Akcay and Secretary, Department of Social Services (Social services second review)
[2016] AATA 84
•18 February 2016
Akcay and Secretary, Department of Social Services (Social services second review) [2016] AATA 84 (18 February 2016)
Division
GENERAL DIVISION
File Number(s)
2015/1823
Re
Hatice Akcay
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Dr I Alexander, Member
Date 18 February 2016 Place Sydney The reviewable decision is affirmed.
......................[sgd]...............................
Dr I Alexander, Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – whether Applicant qualifies for unlimited portability – whether Applicant has a severe impairment – whether Applicant has impairment rating of 20 points or more under single Impairment Table – decision affirmed
LEGISLATION
Social Security Act 1991 (Cth) ss 94, 1218AAA
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Dr I Alexander, Member
18 February 2016
BACKGROUND
Ms Akcay has been on the Disability Support Pension (DSP) since March 2006.
On 18 September 2013 Ms Akcay contacted Centrelink to inquire whether she would qualify for continued payment of DSP for an unlimited period while she was outside Australia. In a letter from Centrelink dated 19 September 2013, she was informed that a decision on unlimited portability was subject to a review of her medical conditions to see if she had a ‘severe impairment’ and whether she had no work capacity.
A Medical Report for DSP Review for portability, dated 18 December 2013, was provided by her general practitioner, Dr Yildirim.
In a letter dated 8 September 2014, Ms Akcay was informed that she was not eligible for unlimited portability because she did not have a ‘severe impairment’ as defined in section 94(3B) of the Social Security Act 1991 (the Act) and was not assessed to have ‘no future work capacity’.
In a letter dated 27 November 2014, an Authorised Review Officer affirmed the earlier decision made by Centrelink.
On the 20 March 2015, the former Social Security Appeals Tribunal (SSAT) affirmed the decision by Centrelink because Ms Akcay did not have a ‘severe impairment’ as defined in the Act.
In these proceedings, Ms Akcay seeks review of the SSAT decision.
At the hearing Ms Akcay, who was self-represented, was assisted by a Turkish language interpreter and was able give oral evidence. She was accompanied by one of her daughters, Ms Habibe Akcay, who also gave oral evidence.
ISSUES
Section 1218AAA(1) of the Act provides that a person receiving DSP may be eligible for an unlimited portability period if the person’s impairment is a ‘severe impairment’ within the meaning of s 94(3B) of the Act and if the person will have that severe impairment for at least five years and the severe impairment would prevent the person from performing any work independently of a program of support during that time.
Also, save for exceptional circumstances which are set out in Section 1218AAA(2) of the Act, a determination of unlimited portability must be made before a person goes overseas.
Section 94(3B) of the Act 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”.
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)).
For the purposes of paragraph 6(3)(a) a condition is permanent if it is:
·fully diagnosed by an appropriately qualified medical practitioner (paragraph 6(4)(a)); and
·fully treated (paragraph 6(4)(b)); and
·fully stabilised (paragraph 6(4)(c)); and
·the condition is more likely than not to persist for more than two years (paragraph 6(4)(d)).
The Introduction to each relevant Table states that self-report of symptoms is insufficient, that there must be corroborating evidence, and that evidence from a range of sources should be considered.
It is agreed that Ms Akcay suffers several medical conditions including a lower back condition, respiratory conditions (chronic obstructive pulmonary disease [COPD], asthma, obstructive sleep apnoea), a mental health condition (depression and anxiety), knee pain, carpal tunnel syndrome, obesity and an undiagnosed gastrointestinal condition.
At the hearing the representative for the Respondent submitted, and the Tribunal agrees, that the determinative issue in this review is whether one of Ms Akcay’s medical conditions causes a ‘severe impairment’ within the meaning of section 94(3B) of the Act.
Ms Akcay told the Tribunal that the conditions that cause the most functional impairment are her respiratory conditions (COPD and asthma) and her lower back condition.
Therefore, for present purposes, I am satisfied that the determinative issue in this matter is whether Ms Akcay suffers a ‘severe impairment’ as a result of her respiratory conditions or her lower back condition.
Respiratory Conditions
Ms Akcay told the Tribunal that she gets ‘short of breath’ with relatively modest exertion, for example, walking from her chair to the door of the hearing room. She agreed that a recent change in treatment by her thoracic physician has resulted in some improvement in her condition.
In his report of 18 December 2013, Dr Yildrim notes that Ms Akcay “gets short of breath when walking” but provides no other relevant details.
In a letter dated 14 August 2015, Dr Tri Ha-Minh, thoracic physician, states inter alia the following:
“…Mrs Akcay is a 61 year old lady… She lives with her daughter. She used to smoke 15-20 cigarettes per day for 45 years. She stopped smoking a year ago. Mrs Akcay has had breathing difficulties for 14 years which has become progressively worse. She has not had any hospital admissions for her breathing difficulty. She has a daily cough productive of clear sputum.… Her exercise capacity is limited to walking 20-30 metres on the level ground. She needs assistance with showering and dressing. She is not able to carry out any housework… On examination Mrs Akcay was not in any distress… Air entry and breath sounds were mildly reduced… spirometry performed today… shows a mild degree of airflow obstruction with pulmonary restriction which is related to her weight… Mrs Akcay clearly has significant COPD. Her weight could also contribute to her current symptoms. I have commenced her on Ultibro 110/50, 1 puff daily…”
In a letter dated 13 November 2015 Dr Tri Ha-Minh states inter alia the following:
“I reviewed Mrs Akcay in my rooms today and I believe she returned from Turkey two weeks ago... She did not have significant breathing difficulties while she was travelling. She used to go out frequently. She still has a daily cough without significant sputum production… Mrs Akcay still needs assistance with showering and dressing….her current medications consist of Ultibro 110/50, 1 daily. On examination Mrs Akcay was not in any distress. Air entry and breathe sounds were normal. There was no wheezing detected… The Respiratory Function Test… shows a moderate degree of airflow obstruction with partial brocho dilator reversibility… Mrs Akcay clearly has evidence of COPD. She seems to have improved since she started taking Ultibro every day. I have asked her to continue to use the medication and I have encouraged her to increase her activity level…”
Lower back condition
Ms Akcay told the Tribunal that the primary problem with her back is restricted mobility. She has difficulty with sitting and standing and asks for help in getting out of a chair. However, if she is by herself she is able to get out of a chair. When sitting she cannot stay still because she gets “cramps”.
Ms Akcay’s daughter told the Tribunal that she lives with her mother and is her primary carer. She has two sisters and a brother who live overseas and there is no other family in Australia. She said that she does all of the house work and helps her mother with dressing and showering. She takes her mother to the shopping centre by car. Ms Akcay is able to get out of the car and walk for a short distance to the nearest seat, using a walking frame, and then sits and waits until her daughter completes the shopping. At home Ms Akcay is able to walk around the house without a walking frame.
In his report of 18 December 2013 Dr Yildrim notes that Ms Akcay suffers severe back pain and decreased mobility because of because of “L4/5, L5/S1 disc bulges, posterior annular tears and degenerative facet joints of lumbar spine”. He describes the ‘impact on ability to function’ as “cannot walk freely, restricted movement, cannot stand long minutes [sic]…”
In a Job Capacity Assessment report submitted on the 30 May 2014 the assessor notes inter alia the following:
“Client reported reduced tolerances to sitting and standing due to back pain. She stated she shifts posture as required. She was observed to bend to pick up bags of medications from the ground, however was slow in movement and stiff when returning to upright posture….She was observed to sit for the duration of the assessment with shifting posture as required (50 minutes). She was observed to transfer from sit-to-stand independently. She reported she remains independent in terms of self-care [emphasis added]”
Ms Akcay told the SSAT that she “has difficulty with walking and currently uses a walking frame… came to the tribunal by train with her daughter but prefers not to travel by public transport… does not require physical assistance to stand up from a seated position… walks with a trolley when performing shopping… hangs onto the rail when negotiating stairs…”
Consideration
The evidence with respect to the functional impact of Ms Akcay’s respiratory and lower back conditions is somewhat problematic in that it is quite limited and reveals significant inconsistences.
The letters from Dr Tri Ha-Minh suggest that as at August 2015, Ms Akcay’s COPD was not fully treated and stabilised. At the hearing Ms Akcay agreed that following the change in her treatment her symptoms had improved and confirmed that during the six week trip to Turkey she did not have any breathing difficulties.
For present purposes, I accept that as at 13 November 2015 Ms Akcay’s COPD was permanent for the purposes of the Impairment Determination.
I also accept that she suffers impairment because of the COPD, however, on consideration of the limited evidence before the Tribunal and the descriptors in Impairment Table 1, I am not persuaded that she has a ‘severe impairment’ as a result of this condition.
In respect of Ms Akcay lower back condition I accept that the condition is permanent for the purposes of the Impairment Determination and that that she suffers impairment. However, on consideration of the limited and somewhat inconsistent evidence before the Tribunal and the descriptors in Impairment Table 4, I am not persuaded the she has ‘severe impairment’ as a result of this condition.
Therefore, as Ms Akcay does not have a ‘severe impairment’ under a single Impairment Table she is not entitled to unlimited portability of DSP.
DECISION
The decision under review is affirmed.
I certify that the preceding 34 (thirty -four) paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander, Member .......................[sgd].................................................
Associate
Dated 18 February 2016
Date(s) of hearing 1 February 2016 Applicant In person Solicitors for the Respondent Ms Gabrielle Doyle
Key Legal Topics
Areas of Law
-
Social Security Law
Legal Concepts
-
Severe Impairment
-
Impairment Rating
-
Portability
0
0
1