Ahmad Haloum and Secretary, Department of Social Services

[2015] AATA 798

Haloum and Secretary, Department of Social Services (Social services second review) [2015] AATA 798 (13 October 2015)

Division	GENERAL DIVISION
File Number(s)	2015/0968
Re	Ahmad Haloum
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Professor R McCallum AO, Member
Date	13 October 2015
Place	Sydney

The decision under review is affirmed.

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

Professor R McCallum AO, Member

CATCHWORDS

SOCIAL SECURITY – pensions – disability support pension – whether applicant’s conditions were fully diagnosed, treated and stabilised – decision affirmed

LEGISLATION

Social Security Act 1991 (Cth) s 94

Social Security (Administration) Act 1999 (Cth)

CASES

Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922

Re Fanning and Secretary, Department of Social Services [2014] AATA 447

Re Ulukut and Secretary, Department of Social Services [2014] AATA 399

SECONDARY MATERIALS

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

REASONS FOR DECISION

Professor R McCallum AO, Member

13 October 2015

INTRODUCTION

1. The Applicant, Mr Ahmad Haloum was born in Lebanon and came to Australia in 2008. He has not worked since 2008, and he is not in receipt of Centrelink benefits.

2. In mid-2014, Mr Haloum was allegedly assaulted by a neighbour and was admitted to hospital with head injuries.

3. On 19 August 2014, Mr Haloum was admitted involuntarily to the mental health unit at St George Hospital. He was discharged on 28 August 2014.

4. On 28 August 2014, Dr Radhika Chikramane issued a medical report for Mr Haloum. In this report, Dr Radhika Chikramane stated that Mr Haloum had been diagnosed with post traumatic stress disorder. Dr Radhika Chikramane indicated that Mr Haloum has had no past treatment for this condition, and that the effect of this condition within the next two years on Mr Haloum's ability to function was uncertain.

5. On 1 September 2014, Mr Haloum lodged a claim for Disability Support Pension (DSP).

6. On 23 October 2014, a Job Capacity Assessment was carried out by a registered psychologist. The assessor held that Mr Haloum's post-traumatic stress disorder had not been fully treated and stabilised. Accordingly, the assessor was unable to award and impairment rating under Table 5 of the Impairment Tables which are to be found in the Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (Cth) (the impairment tables). Table 5 is titled "Mental health function".

7. It was further held that Mr Haloum had a baseline work capacity of 0-7 hours per week, and that his capacity for work within two years with interventions would increase to 23-29 hours per week.

8. Centrelink rejected Mr Haloum's claim for DSP. Mr Haloum sought review from an Authorised Review Officer and then from the former Social Security Appeals Tribunal (SSAT), but to no avail.

9. On 10 February 2015, the SSAT affirmed the decision under review. The SSAT held that Mr Haloum's post-traumatic stress disorder was not fully treated and stabilised, and accordingly could not be assessed under the Impairment Tables. The SSAT further held that the blindness in Mr Haloum's left eye warranted an assessment of five points under  Table 12 of the Impairment Tables which is titled "Visual function". Finally, the SSAT was of the view that there was insufficient evidence to conclude that Mr Haloum suffered from a cognitive impairment.

10. Mr Haloum now appeals to this Tribunal.

    THE LEGISLATION

11. The relevant provisions governing eligibility for DSP are to be found in the Social Security Act 1991 (Cth) (the SS Act) and in the Social Security (Administration) Act 1999 (Cth) (the Administration Act).

12. The criteria for DSP are set forth in section 94 of the SS Act. In Mr Haloum's circumstances subsection 94(1) relevantly provides:

    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;

    ...

13. Put simply, I must be satisfied, first, that Mr  Haloum has one or more physical, intellectual or psychiatric impairments. Second, that these impairments are rated at least 20 points under the impairment tables. Finally, I must be satisfied that Mr Haloum has a continuing inability to work.

    The 13 week qualifying period

14. Section 94 of the SS Act must be read in conjunction with Schedule 2 clause 4(1) of the Administration Act. It is not necessary to set out this clause, suffice to write the following. Clause 4(1) is worded in a complex manner, however, it sets out by implication a 13 week qualifying period for DSP. The effect of this provision is that I am required to determine Mr Haloum's eligibility for DSP in the 13 week period commencing on the day on which Mr Haloum applied for DSP, and concluding 13 weeks after that day. Therefore, I must determine whether Mr Haloum qualified for DSP between 1 September 2014 and 1 December 2014.

15. In Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922, Member Breen said at 34:

    In the Tribunal's consideration as to whether a condition has been stabilized and is likely to persist for the foreseeable future, the Tribunal must look at the situation as it was, and the evidence that was available, at the time of the application for DSP (and the subsequent 13 weeks). Any subsequent evolution of a particular condition might be relevant to any weight the Tribunal places on competing prognostications or on an assessment of the quality of the medical reports provided (most notably where evidence indicates that the creator of a medical report may not have had access to all relevant information or may not have turned his or her mind to all the relevant issues).

    This point is important as it is quite frequently the case that appeals on DSP decisions arrive at this Tribunal twelve or more months after the initial DSP application was refused. In many instances, the natural course of illnesses or injuries has then become more obvious, thereby confounding the professional opinions honestly proffered by thorough and conscientious treating doctors. If a medical condition has progressed since the time of the original DSP application, then it is up to the applicant to make a new DSP application. It is not open in law for this Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances.

16. In Re Fanning and Secretary, Department of Social Services [2014] AATA 447, Deputy President Handley said at [31]-[33]:

    [31] In my view, in the case of DSP, it is implicit in clause 4 of Schedule 2 of the Administration Act that an applicant must be qualified for DSP on the date of claim or within] the period of 13 weeks following. Evidence, such as medical reports, that come into being after the claim period may still be relevant, but only in so far as they are referable to the applicant's condition during the claim period.

    [32] This is supported by the judgment of Gyles J in Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404. Gyles J stated at [1] that as an applicant's entitlement to DSP must be considered at the date of claim and within the 13 week period, “Any subsequent change in her health is irrelevant to the questions which arise in this proceeding except insofar as it may cast light on the position at the relevant time”.

    [33] … The legislation requires the Tribunal to consider the treatment that has taken place, and was intended to take place, and the likely effect of that treatment, at the time of the claim and in the 13 weeks thereafter. For that reason, evidence of treatment, and the efficacy of that treatment, after the claim period is not directly relevant to the Tribunal's decision.

17. Therefore, in determining the eligibility of Mr Haloum to receive DSP I am confined to examining Mr Haloum's impairments during the 13 week claim period which is from 1 September 2014 to 1 December 2014.

    THE CONCESSIONS OF THE RESPONDENT

18. Paragraphs 28 and 29 of the Respondent's Statement of Facts and Contentions is as follows.

    28.The Respondent accepts that within the claim period, the Applicant suffered from Post-Traumatic Stress Disorder.

    29.Therefore the Respondent accepts that subsection 94(1)(a) of the Act is satisfied.

    THE ISSUES BEFORE THE TRIBUNAL

19. Given the Respondent's concession, Mr Haloum complies with subsection 94(1)(a) of the SS Act as he has post-traumatic stress disorder. Therefore, the first issue which I am required to decide is whether any of Mr Haloum's impairments have been fully diagnosed, treated and stabilised in order that they may be rated under the Impairment Tables.

20. The second issue which I am required to decide is whether Mr Haloum has a continuing inability to work pursuant to subsection 94(1)(c)(i) and attendant provisions of the SS Act. It will not be necessary to decide this issue if I find that Mr Haloum's impairments do not attain an assessment of 20 points under the assessment tables.

    The Impairment Tables

21. Section 94(1)(b) of the SS Act obliges me to decide whether the impairments of Mr Haloum are worth 20 points under the Impairment Tables. This requires a few words of explanation.

22. In Re Ulukut and Secretary, Department of Social Services [2014] AATA 399 Senior Member Isenberg helpfully explains the operation of the impairment tables in the following words which I gratefully reproduce here. Senior Member Isenberg states:

    [5] ... The Tables are function-based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impairment. Impairment is defined to mean a loss of functional capacity affecting a person's ability to work that results from the person's condition: s 3 of the Determination. A claimant's impairment is to be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person: s 6(1) of the Determination.

    [6] The Tables may only be applied after the person's medical history has been considered. An impairment can only be allocated if a condition is permanent, i.e. fully diagnosed, treated and stabilised, and likely to persist for more than two years: s 6(2)-6(4) of the Determination.

23. Importantly, impairments can only be assigned ratings under the Impairment Tables when the medical condition is permanent within the meaning of the term in the Determination and the impairment resulting from the condition is likely to persist for more than two years. The Determination provides at subsection 6(4) that the condition is considered to be permanent if it has been fully diagnosed, treated, stabilised and be likely to persist for more than two years.

24. Subsection 6(5) of the Determination provides that when considering whether a condition is fully diagnosed and treated one must consider: whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred in relation to the condition; and whether treatment is continuing or is planned in the next two years. Subsection 6(6) provides, in part, that a condition is fully stabilised where a 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 two years.

25. It is also important to appreciate that under sub-section 10(5), if two or more conditions cause a common or combined impairment, then a single rating should be assigned in relation to that common or combined impairment under a single Table. However, sub-section 10(6) goes on to provide that in assessing two or more conditions which cause a common or combined impairment, it is inappropriate to assign a separate impairment rating for each condition as this would result in the same impairment being assessed more than once.

    THE DOCUMENTARY EVIDENCE

26. The Tribunal has before it the documents prepared by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (Cth) which are known as the T documents. On 23 September 2015, the Tribunal received several medical reports from Mr Haloum.

    THE ORAL EVIDENCE

27. Mr Haloum attended the hearing with his wife Ms Bassema El Masri.

28. During the hearing, Mr Haloum and Ms El Masri were assisted by an interpreter in the Arabic language.

29. Mr Haloum was unresponsive and did not speak but kept bending and looking down.

30. Ms El Masri said that Mr Haloum had seen a psychiatrist and that he was very sick. I said that if Mr Haloum's conditions had worsened, it was open to him to make another application for DSP. Ms El Masri said that he had made a second application. This was not before the Tribunal.

31. After the hearing, the Respondent sent a document to the Tribunal which showed that Mr Haloum had made a second application for DSP on 11 May 2015. In August 2015, Centrelink rejected this claim on the grounds that Mr Haloum was not residentially qualified.

    The evidence of Ms El Masri

32. Ms El Masri gave sworn evidence.

33. Ms El Masri recounted that she came to Australia in 1976, and that she married Mr Haloum in 1988. She said that he arrived on a spousal visa. He has not worked since coming to Australia.

34. Ms El Masri said that in 2011 after a heart attack she has been in receipt of DSP.

35. Ms El Masri said that in mid-2014 she witnessed a neighbour hit Mr Haloum in the head with a baseball bat. She said that she drove with Mr Haloum in the ambulance to St George Hospital. Ms El Masri said that Mr Haloum was in the hospital for about a week.

36. I explained that there was no police incident record before the Tribunal. I further explained that there was no discharge report from the St George Hospital about this matter before the Tribunal.

37. Ms El Masri said that Mr Haloum no longer speaks and that this has become worse over the last few months.

38. When asked about Mr Haloum's lack of sight in his left eye, Ms El Masri said that he does not have an eyeball in the left eye and that he does not like to speak about this.

39. In cross-examination, Ms El Masri was referred to a handwritten report by Dr Ishrat Ali, consultant psychiatrist dated 23 September 2015. The relevant portion of this report was read out to Ms El Masri as follows.

    He has recently been incontinent as well. His medication has been changed.

    His response to the medication is poor.

40. Ms El Masri was asked about this medication. She showed the Tribunal the tablets which were in her bag. They were ZYPREXA 5mg tablets - each tablet contains 5mg of OLANZAPINE. Ms El Masri was asked whether Mr Haloum had changed to this medication on 23 September 2015, and she said yes.

    CONSIDERATION

41. The primary issue before me is whether any of Mr Haloum's impairments have been fully diagnosed, treated and stabilised so that they may be rated under the Impairment Tables.

    Post-traumatic stress disorder

42. It was conceded by the Respondent that Mr Haloum has post-traumatic stress disorder which has been fully diagnosed. Therefore, I am required to decide whether this impairment has been fully treated and stabilised.

43. In considering the evidence before me, I note the report from Dr Radhika Chikramane dated 28 August 2014.  Dr Radhika Chikramane placed Mr Haloum on a trial of Mirtazapine 15mg, and referred him to Transculture Health for further support in the community, and suggested that he undergo psychotherapy treatment.

44. I note that on 18 December 2014, further appointments were scheduled with Dr Ishrat Ali, consultant psychiatrist, and Dr  Ishrat  Ali was to provide further reports on Mr Haloum's progress.

45. Finally, I note the handwritten report from Dr Ishart Ali and to the evidence of Ms El Masri that Mr Haloum changed his medication on 23 September 2015.

46. Having regard to the medical evidence and the evidence of Ms El Masri, I find that Mr Haloum's post-traumatic stress disorder was not fully treated and stabilised during the claim period. Therefore, it cannot be assessed under the Impairment Tables.

    Visual impairment

47. There is very little evidence on Mr Haloum's visual impairment. I note that in his report dated 28 August 2014, Dr Chikramane noted that Mr Haloum has suffered loss of vision since he was nine. I note the evidence of Ms El Masri that Mr Haloum has no eyeball in his left eye.

48. In its decision of 10 February 2015, the SSAT stated as follows in paragraph 18.

    The tribunal accepted the evidence that Mr Haloum has been blind in his left eye since childhood and has normal vision in his right eye.

49. However, there is no medical report before me which states that Mr Haloum has no eyeball in his left eye. There is no report before this Tribunal from an ophthalmologist on Mr Haloum's visual impairment.

50. I find this to be a difficult issue, however, in these circumstances, I am unable to conclude that Mr Haloum's visual impairment was fully diagnosed, treated and stabilised during the claim period.

51. Even if I were to find that Mr Haloum’s visual impairment was fully diagnosed, treated and stabilised during the claim period, there is no evidence of the affects of this loss of vision on Mr Haloum. Therefore, I have no evidence which would enable me to assess this impairment under Table 12 of the Impairment Tables.

    Cognitive impairment

52. There is no evidence from which I could conclude that Mr Haloum is suffering from a cognitive impairment. In his report dated 18 December 2014, Dr Ishrat Ali wrote as follows.

    On further examination of his mental state there was no evidence of psychosis, brain damage or any other problem.

    He appeared to be functioning at an average level of intelligence and had reasonable insight into his condition.

53. I find on the evidence before the Tribunal that Mr Haloum was not suffering from a cognitive impairment during the claim period.

54. As I have found that none of Mr Haloum's impairments are assessable under the impairment tables, Mr Haloum does not qualify for DSP.

55. Therefore, it is not necessary for me to decide whether Mr Haloum has a continuing inability to work.

    DECISION

56. The decision of the former Social Security Appeals Tribunal dated 10 February 2015 is affirmed. Mr Haloum does not qualify for Disability Support Pension.

I certify that the preceding 56 (fifty -six) paragraphs are a true copy of the reasons for the decision herein of Professor R McCallum AO, Member

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Associate

Dated 13 October 2015

Date(s) of hearing	28 September 2015
Applicant	In person
Solicitors for the Respondent	Department of Human Services