditions were fully diagnosed, treated and stabilised – eligibility requirements were met as at qualification period – original decision affirmed

LEGISLATION

Social Security Act 1991 (Cth)
Social Security (Active Participation for Disability Support Pension) Determination 2014 (the POS Determination)
Social Security (Administration) Act 1999 (Cth)

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

CASES

Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 645

SECONDARY MATERIALS

Social Security Guide

REASONS FOR DECISION

Senior Member M Griffin QC

24 September 2021

1. The Applicant seeks review of a decision of the Administrative Appeals Tribunal (Social Services and Child Support Division) (AAT1) made on 1 February 2021, affirming a decision made by an Authorised Review Officer (ARO) on 30 October 2020 which rejected a claim for Disability Support Pension (DSP) made on 28 July 2020.

   LEGISLATION

2. The relevant law is contained in the:

   ·Social Security Act 1991 (the Act);

   ·Social Security (Administration) Act 1999 (the Administration Act);

   ·Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables); and

   ·Social Security (Active Participation for Disability Support Pension) Determination 2014 (the POS Determination).

3. Government policy set out in the Guide to Social Security Law (the Guide) is also relevant and should be applied in the absence of cogent reasons not to follow such policy (Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 645).

   BACKGROUND

4. The Applicant is 53 years of age, having been born in Kuwait in 1967. The Applicant arrived in Australia in 1987.

5. The claim originally lodged by the Applicant was for disabilities, illnesses and injuries that began to significantly affect her work capacity from February 2019 and included disc bulging on many levels with nerve enterceptment, shoulder tendinosis, chronic arthritis, major depressive disorder and Raynaud’s syndrome of the fingers and toes.

6. The Applicant was assessed in August 2020 and September 2020, with the Applicant’s claim eventually rejected. On 2 October 2020, the Applicant requested review of the original decision indicating further medical conditions. The Applicant was subject to a Job Capacity Assessment Report on 20 October 2020.

7. On 23 February 2021, the Applicant lodged the application before this Tribunal following the affirmation of a decision on 1 February 2021. That decision, in turn, affirmed the decision of a review on 3 November 2020.

8. By that time the ARO considered the Applicant’s claimed shoulder condition, chronic arthritis, type II diabetes and spinal disorder as not being fully treated and stabilised. The Applicant’s depressive illness was also regarded as not being fully diagnosed, treated and stabilised. These conditions are the subject of this application before this Tribunal.

   THE QUALIFICATION PERIOD

9. The Administration Act requires a claimant to be qualified for a social security payment within the period of 13 weeks after the day on which the claim was made. The issue before the Tribunal is therefore whether the Applicant was qualified to receive DSP during the period from 28 July 2020 to 27 October 2020 (the Qualification Period).

10. The Tribunal must only consider the Applicant’s qualification for DSP within the Qualification Period. If the Applicant’s circumstances have subsequently changed, it would be appropriate for her to lodge a fresh claim.

11. The Respondent, at hearing, submitted that at the time of claim and within 13 weeks thereafter, the medical evidence did not support the finding that the Applicant qualified for payment of DSP under section 94 of the Act. In particular, her medical impairments failed to attract an overall impairment rating of more than 0 points. This is because her medical conditions were not considered to be permanent, that is, fully diagnosed, treated and stabilised during the Qualification Period.

    QUALIFICATION FOR DISABILITY SUPPORT PENSION

12. Section 94 of the Act sets out the qualification criteria for DSP.

13. It requires that a person have:

    -    A physical, intellectual or psychiatric impairment;

    -    An impairment rating of 20 points or more; and

    -    A continuing inability to work, including a requirement that the person has actively participated in a program of support (if the person does not have a severe impairment).

    DURING THE QUALIFICATION PERIOD DID THE APPLICANT SUFFER A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT (SECTION 94(1)(A))?

14. The Respondent accepted that during the Qualification Period, the Applicant had a ‘physical, intellectual or psychiatric impairment’ as required by section 94(1)(a) of the Act.

    WHETHER THE APPLICANT HAD AN IMPAIRMENT RATING OF 20 POINTS OR MORE UNDER THE IMPAIRMENT TABLES (SECTION 94(1)(B))

15. The Tribunal accepts the Respondent’s submission that before an impairment rating can be assigned under the Impairment Tables, the rules for applying the Impairment Tables set out in Part 2 must be satisfied.

16. Paragraph 6(3) of the Impairment Tables provides that the condition must be permanent before an impairment rating can be assigned. That is, ‘the condition has been fully diagnosed by an appropriately qualified medical practitioner and the condition has been fully treated and stabilised and is more than likely than not in light of the available evidence to persist for more than 2 years’ (Paragraphs 6(3) and 6(4) of the Impairment Tables).

17. Paragraph 6(5) of the Impairment Tables provides that, in order to assess whether a condition is fully diagnosed and fully treated, one must consider:

    (a)whether there is corroborating evidence of the condition; and

    (b)what treatment or rehabilitation has occurred in relation to the condition; and

    (c)whether treatment is continuing or is planned in the next 2 years.

18. Paragraph 6(6) of the Impairment Tables states that for a condition to be fully stabilised, the following must be satisfied:

    (a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or

    (b)the person has not undertaken reasonable treatment for the condition and:

    (i)   significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or

    (ii)     there is a medical or other compelling reason for the person not to undertake reasonable treatment.

19. Paragraphs 10(5) and (6) of the Impairment Tables deal with multiple conditions causing a common impairment. If two or more conditions cause a common or combined impairment, a single rating should be assigned in relation to this common or combined impairment under a single Table (paragraph 10(5)). In such case, it would be inappropriate to assign a separate impairment rating for each condition as this would result in the same impairment being assessed more than once (paragraph 10(6)).

    SPECIFIC ASPECTS OF DISORDERS

20. The Applicant appeared with the assistance of an interpreter and made helpful and relevant submissions during the course of the hearing. The Applicant's daughter also assisted her in the hearing. The Tribunal was satisfied that both the Applicant and her daughter understood the nature of the proceedings and the issues involved.

21. A theme during the Applicant’s submissions was that she was unable to collect all relevant information and provide it to the Tribunal. In some cases, medical practitioners were unable to provide relevant, though not particularly contemporary, information for her case. The Applicant also said that she was unable to pursue and obtain relevant, more contemporary information and statements from medical practitioners because she was unable to access them, either because she was physically unable to attend on relevant medical practitioners, particularly specialists, or because her daughter was unable to take her. The Tribunal accepts the statements made by both the Applicant and the daughter as to these matters although not formally given as evidence. The daughter also stated that she had attempted to assist her mother in gaining access to relevant medical practitioners but had, on occasions, lost her job because of absences in assisting her mother.

22. As to the Applicant’s debilitating conditions, the Respondent quite properly accepts that there is evidence that a number of conditions actually exist. The issue submitted by the Respondent, and which the Tribunal is alert to, is whether there is evidence that those conditions are fully diagnosed, fully treated and stabilised.

23. The Applicant says that her conditions have been present for approximately 10 years but the difficulty for her is access to doctors for the purpose of providing reports.

    PHYSICAL CONDITIONS

24. The physical conditions which the Respondent accepts includes spinal issues involving the Applicant’s discs which can be summarised as a spinal disorder, associated pain and chronic arthritis.

25. The Qualification Period which is relevant is from 28 July 2020 to 27 October 2020, although evidence may be received from periods beyond these dates if they are relevantly connected to the conditions. This last statement is a mere lay expression of a rather more complicated principle but is sufficient for the purposes of this decision.

26. As to those physical conditions described above and elsewhere in this decision, there is minimal evidence of appropriate physical treatments although there is some evidence of some physiotherapy and attendance upon a chiropractor. There are no satisfactory reports from any of these practitioners, nor is there any evidence of interventions such as injections for pain for her back problems or her shoulder. There is no evidence of any specialist review or consideration in terms of treatment options for these conditions. Furthermore, there is no pain management options evidenced that have been explored. Pain, which is a symptom of relevant conditions, is a constant presence in the Applicant's life and the Tribunal accepts that she is affected by the pain.

27. As with the other conditions described below, including depression and diabetes, the Tribunal does not regard it as necessary to analyse every piece of evidence.

28. The reports, Exhibit 1 and Exhibit 2, of Doctor Alhashem do not meet and fall well below the standard of proof required to demonstrate that the conditions have been fully treated and stabilised. In stating that, however, the Tribunal does not impute any impropriety to those reports produced by the doctor.

29. As to the Applicant's mental health conditions which include depression and anxiety, there is no corroborating evidence from any suitably qualified medical practitioner which demonstrates that the condition is fully diagnosed and that it is fully treated and stabilised. Although there is a report of Doctor Al Shamali that goes superficially to those relevant issues, that practitioner is not a clinical psychologist and, as such, the Tribunal accepts that the Respondent does not accept that report as carrying any probative weight. Independently, however, it is the Tribunal's opinion that the report does not go sufficiently to demonstrate full diagnosis treatment or stabilisation of any of the conditions described.

30. The Applicant clearly suffers from diabetes and although fully diagnosed, there is insufficient evidence to demonstrate that it is fully treated. In fact, the evidence suggests that there has been no ongoing engagement with health professionals about the condition which seems to be poorly controlled. The fact that the condition is poorly controlled suggests that there should be further follow-up treatment and a treatment plan. There is no evidence that this exists, and, on that basis, the condition of diabetes cannot be described as being fully treated or stabilised.

31. An issue was raised by the Applicant late in the hearing concerning elevated blood pressure and a requirement that she was rushed to the Emergency Department of the Liverpool Hospital on account of her high blood pressure. It emerged during the hearing, however, that this was a condition that was suffered after the rejection initially of this application for DSP. There was no precision as to the date when this occurred and no further evidence apart from some general statements by the Applicant, which the Tribunal accepts, that her General Practitioner has been concerned about her elevated blood pressure. All these factors lead to a conclusion that this is not a matter that this hearing can delve into nor, in general terms, does it disclose a condition which is fully treated or stabilised.

32. The Applicant also raised that in the past and for some period of time, she has experienced suicidal ideations. Such a serious condition, it would have been expected, would have been fully diagnosed on the subject of continuous scrutiny by relevant health professionals, that is, a psychiatrist or a clinical psychologist. The evidence given by the Applicant, which the Tribunal accepts, is that the Applicant has had, in recent times, little or no resort to any relevant health professionals on account of suicidal ideations. The Applicant says she appreciates the need to seek specialist medical attention but in her words ‘doesn't have any way of getting there’. She explained that the only family she had in Australia was her daughter who had assisted her on occasions.

33. In summary, on all the evidence in relation to all those matters which were the subject of the AAT1 decision, and in respect of which this Tribunal has examined, there is no basis for concluding that any of those conditions referred to by AAT1 have been fully diagnosed and treated.

34. In plain terms, during the Qualification Period, the Applicant has not been able to demonstrate, to the required standard, that she suffers from a condition that, according to the legislation, is capable of being the subject of DSP.

    CONCLUSION

35. The original decision is affirmed.

I certify that the preceding 35 (thirty-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member M Griffin QC

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

Associate

Dated: 24 September 2021

Date(s) of hearing:	21 September 2021
Advocate for the Applicant:	S. Ahmad
Solicitors for the Respondent:	Bellona Dzang, Services Australia